M.P. Rathor vs State of Chhattisgarh and Others

Satish K. Agnihotri, J.—By this petition the petitioner seeks to quash the order dated 4-5-2010 (Annexure-P/9) passed by the Secretary to the Government of Chhattisgarh, Department of Revenue and Disaster Management. The facts, in brief, are that earlier the petitioner challenged the departmental enquiry proceedings before this Court in W. P. No. 4743 of 2005. The said petition was dismissed by this Court on 28-4-2009 (Annexure-P/1), however, liberty was granted to the petitioner to take recourse on all the grounds available to him under the provisions of law, if so advised. Thereafter, the petitioner preferred an appeal before the Commissioner, Bilaspur Division, Bilaspur on 12-5-2009 (Annexure-P/2). The said appeal was allowed on 25-6-2009 (Annexure-P/3). Consequent thereupon, the petitioner joined the service on 7-7-2009 (Annexure-P/4). Thereafter, the Collector sought a direction from the respondent No. 1. The respondent No. 1 suggested to file an appeal before the appropriate authority.

Thereafter, the Collector preferred a revision against the order dated 25-6-2009, passed by the Commissioner, Bilaspur Division before the State Government. The petitioner filed an application on 12-4-2010 [sic 3-4-2010 (Annexure-P/8)] in the said revision, to afford an opportunity of hearing to him. The Secretary, by the impugned order dated 4-5-2009 (Annexure-P/9) held that since the question of jurisdiction was being considered, there was no necessity to afford the opportunity of hearing to the petitioner and consequently, the order dated 25-6-2009, passed in appeal by the Commissioner, Bilaspur Division, was quashed.

Learned counsel appearing for the petitioner submits that under the provisions of the Chhattisgarh Civil Services (Classification, Control & Appeal) Rules, 1966 (for short "the Rules, 1966") in Schedule as item No. 5, which deals with that Revenue Inspector appointing authority is Collector and the appellate authority is Commissioner of the Revenue Division. The decision of the Secretary to the Government held that the Commissioner, Bilaspur Division, is not the appellate authority and, as such, the order passed by the Commissioner, Bilaspur Division, cannot held as legal and in accordance with law.

Learned counsel further submits that the impugned order dated 4-5-2010 (Annexure-P/9) passed by the State Government is illegal and otherwise void and non est being in violation of principles of natural justice, as also of Rule 29 of the Rules, 1966. Learned counsel further submits that the provisions of the Rules require that no order shall be reviewed without affording opportunity of hearing. Though the petitioner submitted an application on 12-4-2010, seeking opportunity of hearing, respondent No. 1 refused to grant opportunity of hearing before passing the impugned order. It is next contended that admittedly the Rules, 1966 is applicable in respect of the service of Revenue Inspectors and under service rules, the appellate authority is the concerned Divisional Commissioner.

On the other hand, learned counsel appearing for the State submits that the impugned order dated 4-5-2010, passed by the State Government is just and proper. The Commissioner, Land Records is a proper appellate authority. In support of his contention, no document has been produced.

Learned counsel further submits that the respondent No. 1 has passed a detailed and reasoned order after following the due process of law. Thus, the petitioner is not entitled to any relief. Even otherwise, the State Government has not decided the matter on merits, but has decided the issue on the question of jurisdiction. Thus, the question of affording opportunity of hearing to the petitioner does not arise.

I have heard learned counsel appearing for the parties, perused the pleadings and the documents appended thereto.

Proviso to sub-rule (1) (iv) Rule 29 of the Rules, 1966 clearly provides that no order imposing of enhancing any penalty shall be made by any reviewing authority unless the Government servant concerned has been given a reasonable opportunity of making a representation against the penalty proposed/made.

In the case on hand, the Commissioner, Bilaspur Division vide order dated 25-6-2009 set aside the order passed by the Collector. The Secretary to the Government without affording an opportunity of hearing to the petitioner has quashed the order passed by the Commissioner, which is not sustainable under the provisions of Article 311(2) of the Constitution of India as well as Rule 29 of the Rules, 1966.

Be that as it may, it is well settled principle of law that the basic opportunity of hearing must be afforded to the concerned person. Thus, the impugned order is illegal and cannot be sustained under the provisions of law.

This Court in Roshan Prasad Sidar Vs. State of Chhattisgarh and Others, observed as under:

It is well settled principle of law that if any order visits with civil consequences, the same is vitiated, if passed without affording an opportunity of hearing to the employee (s). (See: S.K. Siddique Vs. Madhya Pradesh State Road Transport Corporation and another, D.K. Yadav Vs. J.M.A. Industries Ltd., , Basudeo Tiwary Vs. Sido Kanhu University and Others, Canara Bank and Others Vs. Shri Debasis Das and Others, Viveka Nand Sethi Vs. Chairman, J and K Bank Ltd. and Others, Mohd. Sartaj and Another Vs. State of U.P. and Others, Inderpreet Singh Kahlon and Others Vs. State of Punjab and Others, Ashok Kumar Sonkar Vs. Union of India (UOI) and Others, , State of Manipur and Others Vs. Y. Token Singh and Others, Jaswantsingh Pratapsingh Jadeja Vs. Rajkot Municipal Corporation and Another, , Nehru Yuva Kendra Sangathan Vs. Mehbub Alam Laskar, and State of Punjab and Others Vs. Constable Avtar Singh (dead) through LRs.,

This Court, in Ku. Punam and others v. State of Chhattisgarh and others 2008 (2) CGLJ 366, wherein an identical issue came up for consideration, observed as under:

It is well settled that the purpose of rules of natural justice is not to administer justice alone but to prevent miscarriage of justice and the principles of natural justice are applicable to the administrative order, if such order affects right of a citizen.

Applying well settled principle of law to the facts of the cases, there is a common thread that the principle of natural justice is not unruly horse. The principles of natural justice are required to be complied with, having regard to the facts situation obtained therein. Thus, the principles of natural justice may not be required to be followed in the cases, where the facts are admitted. Secondly, that it is practically impossible or highly improbable to afford an opportunity of hearing, in the event, of quashing of selection on account of irregularity committed on mass scale, or en-masse cancellation. Thirdly, no useful purpose would be served by affording an opportunity of hearing.

Section 44 of the MP/CG Land Revenue Code, 1959 (for short "the Code, 1959") provides for appeal and appellate authorities. Against the order passed by the Collector, the appeal is maintainable to the Commissioner under sub-section (1) (e) Section 44 of the Code, 1959. Vide notification dated 25-8-2008 (Annexure-P/12), the following amendment has been incorporated in Section 44 :

(2) Save as otherwise provided a second appeal shall lie against every order passed in first appeals under this Code or the rules made thereunder--

(i) by the Sub-Divisional Officer or the Collector to the Commissioner.

There is no mention that in case of service matters, the appeal shall be maintainable to the other Commissioner, not Divisional Commissioner, as pleaded by the State.

In the impugned order dated 4-5-2010, it has been held by the Secretary to the Government that the appeal ought to have been preferred to the Commissioner, Land Records, on the basis of Section 106 of the Code, 1959, is frivolous, as Section 106 provides that the Revenue Inspectors would be appointed by the Collector. For the reasons mentioned hereinabove and particularly on account of the fact that the request for affording an opportunity of hearing was rejected on the technical ground that the jurisdiction was under consideration, the impugned order dated 4-5-2010 (Annexure-P/9) is liable to be and is hereby quashed.

As an upshot, the writ petition is allowed to the extent indicated above, leaving the parties to bear their own costs.