Munna Lal vs District Magistrate/Collector and Others

Sudhir Agarwal, J.—Heard Sri A.P.N. Giri, learned Counsel for the petitioner and learned Standing Counsel for the respondents.

Despite time having been granted to respondents no counter affidavit has been filed. Learned Standing Counsel, however, stated that since the relevant record has been filed alongwith the writ petition, he does not propose to file any counter affidavit and the writ petition may be heard and decided on merits after hearing the parties. Sri A.P.N. Giri, learned Counsel for the petitioner has no objection to the same. I proceed accordingly to dispose of the matter under the Rules of the Court at this stage.

Sri Giri vehemently submitted that major penalty of reversion has been imposed upon petitioner without any departmental inquiry and, therefore, it is in violation of the principle of natural justice. He further submits that the appellate order has been passed by the Additional District Magistrate though under the Rules it is the District Magistrate who could pass this order and further while partly allowing the appeal the appellate authority has remanded the matter to the disciplinary authority for fresh inquiry after giving due opportunity to petitioner which jurisdiction he did not possess.

However, I find no force in the above submissions. It appears that the petitioner was a substantively appointed Lekhpal and was given a purely officiating and temporary promotion on the post of Record Inspector (Bhulekh Nirikshak) vide order dated 23.02.1988 passed by the Record Officer, Etawah. He however was never made substantive on the promoted post of Bhulekh Nirikshak (subsequently designated as Revenue Inspector) though he made request for the same vide his letters dated 15.07.1998 and 31.08.1998 wherein he also says that he has yet to be sent for training for regular promotion to the post of Bhulekh Nirikshak though he is working on the same for the last 10 years. The competent authority, i.e., the Record Officer vide order dated 13.10.1998 reverted the petitioner to his substantive post of Lekhpal pursuant to the District Magistrate''s order dated 07.10.1998. It appears thereafter that instead receiving the said order the petitioner absented himself from 14.10.1998 and onwards. It also appears that on account of his continuous absence a charge sheet was issued to him on 13.01.1999 pursuant whereto Tahsildar Auraiyya submitted his inquiry report on 06.08.1999 and after finding the charge of unauthorised absence proved, major penalty of reduction on the lowest of the pay scale of substantive post was passed by the Sub-Divisional Magistrate Auraiyya on 30.10.1999, whereagainst the petitioner filed an appeal which was partly allowed by the appellant authority by order dated 12.11.2009 and he while setting aside punishment order dated 30.10.1999, directed the disciplinary authority to hold a fresh inquiry after giving opportunity of hearing to petitioner.

The order of reversion dated 13.10.19998 has not been challenged in the writ petition. Though learned Counsel for the petitioner argued that the said reversion was a punishment but he could not substantiate his submission either from any pleading in the writ petition or from the order dated 13.10.1998 which is simplicitor order. Since the petitioner''s promotion on the post of Record Inspector (subsequently re-designated as Revenue Inspector) was purely officiating and on temporary basis, he had no right on the said post and could be reverted by a simplicitor order at any point of time. Nothing has been placed before this Court to substantiate his right on the said post. It is well settled that an officiating temporary promotion does not give any right to hold the post and the incumbent is liable to be reverted at any point of time.

The proceedings with respect to the major penalty of reduction at the lowest stage in the pay scale are different and pursuant to the petitioner''s alleged unauthorised absence from 14.10.1998 and onwards, were initiated by the respondents treating petitioner''s substantive appointment on the post of Lekhpal pursuant to the reversion order dated 13.10.1998 which had attained finality having not been challenged. The order of punishment dated 30.10.1999 passed by the Sub-Divisional Magistrate, Auraiyya which is consequent to different proceeding has been found illegal by the appellate authority and on the very same ground, i.e., no adequate opportunity of hearing was given to petitioner, the very argument which has been raised before this Court. The order dated 30.10.1999 was set aside by the appellate authority. That being so, no cause of action survives to petitioner for challenging the said order of appeal. So far as the appellant authority has directed the disciplinary authority to proceed afresh after giving due opportunity to the delinquent employee, I find no illegality therein inasmuch as the order of punishment having been set aside on technical ground of non affording of adequate opportunity to petitioner, the disciplinary authority is not deprived of any power not to proceed afresh in accordance with law. The power of appellate authority are co-extensive with disciplinary authority. The appellate authority has not faulted in directing the disciplinary authority to proceed afresh after giving opportunity of hearing to the petitioner. The appellate order dated 12.11.2009 warrants no interference. A perusal of the appellate order also shows that the same has actually been passed by the District Magistrate and not by the Additional District Magistrate. Even otherwise the question as to whether Collector includes Additional Collector was a question raised in a bunch of writ petitions and the issue has been finally settled by a Full Bench of this Court in the case of Brahm Singh v. Board of Revenue and Ors. 2008(5) ADJ 331. The words "District Magistrate" and "Additional District Magistrate" are basically in reference with the criminal administration of justice and for revenue purposes the appointment is made on the post of Collector and Additional Collector u/s 14 and 14-A of the Land Revenue Act, 1901. Considering the fact as to whether the Collector shall include Additional Collector and where the power is required to be exercised by the Collector if the same is discharged by Additional Collector, would make it without jurisdiction, is the issues considered by the Full Bench in Brahm Singh (supra) and has been negatived while observing as under:

Therefore, while construing the word ''Collector'' as defined in 1950 Act, it is relevant and necessary to read the other provisions and statutes which are part of the same scheme, harmoniously and collectively so that the object and purpose of the enactment and the intent of the legislature are construed correctly. The declaration under Sub-section 4 of Section 14-A provides that every Additional Collector appointed under 1901 Act is a ''Collector'' of the District in respect to such powers and duties which he exercises in the District as assigned to him by the concerned Collector and for that purpose it shall be deemed as if he is the Collector of the District. Once a declaration has been made in the statute itself, the same would carry to 1950 Act also inasmuch as in respect to such matters ''Additional Collector'' would be the ''Collector'' of the District. The reason for adding the requirement of issuance of a notification by the State Government empowering ''Assistant Collector of first class'' would be clear from a bare reading of Section 15 of 1901 Act, which shows that though an Assistant Collector is also appointed in the District and he is a subordinate officer to the Collector, but there is no declaration like Sub-section 4 of Section 14-A in Section 15 that the Assistant Collector would also be treated to be a Collector of the District when he will be discharging duties assigned to him by the Collector or any other authority competent to do so in respect to the said District. Sub-section 4 of Section 3 of 1951 Act provides that only those Assistant Collector of first class are included within the meaning of Collector who are empowered by the State Government by Notification in the Gazette to discharge all or any of the functions of the Collector under the aforesaid Act. Thus, the issuance of notification by the State Government was necessitated because of absence of any provision like Sub-section (4) of Section 14-A of 1901 Act where under the order passed by an Additional Collector while exercising power or discharging any duty as a Collector would be deemed to be an order under that Act. Therefore, the Legislature while defining the Collector under Sub-section (4) of Section 3 of 1950 Act provides that the Collector means an officer appointed as Collector under the provisions of 1901 Act and by legal fiction in view of Sub-section (4) of Section 14-A of the U.P. Land Revenue Act, it would include Additional Collector also when he acts and discharges the duties of the Collector as authorized under Sub-section (3) of Section 14-A. We are, therefore, of the view that as per definition given in Sub-section (4) of Section 3 of Act No. 1 of 1950, Collector will include Additional Collector also when he discharges the duties and functions of the Collector as provided under Sub-section (3) of Section 14-A of 1901 Act. In view of the discussions made above, answer of question No. 1 can only be in affirmative, i.e., the power and functions of the Collector can be exercised by the Additional Collector u/s 198(4) of 1950 Act, provided he has been so directed by the Collector of the district.

In support of our above view, it would be relevant to refer a Single Judge judgment rendered by His Lordship Hon''ble V. Bhargava (as His Lordship then was) in Baikuntha Narain Major and Ors. v. Surend and Ors. 1954 ALJ 602 where referring to Section 14-A(4) of 1901 Act and applying the same in a similar kind of controversy occurred with reference to Section 2 of U.P. Land Utilization Act, 1948, his Lordship held as under:

This means that the Legislature by this fiction intended that an Additional Collector, once he is empowered under Sub-section (3) of Section 14-A of the U.P. Land Revenue Act, should have the status of and should be treated as if he were "the Collector" of the district for purposes of the U.P. Land Revenue Act as well as for purposes of every other law for the time being applicable to a Collector.

Section 14-A(4) of 1901 Act was again considered in Ratan Raj v. R.A. Rahmani, Election Tribunal, Meerut and Ors. 1960 RD 149, and the Division Bench of this Court following the judgement in Baikuntha Narain Major and Ors. v. Surend and Ors. (supra) observed as under:

Sub-section (4) of Section 14-A provides that the Additional Collector when exercising any power of discharging any duty under Sub-section (3), would be deemed "as if he were the Collector of the District." The Election Tribunal has overlooked these words which enact the legal fiction that the Additional Collector should be deemed to be the Collector of the District. The legislature has by these words endowed him with the ''personae'' of the Collector so that Sri Gauri Shanker Singh, though in fact the Additional Collector, would in law be deemed to have acted as the Collector of the District while receiving the petitioner''s election petition. The Tribunal''s opinion that the election was not validly presented to him is therefore patently wrong.

We are in respectful agreement with the aforesaid view expressed by their Lordships in the above cases, which also finds support from the judgment of the Hon''ble Apex Court in the case of The State of Uttar Pradesh and Others Vs. Raja Syed Mohammad Saadat Ali Khan,

In view of the aforesaid exposition of law even this argument of learned Counsel for the petitioner lacks substance. No other point has been argued.

The writ petition lacks merit and is dismissed. No costs.