Kunwar Dilip Singh vs State of M.P. and Others

Rajendra Menon, J.

Writ Petition No. 1089/2003 and Writ Petition No. 5314/2003 are being disposed of by this common order as both these petitions are filed by one Shri Kunwar Dilip Singh challenging the charge-sheet issued to him and the order of termination in pursuance to the charge-sheet under challenge.

W.P. No. 5510/2004 was initially filed by the petitioner before the State Administrative Tribunal and on abolition of the Tribunal, the same stands transferred to this Court. In this petition, petitioner has challenged the letter dated 1-2-1999 Annexure P-1 and the charge-sheet dated 6-1-1996 Annexure P-2 issued to him and the prayer made is to quash the charge-sheet and the departmental enquiry initiated against him. During the pendency of this petition departmental enquiry continued and culminated in passing an order of punishment dated 27-3-2003 filed as Annexure P-1 in W.P. No. 1089/2003. The enquiry proceedings and the final order of punishment are challenged in WP No. 1089/2003. As questions involved are similar, both the petitions are disposed of by this common order. For the sake of convenience, documents filed in WP No. 1089/2003 are being referred to.

Petitioner was holding the post of Naib-Tahsildar and was posted at Tahsil Lahar District Bhind in the year 2003, when the order terminating him from service Annexure P-1 dated 27-3-2003 was issued. In the year 1993, petitioner was Naib Tahsildar at Tahsil Essagarh District Guna. While petitioner was posted as Naib Tahsildar at Essagarh he had exercised powers conferred upon him under the M.P. Land Revenue Code and had decided various cases pertaining to settlement of land. He was also discharging function in the matter of allotment of Government land to landless persons in accordance with statutory rules, on the ground that he had committed serious irregularities and illegalities in the matter of allotment of land, charge-sheet dated 6-1-1996 was issued to him. In the charge-sheet there was two imputations pertaining to irregularities committed by the petitioner in the matter of settlement of land. It is alleged that in 40 cases decided by him during the period from 1990 to 1993, orders with regard to settlement of land were passed illegally with a view to give undue benefit to certain persons, who were not entitled Jo the benefit and finding large scale of illegalities in the matter. Additional District Collector, Ashok Nagar had taken up ten cases in suo-motu revision, has quashed the orders passed by the petitioner. Second allegations in the charge-sheet were that while considering applications for allotting the land to landless persons under the statutory provisions and rules. Petitioner had committed various irregularities and on preliminary enquiry it is found that without following rules, regulations and guidelines issued in the matter undeserving persons were allotted land and Bhumiswami rights were conferred on them. It was stated that in many cases petitioner has illegally granted Bhumiswami rights to the persons, who were not landless persons and therefore has committed misconduct in accordance with provisions of Rules 3(1)(2)(3) of the M.P. Civil Services Conduct Rules, 1965 and therefore proceedings in accordance with provisions of MP Civil Services (Classification, Control and Appeal) Rules, 1966 were initiated against the petitioner. Petitioner having denied the charges, enquiry was ordered and Additional District Collector, Ashok Nagar was appointed as Enquiry Officer. After conclusion of the enquiry, Enquiry Officer submitted his report Annexure P-3 dated 15-4-1998. Alter receipt of the report of the Enquiry Officer, show-cause notice was issued to the petitioner. He was given opportunity of personal hearing and after considering the contentions raised by the petitioner order of termination Annexure P-1 was issued him on 27-3-2003.

Petitioner had challenged the issuance of charge-sheet and the order of termination on various grounds. Contentions advanced by Shri R.D. Jain, learned Sr. Counsel are as under:

(i) Petitioner was discharging quasi judicial function and the order of settlement and grant of Bhumiswami rights made by the petitioner were done in these proceedings. While discharging quasi judicial function, it is argued by Shri Jain that petitioner was discharging statutory duty and therefore mere wrong application or interpretation of law cannot be construed as a misconduct and no disciplinary action can be taken for negligence in exercise of such quasi judicial power. In support of his contention, he has placed reliance on a judgment rendered by the Supreme Court in the case of Zunjarrao Bhikaji Nagarkar Vs. U.O.I. and Others, . It was argued by Shri Jain that both the charges relate to statutory quasi judicial work performed by the petitioner and therefore for the same no action can be taken and on this ground the entire proceedings stands vitiated and the same is liable to be quashed.

(ii) On merit, it, was stated by him that the enquiry conducted is in violation of principle of natural justice. Proper opportunity was not given to the petitioner to defend himself in the enquiry. With regard to procedural irregularity in the, matter of conducting enquiry, it was argued by Shri Jain that the following irregularities have been committed:

(a) In the charge-sheet only three witness were cited i.e. Addition District Collector, Office-in-Charge, Revenue Circle Gwalior and Patwari, whereas in the enquiry more than 8, witnesses were examined. However, before examining these witnesses who were not cited in the charge-sheet provisions of Rule 14(15) of the MP Civil Services (Classification, Control and Appeal) Rules was violated.

(b) Additional District Collector, Ashok Nagar was the Enquiry Officer. He was also cited as a witness, he acted as a judge and the complainant in as much as suo-motu revisions powers were exercised by him and thereafter it was he who again acted as judge gave the finding in the enquiry proceeding. Accordingly, it was argued that the entire action taken in this manner by the Additional Collector vitiate the proceedings.

(iii) Findings of the Enquiry Officer are perverse, on the basis of evidence adduced in the enquiry, no action could be taken.

(iv) After receipt of enquiry report when show-cause notice was issued to the petitioner and after considering the reply to the same submitted by the petitioner it was stated that the order of penalty Annexure P-1 indicates that the copy of enquiry proceedings were referred to the Commissioner, Gwalior Division also, who had given his comments 6n the enquiry report. However, the comments of the Commissioner were not forwarded to the petitioner and action taken on the basis of aforesaid comments is said to be denial of reasonable opportunity of defence which vitiates the entire proceedings. In support of these contentions Shri R.D. Jain, learned Sr. Counsel has relied on a judgment rendered by the Supreme Court in the case of Mohd. Quaramuddin (Dead) by Lrs. Vs. State of A.P., . It was on the basis of the aforesaid contentions that learned Counsel for the petitioner after taking the through the findings recorded by the Enquiry Officer and referring to the observations made by the Supreme Court in para 40 in the case of Zunjarrao (supra), argued that action taken is unsustainable and is liable to be quashed.

Refuting the aforesaid Shri S.S. Bansal, learned Counsel for the respondents argued that action taken in this case is because of serious misconducts committed by the petitioner in the matter of discharging of his duties, he had illegally passed orders of settlement and allotment of land in a manner, which was contrary to the statutory provisions, inconsistent to the rules and regulations with a view to give undue benefit to undeserving persons and thereby committed acts unbecoming of a Government employee for which enquiry was properly conducted. Allegations levelled against the petitioner were proved in a properly conducted departmental enquiry in which due and reasonable opportunities of defence was given to the petitioner and action taken in the: matter being in accordance with law. It is argued by learned Counsel for the respondents that no case for interference is made out.

Placing reliance on the findings recorded by the Enquiry Officer, statement of witnesses, it was argued by the learned Counsel for the respondents that in the facts and circumstances of the case no prejudice in the matter of conducting enquiry is pointed out and merely on the ground of some technical violation, which has not caused any prejudice, which does not materially affect the final out-come of the disciplinary proceedings interference is not called for.

I have heard the Counsel for the parties and perused the records.

As indicated hereinabove challenge to the action for initiation of disciplinary proceedings against the petitioner and the order of termination are made mainly on two grounds. First ground is propriety in taking disciplinary action in cases pertaining to discharging of quasi judicial function by the petitioner and the second ground is on merit of the proceedings pertaining to procedural irregularities in the matter of conducting departmental enquiry. I would take up the first ground of challenge, thereafter if required consider the second ground.

In support of the first ground, it was the contention of Shri R.D. Jain, learned Sr. Counsel that negligence in the matter of exercising quasi judicial function by an employee would not constitute misconduct and merely because in the matter of discharging statutory quasi judicial function action taken recklessly, inadvertently or by omission will not amount to misconduct warranting initiation of departmental action. He had invited my attention in this regard to a judgment in the case of Zunjarrao (supra) and the observations made by the Supreme Court in paras 40 and 43 of the aforesaid judgment. There is no dispute in accepting this proposition advanced by Shri Jain, but in the aforesaid case Supreme Court itself had considered various judgments on the point and has laid down the principle to be followed for taking action in such cases. In the aforesaid judgment it has been held by the Supreme Court that merely on the ground that delinquent employee was exercising quasi judicial function, departmental proceedings initiated cannot be quashed. In the aforesaid case Supreme Court had referred to various other cases on the question and after analysing the legal principle in this regard has laid down the procedure to he followed ill such matters. In the case of Govinda Menon Vs. Union of India (UOI), , similar contentions raised with regard to initiation of departmental enquiry against the appellant therein for acts of commission or omission committed by him in discharging of his duties as Commissioner under the Madras Hindu Religion and Charitable Act, 1951 was considered and rejecting similar contention, it was held that the Govt. has power to take disciplinary action against an employee and he can be removed from service, if it is found that he has committed acts of omission in discharging of his duties, which casts reflection upon his reputation, integrity, good-faith or to devotion of duty as a member of the service. It has been observed by the Supreme Court in the aforesaid case after referring to certain other judgments that if a servant conducts himself in a way inconsistent with the discharging of his duties in the service it is misconduct for which action can be taken. Considering the question of exercising quasi judicial power in the case of S. Gonind Menon (supra) similar grounds were rejected and it was concluded that the charges against the appellant in that case amounts to misconduct or recklessly, disclosed by utter disregard to the relevant provisions of the Act and Rules in the matter of sanction of lease. This judgment was considered again by the Supreme Court in the case of Union of India and Ors. v. K.K. Dhawan 1993 (66) FLR 443 (SC), and alter considering the law laid down earlier by the Supreme Court in the case of S. Govind Menon (supra), the charges levelled against the delinquent employee in the case of K.K. Dhawan (supra) were observed and it was found that in the matter of assessment made by K.K. Dhawan exercising quasi judicial power under the Income Tax Act he acted in an irregular manner showing undue haste with a view to confirm undue favour upon the assessee concerned.

Considering the aforesaid legal principle laid down by the Supreme Court in the case of S. Govind Menon and K.K. Dhawan (supra), it has been held by the Supreme Court in the case of Zunjarrao (supra) that if on analysis of the allegations levelled against the delinquent employee it is found that he has acted in a manner, which would reflect on his reputation, or integrity or shows lack of good faith or devotion, action can be taken. Similarly, if the material available indicates that employee has shown recklessly in discharging of his duty or has acted in a manner contrary to prescribed norms and has committed breach of prescribed conditions, which are essential for exercising statutory powers thereto, showing undue favour to any one, action can be taken in such matter.

As indicated in the preceding paragraphs, allegations against the petitioner in the case are with regard to irregularities committed by him in the matter of settlement of 40 cases. The findings dated 15-4-1998 submitted by the Enquiry Officer indicates that petitioner Ms committed serious irregularities in the matter of allotment of land to the so called landless persons so also in the matter of passing orders of settlement in 40 cases referred to therein. It is evident from the records that while discharging his duties as a Naib Tahsildar in Tahsil Essagarh Disrtrict Guna petitioner had taken up cases of settlement of land and allotment of land in village Tigra, Ramgarh, Kedastha, Piprol and other villages and in doing so records indicate that he has not followed the prescribed procedure and has conducted proceeding in a manner inconsistent to and contrary to statutory provisions, law and guidelines. For appreciating the procedure followed and illegally committed by the petitioner few of the irregularities amongst other pointed out by the Enquiry Officer are indicated hereinunder:

The records indicate, that during the enquiry Shri Bhagwan Das Sharma, the then Patwari Tahsil Essagarh was examined as a witness and it has been indicated that while passing orders of settlement of land pertaining to village Tigra, Ramgarh, Kedastha, Piprol, petitioner has not followed the prescribed procedure as a result of which the orders of settlement were quashed by the Additional Collector, Ashok Nagar in revision. It is stated that non-eligible persons were granted benefit of settlement of land. Shri Bhagwan Das Sharma, the then Patwari has indicated that in the year 1988-89 and 1989-90 he was Patwari in Halka No. 13 in Marhi Mahidpur and petitioner in case No. 99/A-19/88-89 pertaining to one Kripal Singh S/o Badal Singh, who was resident of village Tigra was granted Bhumiswami rights for land measuring 1.500 Hectare in Survey No. 7/2. In the order sheet of these proceedings dated 26-9-1988 various correction and cutting have been made by the petitioner. Proper proclamation for calling objections were not issued. These were manipulated by the petitioner and even by ignoring the report of the Patwari, orders were passed in this case. It was indicated by this witness that as a Patwari he had given a report that the claimant Kripal Singh and his family has 2.24 Hectares of land and they are not entitled to allotment of land. It is stated that by this witness that ignoring this report and without following the procedure orders granting Bhumiswami right to Kripal Singh and family members were issued.

(ii) Similarly in another case pertaining to one Vishnu Prasad s/o Shivcharan being case No. 8 I/A-19/89-90, it is indicated that in his order dated 25-10- 1990 petitioner has decided the claim of the applicant for grant of Bhumiswami right in survey No. 212 area 1.054 Hectares without properly making any proclamation or calling for objections. It is indicated that no date of proclamation is indicated, no date for issuance of notice is indicated and for the service of notice to the authorities concerned no report is available. It is indicated in the report that family of this applicant was also having 0.41 Hectares of land, which was indicated by the Patwari in his report Ex.P-12 produced in the enquiry and ignoring this report of the Patwari orders have been passed granting Bhumiswami right to the applicant.

(iii) In the third case pertaining to a applicant Sudhir Singh s/o Amar Singh being case No. 88/A-19/91-92, it is indicated that no proclamation was issued. The records does not indicate the date when the proclamation was issued, no objections were called for and even though there was a Patwari report indicating that the family of this applicant are not landless, they have sufficient land in their favour, ignoring this report orders of settlement have been passed.

(iv) In another case being Case No. 99/A-19/89-90 pertaining to applicant Rajkumari D/o Ajab Singh land measuring one Hectare in Survey No. 4/1 was settled in favour of the applicant, even though in the report of Patwari and the documents, it is seen that the land, which was settled in favour of this applicant was used for the purpose of "Nistar". It is established from the records in this case that without making any proclamation, issuance of notice and without calling for objections, the said land was allotted to the applicant. In doing so, resolution or NOC from the concerned panchayat was also not obtained, which was the procedure prescribed under the rule. In a finding recorded by the Enquiry Officer running to more than 35 pages various irregularities of the nature as indicated hereinabove were noticed and established in 40 cases pertaining to settlement of land and in more than 14 cases pertaining to allotment of Bhumiswami rights to the applicants concerned who claimed to be landless persons.

Considering the large scale irregularities of the nature as indicated hereinabove. Enquiry Officer has come to a conclusion that in the case produced before him on scrutiny of records and the statements of the witnesses in all the cases primarily petitioner had passed the orders ignoring the reports submitted by the Patwari and without following the procedure contemplated in Clause 4(3) of Para 24 of the M.P. Revenue Books Circular, allotment of Government land have been made in the name of persons, who were not entitled for allotment of land. It has been indicated that in 14 cases of allotment of land to landless persons procedure prescribed have not been followed and in most of the cases even though family members of the applicants were in possession of sufficient land they have granted the belief it of allotment of Government land on the finding that they are landless persons. It is on these facts and circumstances that .union has been taken against the petitioner.

Action taken in the matter of conducting enquiry against the petitioner with regard to discharging quasi judicial has to be considered by this Court, in the backdrop of the aforesaid aspects of the matter, even though the Supreme Court in the case of Zunjarrao (supra) had quashed the proceedings initiated by the Government. It is seen from the judgment that in the said case employee concerned was working as a Collector of Central Excise and he was proceeded against departmental action for not imposing penalty on a assessee, who had evaded duty. It was found by the Supreme Court that in that case the employee concerned had passed orders for seizure of the property and had also imposed duty on the assessee, but while considering the case for imposing penalty found that no case for imposing penalty is made out. That was a case where in a isolated case, even though assessee was charged with duty and certain seizure was also confirmed, but in the matter of imposing penalty judicial discretion exercised was found to be proper, it was held that for such exercise of discretion no departmental action can be taken. Present case is not a case of the nature as indicated hereinabove and decided by the Supreme Court, on the contrary in the present case the observations and law laid down by the Supreme Court in the case of S. Govinda Menon and K.K. Dhawan (supra) so also various other judgments referred to by the Supreme Court in these cases will be applicable and it has to be held that petitioner in this case has acted in manner showing recklessly in discharging his duties. In the present case the acts of commission and omission found established against the petitioner are such that they indicate a calculated and deliberate act on the part of the petitioner, which is contrary to the provisions of law, rules and regulations and has resulted in conferring undue benefits to certain persons. It is not in one or two isolated cases that petitioner has committed the illegality so that it may be termed, as a negligent act on the part of the petitioner, but in more than 54 cases repeatedly and consistently petitioner has committed the same irregularity, which allows that they are not acts of carelessness or negligence but was a deliberate act indulged with ulterior motive.

Keeping in view of the irregularities committed by the petitioner as indicated in the preceding paragraphs and in the light of the observations made by the Supreme Court in the cases referred to hereinabove, the arguments advanced by learned Counsel for the petitioner Shri R.D. Jain with regard to ground No. 1 raised by him in the matter of taking departmental action against the petitioner is unsustainable. Accordingly, this argument has to be rejected and it cannot be said that action taken against the petitioner in the matter of issuance of charge-sheet and conducting departmental enquiry requires interference by this Court. It has to be held that acts of commission and omission committed by the petitioner amounts to gross misconduct in the discharge of his duties for which disciplinary action could be taken against him and therefore the charge-sheet was rightly issued and further action taken.

Having rejected the first ground of challenge made in this petition, I would now consider the second ground raised by the petitioner. The second ground pertains to procedural irregularities in the matter of conducting departmental enquiry. From the original records of the departmental enquiry proceeding, it is seen that enquiry was conducted in the presence of the petitioner. Petitioner was present in each and every date of the enquiry. All the eight witnesses of the department were examined in the presence of the petitioner and records indicate that each of the witnesses have been cross-examined by the petitioner elaborately. There is no material available on record to indicate that at any point of time petitioner had raised any objections with regard to the procedure being followed in the enquiry. Petitioner participated in the enquiry without any objection and the records indicate that he was given opportunities to inspect the record and cross-examine the witnesses. Petitioner had not at any point of time sought or raised any objection with regard to procedure being followed in the enquiry. It was stated by Shri R.D. Jain that even though three witnesses were cited but eight witnesses were examined. It was stated that this is in violation of Rule 14(15) of the MP Civil Services (Classification, Control and Appeal) Rules. A perusal of Sub-rule (15) of Rule 14 indicates that even after close of the evidence the Presenting Officer may produce more witnesses not included in the original list given to the Govt. employee or he may call for new evidence or may recall or re-examine a witness, however, the rule contemplates that in such case the Govt. servant shall be entitled to have if "he demands it", a copy of the list of further evidence proposed to be produced and adjournment of the enquiry for three days. It is seen that if new evidence is produced then a demand has to be made by the employee for the list so also he may seek adjournment of the enquiry, in the present case no such demand was made by the petitioner nor did hex object to the witnesses being examined on the contrary he has cross-examined all, the witnesses. Whenever, a procedure said to have been followed is assailed as illegal, it has been held by the Supreme Court in the case of State Bank of Patiala v. S.K. Sharma AIR 1996 SC : 1996 (73) FLR 9 (Sum), that merely on the basis of breach of certain procedure enquiry cannot be vitiated unless and until consequential prejudice is established or proved. Requirement of Rule 14(15) is not a mandatory requirement, it is incorporated to protect the interest of the delinquent employee, to efficaciously cross-examine the witnesses, even if some witnesses were produced, these witnesses were only to explain the procedure followed in the cases decided by the petitioner. AH the files pertaining to these cases were produced well in time before the Enquiry Officer and petitioner was aware of the documents. Petitioner participated in the enquiry and had examined the documents and cross-examined the witnesses. That being so, merely on the ground that appropriate procedure has not been followed it does not warrant any interference in the matter by this Court unless any grave prejudice is established or demonstrated before this Court more so when as required under the rule petitioner has not made any demand for adjournment of the enquiry as required under the rule. During the course of hearing learned Counsel for the petitioner1 Shri R.D. Jain has not demonstrated any prejudice caused to the petitioner in the matter of examination of these witnesses nor is it demonstrated before this Court as to how the same would have materially affected the final out come of the findings recorded by the Enquiry Officer, in the absence of prejudice being demonstrated and established the grounds raised in this regard cannot be sustained.

Similarly, the contention that Additional Collector, Ashok Nagar was the prosecutor, a judge and a witness, therefore the proceedings stands vitiated is also a misconceived argument. Disciplinary action was initiated at the instance of the Commissioner, Gwalior, who had issued the charge-sheet, even though Collector Ashok Nagar is shown as a witness, but from the records it is seen that in the entire finding is recorded on the basis of irregularities established from the revenue case files. The Enquiry Officer has based his finding on the basis of irregularities in the procedure, and the statement of Patwari''s and other revenue officers merely because in some matter Additional Collector had passed the orders while exercising powers of revision that by itself does not indicated that he was biased or prejudiced against the petitioner. When conduct of enquiry by particular officer is challenged, the same has to be judged in the light of the bias and prejudice if any. In the present proceeding, petitioner has not pleaded bias or prejudice against any particular officer, even though name of the particular officer is not indicated by the petitioner. The fact as to whether the Additional Collector who had conducted suo-motu revision in the cases decided by the petitioner in the year 1990-1992 and the Additional Collector who conducted in the year 1998 are the same persons or not is also not indicated or proved by the petitioner. It is seen from the records that the following eight witnesses were examined in the enquiry namely PW No. 1 Bhagwanlal Sharma, Patwari, PW-2 Jagdish Prasad, Patwari, PW-3 Gulam Mohd., Patwari, PW-4 Shivnarayan, Patwari, PW-5 Ramesh Kumar, Retd. Patwari, PW-6 Shiromony Rathore, Revenue Inspector, PW-7 Ramgopal, Patwari (under suspension), PW-8 Mangal Singh, Patwari, apart from this the Presenting Officer one Shri S.K. Gurnani, Dy. Collector gave his statement. It is seen that even though shown as a witness Additional Collector was not examined in the enquiry. That being the factual aspect that the Additional Collector was the prosecutor, witness and judge is not borne out from the record. That apart in absence of any bias or prejudice being indicated merely on this ground interference is not called for. Accordingly, this ground is also unsustainable.

Objections raised on the law laid down by the Supreme Court in the case of Mohd. Qamruddin (supra) is also unsustainable. In that case Supreme Court had vitiated the proceedings, because report of the, Vigilance Commissioner was considered and the Enquiry Officer had given his finding on the basis of the Vigilance Commissioners report, it was under these circumstances that Supreme Court had held that non-supply of Vigilance Commissioner report amounts to violation of principle of natural justice. In the present case, the Enquiry Officer has not taken note of any such report or comments of the Commissioner, but the report of the Enquiry Officer is based solely on the evidence and material adduced before him and not on the basis of any report of the Commissioner. Record indicates that after Enquiry Officer had submitted his report to the petitioner show cause notice along with report of the Enquiry Officer was forwarded to the petitioner on 9-5-1998. Thereafter, Commissioner gave personal hearing to the petitioner on 16-7-1998 and forwarded the paper to the State Government. While forwarding the papers to the State Government, Commissioner has only indicated that looking to the serious irregularities committed by the petitioner in the matter which stands proved in the departmental enquiry held against him, strict action should be taken. The comments of the Commissioner is only with regard to taking strict action against the petitioner and merely because copy of this comment was not forwarded to the petitioner, it cannot be said that it has caused any prejudice to the petitioner or had influenced the decision making process.

Considering the totality of facts and circumstances of the case and keeping in view of procedure followed in the matter it cannot be said that in the matter of conducting enquiry against the petitioner and imposing penalty irregularities, to such a extent has been committed that it amount to violation of statutory rules or principle of natural justice warranting interference by this Court in the matter.

Accordingly, I find no ground to interfere in the matter. Writ petition is dismissed with no order as to costs.