# G. M./Managing Director and another v. P.O., Labour Court, Kanpur and another

- **Citation:** (2003) 3 ILRA 707
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2003-07-25
- **Case number:** Criminal Misc. Writ Petition No.249 of 2003
- **Bench:** R.K. Dash, Umeshwar Pandey
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/g-m-managing-director-and-another-v-p-o-labour-court-kanpur-and-another-40176
- **Pages:** 7

## Headnote

Sri G.S. Chaturvedi
Sri Samit Gopal
Sri Surendra Singh, A.G.A.
Sri Amarjeet Singh, A.G.A.
Sri S.K. Saxena

Code of Criminal Procedure, Section 24
(8)-appointment
of
Special
Public
Prosecutor-person appointed has due
qualification
and
experienceappointment can not be quashed-on the
ground
of
endorsement
made
by
Principal Secretary the appointment has
been
made
without-consideration
of
suitabilidy of law department-However
such practice not to be adopted in
future.

Held- Para 11 & 14

The respondent no.4 having a long
experience
of
working
as
Legal
Advisor/Public Prosecutor with Central
Buearo of Investigation and after laying
down his office actively practicing in the
Courts of law as an Advocate, has if been
appointed as Special Public Prosecutor
under sub Section (8) of Section 24 of
the Code, there is no scope to challenge
his such appointment on the ground of
non eligibility or arbitrariness.
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708 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
The record dealing with the appointment
of respondent no.4 as Special Public
Prosecutor in the aforesaid murder trial
of Nitish Khatara also shows that the
appointment of Sri Saxena was made in
pursuance of an endorsement/direction
of Principal Secretary to the Chief
Minister. This endorsement was made on
the
letter
of
Sri
Saxena
dated
23.10.2002. It appears that without
making any scrutiny as to the suitability
of the person for such appointment
through
the
Law
Department,
the
Government Orders dated 24.10.2002
were taken out. It is unusual and we
accordingly
suggest
that
the
Government should not adopt such
method of appointment by ignoring all
the norms.
Case law discussed:
AIR 1992 SC pg. 1213 and JT 2001 (i) SC 236
cited/referred.

## Text

3 All] G. M./Managing Director and another V. P.O., Labour Court, Kanpur and another
707
 powers
under
Article
226
of
the
Constitution of India.

5. Lastly, it has been submitted by
the learned counsel for the petitioner that
the workman concerned has not worked
from the date of termination till the date
of award. Therefore, on the basis of
principle of 'No work No Pay', the labour
court has definitely committed error in
granting reinstatement with full back
wages at the rate of Rs.600/- per month
from the date of termination till the date
of reinstatement. In my opinion, this
argument deserves to be accepted. It is not
disputed that the workman concerned had
admittedly not worked during all these
period and considering the interest of
justice, the award of the labour court is
modified to the extent that instead of
payment of back wages at the rate of
Rs.600/-
per
month,
the
workman
concerned is entitled for the back wages
at the rate of Rs.300/- per month from the
date of termination till the date of award.

6. In view of what has been stated
above, this writ petition deserves to be
dismissed and is hereby dismissed except
with the modification that instead of
payment of back wages at the rate of
Rs.600/-
per
month,
the
workman
concerned is entitled for the back wages
at the rate of Rs.300/- per month from the
date of termination till the date of award.
The interim order, if any, stands vacated.
There will be no order as to costs.
---------
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 25.07.2003

BEFORE
THE HON'BLE R.K. DASH, J.
THE HON'BLE UMESHWAR PANDEY, J.

Criminal Misc. Writ Petition No.249 of 2003

Vishal Yadav

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

Counsel for the Petitioner:
Sri K.K. Dwivedi
Sri Prem Prakash

Counsel for the Respondents:
Sri G.S. Chaturvedi
Sri Samit Gopal
Sri Surendra Singh, A.G.A.
Sri Amarjeet Singh, A.G.A.
Sri S.K. Saxena

Code of Criminal Procedure, Section 24
(8)-appointment
of
Special
Public
Prosecutor-person appointed has due
qualification
and
experienceappointment can not be quashed-on the
ground
of
endorsement
made
by
Principal Secretary the appointment has
been
made
without-consideration
of
suitabilidy of law department-However
such practice not to be adopted in
future.

Held- Para 11 & 14

The respondent no.4 having a long
experience
of
working
as
Legal
Advisor/Public Prosecutor with Central
Buearo of Investigation and after laying
down his office actively practicing in the
Courts of law as an Advocate, has if been
appointed as Special Public Prosecutor
under sub Section (8) of Section 24 of
the Code, there is no scope to challenge
his such appointment on the ground of
non eligibility or arbitrariness.
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708 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
The record dealing with the appointment
of respondent no.4 as Special Public
Prosecutor in the aforesaid murder trial
of Nitish Khatara also shows that the
appointment of Sri Saxena was made in
pursuance of an endorsement/direction
of Principal Secretary to the Chief
Minister. This endorsement was made on
the
letter
of
Sri
Saxena
dated
23.10.2002. It appears that without
making any scrutiny as to the suitability
of the person for such appointment
through
the
Law
Department,
the
Government Orders dated 24.10.2002
were taken out. It is unusual and we
accordingly
suggest
that
the
Government should not adopt such
method of appointment by ignoring all
the norms.
Case law discussed:
AIR 1992 SC pg. 1213 and JT 2001 (i) SC 236
cited/referred.

(Delivered by Hon'ble Umeshwar Pandey, J.)

1. The petitioner an accused of
murder case crime no.192 of 2002, Police
Station Kavi Nagar district Ghaziabad,
under Article 226 of the Constitution of
India, has challenged the appointment of
respondent
no.4
as
Special
Public
Prosecutor, under Section 24 (8) of the
Code of Criminal Procedure (for short the
'Code') to conduct the Trial of the
aforesaid case before the Additional
Sessions Judge, Patiyala House Courts,
New Delhi.

2. It is stated that by an order, the
Apex Court on the petition of the
complainant of the case directed transfer
of the Sessions Trial from the Court of
Sessions Judge, Ghaziabad to the Court of
Additional
Sessions
Judge,
Patiyala
House
Courts,
New
Delhi.
The
respondent no.1, while had assigned the
job of prosecuting the trial earlier to one
Public Prosecutor at Ghaziabad, it later on
appointed the respondent no.4 as Special
Public
Prosecutor
to
conduct
and
prosecute the case when it was transferred
from Ghaziabad to the Courts at New
Delhi. The petitioner has taken several
grounds for challenging the appointment
of respondent no.4 as Special Public
Prosecutor and stated that the respondent
no.4 wrote a letter to the Secretary, Chief
Minister for soliciting his appointment;
that the appointment of respondent no.4 is
not in accordance with the provisions of
sub Section (8) of Section 24 of the Code
as he lacked qualifications of the practice
at Bar as an Advocate for a period of ten
years and that his appointment was in
contravention to the rules and regulations
contained in Chapter VII of the U.P.
Legal Remembrancer Manual. Para-7.08
of Chapter VII of the aforesaid Manual
provides that no one would be eligible for
appointment
as
State
counsel
after
attaining the age of 62 years and the date
of birth of respondent no.4 being
23.11.1936 had already attained the
aforesaid maximum age of 62 years long
before his present appointment under
challenge. It is though provided under sub
Section (9) of Section 24 of the Code yet
no serving officer would be deemed to be
in practice as an Advocate. It would be
violative to the Advocates Act as well as
Article 14 of the Constitution of India.
Therefore, the enabling sub Section (9) as
aforesaid could not be attracted in the
case of present appointment of respondent
no.4. The respondent no.4 had been in full
time employment of the Central Bureau
for Investigation as Legal Advisor/Public
Prosecutor and he could not be deemed to
be a practicing Advocate within the
meaning of sub Section (8) of Section 24
of the Code. The petitioner has thus,
contended that the aforesaid appointment
of respondent no.4 as Special Public
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709
Prosecutor to conduct the case against the
petitioner on behalf of the State of U.P. is
wholly arbitrary and has been made on
extraneous consideration. It being illegal
and against the provisions of Section 24
(8) of the Code, should be quashed and a
mandamus commanding the respondents
should be issued by the Court that
respondent no.4 be not treated as Special
Public Prosecutor to appear and conduct
the aforesaid criminal case before the
Additional Sessions Judge, Sri S.N.
Dhingra at Patiyala House Courts, New
Delhi.

3. Learned counsel for the petitioner
while arguing the matter before us, has in
the first place challenged the appointment
of respondent no.4 as Special Public
Prosecutor in the said murder case on the
ground that he does not possess requisite
qualifications for such appointment under
sub Section (8) of Section 24 of the Code.
He is not an Advocate having experience
of ten years practice as his enrolment as
such with the Bar Council, Delhi was
done only in the year 1994 when he laid
his office of legal advisor with C.B.I. on
his retirement. Learned counsel has also
emphasized that the period during which
the respondent no.4 worked as Legal
Advisor/Public Prosecutor in the C.B.I.
could not be counted even with the help
of deeming clause of sub Section (9) to be
a period spent in practice as an Advocate.
The enabling clause of sub Section (9) of
Section 24 of the Code would not legally
be available in the matter of respondent
no.4.

4. On the other hand, learned
counsel
for
the
respondents
while
replying to the submissions made on
behalf of the petitioner in the aforesaid
context has tried to make the provision of
sub Section (9) of Section 24 of the Code
threadbare and has stressed that this
enabling clause does not go to alter the
meaning/definition of word 'Advocate' as
has been projected in the Advocates Act.
Learned counsel for the petitioner has
further emphasized that this sub Section
(9) of Section 24 of the Code is also not
violative to Article 14 of the Constitution
of India.

5. Sub Sections (8) and (9) of
Section 24 of the Code are the relevant
provisions for the purposes of appointing
a person as Special Public Prosecutor by
the Central Government or the State
Government as the case may be. The
provisions of the aforesaid two sub
Sections (8) & (9) of Section 24 of the
Code are reproduced below :-

"(8). The Central government or the
State government may appoint, for the
purposes of any case or class of cases, a
person who has been in practice as an
advocate for not less than ten years as a
Special Public Prosecutor.
(9) For the purposes of sub Section
(7) and sub Section (8), the period
during which a person has been in
practice as a pleader, or has rendered
(whether
before
or
after
the
commencement of this Code) service as a
Public Prosecutor or as an Additional
Public Prosecutor or other Prosecuting
Officer, by whatever name called, shall
be deemed to be the period during which
such person has been in practice as an
advocate."

6. The provisions of sub Section (9)
aforesaid were not available in the Code
prior to the Cr.P.C. (Amendment) Act,
1978 (Act No.45 of 1978), which became
applicable with effect from 18.12.1978. In
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710 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
the pre-amendment period sub Section (6)
of Section 24 of the Code dealt with such
appointment
of
a
Special
Public
Prosecutor. The said sub Section (6) of
the Code was as below :-

"(6) The Central Government or the
State Government may appointment, for
the purposes of any case or class of
cases, an Advocate who has been in
practice for not less than ten years, as a
Special Public Prosecutor."

7. From the above, we find that prior
to
1978
amendment
the
Central
Government or the State Government, for
the purposes of any case or class of cases,
could appoint a person as Special Public
Prosecutor only if he has been in practice
for not less than ten years as an Advocate.
Such appointment of a person having
rendered service as a Public Prosecutor or
as an Additional Public Prosecutor or as
an Assistant Public Prosecutor or other
prosecuting officers etc. was not possible.
By virtue of 1978 amendment this
enabling clause of sub Section (9) was
added and the experience of the persons
having
been
in
service
as
Public
Prosecutor etc. was deemed to be an
experience of practice as an Advocate.
This sub Section however, does not
appear to have come in conflict with the
provisions of the Advocates Act. It is only
with a view of taking benefit of the
experience of a person serving as Public
Prosecutor etc. for a long drawn period of
time, this amendment was introduced and
the appointment of such person as Special
Public Prosecutor has been facilitated. It
is not to the effect to altogether change
the definition of Advocate as appearing in
the Advocates Act. The Public Prosecutor
or Legal Advisor working on full time
basis with any department or corporation
of the Government does have special
experience in the prosecution branch and
if by virtue of adding sub Section (9)
aforesaid to the Code, the benefit of such
experience was sought to be taken by the
legislature for prosecuting a special case
or group of cases by such persons, the
said amendment or addition in the Code
could not be taken to have come in
conflict either with the provisions of the
Advocates Act or with Article 14 of the
Constitution of India. This deeming
clause of sub Section (9) of Section 24 of
the Code also does not confer a serving
Public Prosecutor/Legal Advisor etc. a
liberty to practice in Courts as an
Advocate. The meaning given to the
functions of a Public Prosecutor in sub
Section (9) as an Advocate, is confined
only for the purposes of appointment of
such person as Special Public Prosecutor
under sub Section (8) of Section 24 of the
Code.
It
has
absolutely
no
other
significance as to occasion a conflict
between this sub Section (9) and the
provisions of the Advocates Act or Article
14 of the Constitution of India.

8. Before 1978 amendment, the
emphasis under sub Section (6) of Section
24 of the Code was on the candidate being
an Advocate in practice and not in
practice as a Government servant. The
underlying
object
in
enacting
the
provisions of sub Section (6) was that
only an Advocate of ten years standing
and experience at the Bar should be
chosen for appointment as a Special
Public Prosecutor. It could not then be
attributed to the legislature that, when it
implied the language 'an Advocate who
has been in practice for not less than ten
years', it intended that even a full time
employee of the Government governed by
service rules would also be eligible or
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711
would satisfy the requirement of sub
Section (6) of Section 24 of the Code.
This intent/view of legislature however,
on further consideration by it was not
found tenable thus, only the amended
Section 24 of the Code has come into
existence. After such amendment, the
earlier view/intent of the legislature was
given a gobye. The period of service of a
person as a Public Prosecutor, Additional
Public
Prosecutor,
Assistant
Public
Prosecutor or other prosecuting officer by
whatever name called, has been deemed
to be the period during which such person
has been in practice as an Advocate. This
deeming provision added to the Code
being not in any manner in conflict with
the provisions of Advocates Act and
Article 14 of the Constitution of India,
cannot be said to be violative of those
provisions. Sub Section (9) of Section 24
of the Code thus, is not liable to be
declared ultra virus.

9. The petitioner's learned counsel
to support his submission, in the aforesaid
context has cited the case law of Kumar
Padma Prasad Vs. Union of India and
others reported in AIR 1992 SC, page
1213 and the case of Satish Kumar
Sharma Vs. The Bar Council of
Himachal Pradesh reported in JT 2001
(1) SC, page 236.

10. In Kumar Padma Prasad's case
(supra), the Hon'ble Apex Court has
elaborated upon the expression 'judicial
officer' as used in Article 217 (2) (a) of
the Constitution of India and has given its
meaning with the help of the expression
'judicial service' as defined under Article
236 (b) of the Constitution of India. But
in the present context while deriving
meaning of the word 'Advocate' used in
sub Section (8) of Section 24 of the Code,
we have not to go and borrow the
expression and its meaning as defined in
Section 2 (a) of the Advocates Act,
because the expression finds a deeming
provision under sub Section (9) of Section
24 of the Code for the purposes of
enabling a person having experience of
service as Public Prosecutor etc. for being
appointed as Special Public Prosecutor by
the Government under sub Section (8) of
Section 24 of the Code. Therefore, the
principle of law, which is available in the
aforesaid case of Kumar Padma Prasad
(supra) is of no application in the present
facts situation of the case. In Satish
Kumar Sharma's case also the Hon'ble
Apex Court while dealing with the
availability of the benefit of the exception
contained in para-2 of Rule 49 of the Bar
Council of India Rules, 1975 has held that
a person getting fixed salary under the
employment of a corporation governed by
service rules could not get the benefit of
the said exception and his enrolment as an
Advocate with the Bar Council is liable
for termination. In this case the very
enrolment with the Bar Council and
entitlement of a full time salaried
employee to practice as an Advocate
before the Court was under challenge.
Under these circumstances, the person
under full time employment with a
corporation
seeking
benefit
of
the
exception of Rule 49 aforesaid has been
refused that benefit by the Apex Court. It
was not in the nature of such a dispute as
we are having in the present case. The
facts situation of the present case thus, do
not attract application of principle of law
laid down in Satish Kumar Sharma's case
(supra).

11. The respondent no.4 having a
long experience of working as Legal
Advisor/Public Prosecutor with Central
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712 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
Buearo of Investigation and after laying
down his office actively practicing in the
Courts of law as an Advocate, has if been
appointed as Special Public Prosecutor
under sub Section (8) of Section 24 of the
Code, there is no scope to challenge his
such appointment on the ground of non
eligibility or arbitrariness.

12.

Besides
the
above,
the
respondent
no.4
through
his
Supplementary Affidavit, has filed several
copies of Notifications in Annexures-B &
C which go to show that he on many
occasions, by the Central Government and
the administration of Union Territory of
Delhi, was appointed as Special Public
Prosecutor under the aforesaid provisions
of sub Section (8) of Section 24 of the
Code as well as under sub Section (I) of
Section II of the Terrorist and Disruptive
Activities (Prevention) Act, 1987. These
Notifications are of post amendment dates
of 1978 when sub Section (9) of Section
24 of the Code had already come into
existence. Obviously, these appointments
of the respondent no.4 while he was in
service and thereafter have been made by
the respective Governments with the aid
of the enabling clause of sub Section (9)
of Section 24 of the Code. Therefore, the
present appointment of the respondent
no.4 as Special Public Prosecutor under
sub Section (8) of Section 24 of the Code,
if has been made with the aid of sub
Section (9) of Section 24 of the Code, the
same does not appear to be arbitrary or
illegal. He is having long experience of
conducting cases for the prosecution
before
the
Courts
in
Delhi.
His
appointment as Special Public Prosecutor
by respondent no.1 in any case does not
appear to be illegal or irrational.

13. From the side of the petitioner,
an argument in respect of arbitrary
fixation of remuneration payable to
respondent no.4 was advanced and it has
been contended that the remuneration
made permissible to Sri S.K. Saxena, is
extremely exorbitant and unreasonable.
The details of remuneration that have
been made admissible to Sri S.K. Saxena
find place in the draft notification of Greh
(Police) Anubhag-3. This notification is
part
of
the
record
of
Law/Home
Department
of
the
Government
of
respondent
no.1.
On
our
having
summoned the aforesaid record of the
appointment of Sri S.K. Saxena, the same
has been made available for perusal. The
aforesaid notification and the letter of Sri
S.K. Saxena dated 6.11.2002 show that
the remuneration payable to respondent
no.4 has been divided in several heads.
The one time fees is the sum of
Rs.25,000/- whereas per day fees, clerical
charges and junior attending Court is
Rs.14,300/-. The conferencing fees for
each conference is Rs.2,200/-. This fees is
besides the travel and daily allowance,
which has been claimed by Sri Saxena
towards his remuneration. It appears that
the Government of respondent no.1 has
consented to such demand of fees of Sri
Saxena and it has been duly notified. The
per day appearance of respondent no.4 to
conduct the trial of the murder case
entails an expenditure of about more than
Rs.16,000/- besides the one time fees of
Rs.25,000/-. This definitely appears to be
quite exorbitant and we hereby direct that
instead
of
taxing
the
Government
exchequer so unreasonably the respondent
no.1 would reduce per day appearance
charge including the clerical charges and
the fees of junior of respondent no.4 in
the aforesaid Sessions Trial case by
Rs.8,000/- from the total of the aforesaid
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3 All] Ashok Chaturvedi, Chairman and others V. State of U.P. and another
713
daily expenditure of Rs.16,000/-. In case,
the
respondent
no.4
expresses
his
reluctance on agreeing to such term and
condition of the reduced remuneration,
the respondent no.1 would be at liberty to
engage some other suitable counsel to
prosecute the trial

14. The record dealing with the
appointment of respondent no.4 as Special
Public Prosecutor in the aforesaid murder
trial of Nitish Khatara also shows that the
appointment of Sri Saxena was made in
pursuance of an endorsement/direction of
Principal Secretary to the Chief Minister.
This endorsement was made on the letter
of Sri Saxena dated 23.10.2002. It appears
that without making any scrutiny as to the
suitability
of
the
person
for
such
appointment
through
the
Law
Department, the Government Orders
dated 24.10.2002 were taken out. It is
unusual and we accordingly suggest that
the Government should not adopt such
method of appointment by ignoring all the
norms.

15. However, looking to the facts
and circumstances of the present case that
the
respondent
no.4
possess
due
qualification and experience for his such
appointment as Special Public Prosecutor
in a sensational murder case, we are not
inclined
to
quash
his
appointment/Notification
dated
26.11.2002 (Annexure-2 to the writ
petition) and the writ petition as such
having no merits, is hereby dismissed.
---------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 23.05.2003

BEFORE
THE HON'BLE R.K. DASH, J.

Criminal Misc. Application No. 4729 of 2000

Ashok Chaturvedi, Chairman and others

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

Counsel for the Applicants:
Sri S.S. Nigam
Sri Ramesh Sinha

Counsel for the Respondents:
Sri Dilip Gupta
Sri Rajiv Gupta
AGA.

Criminal procedure code-Section 482-bar
of second revision-whether application
u/s
482
Cr.P.C.
maintainable
when
revision against order of magistrate
dismissed-in circumstances of the caseheld-yes.

Held: Para 3

Order
of
the
Magistrate
taking
cognizance of the offence having been
dismissed in revision can move this court
under section 482 Cr. P .C. Judicial
opinion of various High Courts on this
aspect is not unanimous.

Code of Criminal Procedure Section 482,
Indian
Penal
Code
Section
304-Apetition for quashing of proceedingorder of Magistrate issuing process
should show application of judicial mind,
though he is not required to give
reasons.
1994 (4) SCC 655 referred to.

Held: Para 11

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