# No. 1245/IX of 2007 State v. Panna Lal

- **Citation:** (2008) 2 ILRA 659
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2008-07-18
- **Case number:** Civil Misc. Writ Petition No. 26668 of 2002
- **Bench:** Tarun Agarwala
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/no-1245-ix-of-2007-state-v-panna-lal-41086
- **Pages:** 4

## Headnote

Fundamental Rules 56-(e)-Retirement
benefits-petitioner initially appointed on
the post of seasonal collection peontemporary basis on 8.6.1964-worked
intermittently
up
to
1.4.1982,
but
thereafter regarding worked regularly up
to 31.12.2001-salary given in pay scale
with all benefits of increments etc.-if
working prior to 1982 ignored even then
continuous working of 19 years not
disputed-held-entitled for pension.

Held: Para 8

Similar view was also held in the case of
Dr. Hari Shankar Asopa vs State of U.P.
&. Ors., 1989 ACJ 337 in Writ Petition
No. 49080 of 2000 (Bhikhari Yadav Vs.
State of U.P. &. Ors.), decided on
06.08.2007, wherein the claim of the
employee for pension, who had retired
as a temporary seasonal collection peon,
was allowed, and it was held that the
said temporary employee was entitled
for
pension
and
other
retirement
benefits. The said judgment is squarely
applicable to the present facts and
circumstances of the case.
Case Law discussed:
(2006) 1 ESC 611, 1989 ACJ 337

## Text

2 All] Kedar Ram First V. State of U.P. and others
659
non-bailable and the Court thinks it
necessary so to do, send the accused in
custody to such Magistrate; and
(e) bind over any person to appear and
give evidence before such Magistrate.

(2) The power conferred on a Court by
sub-section (1) in respect of an offence
may, in any case where that Court has
neither made a complaint, under subsection (1) in respect of that offence nor
rejected an application for the making of
such complaint be exercised by the Court
to which such former Court is subordinate
within the meaning of sub- section (4) of
Section 195.

(3) A complaint made under this section
shall be signed,-
(a) where the Court making the complaint
is a High Court, by such officer of the
Court as the Court may appoint;
(b) in any other case, by the presiding
officer of the Court.

(4) In this section, "Court" has the same
meaning as in Section 195.

10. Thus, it is clear from the
aforesaid section that the complainant
could move an application in this regard
before the Court of Tehsildar and that
Court after making necessary enquiry
could pass an order for lodging a
complaint against the accused persons and
that complaint could be sent to the court
of Magistrate having jurisdiction to try the
offences. The above procedure, which
was the right and correct procedure in the
present case, was not followed but an
application under Section 156 (3) Cr. P.C.
was moved for police investigation, which
was barred in view of the provisions of
section 195 Cr.P.C.

11. Thus, the entire proceedings
taken on the basis of the orders passed on
the application under section 156 (3) Cr.
P.C. and on the charge sheet submitted in
compliance
of
the
orders
on
that
application are without jurisdiction, and
the learned Magistrate erred in law by
taking cognizance on that charge sheet.
Hence, the present application under
section 482 Cr. P .C. deserves to be
allowed and the proceedings of the case
deserve to be quashed in view of the bar
of section 195 Cr. P .C. The complainant
opposite party No. 2 shall, however, be at
liberty to move an application against the
accused applicants under Section 340 Cr.
P.C. before the concerned Court in
accordance with the provisions of law.

12. The application under Section
482 Cr. P.C. is, therefore, allowed and the
charge sheet submitted in Criminal Case
No. 1245/IX of 2007 State Vs. Panna Lal
and others, and the order of the Magistrate
dt. 24.9.07 taking cognizance thereon are
set aside. However, it will be open to the
complainant opposite party No.2 to move
an application before the concerned Court
for taking action against the accused
persons in accordance with the provisions
of section 340 Cr. P .C.
Application
Allowed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.07.2008

BEFORE
THE HON'BLE TARUN AGARWALA, J.

Civil Misc. Writ Petition No. 26668 of 2002

Kedar Ram First

...Petitioner
Versus
State of U.P. and others ...Respondents
660 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
Counsel for the Petitioner:
Sri. J.P.N. Singh
Sri. L.P. Singh

Counsel for the Respondents:
Sri. V.P. Shukla
S.C.

Fundamental Rules 56-(e)-Retirement
benefits-petitioner initially appointed on
the post of seasonal collection peontemporary basis on 8.6.1964-worked
intermittently
up
to
1.4.1982,
but
thereafter regarding worked regularly up
to 31.12.2001-salary given in pay scale
with all benefits of increments etc.-if
working prior to 1982 ignored even then
continuous working of 19 years not
disputed-held-entitled for pension.

Held: Para 8

Similar view was also held in the case of
Dr. Hari Shankar Asopa vs State of U.P.
&. Ors., 1989 ACJ 337 in Writ Petition
No. 49080 of 2000 (Bhikhari Yadav Vs.
State of U.P. &. Ors.), decided on
06.08.2007, wherein the claim of the
employee for pension, who had retired
as a temporary seasonal collection peon,
was allowed, and it was held that the
said temporary employee was entitled
for
pension
and
other
retirement
benefits. The said judgment is squarely
applicable to the present facts and
circumstances of the case.
Case Law discussed:
(2006) 1 ESC 611, 1989 ACJ 337

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

1. Heard Shri J.P.N. Singh, the
learned counsel for the petitioner and the
learned
Standing
Counsel
for
the
respondents.

2. The petitioner was appointed as a
seasonal collection peon on a temporary
basis on 8th of June, 1964 and worked in
that capacity till he reached the age of
superannuation
on
31.12.2001.
The
service record, which has been annexed as
Annexure '2' to the writ petition, indicates
that from 8th of April, 1964 to 4th of
March, 1982, the petitioner has worked
intermittently and there are gaps between
the first appointment and the subsequent
appointment, but, from 01.04.1982 till 31st
December, 2001, the service record shows
that he has worked continuously without
any break in service. The service record
also shows that the petitioner was
categorised in a particular pay-scale and
was not being paid a fixed or a lump-sum
amount.
Upon
his
retirement,
the
petitioner applied for pension, which
remained pending, and consequently, the
petitioner filed the present writ petition
praying that a writ of mandamus be issued
directing the respondents to grant pension
and other retirement benefits to the
petitioner.

3. The learned counsel for the
petitioner submitted that he has put in
government service of 37 years and
assuming that the period from 1964 to
1982 is excluded, even then, from 1982
till the date of his retirement, the
petitioner
has
worked
continuously
without any break in service, for more
than 19 years, and therefore is qualified to
be entitled for pension and that he has to
be treated as a regular employee in
government service.

4. The respondents in their counter
affidavit have taken a stand that the
petitioner remained a temporary seasonal
collection peon and that his services were
never regularised, and consequently, the
petitioner should not be treated as a
permanent employee appointed on a
substantive or permanent post, and
2 All] Kedar Ram First V. State of U.P. and others
661
therefore,
was
not
qualified
for
entitlement of any pension.

5. Rule 56 (e) of the Fundamental
Rules provides payment of pension and
other
retirement
benefits
to
every
government servant. For facility, the said
rule is quoted hereunder:

"56(e) A retiring person shall be payable
and other retirement benefits, if any, shall
be available in accordance with and
subject to the provisions of the relevant
rules to every Government servant who
retires or is required or allowed to retire
under this rule.

Provided that where a Government
servant who voluntarily retires or is
allowed voluntarily to retire under this
rule the appointing authority may allow
him, for the purposes of pension and
gratuity, if any, the benefit of additional
service of five years or of such period as
he would have served if he had continued
till
the
ordinary
date
of
his
superannuation, whichever be less."

6. As per Government Order dated
1st July 1989 (Annexure '7' to the writ
petition), the State Government has
clarified that a government employee,
who has put in 10 years of regular service,
would
qualify
to
receive
pension.
Qualifying service has been defined under
Regulation 361 of Section 1 of Chapter
XVI of the Civil Service Regulations,
which provides that the service of an
officer does not qualify for pension unless
it conforms to the following three
conditions:

"First- The service must be under
Government.
Second-
The
employment
must
be
substantive and permanent.
Third- The service must be paid by
Government."

7. Admittedly, the 1st and 3rd
conditions are met. The petitioner was in
the service of the Government and was
also paid the salary by the Government.
The question is whether the employment
of the petitioner was substantive and
permanent? This question has been
answered by a Division Bench of this
Court in Board of Revenue &. Ors. Vs.
Prasidh Narain Upadhyay, (2006) 1
ESC 611, wherein the Court held that in
view of the provisions of Rule 56 (c) of
the U.P. Fundamental Rules even a
temporary employee is entitled to receive
pension. The Court held that a person,
who had worked for 37 years, would be
entitled for pension, and the same cannot
be brushed aside on the ground that his
services remained temporary.

8. Similar view was also held in the
case of Dr. Hari Shankar Asopa vs
State of U.P. &. Ors., 1989 ACJ 337 in
Writ
Petition
No. 49080 of 2000
(Bhikhari Yadav Vs. State of U.P. &.
Ors.), decided on 06.08.2007, wherein the
claim of the employee for pension, who
had retired as a temporary seasonal
collection peon, was allowed, and it was
held that the said temporary employee
was entitled for pension and other
retirement benefits. The said judgment is
squarely applicable to the present facts
and circumstances of the case.

9. In view of the aforesaid, the
petitioner has made out a case for
issuance
of
a
writ
of
mandamus.
Consequently, the writ petition is allowed
and a mandamus is issued to the
respondents to grant pension and other
retirement benefits to the petitioner. The
662 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
said calculation shall be made and the
amount disbursed by the authorities
within three months from the date of
furnishing a certified copy of this order.
Petition Allowed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 16.05 2008

BEFORE
THE HON'BLE V.M. SAHAI, J.
THE HON'BLE R.N. MISRA, J.

Civil Misc. Writ Petition No. 29385 of 1999

Dr. Brijesh Kumar Misra and another

 ...Petitioners
Versus
State
Consumer
Disputes
Redressal
Commission, U.P. & another ...Respondents

Counsel for the Petitioners:
Sri. R.B. Singhal.

Counsel for the Respondents:
Sri. V.M. Sahai.
Sri. MS Dikshit.
S.C.

Constitution
of
India-Article-226
-
petitioner a Doctor facing civil as well as
criminal proceeding for negligence in
treatment-complainant
launched
proceeding
before
State
Consumer
Forum-held-proceeding
before
State
Consumer Forum is neither criminal nor
civil
proceeding-cannot
be
quashed
under writ jurisdiction.

Held: Para 6

As regards the jurisdiction is concerned,
there is no such law that the Consumer
Forum cannot be approached when a
civil or criminal proceedings is pending.
This fact is not disputed that the services
of the medical practitioners got after
payment come within the jurisdiction of
Consumer Forum. Section 2(d) of the
Consumer Protection Act, 1986 defines
the word 'Consumer', according to which
every persons who hires or avails the
services consideration come within the
ambit of consumer.
Case law discussed:
1995(3) Consumer Protection Reports 412,
1992 (1) Consumer Protection Reports 133,
2006 (2) Consumer Protection Journal 269,
Judgment Today 2005(6) SC 584.

(Delivered by Hon'ble R.N. Misra, J.)

1. This petition has been filed by the
petitioners for quashing the proceedings
of complaint no. 105 of 1998 pending
before
State
Consumer
Disputes
Redressal Commission, U.P. Lucknow
(hereinafter referred to as 'Consumer
Forum') for compensation filed by the
respondent no.2.

2. We have heard Shri R.B. Singhal,
learned counsel for the petitioners. None
appeared for the respondents.

3. From the contents of the writ
petition, it appears that Shuja Alia, the
grandson of respondent no.2 fell ill and
was treated by the petitioners free of cost
because the respondent no.2 was their
family friend and when his condition
deteriorated, he was advised to be shifted
to some better hospital in Meerut. He was
admitted in Lok Priya HospitaJ,Meerut
and in the intervening night of 1415/9/1996 he died there. The .respondent
no.2 lodged a criminal complaint no.
502/9/1997 against the petitioners in the
Court
of
Judicial
Magistrate,
Muzaffarnagar, who summoned them for
trial vide order dated 13.2.1997. The
petitioners moved High Court under
Section 482 Cr.P.C. for quashing the
proceedings of criminal case. Proceedings
No. 3641 of 1998 is pending before the