# Corporation, Faridabad v. Siri Niwas

- **Citation:** (2012) 2 ILRA 827
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2012-07-09
- **Bench:** Vinod Prasad, Surendra Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/corporation-faridabad-v-siri-niwas-42172
- **Pages:** 6

## Headnote

offence under section 302 I.P.C.-mainly
on ground-when occurrence took placeappellant
was
minor-as
suchmaintaining
conviction
sentence
be
quashed-following dictum of Apex Court
and from scrutiny of records-appellants
828 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
was
juvenile
hence
entitled
for
protection of his juvenility.

Held: Para 20

There is no report of an unimpeachable
character
contrary
to
the
report
submitted
by
the
inquiry
officer/Additional session's Judge, court
no.9, Aligarh refuting conclusions arrived
at
by
the
inquiry
officer
and
consequently, we are option-less than to
accept the said report as correct, which
has not even been disputed by the
informant.
Thus
from
the
report
submitted
by
the
inquiry
officer/
Additional Session's Judge, court no. 9,
conclusively,
it
is
established
that
appellant, on the date of the incident
was a juvenile and hence is entitled to
the protection of his juvenility.
Case law discussed:
AIR 1984 SC 104; AIR 1982 SC 685; Vaneet
Kumar Gupta @ Dharminder versus State of
Punjab(Cr.Appeal No. 475 of 2009); Dharambir
VS State(NCT of Delhi) & another: ( Cr.Appeal
No. 860 of 2010); and Bhoop Ram Vs State of
U.P.: AIR 1989 SC 1329

## Text

2 All] Satish V. State of U.P.
827
respondent had worked for more than 240
days in the year preceding his termination.
It was the case of the claimant that he had
so worked but this claim was denied by the
appellant. It was then for the claimant to
lead evidence to show that he had in fact
worked for 240 days in the year preceding
his termination. Filing of an affidavit is only
his own statement in his favour and that
cannot be regarded as sufficient evidence
for any Court or Tribunal to come to the
conclusion that a workman had, in fact,
worked for 240 days in a year. No proof of
receipt of salary or wages for 240 days or
order or record of appointment or
engagement for this period was produced
by the workman. On this ground alone, the
award is liable to be set aside."

9. Reiterating it in Municipal
Corporation, Faridabad Vs. Siri Niwas
2004(8) SCC 195, the Court said:

"The provisions of the Indian Evidence
Act per se are not applicable in an
industrial
adjudication.
The
general
principles of it are, however applicable. It is
also imperative for the Industrial Tribunal
to see that the principles of natural justice
are complied with. The burden of proof was
on the respondent herein to show that he
had worked for 240 days in preceding
twelve months prior to his alleged
retrenchment."

10. This decision has been followed in
R.M.Yellatti Vs. The Asst. Executive
Engineer 2006(1) SCC 106.

11. The above view has also been
reiterated in G.M., BSNL & Ors. Vs.
Mahesh Chand 2008(3) SCC 474, Ranip
Nagar
Palika
Vs.
Bahuji
Gabhaji
Thakore & Ors.2007(3)SCALE 436 and
Amar Chakraverti & Ors. Vs. Maruti
Suzuki 2010 (12) SCALE 536.

12. In the present case the Tribunal
has decided the matter in most cursory and
illegal manner. The impugned award cannot
sustain.

13. The writ petition is allowed. The
impugned award dated 29th August, 1997
(Annexure 1 to the writ petition), is hereby
set aside. The matter is remanded to the
Industrial Tribunal (V) U.P., Meerut to
reconsider the matter and pass a fresh order
in accordance with law after giving due
opportunity of hearing to all concerned
parties.
---------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 09.07.2012

BEFORE
THE HON'BLE VINOD PRASAD, J.
THE HON'BLE SURENDRA KUMAR, J.

Criminal Appeal U/S 374 Cr.P.C. No. -
2466 of 1982

Satish

 ...Petitioner
Versus
State of U.P.

 ...Respondents

Counsel for the Petitioner:
Sri P.N.Misra
Sri Ajatshatru Pandey

Counsel for the Respondents:
D.G.A.

Criminal Appeal-against conviction of
offence under section 302 I.P.C.-mainly
on ground-when occurrence took placeappellant
was
minor-as
suchmaintaining
conviction
sentence
be
quashed-following dictum of Apex Court
and from scrutiny of records-appellants
828 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
was
juvenile
hence
entitled
for
protection of his juvenility.

Held: Para 20

There is no report of an unimpeachable
character
contrary
to
the
report
submitted
by
the
inquiry
officer/Additional session's Judge, court
no.9, Aligarh refuting conclusions arrived
at
by
the
inquiry
officer
and
consequently, we are option-less than to
accept the said report as correct, which
has not even been disputed by the
informant.
Thus
from
the
report
submitted
by
the
inquiry
officer/
Additional Session's Judge, court no. 9,
conclusively,
it
is
established
that
appellant, on the date of the incident
was a juvenile and hence is entitled to
the protection of his juvenility.
Case law discussed:
AIR 1984 SC 104; AIR 1982 SC 685; Vaneet
Kumar Gupta @ Dharminder versus State of
Punjab(Cr.Appeal No. 475 of 2009); Dharambir
VS State(NCT of Delhi) & another: ( Cr.Appeal
No. 860 of 2010); and Bhoop Ram Vs State of
U.P.: AIR 1989 SC 1329

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

1. The sole appellant Satish, through
instant
appeal,
has
challenged
his
conviction under section 302 I.P.C. and
imposed sentence of life imprisonment
therefor, recorded in S.T. No.33 of 1982,
State versus Satish and another, relating to
P.S. Pisawa, district Aligarh, by learned
Session's Judge, Aligarh, vide judgment
and order dated 30.9.1982. Noted here is
the fact that another accused Kishan was
acquitted by the learned trial court by the
same decision.

2. Perusal of the record of the appeal
informs us that incident in question had
occurred on 14.5.1980 at about 5.30 P.M.
According to the informant Rajvir Singh's
allegations, which he had scribed in his
FIR, Ext. Ka1, he was an army personnel
and had come to his house on leave. On
14.5.80, in the evening at 5.30 p.m., his
brothers Shri Pal and Suresh were
returning to their house from a well, after
supplying water to their live stocks and no
sooner they reached in the vicinity of a
'Chaamad' ( small open piece of land
devoted to Goddess), accused appellant
Satish arrived there armed with the
licensed gun of his brother acquitted
accused Kishan Kumar and accosted Shri
Pal that he would teach him a lesson for
surveillancing him and immediately shot at
him, casing him gunshot injury. This
incident was witnessed by Shri Suresh,
Smt. Sukhbiri, Devi Ram, as well as other
co- villagers. Injured Shri Pal, while being
transported to the police station on a cot,
lost the battle of his life in midway.

3. FIR, Ext. Ka.1, about the incident,
came to be scribed by the informant Rajvir
Singh, who then carried it to the police
station Pisawa, where he lodged it the
same day at 8 p.m. The chik report, Ext.
Ka.2 and GD entry, Ext. Ka.3 were
prepared. S.O. R.C. Singh Bhukesh,PW4,
engineered the investigation, conducted
inquest on the corpse of the deceased and
prepared
inquest
report
and
other
connected papers, Ext's. Ka. 4 to Ka. 7 and
then sealing the dead-body dispatched it to
mortuary through constables Shiv Narayan
Prasad P.W.5 and Jhadon Singh for
autopsy. I.O. had collected blood stained
'chadar' which was wrapped around
deceased wound to stop oozing of blood by
preparing it's seizure memo Ext. Ka.8.
Thereafter, I.O., PW.4, interrogated the
witnesses and recorded their statements
and conducting spot inspection had
prepared site plan Ext. Ka.9.Investigating
Officer also endeavoured to apprehend the
culprits but they were at large. On
2 All] Satish V. State of U.P.
829
completion of investigation, PW.4 had
submitted charge sheet Ext. Ka.11 against
accused appellant Satish and Ext. Ka.12
against acquitted accused Kishan Kumar.

4. The post mortem on the corpse of
the deceased was performed by Dr. S.C.
Agarwal, PW 6, on 15.5.1980 at 3.45 P.M.
According to the doctor, following ante
mortem physical injury was sustained by
the deceased:-

"(I) Multiple gunshot wound of entry
over the right side chest lower part and
right abdomen, the maximum size 4 mm. x
4 mm. x variable dept. Minimum size was 3
mm. x mm. x variable dept. scattered in an
area of 10 c.m. x 5.5 c.m. The margins
were inverted. blood clots were present
over these wounds. These wounds were
situated very close to each other. Few
gunshot wounds coalesced each other and
formed a big wound, from which three
pieces of wedding material were removed
and three shots were also removed from
pectoral muscle area."

On internal examination, doctor,
PW6, had noted in the post mortem
examination report, Ext. Ka.14 that there
was " fracture of 7th and 8th ribs. The
right pleura were lacerated at many
places. The right pleural cavity contained
fluid blood and five shots. The right lung
was lacerated and two shots were
removed. Liver was lacerated and six shots
were removed. Similarly 11 shots were
removed from the intestines. The stomach
contained partially digested food material
about 4 0z. and the stomach was lacerated.
Eight shots were removed."

5. In the opinion of Dr. Agarwal,
PW.6, death had occurred due to shock and
hemorrhage on account of the gun shot
injury, which was sufficient in the ordinary
course of nature to cause death. He further
opined that the death could have taken
place at about 6 P.M. on 14.5.1980.

6. On the basis of above to referred
charge sheets, both the accused were
summoned and finding their offence triable
by Session's Court, their cases were
committed to Session's court, where it
were registered as one S.T. No. 33 of 1982,
State versus Satish and another.

7. Learned trial Judge charged the
accused with their respective offences,
which charges, after being read out and
explained to the accused were abjured by
them, who both claimed to be tried and
hence to prove their committed offence
session's Trial procedure was adopted.

8. To establish appellant's guilt,
prosecution
examined
six
witnesses
besides relying upon several above to
referred documentary evidences. Tendered
witnesses included informant Rajvir Singh
PW1, Suresh P.W.2, Surendra P.W.3,
I.O.(S.O.)
R.C.
Singh
Bhukesh
PW4,Constable Shiv Narayan Prasad
P.W.5 and Dr. S.C. Agawala P.W. 6.

9. Both the accused denied their
involvement in the incident and appellant
stated that he was not in the village but he
had gone to his sister's place on the date of
the occurrence.

10. Learned trial court after going
through prosecution evidences, both oral
and documentary, and after critically
analyzing facts and circumstances of the
case held that prosecution had failed to
establish it's charge against accused Kishan
Kumar and therefore, by the impugned
judgment, acquitted him. However, it
830 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
concluded that so far as the appellant
Satish is concerned, it has been established
by the prosecution, conclusively, beyond
any reasonable doubt, that he had
committed the murder and therefore, by
same impugned judgment, convicted him
under section 302 I.P.C. and sentenced him
to life imprisonment which conviction and
sentence is under-challenge in the instant
appeal.

11. The appeal was admitted in this
Court on 4.10.1982 and the appellant was
released on bail.

12. In the factual matrix narrated
above that We have heard Sri G.S.
Chaturvedi for the appellant and learned
AGA for respondent prosecutor State.

13. It was urged on behalf of
appellant that the appellant was juvenile on
the date of the incident and hence, while
his conviction be maintained but his
sentence be quashed.

14. Learned AGA, submitted that the
mater be sent to the juvenile Board, as in
his statement under section 313 Cr.P.C.,
appellant had disclosed his age as 20 years.

15. We have perused the record and
from such a perusal it is evident that this
appeal was heard previously on 3.5.2010,
and one of the appellant's contentions was
that the appellant was a juvenile on the
date of the incident and hence this court
had directed an inquiry to be conducted on
that aspect to determine juvenility of the
appellant and, for that end, had directed the
appellant to present himself before the
Session's Judge, Aligarh, along with the
relevant evidences and documents in
support of his such a plea. It was further
directed that, after conducting the inquiry,
Session's Judge shall submit his report to
this court as to "whether on the date of
incident the appellant was juvenile or not".
In the later portion of that order paper book
of the appeal was also directed to be sent to
the session's Judge and it was left open for
him to conduct the inquiry himself or get it
done by another Additional Session's
Judge. In pursuance of that order by this
court, an inquiry was conducted by
Additional session's Judge, court no.9,
under the directions of the Session's Judge,
Aligarh.
Inquiry
Officer/Additional
session's
Judge,
court
No.9,
after
completing that inquiry concluded, vide his
report dated 12.7.2010, that appellant, on
the date of the incident 14.5.80, was more
than 14 but less than 15 years of age and
hence was a juvenile offender on the date
of the incident. This report was forwarded
by the Session's Judge, to this court, but
this court further directed the said report to
be furnished to the informant Rajvir Singh
to invite his objections regarding such a
determination
of
appellant's
age
as
juvenile. In follow up action copy of report
of inquiry officer/ Additional Session's
Judge, court no.9, was furnished to the
informant, who, through his affidavit, filed
no objection in declaring appellant accused
to be a juvenile on the date of the incident
and hence a supplementary report dated
2.6.12 was sent to this court, wherein it
was again affirmed that on the date of the
incident appellant was juvenile being more
than 14 but less than 15 years of age. Both
these reports, submitted by the inquiry
Officer/Additional Session's Judge, Court
No.9, Aligarh are on the record of this
appeal in original and we direct that they
will form the part of the record.

16. Since under the Juvenile Justice
(Care and Protection of Children) Act,
2000, the benefit of age has to be accorded
2 All] Satish V. State of U.P.
831
to a juvenile offender below 18 years of
age, therefore, without entering into the
discussion on merits of the appeal and
without elaborating the evidences, we are
of the view, that though the conviction of
the appellant cannot be set aside, but his
sentence has to be quashed, which view we
adopt , because of various apex court
decisions, some of which are referred to
herein below:-

17. In Pradeep Kumar vs. State of
U.P.:AIR 1984 SC 104 it has been
observed by the apex court as under:-

"3. It is thus proved to the satisfaction
of this Court that on the date of
occurrence,
the
appellants
had
not
completed 16 years of age and as such they
should have been dealt with under the U.P.
Children Act instead of being sentenced to
imprisonment on conviction under Section
302/34 of the Act.

4. Since the appellants are now aged
more than 30 years, there is no question of
sending them to an approved school under
the U. P. Children Act for detention.
Accordingly,
while
sustaining
the
conviction of the appellants under all the
charges framed against them, we quash the
sentences awarded to them and direct their
release forthwith. The appeals are partly
allowed in the above terms."

18. In Jayendra and another vs.
State of U.P.:AIR 1982 SC 685 it has
been held by the apex court as under:-

"3. Section 2 (4) of the Uttar Pradesh
Children Act, 1951 (U. P. Act No. 1 of
1952) defines a child to mean a person
under the age of 16 years. Taking into
account the various circumstances on the
record of the case we are of the opinion
that the appellant Jayendra was a child
within the meaning of this provision on the
date of the offence. S. 27 of the aforesaid
Act says that notwithstanding anything to
the contrary in any law, no court shall
sentence a child to imprisonment for life or
to any term of imprisonment. S. 2 provides,
in so far as it is material, that if a child is
found to have committed an offence
punishable with imprisonment, the court
may order him to be sent to an approved
school for such period of stay as will not
exceed the attainment by the child of the
age of 18 years. In the normal course, we
would have directed that the appellant
Jayendra should be sent to an approved
school but in view of the fact that he is now
nearly 23 years of age, we cannot do so.

4. For these reasons, though the
conviction of the appellant Jayendra has to
be upheld, we quash the sentence imposed
upon him and direct that he shall be
released forthwith."

19. The same view was taken in
Vaneet Kumar Gupta @ Dharminder
versus State of Punjab(Cr.Appeal No.
475 of 2009); Dharambir VS State(NCT
of Delhi) & another: ( Cr.Appeal No.
860 of 2010); and Bhoop Ram Vs State
of U.P. :AIR 1989 SC 1329.

20. There is no report of an
unimpeachable character contrary to the
report
submitted
by
the
inquiry
officer/Additional session's Judge, court
no.9, Aligarh refuting conclusions arrived
at by the inquiry officer and consequently,
we are option-less than to accept the said
report as correct, which has not even been
disputed by the informant. Thus from the
report submitted by the inquiry officer/
Additional Session's Judge, court no. 9,
conclusively,
it
is
established
that
832 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
appellant, on the date of the incident was a
juvenile and hence is entitled to the
protection of his juvenility.

21. Residue of our discussion is that
the appeal is allowed in part. While
conviction of the appellant u/s 302 I.P.C.
recorded in the impugned judgment dated
30.9.1982, passed in S.T. No.33 of 1982,
State versus Satish and another, relating to
P.S. Pisawa, district Aligarh, by Session's
Judge, Aligarh, is hereby maintained, but
the sentence of life imprisonment awarded
to the appellant therefor is quashed.

22. Appellant is on bail, he need not
surrender, his bail bonds and surety bonds
are hereby discharged.

23. Copy of the judgment be certified
to the trial court for it's intimation.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 15.05.2012

BEFORE
THE HON'BLE SUNIL HALI, J.

Civil Misc. Writ Petition No. 2942 of 2007

Radhey Shyam

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

Counsel for the Petitioner:
Sri S.K. Pal
Sri Ashok Mehata

Counsel for the Respondents:
C.S.C.
Sri Dashrath Prasad
Sri Vijendra Singh

Constitution of India, Article 311 (2)-
readwith CCA Rules 1999-Rule 7 (iv)-
Dismissal-without giving the copy of
supported
documents-without
issuing
show
cause
notice
before
inflicting
punishment-utter disregard of Principle
of Natural Justice-held-illegal-dismissal
order quashed.

Held: Para 19 and 29

In the present case, this procedural safeguard
has
been
violated
by
the
respondents.
The
disclosure
of
the
proposed documents and the evidence to
be adduced in support of the charges,
are required to be disclosed to the
petitioner. Mere endorsement in the
charge sheet that it is accompanied by
47
leaves,
without
disclosing
the
particulars of such enclosures, would not
be sufficient compliance of the rules.

In view of this, I find that no opportunity
has been given to the petitioner to showcause against the proposed punishment.
It clearly not only violates Rule 7(iv) of
the Rules but also the mandates of
Constitution
of
India
under
Article
311(2)
which
contemplates
that
reasonable opportunity is required to be
given to the employee to defend himself.
The word reasonable opportunity has
been interpreted to me natural justice.
Article
311(2)
gives
constitutional
mandate to the principles of natural
justice and once it is proved from the
record that reasonable opportunity to
defend himself has not been provided,
the rules of natural justice would be
violated.
Case law discussed:
AIR 2010 SC 3131; (1986) 3 SCC 229

(Delivered by Hon'ble Sunil Hali, J.)

1. While serving as Chief Revenue
Accountant
at
District
Etawah,
a
departmental enquiry was initiated against
the petitioner. Ten charges were levelled
against him vide order dated 16.6.2006. He
was called up on to submit his reply to the
said charge sheet within 15 days from the
date of receipt of the communication. It
was mentioned in the charge sheet that in