Virendra Kumar vs State of M.P. and Others

The present petition under Article 226 of the Constitution of India has been preferred by the petitioner against issuance of charge-sheet to the

petitioner vide letter dated 22/05/2017 (Annexure P/1) issued by Collector District-Sheopur.

Precisely stated facts of the case are that petitioner at the relevant point of time holding the post of Additional Collector in District- Sheopur. An

application for grant of permission to sale some land was filed by one Ramnath s/o Laxman in the Court of petitioner which was considered and

order was passed by the petitioner on 04/02/2017 granting permission to said person for such sale transaction. The said order has been passed by

the petitioner in the capacity of revenue Court and therefore, as per the submissions of the petitioner, he enjoyed the immunity as provided under

Sections 2 and 3 of the Judges (Protection) Act, 1985 (for brevity ""Act of 1985""). The intervenor- Dashrath Singh Parihar was the Bureau Chief

of Dainik Bhaskar and as per the allegations of the petitioner, he was personally interested in some part of land bearing Survey No.952/4 (part of

the land) which was alleged to be sold by the petitioner therefore, he published a news item which appears to be derogatory to the petitioner and

his image therefore, notice under the Contempt of Courts Act, 1971 (for short ""Act of 1971"") has been issued to him which was deliberately

avoided by Dashrath Singh Parihar and therefore, same cannot be served and executed.

On the date of incident, it appears that intervenor-Dashrath Singh Parihar visited the office of Collector Sheopur and on information received,

petitioner called Dashrath Singh through his security guard and when intervenor started shouting and abusing petitioner, then compelled by the

circumstances, petitioner proceeded against him under Section 345 of Cr.P.C. by imposing fine of Rs.200/-, and given notice which the intervenor

refused to accept. Since intervenor did not deposit the fine amount therefore, he was sent to jail for 1 day. After coming out from the jail,

intervenor appears to have made some complaint and therefore, petitioner was placed under suspension vide order dated 19/04/2017 and charge-

sheet has been issued to him with the articles of charges as referred in the charge-sheet.

Grievance as echoed by the counsel for the petitioner is that charge-sheet has been issued contrary to the provisions of Act of 1985. Any action

taken by the Presiding Officer in discharging his functions as Judicial Officer, no civil or criminal proceeding can be instituted against him. Petitioner

has proceeded against the intervenor under the provisions of Contempt of Courts Act as Presiding Officer and after following due process, has

punished the erring miscreant therefore, no liability can be fastened over the petitioner on the basis of duties done by him as a Judge.

Through different documents and proceedings, petitioner took the stand that he followed due procedure before sending the intervenor to the jail

therefore, on such basis, departmental enquiry could not have been initiated. Article of charges indicates that petitioner has been subjected to

departmental enquiry on the basis of his duties done in pursuance to the duties given to him as a Judge and therefore, is saved by the provisions of

Judges Protection Act. He relied upon the judgment passed by the Hon''ble Apex Court in Civil Appeal No.1159 of 2015 on 22nd January, 2015

(Annexure P/13) whereby in similar fact situation of the case, the Hon''ble Apex Court in the case of present petitioner (although subject matter of

the case was different) has allowed the appeal preferred by the appellant/ present petitioner and charge-sheet has been quashed. He relied upon

the judgment passed by the Hon''ble Apex Court in the case of Zunjarrao Bhikaji Nagarkar vs U.O.I. And Others (1997) 7 SCC 409. According

to counsel for the petitioner there must exists reasonable basis for disciplinary authority to proceed against an employee. Here no reasonable basis

exists to proceed against the petitioner.

Learned counsel for the respondents/ State opposed the prayer made by the petitioner and through the course of events submitted that

petitioner has allowed the transfer of Bhoodan land without permission of Collector. Bhoodan land could not have been transferred and that to

without permission of the Collector. The news published by the intervenor, on which petitioner over reacted and decided the proceedings on his

own, whereas he should have followed the due process of law. According to the respondents, petitioner has not proceeded as per law. Petitioner

was required to send the reference of contempt of Court to the High Court, but arbitrarily exercised the powers under Section 345 of Cr.P.C.

himself knowing fully well the legal provisions and its consequences. Petitioner has rightly been chargesheeted for his act committed as Additional

Collector. He prayed for dismissal of the writ petition.

Learned counsel for the intervenor also opposed the prayer made by the petitioner and through the course of events submitted that petitioner

caused arbitrariness and illegality to the hilt and his action comes within the definition of mis-conduct and departmental proceedings can be

proceeded against the judicial or quasi judicial authority if there is prima facie a misconduct on the part of authority. He relied upon the judgment of

the Hon''ble Apex Court in the case of AIR 1970 SC 253, M/s Hindustan Steel Ltd. Vs. The State of Orissa as well as 1994 (3) SCC 357,

Union of India and Others Vs. Upendra Singh.

Heard the learned counsel for the parties at length and perused the record.

In the present case, petitioner was working as Additional Collector, Sheopur at the relevant point of time and as per the allegations, in the

capacity of Revenue Court, in exercise of powers under Section 165(7)(?) of M.P. Land Revenue Code, 1959 granted permission to the land

holder to sale the Bhoodan land. On publication of such news on 15/02/2017, petitioner gave a notice to the intervenor for initiation of the

contempt proceedings. When he was not served then bailable warrants were also issued many a times and ultimately, on 18/04/2017, order was

passed under Section 345 of Cr.P.C., imposing fine of Rs.200/- and sentence of 1 month in default stipulation. Allegedly intervenor could not pay

the amount and remained in jail for a day and released on 19/04/2017.

The main plank of the petitioner in this case is, protection under Judges (Protection) Act, 1985. It is true that Judicial Officers/ Judges enjoyed

protection for any judicial act done under the bonafide belief by them. Here the question is whether the said act comes under the Act of 1985 or

not and consequently whether if any departmental enquiry is being initiated against the petitioner then what is the scope of judicial review in the said

departmental enquiry because this petition has been preferred immediately after issuance of charge-sheet and this petition has not been preferred

after completion of the departmental enquiry. Therefore, the scope of judicial review in respect of initiation of departmental enquiry is to be

considered first.

The Hon''ble Apex Court in the case of Union of India and Others (supra) has discussed the scope of judicial review in the case of

departmental inquiry in respect of officers discharging judicial or quasi judicial duties. The Apex Court while considering the decision rendered by

the apex Court in the case of Union of India Vs. K.K. Dhawan, (1993) 2 SCC 56 as well as Union of India Vs. A.N. Saxena, (1992) 3 SCC 124

expressed the mandate that it is important to bear in mind that the correctness or legality of the delinquent employee is not to be considered but the

conduct of the employee in discharging of his duties as an officer is to be seen. The Apex Court concluded that the disciplinary action can be taken

in the following cases:-

(i) Where the officer had acted in a manner as would reflect on his reputation for integrity or good faith or devotion to duty;

(ii) if there is prima facie material to show recklessness or misconduct in the discharge of his duty;

(iii) if he has acted in an manner which is unbecoming of a government servant;

(iv) if he had acted negligently or that he omitted the prescribed conditions which are essential for the exercise of the statutory powers;

(v) if he had acted in order to unduly favour a party;

(vi) if he had been actuated by corrupt motive, however small the bribe may be because Lord Coke said long ago though the bribe may be small,

yet the fault is great;

Similarly, the scope and extent of judicial review and interference in the charge-sheet has been discussed by the Apex Court in the catena of

judgments. The supreme Court in the case of The Secretary, Min.Of Defence & Others vs. Prabhash Chandra Mirdha (2012) 11 SCC 565 has

laid down the law in this regard by relying on several previous decisions in the following terms:-

Ordinarily a writ application does not lie against a charge-sheet or show cause notice for the reason that it does not give rise to any cause of

action. It does not amount to an adverse order which affects the right of any party unless the same has been issued by a person having no

jurisdiction/ competence to do so. A writ lies when some right of a party is infringed. In fact, chargesheet does not infringe the right of a party. It is

only when a final order imposing the punishment or otherwise adversely affecting a party is passed, it may have a grievance and cause of action.

Thus, a charge-sheet or show cause notice in disciplinary proceedings should not ordinarily be quashed by the Court (Vide: State of U.P. vs.

Brahm Dattt Sharma, (1987) 2 SCC 79; Executive Engineer Bihar State Housing Board Vs. Ramesh Kumar Singh and Others, (1996) 1 SCC

327, Ulagappa and Others Vs. Divn. Commissioner Mysore and Others, (2001) 10 SCC 639: Special Director and Anr. Vs. Mohd. Ghulam

Ghouse and Anr., (2004) 3 SCC 440 and Union of India and Anr. Vs. Kunisetty Satyanarayana, (2006) 12 SCC 28.

In State of Orissa and Anr. Vs. Sangram Keshari Mishra and Anr. (2010) 13 SCC 311, this Court held that normally a charge-sheet is not

quashed prior to the conclusion of the enquiry on the ground that the facts stated in the charge are erroneous for the reason that correctness or

truth of the charge is the function of the disciplinary authority. [See also: Union of India and Ors. Vs. Upendra Singh (1994) 3 SCC 357.]

Thus, the law on the issue can be summarized to the effect that charge-sheet cannot generally be a subject matter of challenge as it does not

adversely affect the rights of the delinquent unless it is established that the same has been issued by an authority not competent to initiate the

disciplinary proceedings. Neither the disciplinary proceedings nor the charge-sheet be quashed at an initial stage as it would be a premature stage

to deal with the issues. Proceedings are not liable to be quashed on the grounds that proceedings had been initiated at a belated stage or could not

be concluded in reasonable period unless the delay creates prejudice to the delinquent employee. Gravity of alleged misconduct is a relevant factor

to be taken into consideration while quashing the proceedings.

The law laid down by the Hon''ble Apex Court in the above quoted decision, therefore, makes it clear that generally and ordinarily a writ

petition is not maintainable against the charge-sheet, as issuance of the same does not rise to the cause of action on account of the fact that it does

not adversely affect the rights of the parties except in the case where the charge-sheet has been issued by an authority not competent to do so.

The Division Bench of this Court in the case of Jagdish Baheti Vs. High Court of M.P. and Others, 2015 (3) MPHT 172 reiterates the same

spirit and this Court has no reason or ground to tread over a different path. Resultantly, this Court declines to interfere in the writ petition.

Petitioner has relied upon a judgment of the Hon''ble Apex Court in his own case (vide Annexure P/13) but the fact situation of the said case is

different. In the said case, while working as Sub Divisional Officer (Revenue), Jabalpur in exercise of power conferred under Section 57(2) of the

M.P. Land Revenue Code, 1959 he passed an order dated 03/01/2009 by which petitioner conferred Bhumiswami rights in favour of the

applicant over certain lands, which were given to the ancestors of the applicant as Kotwars by the then Malguzar in lieu of services rendered by

them to the village community. Here in the present case, petitioner is not seeking protection for the permission he gave to Ramnath to sale the

Bhoodan land. Here petitioner is facing heat over his alleged conduct while punishing the intervenor, which according to the authorities was not

proper course of action in the given fact situation.

Therefore, in the interest of justice, it is imperative that petitioner must face departmental enquiry and establish his innocence through evidence

that he acted as quasi judicial authority while dealing with the case of intervenor under the Contempt of Courts Act, 1971 as well as under the

provisions of Criminal Procedure Code in right earnest. Petitioner cannot be given any benefit of Judges Protection Act at this juncture. Therefore,

judgment relied upon by the petitioner in the case of Zunjarrao Bhikaji Nagarkar (supra) is of no help as precedent to the petitioner. In the said

case, petitioner (petitioner of said judgment) was posted as Collector of Central Excise Nagpur on the basis of an order passed by him under the

Central Excise Act, 1944 and despite giving a finding against the assessee. He did not impose penalty over it. Here the case is purely not of his

conduct as judicial authority, but his conduct as administrative and quasi judicial autjhority. In fact, intention and decision are yet to be unfolded

therefore, inference at this stage cannot be made.

Resultantly, on the basis of cumulative analysis and in the considered opinion of this Court, scope of judicial review for entertaining the writ

petition against issuance of charge-sheet in present set of facts does not evoke enough credence and confidence to interfere. Therefore,

interference is declined. Petitioner may plead and prove his innocence in the departmental enquiry.

Resultantly, petition sans merits and the same is hereby dismissed.