# Anand Kumar Singh v. State of U.P. & Ors

- **Citation:** (2022) 11 ILRA 334
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-11-11
- **Case number:** Writ-A No. 8525 of 2022
- **Bench:** Mrs. Sangeeta Chandra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/anand-kumar-singh-v-state-of-u-p-ors-47822
- **Pages:** 7

## Headnote

Law
-
UP
Co-operative
Societies
Employees'
Service
Regulations, 1975 - Reg. 84(1) & 85(x)
-
Suspension
-
ReinSt.ment
with
punishment of stoppage of 3 increments
- Appeal against punishment was filed
before the Registrar, not before the
Board - Maintainability - Held, the
punishment that was imposed, was a
minor penalty and the petitioner ought
to have approached the Board - Since
withholding
of
increments
is
a
punishment mentioned under Sub-clause
(b) of Regulation No. 84, it is a minor
penalty and the petitioner should have
approached the Board. He wrongly filed
an appeal before the Registrar/Joint
Registrar/Deputy Registrar. The appeal
filed by the petitioner on 06.02.2021
shall be treated as non-est. (Para 19)
Writ petition disposed of. (E-1)
List of Cases cited:-

## Text

334 INDIAN LAW REPORTS ALLAHABAD SERIES

12. This Court in Writ A No. 3954 of
2011 (Gajendra Singh versus State of U.P.
and Others) and in Writ Petition No. 54673
of 2005 (Prem Pal versus State of U.P. and
others) as also in the case of Pankaj Singh
(Supra) and Gaurav Sngh Chauhan (Supra)
has considered the provisions of Government
Order dated 22.01.2000 which was issued
withdrawing the scheme of Compassionate
Appointment on the ground of financial
hardship faced by the U.P. State Agro
Industrial Corporation. The Court has also
considered the Resolution passed in the 146th
meeting of Board of Directors. The Court
came to the conclusion that in the absence of
any scheme for compassionate appointment
no mandamus can be issued to the U.P. State
Agro
Industrial
Corporation
to
grant
compassionate appointment to the writ
petitioners therein.

13. This Court in Special Appeal No.
1737 of 2011 (Jagdish Kumar versus State
of U.P. and Others) has also held that
Dying in Harness Rules, 1974 are not
applicable to the U.P. State Agro Industrial
Corporation.

14. This Court is of the considered
opinion that extra ordinary jurisdiction under
Article 226 of the Constitution of India
cannot be exercised by this Court directing
the respondents to give compassionate
appointment to the petitioner in the absence
of any scheme prevalent in the respondents
Corporation.

15. The writ petition stands dismissed.
----------
(2022) 11 ILRA 334
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 11.11.2022

BEFORE
THE HON'BLE MRS. SANGEETA CHANDRA, J.
Writ-A No. 8525 of 2022

Anand Kumar Singh ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Chandra Bhan Gupta, Sri H.R. Mishra (Sr.
Advocate)

Counsel for the Respondents:
C.S.C., Sri Jai Bahadur Singh

A.
Service
Law
-
UP
Co-operative
Societies
Employees'
Service
Regulations, 1975 - Reg. 84(1) & 85(x)
-
Suspension
-
ReinSt.ment
with
punishment of stoppage of 3 increments
- Appeal against punishment was filed
before the Registrar, not before the
Board - Maintainability - Held, the
punishment that was imposed, was a
minor penalty and the petitioner ought
to have approached the Board - Since
withholding
of
increments
is
a
punishment mentioned under Sub-clause
(b) of Regulation No. 84, it is a minor
penalty and the petitioner should have
approached the Board. He wrongly filed
an appeal before the Registrar/Joint
Registrar/Deputy Registrar. The appeal
filed by the petitioner on 06.02.2021
shall be treated as non-est. (Para 19)
Writ petition disposed of. (E-1)
List of Cases cited:-
1.
Committee
of
Management,
Krishna
Sahkari Awas Samiti Ltd. & ors. Vs St. of U.P.
& ors.; 2022 (3) ADJ 110
2. Kiran Singh & ors. Vs Chaman Paswan &
ors.; (1955) 1 SCR 117
3. Hindustan Zinc Ltd. Vs Ajmer Vidyut Vitran
Nigam Ltd.; (2019) 17 SCC 82
4. Zuari Cement Ltd. Vs Regional Director,
Employees'
St.
Insurance
Corporation,
Hyderabad & ors. (2015) 7 SCC 690
5. Civil Misc. Writ Petition No. 43584 of 2007;
Nand Kishor Vs St. of U.P. & ors. decided on
14.09.2007
11 All. Anand Kumar Singh Vs. State of U.P. & Ors.
335
6. Writ Petition No. 16188 of 2002; Ram Nath
Pandey Vs Zila Sahkari Bank Ltd. Basti & ors.
decided on 03.10.2002
(Delivered by Hon'ble Mrs. Sangeeta
Chandra, J.)

1. Heard Sri H.R. Mishra, learned
Senior Advocate assisted by Sri Chandra
Bhan Gupta, learned counsel for the
petitioner and Sri Jai Bahadur Singh,
learned counsel appearing on behalf of the
respondent nos.2 to 4 and the learned
Standing Counsel appearing on behalf of
the respondent nos.1 and 5.

2. This petition has been filed praying
for a direction to be issued to the
respondent no. 3, Secretary and Chief
Executive Officer, District Cooperative
Bank Limited, Fatehpur to make payment
of salary to the petitioner as per order dated
23.10.2021
passed
by
the
Deputy
Commissioner
and
Deputy
Registrar
(Cooperative),
Prayagraj
Division,
Prayagraj along with admissible interest
thereon.

3. It is the case of the petitioner that
he was posted as Branch Manager in
District Cooperative Bank Ltd., Fatehpur
(hereinafter referred to as ''the Bank'). He
was
placed
under
suspension
on
28.03.2017. The petitioner filed a writ
petition, namely, Writ A No.9280 of 2020
for
reinstatement
and
revocation
of
suspension order and conclusion of the
disciplinary proceedings which had been
going on for a long time. The Court finally
disposed of the petition on 04.11.2020 by
referring to Regulation 85(x) of U.P. Cooperative Societies Employees' Service
Regulations, 1975 (hereinafter referred to
as ''the Regulations, 1975') that no
employee shall ordinarily remain under
suspension for more than 6 months except
when suspension is made on a criminal
charge on the direction of the competent
Court; by observing that appropriate orders
be passed by the competent Authority to
conclude
the
matter
of
disciplinary
proceedings within a period of 30 days
from the date of order, failing which, the
order of suspension shall stand revoked and
the
petitioner
would
be
entitled
to
reinstatement and payment of salary.

4. In pursuance of the said order
passed by this Court on 04.11.2020, the
Committee of Management by its order
dated 25.11.2020, had taken a decision to
conclude the disciplinary proceedings and
to reinstate the petitioner treating his
suspension period as period spent on duty
with a punishment of stoppage of 3
increments with cumulative effect. No
salary/subsistence allowance was to be paid
to the petitioner for the period in which he
remained suspended. In pursuance of the
decision of the Committee of Management
dated 25.11.2020, the responded no.3
passed an order on 15.12.2020 and the
petitioner joined his services. He however
was retired on 31.01.2021. In pursuance of
the impugned order, the petitioner was
suffering financially and therefore, he filed
Writ A No.853 of 2021 challenging the
order dated 15.12.2020 and prayed for
payment of salary during the suspension
period. This Court disposed of the writ
petition on 25.01.2021 on the grounds of
remedy
of
filing
an
appeal
under
Regulation 86 of the Regulations, 1975.
The Court also directed that in the event,
the petitioner preferred an appeal before the
appropriate forum, the same would be
entertained on merits and dealt with in
accordance with law, expeditiously.

5. After that order, the petitioner
preferred an appeal. A copy of which has been
336 INDIAN LAW REPORTS ALLAHABAD SERIES
filed as Annexure-1 to the supplementary
affidavit filed by the petitioner on 03.11.2022.
The said appeal was preferred to the Joint
Commissioner
and
Joint
Registrar
Cooperative, Prayagraj Mandal wherein the
petitioner prayed that he may be given his
balance emoluments as the period of
suspension has already been treated by the
employer to be period spent on duty and the
disciplinary proceedings have concluded with
no punishment. According to Sub-clause 7(a)
of Regulation No. 85 of the Regulations, 1975,
service rules as applicable to the State
Government employees would be applicable
to employees of Cooperative Society and
under the U.P. Government Servant Service
Rules and Financial Handbook, subsistence
allowance at 75% of the basic salary is payable
to an employee who remained under
suspension beyond 6 months. In the case of
the petitioner, he had remained under
suspension for 3 years but was only paid half
of basic salary as subsistence allowance. He
ought to have been paid 75% i.e. 3/4 of the
basic salary from the date of lapse of 6 months
from the date of his suspension instead the
Appointing
Authority
had
directed
withholding of all allowances and balance of
salary during the period the petitioner
remained under suspension. The appeal was
decided by Deputy Registrar and Deputy
Commissioner Cooperative, Prayagraj Mandal
by order dated 23.10.2021. A copy of such
order has been filed as Annexure-4 to the writ
petition. The Appellate Authority set aside the
order dated 15.12.2020 passed by the
respondent no.3. The petitioner was reinstated
and he retired on 31.01.2021. However his
retiral dues as well as his salary adjusting his
subsistence allowance that were already paid
to him, was not being given and therefore, the
petitioner filed the instant petition.

6. When the matter was taken up
earlier by this Court, Sri Jai Bahadur Singh,
learned counsel had appeared and this
Court had passed a detailed order on
08.07.2022
which
is
being
quoted
hereinbelow:-

"Learned counsel for the petitioner is
permitted
to
implead
the
Deputy
Commissioner & Deputy Registrar Cooperative,
U.P.
Prayagraj,
Division,
Prayagraj as respondent no. 5 during the
course of day.

Heard
learned
counsel
for
the
petitioner, learned Standing Counsel for the
respondent no. 1 and Sri Jai Bahadur
Singh, learned counsel for the respondent
nos. 2 to 5.

Learned counsel for the petitioner
submitted that earlier petitioner was
working as Branch Manager in District
Co-operative Bank Limited, Fatehpur.
Thereafter, inquiry has been initiated
against the petitioner and punishment of
stopping three increments have been
awarded to the petitioner vide order dated
15.12.2020 . Against which, petitioner has
approached this Court by filing Writ- A No.
853 of 2021, which was dismissed vide
order dated 25.1.2021 on the ground of
alternative
remedy
to
file
appeal.
Accordingly,
petitioner
has
preferred
appeal before the Deputy Commissioner
and Deputy Registrar Co-operative, U.P.
Prayagraj, Division, Prayagraj-respondent
no.5 in which respondent no.2 has
appeared and ultimately appeal was
decided in favour of him rejecting the
penalty so earlier imposed upon him vide
order dated 23.10.2021. He next submitted
that the said order was never challenged
before
any
Court
of
law.
Further,
respondent no.3 is not complying the order
dated 23.10.2021.

Sri
Jai
Bahadur Singh,
learned
counsel for the respondent nos. 2 to 5 could
not dispute the argument of learned counsel
11 All. Anand Kumar Singh Vs. State of U.P. & Ors.
337
for the petitioner, but submitted that order
is without jurisdiction, therefore, same may
not be complied with.

Learned counsel for the petitioner in
his rejoinder argument submitted that
objection so taken before this Court has
never been raised by the respondent-Bank
before the Appellate Authority and also not
challenge the said order before any Court
of law, therefore, he cannot be given any
liberty to raise this objection. Once order
has not been challenged before any
Competent Court, that has attained finality
and respondents are bound to comply the
same.

Under such facts and circumstances,
let an interim mandamus be issued to
respondent no.3 to comply the order dated
23.10.2021 within six weeks or show cause
by filing affidavit within the same time.

Put up this case as fresh on
22.8.2022."

7. In compliance of the order passed
by this Court, a short counter affidavit was
filed by Sri Jai Bahadur Singh raising
certain objections to the jurisdiction of the
Deputy
Registrar
and
Deputy
Commissioner
(Cooperative),
Prayagraj
Mandal to decide the appeal. The matter
thereafter was taken up on 19.09.2022. This
Court noted the arguments made on the
basis of said short counter affidavit by Sri
Jai Bahadur Singh that order dated
23.10.2021 was without jurisdiction. The
petitioner should have approached the UP
Cooperative Societies Service Institutional
Board (hereinafter referred to as ''the
Board') against order of punishment but he
had approached an incompetent Authority
that is the respondent no.5, who without
jurisdiction
passed
the
order
dated
23.10.2021.
When
the
order
dated
23.10.2021 was placed before the District
Administrative Committee, it had again
passed
a
resolution
on
25.04.2022
affirming
its
earlier
resolution dated
25.11.2020 which had resolved that the
suspension period shall be treated as period
spent on duty but without payment of any
other allowance except for subsistence
allowance to the petitioner.

8. When the matter was taken up
today before this Court, Sri Jai Bahadur
Singh has pointed out the Regulation No.
84 of the Regulations, 1975 which relates
to penalty. Regulation No.84 is being
quoted hereinbelow:-

"84. Penalties.- (i) Without prejudice
to the provisions contained in any other
regulation, an employee who commits a
breach of duty enjoined upon him or has
been convicted for criminal offence or an
offence under section 103 of the Act or does
anything prohibited by these regulations
shall be liable to be punished by any one of
the following penalties: -

(a) censure,

(b) with holding of increment,

(c) fine on an employee of Category IV
(peon, chaukidar, etc.).

(d) recovery from pay or security
deposit to compensate in whole or in part
for any pecuniary loss caused to the co-
operative
society
by
the
employee's
conduct,

(e) reduction in rank or grades held
substantively by the employee,

(f) removal from service, or

(g) dismissal from service.

(2) Copy of order of the punishment
shall invariably be given to the employee
concerned and entry to this effect shall be
made in the service record of the employee.

(3) No penalty except censure shall be
imposed unless a show cause notice has
been given to the employee and he has
either failed to reply within the specified
338 INDIAN LAW REPORTS ALLAHABAD SERIES
time or his reply has been found to be
unsatisfactory by the punishing authority.

(4) (a) The charge-sheeted employee
shall be awarded punishment by the
appropriate authority according to the
seriousness of the offence:

Provided that no penalty under subclause (e), (f) or (g) of clause (i) shall be
imposed without recourse to disciplinary
proceedings.

(b) No employee shall be removed or
dismissed by an authority other than by
which he was appointed unless the
appointing authority has made prior
delegation of such authority to such other
person or authority in writing.

(5) The appointing authority or person
authorised by him while passing orders for
stoppage of increments shall state the
period for which it is stopped and whether
it shall have effect of postponing future
increments or promotion."

9. It has been argued that penalties
given in clauses (a) to (d) of the Regulation
No.84(1), the appeal is maintainable before
the Board as they come under minor
penalty. Clauses (e) to (g) relate to
reduction of rank or grade, removal from
service or dismissal from service, no appeal
is provided under the Regulation, major
penalties having being provided subject to
approval of the Board, no appeal can be
made to any of the officers and perhaps
extraordinary jurisdiction under Article 226
of the Constitution alone can be availed of
by the aggrieved person.

10. Sri Jai Bahadur Singh, learned
counsel says that since stoppage of an
increment is a minor penalty, appeal should
have been preferred by the petitioner to the
Board which was not done by the
petitioner. He approached the Deputy
Registrar/ Joint Registrar (Cooperative) in
appeal. He has referred to a judgement
rendered by a Coordinate bench of this
Court in Committee of Management,
Krishna Sahkari Awas Samiti Limited
and others Vs. State of U.P. and others
[2022 (3) ADJ 110] wherein it had been
argued
by
learned
counsel
for
the
petitioner-Committee of Management that
the order passed by the Joint Secretary
Cooperative under Section 98(n) of the U.P.
Co-operative
Societies
Act,
1965
(hereinafter referred to as ''the 1965, Act')
as
Appellate
Authority
was
without
jurisdiction. Failure to raise the issue of
jurisdiction at the stage of appeal by the
Committee
of
Management,
did
not
preclude the petitioner from canvassing the
same before the Court as the issue of
jurisdiction goes to the root of the matter.
This Court had considered the Section
98(n) of the Act, 1965 and found that the
order which was appealed, did not fall
within the ambit of Section 98(n) of the
Act, 1965 and therefore, the Appellate
Authority could not annul any resolution
nor cancel any order passed by the
Committee of Management. Appeal being
creature of the statute scope of the
Appellate jurisdiction is defined and
circumscribed by the statute. The Appellate
Authority could not go beyond the statutory
mandate of Section 98(n) of the Act, 1965.
The Court observed that consent of parties
would not confer the jurisdiction of appeal
where none had been vested by law.
Similarly, failure to raise the objection in
regard to the jurisdiction to entertain the
appeal, will not cure the defect of inherent
lack of jurisdiction and such plea can be
raised at any stage and also in collateral
proceedings.

11. The Supreme Court's judgement
in Kiran Singh and others Vs. Chaman
Paswan and others [(1955) 1 SCR 117] as
11 All. Anand Kumar Singh Vs. State of U.P. & Ors.
339
reiterated in Hindustan Zinc Limited Vs.
Ajmer Vidyut Vitran Nigam Limited
[(2019) 17 SCC 82] was quoted by the
coordinate Bench as also the judgement
rendered in Zuari Cement Limited Vs.
Regional Director, Employees' State
Insurance Corporation, Hyderabad and
others [(2015) 7 SCC 690].

12. Learned counsel for petitioner has
referred a Division Bench judgement of
this Court in Nand Kishor Vs. State of
U.P. and others (Civil Misc. Writ Petition
No.43584 of 2007 decided on 14.09.2007)
wherein this Court was considered an order
of punishment passed by the Managing
Director which the writ petitioner Nand
Kishor had challenged in appeal under
Regulation No.86 of the Regulation, 1975.
The appeal was dismissed by the Chairman.
The petitioner approached the Registrar
challenging the orders of the Managing
Director as well as the Chairman under
Section 128 of the Act, 1965. The appeal
was rejected by the Joint Registrar as not
being maintainable. The writ petitioner had
argued before this Court that the appeal
was maintainable under Section 128 of the
Act, 1965 as the Board constituted under
Section 122 of the Act, 1965 had framed
the Regulations of 1975 and appeal to the
Chairman against the order of Managing
Director had been provided for. After
decision in the appeal by the Chairman, in
exercise of powers under Regulation No.86
of the Regulations, 1975, such order could
be challenged under Section 128 of the Act,
1965 as the Act contemplates that all orders
passed by the Cooperative Societies, can be
cancelled in the cases provided for under
the section by the Registrar. The Court
observed that remedy under Section 128 of
the Act, 1965 is available to an employee
who is aggrieved by the order of Chairman
passed in appeal as the power conferred
upon the Registrar under Section 128 of the
Act i.e. parent legislation is not diluted in
any manner by the Regulations, 1975
framed by the Board which are in nature of
subordinate legislation as reference may
also be had to the definition of ''Officer' as
contained in Section 2-O of the Act which
refers to the Chairman of the Board. The
appeal/application made by the petitioner
under Section 128 of the Act, 1965 was
legally maintainable. The Court referred to
another
Division
Bench
judgement
rendered in Ram Nath Pandey Vs. Zila
Sahkari Bank Ltd. Basti and others
(Writ Petition No.16188 of 2002, decided
on 03.10.2002) reiterated the position.

13. It has been argued by learned
counsel for the petitioner that even if an
order was passed by the Secretory/ Chief
Executive Officer in compliance of the
resolution passed by the Board as in the
case of the petitioner, remedy would still
alive under Section 128 before the
Registrar/Joint Registrar/Deputy Registrar.
Hence the appeal filed by the petitioner was
maintainable.

14. This Court is not convinced as in
the case of the petitioner, the punishment
was determined by the Committee of
Management and consequential order alone
was
passed
by
the
Secretary/Chief
Executive Officer of the Cooperative
Society.

15. This Court has now to consider
whether the order passed on 15.12.2020
concluding the disciplinary proceedings of
the petitioner by observing that the
suspension period shall be treated as period
spent on duty without any other allowance
being payable to the petitioner except
subsistence allowance for the said period
and
also
imposing
punishment
of
340 INDIAN LAW REPORTS ALLAHABAD SERIES
withholding of 3 annual increments was a
major or minor penalty.

16. It is the case of the respondent
that it was a minor penalty and the
petitioner ought to have approached the
Board under Regulation No.86 which
provides that order imposing penalty under
Sub-clause (a) to (d) of Clause 1 of
Regulation No.84 shall be appealable to the
Authorities as mentioned in Appendix D
and Appendix D mentions first appeal to be
made to the Committee of Management or
any other officer authorized by the
Committee of Management and in case the
Committee of Management has passed the
order of punishment, appeal shall file to the
Board i.e. Cooperative Societies Service
Institutional Board.

17. It is the case of the respondent
that the petitioner should have approached
the
Cooperative
Societies
Service
Institutional Board as the order passed
under Regulation No.84 was only for
withholding of increments.

18. Learned counsel for the petitioner
has argued that in case of the petitioner,
withholding of 3 annual increments was
with future effect and that would amount to
a major penalty when no appeal would lie
to the Board and in case where no appeal
shall lie to the Board, Section 128 would
come into play and the Registrar can be
approached.

19. Since the punishment order had
directed
withholding
of
3
annual
increments would have fallen due only with
effect from July of the year 2021, the
punishment that was imposed, was a minor
penalty and the petitioner ought to have
approached the Board. This Court finds that
since withholding of increments is a
punishment mentioned under Sub-clause
(b) of Regulation No. 84, it is a minor
penalty and the petitioner should have
approached the Board. He wrongly filed an
appeal
before
the
Registrar/Joint
Registrar/Deputy Registrar. The appeal
filed by the petitioner on 06.02.2021 shall
be treated as non-est.

20. The writ petition is disposed of
with a liberty to the petitioner to file an
appeal before the Cooperative Societies
Service Institutional Board against the
resolution
dated
25.11.2020
and
the
resolution dated 25.04.2022. If an appeal is
preferred before the Board by the petitioner
within a period of three weeks from today,
it shall be considered on its merits and in
accordance with law as expeditiously as
possible, within a period of three months
from the date a copy of the appeal and a
copy of this order is produced before it.

21. A copy of the resolution dated
25.11.2020 and a copy of the resolution
dated 25.04.2022 shall be served upon the
petitioner
within
a
week
from
its
application made in this regard by the
respondent no.3.
----------
(2022) 11 ILRA 340
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.10.2022

BEFORE

THE HON'BLE CHANDRA KUMAR RAI, J.

Writ-B No. 356 of 2013

Deepak Kumar & Anr. ...Petitioners
Versus
Board of Revenue, U.P. & Ors.
 ...Respondents

Counsel for the Petitioners: