# Veer Bahadur Singh v. The State of U.P. & Ors

- **Citation:** Special Appeal No. 104 of 2020
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-02-26
- **Case number:** Special Appeal No. 104 of 2020
- **Bench:** Biswanath Somadder, Dr. Yogendra Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/veer-bahadur-singh-v-the-state-of-u-p-ors-46255
- **Pages:** 6

## Headnote

(A) Civil Law-U.P. Cooperative Societies
Employees' Service Regulations, 1975-
Regulation 83(i), 85(vi)(c), proviso to
85(vi)(c) and clause (g) - Harmonious
construction of statutes - on combined
reading it is inferred that the suspension
of an employee arrested for debt or on a
criminal charge is obligatory and is to be
made effective from the date of his arrest
and the same is to continue for the period
during which he is so detained in custody
or is undergoing imprisonment

Where alternate construction are possible while
interpreting a statutory provision, the Court
must choose the one which will be in accord
with the other parts of the statute and ensure
its smooth, harmonious working, and eschew
the other which leads to absurdity, confusion or
friction, contradiction and conflict between its
various provisions, or undermines, or tends to
defeat or destroy the basic scheme for the
purpose of enactment. (para 10)
In the said circumstance, the provision under
clause (e) of Regulation 85 with regard to
3-5 All. Veer Bahadur Singh Vs. The State of U.P. & Ors.
889
suspension not taking retrospective effect would
not be applicable in a case where the
suspension has been made under clause (i) of
Regulation 83 for the reason that the employee
has been arrested on a criminal charge. The
suspension order having been passed as a
consequence of the deeming provision under
the Regulations, the validity of the same cannot
be assailed by raising a plea of retrospectivity.
(Para 12)

Special Appeal Rejected. (E-10)

## Text

888 INDIAN LAW REPORTS ALLAHABAD SERIES
information having a bearing on his
character and antecedents, cannot be
faulted with.

41. In terms of the principles laid
down in the case of Avatar Singh (supra),
referred to above, information given to the
employer by a candidate as to the pendency
of a criminal case whether before or after
entering into service must be true and there
should be no suppression or false mention
of required information. There is thus a
clear obligation cast upon a prospective
candidate to make a candid and truthful
disclosure in respect of the information
sought in the verification form. Nondisclosure or concealment of the material
facts would have a direct link to the
suitability of the person for being appointed
in service.

42.

Having
regard
to
the
aforementioned facts and circumstances,
we are unable to persuade ourselves to
agree with the reasoning given and the
order passed by the learned Single Judge
while allowing the writ petition.

43. The judgment dated 21.10.2019
passed by the writ Court having been
founded on a wrong premise that there was
no requirement in the verification form
with regard to disclosure of information
regarding pendency of any case, the same
cannot be legally sustained.

44. The judgment and order dated
21.10.2019 passed in Writ-A No. 37611 of
2002 (Rajiv Kumar Singh Vs. Director
General/R.P.F. and others) is, therefore,
liable to be set aside and is accordingly set
aside.

45. The special appeal is accordingly
allowed.

46.

The
writ
petition
stands
dismissed.
----------
(2020)03-05ILR A888
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 26.02.2020

BEFORE

THE HON'BLE BISWANATH SOMADDER, J.
THE HON'BLE DR. YOGENDRA KUMAR
SRIVASTAVA, J.

Special Appeal No. 104 of 2020

Veer Bahadur Singh ...Appellant
Versus
The State of U.P. & Ors. ...Respondents

Counsel for the Appellant:
Sri Piyush Asthana

Counsel for the Respondents:
Sri Manoj Nigam

(A) Civil Law-U.P. Cooperative Societies
Employees' Service Regulations, 1975-
Regulation 83(i), 85(vi)(c), proviso to
85(vi)(c) and clause (g) - Harmonious
construction of statutes - on combined
reading it is inferred that the suspension
of an employee arrested for debt or on a
criminal charge is obligatory and is to be
made effective from the date of his arrest
and the same is to continue for the period
during which he is so detained in custody
or is undergoing imprisonment

Where alternate construction are possible while
interpreting a statutory provision, the Court
must choose the one which will be in accord
with the other parts of the statute and ensure
its smooth, harmonious working, and eschew
the other which leads to absurdity, confusion or
friction, contradiction and conflict between its
various provisions, or undermines, or tends to
defeat or destroy the basic scheme for the
purpose of enactment. (para 10)
In the said circumstance, the provision under
clause (e) of Regulation 85 with regard to
3-5 All. Veer Bahadur Singh Vs. The State of U.P. & Ors.
889
suspension not taking retrospective effect would
not be applicable in a case where the
suspension has been made under clause (i) of
Regulation 83 for the reason that the employee
has been arrested on a criminal charge. The
suspension order having been passed as a
consequence of the deeming provision under
the Regulations, the validity of the same cannot
be assailed by raising a plea of retrospectivity.
(Para 12)

Special Appeal Rejected. (E-10)

(Delivered by Hon'ble Biswanath Somadder, J.
&
Hon'ble Dr. Yogendra Kumar Srivastava, J.)

1. The present Special Appeal has
been filed against the judgment and order
dated 20th December, 2018, passed in WritA No.27513 of 2018 (Veer Bahadur Singh
Vs. State of U.P. and two others), whereby
the writ petition has been dismissed.

2. The appellant before us is the writ
petitioner.

3. The contention raised by the
appellant-writ petitioner that the suspension
order could not have been passed with
retrospective effect, has been dealt with by
the learned Single Judge by referring to the
provisions contained under the Uttar
Pradesh Cooperative Societies Employees'
Service Regulations, 1975.

4. For ease of reference, the relevant
provisions under the aforesaid Regulations
are being extracted below:-

"83. (i) An employee arrested for
debt or on a criminal charge shall be placed
under suspension from the date of his
arrest:

Provided that if he is released on
bail or on recognizance, he may with the
approval of the Registrar, be permitted to
resume and continue on duty until charges
are framed against him by the trying Court:

Provided further that his duties
may be varied if continuance on original
duty be inexpedient or prejudicial to the
interest of the society in the opinion of the
Registrar or the appointing authority.

(ii)
An
employee
who
is
convicted of a criminal charge involving
moral turpitude by a Criminal Court shall
be liable to dismissal.

Explanation.--"Conviction"
means sentence of punishment, fine or
both.

x x x x x

85. Disciplinary proceedings.--
(i) The disciplinary proceedings against an
employee shall be conducted by the
Inquiring Officer (referred to in clause (iv)
below) with due observance of the
principles of natural justice for which it
shall be necessary that--

(a) .....................

(b) .....................

(c) ......................

(ii) (a) Where an employee is
dismissed or removed from service on the
ground of conduct which has led to his
conviction on a criminal charge; or

(b) Where the employee has
absconded and his whereabouts are not
known to the society for more than three
months; or

(c) Where the employee refuses
or fails without sufficient cause to appear
before
the
Inquiring
Officer
when
specifically called upon in writing to
appear; or

(d) Where it is otherwise (for
reasons to be recorded) not possible to
communicate with him, the competent
authority
may
award
appropriate
punishment without taking or continuing
disciplinary proceedings.
890 INDIAN LAW REPORTS ALLAHABAD SERIES

(iii)
Disciplinary
proceedings
shall be taken by the society against the
employee on a report made to this effect by
the inspecting authority or an officer of the
society under whose control the employee
is working.

(iv) The Inquiring Officer shall be
appointed by the appointing authority or by
an officer of the society authorised for the
purpose by the appointing authority:

Provided that the officer at whose
instance disciplinary action was started
shall not be appointed as an Inquiring
Officer nor shall the Inquiring Officer be
the appellate authority.

(v) In the case of an erring
employee falling in sub-section (c) of
clause (i) or sub-clause (a) of clause (ii) of
Regulation
No.5,
the
committee
of
management of the society, and if so
provided in the bye-laws the Chairman or
the Secretary of the society, shall draw up a
duplicate
charge-sheet
against
the
employee
and
the
same
shall
be
communicated to the parent employer who
shall, if prima facie case has been made out
by the reporting authority, withdraw him
from the society and take disciplinary
action against him.

(vi) An employee other than one
referred to in clause (v) may be placed
under
suspension
in
the
following
circumstances by the appointing authority
or any other officer authorised for the
purpose--

(a) when the said authority is
satisfied that a prima facie case exists,
which is likely to result in the removal,
dismissal or reduction in rank of the
employee;

(b) when an enquiry into his
conduct is immediately contemplated or is
pending and his further continuance on his
post is considered detrimental to the
interest of the society;

(c) when a complaint against him
of any criminal offence is under police
investigation for which he has been
arrested or he is undergoing trial in a court
of law for offence under the Indian Penal
Code, U.P. Co-operative Societies Act,
1965 or any other Act or charges have been
framed against him by the criminal court:

Provided that suspension shall be
obligatory where it is called for in terms of
clause (i) of Regulation No.83.

(vii) (a) An employee under
suspension shall be entitled to a subsistence
allowance as per relevant rules applicable
to State Government employees from time
to time:

Provided that an employee who is
under suspension on the date of coming
into force of these regulations shall
continue to draw such portion of pay and
such allowances as he was allowed to draw
for the period of suspension:

Provided further that no payment
of the subsistence allowance shall be made
unless the employee has furnished a
certificate, and the authority passing the
order of suspension is satisfied that the
employee was not engaged in any other
employment,
business,
profession
or
vocation and had not earned remuneration
therefor
during
the
period
under
suspension.

(b) (1) When an employee is
reinstated, the authority competent to order
the reinstatement shall make specific order
regarding pay and allowances to be paid for
the period of suspension and whether or not
the said period shall be treated as a period
spent on duty:

Provided that where the authority
passing the order of reinstatement is of the
opinion that the employee has been fully
exonerated or the suspension was wholly
unjustified, the employee shall be given the
full pay and allowances to which he would
3-5 All. Veer Bahadur Singh Vs. The State of U.P. & Ors.
891
have been entitled had he not been
suspended.

(2) In cases not covered by the
proviso to foregoing sub-clause (1) the
employee shall be given such proportion of
pay and allowance as the competent
authority may order.

(c) In cases falling under proviso
to clause (b)(1) the period of suspension
shall be treated as a period spent on duty
for all purposes.

(d) In cases falling under clause
(b)(2) the period of suspension shall not be
treated as a period spent on duty, unless the
competent authority specifically directs that
it shall be so treated.

(e) The order of suspension shall
not take retrospective effect.

(f) Leave shall not be granted to
an employee under suspension.

(g) An employee against whom
proceedings have been taken either for his
arrest for debt or a criminal charge or who
is detained under any law for preventive
detention shall be considered as under
suspension for the period during which he
is so detained in custody or is undergoing
imprisonment and not be allowed any pay
and allowances other than the subsistence
allowance admissible under sub-clauses (a)
and (b) for such period until the termination
of the proceedings taken against him or
until he is released from detention and
allowed to rejoin duty as the case may be.

(viii) In case of fine, the total
amount of fine shall not exceed half
month's pay or maximum fine, chargeable
under the Payment of Wages Act, 1936,
where this Act is applicable to the
employee concerned and it shall be
deducted
from
his
pay
in
monthly
instalments, each such instalment not
exceeding one-fourth of his monthly salary.

(ix) The order of suspension may
be revoked by--

(a) the authority which passed the
orders, or

(b) the appointing authority, if
there are sufficient reasons for revocation
and the same shall be recorded in the order
of revocation.

(x) No employee shall ordinarily
remain under suspension for more than 6
months:

Provided that this conduction
shall not apply to such cases where the
suspension is made on criminal charges on
the direction of the Court."

5. The learned Single Judge has
referred to Regulation 83(i) wherein it is
provided that an employee arrested for debt
or on a criminal charge shall be placed
under suspension from the date of his
arrest. Further, notice has been taken of
clause (vi)(c) under Regulation 85 which
provides for placing an employee under
suspension in the circumstance when a
complaint against him of any criminal
offence is under police investigation for
which he has been arrested or he is
undergoing trial in a court of law for an
offence under the Indian Penal Code, U.P.
Cooperative Societies Act, 1965 or any
other Act or in a case where charges have
been framed against him by the criminal
court. The proviso to the aforesaid clause
(vi)(c) makes the suspension obligatory
where it is in terms of clause (i) of
Regulation 83.

6. The learned Single Judge has held
that the provision under clause (vii)(e) of
Regulation 85, which was sought to be
relied upon by the writ petitioner to
contend that suspension shall not take
retrospective effect would not be applicable
in the case at hand for the reason that the
suspension in this case was covered under
clause (vi)(c) of Regulation 85, and the
892 INDIAN LAW REPORTS ALLAHABAD SERIES
proviso
contained
therein
made
the
suspension obligatory in a case where the
same was in terms of clause (i) of
Regulation 83.

7. Notice may also be taken of clause
(g) of Regulation 85 wherein it is provided
that
an
employee
against
whom
proceedings have been taken either for his
arrest for debt or a criminal charge or who
is detained under any law for preventive
detention shall be considered as under
suspension for the period during which he
is so detained in custody or is undergoing
imprisonment and would not be allowed
any pay and allowances other than the
subsistence allowance admissible under
sub-clauses (a) and (b) for such period until
the termination of the proceedings taken
against him or until he is released from
detention and allowed to rejoin duty as the
case may be.

8. It is, therefore, seen that in terms of
Regulation 83(i) an employee arrested for
debt or on a criminal charge is required to
be mandatorily placed under suspension
from the date of his arrest. Furthermore,
under clause (vi)(c) of Regulation 85 the
employee is to be placed under suspension
in the circumstance when a complaint
against him of any criminal offence is
under police investigation for which he has
been arrested or he is undergoing trial in a
court of law for an offence under the Indian
Penal Code, U.P. Cooperative Societies
Act, 1965 or any other Act or charges have
been framed against him by the criminal
court.

9. The proviso to clause (vi)(c) makes
the suspension obligatory where the same
is in terms of clause (i) of Regulation No.
83. Also, under clause (g) of Regulation 85,
the employee against whom proceedings
have been taken for arrest is to be
considered as under suspension for the
period for which he is so detained in
custody or is undergoing imprisonment.
The provisions contained under Regulation
83 and Regulation 85 have to be read in
their entirety and are required to be given a
harmonious construction.

10. We may, in this regard, reiterate
the
settled
principle
of
statutory
construction
that
where
alternative
constructions
are
possible
while
interpreting a statutory provision, the Court
must choose the one which will be in
accord with other parts of the statute and
ensure its smooth, harmonious working,
and eschew the other which leads to
absurdity,
confusion
or
friction,
contradiction and conflict between its
various provisions, or undermines, or tends
to defeat or destroy the basic scheme for
the purpose of enactment.

11. A combined reading of the
provisions contained under clause (i) of
Regulation 83, clause (vi)(c) and the
proviso thereof of Regulation 85, as also
clause (g) of Regulation 85, lead to the
inference that suspension of an employee
arrested for debt or on a criminal charge is
obligatory and is to be made effective from
the date of his arrest and the same is to
continue for the period during which he is
so detained in custody or is undergoing
imprisonment.

12. In the said circumstance, the
provision under clause (e) of Regulation 85
with regard to suspension not taking
retrospective effect would not be applicable
in a case where the suspension has been
made under clause (i) of Regulation 83 for
the reason as that the employee has been
arrested
on
a
criminal
charge. The
3-5 All. Raghvendra Pratap Singh & Ors. Vs. State of U.P. & Ors.
893
suspension order having been passed as a
consequence of the deeming provision
under the Regulations, the validity of the
same cannot be assailed by raising a plea of
retrospectivity. The contention raised by the
learned counsel for the appellant-writ
petitioner in this regard therefore has
rightly been rejected.

13. After considering the submissions
made by the learned advocates for the
parties and upon perusing the impugned
judgment and order, we notice that the
same has been rendered by the learned
Single Judge with cogent and justifiable
reasons.

14. In an Intra-Court Special Appeal,
no interference is usually warranted unless
palpable infirmities or perversities are
noticed on a plain reading of the impugned
judgment and order. In the facts and
circumstances of the instant case, on a plain
reading of the impugned judgment and
order, we do not notice any such palpable
infirmity or perversity. As such, we are not
inclined to interfere with the impugned
judgment and order dated 20th December,
2018.

15. For reasons stated above, the
Special Appeal is liable to be dismissed and
stands, accordingly, dismissed.
----------
(2020)03-05ILR A893
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 06.05.2020

BEFORE
THE HON'BLE PANKAJ KUMAR JAISWAL, J.
THE HON'BLE KARUNESH SINGH PAWAR,
J.

Special Appeal No. 156 of 2019 and 157 of 2019
connected with
Special Appeal Defective No. 176 of 2019 and
other cases

Raghvendra Pratap Singh & Ors.
 ...Appellants
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Appellants:
Amrendra Nath Tripathi, Durga Prasad
Shukla

Counsel for the Respondents:
C.S.C., Abhisar Dev, Agnihotri Kumar
Tripathi, Ajay Kumar, Ajit Shukla, Amit Kr.
Singh
Bhadauriya,
Anand
Nandan,
Ashutosh, Atul Yadav, HN Singh, Haridhwar
Singh
Kushwaha,
Himanshu
Raghave,
Krishna Vishwakarma, Lal Bahadur Singh,
Neeraj Kandpal, Neha Singh, Om Prakash
Nag, Palash Yadav, Pankaj Verma, Pawan
Kumar Maurya, Raghunath Prasad, Rahul
Kumar Singh, Rahul Pandey, Rajesh Kumar
Verma, Ram Kumar Singh, Rishabh Kapoor,
Santosh Kr. Yadav "Warsi", Seemant Singh,
Varun Kumar Mishra, Vineet Mishra, Vishal
Kumar Yadav

(A) Eligibility Test - Assistant Teacher
Recruitment Examination (ATRE) are only
for qualification for recruitment not for
advertisement for recruitment - eligibility
tests are not meant for selection to any
post but is conducted to determine the
eligibility of the candidate for the post -

Once
Sikhsha
Mitras
attain
minimum
qualification they shall form a class of persons
and the benefit of judgment of Anand Kumar
Yadav can be extended.

(B) Minimum qualifying marks - Rule 2(x)
of U.P. Basic Education (Teachers) Service
Rules, 1981 - Government competent to
prescribe cut off marks for passing ATRE -
it is not necessary that the minimum
qualifying marks are to be provided before
examination starts - the principle that the
Rules of the game cannot be changed
once the game has started are not