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Service Law: Writ Petition Challenging Leave Without Pay After Availing Voluntary Retirement Dismissed

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This writ petition under Article 226 of the Constitution of India was filed to challenge a judgment and order dated 07.03.2019 passed by the U.P. State Public Service Tribunal, along with orders dated 29.01.2016 through which the petitioner’s absence from duty was sanctioned as leave without pay under Fundamental Rule 73, enabling his voluntary retirement. The petitioner sought back-salary for the period of his absence while simultaneously enjoying the benefits of the voluntary retirement granted on that very basis. The Allahabad High Court dismissed the petition, ruling that the petitioner’s conduct was barred by the doctrine of approbate and reprobate, as he could not accept the benefit of voluntary retirement while repudiating the conditional regularization of his unauthorized absence.

  • Unauthorized Absence and Regularization: The petitioner remained absent from duty and sought voluntary retirement due to physical problems. To rescue his service from interruption—which would have otherwise caused forfeiture of past service under Regulation 420 of the U.P. Civil Services Regulations—the department regularized his absence by sanctioning leave without pay.
  • Application of Fundamental Rule 85: Although the authorities mistakenly cited Fundamental Rule 73 instead of Fundamental Rule 85 (which grants absolute power to commute unauthorized absence retrospectively into extraordinary leave without pay), the technical misquotation did not invalidate the office memorandum.
  • Bar of Approbate and Reprobate: Citing the Supreme Court precedent Union of India v. N. Murugesan, the Court held that the petitioner’s conduct of taking the full fruit of voluntary retirement while challenging the denial of salary for the regularization period violates the equitable doctrine of approbate and reprobate (blowing hot and cold).
  • Dismissal of Petition: Finding no merit or bona fides in the challenge, the writ petition was dismissed, though the Court refrained from imposing costs considering that the petitioner had already retired back in 2016.

J.O. (Web) 2026 ALL 11

Vijay Singh v. State of U.P. Through Prin. Secy. Irrigation Deptt. Lko. And Ors. (D.O.J. July 8, 2026)

J.O. (Web) 2026 ALL 11 click here to view full text of judgment

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Why Revisions, Not Appeals, Govern First-Time Convictions by Appellate Courts

July 31, 2026 No Comments

The Supreme Court addressed a crucial legal question concerning the maintainability of a criminal appeal when an accused, initially acquitted by a trial court, is convicted for the first time by a Sessions Court in an appeal against acquittal. The appellant husband, who faced charges under Section 498-A of the IPC and Section 4 of the Dowry Prohibition Act, was acquitted by the Trial Court but subsequently convicted by the Sessions Court. When he challenged this conviction via a criminal appeal before the Madhya Pradesh High Court, his appeal was dismissed as non-maintainable, holding that only a revision petition lies. Upholding the High Court’s view, a two-judge bench of the Supreme Court held that since the right of appeal is strictly a creature of statute, Section 374 of the Code of Criminal Procedure, 1973 (corresponding to Section 415 of the Bharatiya Nagarik Suraksha Sanhita, 2023) does not contemplate a second appeal or an appeal against a judgment delivered by an appellate court. Consequently, the proper remedy against such a first-time appellate conviction is a criminal revision under Section 397 read with Section 401 of the CrPC. However, to prevent any prejudice due to the absence of a statutory first appeal, the Supreme Court clarified that High Courts must exercise their revisional powers with greater circumspection and can invoke powers akin to an appellate court under Section 401(1) to ensure comprehensive scrutiny.

1. Factual Background and Procedural History

  • Matrimonial Dispute: The marriage between the appellant (Vishnu Kumar Gupta) and respondent No. 2 took place in 2013, following which they moved to the US. After returning to India separately, the wife lodged a Zero FIR alleging cruelty and dowry demands, which led to a charge sheet and subsequent trial before the Judicial Magistrate First Class.
  • Trial Court Acquittal: The Trial Court thoroughly evaluated the evidence and acquitted the appellant and his family members by a judgment dated December 20, 2024.
  • Sessions Court Conviction: The complainant appealed under Section 378 CrPC (Section 419 BNSS). The Sessions Court partly allowed the appeal, acquitting the parents but convicting the appellant under Section 498-A IPC and Section 4 of the Dowry Prohibition Act, sentencing him to rigorous imprisonment.
  • High Court Dismissal: The appellant’s subsequent criminal appeal before the High Court under Section 374 CrPC was dismissed as non-maintainable, prompting the appeal before the Supreme Court.

2. Core Legal Issue

  • Whether an appeal under Section 374 CrPC (corresponding to Section 415 BNSS) is maintainable against a judgment of conviction recorded by a Sessions Court while exercising appellate jurisdiction and reversing an acquittal order passed by a Trial Court.

3. Observations and Findings of the Supreme Court

  • Appeal as a Creature of Statute: Reaffirming established jurisprudence, the Court emphasized that a right of appeal is not inherent or natural; it is strictly a creature of statute and cannot be expanded by courts on grounds of equity or convenience.
  • Interpretation of “On a Trial Held By”: Analyzing the phrase “convicted on a trial held by” under Section 374, the Court noted that it contemplates the court that originally conducted the trial (commencing with framing charges and concluding with judgment). A Sessions Court hearing an appeal against acquittal exercises appellate jurisdiction, not trial jurisdiction.
  • Overruling of Arun Sharma: The Court expressly overruled the Himachal Pradesh High Court’s decision in Arun Sharma v. State of Himachal Pradesh, which had held that an appeal against a first-time appellate conviction was maintainable under Section 374(2). The Supreme Court clarified that while an appeal is a “continuation of trial” for purposes like merger or suspension of sentence, it does not legally transform an appellate court into a court of first instance holding a trial.
  • The Correct Remedy — Revision (Section 397/401 CrPC): Since no statutory appeal is provided against an appellate conviction, the designated remedy is a criminal revision petition.
  • Safeguarding Accused Rights via Revisional Scope: Acknowledging the appellant’s concern that revision is narrower than an appeal, the Supreme Court highlighted that Section 401(1) of the CrPC empowers the High Court to exercise powers conferred on a court of appeal. Therefore, in revisions arising from a first-time appellate conviction (where the accused missed a statutory appeal stage), High Courts must adopt a more liberal and thorough approach to examine the correctness and legality of the conviction.

4. Final Outcome

  • The Special Leave Petition and the criminal appeal were dismissed, upholding the bar on filing an appeal under Section 374 CrPC against an appellate conviction.
  • The Supreme Court granted liberty to the appellant to file an appropriate criminal revision petition against the Sessions Court’s judgment.

2026 INSC 770

Vishnu Kumar Gupta v. State of Madhya Pradesh and Anr. (D.O.J. 30.07.2026)

2026 INSC 770 click here to view full text of judgment

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Validating Cooperative Rule Amendments and Reinstating Promotion Rights

July 31, 2026 No Comments

This civil appeal arose from a challenge to a promotion order dated December 30, 2010, whereby the appellant, S.P. Chandrakar, was promoted to the post of Additional Manager in the District Central Cooperative Bank Ltd. The promotion was challenged via a writ petition by respondent No. 5 (Kishor Bagh), which was allowed by the learned Single Judge thirteen years later and affirmed by the Division Bench of the High Court on the ground that Rule 5(3)(a) of the 1982 Rules could not be amended by a mere executive circular or letter issued by the Registrar of Cooperative Societies without following formal legislative amendment procedures.

The Supreme Court allowed the appeal and set aside the concurrent findings of the High Court. The Apex Court held that Section 55(1) of the Chhattisgarh Cooperative Societies Act, 1960 explicitly empowers the Registrar to frame and alter rules governing terms and conditions of employment. Furthermore, interpreting Section 95(3) of the Act, the Court held that the requirement of laying rules before the Legislative Assembly is directory rather than mandatory since the statute prescribes no nullification consequence for non-tabling. Consequently, the deletion of Rule 5(3)(a) via the Registrar’s circular was legally valid, restoring the appellant’s promotion along with protected seniority, consequential benefits, and 50% back wages.

  • Statutory Power to Amend:
    • Under Section 55(1) of the Chhattisgarh Cooperative Societies Act, 1960, the Registrar possesses the statutory authority to frame and modify terms and conditions of employment in cooperative societies.
    • The exercise of this power via the circular dated August 13, 2010, deleting Rule 5(3)(a) to enable technical employees to seek promotions, was lawful and well within jurisdiction.
  • Interpretation of “Shall” and Laying Clauses:
    • Relying on established constitutional benchmarks (State of U.P. v. Manbodhan Lal Srivastava and Atlas Cycle Industries Ltd. v. State of Haryana), the Court reiterated that the use of “shall” in a laying clause (Section 95(3)) is directory when the statute specifies no penal consequence for non-compliance.
    • The failure to table rules before the legislature does not invalidate delegated legislation or executive rules framed under enabling statutory provisions.
  • Nomenclature and Authority:
    • Quoting settled principles from Kiran Devi v. Bihar State Sunni Wakf Board, a wrong reference to a procedure or improper formatting of an official communication does not vitiate an action if the competent authority possesses the substantive legal power to execute it.
  • Relief Granted:
    • The Supreme Court set aside the judgments of the High Court and Single Judge.
    • The appellant was ordered to be restored to his position and status as Additional Manager with protected seniority, entitled benefits of promotion, and 50% back wages payable within two months, failing which 6% interest per annum would apply.

2026 INSC 769

S. P. Chandrakar v. State of Chhattisgarh & Ors. (D.O.J. 30.07.2026)

2026 INSC 769 click here to view full text of judgment

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Commutation and Release Based on Prolonged Incarceration

July 31, 2026 No Comments

This miscellaneous application was preferred by the applicant, Sudesh Pal, seeking a modification of a 2023 Supreme Court judgment that had confirmed his life imprisonment sentence arising from a 2003 murder case. The applicant sought relief on the grounds of old age, good conduct, prolonged incarceration (exceeding twenty-four years with remissions), and specifically on the principle of parity with a co-accused named Madan. Co-accused Madan—who originally faced the death penalty alongside the applicant at the trial stage—had his sentence modified by the Supreme Court to a fixed term of twenty years, leading to his release.

The Supreme Court accepted the applicant’s plea for parity. Although the State argued that Madan received a fixed term due to medical reasons, the Court observed that since the applicant had already undergone over twenty-four years of imprisonment with remissions and both were originally subject to the death penalty before subsequent commutations, equity and parity dictated that the applicant’s sentence should also be restricted to a fixed term of twenty years, enabling his release.

  • Background and Procedural History:
    • An FIR (No. 197 of 2003) was registered at Police Station Babri, Muzaffarnagar, under various provisions of the IPC, leading to the conviction of the applicant and co-accused Madan and Ishwar by the Sessions Court, where the applicant and Madan were initially sentenced to death.
    • The Allahabad High Court partly allowed the applicant’s appeal by converting his death penalty to life imprisonment, while upholding Madan’s death sentence.
    • Upon further appeal, the Supreme Court confirmed the applicant’s life sentence but converted Madan’s death penalty to a fixed term of twenty years without remission, resulting in Madan’s release.
  • Application of the Principle of Parity:
    • The applicant sought a modification of his sentence to a fixed term of twenty years, noting he had already completed over twenty-four years of imprisonment with remissions.
    • The State contested this, claiming Madan’s relief was tied to specific medical conditions not present in the applicant’s case.
    • The Supreme Court dismissed the State’s objection, ruling that the core nature of their original punishments (both having faced the death penalty) justified extending the benefit of parity to the applicant.
  • Final Relief:
    • The Court found that restricting the applicant’s life imprisonment to a fixed term of twenty years was equitable since co-accused Madan received the same benefit and was released.

2026 INSC 768

Sudesh Pal v. State of Uttar Pradesh (D.O.J. 30.07.2026)

2026 INSC 768 click here to view full text of judgment

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MACT: Fixing Insurer Liability and the Crucial Need for License Compliance

July 31, 2026 No Comments

This civil appeal arose from a motor accident that occurred on October 14, 2009, wherein the offending vehicle hit a two-wheeler, resulting in a major compensation claim. While the Motor Accidents Claims Tribunal (MACT) held the driver and owner liable—absolving the insurance company on the grounds that the driver lacked a valid driving license at the time of the accident—the Punjab and Haryana High Court reversed this finding and placed the liability on the appellant-insurer after accepting oral statements and communication letters regarding data transfer errors by transport authorities.

The Supreme Court allowed the insurer’s appeal, holding that the High Court erred in overlooking official documentary contradictions and secondary evidence rules under the Indian Evidence Act, 1872. The Apex Court confirmed that the driver did not possess a valid license during the interregnum period when the accident took place, thereby breaching insurance policy conditions. However, balancing equity, the Court invoked the “pay and recover” principle, allowing the insurer to recover the disbursed compensation from the owner and driver.

  • Validity of Driving License:
    • The evidence established that the driver’s license was not valid or duly renewed on the date of the accident (October 14, 2009), as a penalty for the gap period was subsequently paid.
    • The High Court placed undue reliance on oral testimonies and an administrative letter (Ex.RW3/B) citing data transfer losses from HCL to DIMTS, without supporting primary or corroborated secondary evidence.
  • Rules on Secondary Evidence:
    • Referring to statutory provisions and precedents on the Indian Evidence Act, 1872, the Court reiterated that primary evidence rules must be strictly adhered to, and secondary evidence is inadmissible unless foundational facts regarding the loss or non-production of original records are formally established.
  • Responsibility of Vehicle Owners:
    • Relying on benchmarks set in Beli Ram v. Rajinder Kumar and National Insurance Co. Ltd. v. Hem Raj, the Court emphasized that vehicle owners owe a duty to society to ensure that their employed drivers hold effective and continuously renewed licenses. Gross negligence in verifying license renewals constitutes a fundamental breach of insurance policy terms.
  • Final Relief and “Pay and Recover”:
    • The Supreme Court set aside the High Court’s judgment and restored the insurer’s right to avoid direct liability.
    • Because compensation was already disbursed to the claimants pursuant to interim directions, the Court applied the “pay and recover” principle, granting the appellant-insurer the liberty to recover the paid amount from the vehicle owner and driver in accordance with the law.

2026 INSC 767

Reliance General Insurance Company Ltd. v. Om Prakash & Ors. (D.O.J. 30.07.2026)

2026 INSC 767 click here to view full text of judgment

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