Research › Search › Judgment

Allahabad High Court · body

2003 DIGILAW 1226 (ALL)

S. P. N. Asthana v. State Of Uttar Pradesh

2003-05-20

M.P.SINGH, S.P.SRIVASTAVA

body2003
JUDGMENT : 1. Feeling aggrieved by the imposition of a major penalty of removal from service by the State Government accepting the recommendations of the High Court made in this regard after holding a regular disciplinary enquiry against the Petitioner, who was found guilty of various charges relating to the misconduct, he has now approached this Court seeking redress, praying for the quashing of the order dated 15.2.2002 issued by the State Government and for his reinstatement in service with all benefits of continuity of service including payment of arrears of salary. 2. We have heard the learned Counsel for the Petitioner as well as the learned Counsel representing the contesting Respondents and have also carefully perused the record. 3. The facts, in brief, shorn of details and necessary for the disposal of this case lie in narrow compass. A charge-sheet dated 1.9.2000 was served on the Petitioner commencing regular disciplinary enquiry against him which contained two charges. The first charge was to the effect that the delinquent official had decreed Original Suits No. 639 of 1981, 633 of 1981 and 640 of 1981 against the Kanpur Development Authority by a common judgment and decree, whereby, the lawfully acquired land vesting in Kanpur Development Authority was released from the Land Acquisition Proceedings and the development authority was permanently restrained from demolishing the constructions standing over the plots in dispute and were further restrained from interfering with the Plaintiff's possession thereon. The development authority was also directed to accept an amount of Rs. 20,000 per acre from the Plaintiff towards development/ betterment charge and on compliance of the other conditions, release the plot in their favour prohibiting it from transferring the plots in dispute in favour of any other person. The aforesaid action of the delinquent officer was claimed to be in flagrant disregard of the order passed by the High Court on 2.5.1978 while disposing of the Writ Petition No. 1309 of 1969 and was further claimed to be in violation of the statutory provisions contained in the Land Acquisition Act which had resulted in heavy loss to the development authority to the tune of Rs. 10 crores. 10 crores. The aforesaid action, it was claimed, led to a reasonable inference that the delinquent official had been influenced on extraneous consideration and had failed to maintain absolutely integrity and complete devotion to duty and thus, committed misconduct within the meaning of Rule 3 of the U.P. Government Servants (Conduct) Rules, 1956. 4. The second charge levelled against the Petitioner was to the effect that while proceeding with the original suits, referred to hereinabove, he had deleted the relevant and important issues Nos. 2 and 14 which were to the effect as to whether the acquisition regarding the disputed land had been quashed by the High Court or was confirmed and as to whether the disputed land had been acquired under the award No. 33 dated 31.12.1968 and if so its effect. These issues had been framed on 5.9.1983 and 14.5.1996 in Original Suit No. 639 of 1981. This deletion, it was alleged, was with the ulterior motive with a view to give benefit and grant reliefs in favour of the Plaintiff and against the Defendant Kanpur Development Authority and others. This action, it was claimed, indicated that the delinquent official had failed to maintain absolute integrity and complete devotion to duty and had committed misconduct within the meaning of Rule 3 of the U.P. Government Services (Conduct) Rules, 1956. 5. In the disciplinary proceedings, the delinquent official was afforded reasonable opportunity to defend himself and lead evidence. After considering the defence put in by the delinquent official and the evidence and materials brought on record, the enquiry Judge came to the conclusion that the delinquent official had full knowledge of the fact that the land in suit was the acquired land and the charged officer had attempted to justify release thereof on the hypothesis that the same had not been prohibited by the High Court while disposing of Civil Misc. Writ Petition No. 1309 of 1969, decided on 2.5.1978, whereby the award given during the land acquisition proceedings had been upheld. The charged officer, it was pointed out, had justified the release on the strength of a resolution passed by the betterment/ development sub-committee of the Nagar Mahapalika. According to the delinquent officer, the question with regard to the deletion of issue Nos. 2 and 14 were not germane to the controversy. The charged officer, it was pointed out, had justified the release on the strength of a resolution passed by the betterment/ development sub-committee of the Nagar Mahapalika. According to the delinquent officer, the question with regard to the deletion of issue Nos. 2 and 14 were not germane to the controversy. The enquiry Judge had also noticed that in the written arguments submitted by the charged officer, it had been asserted that he had granted the release of the disputed land on the basis of the resolution dated 29.6.1972, passed by the betterment/ development sub-committee of Nagar Mahapalika, Kanpur as no public purpose existed. According to the charged officer, the land in suit could be released on fulfilment of the conditions laid down in the resolution dated 29.6.1972 and the provisions of Section 5A or Section 54 of the Land Acquisition Act were not attracted to the facts of the present case. 6. The Hon'ble enquiry Judge relying upon the observations of the various decisions of the Apex Court had come to the conclusion that in the Writ Petition No. 1309 of 1969 besides the prayer for quashing of the award dated 31.12.1968, another relief had also been claimed requiring the Respondents therein including Nagar Mahapalika, Kanpur, not to interfere with the possession of the Petitioners on the basis of the scheme under the Kanpur Urban Development Act and the award dated 31.12.1968, the operative portion of the order disposing of the writ petition indicated that the relief to the effect that the Respondents to the writ petition be directed not to interfere with the possession of the Petitioner on the basis of the aforesaid scheme under the Kanpur Urban Area Development Act and the award dated 31.12.1968 was refused by the High Court but while decreeing the suit, the charged officer has granted the same relief which had been refused by the High Court on its judicial side. Relying on the observations made in the decision of the Apex Court in the case of State of Bihar Vs. Dhirendra Kumar and others, AIR 1995 SC 1955 it was indicated that the civil court could have no jurisdiction to take cognizance of the case u/s 9 of the CPC Code. Relying on the observations made in the decision of the Apex Court in the case of State of Bihar Vs. Dhirendra Kumar and others, AIR 1995 SC 1955 it was indicated that the civil court could have no jurisdiction to take cognizance of the case u/s 9 of the CPC Code. The charged officer having admitted that the civil court had no jurisdiction to go into the validity or otherwise of the acquisition, his contention was that he did not set aside the acquisition and had simply released the land in dispute in favour of the Plaintiff on the strength of the resolution dated 29.6.1972, which was not sustainable in law and could not be accepted. It was observed that what could not be done directly, could not be permitted to be done indirectly. The release of the land by the judgment and decree of the civil court was not permissible in the absence of any action having been taken u/s 48 of the Land Acquisition Act. The Hon'ble enquiry Judge was also of the view that the possession of the land had been handed over to the Kanpur Development Authority under the provisions of the U.P. Urban Planning and Development Act, 1973 and it was the Kanpur Development Authority which alone had the power to dispose of the land as it ceased to vest in the Municipal Corporation in face of the judgment of the High Court dated 2.5.1978 disposing of the Writ Petition No. 798 of 1969. It was not open to the charged officer to decree the suit for injunction. The learned enquiry Judge drew an inference that the suits had been decreed actuated by oblique motive which could not be eliminated. 7. So far as the release of the land in dispute in favour of the Plaintiff on payment of development charges on the strength of the resolution dated 29.4.1972 was concerned, the Hon'ble enquiry Judge came to the conclusion that the plots in dispute which were the subject matter of the suits had been mutated in the name of Nagar Mahapalika. On the basis of the materials brought on record, the Hon'ble enquiry Judge also came to the conclusion that no decision had been taken for the release of the land in favour of the Plaintiff. On the basis of the materials brought on record, the Hon'ble enquiry Judge also came to the conclusion that no decision had been taken for the release of the land in favour of the Plaintiff. The action/omission on the part of the charged officer, according to the Hon'ble Enquiry Judge, clearly indicated that although there was no direct evidence forthcoming suggestive of culpability but the manner in which the suits had been decreed, certainly led to a reasonable inference of culpability and did cast reflections on the charged officer's reputation for integrity and good faith and devotion to duty which by itself is a misconduct within the meaning of Rule 3 of the U.P. Government Servant (Conduct) Rules, 1956. The charge No. 1 levelled against the Petitioner was found to have been proved. 8. It was also observed that in releasing the disputed land in favour of the Plaintiffs and granting injunction in their favour, the charged officer seems to have clutched at the jurisdiction nor vested in him by law and had recklessly decreed the suits without reckoning with the effect of the High Court judgment and finality of acquisition proceedings and by this reckoning the conduct of the charged officer was perilously close to violation of the judicial conduct/canons particularly those embodied in Rule 3 of the Government Servant (Conduct) Rules, 1956 which enjoins upon every Government servant to maintain absolute integrity and complete devotion to duty. 9. So far as the charge No. 2 is concerned, the Hon'ble enquiry Judge came to the conclusion that the deletion of the issue Nos. 2 and 14 was not sufficient to lead to an inference that the deletion was motivated or inspired by any extraneous consideration, specially when, there was no dispute about the acquisition of the land, the charged officer could not be held to be guilty of any judicial indiscretion and misconduct, while deleting issue No. 14 which even otherwise, was not carefully phrased as the land had been acquired not under the award under Sections 4 and 6 of the Land Acquisition Act and the award dated 31.12.1968 was in respect of compensation and if on an application made on behalf of the Plaintiff, issue No. 14 was deleted, it could not be said that the charged officer had acted with ulterior motive to benefit the Plaintiffs and grant relief in their favour. The Hon'ble Enquiry Judge did not find the deletion of the issue to be vital to the decision of the suits. The pivotal question, according to the Hon'ble Enquiry Judge, was as to whether the land which had vested in the Nagar Mahapalika, Kanpur, under the provisions of the Land Acquisition Act and in respect of which the acquisition and award had attained finality, could be released merely on the basis of a resolution passed by the Betterment and Development Sub-committee of Nagar Mahapalika which was not even approbated by the Nagar Mahapalika itself. The deletion of these two issues by itself it was found did not reflect upon the integrity of the charged officer nor did it reflect upon his devotion to duty. 10. The enquiry report submitted by the Hon'ble Enquiry Judge, was put up for consideration before the Administrative Committee on 7.8.2001, on which date, it was resolved that the enquiry report be accepted and the matter be referred to Full Court. The Full Court meeting was held on 5.1.2002. Considering the enquiry report, it was resolved that the officer be removed from service. 11. The learned Counsel for the Petitioner has strenuously urged that whatever default existed on the part of the Appellant, it could not be taken to be more than a simple error of judgment on account of the want of full knowledge of the provisions of the Land Acquisition Act specially when the counsel for the Kanpur Development Authority had neither in the written statement nor during the course of argument had filed any objection based upon Section 48 of the Land Acquisition Act. In this connection, it has been further urged that there was no proof of any ill motive or ulterior reason on the part of the Petitioner and in the absence thereof, the action of the Petitioner could not be treated to furnish a ground for misconduct justifying initiation of disciplinary proceedings against him. 12. We have given our anxious consideration to the above submissions. 13. The Apex Court in its decision in the case of Union of India and others Vs. 12. We have given our anxious consideration to the above submissions. 13. The Apex Court in its decision in the case of Union of India and others Vs. A.N. Saxena, AIR 1992 SC 1233 , while considering the conduct of an Income Tax Officer, who was charged with completing certain assessments in an irregular manner, in paragraph 8 of the reports had ruled as under: In our view, an argument that no disciplinary action can be taken in regard to actions taken or purported to be done in the course of judicial or quasi-judicial proceedings is not correct. It is true that when an officer is performing judicial or quasi-judicial functions disciplinary proceedings regarding any of his actions in the course of such proceedings should be taken only after great caution and a close scrutiny of his actions and only if the circumstances so warrant. The initiation of such proceedings, it is true, is likely to shake the confidence of the public in the officer concerned and also if lightly taken likely to undermine his independence. Hence, the need for extreme care and caution before initiation of disciplinary proceedings against an officer performing judicial or quasi-judicial functions in respect of his actions in the discharge or purported discharge of his functions. But it is not as if such action cannot be taken at all. Where the actions of such an officer indicate culpability, namely, a desire to oblige himself or unduly favour one of the parties or an improper motive there is no reason why disciplinary action should not be taken. 14. A similar contention was again considered in Union of India and Others Vs. K.K. Dhawan, AIR 1993 SC 1478 and the principle was more succinctly stated as under in paras 28 and 29 of the report: 28. Certainly, therefore, the officer who exercises judicial or quasi-judicial powers acts negligently or recklessly or in order to confer undue favour on a person is not acting as a Judge. Accordingly, the contention of the Respondent has to be rejected. It is important to bear in mind that in the present case, we are not concerned with the correctness or legality of the decision of the Respondent but the conduct of the Respondent in discharge of his duties as an officer. Accordingly, the contention of the Respondent has to be rejected. It is important to bear in mind that in the present case, we are not concerned with the correctness or legality of the decision of the Respondent but the conduct of the Respondent in discharge of his duties as an officer. The legality of the orders with reference to the nine assessments may be questioned in appeal or revision under the Act. But we have no doubt in our mind that the Government is not precluded from taking the disciplinary action for violation of the Conduct Rules. Thus, we conclude 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 a 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'. 15. It was further indicated that the instances above catalogued are not exhaustive. However, we may add that for a mere technical violation or merely because the order is wrong and the action not falling under the above enumerated instances, disciplinary action is not warranted. Here, we may utter a word of caution. Each case will depend upon the facts and no absolute rule can be postulated. 16. In the case of Union of India (UOI) and Others Vs. Upendra Singh, (1994) 3 SCC 357 , the Court dealing with the conduct of an Inspecting Assistant Commissioner of Income Tax while holding proceedings u/s 144A of the Income Tax Act and a similar contention made by the delinquent officer was repelled following the earlier decisions rendered in Union of India v. A.N. Saxena and Union of India v. K.K. Dhaon (supra) and the order of Central Administrative Tribunal staying the disciplinary proceedings was set aside. The matter was again considered in Government of Tamil Nadu Vs. K.N. Ramamurthy, AIR 1997 SC 3571 . In this case, the delinquent officer had passed certain assessment orders in the capacity of Deputy Commercial Tax Officer. The Administrative Tribunal set aside the punishment imposed upon the officer on the ground that even though the assessment orders were palpably wrong, he should not be subjected to disciplinary proceedings since by passing such assessment orders, he exercises quasi-judicial functions conferred upon him in the relevant statute. The contention of the delinquent officer was not accepted and the Court after referring to A. N. Saxena and K. K. Dhaon (supra) set aside the order of Tribunal. In High Court of High Court of Judicature at Bombay through its Registrar Vs. Shirish Kumar Rangrao Patil and another, AIR 1997 SC 2286 , the Court was dealing with a case of Civil Judge (Junior Division) and it was observed that if the evidence adduced during the departmental enquiry proves the proclivity of corrupt conduct on the part of the judicial officer and enquiry into his conduct is fair and germane, the imposition of punishment should be proper to the magnitude of the misconduct. The order of the High Court passed on the judicial side quashing the dismissal order was set aside. 17. In view of these catena of decisions, a Division Bench of this Court in its decision in the case of Ram Chandra Shukla v. State of U.P. and ors., Civil Misc. Writ Petition No. 17416 of 1997 decided on 6.9.2001 had observed that it is not possible to accept the contention of the learned Counsel for the Petitioner that no disciplinary proceedings could be held against the Petitioner in regard to his conduct of passing judicial orders while performing his duty as a Sessions Judge. 18. We are clearly of the view that if a Government servant involved himself in a way inconsistent with the faith feel discharge of his duty in a service, it is certainly a misconduct which justifies an imposition of major penalty. In the present case, the Petitioner was holding a high post in the judicial hierarchy. The impugned action/omission was not only grossly negligent but was reckless. The object behind the same was clearly to confer undue favour on the Plaintiff. While doing so, the delinquent official did not act like a 'Judge'. In the present case, the Petitioner was holding a high post in the judicial hierarchy. The impugned action/omission was not only grossly negligent but was reckless. The object behind the same was clearly to confer undue favour on the Plaintiff. While doing so, the delinquent official did not act like a 'Judge'. Had he done so, he could not have overlooked the implications arising out of the judgment and order passed by this Court while disposing of the Writ Petition No. 1309 of 1969 on 2.5.1978 and upholding the award and refusing to grant the injunction sought for. In fact, by the impugned action/omission ignoring the binding effect of the decision of this Court, the finality attached to the acquisition proceedings and the upholding of the award by the High Court were simply nullified just to extend an uncalled for benefit in favour of the Plaintiff. The officer has clearly appeared to act in a manner which adversely reflected on his reputation, integrity, good faith, and devotion to duty. There was enough material to show recklessness in discharge of his duty indicating that he had acted in a manner which was most unbecoming of a judicial officer/Government servant. 19. It may be noticed that the Apex Court in its decision in the case of High Court of Judicature at Bombay through ITE Registrar Vs. Udaysingh Nimbalkar and Others, AIR 1997 SC 2286 had indicated as follows: ...Since the Respondent is a judicial officer and the maintenance of discipline in the judicial service is a paramount matter and since the acceptability of the judgment depends upon the creditability of the conduct, honesty, integrity and character of the officer and since the confidence of the litigant public gets affected or shaken by the lack of integrity and character of the judicial officer, we think that the imposition of penalty of dismissal from service is well justified. It does not warrant interference. In the present case, the penalty imposed is that of removal from service only. 20. It may be observed that if the evidence adduced during the departmental enquiry proved the proclivity of the corrupt conduct on the part of the judicial officer and the enquiry into the conduct is fair and germane, the imposition of the punishment should be appropriate to the magnitude of the misconduct. 20. It may be observed that if the evidence adduced during the departmental enquiry proved the proclivity of the corrupt conduct on the part of the judicial officer and the enquiry into the conduct is fair and germane, the imposition of the punishment should be appropriate to the magnitude of the misconduct. This was so indicated by the Apex Court in its decision in the case of High Court of Judicature at Bombay through its Registrar Vs. Shirish Kumar Rangrao Patil and another, AIR 1997 SC 2631 . 21. Considering the facts and circumstances established on record, from the action/omission attributed to the delinquent official, it is apparent that they indicated and pointed out in unmistakable terms, the judicial misbehaviour while discharging the duties as an Additional District Judge, subordinate to the High Court as he was bent upon to grant the reliefs to the Plaintiff in flagrant disregard of the order of the High Court, which had attained finality and further in blatant disregard of the statutory provisions regulating the acquisition of the land for public purpose and exclusion of the jurisdiction of the civil court in the matters in regard to the release of the land from acquisition. 22. By no stretch of imagination, the impugned actions/omissions can be protected under the shield of ignorance of law specially when the delinquent official had gone to the extent of deleting the relevant issues touching on the question of inherent lack of jurisdiction. 23. The submission that the impugned action/omission did not fall within the ambit of misconduct as contemplated under the U.P. Government Servants (Conduct) Rules, 1956, is devoid of merit and is not at all acceptable. 24. It has been next urged that the penalty inflicted upon the Petitioner is grossly disproportionate to the gravity of the alleged misconduct. So far as this aspect of the matter is concerned, the scope of the judicial review in the cases like the present one, is very limited. 25. 24. It has been next urged that the penalty inflicted upon the Petitioner is grossly disproportionate to the gravity of the alleged misconduct. So far as this aspect of the matter is concerned, the scope of the judicial review in the cases like the present one, is very limited. 25. In any view of the matter, taking into account the nature of the judicial misbehaviour and the persistence of the erring official vested with the judicial powers in dealing with his defence as set up, acting in a slipshod manner, bye-passing the relevant issue already framed and ignoring well-established principles, granting the decree in flagrant disregard of the principles requiring compliance of the final orders issued by the High Court and requiring strict adherence to the statutory provisions regulating the acquisition of the land in dispute and their finality, the penalty of removal from service imposed on the Petitioner cannot be taken to be disproportionate to the gravity of the misconduct/ judicial misbehaviour. The submission made in this regard is devoid of merit and is not at all acceptable. 26. Much stress has been laid by the counsel for the Appellant to get over the findings returned against the Petitioner by the Hon'ble Enquiry Judge and accepted by the Full Court whose consequent recommendation was acted upon by the State Government, asserting that the findings are only inferential. 27. It may, however, be noticed that it is by now well-established that strict laws of evidence are not applicable to the departmental proceedings and the insistence on the observance of the rules of evidence by the disciplinary authorities, would rob the administrative law of its utility and the needed flexibility as it hinders or hampers them unduly in their task of weighing evidence and deciding on facts, besides resulting in the exclusion of much of the evidence of probative value. It may, however, be emphasized that the decision of the disciplinary authority must be based on material of some probative value which tends to logically show the existence of facts relevant to the issue to be determined. 28. We are of the clear opinion that if the material relied upon is capable of having any probative value, the weight to be attached to it is a matter for the disciplinary authority entrusted with the responsibility of deciding the issue. It is the preponderance of probability that matters. 28. We are of the clear opinion that if the material relied upon is capable of having any probative value, the weight to be attached to it is a matter for the disciplinary authority entrusted with the responsibility of deciding the issue. It is the preponderance of probability that matters. In the matters regarding departmental proceedings, the expression "sufficient evidence" to prove a charge has to be taken as distinguishable from the evidence which merely raises a suspicion. The proof has to be capable of scrutiny and should stand the test of reasonableness consistent with the normal conduct and probability. The rule followed in criminal trial that an offence is not established unless proved by evidence beyond reasonable doubt is not applicable to the departmental proceedings. 29. Taking into consideration the facts and circumstances as established on the record in their totality, we are clearly of the opinion that the impugned action/omission of the delinquent official did constitute a misconduct of a very serious nature, specially taking into account the nature of the judicial powers vested in him and the fact that the aforesaid actions/omissions had the effect of eroding the faith of general public in an institution discharging judicial functions. We are further of the opinion that the delinquent official could not be taken to have been prejudiced in his defence and in the disciplinary proceedings culminating in the imposition of punishment of removal from service, the Petitioner had been afforded reasonable opportunity of being heard at every crucial stage. 30. In view of our conclusions indicated hereinabove, no justifiable ground can be said to have been made out for any interference in the impugned order of removal from service dated 15.2.2002, while exercising the extraordinary jurisdiction envisaged under Article 226 of the Constitution of India. 31. This writ petition accordingly fails and is hereby dismissed. 32. There shall, however, be no order as to costs.