# Anurag Kumar and others v. The State of U.P. and others

- **Citation:** (2013) 1 ILRA 353
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2013-03-07
- **Bench:** Devendra Kumar Upadhyaya
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/anurag-kumar-and-others-v-the-state-of-u-p-and-others-42514
- **Pages:** 6

## Headnote

H.G.S. Parihar
C.S.C.

U.P.
Cooperative
Employee
Services
Regulation 1975-Regulation 84- Minor
punishment-stoppage
of
annual
increment
for
remaining
period
of
Services-without supplying the copy of
enquiry report without indicating date,
place and time for enquiry-for minor
penalty full fledge enquiry not neededbut when reply to show cause notice not
taken in consideration-rather decided to
hold formal enquiry-without following
proper procedure-order impugned not
sustainable.-quashed.

Held: Para-19

In the peculiar facts and circumstances
of the instant case, keeping in view the
fact that the very basis of passing of the
impugned order of punishment is the
enquiry report submitted by the Enquiry
Officer, a copy of which was never
provided to the petitioner, the Court
comes to the irresistible conclusion that
the procedure followed by the opposite
parties before passing the impugned
order
of
punishment
is
absolutely
unlawful and against the settled norms
and procedure and also against the
Regulation 85 of the Regulations 1975.

## Text

1 All] Anurag Kumar and others Vs. The State of U.P. and others
353
Crime No. 38 of 2013 under Section 379
I.P.C. & 4/10 Tree Protection Act, P.S.
Mall, District Lucknow.

3. We have gone through the F.I.R.,
which
discloses
commission
of
cognizable offence, as such, the same
cannot be quashed.

4. However, in the peculiar facts and
circumstances of the case, we dispose of
the writ petition finally with the direction
that the petitioners shall not be arrested in
the aforesaid case crime number till
submission of report under Section 173(2)
Cr.P.C., provided they co-operate with the
investigation, which shall go on.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 07.03.2013

BEFORE
THE HON'BLE DEVENDRA KUMAR
UPADHYAYA, J.

Service Single 2360 of 2000

Ram Sajiwan

...Petitioner
Versus
U.P. Co Operative Institutional Services
and others

 ...Respondents

Counsel for the Petitioner:
Sri J.P. Singh, Sri M.G. Tripathi
Sri R.K. Verma

Counsel for the Respondents:
H.G.S. Parihar
C.S.C.

U.P.
Cooperative
Employee
Services
Regulation 1975-Regulation 84- Minor
punishment-stoppage
of
annual
increment
for
remaining
period
of
Services-without supplying the copy of
enquiry report without indicating date,
place and time for enquiry-for minor
penalty full fledge enquiry not neededbut when reply to show cause notice not
taken in consideration-rather decided to
hold formal enquiry-without following
proper procedure-order impugned not
sustainable.-quashed.

Held: Para-19

In the peculiar facts and circumstances
of the instant case, keeping in view the
fact that the very basis of passing of the
impugned order of punishment is the
enquiry report submitted by the Enquiry
Officer, a copy of which was never
provided to the petitioner, the Court
comes to the irresistible conclusion that
the procedure followed by the opposite
parties before passing the impugned
order
of
punishment
is
absolutely
unlawful and against the settled norms
and procedure and also against the
Regulation 85 of the Regulations 1975.

(Delivered by Hon'ble Devendra Kumar
Upadhyaya, J)

1.

Hon'ble
Devendra
Kumar
Upadhyaya, J.

2. Heard Sri M.G. Tripathi, learned
counsel for the petitioner and Sri Diwakar
Singh, holding brief of Sri H.G.S. Parihar,
learned counsel appearing for opposite
parties no. 2 and 3 i.e. Committee of
Management, District Cooperative Bank
Ltd., Raebareli and Secretary/General
Manager, District Cooperative Bank,
Raebareli respectively.

3. The petitioner by means of instant
writ petition has assailed validity of
punishment order dated 7/8.11.1997,
passed by the Secretary/General Manager,
District Cooperative Bank Ltd., Raebareli,
whereby punishment of stoppage of
yearly increment for the remainder period
354 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
of his service has been inflicted. The
petitioner has also challenged the order
dated 29.01.2000, contained in Annexure
No.1 to the writ petition, whereby an
appeal filed by the petitioner challenging
the punishment order of stoppage of
annual increment has been dismissed.

4. The facts of the case, as culled
from the pleadings brought on record by
the respective parties, are that a complaint
dated 18.10.1995 was made by the
General Manager of Dugdha Utpadan
Sahkari Samiti, Tripula, District Raebareli
in respect of an incident wherein it was
reported that payment of a cheque bearing
no.36751, dated 22.12.1994 for a sum of
Rs. 8700/- was made to some other person
by committing forgery by the employees
of District Cooperative Bank, BranchDeeh, District Raebareli. According to the
said complaint, a cheque was issued by
Dugdha
Utpadan
Sahkari
Samiti,
Kachnawan, District Raebareli in favour
of Sri Ram Das Maurya whereas payment
was made to Sri Ram Bahadur Maurya.
The said complaint was made to the
Secretary/General
Manager,
District
Cooperative Bank Ltd., Raebareli and it
appears that when no action was taken, a
reminder was also sent on 29.12.1995 by
the
General
Manager
of
Dugdha
Utapadak Sahkari Samiti Ltd., Tripula,
Raebareli. Thereafter another complaint
was made on 02.11.1995 by Sri Ram
Gopal and Ram Das Maurya, the
President and the Secretary respectively
of Dugdh Utpadak Sahkari Samiti,
Kachnawan, District Raebareli.

5. On the aforesaid complaint,
contemplating certain action against the
alleged
involvement
of
the
employees/officers of the Bank, a show
cause notice was issued to the petitioner
on 04.01.1996 requiring therein that
petitioner should submit his reply within
three days. The said show cause notice
required the petitioner to submit his reply
on the allegations pertaining to the same
transaction which was the subject matter
of the complaints aforementioned.

6. A perusal of charge-sheet reveals
that it has been stated in the said chargesheet that from Account No.32, the
amount has been misappropriated on
08.07.1995 by fraudulently using cheque
bearing no.3651, dated 22.12.1994 and
further that the cheque in question was
issued by the society concerned for
making payment to one Sri Ram Das
Maurya, however, the same was not
encashed on the date of its presentation on
account of deficiency of balance and was
kept in the branch office of the Bank and
it has subsequently been used for
misappropriating the amount by way of
overwriting etc. The show cause notice
also stated that the entry of the aforesaid
cheque in the account was made by the
petitioner and petitioner ought to have
objected to it as on the cutting and
overwriting over the cheque, the signature
of the authorized signatory was not
available. The show cause notice further
states that since the petitioner did not
object, it makes his integrity doubtful.

7. Petitioner submitted reply to the
aforesaid
show
cause
notice
on
13.01.1996 denying the allegations and
clearly stating therein that in the payment
of cheque in question no bank employee
was involved and further that cheque has
all along been with Sri Ram Das Maurya
and it is Ram Das Maurya who got the
cheque encashed by sending someone else
to the Bank.
1 All] Ram Sajiwan Vs. U.P. Co Operative Institutional Services and others
355

8. However, no decision was taken
by the disciplinary authority on the
aforesaid reply submitted by the petitioner
to
this
show
cause
notice
dated
04.01.1996 and subsequently vide an
order dated 25.09.1997, Senior Manager
of the Bank, Sri S.N. Lal was appointed
as Enquiry Officer. The Enquiry Officer
thereafter does not appear to have held
any enquiry whatsoever of any kind;
rather he submitted his report to the
punishing authority on 06.10.1997. It is
further noticeable that even copy of the
said enquiry report was not provided to
the petitioner requiring him to submit his
objection/reply to the findings recored by
the Enquiry Officer.

9. The question which arises for
consideration in the instant case is as to
whether keeping in view the facts and
circumstances of the instant case, the
procedure prescribed under the relevant
rules/regulations for holding full fledged
departmental enquiry ought to have been
adopted by the opposite parties before
passing the impugned order or not.
Further, as to whether, in case the
opposite parties were obliged to follow
the full fledged procedure meant for the
departmental proceedings, was it followed
or not in the instant case.

10. Admittedly, the disciplinary
matters of the petitioner are governed by
U.P. Co-operative Employees Service
Regulations, 1975 (hereinafter referred to
as 'Regulations, 1975').

 Regulation 84 of the aforesaid
Regulations prescribes the following
penalties:-

"a. censure,

b. withholding 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 grade held
substantively by the employee,

f. removal from service, or

g. dismissal from service."

11. According to the scheme of the
aforesaid
Regulations
relating
to
penalties, disciplinary proceedings and
appeal, penalty of censor can be imposed
even without giving show cause notice
whereas
penalty
of
withholding
of
increment, fine or recovery from pay can
be passed only after issuing show cause
notice and calling for a reply from the
delinquent employee and in respect of
punishment for removal from service,
reduction in rank or grade and dismissal
from service under the provisions of
Regulations
1975,
disciplinary
proceedings as envisaged and provided
for under Regulation 85 is to be followed,
which provides serving of charge-sheet to
the
employee
concerned
containing
specific charges, requiring the delinquent
to submit explanation in respect of the
charges and giving him an opportunity to
produce evidence and cross-examine the
witnesses in his defence and also giving
opportunity of being heard in person. The
scheme
of
Regulation
85
clearly
envisages
holding
of
full
fledged
departmental enquiry wherein principles
356 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
of natural justice and other accepted
norms of disciplinary proceedings ought
to be followed. However, Regulation 85
will come into play only in case either of
the major penalties i.e. reduction in rank,
removal from service or dismissal from
service are contemplated to be awarded to
the delinquent. In the instant case neither
of the major penalties has been inflicted
upon the petitioner.

12. Instant case has a very striking
feature inasmuch as though a show cause
notice was issued initially calling for
reply from the petitioner but subsequently
an Enquiry Officer was appointed to hold
the enquiry into the allegations relating to
the alleged forged withdrawal of money
from Branch-Deeh of the Bank. True,
petitioner has been inflicted only with the
minor penalty in the end and issuance of
show cause notice calling for his reply
would
have
sufficed
to
meet
the
requirement of holding enquiry in case of
minor penalty, however, question which
needs consideration, as observed above, is
that since after receiving reply to the
show cause notice, disciplinary authority
did not pass order of penalty inflicting
minor penalty, rather decided to appoint
an Enquiry Officer to hold an enquiry into
the allegations, therefore, as to whether
the
procedure
as
prescribed
under
Regulation 85 i.e. procedure for full
fledged enquiry was legally required to be
followed by the opposite parties or not.

13. It would have been appropriate
and without any legal flaw, had the
punishing authority taken a decision on
the basis of reply submitted by the
petitioner to the show cause notice and
passed an order of minor penalty but since
no such decision on receiving the reply of
the
petitioner
was
taken
by
the
disciplinary
authority;
rather
the
disciplinary authority took a decision
otherwise, that is, to hold an enquiry by
way of appointing an Enquiry Officer, as
such, it was incumbent upon the opposite
parties to have held the disciplinary
proceedings strictly in accordance with
the
procedure
prescribed
under
Regulation 85 for award of major penalty,
irrespective of the fact that finally the
punishment may or may not have been a
minor penalty.

14. The aforesaid proposition
assumes significance keeping in view the
fact that the very basis of passing the
impugned order of punishment dated
7/8.11.1997
is
the
enquiry
report
submitted by the Enquiry Officer which
ultimately
was
conducted
without
associating the petitioner with the same
resulting in breach of principles of natural
justice.

15. It is strange to note that though
the punishing authority in the instant case
has passed the punishment order on the
enquiry report submitted by the enquiry
officer-Sri S.N. Lal, but during the course
of enquiry conducted by him, petitioner
was not associated with the said enquiry
in any manner. The enquiry officer never
issued any charge-sheet to the petitioner
nor did he call for any explanation or
reply from the petitioner. Petitioner also
did not receive any intimation regarding
date, time and place etc. for holding the
enquiry. The aforesaid facts cannot be
disputed as the enquiry report itself
nowhere makes a mention that in the
enquiry petitioner was ever associated in
any manner.

16. As observed above, the
punishment of stoppage of increment is
1 All] Ram Sajiwan Vs. U.P. Co Operative Institutional Services and others
357
minor
penalty
as
described
under
Regulation 84 of Regulations, 1975 and
such a minor penalty could be inflicted on
the
delinquent
employee
by
the
disciplinary authority only after calling
for an explanation or issuing a show cause
notice to him. In the instant case, the basis
of the impugned order of minor penalty of
stoppage of increment is not the reply
submitted by the petitioner. In fact the
reply submitted by the petitioner to the
show cause notice has not even been
taken into consideration at all. What all is
discussed by the disciplinary authority
while passing the order dated 7/8.11.1997
is the report of the Enquiry Officer
wherein petitioner was never associated
and further that the petitioner was never
even confronted with the enquiry report
which is the basis of the impugned
punishment order.

17. Needless to say that although the
Enquiry Officer can obtain all information
from all channels and sources but under
law it is obligatory on his part not to act
on any such information unless the person
against
whom
such
information
or
material is being used, is supplied with
such information or material. Non-supply
of document which forms basis of
decision by the disciplinary authority
explicitly
amounts
to
denial
of
appropriate reasonable opportunity to the
delinquent employee. A document, in
case forms part of the enquiry and is
considered by the disciplinary authority
while passing the order of punishment
then any omission to supply such
document to the delinquent employee
amounts to flagrant violation of principles
of natural justice.

18. Admittedly, in the instant case
the vary basis of passing the impugned
punishment order dated 7/8.11.1997 is the
report submitted by the Enquiry OfficerSri S.N. Lal which admittedly, was never
provided to the petitioner and petitioner
was not even associated with the said
enquiry, as such, procedure adopted by
the opposite parties in the instant case do
not conform to the principles of natural
justice and other settled norms of the
departmental proceedings.

19. In the peculiar facts and
circumstances of the instant case, keeping
in view the fact that the very basis of
passing of the impugned order of
punishment
is
the
enquiry
report
submitted by the Enquiry Officer, a copy
of which was never provided to the
petitioner, the Court comes to the
irresistible conclusion that the procedure
followed by the opposite parties before
passing
the
impugned
order
of
punishment is absolutely unlawful and
against the settled norms and procedure
and also against the Regulation 85 of the
Regulations 1975.

20. For the discussions made and
reasons given above, the writ petition
deserves to be allowed.

21. Accordingly, the writ petition
is allowed and the impugned order of
punishment dated 7/8.11.1997 is hereby
quashed. The order dated 29.01.2000,
rejecting the appeal of the petitioner is
also quashed.

22. It is directed further that pay of
the petitioner by adding all the past
annual increments shall be re-fixed within
a period of one month from the date a
certified copy of this judgment and order
is
produced
before
the
authority
concerned and payment thereof including
358 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
the arrears shall be made within next three
months thereafter.

23. Costs made easy.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW20.02.2013

BEFORE
THE HON'BLE SUDHIR AGARWAL,J.

Misc. Single 2647 of 1993

Shailendra Tewari and others...Petitioners
Versus
1st A.D.J. Faizabad and others

 ...Respondents

Counsel for the Petitioners:
R.S. Pandey

Counsel for the Respondents:
C.S.C.

U.P. Zamindari abolition and Land Reforms
Act 1950-Section 3(4) read with U.P.
Consolidation of Holdings Act 1953-3(5)-
'Land'-definition does not include 'Banjar
land' suit relating to Banjar land-whether
civil or revenue court has jurisdiction? Held-
only civil Court has jurisdiction.

Held: Para-21
For the purpose of U.P. Zamindari
Abolition and Land Reforms Act, 1951
(hereinafter referred to as the "Act,
1951") also so far as the meaning of
term 'holding' or 'land' is concerned, in
respect to land recorded as "Banjar", the
law as discussed above would apply
equally and, therefore, suit in question is
not barred by Section 331 of Act, 1951
and the Civil Court had jurisdiction to
take cognizance of suit in question and
decide the same. The Appellate Court has
rightly
taken
the
view
about
maintainability of suit in Civil Court, in
the judgment impugned in this writ
petition, and, I find no legal or otherwise
fault therein, warranting interference.

Case Law discussed:
1965 ALJ 609; 1967 AWR 337; 1969 AWR 317;
1971 RD 520; 1975 AWC 469; 1986 AWC 919;
1989 RD 293;

(Delivered by Hon'ble Hon'ble Sudhir
Agarwal, J.)

1. This writ petition is directed
against the judgment dated 26.05.1993
passed by First Additional District Judge,
Faizabad
allowing
appeal
filed
by
respondent no. 2 and setting aside Trial
Court's order dated 10.11.1987. The
Appellate
Court
held
that
suit
is
cognizable by Civil Court and has
directed parties to appear before court
below so that the matter may proceed
further.

2. It is contended that though the
land in dispute is "Banjar land" recorded
in revenue records and if there is a dispute
of title, jurisdiction lies with Revenue
Court and not with Civil Court. Reliance
is placed on Apex Court's decision in
Kamla Prasad and others Vs. Kishna
Kant Pathak and others, 2007(4) SCC
213.

3. However, I do not find any force
in the submission.

4. A perusal of plaint shows that suit
in question was filed with relief that
defendant be restrained from cutting trees
standing over land in dispute, which is
admittedly a "Banjar land", so recorded in
revenue record.

5. The terms "land" has been defined
in Section 3(4) of U.P. Zamindari
Abolition and Land Reforms Act, 1950
(U.P. Act No. 1 of 1951) (hereinafter