C.L.Verma @APPELLANT@Hash State Of Rajasthan And Ors

The present writ petition has been filed by the petitioner with the following prayer:-

“It is, therefore, prayed that the Hon’ble Court may call for the entire record concerning the case and after taking the same by issuing writ,

order or direction:

(i) quash the charge sheet dated 29.7.94, enquiry report forwarded vide letter dated 27.3.96, letter dated 25.1.1997 and the punishment order dated

14.3.97 with all consequential benefits and the petitioner be treated to be in continuous service;

(ii) if during the pendency of the writ petition the petitioner is superseded in RAS Senior Scale, the respondents be directed to further grant him

promotion to RAS Senior Scale with all consequential benefits of pay and allowance;

(iii) any other order or direction as may be deemed fit and proper in the facts and circumstances of the present case may also be passed in favour of

the humble petitioner;

(iv) cost of this writ petition may also be awarded in favour of the humble petitioner.â€​

The brief facts of the case are that the petitioner had joined Rajasthan Tehsildar Services in the year 1978 and appointed as Naib Tehsildar on

11.01.1978 and thereafter he was posted on the post of Tehsildar. The petitioner was promoted to the Rajasthan Administrative Services cadre on the

basis of seniority-cum-merit vide order dt.31.10.1991.

The petitioner was working in the year 1985 as Assistant Settlement Officer, Rajgarh, District Alwar and was also having the power of Land Record

Officer and as such the petitioner was holding judicial Officer’s post, as per Section 5(35) of the Rajasthan Tenancy Act, 1955.

The petitioner was served with a memorandum of charges along with allegations under Rule 16 of the Rajasthan Civil Services (Classification, Control

and Appeal) Rules, 1958 dt.29.07.1994 wherein total seven charges were leveled against the petitioner. The charges Nos.1 to 6 were in relation to

opening of mutation proceedings in respect of different khasra numbers in village Chhilodii and the charge No.7 was in respect of violating the

provisions of Section 42 of the Rajasthan Tenancy Act, as the petitioner was alleged to have allowed entries to be made in excess to the land than

measurement by accepting the fragmented portion of the land. The extract of chargesheet is reproduced hereunder:-

“vkjksi i= Â

fo:n

Jh fNxu yky oekZ]

Hkw-iw-,-,l-vks-gkWy

vkj-,-,l-

vkjksi la[;k & 1

;g gS fd mDr fNaxu yky oekZ us o""kZ 1985 esa Hkw&izcU/k vf/kdkjh] vyoj ds v/khuLFk ,-,l-vks- ds in ijÂ

dk;Zjr gksrs gq, mDr vof/k esa xzke fNykSMh rglhy jktxikapk dk fgLlk vfu;fer :i ls ,d rjQk esa 'kkfey djus o LFkkukUrj.k dj vius inh; gSfl;r dk nq:i;ksx o fu;eksa dh vosguk djus ds fy;s mRrjnk;h gS tSlk fd

layXu vkjksi fooj.k i= esa of.kZr gSA

vkjksi la[;k & 2

;g fd mDr Jh oekZ] ,-,l-vks- us mDr in ij mDr vof/k esa dk;Zjr gksrs gq, xzke fNyksMh rglhy jktxvf/kfu;e 1956 dh /kkjk 48 ds fo:) fofue; Lohdkj djus ds fy;s mRrjnk;h gS tSlk fd layxu vkjksi fooj.k i= esa of.kZr gSA

vkjksi la[;k & 3

;g gS fd mDr Jh oekZ] ,-,l-vks- us mDr in ij mDr vof/k esa dk;Zjr gksrs gq, xzke fNyksMh rg- jktxdCtk dk'r ds vk/kj ij [kkrsnkjh ifjorZu ds vkns'k fu;efo:) djus o viuh inh; gSfl;r dk nq:i;ksx djus ds fy;s mRrjnk;h gSA tSlk fd layxu vkjksi forj.k i= esa

of.kZr gSA

vkjksi la[;k & 4

;g gS fd mDr Jh oekZ] ,-,l-vks- us mDr in ij mDr vof/k esa dk;Zjr gksrs gq;s mDr Jh oekZ ,-,l-vks- us mDr in ij mDr vof/k esa dk;Zjr gksrs gq, xzke

fNyksMh rg- jktxds vkns'k vfu;fer :i ls fcuk l{ke U;k;ky; ds fu.kZ;kuqlkj djus o viuh inh; gSfl;r dk nq:i;ksx djus ds fy;s mRrjnk;h gSA tSlk fd layxu vkjksi fooj.k i= la[;k 7

esa of.kZr gSA

vkjksi la[;k & 5

mDr Jh oekZ ,-,l-vks- us mDr in ij mDr vof/k esa dk;Zjr gksrs  gq, xzke fNyksMh rg- jktxjtkca/kh ,ao HkbZ caVokjk dk gokyk nsrs gq, jsdkMsaV [kkrsnkj dk uke gVk;k tkdj vU; d`""kdksZa ds uke ntZ djus ds vkns'kÂ

ikfjr fd;s gSA tc fd fu;ekUrxZr [kkrsnkjh dk fijoZru iathd`r  nLrkost vFkok l{ke U;k;ky; ds fu.kZ; vuqlkj fd;s tkus dk izko/kku gSA bl

rjg mDr Jh oekZ fu;eksa dh vogsyuk dj vius dRrZO;ksa ds izfr ykijokgh o mnklhurk cjrus ds fy;s nks""kh gS ftldk fooj.k vkjksi fooj.k i= esa vafdr gSA

vkjksi la[;k & 6

;g fd mDr Jh oekZ us mDr in ij mDr vof/k esa dk;Zjr gksrs gq, xzke fNyksMh rg- jktxxksfoUn iq= eksrh dk 1@2 fgLlk ,d rjQk esa rdZ djus ds vkns'k ikfjr fd;s gS tc fd fu;ekuqlkj iaftd`r nLrkost vFkok l{ke U;k;ky; ds fu.kZ;kuqlkj gh ,d

rjQk esa rdZ djuk vFkok 'kkfey esa LfkkukUrj.k djus dk izko/kku gSA bl rjg osfu;eksa dh vogsyuk djus o vius drZO;ksa ds izfr ykijokgh o mnklhurk

cjrus ds fy;s nks""kh gS ftldk fooj.k vkjksi fooj.k esa of.kZr gSaA

vkjksi la[;k & 7

;g fd mDr Jh oekZ ,-,l-vks- us mDr in ij mDr vof/k esa dk;Zjr gksrs gq, xzke fNyksMh rg- jktx[kjhnnkj dszrk dks cspku gqbZ vkjkth ls nqxquh vkjkth ls Hkh vf/kd jdck fn;s tkus dk vkns'k ikfjr fd;k gSaA bl rjg mDr Jh oekZ jkt] VsusUlh ,DV dh

/kkjk 42 ds foijhr mDr c;ukek dk mDr ifj'kks/ku i= Lohd`r dj cspku dh xbZ vkjkth ls nqxquh ls Hkh vf/kd vkjksth [kjhnnkj dks nh tkdj vkns'kksa dh

vogsyuk djus o drZO;ksa ds izfr mnklhurk cjrus ds fy;s nks""kh gSaA tSlk fd layXu vkjksi fooj.k i= esa of.kZr gSaAâ€​

The petitioner submitted his reply to the chargesheet and denied the charges leveled against him. The petitioner pleaded in his reply that the allegation

leveled against him were absolutely baseless. The petitioner pleaded that he had undertaken the exercise of opening of mutation in favour of different

khatedars as per the record available before him and further he followed the procedure as required under Section 125 of the Rajasthan Land Revenue

Act. The petitioner pleaded that there was family settlement/family arrangements arrived at between the khatedars and members of their family and

accordingly the petitioner had undertaken the exercise of opening the mutations. The petitioner further pleaded in respect of charge No.7 that there

was no violation of Section 42 of the Rajasthan Tenancy Act and there was an amendment also whereby the authorities could take action for making

entry in respect of different khasra numbers, if the same has been done after survey being undertaken.

The petitioner pleaded that there was no malafide intention on his part in discharging of his judicial functions. The petitioner further highlighted the fact

that orders which were passed by him, were maintained by the higher authorities and no person was having any grievance against the functions which

the petitioner had discharged as judicial officer/authority. The petitioner further pleaded before the respondents that in absence of any ill motive, the

procedure of issuing chargesheet to him was not justified.

The respondents after receipt of reply appointed the Enquiry Officer and the Enquiry Officer conducted the enquiry and submitted his report, finding

all the charges proved against the petitioner.

The petitioner after receipt of enquiry report, submitted his representation and again highlighted the facts with respect to the findings which were

erroneously recorded by the Enquiry Officer.

The Disciplinary Authority after receipt of reply of the petitioner passed the impugned order and found that the petitioner was guilty of the charges

leveled against him. The Disciplinary Authority recorded a finding that even if the review petitions were filed against the decisions taken by the

petitioner and the orders were not set aside in revision petitions, the same did not amount to approve the irregularity being committed by the petitioner.

The Disciplinary Authority further recorded a finding that that opening of mutation on the basis of family settlement/ compromises was not justified, if

there was a violation of the Rules. The Disciplinary Authority further recorded a finding with regard to the charge No.7 that entering excess land in

the name of the khatedar was definitely a violation of Section 42 of the Rajasthan Tenancy Act. The Disciplinary Authority also found violation of

orders of Settlement Commissioner dt.20.03.1985 and 01.11.1983 as petitioner did not follow these orders. The said orders prohibited opening of

mutation on the basis of possession or compromise until registered document was produced. The Disciplinary Authority by the impugned order came

to the conclusion that the penalty of ‘compulsory retirement’ with proportionate pension was required to be imposed upon the petitioner.

The petitioner has pleaded in his writ petition that the respondents have not acted in bonafide manner in issuing chargesheet to him. The Enquiry

Officer has not recorded his independent findings except quoting the names of the witnesses who were produced by the department to support the

allegations leveled against the petitioner. The petitioner has further pleaded in the writ petition that there is no allegation of any ill motive, malafide,

arbitrariness or capriciousness on his part while passing the judicial orders.

The respondents have filed reply to the writ petition. The respondents have averred in the reply that the Disciplinary Authority has issued the penalty

order after considering the entire facts and the Enquiry Officer’s report was self-explanatory wherein all the charges leveled against the petitioner

were found to be proved. The respondents have further pleaded in their reply that punishment which was proposed by the State Government was

found to be justified and proper and after concurrence from the Governor, the order of penalty was passed. The respondents have justified the

issuance of chargesheet and the penalty order passed against the petitioner.

Counsel for the petitioner has raised following submissions:-

The chargesheet was issued after nine years from the alleged incident whereas the petitioner had acted in judicial capacity. The issuance of

chargesheet at a belated stage has resulted into violating the right to defend in the departmental enquiry as the petitioner was not in a position to have

his proper representation by producing oral or documentary evidence, as the alleged incident was in relation of acts which were done by the petitioner

in the year 1985.

The petitioner had passed all the orders as quasi-judicial authority/judicial officer and such orders were appealable or revisable and since no

appeal/revision was filed, the orders passed in quasi-judicial capacity cannot become the subject matter of disciplinary proceedings and such acts do

not amount to misconduct, as per the Rajasthan Civil Services (Conduct) Rules, 1971.

The petitioner had passed the orders exercising his power under Section 125 of the Rajasthan Land Revenue Act and the definition given in Section

23(2) of the Rajasthan Land Revenue Act provides that the judicial matters can be decided where rights and liabilities of the parties are determined

and since the petitioner has discharged his functions in the capacity of judicial authority, the respondents could not have initiated departmental

proceedings against him.

There was no allegation of violation of orders of Settlement Commissioner dt.01.11.1983 and 20.03.1985 yet Disciplinary Authority found the

petitioner guilty of such violation. The learned counsel for the petitioner has placed reliance on the judgments of this court in the case of Chandrapal

Singh Vs. State of Raj. & Ors. reported in 2006 (2) RDD 1050 (Raj.), Pankaj Manu Vs. State of Raj. [S.B.Civil Writ Petition No.2398/1990] decided

on 03.04.1992, Alka Devi Vs. State of Raj. & Anr. reported in 2005 (1) WLC (Raj.) 723, Kundan Singh Jhala Vs. State of Rajasthan reported in 1976

WLN (UC) 175 and the judgments of the Apex Court in the case of Ramesh Chander Singh Vs. High Court of Allahabad & Anr. reported in (2007) 4

SCC 247, Inspector Prem Chand Vs. Govt. of NCT of Delhi & Ors. reported in (2007) 4 SCC 566 and a recent judgment of the coordinate Bench at

Principal Seat at Jodhpur in the case of Jagmal Singh Vs. State of Raj. & Ors. reported in (2015) 4 WLC (Raj.) 551 and State of Rajasthan & Anr.

Vs. Jagmal Singh [D.B.Civil Special Appeal (Writ) No.789/2015] decided on 25.05.2017.

Counsel has submitted that the consistent view of the Apex Court and of this court has been that if a person who discharges quasi-judicial function

and has acted in a bonafide manner and there is no allegation of any illegal gratification or ill motive, the authorities cannot punish the said person by

way of departmental enquiry.

Counsel has further submitted that there has been no finding in respect of the any act of the petitioner done in a malafide manner and in absence of

any charge or evidence, the petitioner cannot be held responsible for the acts which he has done as a quasi-judicial authority/judicial officer.

Per contra, Mr.Avasthi, learned counsel for the respondents has submitted that the nature of allegation leveled against the petitioner clearly make out

a case of gross misconduct committed by the petitioner. Counsel submitted that the petitioner ought not to have passed the orders which resulted into

violation of the statutory provisions of law.

Counsel further submitted that simply because orders which the petitioner passed were not assailed in higher judicial forum, the same does not amount

to giving a clean chit to the petitioner who has acted in an illegal manner.

Counsel has placed reliance on the judgment of the Apex Court in the case of CISF & Ors. Vs. Abrar Ali reported in AIR 2017 SC 200 and State of

UP & Anr. Vs. Manmohan Nath Sinha & Anr. reported in (2009) 8 SCC 310.

Counsel submitted that scope of judicial review in departmental enquiry is very limited and the High Court under Article 226 & 227 of the Constitution

of India will not re-appreciate the evidence or will not consider the findings which are arrived at by the Disciplinary Authority after due consideration

of evidence. Counsel has further placed reliance on the judgment of this court in the case of S.N.Byadwal Vs. State of Raj. & Anr. [S.B.Civil Writ

Petition No.5654/1997] decided on 26.02.2010.

I have heard learned counsel for the parties.

It would be appropriate to quote Section 5(35) of the Rajasthan Tenancy Act, 1956, Section 23(2) and Section 125 (now

deleted) of the of the Rajasthan Land Revenue Act, 1955 and the same read as follows:-

“Rajasthan Tenancy Act, 1956

Definitions:- (35) “Revenue Courtâ€​ shall mean a court or an officer having jurisdiction to entertain suits or other proceedings relating to

agricultural tenancies, profits and other matters connected with land or any rights or interest in land, wherein such court or officer is required to act

judicially; it shall include the Board and every member thereof, a Revenue Appellate Authority, a Collector, a Sub-Divisional Officer, an Assistant

Collector, a Tehsildar or any other revenue officer while so acting.

Rajasthan Land Revenue Act, 1956 Sec.23. Controlling Power â€" (1) XX XX XX

(2) The expression ‘judicial matters’ means a proceeding in which a revenue court or officer has to determine the rights and liabilities of the

parties thereto and the proceedings and orders as well as appeals, revisions and references in the cases specified in the First Schedule shall be

deemed to be judicial matters for the purpose of this Act.

Settlement of disputes as to entries in record of rights â€" (1) All other disputes regarding entries in the record of rights shall be decided on the

basis of possession.

(2) If in the course of enquiry into a dispute under this section the Land Records Officer is unable to satisfy as to which party is in possession, he shall

ascertain by summary inquiry who is the person best entitled to possession and shall decide the dispute accordingly.

(3) No order as to possession passed under this section shall debar any person from establishing his right to the property in any civil or revenue court

having jurisdiction.â€​

This court finds that the impugned order has been passed by the Disciplinary Authority by holding the petitioner guilty of all the charges leveled against

him. The charges which have been leveled against the petitioner relate to the orders which have been passed by him as a quasi-judicial authority. This

court finds that the charges which were leveled against the petitioner nowhere alleges any malafide exercise of powers by the petitioner and there is

no allegation of any illegal gratification demanded by the petitioner for passing such orders. This court further finds that in the entire departmental

proceedings, the respondents have not come up with the plea that the petitioner had any ill motive to pass the orders. This court finds that until the

employer alleges specifically against the delinquent-employee that while passing even the quasi-judicial orders, the person has acted in a malafide

manner or had ill motive to pass such orders, the same cannot be a subject matter of departmental enquiry and the person cannot be punished.

The Apex Court as well as this court time and again, have reiterated the principles of law that in absence of specific charge against the delinquent that

he has acted in a malafide manner or there has been the charges of illegal gratification, the same cannot result into initiation of departmental enquiry.

The employer has to specifically allege that the person who passed the order had adopted corrupt practice or there was a malafide intention on his

part to pass such orders. If the delinquent officer passes juidicial/quasi-judicial orders, the same cannot be termed as havingÂ

passed by exceeding his power by using any corrupt motive. This court finds that neither in the memo of allegations/chargesheet

nor the Enquiry Officer and finally the Disciplinary Authority have recorded any finding with respect to ill motive or any malafide intention of the

petitioner to pass such orders.

The judgment of this court passed in Jagmal Singh Vs. State of Raj. & Ors. (supra) deals with the similar situation and the relevant portion of the

judgment as reported in para 18, 19 & 20 are reproduced as under:-

“18. As already noticed above, in the absence of any specific charge that the petitioner acted in a malafide manner or for illegal gratification, there

was no evidence led from either side either to prove or defend the said charge. It amounts to denial of reasonable opportunity to defend himself. To

conclude otherwise in absence of any such charge or evidence is unjust, unfair, arbitrary and against the principles of natural justice. No evidence

worth the name that the same was on account of malafides or for illegal gratification or he adopted corrupt practice was produced. Therefore, a

finding that the said actions were malafide cannot be sustained. The findings of the enquiry become more doubtful in the face of the admitted fact that

no appeal or revision was filed against the orders passed by the petitioner in his official capacity. All the orders passed by the petitioner, which were

subject matter of the charges, are either appealable or revisable. However, the department has never challenged the same till date. Under these

circumstances, the said quasi judicial orders attained finality. There being no allegation of corrupt motive against the petitioner, the entire disciplinary

action for passing the orders was, therefore, not called for.

In view of the well settled proposition of law, it is impossible for this Court to take any other view. There is not an iota of evidence of malafide or

extraneous consideration against the petitioner. Therefore, to pass an order of withholding the entire pension for having passed the orders while

exercising his quasi judicial orders without the charge of having passed them with ulterior or malafide motive is not only a dangerous trend but shall put

fear in the mind of an officer not to act without favour or fear.

Once this Court is satisfied that the order withholding the entire pension is unsustainable, it need not go into the remaining questions raised by the

learned counsel for the petitioner that as to whether the punishment was in violation of provisions of Rule 170 of the Rules of 1951 or whether the

same could be passed under Rule 7 of the Rules of 1996 and the question as to whether the disciplinary authority has passed the impugned order

without application of mind and without taking into account the evidence, record and the representation of the petitioner.â€​

This court has also an occasion to deal with the similar situation in S.B.Civil Writ Petition No.11263/2009 [Rajendra Prasad Sharma Vs. State of

Rajasthan] decided on 22.03.2018 and observed as under:-

“The Court finds that as per Rule 3(2)(ii) of the Conduct Rules, Government Servant while performing his official duties or in the exercise of

power conferred on him, has to act in his best judgment. The said rule makes it very clear that if an Officer has conducted himself in faithful discharge

of his duties and the same is as per provisions of law, it cannot be said that the person has committed a misconduct for which he is liable to be tried by

way of disciplinary proceedings.

The Court further finds that error of judgment, innocent mistakes and act of negligence cannot constitute misconduct. Plain and simple meaning of

“misconductâ€​ means misconduct arising from ill-motive.

The submission of Mr. Mathur that petitioner while discharging judicial duties has acted in bonafide manner and no ill-motive has been attributed, this

Court finds that the charges levelled against the petitioner are in respect of not following the due procedure and issuing a warrant of arrest at first

instance, the allegation against the petitioner is that he misused his power in order to confer undue benefit on a person, cannot be treated to be a

misconduct. The second charge with regard to arrest of non-complainant -Om Prakash, the petitioner is said to have misused his official position and

also showed act of indiscipline, the Court finds that the petitioner after considering the situation and due to behaviour of such person, had to exercise

his power of sending such person to the judicial custody. The Court finds that the said charge is also in respect of not exercising the power in proper

manner and as such, it cannot be construed as a misconduct if the petitioner had exercised his power in best of his judgment and he thought to take

action against such person. The charge no.3 against the petitioner that he misused his power by asking the non-complainants to execute the bond for

maintaining peace for six months in spite of compromise entered between the parties and such order being set aside by District & Sessions Judge, this

Court finds that the order passed by the petitioner on 9th July, 1997 was set aside by the judicial forum and as such, it cannot be presumed that

petitioner had misused his power and committed a serious misconduct.

In the opinion of the Court, the acts which were done by the petitioner while exercising his powers cannot be considered as misconduct and the

petitioner cannot be punished on such charges. This Court further finds substance in the submission of the learned counsel for the petitioner that once

petitioner was not found guilty of any charges during the enqury by Enquiry Officer, the Disciplinary Authority without due application of mind and

without levelling a charge on different allegation, yet passed the punishment order. This Court is of the opinion that Disciplinary Authority has a right to

disagree with the findings of the Enquiry Officer, however, the Disciplinary Authority has to give his note of disagreement/reasons only on the

allegations which are levelled in the charge-sheet. The perusal of note of disagreement and punishment order show that Disciplinary Authority has

gone on different tangent to punish the petitioner.

The submission of Mr. Mathur with respect to order dated 28th April, 2003 passed by the Reviewing Authority where it has recorded that petitioner

had not acted in malafide manner, this Court finds that the Reviewing Authority also recorded that petitioner was only guilty of not following the due

procedure and it resulted into violation of rights of the other parties (noncomplainants) but there was no ill-motive of the petitioner in passing such

order. This Court finds that once the Reviewing Authority had found that petitioner had not acted in malafide manner or with ill-motive, only on the

ground of violation of procedure, the petitioner could not have been punished and even the substitution of punishment with stoppage of one annual

grade increment with cumulative effect is also not justified.

In the case of State of Rajasthan & Ors. Vs. Jagmal Singh, this Court has held, a under:-

“16. If any error while deciding a case in the quasi judicial jurisdiction is not an outcome of malafides or ulterior motive, then the same does not

constitute any misconduct.

The Hon'ble Supreme Court in Zunjarrao Bhikaji Nagarkar Vs. Union of Inaia & Ors.; AIR 1999 SCC 2881 has held as under:-

If, every error of law were to constitute a charge of misconduct, it would impinge upon the independent functioning of quasi judicial officers like

the appellant. Since in sum and substance misconduct is sought to be inferred by the appellant having committed an error of law, the charge-sheet on

the face of it does not proceed on any legal premise rendering it liable to be quashed. In other words, to maintain any charge-sheet against a quasi

judicial authority something more has to be alleged than a mere mistake or law, e.g., in the nature of some extraneous consideration influencing the

quasi judicial order. Since nothing of the sort is alleged herein the impugned chargesheet is rendered illegal. The charge-sheet, if sustained, with thus

impinge upon the confidence and independent functioning of a quasi judicial authority. The entire system of administrative adjudication whereunder

quasi judicial powers are conferred on administrative authorities would fall into disrepute if officers performing such functions are inhibited in

performing their functions without fear or favour because of the constant threat of disciplinary proceedings.

From perusal of the allegations in the charge-sheet, the explanation thereto in the statement of charge and the evidence and the findings recorded

by the Enquiry Officer as well as the order passed by the disciplinary authority in the present case shows that at the most petitioner can be termed to

be guilty of committing a judicial error and such error by no stretch of imagination can be alleged as misconduct under the Rajasthan Civil Service

(Classification, Control and Appeal) Rules, 1958. As it has already been discussed in the preceding paras, there is no allegations against the petitioner

with respect to any corrupt practice, ulterior motive, embezzlement or misappropriation then in these circumstances proceedings against the petitioner

and awarding a penalty of stoppage of entire withholding of 100% pension is absolutely uncalled for, much less the same cannot be termed as

misconduct.

The judgment relied upon is clearly distinguishable on the facts of the present case as there is no allegation of any integrity or recklessness or

misconduct in discharge of his duties and there is no malafide intention of causing loss to the State. Therefore, principles which has been enunciated in

the abovesaid judgment are not applicable to the facts of the present case.â€​

The submission of the learned counsel for the respondents, Mr. Avasthi that petitioner has committed a misconduct as he did not follow the procedure

for initiating the proceedings under Section 107 onwards and he did not make any enquiry under Section 116 of Cr.P.C., and he directly issued process

of warrant, this Court finds that petitioner if in best of his judgment realizing the situation relating to breach of peace, if exercised his jurisdiction, the

same cannot be said to be suffering from any malafides being attributed to the petitioner on account of undertaking the process.â€​

The Division Bench of this court while disposing of the appeal filed by the State Government in the case of Jagmal Singh (supra) has alsoÂ

reiterated  the principles of law that if there is no allegation against the delinquent with respect to anyÂ

corrupt practice, ulterior motive, embezzlement or misappropriation then the same cannot be termed as ‘misconduct’ and penalty cannot be

imposed. This court following the judgments of the Apex Court as well as the Division Bench of this Court has no hesitation in holding thatÂ

issuance of chargesheet and further holding the petitioner guilty is not in accordance with law and the petitioner could not have been

made liable for the act which he has done as a quasi-judicial authority.

This court further finds that the petitioner was issued chargesheet in the year 1994 for the alleged acts which he had done in the year 1985 while

working as Assistant Settlement Officer. The respondents have not come out with any explanation with regard to the delay caused in issuance of

chargesheet. This court finds that it is the prerogative of the employer to conduct departmental enquiry for certain allegations which are construed as

‘misconduct’ but at the same time, it is also required that the delinquent should be apprised or the chargesheet be issued to him within the

reasonable time. There is no time limit prescribed under the CCA Rules, 1958 for issuance of chargesheet, nevertheless, it is the duty of the employer

to take action within the reasonable time. This court finds that issuance of chargesheet at a belated stage may deprive the delinquent to defend himself

in the departmental enquiry. The departmental enquiry necessarily requires production of oral as well as documentary evidence by both the sides. The

delinquent if is not confronted with the charges, in normal course, by giving chargesheet, the right to defend is definitely affected in such cases. This

court finds that there is no explanation for issuance of chargesheet in the year 1994 for the alleged occurrence of the year 1985 and as such the action

of the State Government is not found in consonance with law. This court finds that Enquiry Officer had not given any finding in respect of violation of

orders passed by the Settlement Commissioner and yet the Disciplinary Authority found the petitioner guilty of committing misconduct of not keeping

in mind such orders while passing the orders of opening mutation in favour of certain persons. It can be safely presumed by this court that the

Disciplinary Authority has taken into account irrelevant facts while forming its opinion to punish the petitioner.

The submission of learned counsel for the respondents that the scope of interference by this court in disciplinary proceedings is very limited and the

learned counsel relied upon judgment of the Apex Court in the case of CISF & Ors. Vs. Abrar Ali (supra), it would be relevant to quote para-8 of the

judgment, which reads as follows:-

“8. Contrary to findings of the Disciplinary Authority, the High Court accepted the version of the Respondent that he fell ill and was being treated

by a local doctor without assigning any reasons. It was held by the Disciplinary Authority that the Unit had better medical facilities which could have

been availed by the Respondent if he was really suffering from illness. It was further held that the delinquent did not produce any evidence of

treatment by a local doctor. The High Court should not have entered into the arena of facts which tantamounts to re-appreciation of evidence. It is

settled law that re-appreciation of evidence is not permissible in the exercise of jurisdiction under Article 226 of the Constitution of India. In State

Bank of Bikaner and Jaipur v. Nemi Chand Nalwaiya reported in (2011) 4 SCC 584, this Court held as follows:

“7. It is now well settled that the courts will not act as an appellate court and reassess the evidence led in the domestic inquiry, nor interfere on the

ground that another view is possible on the material on record. If the inquiry has been fairly and properly held and the findings are based on evidence,

the question of adequacy of the evidence or the reliable nature of the evidence will not be grounds for interfering with the findings in departmental

enquiries. Therefore, courts will not interfere with findings of fact recorded in departmental enquiries, except where such findings are based on no

evidence or where they are clearly perverse. The test to find out perversity is to see whether a tribunal acting reasonably could have arrived at such

conclusion or finding, on the material on record. The courts will however interfere with the findings in disciplinary matters, if principles of natural

justice or statutory regulations have been violated or if the order is found to be arbitrary, capricious, mala fide or based on extraneous considerations.

(Vide B.C. Chaturvedi v. Union of India [(1995) 6 SCC 749: 1996 SCC (L&S) 80: (1996) 32 ATC 44], Union of India v. G. Ganayutham [(1997) 7

SCC 463: 1997 SCC (L&S) 1806], Bank of India v. Degala Suryanarayana [(1999) 5 SCC 762: 1999 SCC (L&S) 1036] and High Court of Judicature

at Bombay v. Shashikant S. Patil.â€​

In Union of India & Ors. v. P. Gunasekaran reported in (2015) 2 SCC 610, this Court held as follows:

“12. Despite the well -settled position, it is painfully disturbing to note that the High Court has acted as an appellate authority in the disciplinary

proceedings, re-appreciating even the evidence before the inquiry officer. The finding on Charge I was accepted by the disciplinary authority and was

also endorsed by the Central Administrative Tribunal. In disciplinary proceedings, the High Court is not and cannot act as a second court of first

appeal. The High Court, in exercise of its powers under Articles 226/227 of the Constitution of India, shall not venture into re-appreciation of the

evidence. The High Court can only see whether:

(a) the inquiry is held by a competent authority;

(b) the inquiry is held according to the procedure prescribed in that behalf;

(c) there is violation of the principles of natural justice in conducting the proceedings;

(d) the authorities have disabled themselves from reaching a fair conclusion by some considerations extraneous to the evidence and merits of the case;

(e) the authorities have allowed themselves to be influenced by irrelevant or extraneous considerations;

(f) the conclusion, on the very face of it, is so wholly arbitrary and capricious that no reasonable person 13.could ever have arrived at such conclusion;

(g) the disciplinary authority had erroneously failed to admit the admissible and material evidence;

(h) the disciplinary authority had erroneously admitted inadmissible evidence which influenced the finding;

13.(i) the finding of fact is based on no evidence.

Under Articles 226/227 of the Constitution of India, the High Court shall not:

(i) re-appreciate the evidence;

(ii) interfere with the conclusions in the inquiry, in case the same has been conducted in accordance with law;

(iii) go into the adequacy of the evidence;

(iv) go into the reliability of the evidence;

(v) interfere, if there be some legal evidence on which findings can be based.

(vi) correct the error of fact however grave it may appear to be;

(vii) go into the proportionality of punishment unless it shocks its conscience.â€​

The Apex Court while defining the parameters where High Court can have the judicial review of the departmental proceedings, has categorically held

that the High Court can definitely consider as whether the authorities have been influenced by irrelevant or extraneous considerations and the High

Court has power to see that conclusions, which are drawn, if are wholly arbitrary and capricious that no reasonable person, could have ever arrived at

such conclusion, then interference can be made in such matters.

This court finds that perusal of chargesheet, enquiry report and the findings of the disciplinary authority in the instant case have been influenced by the

irrelevant considerations. This court further finds that nature of allegations which have been leveled against the petitioner while acting as a quasi-

judicial authority and the conclusions which have been drawn, are wholly arbitrary as power of petitioner to act as Assistant Settlement Officer has

nowhere been doubted. This court finds that as per the limited scope which has been carved out by the Apex Court, the case of the petitioner falls in

the category (e) & (f), referred by the Apex Court in the case of CISF & Ors. Vs. Abrar Ali (supra) and as such the impugned order cannot be

sustained.

Reliance has been placed by counsel for the respondents on the judgment passed by this court in the case of S.N.Byadwal (supra) wherein this court

while considering the delay in initiation of disciplinary enquiry, in the peculiar facts of that case, observed that no prejudice was caused to the petitioner

as the issue was alive because the matter was pending in the Rajasthan Legislative Assembly where protracted enquiry was conducted by the

Lokayukta and as such after conclusion of the proceedings by Lokayukta, the disciplinary proceedings were initiated.

In the opinion of this court, the facts of the case of S.N.Byadwal (supra) makes it very clear that if the proceedings are not concluded and is being

investigated either by the Assembly or by the Lokayukta, there was no occasion to issue chargesheet. This court finds that in the instant case, there

was no pendency of any enquiry after original orders were passed by the petitioner and as such the department cannot take this plea that the

chargesheet could have been issued at a belated stage.

The submission of learned counsel for the respondents that this court in the case of S.N.Byadwal (supra) has found the act of a RAS Officer of

committing a gross misconduct, as he issued patta in favour of certain persons, while he was dealing only with the conversion of land, this court found

that under the Rajasthan Land Revenue (Conversion and Allotment of Agriculture Land) Rules, 1978 the delinquent could not have taken up the

powers of regular court under Section 88 and could not have recognized title of such persons. This court considering the power of delinquent of land

conversion only, recorded a finding that the Officer concerned violated the provisions of The Rules, 1978 and Rule 88 in particular. The fact &

situation in the present case is different and as such the judgment cited by learned counsel for the respondents, is of no assistance.

The submission of Mr.Avasthi, learned counsel for the respondents that as far as charge No.7 is concerned, the petitioner is guilty of violating Section

42 of the Rajasthan Tenancy Act, this court finds that the Enquiry Officer while giving finding has also recorded a fact that it was not the petitioner

but one Inspector Land Record (Ameen) who had made the final entry in the revenue record. This court finds that the petitioner had also specifically

denied that no such order was passed by him of making entry. The plea of the petitioner that under Section 42 of the Rajasthan Tenancy Act, 1955

fragmentation of land was prohibited only if the purchaser is new person to the land, the petitioner had pleaded that the purchaser himself has

possessed the land adjacent to the part of the land and as such Section 42 of the Act, 1955 was not to apply, has altogether been not considered at all

and without any reason, the charge has been found to be proved. Moreover, the order passed by the petitioner was in his quasi-judicial capacity.

This court finds that neither the Enquiry Officer nor the Disciplinary Authority has considered the provisions of Section 42 of the Act, 1955 as in what

manner there was a violation of any mandatory requirement. This court finds that the plea of the learned counsel for the respondents that the

allegations in respect of charge No.7 had ultimately resulted into change in the order by the higher authority, has no substance. This court finds that

change of order in the review petition will not declare the initial order to be illegal until some ill-motive was attached to it. This court finds that charge

No.7 on which the Disciplinary Authority has recorded finding is also not supported by any legal document or any other evidence adduced before the

authorities.

This court finds that the impugned penalty order dt.14.03.1997 has been passed in illegal and arbitrary manner and the same deserves to be quashed

and set aside. The chargesheet issued to the petitioner is also declared bad in law.

Accordingly, the writ petition deserves to be allowed and is hereby allowed. The charge sheet dated 29.07.1994, enquiry report dated 27.03.1996 and

the penalty order dated 14.03.1997 are hereby quashed and set aside. The petitioner may be granted all the consequential benefits on account of

setting aside of these orders. Compliance be made within a period of three months from the receipt of this order.

No order as to costs.