Brij Bihari Rajput vs State Of Madhya Pradesh And Other

Anand Singh Bahrawat, J

This petition, under Article 226 of Constitution of India, has been filed seeking the following relief (s):

"7.1 That, the order annexure P/1 dated 21-04-2016 issued by the respondent no. 1, kindly quashed.

7.2 That, the respondent kindly directed to release and refund the 5% pension of the petitioner with the interest of 18% p.a. and also directed to make fixation and pay arrears to the petitioner.

7.3 That, other relief doing justice including cost be ordered."

Learned counsel for petitioner submits that petitioner stood retired from the post of Naib Tahsildar on 31-07-2011. Initially, petitioner was appointed on the post of Revenue Inspector by order dated 06-11-1978 and thereafter he was promoted on the post of Naib Tahsildar in the month of July, 2009. At the relevant point of time i.e. in the year 2009 when petitioner was posted as Naib Tahsildar District Guna, a case regarding mutation was put up before him for exercising quasi judicial function and initially the mutation proceeding filed by Smt. Savitri Bai regarding mutation of Survey No.80/1/1 measuring 1.00 Hectare but said mutation proceeding was rejected by petitioner and it was alleged that later on after cancelling the earlier order dated 08-12-2009, the mutation order has been passed on 15-01-2010. Thereafter, a show cause notice was issued which had been replied by petitioner stating that said mutation which was done by petitioner was cancelled by the Sub-Divisional Officer. Thereafter, an enquiry was conducted without giving any proper opportunity of hearing to petitioner and enquiry officer submitted the enquiry report on 30-07-2011 i.e. before a day of the retirement of petitioner. On 12-10-2011, a letter was issued to petitioner for calling reply within a period of 7 days which was replied by petitioner stating that mutation done by petitioner had already been cancelled by the Sub-Divisional Officer and no pecuniary loss was caused to the State Government. It is also submitted that a letter dated 26-09-2012 was served to petitioner and he was called for hearing before respondent no. 1 at Bhopal on 16-10-2012. In compliance of the said letter, petitioner appeared before respondent No. 1. It is submitted that after retirement of petitioner the authority did not finalize his pension, therefore, petitioner preferred an application/representation dated 03-01- 2013 regarding finalization of his case. It is submitted that as per Rule 9 of M.P. Civil Services (Pension) Rules, 1976 (for brevity "Rules, 1976"), it is clear that the right of Governor to withhold or withdraw the pension or ordering recovery for pension of the whole or part of any pecuniary loss caused to the Government, if, in any departmental or any judicial proceeding, pensioner is found guilty of grave misconduct or negligence during the period of his service. It is submitted that in the present case no any pecuniary loss has been caused to the State Government and it is further submitted that as per Rule 9 of the Rules, 1976, pension can be withheld only in case, if there is finding of the authority about the grave misconduct in which an order of dismissal of service could be made in relation to the Government Servant during his service in case it is proposed to withhold or withdraw the pension or part thereof whether permanently or for specific period. Hence, it is clear that there is no finding by the authorities that misconduct committed by petitioner is so grave that if he had been in service, he would have been dismissed. It is submitted that respondents have not granted the opportunity of hearing after getting concurrence from the Public Service Commission, though it is the requirement of natural justice. It is further submitted that on perusal of order Annexure P-1, it appears that the respondent-authority has also not obtained the approval or permission from the Governor as provided under Rule 9 of Rules, 1976. It is further submitted that allegations made in the impugned order do not come under the definition of misconduct and at the relevant point of time petitioner was working as Naib Tahsildar and he is entitled to the benefit of the Judges (Protection) Act, 1985. It is submitted that the order of stopping pension of petitioner was to be passed personally by the Governor and could not have been passed by the Council of Ministers or any other authority competent as per Rules of Executive Business of Government. It is submitted that as per Rule 32 of the M.P. Civil Services (Classification, Control and Appeal) Rules, 1966 the advice received from the PSC must be supplied to petitioner. The said aspect has not been considered by respondents and a non-speaking and unreasoned order has been issued by the incompetent authority.

Per contra, it is submitted by learned counsel for respondent/State that charge-sheet was issued to petitioner alleging certain charges and after initiating the departmental enquiry against petitioner and after conducting enquiry proceedings, after examining witnesses, enquiry officer submitted his report on 31.7.2011. It is submitted that Enquiry Report reveals that charges levelled against petitioner are found proved, therefore, as petitioner was already retired on attaining the age of superannuation w.e.f. of 31.7.2011, therefore, matter was referred to the State Government in view of Rule-9 of Rules, 1976 and ultimately State Government passed the order dated 21.4.2016 by stopping 5% pension in view of Rule-9 of Rules, 1976. It is submitted that petitioner was given full opportunity of hearing in the departmental enquiry proceedings but he failed to establish that he had not committed misconduct, therefore, punishment order has rightly been passed. It is submitted that the scope of judicial review in a petition filed under Article 226 of the Constitution of India is very limited. On these premised submissions, learned counsel for respondent/State opposes the arguments advanced by learned counsel for petitioner by supporting the order impugned and prays for dismissal of instant petition.

Heard learned counsel for the parties and perused the record.

Before analyzing contentions of rival parties, it would be apt to reproduce relevant provision of Rule 9 of Rules, 1976 which goes as under:

"9. Right of Governor to withhold or withdraw pension. -

(1) The Governor reserves to himself the right of withholding or withdrawing a pension or part thereof, whether permanently or for a specified period, and of ordering recovery from pension of the whole or part of any pecuniary loss caused to the Government if, in any departmental or judicial proceeding, the pensioner is found guilty of grave misconduct or negligence during the period of his service, including service rendered upon re-employment after retirement:

Provided that the State Public Service Commission shall be consulted before any final orders are passed :

Provided further that where a part of pension is withheld or withdrawn, the amount of such pension shall not be reduced below [the minimum pension as determined by the Government from time to time];

(2) (a) The departmental proceedings [xxx], if instituted while the Government servant was in service whether before his retirement or during his re-employment, shall, after the final retirement of the Government servant, be deemed to be proceedings under this rule and shall be continued and concluded by the authority by which they were commenced, in the same manner as if the Government servant had continued in service :

Provided that where the departmental proceedings are instituted by an authority subordinate to the Governor, that authority shall submit a report regarding its findings to the Governor.

(b) The departmental proceedings, if not instituted while the Government servant was in service whether before his retirement or during his re-employment :-

(i) shall not be instituted save with the sanction of the Governor; (ii) shall not be in respect of any event which took place more than four years before such institution; and

(iii) shall be conducted by such authority and in such place as the Government may direct and in accordance with the procedure applicable to departmental proceedings :

(a) in which an order of dismissal from service could be made in relation to the Government servant during his service in case it is proposed to withhold or withdraw a pension or part thereof whether permanently or for a specified period; or

(b) in which an order of recovery from his pay of the whole or part of any pecuniary loss caused by him to the Government by negligence or breach of orders could be made in relation to the Government servant during his service if it is proposed to order recovery from his pension of the whole or part of any pecuniary loss caused to the Government].

(3) No judicial proceeding, if not instituted while the Government servant was in service, whether before his retirement or during his re-employment, shall be instituted in respect of a cause of action which arose or in respect of an event which took place, more than four years before such institution.

(4) In the case of a Government servant who has retired on attaining the age of superannuation or otherwise and against whom any departmental or judicial proceedings are instituted or where departmental proceedings are continued under sub-rule (2), a provisional pension and death-cum-retirement gratuity as provided in [Rule 64], as the case may be, shall be sanctioned :

[Provided that where pension has already been finally sanctioned to a Government servant prior to institution of departmental proceedings, the Governor may, by order in writing, withhold, with effect from the date of institution of such departmental proceedings fifty per cent of the pension so sanctioned subject however that the pension payable after such withholding is not reduced to less than [the minimum pension as determined by the Government from time to time] : Provided further that where departmental proceedings have been instituted prior to the 25th October, 1978, the first proviso shall have effect as it for the words "with effect from the date of institution of such proceedings" the words "with effect from a date not later than thirty days from the date aforementioned," had been substituted : Provided also that-

(a) If the departmental proceedings are not completed within a period of one year from the date of institution thereof, fifty per cent of the pension withheld shall stand restored on the expiration of the aforesaid period of one year;

(b) If the departmental proceedings are not completed within a period of two years from the date of institution the entire amount of pension so withheld shall stand restored on the expiration of the aforesaid period of two years; and

(c) If in the departmental proceedings final order is passed to withhold or withdraw the pension or any recovery is ordered, the order shall be deemed to take effect from the date of the institution of departmental proceedings and the amount, of pension since withheld shall be adjusted in terms of the final order subject to the limit specified in sub-rule (5) of Rule 43].

(5) Where the Government decides not to withhold or withdraw pension but orders recovery of pecuniary loss from pension, the recovery shall not be made at a rate exceeding one-third of the pension admissible on the date of retirement of a Government servant.

(6) For the purpose of this rule-

(a) departmental proceedings shall be deemed to be instituted on the date on which the statement of charges is issued to the Government servant or pensioner, or if the Government servant has been placed under suspension from an earlier date, on such date; and

(b) judicial proceedings shall be deemed to be instituted-

(i) in the case of criminal proceedings, on the date on which the complaint or report of a police officer, of which the Magistrate takes cognizance, is made, and

(ii) in the case of civil proceedings, on the date the plaint is presented in the Court."

From perusal of record, it is gathered that petitioner stood retired from the post of Naib Tahsildar on 31-07-2011. Initially, petitioner was appointed on the post of Revenue Inspector by order dated 06-11-1978 and thereafter he was promoted on the post of Naib Tahsildar in the month of July, 2009. At the relevant point of time i.e. in the year 2009 when petitioner was posted as Naib Tahsildar District Guna, a case regarding mutation was put up before him for exercising quasi judicial function and initially the mutation proceeding filed by Smt. Savitri Bai regarding mutation of Survey No.80/1/1 measuring 1.00 Hectare but said mutation proceeding was rejected by petitioner and it was alleged that later on after cancelling the earlier order dated 08-12-2009, the mutation order has been passed on 15-01-2010. Thereafter, a show cause notice was issued which had been replied by petitioner stating that said mutation which was done by petitioner was cancelled by the Sub-Divisional Officer. Thereafter, an enquiry was conducted without giving any proper opportunity of hearing to petitioner and enquiry officer submitted the enquiry report on 30-07-2011 i.e. before a day of the retirement of petitioner. On 12-10-2011, a letter was issued to petitioner for calling reply within a period of 7 days which was replied by petitioner stating that mutation done by petitioner had already been cancelled by the Sub-Divisional Officer and no pecuniary loss was caused to the State Government. A letter dated 26-09-2012 was served to petitioner and he was called for hearing before respondent no. 1 at Bhopal on 16-10-2012. In compliance of the said letter, petitioner appeared before respondent No. 1. After retirement of petitioner the authority did not finalize his pension, therefore, petitioner preferred an application/representation dated 03-01-2013 regarding finalization of his case. As per Rule 9 of Rules, 1976, it is clear that the right of Governor to withhold or withdraw the pension or ordering recovery for pension of the whole or part of any pecuniary loss caused to the Government, if, in any departmental or any judicial proceeding, pensioner is found guilty of grave misconduct or negligence during the period of his service. In the present case, no any pecuniary loss has been caused to the State Government and as per Rule 9 of the Rules, 1976, pension can be withheld only in case, if there is finding of the authority about the grave misconduct in which an order of dismissal of service could be made in relation to the Government Servant during his service in case it is proposed to withhold or withdraw the pension or part thereof whether permanently or for specific period. Hence, it is clear that there is no finding by the authorities that misconduct committed by petitioner is so grave that if he had been in service, he would have been dismissed. Respondents have not granted the opportunity of hearing after getting concurrence from the Public Service Commission, though it is the requirement of natural justice. On perusal of Annexure P-1, allegations made in the impugned order do not come under the definition of misconduct and at the relevant point of time petitioner was working as Naib Tahsildar and he is entitled to the benefit of the Judges (Protection) Act, 1985. As per Rule 32 of the M.P. Civil Services (Classification, Control and Appeal) Rules, 1966 the advice received from the PSC had to be supplied to petitioner.

The advice of the Public Service Commission, relied upon by the State while passing the impugned order, was not supplied to petitioner, contrary to settled legal principles. No financial loss to the State has been proved, and there is no finding that the alleged misconduct was of such grave in nature as would warrant dismissal from service. In such circumstances, withholding of the petitioner's pension under Rules, 1976 appears to lacking in sufficient legal basis. Accordingly, these aspects require careful judicial scrutiny.

The judgment passed by the Apex Court in the case of S.N. Narula Vs. Union of India and others, reported in (2011) 4 SCC 591 has been followed by the Apex Court in the case of Union of India and others Vs. R.P. Singh, reported in (2014) 7 SCC 340. In the case of R.P. Singh (supra), in para- 12, 21 and 23, it is held as under :

"12. We will be failing in our duty if we do not take note of the submission of Mr. W.A. Qadri that the decision in S.N. Narula case is not an authority because the Tribunal has set aside the order of the disciplinary authority on the ground that it was a non-speaking order. Be that as it may, when the issue was raised before this Court and there has been an advertence to the same, we are unable to accept the submission of Mr. Qadri. The said decision in S.N. Narula case is an authority for the preposition that the advice of UPSC, if sought and accepted, the same, regard being had to the principles of natural justice, is to be communicated before imposition of the punishment.

At this juncture, we would like to give our reasons for our respectful concurrence with S.K. Kapoor. There is no cavil over the proposition that the language engrafted in Article 320(3)(c) does not make the said Article mandatory. As we find, in T.V.Patel's case, the Court has based its finding on the language employed in Rule 32 of the Rules. It is not in dispute that the said Rule from the very inception is a part of the 1965 Rules. With the efflux of time, there has been a change of perception as regards the applicability of the principles of natural justice. An Inquiry Report in a disciplinary proceeding is required to be furnished to the delinquent employee so that he can make an adequate representation explaining his own stand/stance. That is precisely what has been laid down in the B.Karunakar case. "

We have referred to the aforesaid decision in B. Karunakar case in extenso as we find that in the said case it has been opined by the Constitution Bench that non-supply of the enquiry report is a breach of the principle of natural justice. Advice from the UPSC, needless to say, when utilized as a material against the delinquent officer, it should be supplied in advance. As it seems to us, Rule 32 provides for supply of copy of advice to the government servant at the time of making an order. The said stage was in prevalence before the decision of the Constitution Bench. After the said decision, in our considered opinion, the authority should have clarified the Rule regarding development in the service jurisprudence."

Thus, as per this judgment, non-supply of the enquiry report is a breach of natural justice and advice from UPSC should be supplied in advance and if the same is not done, the enquiry is vitiated on the count of violation of natural justice and in the present case, advice from MPPSC has not been supplied in advance, hence, the enquiry is vitiated on acount of violation of natural justice.

Now, coming to the another aspect of the matter which has been raised by petitioner is that the order should have been passed by the Governor personally and could not be passed by the competent authority with approval of Council of Ministers under the Rules of Business of Executive Government of the State.

The powers conferred on the Governor under various service rules framed under Article 309 of Constitution of India have been considered in detail by the Full Bench of this Court in the case of State of M.P. v. P.N. Raikwar reported in ILR 2018 MP 2696 (FB) in which case the Full Bench of this Court has considered the judgment of the Supreme Court in the case of Brajendra Singh Yambem Vs. Union of India reported in (2016) 9 SCC 20 in detail so also the earlier judgments on the point and after considering the entire law on the subject, the Full Bench has held that in the case of Brajendra Singh Yambem (supra) the earlier judgment of 7 Judges Bench of the Supreme Court in the case of Samsher Singh v. State of Punjab, (1974) 2 SCC 831 so also the three judges Bench judgment of Supreme Court in the case of Union of India v. Sripati Ranjan Biswas, (1975) 4 SCC 699 were not brought to the attention of the Supreme Court.

The Full Bench considered the judgment of 7 judges Bench in Samsher Singh (supra) which reads as under:-

"31. Further the Rules of Business and allocation of Business among the Ministers are relatable to the provisions contained in Article 53 in the case of the President and Article 154 in the case of the Governor, that the executive power shall be exercised by the President or the Governor directly or through the officers subordinate. The provisions contained in Article 74 in the case of the President and Article 163 in the case of the Governor that there shall be a Council of Ministers to aid and advise the President or the Governor, as the case may be, are sources of the Rules of Business. These provisions are for the discharge of the executive powers and functions of the Government in the name of the President or the Governor. Where functions entrusted to a Minister are performed by an official employed in the Minister's department there is in law no delegation because constitutionally the act or decision of the official is that of the Minister. The official is merely the machinery for the discharge of the functions entrusted to a Minister (see Halsbury's Laws of England 4th Ed., Vol. I, paragraph 748 at p. 170 and Carltona Ltd. v. Works Commissioners [(1943) 2 All ER 560] ).

The distinction made by this Court between the executive functions of the Union and the executive functions of the President does not lead to any conclusion that the President is not the constitutional head of Government. Article 74(1) provides for the Council of Ministers to aid and advise the President in the exercise of his functions. Article 163(1) makes similar provision for a Council of Ministers to aid and advise the Governor. Therefore, whether the functions exercised by the President are functions of the Union or the functions of the President they have equally to be exercised with the aid and advice of the Council of Ministers, and the same is true of the functions of the Governor except those which he has to exercise in his discretion.

In Sardari Lal case an order was made by the President under sub-clause (c) to clause (2) of Article 311 of the Constitution. The order was:

"The President is satisfied that you are unfit to be retained in the public service and ought to be dismissed from service. The President is further satisfied under sub-clause (c) of proviso to clause (2) of Article 311 of the Constitution that in the interest of the security of the State it is not expedient to hold an inquiry."

The order was challenged on the ground that the order was signed by the Joint Secretary and was an order in the name of the President of India and that the Joint Secretary could not exercise the authority on behalf of the President.

The decision in Sardari Lal case that the President has to be satisfied personally in exercise of executive power or function and that the functions of the President cannot be delegated is with respect not the correct statement of law and is against the established and uniform view of this Court as embodied in several decisions to which reference has already been made.

These decisions are from the year 1955 up to the year 1971. These decisions are Rai Saheb Ram Jawaya Kapur v. State of Punjab, A. Sanjeevi Naidu v. State of Madras, and U.N.R. Rao v. Smt Indira Gandhi. These decisions were neither referred to nor considered in Sardari Lal case.

The President as well as the Governor is the constitutional or formal head. The President as well as the Governor exercises his powers and functions conferred on him by or under the Constitution on the aid and advice of his Council of Ministers, save in spheres where the Governor is required by or under the Constitution to exercise his functions in his discretion. Wherever the Constitution requires the satisfaction of the President or the Governor for the exercise by the President or the Governor of any power or function, the satisfaction required by the Constitution is not the personal satisfaction of the President or Governor but the satisfaction of the President or Governor in the constitutional sense in the Cabinet system of Government, that is, satisfaction of his Council of Ministers on whose aid and advice the President or the Governor generally exercises all his powers and functions. The decision of any Minister or officer under Rules of Business made under any of these two Articles 77(3) and 166(3) is the decision of the President or the Governor respectively. These articles did not provide for any delegation. Therefore, the decision of a Minister or officer under the Rules of Business is the decision of the President or the Governor.

The majority view in Babu Ram Upadhya case is no longer good law after the decision in Moti Ram Deka case. The theory that only the President or the Governor is personally to exercise the pleasure or dismissing or removing a public servant is repelled by express words in Article 311 that no person who is a member of the civil service or holds a civil post under the Union or a State shall be dismissed or removed by authority subordinate to that by which he was appointed. The words "dismissed or removed by an authority subordinate to that by which he was appointed" indicate that the pleasure of the President or the Governor is exercised by such officers on whom the President or the Governor confers or delegates power.

For the foregoing reasons we hold that the President or the Governor acts on the aid and advice of the Council of Ministers with the Prime Minister at the head in the case of the Union and the Chief Minister at the head in the case of State in all matters which vests in the Executive whether those functions are executive or legislative in character. Neither the President nor the Governor is to exercise the executive functions personally. The present appeals concern the appointment of persons other than District Judges to the Judicial Services of the State which is to be made by the Governor as contemplated in Article 234 of the Constitution after consultation with the State Public Service Commission and the High Court. Appointment or dismissal or removal of persons belonging to the Judicial Service of the State is not a personal function but is an executive function of the Governor exercised in accordance with the rules in that behalf under the Constitution.

The Full Bench held that in such Rules framed under Article 309 of the Constitution of India the power conferred on the Governor is not to be exercised by the Governor personally but by the Council of Ministers or the Ministers or a competent authority as per the rules of Business. The said case before the Full Bench was in relation to the Governor being named as an appellate authority under the M.P. Civil Services (Classification, Control and Appeal) Rules, 1966.

Considering Para-48 of the judgment in the case of Samsher Singh (supra), the Full Bench considered the conclusions of a Constitution Bench in case of Nabam Rebia & Bamang Felix v. Dy. Speaker, Arunachal Pradesh Legislative Assembly, (2016) 8 SCC 1 wherein the Constitution Bench held as under:-

We may, therefore, summarise our conclusions as under:

155.1. Firstly, the measure of discretionary power of the Governor, is limited to the scope postulated therefor, under Article 163(1).

155.2. Secondly, under Article 163(1) the discretionary power of the Governor extends to situations, wherein a constitutional provision expressly requires the Governor to act in his own discretion.

155.3. Thirdly, the Governor can additionally discharge functions in his own discretion, where such intent emerges from a legitimate interpretation of the provision concerned, and the same cannot be construed otherwise.

155.4. Fourthly, in situations where this Court has declared that the Governor should exercise the particular function at his own and without any aid or advice because of the impermissibility of the other alternative, by reason of conflict of interest.

155.5. Fifthly, the submission advanced on behalf of the respondents, that the exercise of discretion under Article 163(2) is final and beyond the scope of judicial review cannot be accepted. Firstly, because we have rejected the submission advanced by the respondents, that the scope and extent of discretion vested with the Governor has to be ascertained from Article 163(2), on the basis whereof the submission was canvassed. And secondly, any discretion exercised beyond the Governor's jurisdictional authority, would certainly be subject to judicial review.

155.6. Sixthly, in view of the conclusion drawn at fifthly above [para 155.5], the judgments rendered in Mahabir Prasad Sharma case [Mahabir Prasad Sharma v. Prafulla Chandra Ghose, (1968) 72 CWN 328 : 1968 SCC OnLine Cal 3], and Pratapsingh Raojirao Rane case [Pratapsingh Raojirao Rane v. Governor of Goa, AIR 1999 Bom 53 : 1998 SCC OnLine Bom 351] , by the High Courts of Calcutta and Bombay, respectively, do not lay down the correct legal position. The constitutional position declared therein, with reference to Article 163(2), is accordingly hereby set aside.

Considering the entire law on the subject, the Full Bench in P.N. Raikwar (supra) in concluding Para 23 held as under:-

"23. In view of the above, we find that no appeal shall lie to the Governor if an order is passed by him personally in terms of Rule

22 Clause (i) of the Service Rules, but since the order of punishment has not been passed by the Governor personally but has been passed in the name of the Governor, therefore, an appeal would lie under Rule 23 of the Service Rules. The appellate authority shall be Governor in terms of Rule 24(1)(i)(b) of the Service Rules, but again it is not the power to be exercised by the Governor personally, but in terms of Rule of Business by the 'Council of Ministers' or the 'Minister' as may be warranted in the Rule of Business."

The same view has been taken by a Division Bench of this court recently in WA 2061/2019 (Indore), decided on 15.6.2023.

In view of aforesaid, the argument of petitioner that the order stopping pension of petitioner was to be passed personally by the Governor and could not be passed by the Council of Ministers or any other authority competent as per Rules of Executive Business of Government cannot be countenanced.

Now, another aspect of the matter:

"Whether petitioner who was Naib Tahsildar is entitled to Judges Protection Act while performing quasi judicial function?

Section - 2 of the Judges (Protection) Act, 1985 defines about the word "Judge" which reads as under -

"2. Definition.-- In this Act "Judge" means not only every person who is officially designated as a Judge, but also every person-- (a) who is empowered by law to give any legal proceeding a definitive judgment, or a judgment which, if not appealed against, would be definitive,or judgment which, if confirmed by some other authority, would be definitive; or (b) who is one of a body of persons which body of persons is empowered by law to give such a judgment as is referred to in clause (a)."

As per the said definition, any person who is empowered by law to give any legal proceeding a definitive judgment and any person who is one of a body of persons which body of persons is empowered by law to give such a judgment as is referred to in Clause (a) is a Judge.

In the present case, petitioner is empowered to give judgment, therefore, he is a judge as per definition given under the Judges (Protection) Act, 1985.

Section 3 of the Judges (Protection) Act, 1985 gives additional protection to Judges. The said Section reads as under :-

"3. Additional Protection to Judges.

(1) Notwithstanding anything contained in any other law for the time being in force and subject to the provisions of sub-section (2), no Court shall entertain or continue any civil or criminal proceedings against any person who is or was a Judge for any act, thing or word committed, done or spoken by him, or in the course of acting or purporting to act in the discharge of his official or judicial duty or function.

(2) Nothing in sub-section (1) shall debar or affect in any manner, the power of the Central Government or the State Government or the Supreme Court of India or any High Court or any other authority under any law for the time being in force to take such action (whether by way of civil,criminal or departmental proceedings or otherwise) against any person who is or was a Judge."

As per this Section, some protection has been given to the Judge while discharging his duty as Judge. The definition of judgment which is given under Section 2 of the Judges (Protection) Act, 1985 is much wider and it includes an order which determines the rights of the parties, for the reasons given in it.

Petitioner, exercising his power under the M.P. Land Revenue Code, is a Judge and, therefore, he is entitled to protection under Section 3 (1) of the Judges (Protection) Act, 1985 and no Court could entertain any civil or criminal proceedings against him for any act, thing or word committed, done or spoken by him, or in the course of acting or purporting to act in the discharge of his official or judicial duty or function.

The Division Bench of this Court in the case of State of M.P Vs. Shriniwas Sharma & Anr. reported in 2005(2) M.P.L.J. 155 has held as under :-

"As per the settled legal position the officers who are discharging the duties as a quasi judicial authorities are protected under the umbrella of acts done in good faith. When law protects a judicial or quasi judicial authority in relating to his bonafide act then the concerned officer who discharges the duties cannot be brought in the net of the departmental enquiry unless something additional has been brought into existence. A mere mistake committed while passing a quasi-judicial order does not partake the character or nature of misconduct. The Tribunal has analyzed the said aspect in a great detail we perceive no reason to differ with the same."

As per the said judgment, the officers, who are discharging the duties as a quasi judicial authorities are protected under the umbrella of acts done in good faith.

Similar view has been taken by this Court in the case of Balram & Anr. Vs. Aswani Kumar Yadav & Anr. reported in 2001 (2) M.P.H.T. 330 as well as the judgment passed by this Court in the case of State of M.P. Vs. Rajeev Jain reported in 2001 (4) M.P.H.T. 58.

Thus, in the light of the aforesaid judgments and enunciation of facts and circumstances of the case, petitioner being Naib Tahsildar at the relevant point of time was entitled to receive additional protection to Judges given under the Judges (Protection) Act, 1985.

Now, coming to the last Issue i.e. whether charges framed against petitioner come under the definition of misconduct?

As per charges mentioned in the impugned order, they do not come within the definition of misconduct. As per the Division Bench judgment passed in the case of S.D. Bind v. Union of India and Others, 2015 (1) M.P.L.J. 74, at best, the act of petitioner may fall under the category of carelessness or negligence. The relevant extract of order passed in the case of S.D. Bind (supra) is reproduced below for ready reference and convenience:-

That apart, another aspect of the matter warrants consideration. The irregularities which is found against the petitioner is only non-following of certain procedure in the matter of awarding contract. The question is as to whether such an irregularity in the matter of following the procedure can be termed as a misconduct. The Supreme Court has considered the aforesaid aspect in the case of Union of India v. J. Ahmed, (1979) 2 SCC 286 : AIR 1979 SC 1022 which has been followed again by the Supreme Court in the case of Inspector Prem Chand v. Govt, of National Capital Territory of Delhi, (2007) 4 SCC 566, wherein it has been held by the Supreme Court that merely lack of efficiency, failure to attain the highest standard of administrative ability or negligent or careless want of dealing with a matter on one isolated may not constituted a misconduct for which punishment can be imposed.

In the present case apart from the fact that the Division Bench has made the observations as reproduced hereinabove and interfered with the imposition of cost, it found that there was certain discrepancy in the guidelines laid down and, therefore, in paragraph 9 fresh guidelines for future action was issued. Once this is the factual scenario then merely because the petitioner failed to follow the guidelines for once, it cannot be said that the petitioner has committed misconduct in the matter. At best action of the petitioner may fall in the category of careless or negligence in the matter of dealing with the case once an isolated occasion and if the principles laid down by the Supreme Court as indicated in the case of J. Ahmed (supra) is applied, we are of the considered view that allegations levelled even do not amount to misconduct for which action can be taken.

There is nothing on record which shows that petitioner had ill-motive while exercising his quasi judicial function regarding mutation of Survey No.80/1/1. Thus, the act of petitioner cannot be termed as misconduct as per the judgment rendered by Hon'ble Apex Court in the case of Inspector Prem Chand Vs. Govt. of NCT of Delhi and others reported in (2007) 4 SCC 566, para 12 of which is quoted below for ready reference and convenience:

It is not in dispute that a disciplinary proceeding was initiated against the appellant in terms of the provisions of the Delhi Police (Punishment and Appeal) Rules, 1980. It was, therefore, necessary for the disciplinary authority to arrive at a finding of fact that the appellant was guilty of an unlawful behaviour in relation to discharge of his duties in service, which was wilful in character. No such finding was arrived at. An error of judgment, as noticed hereinbefore, per se is not a misconduct. A negligence simpliciter also would not be a misconduct. In Union of India v. J. Ahmed [(1979) 2 SCC 286 : 1979 SCC (L&S) 157] whereupon Mr Sharan himself has placed reliance, this Court held so stating: (SCC pp. 292-93, para 11)

"11. Code of conduct as set out in the Conduct Rules clearly indicates the conduct expected of a member of the service. It would follow that conduct which is blameworthy for the government servant in the context of Conduct Rules would be misconduct. If a servant conducts himself in a way inconsistent with due and faithful discharge of his duty in service, it is misconduct (see Pearce v. Foster [(1886) 17 QBD 536, 542 : (1886-90) All ER Rep Ext 1752] ). A disregard of an essential condition of the contract of service may constitute misconduct [see Laws v. London Chronicle (Indicator Newspapers [(1959) 1 WLR 698] )]. This view was adopted in Shardaprasad Onkarprasad Tiwari v. Divisional Supdt., Central Rly., Nagpur Division, Nagpur [(1959) 61 Bom LR 1596] and Satubha K. Vaghela v. Moosa Raza [10 Guj LR 23] . The High Court has noted the definition of misconduct in Stroud's Judicial Dictionary which runs as under:

'Misconduct means, misconduct arising from ill motive; acts of negligence, errors of judgment, or innocent mistake, do not constitute such misconduct'."

Emphasis supplied

Having given anxious consideration to the totality of the facts and circumstances of the case and in light of the pronouncements referred to hereinabove, this Court is of the considered opinion that though mandatory consultation with the State Public Service Commission was undertaken, however, the copy of the said advice was not supplied to petitioner and petitioner was not given opportunity of hearing in respect of the said advice. The petitioner, discharging quasi-judicial functions, is entitled to the protection available under the Judges (Protection) Act. There is nothing on record to indicate any misconduct or mala fide conduct on the part of petitioner. Furthermore, pension is a proprietary right as has been held by the Court in catena of judgments. Such a proprietary right is not required to be taken away without following proper procedure of law. If such a drastic penalty of withholding of pension is required to be imposed on any such government servant, definite finding is required to be recorded with respect to the gravity of the misconduct and the ultimate result of the said misconduct. As nothing is found in this respect, no such consideration is done by respondents while imposing penalty upon petitioner, hence, order dated 21.04.2016 cannot be sustained.

Consequently, present petition stands allowed and disposed of in the following terms:

(i) Impugned order Annexure P-1 dated 21.04.2016 is hereby quashed;

(ii) Respondents are directed to refund the withheld 5% pension of petitioner with interest at the rate of 6% per annum from the date of retirement till actual payment is made within a period of three months from the date of receipt of certified copy of this order, failing which this amount would carry interest at the rate of 12% per annum from the date of retirement till actual payment is made.