# Smt. Madhu Yadav v. State of U.P. & Ors. 548 INDIAN LAW REPORTS ALLAHABAD SERIES

- **Citation:** (2024) 4 ILRA 547
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-04-05
- **Case number:** Writ A No. 66273 of 2014
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-madhu-yadav-v-state-of-u-p-ors-548-indian-law-reports-allahabad-series-51831
- **Pages:** 10

## Headnote

A. Service Law - Constitution of India -
Article 226 - Writ - Equitable relief -
Entitlement to seek it - Dismissal -
Widow
challenged
dismissal
order
passed
against
her
husband
in
a
disciplinary proceeding initiated under
Rule 14(1) of the U.P. Police Officers of
Subordinate Ranks (Punishment and
Appeal) Rules, 1991 - Criminal and
disciplinary proceeding was initiated
against the deceased on the complaint
of the petitioner herself - Deceased also
confessed the charge and he was found
guilty
of
indulging
in
an
illicit
relationship and in conduct unbecoming
of a member of disciplinary force being
adversely affected in the eyes of the
public - Appeal and Revision was also
dismissed - Revision order confirming
dismissal was never challenged by the
employee for about three years U.P.to
his death - After employee's death, the
validity
of
dismissal
order
was
challenged by the widow/complainant -
Entitlement of widow to seek writ -
Held, in order to be entitled to the issue
of a writ under Article 226 of the
Constitution, the petitioner must not
only establish his/her right in law, but
also a case in equity - High Court found
the
petitioner
disentitled
to
seek
equitable relief. (Para 16, 17, 20, 23 and
25)

Writ petition dismissed. (E-1)

List of Cases cited:

## Text

4 All. Smt. Madhu Yadav Vs. State of U.P. & Ors.
547
case in hand as well. Shashi Kiran batch
employees had consciously opted for
C.P.F. Scheme even before the last cut-off
date as petitioners herein.

14.
In
the
present
case,
the
respondents-Union
of
India/Central
Government, in my considered view, were
certainly not justified in refusing to
consider the claim in the year 1999 by
writing back to the Sansthan that no such
scheme to switch over was available any
more. The third respondent is very well
funded by the Central Government and the
contributions have been made by the
Central Government under the C.P.F.
scheme. The petitioners though have
received the same but would certainly be
refunding back at the same rate of interest
as has been directed by the Supreme Court
in its judgment (supra). It is claimed that no
other employee of the Hindi Sansthan falls
in this category and if their claims are
accepted that will not open any flood gates
of litigations.

15. In the circumstances, therefore, I
find good reasons to allow this petition and
give benefits of old pension scheme to the
petitioners. In so far as petitioner no.1 is
concerned, he though had retired already
but had of course moved an application to
permit him to switch over from C.P.F.
scheme to G.P.F. cum Pension scheme in
the year 1999 and then in 2013 itself and
recommendations were made sometime
much before his retirement. Although his
case could have fallen in the category of
those cases where one can say that not
much protest was made in accepting the
funds etc. under the C.P.F. scheme at the
time of retirement, but in view of the fact
that in Shashi Kiran batch of cases
Supreme Court had allowed petition even
for retired employees subject to refund of
fund obtained by them with 8 per cent
interest to cover up the financial loss that
otherwise government may suffer in giving
pension under the old pension scheme, I do
find justification to allow this benefit to
petitioner no.1 as well.

16. In view of the above, writ petition
succeeds and is allowed. The respondents
are directed to convert petitioners' C.P.F.
scheme to G.P.F. cum Pension scheme. The
fund that has been received under the
C.P.F. scheme shall be refunded by the
petitioner except their own share of
contribution at the rate of 8 per cent simple
interest as has been directed by the
Supreme Court in its judgment (supra).
They will be furnishing an affidavit of this
undertaking and thereafter the respondents
shall fix the time limit or any other
modality to receive refund from the
petitioners.

17. It is made clear that this will be
one time opportunity and if the petitioners
fail to pay back the contribution with 8
percent interest per annum as per modality
prescribed for, no further opportunity will
be afforded for the same and petitioners
will have to remain satisfied with whatever
they have gained under the C.P.F. Scheme.
----------
(2024) 4 ILRA 547
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 05.04.2024

BEFORE

THE HON'BLE J.J. MUNIR, J.

Writ A No. 66273 of 2014

Smt. Madhu Yadav ...Petitioner
Versus
State of U.P. & Ors. ...Respondents
548 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Petitioner:
Sri Pradeep Kumar Dwivedi, Sri Sanjay
Kumar, Sri Devesh Mishra, Sri Jata Shankar
pandey, Sri Man Bahadur Singh, Sri
Rajendra Kumar Dubey, Sri Rajendra Pal
Singh, Sri Santosh Kumar Pandey, Sri Vijay
Gautam, Sri Vinod Kumar Mishra

Counsel for the Respondents:
Sri Girijesh Kumar Tripathi, Addl. C.S.C.

A. Service Law - Constitution of India -
Article 226 - Writ - Equitable relief -
Entitlement to seek it - Dismissal -
Widow
challenged
dismissal
order
passed
against
her
husband
in
a
disciplinary proceeding initiated under
Rule 14(1) of the U.P. Police Officers of
Subordinate Ranks (Punishment and
Appeal) Rules, 1991 - Criminal and
disciplinary proceeding was initiated
against the deceased on the complaint
of the petitioner herself - Deceased also
confessed the charge and he was found
guilty
of
indulging
in
an
illicit
relationship and in conduct unbecoming
of a member of disciplinary force being
adversely affected in the eyes of the
public - Appeal and Revision was also
dismissed - Revision order confirming
dismissal was never challenged by the
employee for about three years U.P.to
his death - After employee's death, the
validity
of
dismissal
order
was
challenged by the widow/complainant -
Entitlement of widow to seek writ -
Held, in order to be entitled to the issue
of a writ under Article 226 of the
Constitution, the petitioner must not
only establish his/her right in law, but
also a case in equity - High Court found
the
petitioner
disentitled
to
seek
equitable relief. (Para 16, 17, 20, 23 and
25)

Writ petition dismissed. (E-1)

List of Cases cited:

1. Writ A No. 21010 of 2011; Kuber Singh Vs St.
of U.P. decided on 14.02.2020
2. Shahjahan Khan Vs St. of U.P.& ors.; 2002
SCC OnLine All 46

3. Joseph Shine Vs U.O.I.; (2019) 2 SCC 39

4. Ex-Constable Kishori Lal Sharma Vs U.P.
Public Service Tribunal & ors.; 2004 (2) AWC
1434 : (2004) 2 U.P.LBEC 1201

5. Prem Chandra Vs St. of U.P.; 2005 SCC
OnLine All 987

6. Dukh Haran Verma Vs St. of U.P. & ors.;
(2004) 2 AWC 1147

7. Central Council for Research in Ayurvedic
Sciences & anr. Vs Bikartan Das & ors.; 2023
SCC OnLine SC 996

(Delivered by Hon'ble J.J. Munir, J.)

The petitioner is the widow of the late
Mahesh Chand, a dismissed Constable of
the Police, who seeks to challenge the
dismissal of her deceased husband from
service and its affirmation in departmental
appeal and revision.

2. The petitioner's husband, the late
Mahesh Chand, was recruited in the Civil
Police in the year 2006. She and Mahesh
Chand
were
married
on 24.06.2007,
according to Hindu rites. In the year 2007,
he
was
removed
from
service
in
consequence of a general order passed by
the Government in the recruitment matter,
but reinstated in service in the year 2009,
after Supreme Court's judgment. The
petitioner, Smt. Madhu Yadav, moved an
application on 09.06.2009 before the Senior
Superintendent of Police, Aligarh, saying
that she was married to Mahesh Chand on
24.06.2007, according to Hindu rites, but
Mahesh Chand had married another woman
by the name 'X'. She said in her complaint
that she had lodged a First Information
Report1 against her husband, giving rise to
Case Crime No. 121 of 2008, under
4 All. Smt. Madhu Yadav Vs. State of U.P. & Ors.
549
Sections 498A, 323, 506, 494 of the Indian
Penal Code, 18602.

3. After investigation, a charge-sheet
was said to be submitted against Mahesh
Chand. A preliminary inquiry in the matter
was conducted by the Circle Officer, Civil
Lines, Aligarh. The Circle Officer found
evidence against Mahesh Chand. On the
basis of the preliminary inquiry report, the
Senior Superintendent of Police, Aligarh
decided to initiate departmental proceedings
against Mahesh Chand under Rule 14(1) of
the Uttar Pradesh Police Officers of
Subordinate
Ranks
(Punishment
and
Appeal) Rules, 19913. The departmental
inquiry was entrusted to the Circle Officer,
City-II, Aligarh. The petitioner, Smt. Madhu
Yadav and her father, Mahendra Pal Singh
were
examined
on
behalf
of
the
Establishment.
They
supported
the
allegations against the late Mahesh Chand.
In the departmental inquiry, the petitioner
was held guilty and recommendation made
for dismissal from service.

4. The Senior Superintendent of
Police, Aligarh issued a show-cause notice
dated 05.02.2010 along with a copy of the
inquiry report, which was received by the
late Mahesh Chand on 26.02.2010. The
Constable was granted fifteen days' time to
submit his reply to the show-cause, which
he
chose
not
to
do.
The
Senior
Superintendent of Police, accordingly,
dismissed him from service vide an order
dated 19.06.2010. The deceased constable
then preferred an appeal to the Deputy
Inspector General of Police, Aligarh Range,
Aligarh. The appeal was dismissed on
08.11.2010. Mahesh Chand carried a
revision to the Additional Director General
of Police, Uttar Pradesh, Lucknow, which
was rejected by means of an order dated
30.08.2011.

5. Mahesh Chand died on 17.06.2014.
After his demise, the petitioner, that is to
say, Smt. Madhu Yadav, his wife, filed a
writ petition before this Court, being Writ -
A No. 43101 of 2014, with a case that the
revision preferred by her late husband to
the Additional Director General of Police is
still pending and may be directed to be
decided. The aforesaid writ petition was
disposed of by this Court vide an order
dated 22.08.2014, directing the Additional
Director General of Police to decide the
revision against the order dated 08.11.2010
in accordance with law, expeditiously and
preferably within a period of three months
from the date of production of a certified
copy of the order, along with a photostat
copy of the memo of revision before the
officer seized of the revision.

6. It was the respondents' case that the
revision was already decided by the
Additional Director General of Police,
Lucknow vide an order dated 30.08.2011.
So, a communication in this regard was
made by the Senior Superintendent of
Police,
Aligarh
on
30.10.2014,
communicating the revisional order to the
petitioner. In fact, in the order dated
30.10.2014, it was mentioned that a copy of
the revisional order dated 30.08.2011 was
communicated to the deceased constable at
his address of permanent residence, but he
was
not
found
there.
The
Senior
Superintendent of Police has mentioned
that the order was communicated through a
constable, Rajbir Singh, from the Police
Lines, Aligarh. He affixed the order on the
wall of Mahesh Chand's residence in the
presence of his father and two residents of
the village. At this stage, when the
petitioner was communicated with a copy
of the revisional order dated 30.08.2011
passed during the lifetime of her husband
by the Senior Superintendent of Police,
550 INDIAN LAW REPORTS ALLAHABAD SERIES
Aligarh, in consequence of the directions
issued by this Court on the assumption that
it was not decided. The petitioner moved this
Court through the present writ petition, for
the first time, challenging the orders of
dismissal from service passed against her late
husband and its affirmation in departmental
appeal and revision.

7. It is not in dispute that the petitioner's
husband never challenged the revisional order
dated 30.08.2011, or the order of dismissal,
or for that matter, the appellate order before
this Court during his lifetime. He lived a little
shy of two years after the revisional order
was made, but never chose to challenge it.
This petition was entertained by an order
dated 11.12.2014, when a notice of motion
was issued, asking the respondents to file a
counter affidavit. In course of time, a counter
affidavit dated 26.03.2015 was filed on
behalf
of
the
respondents
and
a
supplementary affidavit dated 31.08.2015
was filed on behalf of the petitioner. A
rejoinder affidavit was filed by the petitioner
on 31.08.2015. A supplementary counter
affidavit dated 22.09.2018 was filed on
behalf of respondent No. 4. Much later when
the petition came up before the Court in the
month of May, 2023, still at the admission
stage, another supplementary affidavit was
filed by the petitioner dated 22.05.2023. In
answer to this affidavit, a supplementary
counter affidavit dated 28.08.2023 was filed.
With exchange of so much of pleadings,
except the supplementary counter affidavit
last filed, which came in later on, this petition
was admitted to hearing on 05.07.2023. The
matter was heard on 24.07.2023, 07.08.2023,
21.08.2023 and lastly, on 06.10.2023, when
judgment was reserved.

8. Heard Mr. Pradeep Kumar
Dwivedi, learned Counsel for the petitioner
and Mr. Girijesh Kumar Tripathi, learned
Additional
Chief
Standing
Counsel
appearing on behalf of respondent No. 1.

9. The petitioner was charge-sheeted
on a solitary charge, which, from a perusal
of the inquiry report dated 27.01.2010, is
found to read as follows :

आपकी शादी श्रीमती मिु पुत्री महेन्द्र
ससिंह सनवासी खलवारा र्ाना मेरापुर जनपद
फरुथखाबाद के सार् सहन्दु रीसत ररवाज से दोनो
पक्षोिं की सहमती से हुई र्ी शादी के बाद से
आपके अवैि सम्बन्ध उमा उफथ शपना पुत्री
मोहनलाल सनवासी आसमलपुर र्ाना मेरापुर मऊ
दरवाजा जनपद फरुथखाबाद से कायम हो गये
और आपने उमा उफथ सपना को भगाकर अपने
सार् रख सलया सजससे एक पुत्री पैदा होने की
जानकारी आयी है सजसके सम्बन्ध में आपके एविं
आपके पररवारीजनोिं के सवरुद्ध र्ाना मेरापुर में
आवेसदका श्रीमती मिू ने मु0अ0सिं0 121/2008
िारा 498ए/323/506/494 भादसव व 3/4 दहेज
असिसनयम का असभयोग पिंजीकृत कराया गया
र्ा। असभयोग में आरोप सत्य पाये जाने पर
सववेचक द्वारा आरोप पत्र सदनािंक 20.06.2008
को न्यायालय में प्रेसर्त कर सदया गया और
असभयोग वतथमान में सवचारािीन न्यायालय है।

10. The charge against deceased, on
the basis of which the inquiry proceeded,
on a reading of it, appears to be inchoate
and inconsequential, but later on, in the
proceedings and in the inquiry report, the
conclusion drawn is that the deceased, by
indulging in an illicit relationship while
married to the petitioner, has led to the
image of the police force being adversely
affected in the eyes of the public and his
conduct is one unbecoming of a member of
a disciplined force. It is for the said reason
that the learned Counsel for the petitioner
has relied upon the judgement of this Court
in Kuber Singh v. State of U.P. and
4 All. Smt. Madhu Yadav Vs. State of U.P. & Ors.
551
others4 to submit that there was no charge
of solemnizing a bigamous marriage
against the late Mahesh Chand in violation
of
Rule
29
of
the
Uttar
Pradesh
Government
Servants
Conduct
Rules,
19565. In Kuber Singh (supra) reliance
was placed on a Bench decision of this
Court in Shahjahan Khan v. State of
Uttar Pradesh and others6 to more or less
conclude that adultery was not defined as
"misconduct" under the Rules of 1956. To
add to it, Kuber Singh has reasoned that
adultery is no longer a crime, after the
decision of the Constitution Bench of the
Supreme Court in Joseph Shine v. Union
of India7. Learned Counsel for the
petitioner has heavily relied on the decision
in Kuber Singh to say that there was, in
the end, on all facts proved, no case of
misconduct made out against the deceased
constable, for which he could validly be
dismissed from service.

11. To the contrary, Mr. Girijesh
Kumar Tripathi, learned Additional Chief
Standing Counsel submits that this is a case
where the petitioner ought not to be granted
relief, for reason that equity heavily weighs
against her. He further submits that the
petitioner is disentitled to relief on the
principle of approbate and reprobate. Mr.
Tripathi submits that the petitioner, in
equity, is not entitled to challenge the
impugned orders, even if she is in law.
Mahesh Chand, when alive, had suffered
the impugned order, with the exhaustion of
his last departmental remedy, that is to say,
the revision being turned down on
30.08.2011. He lived for a period as long as
three years approximately, but never
challenged the orders impugned in his
lifetime. Mr. Tripathi submits that it has to
be borne in mind that it was the petitioner
who was the person setting into motion the
process of disciplinary proceedings against
Mahesh
Chand,
her
husband.
It
is
emphasized that she supported the charges
against her deceased husband before the
Inquiry Officer, leading to findings against
him, on the foot of which, the departmental
authorities
have
passed
the
orders
impugned. Now that he is dead, three years
after his demise, the petitioner has
instituted this writ petition, seeking to
impugn the orders of dismissal from
service that were passed against Mahesh
Chand at her instance, because it is she who
would now benefit from the orders being
quashed. Mr. Girijesh Kumar Tripathi
points out that not only has the petitioner
sought quashing of the orders of dismissal
from service passed against Mahesh Chand
and the approval thereof by the Appellate
and Revisional Authorities, but also has
further sought a mandamus to consider her
claim for compassionate appointment. He
says, therefore, that the petitioner, in fact, is
a person who seeks to approbate and
reprobate for her benefit. In addition, Mr.
Girijesh Kumar Tripathi places reliance
upon decision of this Court in ExConstable Kishori Lal Sharma v. U.P.
Public Service Tribunal and others8 and
another decision of this Court in Prem
Chandra v. State of U.P.9

12. Upon hearing learned Counsel for
the parties, as already remarked, this Court
finds
that
the
charge
is
somewhat
awkwardly worded, towards the close of
the report, the late Mahesh Chand has been
held guilty of conduct unbecoming of a
member of a disciplined force by indulging
in an illicit relationship with a woman,
while married to the petitioner. The inquiry
report also shows that at the hearing before
the Inquiry Officer, the deceased, Mahesh
Chand, had not filed any written statement,
but the Inquiry Officer, adopting a
procedure
countenanced
by
law
and
552 INDIAN LAW REPORTS ALLAHABAD SERIES
proceeded ex-parte. He called witnesses for
the Establishment. The first date fixed
before the Inquiry Officer was 30.11.2009,
when no witness or the complainant
appeared. It also appears that the date for
hearing before the Inquiry Officer on
30.11.2009 was fixed by a notice bearing
number 6 of 2009 dated 23.11.2009, sent to
both
parties.
On
30.11.2009,
the
proceedings of the inquiry were adjourned
to 07.12.2009 and both sides were
informed. On the adjourned date, Mahendra
Pal Singh, a witness for the Establishment,
appeared along with the petitioner as the
other witness in support of the charge. Still
another witness who appeared for the
Establishment was Satya Prakash, a Deputy
Superintendent of Police. On the said date
also, the petitioner did not appear.

13. The testimony of witnesses for the
Establishment were recorded by the Inquiry
Officer. The first to depose was Mahendra
Pal Sharma. He testified to the fact of the
petitioner's marriage with the deceased,
Mahesh Chand, on 24.06.2007, according
to Hindu rites. He then testified to the fact
that his son-in-law, Mahesh Chand, had
indulged in illicit relations with a certain
woman,
whom
he
named
with her
parentage and residence and said that the
said woman would stay with his son-in-law
as a second wife. No maintenance was
being paid to his daughter. There is also a
mention in his testimony to the registration
of a case against the deceased by this
witness, giving rise to Crime No. 121 of
2008, under Sections 498A, 323, 506, 494
of the Penal Code and Section 3/4 of the
Dowry Prohibition Act, 1961, Police
Station Merapur, District Farrukhabad,
wherein, after investigation, a charge-sheet
had been filed in Court. There is testimony
further to the effect that the proceedings
were impugned before this Court and got
referred to the Mediation Centre. Here, it is
also said in this witness's testimony that the
deceased had tricked his daughter into
entering a settlement and an undertaking
not to proceed against him in the present
inquiry, but, later on, there was no change
in his behaviour. The deceased still stays
with the other woman at some unknown
place. He still tortures the witness's
daughter, that is to say, the petitioner. The
witness demanded that in order to render
justice to him, the deceased should be
dismissed from service.

14. A further perusal of the inquiry
report shows that the next witness to be
examined before the Inquiry Officer was
the petitioner herself. She testified to her
marriage with the deceased and the fact that
just two months into their matrimony, her
husband
had
entered
into
an
illicit
relationship with a named woman, with
whom he was carrying on, for 11⁄2-2 years
past. She also reiterated the fact about her
being tricked into a compromise not to
pursue these proceedings, but later on the
deceased did not reform and stays with the
other woman. The petitioner said that the
deceased tortures her. She also said that
after taking necessary legal proceedings
against her husband, she be given justice.
The Inquiry Officer then recorded that
since the deceased was not present he could
not cross examine the witnesses or make
his submissions.

15. The last witness to be called on
behalf of the Establishment was Satya
Prakash, the Deputy Superintendent of
Police and an Assistant Commandant with
the 15th Battalion of the Provincial Armed
Constabulary. He was the officer who had
held the preliminary inquiry against the
deceased and submitted the preliminary
inquiry report dated 09.08.2009, on the foot
4 All. Smt. Madhu Yadav Vs. State of U.P. & Ors.
553
of which, the disciplinary proceedings were
drawn. He proved his report and other facts
mentioned in the inquiry report. This
witness was also not cross examined
because the deceased was not present.

16. Later it seems that the deceased
appeared before the Inquiry Officer and
testified that he was married to the
petitioner. He said that he would stay with
his wife and rent a premises at Aligarh,
where he would stay with her. He also said
that he and his wife would file for a
compromise in all pending cases. There is
now no dispute between parties. He also
stated that in future, he would never torture
his wife. The deceased was cross examined
by the petitioner herself and her father. The
following questions were put to the
deceased by the petitioner :

प्रश्नः-क्या आप भसवष्य में पुनः अ
उर्थ ब से सम्बन्ध रखेगें और का प्रायासश्चत या
पश्चाताप कर रहे हैं ?

उत्तरः- मैं अ उर्थ ब से सम्बन्ध नहीिं
रखूिंगा और पूवथ में रखे गये सम्बन्ध के सलये
पश्चाताप या प्रायासश्चत कर रहा हिं ।

प्रश्नः- यसद आपके अ उर्थ ब से
भसवष्य में सम्बन्ध पाया जाते है तो आपके सवरुद्ध
कानूननी कायथवाही / सवभागीय कायथवाही के
सलये तैयार है ?

उत्तर-जीिं हााँ ।

17. The petitioner, virtually, by her
prowess at cross examination, made the
deceased say that he was living in adultery
with another woman and would not do so
in future. The petitioner made the deceased
confess to the charge. It was on these facts
that the Inquiry Officer concluded against
the deceased and held him guilty of
indulging in conduct unbecoming of a
member a disciplined force, that led to the
image of the Police force being adversely
affected in the eyes of the general public.
Towards the conclusion of the inquiry
report, the Inquiry Officer, who was a
Circle Officer of the Police, has made
quaint remarks. He has said :

अतः आरोपी कान्स0 1211 ना0पु0
महेश चन्द्र को उक्तानुसार पूणथतः दोर्ी पाते हुए
आरक्षी पद से पदच्युत (सडससमस) बखाथस्त सकये
जाने की सिंस्तुती करता हिं मेरा यह आदेश वररि
पुसलस अिीक्षक की सहमती से ही प्रभावी माना
जाएगा।
(emphasis by Court)

18. Now, it is not the law that the
Inquiry Officer ought even to recommend
punishment to be imposed. Here the
Inquiry Officer has not only held the
petitioner guilty of the charge which was
well within his province, but also said that
he recommends the petitioner's dismissal
from service and that his order would be
"effective from the date of consent of the
Senior Superintendent of Police". This part
of the inquiry report is indeed something
which is absolutely perverse and without
jurisdiction.
But,
the
event
in
the
disciplinary proceedings has not turned
upon this piece of his ignorance that the
Inquiry Officer has introduced to the
record. The substance of the findings that
the Inquiry Officer has otherwise recorded
is based on sound evidence produced by the
Establishment, particularly, the testimony
of witnesses, which includes the petitioner.

19. There could still be an area of
doubt about the findings of the Inquiry
Officer, because the question of the
deceased staying in adultery with another
woman might be a fact to which the
witnesses of fact, to wit, the petitioner and
her father, would not have had any direct
554 INDIAN LAW REPORTS ALLAHABAD SERIES
knowledge, except hearsay, suspicion or
circumstantial inferences. The clincher,
nevertheless, came from the petitioner
herself, when, by the dexterity of her cross
examination, she made the deceased
confess to the fact that he was staying in
adultery with another woman, whom he
named.
The
questions
are
recorded
verbatim by the Inquiry Officer. It is on the
foot of these findings that the impugned
order of dismissal was passed by the Senior
Superintendent of Police and upheld in
appeal and revision.

20. This Court was minded to look
into the validity of those orders as well, but
what cannot be ignored is the well settled
principle that in order to be entitled to the
issue of a writ under Article 226 of the
Constitution, the petitioner must not only
establish his/her right in law, but also a
case in equity. In this connection, reference
may be made to the Bench decision of this
Court in Dukh Haran Verma v. State of
U.P. and others10. In Dukh Haran
Verma (supra) it was observed :

4. It must be remembered that
writ is discretionary remedy vide Chandra
Stngh v. State of Rajasthan, 2003 (3)
SCCD 1078 : JT 2003 (6) SC 20. In a writ
petition the petitioner has not only to show
violation of law, he must also show that
equity is in his favour. Thus, to obtain a
writ the petitioner must satisfy the Court
about both law and equity. If the petitioner
has only satisfied the Court that the law has
been violated but equity is not in his favour
the Court shall not issue a writ.

5. In the present case, admittedly
the resolution for no-confidence was passed
by 2⁄3rd of the members of the Board of
Directors of the Bank as required by Rule
460. Hence assuming that initiation of the
proceedings by means of the notice was
bad as the notice was not valid yet the
resolution has validly been passed by 2⁄3rd
members of the Board of Directors of the
Bank. It must be remembered that if 2⁄3rd
members of the Board are against the
petitioner then as provided under the Rules
he has to quit his office.

21.

The
principle
has
been
wholesomely approved by the Supreme
Court in Central Council for Research in
Ayurvedic Sciences and another v.
Bikartan Das and others11 where it is
held :

52. The second cardinal principle
of exercise of extraordinary jurisdiction
under Article 226 of the Constitution is
that in a given case, even if some action or
order challenged in the writ petition is
found to be illegal and invalid, the High
Court while exercising its extraordinary
jurisdiction thereunder can refuse to upset
it with a view to doing substantial justice
between the parties. Article 226 of the
Constitution
grants
an
extraordinary
remedy, which is essentially discretionary,
although founded on legal injury. It is
perfectly
open
for
the
writ
court,
exercising this flexible power to pass such
orders as public interest dictates & equity
projects. The legal formulations cannot be
enforced divorced from the realities of the
fact
situation
of
the
case.
While
administering law, it is to be tempered
with equity and if the equitable situation
demands after setting right the legal
formulations, not to take it to the logical
end, the High Court would be failing in its
duty if it does not notice equitable
consideration and mould the final order in
exercise of its extraordinary jurisdiction.
Any other approach would render the High
Court a normal court of appeal which it is
not.
4 All. Smt. Madhu Yadav Vs. State of U.P. & Ors.
555

22. Here what this Court finds from
the sequence of events is that the petitioner,
for her part, while the deceased was alive,
was prosecuting both the criminal matter
and the disciplinary proceedings, charging
him inter alia with a case of living in
adultery, while being married to her. She
reported him to the Police, supported her
First Information Report leading to the
institution of criminal proceedings against
the deceased for the offence of adultery
punishable under Section 494 of the Penal
Code. If that too were discounted, the
proceedings
that
she
now
impugns,
commenced on her complaint to the Senior
Superintendent of Police, Aligarh. She
pursued her complaint in the preliminary
inquiry, leading to the initiation of
disciplinary
proceedings.
Before
the
Inquiry Officer, the petitioner testified as
an Establishment witness, supporting the
charge of adulterous conduct by her
husband, the deceased constable. Her father
too
testified
in
support
of
the
Establishment's case. We have already
noticed that the petitioner cross examined
the deceased, when he testified in his
defence,
though
without
a
written
statement, and made him confess to the
charge of adultery before the Inquiry
Officer. It was as a result of whatever proof
the
petitioner
mustered
against
the
deceased in disciplinary inquiry that the
orders impugned were passed, dismissing
the late constable, her husband, from
service.

23. The deceased filed a departmental
appeal and revision, both of which were
filed
during
his
lifetime.
The
last
departmental remedy was a revision, which
was exhausted while Mahesh Chand was
alive. The revision preferred by the late
constable was dismissed by the Additional
Director General of Police vide order dated
30.08.2011. Mahesh Chand passed away on
17.06.2014, two months shy of three years
after the date that his last departmental
remedy had ended in failure. During his
lifetime, he never challenged the order of
dismissal or its affirmation by the higher
departmental fora before this Court or any
other judicial forum.

24. After Mahesh Chand's demise, the
deceased seems to have worked with much
machination. The revisional order had been
served on the deceased by pasting a copy of
the order on the wall of his residence in the
presence of his father and two witnesses. The
enthusiasm with which the petitioner was
pursuing proceedings against the deceased, it
is hard to believe that she would not have
known the fate of his revision. Nevertheless,
she moved this Court, saying that the revision
was still pending. She made this Court pass
orders directing a decision of the deceased's
revision, which, by then, had already been
decided. The Senior Superintendent of Police,
Aligarh vide his communication dated
20.10.2014, recounted the entire calender of
events and said that the revision had been
decided
way
back
on
30.08.2011.
Apparently, this device was resorted to
overcome laches on the petitioner's part, or
so she might have thought. Even if this
vantage of looking at the matter is ignored,
the fact remains that it was the petitioner who
moved the entire process against the
deceased, leading to his dismissal from
service. Now, in the present writ petition she
has come up with a prayer, apart from
seeking quashing of the orders of dismissal
passed against her late husband, that she be
given compassionate appointment. This is,
without doubt, telltale of the petitioner's
unholy motives in moving this Court, a year
after her husband's demise and four years
after her husband lost his remedy before the
departmental forum. Indeed this is a case
556 INDIAN LAW REPORTS ALLAHABAD SERIES
where the petitioner has approbated and
reprobated. She now assails the orders passed
by the Departmental Authorities on grounds
that there is no evidence regarding a second
marriage solemnized by her husband, in the
absence of which, he could not be punished
with dismissal from service. She herself
testified against her husband about him living
in adultery, if not solemnizing a second
marriage and made him confess to it. Now,
she seeks to take advantage of the subtle
distinction between a charge of adultery and
bigamy, placing reliance upon the authority
of this Court in Kuber Singh. Kuber Singh,
no doubt, drew a distinction between the
charge of adultery and bigamy, holding that it
was bigamy that was punishable as a
misconduct under the Rules of 1956. But
Kuber Singh was a case which did not rest,
as the learned Judge has chosen to describe it
"on an allegation of adultery but solely on an
alleged violation of Rule 29 of the 1956
Rules". This is not the case here. The charge
here, to begin with, is one based on amorous
indiscretion
and
adultery,
howsoever
awkwardly worded the charge might have
been. The further remark in Kuber Singh on
which the learned Counsel for the petitioner
has much harped upon that adultery is no
longer an offence in view of the Constitution
Bench decision of the Supreme Court in
Joseph Shine (supra) would also be of no
avail to the petitioner, for the reason that
while adultery may no longer be a criminal
offence, but would still be a service
misconduct, particularly, in the terms the
charge is cast. In the opinion of this Court,
therefore, the decision in Kuber Singh, does
not, at all, come to the petitioner's rescue.

25. Therefore, quite apart from the
legal validity of the proceedings taken
against the petitioner's deceased-husband
and the orders made against him, given all
the facts noticed hereinabove, regarding the
petitioner's action in reporting her husband
to the Departmental Authorities on a
misconduct of adultery etc. and pursuing it
to the hilt, in the considered opinion of this
Court, disentitle her to seek equitable relief
by now turning around and doing a
somersault.

26. In the result, there is no force in
this writ petition. It fails and stands
dismissed.

27. Costs easy.

28. Let a copy of this order be
communicated to the Commissioner of
Police, Aligarh by the office within a
fortnight.
----------
(2024) 4 ILRA 556
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 12.03.2024

BEFORE

THE HON'BLE VIVEK KUMAR BIRLA, J.
THE HON'BLE DONADI RAMESH, J.

Writ A No. 68541 of 2015
With
Writ A No. 41433 of 2015

Ravendra Singh ...Petitioner
Versus
U.O.I. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Bhupendra Nath Singh, Sri Devendra
Pratap Singh, Poorwa Agarwal, Sri Punit
Kumar Gupta

Counsel for the Respondents:
Sri Vivek Singh, Sri Anil Kumar, Sri Ashok
Kumar Gaur

A.
Service
Law
-
Termination
of
Appointment
-
Suppression
of