# Smt. Rani Singh v. State of U.P. and others

- **Citation:** (2011) 1 ILRA 259
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2011-03-28
- **Case number:** Special Appeal No. 211 of 2011
- **Bench:** Pradeep Kant, Vedpal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-rani-singh-v-state-of-u-p-and-others-41860
- **Pages:** 4

## Text

1 All] Smt. Rani Singh V. State of U.P. and others
259
judgment dated 5.7.2000 passed by the
State Public Service Tribunal as well as
the impugned order dated 4.10.1995 with
regard
to
punishment
awarded
for
reduction from the petitioner's pension
with liberty to the disciplinary authority to
pass a fresh order keeping in view the
observation made hereinabove. In case a
decision is taken to pass fresh order, then
the decision be taken expeditiously and
preferably within a period of three months
from the date of service of a certified
copy of the present order.

14. The writ petition is allowed
accordingly. No order as to costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 28.03.2011

BEFORE
THE HON'BLE PRADEEP KANT, J.
THE HON'BLE VEDPAL, J.

Special Appeal No. 211 of 2011

Smt. Rani Singh

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

U.P.
Police
Subordinate
Officers/employees
(Punishment
&
Appeal)
Rules,
1991-Rule
8(2)
(b)-
Dismissal by evoking Power u/s 8(2-B)
of the Rules-on ground the delequinted
employer might be in Jail-disciplinary
Proceeding not possible-challenged by
widow of deceased employee-dismissal
on ground of delay-without considering
this aspect the detention order was set-a
-side by High Court-during pendency of
criminal
appeal
her
husband
diedwithout considering the question of
abatement-dismissal
order
can
not
sustain-but these facts could be decided
only after having counter affidavit-writ
restored on its original number with
direction to consider the amendment of
Petition and to pay the admissible
amount
due-even
on
existence
of
dismissal order-held-delay will not came
in
way
of
widow
challenging
the
dismissal order of her husband in facts
and circumstances of the case.

Held: Para 18, 19, 20 and 21

In view of the peculiar circumstances of
the case, the Court held that the High
Court was not justified in rejecting the
prayer of the appellant primarily on the
ground of delay and laches on the part of
the appellant in questioning the order of
termination passed on 4.8.1992 in a
petition filed in the year 2005, after
acquittal by Sessions Court in appeal.

In the instant case, there is one more
aspect which requires consideration i.e.
status of the employee, namely, the
Constable Raj Kumar Singh for the
purpose of passing of the order of
dismissal
from
service,
when
he
unfortunately died during the course of
trial. If the trial was not completed
before
his
death,
the
question
of
abatement
would
be
taken
into
consideration and also that whether the
dismissal order passed without taking
into consideration the aforesaid fact,
could be passed or sustained. Simply
because at the time of passing of the
dismissal order the person was in jail or
on bail in pending criminal trial and the
dismissal order was not challenged, that
would
not
conclude
the
fate
of
disciplinary proceedings.

This apart, the dismissal order passed on
5.6.01 says that Raj Kumar Singh is in
detention under National Security Act
whereas his order of detention under the
said Act was quashed by the High Court
much before i.e. 16.10.2000.

Since all these questions arise in the writ
petition, which could not be considered
by the learned Single Judge in the
absence of the counter affidavit filed by
the State, we set aside the order passed
by the learned Single Judge and remit
260 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
the matter to the learned Single Judge
having jurisdiction to decide the matter
afresh in accordance with law.

(Delivered by Hon'ble Pradeep Kant, J.)

1. Heard the learned counsel for the
appellant Sri R.J. Trivedi and Sri Mukund
Tiwari for the State.

2. This special appeal challenges the
order dated 1.3.2011 passed by the
learned Single Judge, dismissing the writ
petition preferred by the appellant, Smt.
Rani Singh, who is the widow of
Constable Raj Kumar Singh.

3. In short, the facts of the case are
that Constable Raj Kumar Singh while
posted in P.A.C. was placed under
suspension vide order dated 7.5.97 for the
reason of a criminal case being lodged
against him being Case Crime No. 280/97
under sections 452, 354, 506 IPC.

4. On 4.8.99 while under suspension
he went to his hometown Barabanki on
sanctioned leave of 15 days but he did not
return for duty after the said period and
continued to remain absent. In the
meantime, he was charged in Crime No.
39/2000 under sections 302/307/504/506
IPC and on 26.2.2000 he was arrested on
spot. He was detained under National
Security Act also but later on, the High
Court in writ petition filed by him being
Writ Petition No. 416 (habeas corpus) of
2000, set aside the order of detention
passed under National Security Act and
directed for his release forthwith, if he
was not wanted in any other case. This
order was passed on 16.10.2000.

5. The dismissal order impugned in
the writ petition and challenged before us
in special appeal was passed on 5.6.01.
The order of dismissal gives history of the
criminal cases against the petitioner and
then it says that since he was under
detention under National Security Act,
therefore, it is not possible to hold any
enquiry. The order further says that the
suspended Constable Raj Kumar Singh
has remained completely involved in
criminal offences, therefore, it is not
possible for him to come outside the
prison and there is no need to hold any
enquiry.

6. After making the aforesaid
observations, the appointing authority
said that he is not a fit person to be
retained as Constable in P.A.C. and,
therefore, he being satisfied that no
enquiry was needed, exercising powers
under section 8(2)-B of the U.P. Police
Subordinate
Officers/Employees
(Punishment & Appeal) Rules, 1991,
passed the order of dismissal of Raj
Kumar Singh from service.

7. It appears that husband of the
petitioner did not challenge the aforesaid
order for the reason that he might be
waiting for the outcome of the criminal
trial but in the meantime, as the luck
could have it, he died on 4.4.05. The
present petitioner, thereafter finding no
relief from any quarter, approached this
Court by filing a writ petition seeking the
relief of quashing of the the order of
dismissal of her husband from service and
getting the post retiral dues and other dues
to which she was entitled, being the
widow of the deceased Constable.

8. Raj Kumar Singh, husband of the
petitioner, did not challenge the order of
dismissal though he remained alive for
more than four years and the present writ
1 All] Smt. Rani Singh V. State of U.P. and others
261
petition has been filed after six years of
his death, by his widow.

9. Normally each day delay is to be
explained, if the petition suffers from
laches but in a matter like the present one,
if the widow of the deceased employee
(Constable), who was accused in a
criminal case and against whom trial was
pending, after his death has approached
this Court finding that the order of
dismissal from service was per se illegal
and it is her right to get the post retiral
dues and other dues being widow of the
deceased government servant, a lenient
view has to be taken and the petition need
not be dismissed on the ground of laches
alone.

10. It is a different matter that in a
given case, where a government servant,
may be Constable in a disciplined force,
chooses not to challenge the order of
dismissal from service and dies, if his
dependant, may be widow or son intends
to challenge the order of dismissal from
service after unreasonable delay, perhaps
there would be no occasion to entertain
the same but circumstances of each case
differ and the principle of unexplained
laches has to be applied looking to the
facts and circumstances of each and every
case.

11. Here, in the instant case,
husband of the appellant was earlier
suspended because of criminal case
being registered against him under
sections
452,
354,
506
IPC
and
thereafter he went on leave. During the
period of leave he was charged of
committing
offence
under
sections
302/307/504/506 and then he was also
detained under National Security Act.

12. Incidentally, the order under
National Security Act was set aside by the
High Court on 16.10.2000. The dismissal
order was passed thereafter on 5.6.01. The
order
of
dismissal
from
services
apparently was passed on incorrect facts
and without taking into consideration the
release orders passed by the High Court
and without holding any enquiry.

13. The question, whether any
enquiry was conducted or was required to
be conducted need be decided by the
learned Single Judge as at this stage it
would not be appropriate for us to record
any finding on this issue.

14. Since the rights of the appellant
are directly in issue, therefore, not making
challenge by the husband of the appellant
against the order of dismissal would not
divest her of her own right and, therefore,
the view that if the husband of the
petitioner did not challenge the order of
dismissal, the appellant also cannot
challenge the same, does not appear to be
correct in the facts and circumstances of
the present case.

15. In the case of Basanti Prasad v.
The
Chairman,
Bihar
School
Examination Board and Ors. AIR 2009
SC 3162, the Superme Court considering
almost the similar plea, observed, that
where there is inordinate and unexplained
delay and third party rights are created in
the intervening period, the High Court
would decline to interfere. However, if
the delay is properly explained, and if the
third party right is not going to be
affected, the High Court may entertain the
petition and consider the case of the
aggrieved person on merits.
262 INDIAN LAW REPORTS ALLAHABAD SERIES [2011

16. In the said case, services of the
appellant's
deceased
husband
were
terminated on the ground that he was
convicted by a Judicial Magistrate for
certain offences under the provisions of
Indian Penal Code.

17. The Court observed that the
dismissal was in view of the order of
conviction passed by the Magistrate and
till that order is set aside by a superior
forum, the appellant's husband or the
appellant could not have questioned the
same till he was acquitted by the Sessions
Court.

18. In view of the peculiar
circumstances of the case, the Court held
that the High Court was not justified in
rejecting the prayer of the appellant
primarily on the ground of delay and laches
on the part of the appellant in questioning
the order of termination passed on 4.8.1992
in a petition filed in the year 2005, after
acquittal by Sessions Court in appeal.

19. In the instant case, there is one
more aspect which requires consideration
i.e. status of the employee, namely, the
Constable Raj Kumar Singh for the purpose
of passing of the order of dismissal from
service, when he unfortunately died during
the course of trial. If the trial was not
completed before his death, the question of
abatement
would
be
taken
into
consideration and also that whether the
dismissal order passed without taking into
consideration the aforesaid fact, could be
passed or sustained. Simply because at the
time of passing of the dismissal order the
person was in jail or on bail in pending
criminal trial and the dismissal order was
not challenged, that would not conclude the
fate of disciplinary proceedings.

20. This apart, the dismissal order
passed on 5.6.01 says that Raj Kumar
Singh is in detention under National
Security Act whereas his order of
detention under the said Act was quashed
by the High Court much before i.e.
16.10.2000.

21. Since all these questions arise in
the writ petition, which could not be
considered by the learned Single Judge in
the absence of the counter affidavit filed
by the State, we set aside the order passed
by the learned Single Judge and remit the
matter to the learned Single Judge having
jurisdiction to decide the matter afresh in
accordance with law.

22. We further direct that all the post
retiral dues or any other service dues
which were admissible to the deceased
employee even after the order of dismissal
from service being passed, would be paid
to be appellant on furnishing of the
required legal heir certificate.

23. Liberty is also given to the
appellant to amend the writ petition, if she
is so advised.

24. The special appeal is allowed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.03.2011

BEFORE
THE HON'BLE SUNIL AMBWANI, J.
THE HON'BLE NAHEED ARA MOONIS, J.

Civil Misc. Writ Petition no. 216 OF 2011

Kamal Nayan Singh

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