# A.K. Misra v. State of U.P

- **Citation:** (2014) 1 ILRA 317
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2014-02-13
- **Case number:** Service Single No. 2233 of 1991
- **Bench:** Suneet Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/a-k-misra-v-state-of-u-p-42791
- **Pages:** 6

## Headnote

Servant(termination of service)Rules 1975readwith U.P. Police Regulation-Regulation541-Termination
of
constable-on
involvement in criminal case-under section
392,
323,
506,
342
IPC-S.P.
passed
termination order considering conducts of
petitioner under Rule 1975-argument that
termination can be only under Regulation
541 and the provisions of Rule 75 not
available-held misconceived-in absence of
appointment letter-can not be treated
probationer-before passing impugned order
authority taken care of his conductacquittal
base
upon
compromise
is
immaterial-warrants no interference.
318 INDIAN LAW REPORTS ALLAHABAD SERIES
Held: Para-8
I
have
perused
the
aforementioned
judgments and facts of each case and the
judgments are distinguishable from the facts
of the present case. In Ram Sagar Pandey's
case (Supra) as well as in Murli Shanker case
(Supra) the finding is that the constables
were permanent constables in the police
force
and
they
had
completed
their
probation and the Court was of the opinion
that their services could not have been
terminated under 1975 Rules by giving one
month's notice. The Division Bench in Ram
Lakhan Tiwari's case (Supra) has referred to
a Full Bench judgment of the Supreme Court
in Nanak Chandra vs. State of U.P. in writ
petition no. 2808 of 1970 decided on
21.5.1971, which considered the question,
as to whether Police Act and the Police
Regulations contemplates any temporary
employment of police officers, and came to
the conclusion that temporary post can be
created in the police force and the Full Bench
was of the view that the Section 2 of Police
Act is wide enough to the wordings that such
post can be created and the decision of the
Full Bench was affirmed by the Supreme
Court and was of the view that petitioners,
who were recruited on temporary basis and
through out their services they remained as
temporary employee and their services were
liable to be terminated on one month's
notice.

Case Law discussed:
(2011)3 UPLBEC 2588; (2000) 5 SCC 152.

## Text

1 All] A.K. Misra Vs. State of U.P.
317
possibility that the accused could also have
been judiciously evaluated as innocent, it
cannot be said that the guilt of the accused
has been proved beyond all possible
reasonable doubts. This is the hub and
substance of the law that has evolved during
the course of several decades and it does not
admit of any controversy.

15. When this Court appreciated and
evaluated the evidence as has been
discussed in the impugned order and is also
present before this Court in the form of
original record, it can be said that the
impugned order does not suffer from any of
such infirmities which may constitute a
valid ground to interfere in the matter. The
Court has validly taken into account the
improbability of the allegation that even on
the repeated fires having been made on the
complainant, he was still escaping in a
magical manner repeatedly and remained
uninjured, by the shots fired at him all
throughout. It has also been taken into
account as to how the complainant's side
has completely failed to give any details or
any
kind
of
discription
about
the
motorcycles used in the alleged crime. The
fact that the witnesses produced by the
complainant have a history of loyalty to him
and that they have been used as witnesses
even in other cases by the complainant, has
also been considered by the trial court. The
discrepancy in the version inter se between
the testimonies produced before the court
has also been adversely viewed by the
Court. In fact the entire prosecution version
given out by the complainant has been
found to be palpably improbable and also
reflecting the unnatural conduct of the
witnesses. The enormity of the assault made
on the complainant has also been found to
be not in consonance with the scars and
nominal injuries found on the person of the
complainant.

16. The impugned order of the trial
court does not seem to suffer from any
such
infirmity
and
impropriety
or
illegality or with any of those judicially
recognized vices referred to above, which
may persuade the Court to interfere and
set aside the judgment.

17. In the aforesaid view of the
matter, the revision stands, dismissed,
both on the ground of its maintainability
as well as on its merits.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 13.02.2014

BEFORE
THE HON'BLE SUNEET KUMAR, J.

Service Single No. 2233 of 1991

A.K. Misra..... Petitioner
Versus
State of U.P...... Respondent

Counsel for the Petitioner:
Sri S.D. Singh, Sri Alam Singh, Sri S.K.
Shukla

Counsel for the Respondents:
C.S.C.

U.P.Temporary
Government
Servant(termination of service)Rules 1975readwith U.P. Police Regulation-Regulation541-Termination
of
constable-on
involvement in criminal case-under section
392,
323,
506,
342
IPC-S.P.
passed
termination order considering conducts of
petitioner under Rule 1975-argument that
termination can be only under Regulation
541 and the provisions of Rule 75 not
available-held misconceived-in absence of
appointment letter-can not be treated
probationer-before passing impugned order
authority taken care of his conductacquittal
base
upon
compromise
is
immaterial-warrants no interference.
318 INDIAN LAW REPORTS ALLAHABAD SERIES
Held: Para-8
I
have
perused
the
aforementioned
judgments and facts of each case and the
judgments are distinguishable from the facts
of the present case. In Ram Sagar Pandey's
case (Supra) as well as in Murli Shanker case
(Supra) the finding is that the constables
were permanent constables in the police
force
and
they
had
completed
their
probation and the Court was of the opinion
that their services could not have been
terminated under 1975 Rules by giving one
month's notice. The Division Bench in Ram
Lakhan Tiwari's case (Supra) has referred to
a Full Bench judgment of the Supreme Court
in Nanak Chandra vs. State of U.P. in writ
petition no. 2808 of 1970 decided on
21.5.1971, which considered the question,
as to whether Police Act and the Police
Regulations contemplates any temporary
employment of police officers, and came to
the conclusion that temporary post can be
created in the police force and the Full Bench
was of the view that the Section 2 of Police
Act is wide enough to the wordings that such
post can be created and the decision of the
Full Bench was affirmed by the Supreme
Court and was of the view that petitioners,
who were recruited on temporary basis and
through out their services they remained as
temporary employee and their services were
liable to be terminated on one month's
notice.

Case Law discussed:
(2011)3 UPLBEC 2588; (2000) 5 SCC 152.

(Delivered by Hon'ble Suneet Kumar, J.)

1. Heard learned counsel for the
petitioner as well as learned Standing
Counsel.

2. The case of the petitioner is that
the petitioner was appointed as temporary
constable and a criminal case was lodged
against the petitioner registered as Crime
Case No. 288 of 1991 under Sections 392,
323, 506 and 342 I.P.C. lodged at Police
Station G.R.P., Lucknow. It appears that
thereafter the impugned order dated 21st
March,
1991
was
passed
by
the
Superintendent
of
Police
Railway
terminating the services of the petitioner
treating him to be temporary Government
employee
under
U.P.
Temporary
Government Servants (Termination of
Services) Rules, 1975.

3. Aggrieved by the said impugned
order, the petitioner has preferred this writ
petition. The submission of the learned
counsel for the petitioner is that the order
impugned is punitive in nature as it casts a
stigma upon the petitioner and further the U.P.
Temporary
Government
Servants
(Termination of Service) Rules, 1975 are not
applicable on the petitioner. The sole basis for
termination of the petitioner is the lodging of
the first information report and the petitioner
was subsequently acquitted in the trial and the
final argument of the learned counsel for the
petitioner is that the procedure as prescribed
under
Regulation
541
of
the
Police
Regulations has not been complied with.

4. In rebuttal, the learned Standing
Counsel states that the petitioner has not
filed his appointment letter nor he has
stated in the pleadings, as to when, the
petitioner was appointed and as to
whether his services was under probation,
as contemplated under Regulation 541.

5. The Police Force being a
disciplined force and in case, of criminal
offences being lodged against a temporary
constable is sufficient to terminate his
services. The order does not cast any
stigma, as it does not state that the order
has been passed on any misconduct rather
on unsuitability of the petitioner.

6. The pleadings are silent, as to the
nature of the appointment of the petitioner
1 All] A.K. Misra Vs. State of U.P.
319
and it is nowhere stated that the petitioner
was appointed against a clear vacancy as
contemplated under Regulation 541. Subclause (1) of Regulation 541 states that the
person will be on probation from the date he
begins to officiate in clear vacancy. The
entire petition is silent, as to whether the
petitioner after completing his training was
appointed against a clear vacancy rather the
submission of the learned counsel for the
petitioner is that the petitioner was recruited
as a temporary constable and no appointment
letter was issued to the petitioner. There is no
denial of the fact that immediately after the
petitioner got recruited he got involved in a
criminal offence of serious nature. The
impugned order states that the petitioner was
temporary constable bearing no. 2526 and
his services are no longer required and hence
is being terminated in lieu of a month's
notice. The order impugned has been passed
under the 1975 Rules.

7. The learned counsel for the
petitioner has relied upon judgments passed
in Writ Petition No. 1055 of 1993 (Ram
Sagar Pandey vs. State of U.P. and others),
Writ Petition No. 551 (SS) of 1993 (Murli
Shanker vs. State of U.P. and another),
Division Bench judgement in Ram Lakhan
Tiwari vs. Senior Superintendent of Police,
Kanpur reported in (2011) 3 UPLBEC 2335,
State of U.P. vs. Sunil Kumar Sharma
reported in (2011) 3 UPLBEC 2588 and the
Supreme Court judgment reported in (2000)
5 SCC 152 Chandra Prakash Shahi vs. State
of U.P. and others.

8. I have perused the aforementioned
judgments and facts of each case and the
judgments are distinguishable from the facts
of the present case. In Ram Sagar Pandey's
case (Supra) as well as in Murli Shanker case
(Supra) the finding is that the constables
were permanent constables in the police
force and they had completed their probation
and the Court was of the opinion that their
services could not have been terminated
under 1975 Rules by giving one month's
notice. The Division Bench in Ram Lakhan
Tiwari's case (Supra) has referred to a Full
Bench judgment of the Supreme Court in
Nanak Chandra vs. State of U.P. in writ
petition no. 2808 of 1970 decided on
21.5.1971, which considered the question, as
to whether Police Act and the Police
Regulations contemplates any temporary
employment of police officers, and came to
the conclusion that temporary post can be
created in the police force and the Full Bench
was of the view that the Section 2 of Police
Act is wide enough to the wordings that such
post can be created and the decision of the
Full Bench was affirmed by the Supreme
Court and was of the view that petitioners,
who were recruited on temporary basis and
through out their services they remained as
temporary employee and their services were
liable to be terminated on one month's notice.
Paragraphs 6 & 11 of the Ram Lakhan
Tiwari's case (Supra) are reproduced:-

"The State of U.P. filed Civil Appeal
No. 8279 of 1996. By judgment dated
13.4.2007, the Supreme Court set aside
the judgment of the learned Single Judge
of the Court, with findings that Full
Bench of the High Court in Nanak Chand
Vs. State of U.P., in writ petition No.
2808 of 1970 decided on 21.5.1971,
considered the question as to whether the
Police Act and the Police Regulations
contemplates any temporary employment
of police officers, and came to the
conclusion that temporary post can be
created in the police force. The Full
Bench was of the view that Section 2 of
the Police Act is wide enough to permit
such posts to be created. The Supreme
Court held as follows:-
320 INDIAN LAW REPORTS ALLAHABAD SERIES

"The Full Bench was also of the view
that it is a general rule in the State for all new
recruits to be employed first in a temporary
capacity. Accordingly, the full Bench held in
Nanak Chand (Supra) that all the petitioners
were recruited on temporary basis and
throughout their service they remained
temporary employees whose services were
liable to be terminated on one month's notice.
Undisguisedly, the decision of the full Bench
was not brought to the notice of the learned
Single Judge. In view thereof, counsel on
both sides submit that the order of the Single
Judge impugned in this appeal may be set
aside and the matter may be remitted to the
Single Judge of the High Court of Allahabad
to consider afresh after considering the
judgment in Nanak Chand (supra) rendered
by the full Bench of the High Court"

11. The Supreme Court referred to the
Full bench decision of this Court in Nanak
Chand (Supra) that temporary employment is
also given in the police force. There is no
general rule that all the police constables are
permanent employees. The petitioner was
recruited in the year 1973. There was nothing
to show that he was placed under probation.
The petitioner had to be treated as a
temporary employee on the date when his
services were terminated by the Senior
Superintendent of Police, Kanpur."

9. In Chandra Prakash Shahi's case
(Supra),
the
Supreme
Court
after
considering earlier judgments on the subject
made a distinction between termination
simlicitor and a punitive termination and the
Supreme Court was of the view that
termination
motivated
by
employees
general unsuitability is valid. Paras 28 and
29 are relevant:-

"28.) The important principles which
are deducible on the concept of "motive"
and
"foundation",
concerning
a
probationer, are that a probationer has no
right to hold the post and his services can be
terminated at any time during or at the end of
the period of probation on account of general
unsuitability for the post in question. If for
the determination of suitability of the
probationer for the post in question or for his
further
retention
in
service
or
for
confirmation, an enquiry is held and it is on
the basis of that enquiry that a decision is
taken to terminate his service, the order will
not be punitive in nature. But, if there are
allegations of misconduct and an enquiry is
held to find out the truth of that misconduct
and an order terminating the service is passed
on the basis of that enquiry, the order would
be punitive in nature as the enquiry was held
not for assessing the general suitability of the
employee for the post in question, but to find
out the truth of allegations of misconduct
against that employee. In this situation, the
order would be founded on misconduct and it
will not be a mere matter of "motive".

29.)"Motive" is the moving power
which impels action for a definite result,
or to put it differently, "motive" is that
which incites or stimulates a person to do
an act. An order terminating the services
of an employee is an act done by the
employer. What is that factor which
impelled the employer to take this action.
If it was the factor of general unsuitability
of the employee for the post held by him,
the action would be upheld in law. If,
however, there were allegations of serious
misconduct against the employee and a
preliminary enquiry is held behind his
back to ascertain the truth of those
allegations and a termination order is
passed thereafter, the order, having regard
to other circumstances, would be founded
on the allegations of misconduct which
were found to be true in the preliminary
enquiry."
1 All] A.K. Misra Vs. State of U.P.
321

10. The facts of Chandra Prakash
Shahi's case (supra) is distinguishable
from the facts of the case in hand. The
constable had completed training and also
two years of probationary period, the
Apex Court opined that the services of the
probationer if proposed to be terminated,
the procedure prescribed by Regulation
for the purpose needs to be complied.
Paras 31, 32 and 33 are relevant:-

"31.) There is another aspect of the
matter.

327.) Para 541 of the U.P. Police
Regulations provides as under :

"541. (1) Recruits will be on
probation for a period of two years,
except that --

(a) those recruited directly in the
Criminal Investigation Department or
District Intelligence Staff will be on
probation for three years, and

(b) those transferred to the Mounted
Police will be governed by the directions
contained in paragraph 84 of the Police
Regulations.

If during the period of probation their
conduct and work have been satisfactory
and they are approved by the Deputy
Inspector General of Police at the end of
the period of probation for service in the
force the Superintendent of Police will
confirm them in their appointment.

(2) In any case in which either during
or at the end of the period of probation,
the Superintendent of Police is of opinion
that a recruit is unlikely to make a good
police officer he may dispense with his
services. Before, however, this is done the
recruit must be supplied with specific
complaints and grounds on which it is
proposed to discharge him and then he
should be called upon to show cause as to
why he should not be discharged. The
recruit must furnish his representation in
writing and it will be duly considered by
the Superintendent of Police before
passing the orders of discharge.

(3)
Every
order
passed
by
a
Superintendent under sub-paragraph (2)
above shall, subject to the control of the
Deputy Inspector General, be final."

33.) Where, therefore, the services of a
probationer are proposed to be terminated and
a particular procedure is prescribed by the
Regulations for that purpose, then the
termination has to be brought about in that
manner. The probationer-constable has to be
informed of the grounds on which his services
are proposed to be terminated and he is
required to explain his position. The reply is to
be considered by the Superintendent of Police
so that if the reply is found to be convincing,
he may not be deprived of his services."

11. The learned counsel for the
petitioner has failed to bring on record any
material to show that the services of the
petitioner was terminated on the basis of
misconduct. The only submission is that a
first information report was lodged and,
therefore, the petitioner's service has been
dispensed with. The impugned order is
innocuous order and does not say that the
foundation for passing the order is lodging of
F.I.R. rather the order has been passed on
general unsuitability, it is not punitive or
stigmatic in nature. This Court vide order
dated 7.9.2000 had directed the competent
authority to decide the representation of the
petitioner, as the petitioner was acquitted in
criminal case. Vide order dated 12.12.2000
the Superintendent of Police rejected the
representation stating therein that the
petitioner was charged for serious offence
and has been acquitted under Section 392
I.P.C. on the basis of compromise and not on
merits. The impugned order dated 21.3.1991
was passed after assessing the suitability of
322 INDIAN LAW REPORTS ALLAHABAD SERIES
the petitioner and it was found that the
petitioner was not suitable for the post of
constable. The order dated 7.9.2000 has also
been challenged by way of amendment.

12. The petitioner's appointment was
purely temporary and he was not on
probation, Regulation 541 is not applicable
and his services could be terminated under
the Rules of 1975.

13. For the reasons stated herein
above, the writ petition is devoid of merits
and is, accordingly, dismissed.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 26.03.2014

BEFORE
THE HON'BLE AMAR SARAN, J.
THE HON'BLE MRS. VIJAY LAKSHMI, J.

Crl. Writ-Public Interest Litigation No.
2357 of 1997

Bachchey Lal..... Petitioner
Versus
State of U.P. and Ors...... Respondents

Counsel for the Petitioner:
From Jail

Counsel for the Respondents:
A.G.A., Sri Patanjali Mishra

Constitution
of
India,
Art.-226-Public
Interest Litigation-direction for premature
release of convicts-in jail for more than 14
years-guide lines issued-to sort out problems
providing private health care for women
prisoners-the
District
Judge
and
jail
superintendent, Director General Medical
and Health to provide specialist government
women doctors for female inmates and their
children-further directions for smooth and
proper implementation of guide lines issued.

Held: Para-18 & 19
18. The Registrar General, High Court and
the Member Secretary, U.P. Legal Services
Authority are directed to communicate and
ensure
compliance
of
the
aforesaid
directions and to submit a report on the next
listing. We also direct the Member Secretary
and Secretary, UPSLSA, not merely to
forward the responses received by the
Authority to this Court, but to pro-actively
issue directions to the DLSAs and to take
other necessary steps as these matters
relate to prisoners confined in jails and their
need for legal aid.

19. Copies of this order be provided to
Member Secretary, UPSLSA, all District
Judges for communicating to members of
DLSAs, CJMs and other concerned judicial
officers, District legal aid counsel, ADG
(Prisons), U.P. for communication to all Jail
superintendents, Law Secretary and LR,
Home Secretary, U.P., Director General
(Medical
and
Health),
U.P.,
learned
Government Advocate, learned AGA Sri
Vimlendu Tripathi, Special counsel for High
Court, Sri Sudhir Mehrotra, learned Amicus
Curiae, Sri Patanjali Mishra, and also to place
the same before the R.G. High Court for
compliance and submission of feedback on
next listing. We hope that the said
authorities or at least the high level
representatives on their behalf who are
capable of taking decisions in 13 the matters
and answering the queries that may be
raised by the Court, shall attend the hearing
on the next listing.

Case Law discussed:
(1978) 4 SCC 47; (1980) 1 SCC, 81.

(Delivered by Hon'ble Amar Saran, J.)

1. We have heard Sri Sudhir Mehrotra,
learned special counsel for the High Court,
learned Government Advocate Sri Akhilesh
Singh, Sri Vimlendu Tripathi, learned A.G.A
and Sri Patanjali Mishra, learned Amicus
Curiae appointed by this Court.

2. Learned A.G.A. has filed affidavits
on behalf of (a) Home Department, (b) I.G.