# State of U.P. & Ors v. Rana Shamsher Singh

- **Citation:** (2015) 1 ILRA 4
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2015-01-17
- **Case number:** Special Appeal Defective No. 18 of 2015
- **Bench:** Rakesh Tiwari, Mrs. Vijay Lakshmi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-ors-v-rana-shamsher-singh-43171
- **Pages:** 3

## Headnote

Constitution of India, Art.-226-arrears of
salary-petitioner/respondent
proceeded
on medical leave w.e.f. 21.02.13 to
21.07.2013-the
authority
treated
that
period on leave without pay-but imposed
punishment of censure for absence on
duty without prior information-appeal also
rejected-held-order
of
Single
Judge
justified-but
authorities
committed
mistake ignoring this aspect-if transfer
order passed during leave period and
medical leave application given at original
place of posting-employee can not be
faulted-such
treatment
absolutely
in
human approach-entitled for arrears of
salary apart from claim of medicalreimbursement
payable
within
two
months-appeal disposed of.
Held: Para-6
From record it is apparent that it is not
that respondent -Sub Inspector had not
informed
the
authorities
about
his
treatment.
He
did
inform
the
Superintendent of Police, Chandauli about
his medical treatment but objection of the
State-appellant is that since he had been
transferred during the period of absence,
he should have submitted application at
PAC Headquarter and not S.P. Chandauli
where he was earlier posted. Approach of
the appellant appears to be inhuman.
Order of his transfer was made during the
period of absence i.e. while undergoing
treatment, so even if application for leave
was made by him to the S.P. Chandauli
where he was earlier posted, his leave
application could have been forwarded by
the S.P. to the appropriate authority.
Further,
during
departmental
enquiry,
when it has been found that during the
period of absence he was undergoing
medical treatment relating to his kidney, it
cannot be said to be a case of absence
without justifiable cause. In the aforesaid
circumstances, the writ Court has rightly
come to the conclusion that merely
because he did not seek prior permission
or that he submitted applications in the
office where he was earlier posted, may be
a good ground for imposing some minor
punishment but the same cannot be a
ground for denial of pay for the period of
absence particularly when punishment of
censure has already been imposed. In our
view, instead of leave without pay, medical
leave should have been granted to the
respondent-Sub Inspector.

## Text

4
 INDIAN LAW REPORTS ALLAHABAD SERIES
declining interest shall to that extent stand
set aside and be substituted by the
aforesaid directions.
10. The appeal is, accordingly, disposed
of. There shall be no order as to costs.
--------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 17.01.2015
BEFORE
THE HON'BLE RAKESH TIWARI, J.
THE HON'BLE MRS. VIJAY LAKSHMI, J.
Special Appeal Defective No. 18 of 2015
State of U.P. & Ors.
...Appellants
Versus
Rana Shamsher Singh
...Respondent
Counsel for the Appellants:
Sri A.K. Roy, S.C.
Counsel for the Respondents:
Sri R.K. Singh
Constitution of India, Art.-226-arrears of
salary-petitioner/respondent
proceeded
on medical leave w.e.f. 21.02.13 to
21.07.2013-the
authority
treated
that
period on leave without pay-but imposed
punishment of censure for absence on
duty without prior information-appeal also
rejected-held-order
of
Single
Judge
justified-but
authorities
committed
mistake ignoring this aspect-if transfer
order passed during leave period and
medical leave application given at original
place of posting-employee can not be
faulted-such
treatment
absolutely
in
human approach-entitled for arrears of
salary apart from claim of medicalreimbursement
payable
within
two
months-appeal disposed of.
Held: Para-6
From record it is apparent that it is not
that respondent -Sub Inspector had not
informed
the
authorities
about
his
treatment.
He
did
inform
the
Superintendent of Police, Chandauli about
his medical treatment but objection of the
State-appellant is that since he had been
transferred during the period of absence,
he should have submitted application at
PAC Headquarter and not S.P. Chandauli
where he was earlier posted. Approach of
the appellant appears to be inhuman.
Order of his transfer was made during the
period of absence i.e. while undergoing
treatment, so even if application for leave
was made by him to the S.P. Chandauli
where he was earlier posted, his leave
application could have been forwarded by
the S.P. to the appropriate authority.
Further,
during
departmental
enquiry,
when it has been found that during the
period of absence he was undergoing
medical treatment relating to his kidney, it
cannot be said to be a case of absence
without justifiable cause. In the aforesaid
circumstances, the writ Court has rightly
come to the conclusion that merely
because he did not seek prior permission
or that he submitted applications in the
office where he was earlier posted, may be
a good ground for imposing some minor
punishment but the same cannot be a
ground for denial of pay for the period of
absence particularly when punishment of
censure has already been imposed. In our
view, instead of leave without pay, medical
leave should have been granted to the
respondent-Sub Inspector.
(Delivered by Hon'ble Rakesh Tiwari, J.)
1. There is delay of 78 days in filing
the present appeal. After hearing the
submissions and going through the affidavit
filed in support of delay condonation
application, in our view, the cause shown is
sufficient. Accordingly, the delay in filing
the appeal is condoned and the delay
condonation application is allowed.
2. State of U.P. has preferred this
intra Court appeal against judgment and
order dated 2.9.2014 passed in Writ
1 All]. State of U.P. & Ors. Vs. Rana Shamsher Singh
5
Petition No. 45937/2014, Rana Shamsher
Singh Vs. State and others,.
3. We have heard Sri H.M.
Srivastava appearing for the appellant -
State and perused the record.
4. Facts relevant to this appeal are that
Rana Shamsher Singh, a sub inspector in
P.A.C. remained absent from duty w.e.f.
21.2.2013 to 21.7.2013, for he was admitted
in a hospital for operation of kidney and he
informed the authorities in that regard. After
his joining the duty, an inquiry was
conducted wherein it was found that he was
underoing aforesaid treatment but he
absented himself without prior permission,
hence after show cause notice and its reply
by him, leave without pay was sanctioned
and punishment of censure was imposed on
him. Appeal preferred against the said order
having been rejected, he filed the aforesaid
writ petition. The writ Court while
disposing of the writ petition, has directed
the appellate authority to reconsider the
matter regarding denial of pay for the period
of absence and take a fresh decision in the
matter within three months, against which
present appeal has been filed.
5.
Learned standing counsel for the
appellant has submitted that respondent-Sub
Inspector, did not seek prior permission
before availing medical leave, therefore, the
authority has rightly passed the orders for
leave without pay applying the principle of
'No work no pay' and censure entry.
6. From record it is apparent that it is
not that respondent -Sub Inspector had not
informed the authorities about his treatment.
He did inform the Superintendent of Police,
Chandauli about his medical treatment but
objection of the State-appellant is that since
he had been transferred during the period of
absence,
he
should
have
submitted
application at PAC Headquarter and not S.P.
Chandauli where he was earlier posted.
Approach of the appellant appears to be
inhuman. Order of his transfer was made
during the period of absence i.e. while
undergoing treatment, so even if application
for leave was made by him to the S.P.
Chandauli where he was earlier posted, his
leave application could have been forwarded
by the S.P. to the appropriate authority.
Further, during departmental enquiry, when
it has been found that during the period of
absence
he
was
undergoing
medical
treatment relating to his kidney, it cannot be
said to be a case of absence without
justifiable
cause.
In
the
aforesaid
circumstances, the writ Court has rightly
come to the conclusion that merely because
he did not seek prior permission or that he
submitted applications in the office where he
was earlier posted, may be a good ground for
imposing some minor punishment but the
same cannot be a ground for denial of pay for
the period of absence particularly when
punishment of censure has already been
imposed. In our view, instead of leave
without pay, medical leave should have been
granted to the respondent-Sub Inspector.
7. Moreover, the Writ Court has
recorded that from perusal of the
impugned order dated 24.2.2014 it is
apparent that the order is cryptic one and
bereft of any consideration of the reply
submitted as well as the recitals contained
in the inquiry report.
8. For the aforesaid reasons, since
the principle of 'No work no pay' would
not apply in the facts and circumstances of
this case, we quash the order dated 24.2.2014
sanctioning leave without pay as well as
order dated 23.5.2014 of the appellate
authority appended as annexure no. 14 and
6
 INDIAN LAW REPORTS ALLAHABAD SERIES
15 respectively to the writ petition. The
respondent shall be treated on medical leave
for the aforesaid period of absence and shall
be paid salary and medical reimbursement
within a period of two months.
9.
With the above directions, the
appeal stands disposed of. The judgment
and order passed by the writ Court
regarding reconsideration of matter by
appellate authority stands modified to the
above extent. No order as to costs.
--------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 13.01.2015
BEFORE
THE HON'BLE AMRESHWAR PRATAP SAHI, J.
THE HON'BLE OM PRAKASH-VII, J.
Crl. Misc. Leave Application (Defective)
No. 67 of 2013
(U/s 372 Cr.P.C.)
Manoj Kumar Singh
...Appellant
Versus
State of U.P. & Ors.
...Opp. Parties.
Counsel for the Appellant:
Sri Satish Chandra Singha
Counsel for the Respondents:
A.G.A., Sri Rajiv Sharma
Cr.P.C. Section-372-Right to appeal against
acquittal-appeal by 'victim' as defined
under Section 2(wa)-whether a guardian or
legal heirs of victim can be allowed to
prefer appeal on behalf of victim?-question
referred to larger Bench.
Held: Para-25
Considering the aforesaid position that
emerges, we find that it is necessary to refer
this question of the maintainability of an
appeal on behalf of a person claiming to be a
"victim" for an authoritative pronouncement
by a Larger Bench as in view of the decisions
aforesaid it will be difficult to agree with the
view expressed by the Division Bench in the
case of Edal Singh (Supra) decided on
10.4.2014.
Consequently,
the
following
questions are referred for being placed
before a Larger Bench to answer the
aforesaid
issue
in
the
light
of
the
observations made herein above namely:
1. "Whether the definition of the word
"victim" as used in Section 2 (wa) would
mean
any
person
other
than
a
"guardian" or "legal heir" also for the
purpose of maintaining an appeal under
Section 372 Cr. P.C."
2. Whether the ratio of the decision of the
Division Bench of this Court in the case of
Edal Singh Vs. State (Supra) states the law
correctly keeping in view the conflicting
ratios of the Full Bench decision of the
Punjab & Haryana High Court in the case of
M/s. Tata Steel Ltd. (Supra) and that of the
Patna
High
Court
in
the
case
of
Parmeshwar Mandal (Supra).
Case Law discussed:
(2001) 3 SCC 462; (1985) 2 SCC 537; (2001) 6
SCC 338; (2010) 6 SCC 1; (2010) 12 SCC 599;
(2014) 4 SCC 252; (2014) 1 P.L.R. 1; Criminal
Appeal (DB) No. 1078 of 2012; D.B. Criminal
Revision Petition No. 411 of 2012; Crl. Misc.
application u/s 372 Cr.P.C. (Leave to Appeal)
No. 172 of 2014.
(Delivered by Hon'ble Amreshwar Pratap
Sahi, J.)
1.
Heard Sri Satish Chandra Sinha,
learned counsel for the appellant and Sri
Rajiv Sharma for the State.
2. This appeal has been preferred under
Section 372 Cr. P.C. along with Delay
Condonation Application. At the time of
entertaining the same following order was
passed by the Division Bench on 31.05.2013 :
"This application for grant of leave
to appeal has been filed by Manoj Kumar