# Mahendra Kumar Gaud v. State of U.P. & Anr

- **Citation:** (2015) 2 ILRA 919
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2015-07-21
- **Case number:** Special Appeal No. 1905 of 2010
- **Bench:** Rajes Kumar, Shamsher Bahadur Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mahendra-kumar-gaud-v-state-of-u-p-anr-43240
- **Pages:** 5

## Headnote

ranks (Punishment & Appeal) Rule 1991Rule
8(2)-Dismissal
from
serviceconsidering
conduct
of
employee-on
conviction-after stay and suspension of
conviction
in criminal appeal-can be
basis for review by decision making
authority-but reinstatement can be only
after
acquittal
in
Appeal-held-Single
Judge rightly dismissed the petition.
Held: Para-9(16)
In the circumstances, it cannot be held
that the respondents could not have
taken recourse to regulation 39(4) of
regulation
of
1956
considering
the
conduct led to conviction of a criminal
charge. The submission of the learned
counsel for the petitioner, therefore, is
rejected.

## Text

2 All] Mahendra Kumar Gaud Vs. State of U.P. & Anr.
919
was prepared by the Tehsildar for
correction stating that the entries as had
existed were incorrect, but no order based
upon such note was actually passed by the
revenue
authorities,
rather
the
Sub
Divisional Magistrate rejected the note
prepared by the Tehsildar by observing
that such long entry are not required to be
corrected.
In
such
factual
scenario
whatever doubts were generated on the
strength of the interpretation of the order
of the Deputy Director of Consolidation
stands clarified by the orders passed by
the trial court as well as the lower
appellate
court,
while
returning
a
categorical finding that the defendant was
not recorded in the basic year entry.
12. In view of the aforesaid
discussions and findings that there was no
adjudication of the defendant-appellant by
the consolidation court in respect of the
land in dispute, substantial question
formulated and noticed above would have
no applicability in the facts of the present
case and the suit filed by the plaintiffrespondent would not be barred under
Section 49 of the U.P. Consolidation of
Holdings Act. This Court in exercise of
jurisdiction under section 100 of the Civil
Procedure Code is not required to reappraise the evidence, which has come on
record and has already been noticed
above. The finding that defendant was not
recorded over 16 decimal of land in
question and that plaintiff was recorded in
the basic year entry, is based upon
material, which cannot be said to be
perverse or erroneous. No substantial
question of law therefore arises for
consideration in the present appeal, which
consequently fails and dismissed.
13. No order as to costs.
--------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.07.2015
BEFORE
THE HON'BLE RAJES KUMAR, J.
THE HON'BLE SHAMSHER BAHADUR
SINGH, J.
Special Appeal No. 1905 of 2010
Mahendra Kumar Gaud
 ...Appellant
Versus
State of U.P. & Anr.
...Respondents
Counsel for the Appellant:
Sri O.P. Singh, Sri S.K. Rao, Sri Awadh
Narayan Rai
Counsel for the Respondents:
C.S.C.
U.P.Police Officers of the subordinate
ranks (Punishment & Appeal) Rule 1991Rule
8(2)-Dismissal
from
serviceconsidering
conduct
of
employee-on
conviction-after stay and suspension of
conviction
in criminal appeal-can be
basis for review by decision making
authority-but reinstatement can be only
after
acquittal
in
Appeal-held-Single
Judge rightly dismissed the petition.
Held: Para-9(16)
In the circumstances, it cannot be held
that the respondents could not have
taken recourse to regulation 39(4) of
regulation
of
1956
considering
the
conduct led to conviction of a criminal
charge. The submission of the learned
counsel for the petitioner, therefore, is
rejected.
(Delivered by Hon'ble Rajes Kumar, J.)
1. Heard Sri O.P. Singh, Senior
Advocate, assisted by Sri S.K. Rao,
learned counsel for the appellant and
learned
Standing
Counsel
for
the
respondents.
920
 INDIAN LAW REPORTS ALLAHABAD SERIES
2. This is an appeal against the order
of the learned Single Judge dated
20.7.2010 passed in Writ Petition No.
70001 of 2009 whereby the writ petition
filed by the appellant has been dismissed.
3.
The appellant was a Constable in
Police Department. Admittedly, he had been
convicted by the trial court for the murder
committed by him and punishment of life
imprisonment has been awarded. By order
dated 7.9.2002, the appellant had been
dismissed from service under Rule 8 (2)(a) of
the U.P. Police Officers of the Sub-ordinate
Ranks (Punishment & Appeal) Rules, 1991
(hereinafter referred to 'Rules, 1991').
4.
Being aggrieved, the appellant filed
writ petition, which has been dismissed. The
learned Single Judge held that the issue
involved is squarely covered by the judgment
of this Court in the case of Brahma Dev Vs.
Life Insurance Corporation of India, 2006 (3)
ALJ, 710, which is based on the decision of the
Apex Court in the case of Deputy Director of
Collegiate Education (Administration), Madras
Vs. S. Nagoor Meera, reported in AIR 1995
SC, 1364.
5.
Learned counsel for the appellant
submitted that against the order of the trial
court convicting the appellant, an appeal has
been filed wherein the sentence has been
stayed and, therefore, the dismissal order is
liable to be set aside and the appellant is
entitled to be reinstated in service.
6. We do not find substance in the
argument of learned counsel for the
appellant.
7. Rule 8(2) of the Rules, 1991 reads
as follows:
"Rule 8 Dismissal and removal:-
1-No
Police
Officer
shall
be
dismissed or removed from service by an
authority subordinate to the appointing
authority.
2-No
Police
Officer
shall
be
dismissed, removed or reduced in rank
except after inquiry and disciplinary
proceeding as contemplated by these
rules.
Provided that this rule shall not
apply-
(a) Where a person is dismissed or
removed or reduced in rank on the ground
of conduct which has led to his conviction
on a criminal charge : or"
8. A bare perusal of proviso of Rule
8 makes it clear that the Police personnel
can be dismissed or removed on the
ground of conduct which has led to his
conviction on criminal charges even
without any disciplinary proceeding being
contemplated. Therefore, exercise of
power dismissing the appellant on the
ground of conduct which has led to his
conviction on criminal charges cannot be
said to be illegal.
9. In the case of Brahma Dev Vs.
Life Insurance Corporation of India
(supra) not only the sentence but even the
order of conviction was stayed in appeal
and effect thereof was considered. It
would be useful to reproduce paragraphs
11 to 16 of the said judgment as under:-
"11. Now coming to question no.1, in
my view the power under regulation 39(4)
can be exercised even if the order of
conviction and sentence passed by the
criminal court is stayed in appeal. A
perusal of regulation 39 (4) shows that the
factum of conviction on a criminal charge
is sufficient to empower the Disciplinary
Authority to consider the circumstances
2 All] Mahendra Kumar Gaud Vs. State of U.P. & Anr.
921
of the case and pass such orders as it may
deem fit. Whether the order of conviction
is operating or not or whether it is
executable or not is of not much relevance
for exercise of power under Regulation
39(4) of the Regulations of 1956.
12. A similar question came up for
consideration before the Apex Court in
the case of Deputy Director of Collegiate
Eduction ( Administration), Madras Vs,
S.Nagoor Meera, AIR 1995 Supreme
Court, 1364. The Apex Court considered
the pari materia provisions contained in
Article 311(2), second proviso, clause (a)
of the Constitution of India and said that
what is relevant for exercise of power
thereunder is the conduct which has led to
conviction in criminal charge and not the
conviction itself. There is no question of
suspending the conduct of an employee
when he has been convicted and in any
appeal, the same is stayed. Since the
Disciplinary Authority has to exercise
power considering the conduct of the
employee, which has led to his conviction
on a criminal charge and since conduct is
not
stayed,
therefore,
even
if
the
conviction has been stayed in appeal, the
power
can
be
exercised
by
the
Disciplinary Authority on the basis of the
conduct which has led to conviction on
criminal charge.
13. The relevant observations of the
Apex Court as contained in para 8 are
reproduced as under:
" We need not, however, concern
ourselves any more with the power of the
appellate court under the Code of
Criminal Procedure for the reason that
what is relevant for clause (a) of the
second proviso to Article 311(2) is the
"conduct which has laid to his conviction
on a criminal charge" and there can be no
question of suspending the conduct. We
are, therefore, of the opinion that taking
proceedings for and passing orders of
dismissal, removal or reduction in rank of
a government servant who has been
convicted by a criminal court is not barred
merely because the sentence or order is
suspended by the appellate court or on the
ground that the said government servantaccused has been released on bail pending
the appeal."
14. It has also been held by the Apex
Court in the same judgment that in cases
where an employee is convicted on a
criminal charge, the, appropriate course
would be in all such cases to take action
and not to wait for the result of the appeal
or revision as the case may be. It is
always open to the authorities to revise its
order and reinstate the Government
Servant with all the benefits if in appeal
or other proceedings the Government
Servant accused is acquitted.
15. Similar view has been taken by a
Division Bench of this Court in the case
of Mohal Lal Vs. State of U.P., 1998 (78)
FLR 987: (1998 All LJ 987) and relying
on Nagoor Meera Case: ( AIR 1995 SC
1364) ( supra) this Court in para 7 held as
under:-
" Taking proceedings for and passing
orders of dismissal, removal or reduction
in rank of a Government servant who has
been convicted by a criminal court is not
barred merely because the sentence and
order is suspended by the Appellate Court
or on the ground that the said Government
servant-accused has been released on bail
pending the appeal. In view of this
authoritative pronouncement, the order
dismissing the appellant from service
cannot be set aside on the ground that the
operation of the judgment by which the
appellant had been convicted under
Section 304, Part -I IPC has been stayed
in the Criminal Appeal preferred by him."
922
 INDIAN LAW REPORTS ALLAHABAD SERIES
16. In the circumstances, it cannot be
held that the respondents could not have
taken recourse to regulation 39(4) of
regulation
of
1956
considering
the
conduct led to conviction of a criminal
charge. The submission of the learned
counsel for the petitioner, therefore, is
rejected."
10. The Apex Court in the case of
Deputy Inspector General of Police and
another Vs. S. Samuthiram, (2013) 1 SCC
598 has held as follows :
"This Court in Southern Railway
Oficers Assn. v. Union of India, reported
in (2009) 9 SCC 24 held that acquittal in a
criminal case by itself cannot be a ground
for
interfering
with
an
order
of
punishment imposed by the disciplinary
authority. The Court reiterated that the
order of dismissal can be passed even if
the delinquent officer had been acquitted
of the criminal charge.
In State Bank of Hyderabad v. P.
Kata Rao, reported in (2008) 15 SCC 657
(SCC p. 662, para 18) this Court held that
there cannot be any doubt whatsoever that
the jurisdiction of the superior courts in
interfering with the finding of fact arrived
at by the enquiry officer is limited and
that the High Court would also ordinarily
not interfere with the quantum of
punishment and there cannot be any doubt
or
dispute
that
only
because
the
delinquent employee who was also facing
a criminal charge stands acquitted, the
same, by itself, would not debar the
disciplinary authority in initiating a fresh
departmental proceeding and/or where the
departmental proceedings had already
been initiated, to continue therewith. In
that judgment, this Court further held as
follows: (SCC p. 662, para 20)
"20. The legal principle enunciated
to the effect that on the same set of facts
the delinquent shall not be proceeded in a
departmental
proceedings
and
in
a
criminal
case
simultaneously,
has,
however, been deviated from. The dicta of
this Court in Capt. M. Paul Anthony v.
Bharat Gold Mines Ltd. however remains
unshaken
although
the
applicability
thereof had been found to be dependent
on the fact situation obtaining in each
case."
11.
In Karnataka SRTC v. M.G.
Vittal Rao, reported in (2012) 1 SCC 442,
the Apex Court after a detailed survey of
various judgments rendered by this Court
on the issue with regard to the effect of
criminal proceedings on the departmental
enquiry,
held
that
the
disciplinary
authority imposing the punishment of
dismissal from service cannot be held to
be disproportionate or non-commensurate
to the delinquency."
12. The Apex Court further held as
follows:
"As we have already indicated, in the
absence of any provision in the service
rules for reinstatement, if an employee is
honourably acquitted by a criminal court,
no right is conferred on the employee to
claim any benefit including reinstatement.
Reason is that the standard of proof
required for holding a person guilty by a
criminal court and the enquiry conducted
by way of disciplinary proceeding is
entirely different. In a criminal case, the
onus of establishing the guilt of the
accused is on the prosecution and if it
fails to establish the guilt beyond
reasonable doubt, the accused is assumed
to be innocent. It is settled law that that
the strict burden of proof required to
2 All] Jawahar Lal @ Jawahar Lal Jalaj Vs. The State of U.P.
923
establish guilt in a criminal court is not
required in a disciplinary proceedings and
preponderance
of
probabilities
is
sufficient. There may be cases where a
person is acquitted for technical reasons
or the prosecution giving up other
witnesses since few of the other witnesses
turned hostile, etc. In the case on hand the
prosecution did not take steps to examine
many of the crucial witnesses on the
ground that the complainant and his wife
turned hostile. The court, therefore,
acquitted the accused giving the benefit of
doubt. We are not prepared to say that in
the instant case, the respondent was
honourably acquitted by the criminal
court and even if it is so, he is not entitled
to claim reinstatement since the Tamil
Nadu Service Rules do not provide so."
13. In the case of Baldev Singh Vs.
Union of India and others, reported in
2006 SCC (L&S) , the Apex Court has
held as follows :
"As the factual position noted clearly
indicates, the appellant was not in actual
for the period he was in custody. Merely
because there has been an acquittal does
not automatically entitle him to get salary
for the period concerned. This is more so,
on the logic of no work no pay. It is to be
noted that the appellant was terminated
from service because of the conviction.
Effect of the same does not get diluted
because of subsequent acquittal for the
purpose
of
counting
service.
The
aforesaid position was clearly stated in
Ranchhodji Chaturji Thakore v. Supdt.
Engineer,
Gujarat
Electricity
Board,
reported in (1996) 11 SCC 603."
14. In view of the above, we do not
find any error in the impugned order,
which requires interference by this Court.
15. The Special Appeal fails and is
dismissed.
--------
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 05.08.2015
BEFORE
THE HON'BLE ADITYA NATH MITTAL, J.
U/S 482/378/407 No. 1994 of 2011
Jawahar Lal @ Jawahar Lal Jalaj Applicant
Versus
The State of U.P.
...Opp. Party
Counsel for the Applicant:
Nandit Srivastava, Kuldeep Srivastava
Counsel for the Opp. Party:
Bireshwar Nath
Cr.P.C. Section-482-Inherent power of
Court-application dismissed in defaultcan not be termed as judgment-illness of
Counsel not disputed by C.B.I.-held-bar
of Section 362 Cr.P.C.-not availabledismissal order can not be recalled.
Held: Para-29 & 30
29. The views expressed by the various
High Courts in the aforesaid decisions
are in favour of the restoration of such
petition, which has been dismissed in
default in exercise of powers under
section 482 of the code of criminal
procedure with a view to secure the ends
of justice and I am also in respectful
agreement with the views expressed by
the various High Courts in the aforesaid
decisions.
30. Therefore, I am of the view that if
any petition has been dismissed in
default and the application for recall is
made, then it will not come within the
meaning of words 'alter' or 'review' as
expressed in Section 362 of the Code.
Accordingly, such orders may be recalled
or set aside provided the intention of the
parties is bonafide i.e. party who has