# Surendra Singh Thakur v. State of U.P

- **Citation:** (2013) 3 ILRA 1452
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2013-10-30
- **Case number:** Service Single No. 1605 of 2010
- **Bench:** Devendra Kumar Upadhyaya
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/surendra-singh-thakur-v-state-of-u-p-42724
- **Pages:** 9

## Headnote

Ranks(Punishment & Appeal) Rules 1991Rule8(2)(a) readwith 14(1)- Punishment
dismissal on account of conviction by
criminal court-appeal pending-conviction
order
suspended-enlarged
on
bailpunishment followed by show cause notice
and reply-without charge sheet without
finding
regarding
moral
turpitudeallegations-on refusal of repair to cycle due
to non payment of Rs. 100/--petitioner
abused by addressing cost-and tried to beat
by can-held penalty of dismissal for such
petty
attractions-wholly
unwarrantedreinstatement with half back wages.-given.
3 All] Surendra Singh Thakur Vs. State of U.P.
1453
Held: Para-26
The incident involving the petitioner which
resulted in his conviction by the learned
trial court, on the face of it, appears to have
occurred on account of sudden anger which
the petitioner might have been filled with
on account of demand of Rs.100/- which he
owed to the complainant for getting his
bicycle repaired. The offence, though entails
criminal
liability
and
if
proved,
is
punishable, is the result of some petty
altercation which took place between the
petitioner
and
the
complainant.
The
conduct of the petitioner in criminal law, if
established,
may
be
unpardonable,
however,
imposing
major
penalty
of
dismissal from service, in my considered
opinion, in the facts and circumstances of
the case, is wholly unwarranted.

Case Law discussed:
AIR 1985 SC 1416; (1985) 2 SCC 358

## Text

1452 INDIAN LAW REPORTS ALLAHABAD SERIES
th October, 2002 and parties were directed to
take steps for filing evidence by way of
affidavit etc. The High Court of Delhi
expressed the opinion that it can safely be
concluded that the actual trial commences
from 22nd October 2002 to 25 th October,
2002. The present application ( application
for amendment) was made on 8 th October,
2002 and hence would not fall within the
prohibition of amended Order VI Rule 17
C.P.C.

10. Order VI Rule 17 reads as under:

"Amendment
of
pleadings:
The
Court may at any stage of the proceedings
allow either party to alter or amend his
pleadings in such manner and on such
terms as may be just, and all such
amendments shall be made as may be
necessary for the purpose of determining
the real questions in controversy between
the parties.

Provided that no application for
amendment shall be allowed after the trial
has commenced, unless the Court comes
to the conclusion that in spite of due
diligence, the party could not have raised
the matter before the commencement of
the trial."

11. In the light of the principles for
amendment of the written statement as
above when I considered the facts of the
present case, I find that in the case at hand
the issues have been framed and the date
was fixed for production of evidence.
Meanwhile,
the
respondent/defendant
moved an application for amendment of
written statement. The Hon'ble Supreme
Court in the cases of Baldeo Singh (supra)
and Major General Madan Lal Yadav
(supra) has clearly held that the trial
commences with an examination of the
facts or law put in issue in a cause for the
purpose of determination of such issue.

12. In the light of the aforesaid
proposition laid down by Hon'ble the
Supreme Court, I am of the considered
opinion that in the case at hand the trial is
yet to commence. Therefore, I do not find
error in the order impugned, passed by the
revisional court.

13. In the result, the writ petition is
dismissed.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 30.10.2013

BEFORE
THE HON'BLE DEVENDRA KUMAR
UPADHYAYA, J.
Service Single No. 1605 of 2010

Surendra Singh Thakur ..Petitioner
Versus
State of U.P. ...Respondent

Counsel for the Petitioner:
Sri Ravi Singh, Sri N.C. Upadhyaya

Counsel for the Respondents:
C.S.C.

U.P. Police Officers of the Subordinate
Ranks(Punishment & Appeal) Rules 1991Rule8(2)(a) readwith 14(1)- Punishment
dismissal on account of conviction by
criminal court-appeal pending-conviction
order
suspended-enlarged
on
bailpunishment followed by show cause notice
and reply-without charge sheet without
finding
regarding
moral
turpitudeallegations-on refusal of repair to cycle due
to non payment of Rs. 100/--petitioner
abused by addressing cost-and tried to beat
by can-held penalty of dismissal for such
petty
attractions-wholly
unwarrantedreinstatement with half back wages.-given.
3 All] Surendra Singh Thakur Vs. State of U.P.
1453
Held: Para-26
The incident involving the petitioner which
resulted in his conviction by the learned
trial court, on the face of it, appears to have
occurred on account of sudden anger which
the petitioner might have been filled with
on account of demand of Rs.100/- which he
owed to the complainant for getting his
bicycle repaired. The offence, though entails
criminal
liability
and
if
proved,
is
punishable, is the result of some petty
altercation which took place between the
petitioner
and
the
complainant.
The
conduct of the petitioner in criminal law, if
established,
may
be
unpardonable,
however,
imposing
major
penalty
of
dismissal from service, in my considered
opinion, in the facts and circumstances of
the case, is wholly unwarranted.

Case Law discussed:
AIR 1985 SC 1416; (1985) 2 SCC 358

(Delivered by Hon'ble Devendra Kumar
Upadhyaya, J.)

1. Heard Sri N.C. Upadhyay, learned
counsel for the petitioner and learned
Standing Counsel appearing for the State.

2. The facts of the case which are not
in dispute are that the petitioner while posted
as Constable in the year 1998 at 30th Bn.
P.A.C., Gonda proceeded on sanctioned
earned leave for a period of 30 days w.e.f.
28.4.1998. During the period of leave,
arising out of an incident which occurred on
20.05.1998 involving the petitioner, an F.I.R.
was lodged at Case Crime No. 141 of 1998,
under Sections 323, 504, 506 I.P.C. and
Section 3(1)(x) of the Scheduled Castes and
the
Scheduled
Tribes
(Prevention
of
Atrocities) Act, 1989 against the petitioner at
Police Station Kulhui, District Mahrajganj.
The said case crime No.141 of 1998 resulted
in petitioner being charge-sheeted for the
aforesaid offences and ultimately the learned
Special Judge/Additional District Judge
(FTC), Court No.1, District Mahrajganj, vide
judgment and order dated 20.03.2009
convicted the petitioner of six months'
rigorous imprisonment with fine of Rs.
2,000/-, default whereof was to result in an
additional
three
months'
rigorous
imprisonment.

3. The said conviction order dated
20.03.2009 is under challenge before this
Court in Criminal Appeal No.1675 of
2009 wherein an order has been passed on
27.03.2009
whereby
petitioner
was
ordered to be released on bail during
pendency of appeal. In the said appeal,
this Court further passed an order on
08.04.2009
providing
therein
that
execution of sentence awarded to the
petitioner by the trial court shall remain
suspended till the disposal of appeal.

4. It is based on the aforesaid
conviction order that the petitioner has
been dismissed from service by the
impugned order dated 27.01.2010, passed
by the Commandant, 30th Bn. P.A.C.,
Gonda.

5. The impugned order mentions that
departmental proceedings under Rule 14 (1)
of the U.P. Police Officers of the Subordinate
Ranks (Punishment and Appeal) Rules,
1991(hereinafter referred to 'Rules, 1991')
were initiated against the petitioner and
concluded
by
the
Assistant
Commandant/Presiding Officer, 30th Bn.
P.A.C., Gonda who submitted his findings
on 20.08.2009 whereby recommendation
was made to dismiss the petitioner as
provided under Para 481 of the Police
Regulations.

6. The impugned order further states
that after receiving the findings from the
Assistant Commandant/Presiding Officer, a
1454 INDIAN LAW REPORTS ALLAHABAD SERIES
show cause notice dated 17.11.2009 was
issued proposing dismissal of the petitioner
from service and again petitioner was
served with show cause notice proposing
the punishment along with findings of the
Assistant Commandant/Presiding Officer
dated 20.08.2009 on 18.11.2009. Petitioner
in response to the aforesaid show cause
notice and findings dated 20.08.2009, after
seeking
time
on
several
occasions,
submitted his written explanation dated
22.01.2010 in which he stated that his past
service records of 23 years have all along
been spot-less and unblemished and further
that the incident involving him in criminal
case was a result of an old enmity in the
village and he is victim of the circumstances
on account of conspiracy hatched against
him by his Pattidar.

7. The impugned order further states
that during the period of earned leave on
20.05.1998 at around 8.00 A.M. some
altercation
took
place
between
the
complainant-Ram
Charan
Prasad,
S/o
Adharey Harijan concerning repair of
bicycle and further that petitioner, though,
had been getting his bicycle repaired yet he
did not pay the repair charges to the
complainant and owed Rs.100/- to him.
When, on account of unpaid Rs. 100/-, the
complainant refused to repair the bicycle of
the petitioner again, same was objected to
by the petitioner by calling names. The
impugned order also records that on
objection by the complainant, he was beaten
by cane by the petitioner and based on this
incident an F.I.R. was registered against the
petitioner under Sections 323, 504, 506
I.P.C. and 3(1)(x) of the Scheduled Castes
and the Scheduled Tribes (Prevention of
Atrocities) Act, 1989 on 21.05.1998.

8. The plea of pendency of the criminal
appeal and the interim order by which
sentence awarded to petitioner by the learned
trial court was suspended was also taken by
the petitioner in his written submission, which
too appears to have been considered in the
impugned order. However, placing reliance
on the Government Order dated 12.10.1979,
the Commandant, 30th Bn. P.A.C., Gonda
rejected the aforesaid claim based on
pendency of appeal and suspension of the
sentence by stating that it is very well
permissible in law to conduct departmental
proceedings without waiting for final result of
the appeal filed against the order of
conviction.

9. It is noticeable that impugned order
categorically mentions that after the petitioner
was convicted in the criminal case with six
months' rigorous imprisonment coupled with a
fine of Rs. 2,000/-,departmental proceedings
under Section 14(1) of aforementioned Rules,
1991 were conducted and statement of the
petitioner was also recorded and thereafter he
was furnished with the copy of the findings
along with show cause notice requiring him to
give reply. The Commandant while passing the
impugned order has stated that for conducting
departmental proceedings, it is not necessary
that conduct of the employee concerned
complained against should relate to his duty;
rather
any
misconduct
by
government
employee outside his duty can also be subject
matter of departmental proceedings. The
impugned order further states that even during
departmental proceedings, statement of the
petitioner was recorded by the Presiding
Officer and at that time petitioner did not make
any request to get any witness examined. The
impugned order, thus, states that the petitioner
is dismissed under Rule 4(1)(a) (i) of Rules,
1991 as per the provisions contained in Para
481 of the Police Regulations.

10. From the aforementioned facts
as culled from perusal of the impugned
3 All] Surendra Singh Thakur Vs. State of U.P.
1455
order and pleadings on record, solitary
issue which emanates for consideration by
the Court is as to whether the instant case
can be said to be a case of punishment of
dismissal under Rule 8 (2) (a) of Rules,
1991 or is it punishment of dismissal
referable to Rule 14(1) of the Rules, 1991.

11.

Though,
the
departmental
proceedings are said to have been instituted
and conducted purportedly following the
provisions of Rule 14 (1) of the Rules, 1991
but perusal of the record produced by the
respondents to the Court reveals that no such
departmental proceedings were conducted
along the lines of the provisions contained
under Rule 14(1) of the Rules, 1991. At this
juncture, it is relevant to observe that the
procedure
for
conducting
departmental
proceedings in cases referred to in Rule 5(1)
of the Rules, 1991 against any subordinate
police officer is required to be conducted in
accordance with the procedure laid down in
Appendix-I of the Rules, 1991. Rule 5(1) of
the Rules, 1991 provides that the cases in
which major punishments of dismissal or
removal from service or reduction in rank
including reduction to a lower scale or to a
lower stage in a time scale is to be passed shall
be dealt with in accordance with the procedure
laid down in sub-rule (1) of Rule 14 of the
Rules, 1991.

12. In the instant case, punishment of
dismissal from service is referable to Rule 4
(a) (i) and as such, if it is a case of
departmental proceedings, not covered by
Rule 8(2)(a) of the Rules,1991, then
procedure as prescribed in Appendix-I
appended to Rule 14(1) of the Rules 1991 was
required to be followed. Appendix-I appended
to Rule 14(1) of the Rules, 1991 is being
quoted below:-

Appendix I

PROCEDURE RELATING TO THE
CONDUCT
OF
DEPARTMENTAL
PROCEEDINGS
AGAINST
POLICE
OFFICER

[See Rule 14(1)]

"Upon institution of a formal enquiry
such police officer against whom the enquiry
has been instituted shall be informed in
writing of the grounds on which it is
proposed to take action and shall be afforded
an adequate opportunity of depending
himself. The grounds on which it is proposed
to take action shall be used in the form of a
definite charge or charges as in form 1
appended to these Rules which shall be
communicated to the charged police officer
and which shall be so clear and precise as to
give sufficient indication to the charged
police officer of the facts and circumstances
against him. He shall be required, within a
reasonable time, to put in, in a written
statement of his defence and to state whether
he desires to be heard in person. If he so
desires, or if the Inquiry Officer so directs an
oral enquiry shall be held in respect of such
of the allegation as are not admitted. At that
enquiry such oral evidence will be recorded
as the Inquiry Officer considers necessary.
The charged police officer shall be entitled to
cross-examine
the
witnesses,
to
give
evidence in person and to have such
witnesses called as he may wish: provided
that the Inquiry Officer may, for sufficient
reasons to be recorded in writing, refuse to
call a witness. The proceedings shall contain
a sufficient record of the evidence and
statement of the findings and the ground
thereof. The Inquiry Officer may also
separately from these proceedings make his
own
recommendation
regarding
the
punishment to be imposed on the charged
police officer."
1456 INDIAN LAW REPORTS ALLAHABAD SERIES

13. A perusal of the aforesaid
provision
contained
in
Appendix-I
appended to the Rules, 1991 reveals that
on institution of a formal enquiry, the
delinquent subordinate police officer is
required to be informed in writing the
grounds on which action is proposed to be
taken. It further provides that the grounds
on which action is proposed to be taken
shall be in the form of a definite charge or
charges, meaning thereby, in case of
departmental proceedings instituted or
initiated under Rule 14(1) of the Rules,
1991, the delinquent subordinate police
officer will be served with a charge sheet.
The said provision further provides that
charge so deduced in writing against the
charged officer shall be so clear and
precise as to give sufficient indication to
the charged police officer of the facts and
circumstances against him. The provision
further provides that written statement of
defence will be required to be submitted
on behalf of the charged officer and
further, evidence etc. is required to be
recorded by the Inquiry Officer. The
charged subordinate police officer is also
entitled to cross-examine the witnesses
and to give his own evidence. The
proceedings so conducted are required to
contain sufficient record of the evidence
and statement of the findings and the
grounds etc.

14. It does appear from perusal of the
impugned order that the matter at hand was
treated a case of departmental proceedings
by the respondents against the petitioner
referable to Rule 14(1) of the Rules, 1991,
as such what was legally incumbent upon
the respondents was that the petitioner
ought to have been served with charge sheet
as mandated in Appendix-I appended to the
Rules, 1991. Admittedly, no charge sheet to
the petitioner was ever served as per
requirement of Appendix-I appended to
Rule 14(1) inasmuch as petitioner was not
served with any charge sheet wherein the
charges against him, based on which action
was proposed to be taken, were definite,
clear or precise. What appears to have been
done in the instant case is that after
conviction order against the petitioner was
passed by the learned trial court on
20.03.2009, departmental proceedings were
said to have been instituted under Rule
14(1) of the Rules, 1991 and certain
findings of the Presiding Officer along with
show cause notice are also said to have been
served upon the petitioner. The petitioner,
however, was never served with any charge
sheet, neither any opportunity to him was
given to submit his written statement of
defence as mandated by the provision
contained in Appendix-I appended to Rule
14(1) of the Rules, 1991.

15. Thus, I have no hesitation to hold
that before passing impugned order of
dismissal from service, the procedure
prescribed for imposition of major penalty
of dismissal from service under Rule 5(1)
read with Rule 14(1)) and the Appendix-I
appended to Rules,1991 has not been
followed by the respondents in this case. In
such a situation, if it is assumed that it is a
case referable to Rule 14(1) of the Rules,
1991 as is reflected from perusal of the
impugned order, the impugned order is not
liable to be sustained for want of adherence
to the procedure prescribed for major
penalties under the Appendix-I appended to
the Rules, 1991, which makes the impugned
order completely vitiated.

16. Coming to the issue as to whether
the impugned order of dismissal can be
saved looking to the provisions contained in
Rule 8 (2) )(a) of the Rules,1991 which
provides that where the subordinate police
3 All] Surendra Singh Thakur Vs. State of U.P.
1457
officer is inflicted with either of the major
penalty or dismissal or removal or reduction
in rank on the ground of his conduct which
has led to his conviction on a criminal
charge, the Court may observe that in such
cases what needs to be examined while
judicially scrutinizing such dismissal order is
as to whether the penalty imposed is arbitrary
or grossly excessive being out of proportion
to the offence committed or whether the
penalty is not called for under the facts and
circumstances of the case.

17. In a case where punishment order
is passed under Rule 8 (2)(a) of the Rules,
1991,
departmental
proceedings
as
contemplated by the Rules, 1991 are not
required to be instituted or conducted. In
other words, if a person is dismissed on the
ground of his misconduct leading to his
conviction on a criminal charge, no
departmental enquiry needs to be conducted.

18. It is to be noticed, however, that
in the instant case the departmental
proceedings were conducted though, as
observed above, these proceedings were
not in consonance with the requirement of
Appendix-I appended to the Rules, 1991.

19. Rule 8(2) (a) of the Rules, 1991
appears to be in pari- materia with the
provision contained in Article 311 (2) (a) of
the Constitution of India which provides
that in case a government employee is
dismissed or removed or reduced in rank on
the ground of his conduct which has led to
his conviction on a criminal charge,
departmental proceedings were not required
to be conducted.

20. In the instant case, if it is
assumed that it is a case of punishment
under Rule 8 (2) (a) of the Rules, 1991,
what needs to be considered by the Court
is as to whether conduct of the petitioner
leading to his conviction in the criminal
case was such which warrants imposition
of penalty of dismissal from service.

21. In the leading case pertaining to
the aforesaid issue, Hon'ble Apex Court in
the case of Union of India and another Vs.
Tulsiram Patel, reported in AIR 1985
Supreme Court 1416 has observed that
where it comes to notice of the
disciplinary authority that government
servant has been convicted on a criminal
charge, the disciplinary authority must
consider whether his conduct which has
led to his conviction was such as it
warrants imposition of the penalty and, if
so, what penalty should be imposed. The
relevant observation made by the Hon'ble
Apex Court in the case of Union of India
and another Vs. Tulsiram Patel (Supra) in
para 127 is quoted below:-

"127. Not much remains to be said
about clause (a) of the second proviso to
Article 311(2). To recapitulate briefly,
where a disciplinary authority comes to
know that a government servant has been
convicted on a criminal charge, it must
consider whether his conduct which has
led to his conviction was such as warrants
the imposition of a penalty and, if so,
what that penalty should be. For that
purpose it will have to peruse the
judgment of the criminal court and
consider all the facts and circumstances of
the case and the various factors set out in
Challappan's case (AIR 1975 SC 2216).
This, however, has to be done by it ex
parte and by itself. Once the disciplinary
authority reaches the conclusion that the
government servant's conduct was such as
to require his dismissal or removal from
service or reduction in rank he must decide
which of these three penalties should be
imposed on him. This too it has to do by itself
1458 INDIAN LAW REPORTS ALLAHABAD SERIES
and
without
hearing
the
concerned
government servant by reason of the
exclusionary effect of the second proviso. The
disciplinary authority must, however, bear in
mind that a conviction on a criminal charge
does not automatically entail dismissal,
removal or reduction in rank of the concerned
government servant. Having decided which of
these three penalties is required to be imposed,
he has to pass the requisite order. A
government servant who is aggrieved by the
penalty imposed can agitate in appeal,
revision or review, as the case may be, that the
penalty was too severe or excessive and not
warranted by the facts and circumstances of
the case. If it is his case that he is not the
government servant who has been in fact
convicted, he can also agitate this question in
appeal, revision or review. If he fails in all the
departmental remedies and still wants to
pursue the matter, he can invoke the court's
power of judicial review subject to the court
permitting it. If the court finds that he was not
in fact the person convicted, it will strike
down the impugned order and order him to be
reinstated in service. Where the court finds
that the penalty imposed by the impugned
order is arbitrary or grossly excessive or out of
all proportion to the offence committed or not
warranted by the facts and circumstances of
the case or the requirements of that particular
government service the court will also strike
down the impugned order. Thus, in Shankar
Dass v. Union of India and another, [1985] 2
S.C.C. 358,: (AIR1985 SC 772) this Court set
aside the impugned order of penalty on the
ground that the penalty of dismissal from
service imposed upon the appellant was
whimsical and ordered his reinstatement in
service with full back wages. It is, however,
not necessary that the Court should always
order reinstatement. The Court can instead
substitute a penalty which in its opinion would
be just and proper in the circumstances of the
case."

22. It is well settled that conviction on
a criminal charge does not automatically
entail dismissal, removal or reduction in rank
of the government employee concerned.
What needs to be considered by the
disciplinary authority, if he proceeds to
impose penalty under Article 311 (2) (a) of
the Constitution of India or under Rule 8(2)
(a) of the Rules, 1991, is as to whether the
conduct leading to conviction of the
government servant in a criminal case is such
which will justify the penalty, major or
minor, to be imposed on the government
employee concerned. Further, in order to
arrive at such a decision, the disciplinary
authority/appointing authority is required to
consider the decision of the criminal court as
well as other facts and circumstances of the
case which led to his conviction. It may also
be observed that while arriving at the
decision of imposition of either of the major
penalties, in such case, the disciplinary
authority/appointing authority should keep in
mind the settled legal proposition that
conviction in every offence does not justify
imposition of penalty. Disciplinary Authority
should also bear in mind that the punishment
imposed should not be excessive, that is to
say, it must be commensurate with the
gravity of the conduct which led to the
conviction of the government servant on
criminal charge.

23. It is settled that it is not the
conviction itself which should be the basis of
any of the major penalty under Rule 8(2)(a)
of the Rules, 1991, rather it is the nature of
conduct leading to conviction in a criminal
case
on
which
decision
of
the
appointing/disciplinary authority should be
based. To put it differently, every conviction
will not result in imposition of a major
penalty under Rule 8(2)(a) of the Rules,
1991; rather it is the nature of conduct
leading to conviction in the criminal case
3 All] Surendra Singh Thakur Vs. State of U.P.
1459
which will be the determining factor for
taking a decision either to impose any of the
major penalties or any lessor penalty.

24. In the instant case, if the impugned
order is tested on the aforesaid legal
principal, the Court comes to the definite
conclusion that imposition of major penalty
of dismissal imposed upon the petitioner was
not warranted. The incident which led to
petitioner's conviction in the criminal case
appears to have arisen on account of a trivial
dispute of alleged non-payment of Rs. 100/-
which, according to the prosecution, the
petitioner owed to the complainant as repair
charges for getting his bicycle repaired.

25. Hon'ble Apex Court in the Case of
Shankar Dass Vs. Union of India, reported in
[1985] 2 SCC 358 has observed that
appointing authority cannot be permitted to
dismiss the government employee under
Clause (a) of the second proviso appended to
Article 311 (2) of the Constitution of India in
a huff. It specifically lays down that dismissal
order can be passed only on the ground of
conduct which has led to conviction of the
employee concerned on a criminal charge.
However, putting a word of caution, Hon'ble
Apex Court in the aforementioned case of
Shankar Dass Vs. Union of India (Supra)
further observed that power of dismissal in
such cases, like every other power, has to be
exercised fairly, justly and reasonably. The
relevant portion of the judgement of Hon'ble
Apex Court in the case of Shankar Dass Vs.
Union of India (Supra), which is embodied in
para-7 of the report, is extracted hereinbelow:-

"7. It is to be lamented that despite these
observations of the learned Magistrate, the
Government chose to dismiss the appellant in
a huff, without applying its mind to the penalty
which could appropriately be imposed upon
him in so far as his service career was
concerned. Clause (a) of the second proviso to
Article 311 (2) of the Constitution confers on
the Government the power to dismiss a person
from service "on the ground of conduct which
has led to his conviction on a criminal charge".
But, that power, like every other power, has to
be exercised fairly, justly and reasonably.
Surely the Constitution does not contemplate
that a Government servant who is convicted for
parking his scooter in a non- parking area
should be dismissed from service. He may,
perhaps, not be entitled to be heard on the
question of penalty since clause (a) of the
second proviso to Article 311(2) makes the
provisions of that article inapplicable when a
penalty is to be imposed on a Government
servant on the ground of conduct which has led
to his conviction on a criminal charge. But the
right to impose a penalty carries with it the duty
to act justly. Considering the facts of this case,
there can be no two opinions that the penalty of
dismissal from service imposed upon the
appellant is whimsical."

26. The incident involving the petitioner
which resulted in his conviction by the learned
trial court, on the face of it, appears to have
occurred on account of sudden anger which the
petitioner might have been filled with on
account of demand of Rs.100/- which he owed
to the complainant for getting his bicycle
repaired. The offence, though entails criminal
liability and if proved, is punishable, is the
result of some petty altercation which took
place
between the
petitioner and
the
complainant. The conduct of the petitioner in
criminal
law,
if
established,
may
be
unpardonable, however, imposing major
penalty of dismissal from service, in my
considered
opinion,
in
the
facts
and
circumstances
of
the case, is
wholly
unwarranted.

27. For the reasons given above, the
impugned order dated 27.01.2010, passed by
the Commandant, 30th Bn. P.A.C., Gonda
deserves to be quashed
1460 INDIAN LAW REPORTS ALLAHABAD SERIES

28. Accordingly, writ petition is
allowed and the impugned order of dismissal
dated
27.01.2010,
passed
by
the
Commandant, 30th Bn. P.A.C., Gonda as
contained in Annexure No.1 to the writ
petition is hereby quashed with a further
direction to the respondents to reinstate the
petitioner in service forthwith, say within a
period of six weeks from the date certified
copy of this judgement is served up on the
competent authority.

29. Regarding the back wages to be
paid to the petitioner from the date of order
of dismissal i.e. w.e.f. 27.01.2010 till his
reinstatement, the Court feels that interest of
justice would be served if the petitioner is
paid half of the total amount which would
have accrued to him had he continued in
service during this period. The said wages to
the petitioner shall be paid within a period of
three months from the date of production of a
certified copy of this judgment.

30. There will be no order as to cost.
--------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 12.11.2013

BEFORE
THE HON'BLE ARVIND KUMAR TRIPATHI(II),J.

Criminal Appeal (D) No. 2024 of 2011

Jawahar ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Petitioner:
Sri M.P. Yadav, Sri Brijesh Yadav 'Vijay'
Sri Satish Kumar Srivastava
Counsel for the Respondents:
G.A.

Criminal Appeal-against conviction under
section 498-A 304-B, 506 IPC read with 3/4
D.P.
Act-in
dying
declaration
nothing
whisper about demand of dowry-even in
FIR no such allegation found-demand of
money for consuming liquor-on denial
pouring kerosin oil and put fire on body of
deceased-offence under section 302 mad
out-according by conviction set-a-side-with
direction to frame additional charges under
section 302 IPC-conclude trail within 6
months-appeal allowed.

Held: Para-10 & 11
10. A perusal of dying declaration, which
has been proved by PW-6 clearly reveals
that it is a case in which death occurred due
to simple reason of some dispute between
husband and wife, and husband poured
kerosene oil and set her on fire and
prosecution has implicated four more
persons under Sections 498-A, 304-B, 506
IPC and Section 3⁄4 of the Dowry Prohibition
while the FIR and dying declaration does
not support the theory of demand of dowry
and cruelty for payment of dowry.

11. It is a case in which trial court should
have framed an additional charge of Section
302 IPC against Jawahar, but the trial court
has failed to do so even after dying
declaration of the deceased. Since Section
302 IPC is graver offence than Section 304-B
IPC, hence conviction of accused Jawahar
under Section 304-B IPC cannot be converted
in convicted of Section 302 IPC without
framing charge under Section 302 IPC.

Case Law discussed:
Crl. M.P. No. 23051 of 2010

(Delivered by Hon'ble Arvind Kumar Tripathi
(II), J.)

1. Instant criminal appeal has been
filed by the appellant Jawahar challenging
the order dated 25.7.2011 passed by the
Additional Sessions Judge/Special Judge,
E.C. Act, Court No.9, Sultanpur in Sessions
Trial No.7 of 2007 (Crime No.1001 of 2006,
under Sections 498-A, 304-B, 506 IPC and
Section 3/4 of the Dowry Prohibition Act,
Police
Station
Gosainganj,
District