# Chamundi Mopeds Ltd v. Church of

- **Citation:** (2008) 3 ILRA 763
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2008-08-04
- **Case number:** Civil Misc. Writ Petition No. 34992 of 2008
- **Bench:** Tarun Agarwala
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/chamundi-mopeds-ltd-v-church-of-41173
- **Pages:** 3

## Text

3 All] Susheel Kumar V. State of U.P. and another
763
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.08.2008

BEFORE
THE HON'BLE TARUN AGARWALA, J.

Civil Misc. Writ Petition No. 34992 of 2008

Susheel Kumar

...Petitioner
Versus
State of U.P. and another ...Respondents

Counsel for the Petitioners:
Sri. Pradeep Chauhan

Counsel for the Respondents:
S.C.

Constitution of India-Article 226-Service
Law-entitlement of arrears of salarytermination
order
quashedreinstatement without specific direction
of salary-even no such relief claimed in
earlier Writ Petition-second Writ Petition
for arrears of salary-not maintainable.

Held: Para 6

Admittedly, in the present case, the
order of dismissal was set aside and the
Court directed reinstatement of the
petitioner.
There
was
no
specific
direction for the payment of the arrears
of the salary while reinstating the
petitioner. That judgement has now
become final. Consequently, applying the
aforesaid principles, as enunciated in the
aforesaid decisions since there was no
specific direction of payment of arrears
of salary, the petitioner could not get the
arrears of salary automatically upon his
reinstatement.
Case law discussed:
AIR 1992 SC 1439, 1992 AWC 1398, 1996
Cr.LJ 1601, (2005) 3 UPLBEC 2415, 2005 ACJ
(FB )359.

(Delivered by Hon'ble Tarun Agarwala, J.)

1. Heard learned counsel for the
petitioner.

2. The petitioner has prayed for a
writ of mandamus commanding the
respondents to pay the arrears of salary
from 1.7.2006 till date along with the
interest. It transpires that the petitioner
was appointed as a Constable and his
services were terminated by an order
dated 3.1.2007. The petitioner filed Writ
Petition No.9186 of 2007 in which he
prayed the following reliefs:-

"(a) issue a suitable writ, order or
direction in the nature of certiorari
quashing the impugned order dated 3. 1
2007,
passed
by
the
Senior
Superintendent
of
Police,
Agra,
respondent no.2 (annexure-3 to the
present writ petition).

(b) issue a suitable, writ, order or
direction in the nature of mandamus
commanding the respondents not to
disturb the petitioner's functioning as
Constable in the respondent department.

(c) issue such other and further writ,
order or direction in the nature of
mandamus which this Hon'ble Court may
deem
fit
and
proper
under
the
circumstances of the case; so that justice
be done.

(d) award cost of the petition throughout
to petitioner as against the respondents.

3. The said writ petition was allowed
by a judgment dated 6.5.2008 and the
order of termination was quashed. As a
result of the quashing of the order of
termination, the department reinstated the
764 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
petitioner on 28.5.2008. The petitioner
has now prayed that he should be given
the arrears from 1.7.2006, i.e., from the
date of his termination till the date of
reinstatement.

4. In my view no relief can be
granted to the petitioner. When the Court
quashed the order of reinstatement, no
orders were passed for payment of
arrears. It is necessary implies that the
relief of arrears of salary was denied to
the petitioner.

5. In the case of M/s Shree
Chamundi Mopeds Ltd. Vs. Church of
South
Indian
Trust
Association,
Madras, AIR 1992 SC 1439, the
Supreme Court held that if there is no
specific direction by a Court of law to
reinstate a person, consequently, the
respondents could not be held liable for
any wilful contempt for not reinstating
that person.

6. In Mrs. Harbans Kaur Vs.
Sardar (Ch) Narendra Singh & Anr,
1992 AWC 1398 and in Tannary and
Footwear Corporation Vs. T. Rudra,
Chairman-cum-Managing Director &
Ors. 1996 Cr.LJ 1601, the Court held that
there was no wilful contempt on the part
of the respondents in not paying the salary
to the applicant since there was no
specific direction for the payment of the
salary by the Court. In the Director of
Education, Uttaranchal & Ors. Vs. Ved
Prakash Joshi & Ors., (2005) 3
UPLBEC 2415, the order of termination
was set aside and there was no specific
direction for the payment of the arrears of
salary. The Court held that there was no
contempt against the opposite parties
since there was no specific direction for
the payment of the salary. The said
principle enunciated in the aforesaid
decisions is clearly applicable in the
present case. Admittedly, in the present
case, the order of dismissal was set aside
and the Court directed reinstatement of
the petitioner. There was no specific
direction for the payment of the arrears of
the salary while reinstating the petitioner.
That judgement has now become final.
Consequently, applying the aforesaid
principles, as enunciated in the aforesaid
decisions since there was no specific
direction of payment of arrears of salary,
the petitioner could not get the arrears of
salary
automatically
upon
his
reinstatement. The Supreme Court has
held in a large number of cases that
payment of arrears of salary upon
reinstatement is not automatic and each
and every case has to be considered in the
facts and circumstances of each case.

7. In Farhat Hussain Azad and
others vs. State of U.P. and others, 2005
ACJ (FB )359, a full Bench of this Court
has held that, even where a party does not
pray for a relief in the earlier writ petition
which he ought to have claimed, even
then, he cannot file a successive writ
petition claiming that relief. The said
principle squarely applicable in the
present case.

8. In view of the aforesaid the writ
petition fails and is dismissed.
---------
3 All] Krishna Pal Singh Yadav V. State of U.P.
765
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 04.08.2008

BEFORE
THE HON'BLE VINOD PRASAD, J.

Criminal Misc. Application No. 9241 of
2008

Krishna Pal Singh Yadav
...Applicant
Versus
State of U.P.

...Opposite Party

Counsel for the Applicant:
Sri. Rajkumar

Counsel for the Opposite Party:
Sri. P.C. Pathak
A.G.A.

Code of Criminal Procedure-Section 319 -
summoning order-challenged on ground
solitary statement of P.W. 5 cannot be
basis for summoning-held-statement of
P.W. 5 is sufficient to prove the chargecannot
be
interfered
on
technical
ground.

Held: Para 13

The above three judgments relied upon
by the counsel for the applicant does not
farther of the case of the applicant at all.
All those judgments reiterate the same
law that the power under Section 319
Cr.P.C. should be exercised sparingly and
that too in the cases where the chances
of conviction are not remote. From the
facts discussed above, I have held that
the evidence of PW5 is sufficient to
frame the charge against the applicant
and therefore, the power exercised by
the trial Judge cannot be said to be de
horse the law.
Case law discussed:
AIR 2006 Supreme Court (11)892, (2005) 12
Supreme Court Cases 327, (2005) 12 SCC 432

(Delivered by Hon'ble Vinod Prasad, J.)

1. Heard learned counsel for the
applicant and learned A.G.A.

2. Learned counsel for the applicant
criticized the impugned summoning order
of the applicant under Section 319 Cr.P.C.
dated 7.4.2008 passed by Special Judge
(SC/ST Act) Gautam Budh Nagar in S.T.
NO.624 of 2006, P.S. Sector-24, District
Gautam Budh Nagar primarily for three
reasons. Firstly, that the applicant is not
named in the first information report as an
accused. Secondly, that he had got no
motive to participate in the incident of
committing the murder and lastly that
PW-5, on whose statement in the Court,
the applicant has been summoned to stand
the trial, is an interested witness and he
colluded with the main accused persons
and to save his skin. He has made a U
turned in his statement and implicated the
present applicant. Learned counsel for the
applicant has further contended that
solitary statement of P.W. 5 by itself is
not sufficient to hold the applicant guilty
and hence exercise of power under
Section 319 Cr.P.C. by the trial Judge to
summon the applicant as an accused is not
in consonance with law as well as various
pronouncements by the Apex Court.
Some of those pronouncements which
have been relied upon by the learned
counsel for the applicant are Lokesh Ram
Vs. Nihal Singh & another AIR 2006
Supreme Court (11)892 (para 12),
Palanisamy Gounder and another Vs.
State representated by Inspector of
Police (2005) 12 Supreme Court Cases
327
(para
13)
and
Kavuluri
Vivekananda Reddy and another Vs.
State of A.P. and another (2005) 12
SCC 432 (para 2). Learned counsel for
the applicant has further submitted that in