# Manoj Kumar Verma and others v. State of U.P. and another

- **Citation:** (2004) 1 ILRA 101
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2003-09-30
- **Case number:** Civil Misc. Writ Petition No. 33984 of 2003
- **Bench:** S.N. Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/manoj-kumar-verma-and-others-v-state-of-u-p-and-another-40232
- **Pages:** 6

## Headnote

Sri B.P. Singh
S.C.

U.P. Cooperative Societies (Employees
Service)
Regulations
1975-Reg.
85Service
Law-Reversion-Charges
of
embezzlement-preliminary
enquirycharges proved- Disciplinary enquirypetitioner afforded full opportunity of
hearing and active participation during
enquiry petitioner shown indulgence of
personal
hearing-no
perversity
or
infirmity in enquiry detected contention
that Reg. 85 was not complied with
cannot be accepted impugned order
recieved consideration and approval of
U.P. Cooperative Societies institutional
Board- held proper.

Held- Para 7

The finding recorded by the enquiry
officer is borne out from the record. The
last
contention
that
provisions
of
Regulations 85 of the U.P. Cooperative
Societies
(Employees
Service)
Regulations, 1975 were not complied
with does not commend to me for
acceptance in view of the fact that the
impugned order received consideration
and approval of the U.P. Cooperative
Societies Institutional Board Lucknow.
Cases referred:
2003 ALJ 812 (SC)
(1996) 9 SCC 69

## Text

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1 All] Manoj Kumar Verma and others V. State of U.P. and another
101
Under section 302/34, 120 B IPC, P.S.
G.R.P. Baraut, district Baghpat. He is
below 18 years alleged to be juvenile. He
moved an application for bail before the
C.J.M. The C.J.M. rejected his bail
application. He also filed an application
for bail before the Sessions Judge
concerned but the same was also rejected.
The above named accused presented a
Criminal Misc. Bail Application No.
13919 of 2003, under section 439 Cr.P.C.
before Hon'ble Court and the said bail
application
was
also
dismissed
as
withdrawn for filing the present revision.

3. I have heard Sri Krishana Capoor,
learned counsel assisted by Sri Jagdev
Singh, learned counsel for the revisionist,
Sri V.K. Singh, learned counsel for the
O.P.
No.
2,
learned
Additional
Government Advocate and perused the
entire record.

4. The orders under section 437/439
Cr.P.C. are not revisable orders. No
revision under the Cr.P.C. lies. They are
by nature interlocutory orders. These
orders do not decide any question of law
or mixed question of law or facts or any
issue in any proceeding under the Cr.P.C.
These orders simply refer to bail, such
application can be made at any stage,
during investigation, during commitment
proceeding or any time during trial,
however, they do not decide any fact in
issue in any inguiry or trial, therefore,
these orders can not be put even in the
category of an interlocutory orders. In this
view of matter no revision is permissible
to any accused under the law.

5. The Juvenile Justice (Care and
Protection of Children) Act 2000 provides
for an appeal if the prayer of a delinquent
is refused by the Board or the competent
authority, though it is that even after 2
and 1⁄2 years since the enforcement of the
aforesaid Act the government of this State
has not constituted a Board, hence the
applicant certainly is denied of his right to
move such Board for determination of his
juvenile status yet this court however, can
not take upon itself the obligation of
Board. Under the Code of Criminal
Procedure a person can be treated a minor
if he is 16 years or below this is provided
under section 437 Cr.P.C. The added
benefits
to
the
applicant
in
the
circumstance of the raised age by 2 years
of
the
juvenile
justice
(Care
and
Protection of Children Act 2000) is in the
circumstance enumerated above is not
available to him due to non constitution of
Board. In view of the matter since the
revision is not maintenance I am not
entitled to grant any benefit under the said
Act to the applicant. He has a remedy by
way of bail under section 439 Cr.P.C. in
this Court. He had earlier filed a bail
application in this Hon'ble Court but got
the same dismissed as withdrawn just to
file the present revision. The advice in my
opinion was wholly ill-conceived.

6. The remedy is still open to the
applicant under section 439 Cr.P.C. the
revision is accordingly dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 30.9.2003

BEFORE
THE HON'BLE S.N. SRIVASTAVA, J.

Civil Misc. Writ Petition No. 33984 of 2003

Mohd. Atique Ansari

...Petitioner
Versus
State of U.P. and others ...Respondents
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 INDIAN LAW REPORTS ALLAHABAD SERIES [2004
102
Counsel for the Petitioner:
Sri B.N. Singh

Counsel for the Respondents:
Sri B.P. Singh
S.C.

U.P. Cooperative Societies (Employees
Service)
Regulations
1975-Reg.
85Service
Law-Reversion-Charges
of
embezzlement-preliminary
enquirycharges proved- Disciplinary enquirypetitioner afforded full opportunity of
hearing and active participation during
enquiry petitioner shown indulgence of
personal
hearing-no
perversity
or
infirmity in enquiry detected contention
that Reg. 85 was not complied with
cannot be accepted impugned order
recieved consideration and approval of
U.P. Cooperative Societies institutional
Board- held proper.

Held- Para 7

The finding recorded by the enquiry
officer is borne out from the record. The
last
contention
that
provisions
of
Regulations 85 of the U.P. Cooperative
Societies
(Employees
Service)
Regulations, 1975 were not complied
with does not commend to me for
acceptance in view of the fact that the
impugned order received consideration
and approval of the U.P. Cooperative
Societies Institutional Board Lucknow.
Cases referred:
2003 ALJ 812 (SC)
(1996) 9 SCC 69

(Delivered by Hon'ble S.N. Srivastava, J.)

1. Impugned herein is the order
dated 25.4.2003 by which the petitioner
was reverted from the post of Senior
Assistant/Junior
Branch
Manager
(Category II) to the post of Clerk/Cashier
Category III followed by deduction of
Rs.4000/- per month from his salary.

2. The facts forming background to
the present petition are that the petitioners
alongwith others misappropriated a sum
of Rs.2,09000/-. The defalcation intruded
upon the notice of the Bank as a result of
complaint made by one Adhyaksh Lal
Jeevan.
A
fact-finding
preliminary
enquiry was set afoot by the Bank
appointing one Sri J.S. Chauhan Senior
Manager (Vikas) as the enquiry officer by
means of the order dated 6.7.2001
requiring him to scrutinize the record and
submit his report by 9.8.2001. In the
report submitted by Sri J.S. Chauhan, the
petitioner was imputed with being privy
to
embezzlement
to
the
tune
of
Rs.2,09,000/- alongwith others and in
relation to embezzlement to the extent of
Rs.6000/-, the report pointed accusing
finger at the petitioner stating that he
embezzled the said amount individually to
the exclusion of others. It transpires from
the record that the modus operandi
adopted by the petitioner and others in
defalcation of the amount was by scoring
and altering the amount in the cheques
submitted to the Bank (details of date and
amount enumerated in the enquiry report).
As a sequel to this report, the petitioner
was
suspended
from
service
in
contemplation of disciplinary enquiry by
means of the order-dated 16.8.2001. One
Sri P.S. Valyan Section officer was
appointed as enquiry officer. As many as
14 charges were listed against the
petitioner in the charge-sheet all revolving
round financial irregularities. The enquiry
was taken to finality vide enquiry report
dated 5.6.2002 and all the charges were
brought home to the petitioner. The said
report was then placed before the
Managing Committee for consideration
on 5.6.2002. The Managing Committee
again met on 16.11.2002 in which the
matter again received consideration and
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1 All] Prashant Tomar V. State of U.P. and another
103
after hearing the petitioner, it was
consensually
decided
to
enjoin
the
petitioner to deposit Rs.47500/- in lump
sum and the remaining amount be
recovered in 12 equal instalments from
the salary of the petitioner followed by
decision that the petitioner be reverted
from the post of Senior Asstt./Junior
Branch
Manager
to
the
post
of
clerk/Cashier. It further transpires from
the record that the petitioner acquiesced to
the decision on condition that he may be
reinstated in the service of the Bank. As a
consequence of the aforesaid decision, a
show cause dated 2.12.02 notice was
served to the petitioner to which he
submitted his reply on 20.12.2002 with
accompanying receipt in token of deposit
of Rs.47500/-. In his reply, the petitioner
sought indulgence that the remaining
amount of Rs.52000/- be adjusted against
the bonus amount, arrears of suspension
allowance and other claims due to him
and further that he may be reinstated in
the
service.
In
the
self-same
representation, the petitioner ventilated
his grievance that one Har Sumran Lal,
the then Branch Manager had been
similarly
insinuated
of
committing
embezzlement but he was not proceeded
against till his death and was rather let off
without any disciplinary enquiry and the
embezzled amount which he was ascribed
to have embezzled, was adjusted against
the claims due to him and he was shown
undue indulgence as compared to the
petitioner, by taking one of his sons in the
service of Bank. It is in this background
that the petitioner has challenged the
validity of the impugned order.

3. I have heard learned counsel for
the petitioner and Sri B.P. Singh, learned
counsel representing the Bank authorities.
The learned counsel for the petitioner
began his submission stating that the
impugned order has been passed in breach
of the principles of natural justice. He
further
canvassed
that
the
finding
recorded by the enquiry officer was not
warranted by the facts and evidence on
record and as such there is element of
perversity permeating the entire finding.
He further canvassed that the disciplinary
authority erred in toeing the decision
taken by the Managing Committee and as
such the order of the disciplinary
authority suffers from the vice of nonapplication of mind.

4. It is not disputed that the
petitioner required copies of certain
documents by means of letter dated
8.2.2002 and subsequent letter dated
7.3.2002, It is eloquent from the record
that the petitioner was formally apprised
that most of the documents copies of
which were sought for by the petitioner
had already been supplied to him along
with the charge-sheet and for the
remaining documents, he was called upon
to approach the Ramnagar Branch of the
Bank and inspect the required records. It
would be explicit from the letter-dated
14.3.2002 that the petitioner rummaged
through day book, cash book etc. but
delayed filing his reply. The reply
ultimately came to be filed on 20.4.2002
by the petitioner. From a close scrutiny of
the reply, it does not appear that it
contained any grouse of his being denied
opportunity of hearing, or inspection of
any of the documents, it is ex-facie
implicit from a perusal of the various
papers on record that the petitioner never
complained that he was denied active
participation in the enquiry or that he was
stymied in adducing of evidence which he
wanted to adduce in aid of his defence. It
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 INDIAN LAW REPORTS ALLAHABAD SERIES [2004
104
would rather appear that the petitioner
submitted himself to the decision of the
Managing Committee on the condition
that he should be taken back in service. It
is not refuted that he was not called upon
or heard by the Managing Committee or
he was denied opportunity of hearing in
the course of enquiry. From a perusal of
letter dated 12th Sept 2002 issued by
Secretary/General Manager, it would
crystallize that the petitioner was afforded
opportunity of personal hearing as well
and as a sequel, he appeared and
submitted himself to the condition of
depositing a sum of Rs.47500/- in cash
and the remaining amount he sought to be
deducted every month in 12 instalments
from his salary. In the fact-situation, the
order passed by the disciplinary authority
appears to have been passed in the
conspectus of consideration of entire facts
and circumstances and also taking into
reckoning the fact that the petitioner had
acquiesced willingly to the decision of the
Managing Committee on condition of his
being taken back in service. It also
appears from the record that he also
acquiesced to the decision of his being
reduced in rank. There is nothing on the
record to indicate that the petitioner was
constrained or pressurized into agreeing
or acquiescing to the decision of the
Managing Committee or even if it be
assumed that the Bank took advantage of
his demoralized state, no such constraints
were pressed into service in his reply by
the petitioner and the only grievance
articulated by the petitioner was that his
request for adjusting the remaining
amount of Rs.52000/- against claims
which might accrue to him in the post
reinstatement stage, was not nodded in
approval. In the circumstances, there is
nothing in evidence to shore up the
submission pressed into service on behalf
of the petitioner at this stage that he was
denied opportunity of hearing or was not
allowed participation in the enquiry or
there was any arbitrary approach or
attitude in reaching the decision by the
disciplinary authority.

5. The main relief claimed in the
petition is the relief of quashment of the
impugned order. It is settled view that the
Court should not interfere with the
administrator's decision unless it was
illogical or suffers from procedural
impropriety or was shocking to the
conscience of the Court implying that it
was in defiance of logic or moral
standards. As a matter of fact, the judicial
review is confined to the defects and
deficiency or infirmity in the decision
making process and not the decision. In
this connection, analogy may be drawn
from a similar case dealt with by Hon.
Apex
Court
in
C.M.D.
United
Commercial Bank v. P.C. Kakkar 2003
All. L.J. 812. In this case, the Apex Court
was concerned with the question of
quantum of punishment. In that case, one
of the points highlighted was that in a
similar situation, lesser punishment was
imposed on one M.L.Keshwani though
the allegations against him were of much
serious nature. In para 14 of the said
decision the Apex Court gave expression
to the following observations.

"A Bank officer is required to
exercise higher standards of honesty and
integrity. He deals with money of the
depositors and the customers. Every
officer/employee of the Bank is required
to take all possible steps to protect the
interests of the Bank and to discharge his
duties with utmost integrity, honesty,
devotion and diligence and to do nothing
which is unbecoming of a Bank officer.
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1 All] Mohd. Atique Ansari V. State of U.P. and others
105
Good
conduct
and
discipline
are
inseparable from the functioning of every
officer/employee of the Bank."

6. The Apex Court placed credence
on Disciplinary Authority-cum-Regional
Manager v. Nikunja Bihari Patnaik 1996
(9) SCC 69 and observed that it is no
defence available to say that there was no
loss or profit resulted in case, when the
officer/employee acted without authority.
The very discipline of an organization
more particularly a Bank is dependent
upon each of its officers and officers
acting and operating within their allotted
sphere, acting beyond one's authority is
by itself a breach of discipline and is a
misconduct. Reverting to the instant case,
as stated supra, as many as 15 charges
have been listed against the petitioner and
all the charges pertain to financial
irregularities and embezzlements. It is
apparent from the record that modus
operandi adopted by the petitioner was to
do scoring, additions and alterations in the
cheques submitted to the Bank and the
amount embezzled at the time of detection
aggregated
to
a
hefty
amount
of
Rs.2,09000/- out of which the petitioner
was imputed to have appropriated to his
use a sum of Rs.99500/-. The petitioner
was granted personal hearing and it is
borne out from the record that he
acquiesced to the decision and the
punishment proposed by the Managing
Committee. He also did not demur to
charges which were established in the
enquiry and his grievance revolved round
the fact that the indulgence sought by me
was denied. The grounds urged in
vindication of the relief claimed in this
petition appear to have been pressed into
service here in this petition and therefore,
the grounds canvassed for quashing of the
impugned order are spurious and cannot
be acted upon for interference with the
impugned order. The underlying object in
filing the present petition appears to be to
assail the aspect of punishment awarded
to the petitioner and the flimsy grounds
have been set up as the causative factor
for challenge. In the circumstances, the
charges were of very serious nature and
were not shocking to the conscience of
the Court so as to warrant interference
with the impugned order or on the aspect
of punishment dealt out to the petitioner
in the instant case. The Bank has already
treated the matter with utmost leniency
and it no more calls for further
benignancy having regard to serious
delinquency of the petitioner.

7. As regards the submission that
enquiry ordered, suffers from the taint of
perversity, it should be noticed that
initially preliminary enquiry was ordered
which pointed accusing fingers at the
petitioner
and
others.
Consequently,
disciplinary enquiry was ordered. The
learned counsel for the petitioner has not
been able to bring home the fact that the
petitioner was not afforded opportunity of
hearing or was denied participation. It
would rather appear that the petitioner
actively participated in the enquiry and
the reply submitted to the charge sheet is
eloquent of his participation in the
enquiry. It also transpires from letter
dated 12th Sept 2002 that the petitioner
was
shown
indulgence
of
personal
hearing as well. By this reckoning, it
leads to irresistible conclusion that the
enquiry report does not wear the taint of
any infirmity nor is there any element of
perversity pervading the finding recorded
by the enquiry officer. The finding
recorded by the enquiry officer is borne
out from the record. The last contention
that provisions of Regulations 85 of the
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 INDIAN LAW REPORTS ALLAHABAD SERIES [2004
106
U.P. Cooperative Societies (Employees
Service) Regulations, 1975 were not
complied with does not commend to me
for acceptance in view of the fact that the
impugned order received consideration
and approval of the U.P. Cooperative
Societies Institutional Board Lucknow.

8. As a result of foregoing
discussion, the petition fails and is
accordingly dismissed in limine.
---------

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 13.08.2003

BEFORE
THE HON'BLE M. KATJU, J.
THE HON'BLE R.S. TRIPATHI, J.

Civil Misc. Writ Petition No. 34957 of 2003

Smt. Mithlesh Jain

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

Counsel for the Petitioner:
Sri Dilip Gupta
Sunita Agarwal

Counsel for the Respondents:
Sri Pankaj Mittal
S.C.

Constitution of India-Article 226-Civil
Law-whether
commercial
activities
should permitted in residential area?
Held-'No'

Held- Para 5

In the present petition it has been stated
in paragraphs 5 and 6 that in the
residential area a shopping complex is
being constructed and other commercial
activities are proposed. In our opinion
this is clearly illegal. We, therefore,
direct that no commercial or industrial
activity will be allowed to be carried on
in the area earmarked for residential
purpose in the Master Plan of Agra or of
in any other city in U.P. If commercial
and industrial activities are being carried
on in any city in U.P. in the areas
earmarked for residential purposes in
the Master Plan of that city such activity
must immediately be stopped by the
authorities.

(Delivered by Hon'ble M. Katju, J.)

1. Standing Counsel and Sri Pankaj
Mittal may file counter affidavit within
three weeks.

2. Issue notice to respondent no. 4
returnable at an early date.

3. The point raised in this writ
petition is of great importance throughout
the State of U.P. and perhaps in many
other States as well. The grievance of the
petitioner is that commercial activities are
being permitted in the residential area of
Agra.

4. We have had occasion to deal
with such kind of complaint in earlier
petition which came up before us. For
example in R.K. Mittal vs. State of U.P.
and others 2002 (1) UPLBEC 444 we
have held that no commercial and
industrial activity can be carried out in the
areas earmarked for residential purpose in
the NOIDA Master Plan. We are
informed that in a large number of cities
e.g.
Lucknow,
Agra,
Kanpur
etc.
commercial and industrial activities are
being carried on in the areas earmarked
for residential purposes in the Master Plan
of that city. In our opinion this is wholly
illegal. The rules have to be followed,