# Udai Narayan Awasthi v. State of U.P. & Ors

- **Citation:** (2015) 2 ILRA 956
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2015-07-10
- **Case number:** Criminal Revision No. 2317 of 2015
- **Bench:** Mrs. Vijay Lakshmi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/udai-narayan-awasthi-v-state-of-u-p-ors-43248
- **Pages:** 3

## Headnote

order
of
interim maintenance-ground that order
passed without opportunity-apparently
incorrect
as
revisionist
prayed
for
mediation-even
against
interlocutory
order-revision not maintainable.
Held:Para-7
2 All] Udai Narayan Awasthi Vs. State of U.P. & Ors.
957
So far as the order impugned in the present
revision is concerned, in view of the
aforesaid definition of interlocutory order, it
cannot be said that even if the revision is
allowed the proceedings under Section 125
Cr.P.C. would culminate as a whole.
Case Law discussed:
AIR 2001 SC 3625

## Text

956
 INDIAN LAW REPORTS ALLAHABAD SERIES
thereafter from the owner, following the
procedure which is laid down in Challa
Upendra Rao is a matter which is pending
reconsideration before a larger Bench of
the Supreme Court. However, as the
Supreme Court has held, the pendency of
the reference to a larger Bench by itself
does not mean that the same course
should not be followed in the meantime.
39. In these circumstances, we hold
that where the insurer is directed to pay
the amount in the first instance despite
having been held not to be under a legal
liability to pay the awarded amount, while
permitting the insurer to recover the
amount from the owner, the procedure
which has been laid down in Challa
Upendra Rao (supra) would have to be
followed. This would envisage that before
the amount is released to the claimant, the
owner of the offending vehicle shall
furnish security for the amount which the
insurer has to pay to the claimants. The
offending vehicle is to be attached as a
part of the security for the purpose of
recovering the amount from the insured.
The insurer shall not be required to file a
suit and may initiate a proceeding before
the executing Court. The executing Court
may
pass
appropriate
orders
in
accordance with law as to the manner in
which the insured, namely the owner of
the vehicle, shall make payment to the
insurer. In the event that there is any
default, it is open to the executing Court
to direct realisation by the disposal of the
securities to be furnished or from any
other property or properties of the owner
of the vehicle. In the event that the person
on whose behalf payment has been made
by the insurer, does not furnish security or
is not in a position to furnish security to
the insurer, the insurer should promptly
move the executing Court. The executing
Court shall then duly ensure that it
exercises all its available powers in
execution in accordance with law so that
while on one hand payment is made to the
person to whom it is due, the concerns of
the insurer are duly balanced. We may
only add here that all necessary and
proper steps should be taken by the
executing Court to ensure that the intent
and object of the legislature in enacting
the beneficial provisions of the Act is
duly preserved and are expeditiously
implemented.
40. The reference is answered in the
aforesaid terms. The FAFO shall now be
placed before the appropriate Bench
according to the roster of work for
disposal in the light of the answers
furnished above.
--------
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 10.07.2015
BEFORE
THE HON'BLE MRS. VIJAY LAKSHMI, J.
Criminal Revision No. 2317 of 2015
Udai Narayan Awasthi
 ...Applicant
Versus
State of U.P. & Ors.
...Opp. Parties
Counsel for the Applicant:
Sri Babu Lal Ram
Counsel for the Opp. Parties:
Govt. Advocate
Criminal
Revision-Against
order
of
interim maintenance-ground that order
passed without opportunity-apparently
incorrect
as
revisionist
prayed
for
mediation-even
against
interlocutory
order-revision not maintainable.
Held:Para-7
2 All] Udai Narayan Awasthi Vs. State of U.P. & Ors.
957
So far as the order impugned in the present
revision is concerned, in view of the
aforesaid definition of interlocutory order, it
cannot be said that even if the revision is
allowed the proceedings under Section 125
Cr.P.C. would culminate as a whole.
Case Law discussed:
AIR 2001 SC 3625
(Delivered by Hon'ble Mrs. Vijay Lakshmi, J.)
1. Heard learned counsel for the
revisionist
and
the
learned
A.G.A.
Perused the records.
2.
This criminal revision has been
preferred against the judgment and order
dated 11.6.2015 passed by Principal Judge,
Family Court, Kanpur Nagar in Case No.
939 of 2012 under Section 125 Cr.P.C.,
Police Station Kalyanpur, District Kanpur
Nagar whereby the court below while partly
allowing the application moved by the wife
praying for interim maintenance has directed
the revisionist/husband to pay Rs. 1500/- per
month to his wife and Rs. 1000/- per month
to his minor daughter (opposite party no. 3).
3. The revisionist has assailed the
impugned order mainly on the ground that
the court below has not considered the
objection filed by the revisionist during
the proceedings in the lower court.
4. A perusal of the impugned order
shows that the court below has recorded a
clear
finding
that
the
opposite
party/husband has appeared in the case on
6.1.2015 but despite having ample time
and opportunity, he has not filed any
objection against the application. The
order impugned also shows that on the
date of order, the husband was present in
the court and he had moved an application
for sending the matter to mediation
centre. Hence it cannot be said that the
revisionist was not given any opportunity
of hearing and as such there appears no
force in the contention of learned counsel
for the revisionist.
5. Moreover the impugned order is
clearly an interlocutory order passed at an
interim stage of the case whereby some
amount has been awarded to the destitute
wife and minor child to enable them to
survive and contest their case during its
pendency.
6. What is an interlocutory order is
defined by Hon'ble Apex Court in a
catena of judgments as under :-
"The safe test to decide if the
impugned order is an interlocutory or not
has been laid down by the Apex Court
through a series of decisions, and that is
whether
the
criminal
proceedings
challenged in revision would culminate
has a whole if the revision is allowed. If
yes, then the order is not interlocutory
although
if
crosspassed
at
any
interlocutory stage of the proceeding."
(Bhaskar Industries Ltd. V. Bhiwani
Denim and Apparels Ltd.; AIR 2001 SC
3625)
7. So far as the order impugned in the
present revision is concerned, in view of the
aforesaid definition of interlocutory order, it
cannot be said that even if the revision is
allowed the proceedings under Section 125
Cr.P.C. would culminate as a whole.
8. For the aforesaid reasons, the
instant revision which has been preferred
against an interlocutory order is liable to
be dismissed at the admission stage itself.
958
 INDIAN LAW REPORTS ALLAHABAD SERIES
9. Accordingly the revision is
dismissed.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 03.07.2015
BEFORE
THE HON'BLE SUDHIR AGARWAL, J.
THE HON'BLE BRIJESH KUMAR SRIVASTAVAII, J.
C.M.W.P. No. 2738 of 2011
Dr. Tarun Rajput
 ...Petitioner
Versus
State of U.P. & Ors.
...Respondents
Counsel for the Petitioner:
Sri Ashok Khare, Sri Siddharth Khare
Counsel for the Respondents:
C.S.C.
Constitution
of
India,
Art.-311(2)(3)-
Dismissal
on
ground
of
unauthorized
absence from duty-denying protection of
holding
departmental
proceeding
not
practicable-on ground due to unauthorized
absence-general public suffering as no fresh
incumbent could be appointed-held-factually
incorrect-in short period absence with
permission of authority cannot be treated
unauthorise
absence-nor
such
ground
available for refusal to hold departmental
enquiry under Rule 1999-dismissal order
quashed.
Held: Para-13
Even impugned order of termination was
served upon him while he was serving at the
aforesaid center. In the circumstances, it
cannot be said that departmental enquiry has
been
dispensed
with
validly
and
the
constitutional
protection
available
to
petitioner has been done away in the manner
permitted under Article 311(2) second proviso
(b). In fact, the aforesaid provision is not at all
attracted in the case in hand and without
application of mind, the appointing authority
has resorted to said power. In a wholly illegal
and
unconstitutional
manner,
it
has
terminated the petitioner. The correct way
would have been to initiate a departmental
enquiry against petitioner, serve a chargesheet upon him for alleged unauthorized
absence, if any, and thereafter to take
appropriate action in the light of findings
recorded by enquiry officer in a regular
disciplinary proceeding held in accordance
with
Rules,
1999.
Non
compliance
of
aforesaid
procedure
of
holding
of
departmental
enquiry,
and,
instead,
dispensation thereof in an illegal manner
renders
the
impugned
order
wholly
unconstitutional and void-ab-initio.
Case Law discussed:
(1985) 2 SCC 398; (1991) 1 SCC 362; AIR
2014 SC 2922
(Delivered by Hon'ble Sudhir Agarwal, J.)
1. Heard learned counsels for parties
and perused the record.
2. This writ petition is directed
against the order dated 03.05.2010
whereby petitioner along with other
officers working in Provincial Medical
and Health Service Cadre (hereinafter
referred to as "PHMS") has been
terminated by exercising power under
Article 311(2) and (3) of the Constitution
of India on the ground that he has been
continuously absent from service and for
this reason, neither the medical services
are being rendered to needy people, nor
any other person can be appointed, nor
even departmental enquiry is practicable
since the petitioner is continuously absent
and his whereabouts are not known.
3. Shri Ashok Khare, learned counsel
appearing for petitioner submitted that the
fact, that petitioner is continuously absent
and his whereabouts were not known is
factually incorrect, as the petitioner was
working and discharging his duties at