# ESC (Allahabad), Sugriv Singh Desuriya v. Central Government has also taken

- **Citation:** (2005) 1 ILRA 222
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2004-10-05
- **Case number:** Criminal Misc. Application No. 1962 of 2002
- **Bench:** Amar Saran
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/esc-allahabad-sugriv-singh-desuriya-v-central-government-has-also-taken-40358
- **Pages:** 4

## Headnote

Code of Criminal Procedure-S. 482Summoning
Order-passed
by
the
Magistrate on the basis of statement
made by the complainant under section
200
Cr.P.C.
without
examining
the
witnesses-complainant
a
retired
Executive Engineer filed complaint for
pressurising the Chief Managing Director
O.N.G.C.-Complaint for creating pressure
to pass inadmissible Bills-held-grossest
abused of the process of court-liable to
quashed.

Held: Para 4 & 5

It
is
interesting
to
note that the
summoning order was passed by the
learned Judicial Magistrate even without
requiring the complainant to examine
any witness under Section 202 Cr.P.C.
This does suggest an over-anxiety on
part of the Magistrate to summon the
applicants at any cost for unexplained
reasons.

On a bare perusal of the complaint and
the surrounding circumstances, it is
apparent that this complaint has been
filed in a completely mala fide manner
and allowing this criminal proceedings
against the applicants to continue would
amount to the grossest abuse of the
process of the court.
Case law discussed:
J.T. 2000(1) SC-360
AIR 1982 SC-1238

## Text

http://www.allahabadhighcourt.nic.in

INDIAN LAW REPORTS ALLAHABAD SERIES
[2005
 222
that show cause notice be issued to the
individual in accordance with AR 13 or
AR 17 as the case may be. No lower
authority will direct the issue of a show
cause notice. The show cause notice
should cover the full particulars of the
cause of action against the individual.
The allegations must be specific and
supported by sufficient details to enable
the individual to clearly understand and
reply to them. A copy of the proceedings
or the enquiry held in the case will also
be supplied to th3e individual and he will
be afforded reasonable time to state in
writing any reasons he may have to urge
against
the
proposed
dismissal
or
discharge.

(e) Action on Receipt of the Reply to the
Show Cause Notice. The individual's
reply to the show cause notice will be
forwarded through normal channels to
the authority competent to authorize his
dismissal/discharge together with a copy
of each of the show cause notice and the
proceedings of the enquiry held in the
case and recommendations of each
forwarding authority as to the disposal of
the case.

(f) Final Orders by the Competent
Authority. The authority competent to
sanction the dismissal/discharge of the
individual will before passing orders
reconsider the case in the light of the
individual's reply to the show cause
notice. A person who has been served
with a show cause notice for proposed
dismissal
may
be
ordered
to
be
discharged if it is considered that
discharge would meet the requirements of
the case. if the competent authority
considers
that
termination
of
the
individuals servic3e is not warranted but
any of the actions referred to in (b) to (j)
of Para 2 above would meet the
requirements of the case, he may pass
orders accordingly. On the other hand, if
the competent authority accepts the reply
of the individual to the show cause notices
entirely satisfactory, he will pass orders
accordingly.

9. The Apex Court has further held
that in the said circumstances, discharge
from service cannot be said to be by way
of punishment. The Division bench of
this Court in the case reported in 2002,
ESC (Allahabad), Sugriv Singh Desuriya
Vs. Central Government has also taken
the same view and has held that policy of
discharging of habitual offender cannot be
said to be ultra vires and if a person has
been awarded four red ink entries
punishment cannot be said to be illegal. It
has also been held that the person
concerned
was
given
adequate
opportunity of placing his defence in
accordance with rules and procedure
provided, therefore, it cannot be held that
the punishment which has been awarded
is not correct.

10. After considering all the facts
and the decisions, I am of the view that
the order of discharge cannot be said to be
illegal and the petition is having no merit
and is hereby dismissed.

No order as to costs.
Petition dismissed.
---------
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 05.10.2004

BEFORE
THE HON'BLE AMAR SARAN, J.

Criminal Misc. Application No. 1962 of
2002
http://www.allahabadhighcourt.nic.in
1All]
 Shri Baij Nath and another V. State of U.P. and others
223

Shri Baij Nath and another

 ...Petitioners
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri L.P. Naithani
Sri A.N. Singh
Sri Piyush Shukla

Counsel for the Respondent:
Sri Nikhil Kumar
Sri R.K. Saini
A.G.A.

Code of Criminal Procedure-S. 482Summoning
Order-passed
by
the
Magistrate on the basis of statement
made by the complainant under section
200
Cr.P.C.
without
examining
the
witnesses-complainant
a
retired
Executive Engineer filed complaint for
pressurising the Chief Managing Director
O.N.G.C.-Complaint for creating pressure
to pass inadmissible Bills-held-grossest
abused of the process of court-liable to
quashed.

Held: Para 4 & 5

It
is
interesting
to
note that the
summoning order was passed by the
learned Judicial Magistrate even without
requiring the complainant to examine
any witness under Section 202 Cr.P.C.
This does suggest an over-anxiety on
part of the Magistrate to summon the
applicants at any cost for unexplained
reasons.

On a bare perusal of the complaint and
the surrounding circumstances, it is
apparent that this complaint has been
filed in a completely mala fide manner
and allowing this criminal proceedings
against the applicants to continue would
amount to the grossest abuse of the
process of the court.
Case law discussed:
J.T. 2000(1) SC-360
AIR 1982 SC-1238
(Delivered by Hon'ble Amar Saran, J.)

1. Heard Shri L.P. Nathani, learned
Senior Advocate on behalf of the
applicants, Shri Nikhil Kumar, learned
counsel for the opposite party No. 3 and
learned Additional Government Advocate
representing the State.

2. This application has been filed
under Section 482 Cr.P.C. by Shri Baij
Nath, Chief Manager (Personnel and
Administration) Oil and Natural Gas
Corporation Limited (hereinafter referred
to as ONGC) and the ONGC, Dehradun
for quashing a criminal complaint filed by
opposite party No. 3, who has retired as
Assistant Executive Engineer from the
ONGC
and
who
has
settled
in
Saharanpur.

3. The allegations in the complaint
were
that
on
different
dates
the
complainant had submitted medical bills
totaling Rs. 56,403/- for reimbursement
after his retirement, but the applicants
unlawfully and in pursuance of a
conspiracy for drawing undue advantage,
held the payments on the medical bills to
be
inadmissible.
The
complainant
examined himself under Section 200
Cr.P.C. and filed certain documents.
Thereafter
the
impugned
order
summoning the applicant under section
406 IPC was passed by the Judicial
Magistrate-III, Saharanpur on 8.8.2000.
The case was numbered as Criminal
Complaint Case No. 306/2000, J.P.
Sharma Vs. A.S. Soni.

4. It is interesting to note that the
summoning order was passed by the
learned Judicial Magistrate even without
requiring the complainant to examine any
witness under Section 202 Cr.P.C. This
http://www.allahabadhighcourt.nic.in

INDIAN LAW REPORTS ALLAHABAD SERIES
[2005
 224
does suggest an over-anxiety on part of
the Magistrate to summon the applicants
at any cost for unexplained reasons.

5. On a bare perusal of the
complaint
and
the
surrounding
circumstances, it is apparent that this
complaint has been filed in a completely
mala fide manner and allowing this
criminal
proceedings
against
the
applicants to continue would amount to
the grossest abuse of the process of the
court. The applicants have filed the
relevant rules, which clearly show that the
complainant
was
only
eligible
for
reimbursement
of
his
medical
bills
provided he was medically treated in the
ONGC hospital or in a Government
hospital after his retirement and not in a
private hospital. This fact has not been
denied by the complainant, whose claim
is that he was not aware of these rules,
which were kept away from him. In any
view of the matter, there is no question of
the application of Section 406 IPC on the
facts of the case. If the senior authority
refuses to pass ineligible medical bills,
then where is the question of his having
committed criminal breach of trust in
respect of any money or property
entrusted to him.

6. Significantly, the opposite party
No. 3 has even been filing cases before
the Consumer Forum for realisation of his
medical bills and he has even filed a writ
petition before this Court bearing No.
27660 of 2003 (J.P. Sharma Vs. Union of
India and others), which has been
dismissed by this Court on 10.9.2004
holding the writ petition to be not
maintainable.

7. It does therefore appear that this
complaint has been filed in a wholly mala
fide manner only to exert illegal pressure
and to black mail the applicants into
passing the bills which have been
submitted by the complainant. Applying
pressure for vindicating ones civil claims
should never be allowed to become the
object of a criminal prosecution.

It may be noted that the Apex Court
in the case of G. Sagar Suri & another Vs.
State of U.P and others, JT 2000(1) SC
360, in paragraph 8 has observed:

"Jurisdiction under Section 482 of
the Code has to be exercised with a great
care. In exercise of its jurisdiction High
Court is not to examine the matter
superficially. It is to be seen if a matter,
which is essentially of civil nature, has
been given a cloak of criminal offence.
Criminal proceedings are not a short cut
of other remedies available in law. Before
issuing process a criminal court has to
exercise a great deal of caution. For the
accused it is a serious matter."

8. The observations of the Supreme
Court in the beginning of the decision in
Chandrapal
Singh
and
others
Vs.
Maharaj Singh and another (AIR 1982 SC
1238) are also relevant in this connection:
"A frustrated landlord after met his
waterloo in the hierarchy of civil courts,
has further enmeshed the tenant in a
frivolous criminal prosecution which
prima facie appears to be an abuse of
process of law. The facts when stated are
so telling that further discussion may
appear to be superfluous."

9. In this view of the matter this
application succeeds and is allowed.
Criminal
proceedings
in
criminal
complaint case No. 306 of 2000 J.P.
Sharma Vs. A.S. Soni, under section 406
http://www.allahabadhighcourt.nic.in
1All]
 Ram Het Tewari V. State of U.P. and others
225
 IPC pending in the court of Judicial
Magistrate-III, Saharanpur are quashed.
Application allowed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 02.02.2005

BEFORE
THE HON'BLE TARUN AGARWALA, J.

Civil Misc. Writ Petition No. 20264 of 2004

Ram Het Tewari

 ...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri G.K. Singh
Sri V.K. Singh

Counsel for the Respondents:
S.C.

Constitution of India, Art. 226 readwith
U.P.
Regularization
of
Ad
hoc
appointments (on the post, outside the
period of the Public Service Commission)
Rules
1979
rule-4
Regularisationworking on officiating basis on the Post
of Lekhpal w.e.f. 20.2.87-termination
order dated 9.11.89 stayed-lastly by
judgment
dated
5.12.03.
Petition
disposed of with direction to consider
the representation for Regularisationother employees working on officiating
basis regularized despite of Specific
averments-not Responds can not take
contrary stand -held-Petitioner entitled
for regularization.

Held: Para 10

The learned counsel for the petitioner
has invited my attention to Annexures11 and 12 to the writ petition where, in
similar situation, another employee was
appointed on an officiating basis and
thereafter,
the
respondents
had
regularized his services. This fact has not
been controverted by the respondents.
Consequently, in my view, it is not open
to the respondents to take a contrary
stand. A uniform policy has to be
adopted and it is not open to the
respondents to pick and choose at their
own convenience.
Case law discussed:
1985 (2) SCC-451

(Delivered by Hon'ble Tarun Agarwala, J.)

1. Heard Sri G.K. Singh, learned
counsel for the petitioner and the learned
Standing Counsel appearing for the
respondents.

2. The petitioner was appointed on
20.2.1987 to officiate on the post of
Consolidation Lekhpal. Subsequently, the
post on which the petitioner was working
became
substantive
in
nature
on
19.10.1989. The services of the petitioner
was
dispensed
by
an
order
dated
9.11.1989.
The
petitioner
made
a
representation on 11.12.1989, which was
rejected and consequently, the petitioner
filed Civil Misc. Writ Petition No. 288 of
1990 in which an interim order was
granted permitting the petitioner to
continue to function on the post of
Consolidation Lekhpal. This writ petition
was disposed of by judgment dated
5.12.2003 directing that the petitioner's
case for regularization be considered
under the relevant regularization Rules
and till such time, as the petitioner's case
for regularization remained pending, he
was allowed to continue in service. Based
on this direction given by this court, the
respondents by the impugned order dated
15.5.2004 has rejected the claim of the
regularization
of the
petitioner and
consequently by the same order his
services was also dispensed with.