Harish Chandra Pathak vs State of U. P.

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2023 Supreme(All) 2240

IN THE HIGH COURT OF ALLAHABAD
DEVENDRA KUMAR UPADHYAYA, OM PRAKASH SHUKLA, JJ.
Harish Chandra Pathak - Appellant
Versus
State of U.P. And Others - Respondents
SPECIAL APPEAL NO. - 163 OF 2023.
Decided On : 10-04-2023

Advocates appeared:
For the Appellant : Santosh Kumar Gupta.
For the Respondent: C.S.C.

Headnote:(A) Indian Penal Code, 1860 - Sections 419, 420, 467, 468, and 471 - Home Guard Recruitment - Appeal against dismissal of reinstatement petition due to pending criminal case - Authority's refusal based solely on pendency not justified - Honourable Supreme Court principles highlight need for context in considering criminal involvement - Relevant Government Order stipulations acknowledged but not adhered to - Past orders failing to consider critical aspects of appellant's situation. (Paras 7, 8, 9, 15, 16)

(B) Administrative Law - Right to livelihood - Court emphasizes that pending criminal cases do not inherently determine guilt and should not preclude engagement in service without careful consideration of the nature of the allegations. (Paras 9, 15)

Facts of the case:
The appellant was engaged as a Home Guard and had a criminal FIR registered against him in 2015 for various offences, which led to the cancellation of his enrollment due to the pendency of the case. The appellant contested that the FIR was trivial and related to a family dispute. The orders rejecting his reinstatement petitions were challenged. (Paras 3, 4, 8)

Findings of Court:
Orders denying re-engagement based solely on the criminal case's pendency were found lacking in proper reasoning and consideration of the Government Order directives regarding Home Guards. The court directed reinstatement, stressing careful assessment of circumstances before termination decisions. (Paras 17, 18)

Issues: The main issues were the legitimacy of rejecting the appellant's re-engagement based on the pending criminal case and the proper interpretation of relevant Government Orders and Supreme Court precedents. (Paras 7, 9)

Ratio Decidendi: The court ruled that without a charge-sheet, simply having a pending criminal case is insufficient for denying reinstatement and emphasized the need for a nuanced analysis of each case regarding criminal involvements. (Paras 9, 15)

Result: Special appeal allowed.

Table of Content
1. appellant's background and procedural history (Para 2 , 3 , 4 , 5 , 6)
2. arguments against the legality of cancellation of engagement (Para 7 , 8 , 9 , 10)
3. dispute over factual considerations in judgment (Para 11 , 12)
4. clarification of government policy on re-engagement (Para 13)
5. court's critical review of prior decisions (Para 14 , 15 , 16)
6. final ruling on re-engagement and procedural direction (Para 17 , 18 , 19)

JUDGMENT

Heard Shri Santosh Kumar Gupta, learned Counsel for the appellant and learned Standing Counsel for the State/ respondents.

2. This intra Court appeal under Chapter VIII Rule 5 of the ALLAHABAD HIGH COURT RULES , 1952 has been preferred by the appellant, Harish Chandra Pathak, assailing the judgement and order dated 28.03.2023 passed by the learned Single Judge, by which Writ-A No. 2495 of 2023 preferred by the writ petitioner/ appellant has been dismissed and liberty has been granted to the writ petitioner/appellant to apply for his reinstatement in service, in case he is acquitted of the offence and in that regard it has also been directed that the authority may take a view as per the relevant Government Order.

3. The brief facts of the case culled out from the record are that on 10.07.1990, the appellant was enrolled/engaged as Home Guard and while working as such, an F.I.R., bearing Case Crime No. 1049 of 2015, under Sections 419 , 420, 467, 468 and 471 I.P.C., was registered against him at police station Kotwali Utraula, district Balrampur. However, he was granted bail in the aforesaid criminal case by the learned Single Judge vide order dated 14.06.2016 passed in Bail No. 3216 of 2016.

4. By order dated 09.01.2020, the District Commandant (Home Guard), District Balrampur, had cancelled the enrollment of the appellant as Home Guard on the ground of pendency of the aforesaid criminal case. Aggrieved by the aforesaid order dated 09.01.2020, the appellant preferred an appeal, which was rejected vide order dated 24.04.2020.

5. The appellant, being aggrieved by the aforesaid two orders i.e. dated 09.01.2020 and 24.04.2020, preferred Writ Petition No. 21900 (S/S) of 2020 : Harish Chandra Pathak v. State of U.P. and others, which was disposed of by the learned Single Judge vide order dated 12.01.2023, granting liberty to the appellant to make a fresh detailed representation to District Commandant (Home Guard), Balrampur, who was required to consider and decide the same in accordance with law by a reasoned and speaking order.

6. Pursuant to the aforesaid order dated 12.01.2023, the appellant has preferred a representation dated 17.01.2023, which was rejected vide order dated 21.02.2023. Thereafter, the appellant preferred Writ-A No. 2495 of 2023, challenging the aforesaid orders dated 21.02.2023, 24.04.2020 and 09.01.2020. The learned Single Judge dismissed the aforesaid writ petition by means of order dated 28.03.2023, which is impugned in the instant special appeal.

7. The contention of the learned Counsel for the appellant is that the denial of engagement to the appellant by means of orders dated 09.01.2020, 24.04.2020 and 21.02.2023, is bad in law for two reasons; firstly, that a plain reading of the FIR merely discloses an offence of trivial nature and was an outcome of the family dispute in which civil litigation is also pending; secondly, he argues that seeing the allegations levelled against the appellant, his case ought to have been considered in the light of the judgement of the Hon'ble Supreme Court in the case of Avatar Singh v. Union of India and others : (2016) 8 SCC 471.

8. Inviting our attention to Clause 9 (ka) of the Government Order dated 02.12.2016, learned Counsel for the appellant has argued that clause 9 (ka) of the Government Order dated 02.12.2016 clearly provides that representation regarding reinstatement of the Home Guard shall not be considered, if criminal case is registered against Home Guard and on filing charge-sheet before the Court, the case is pe