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2005 DIGILAW 1527 (RAJ)

Ameer Khan v. State

2005-05-23

DINESH MAHESHWARI, RAJESH BALIA

body2005
Judgment Rajesh Balia, J.-We have heard learned Counsel for the parties. 2. This appeal is directed against the Judgment of the learned Single Judge dated 110.1995 dismissing the writ petition filed by the appellant. 3. The petitioner was initially appointed in the Irrigation Department as a Patwari. The petitioner was thereafter declared surplus and was absorbed as a Patwari in the Revenue Department. According to the averments made in the amendment application for amending the writ petition, filed in the special appeal, the petitioner was again sent to Irrigation Department in May, 1976 and since then he was in the employment of the Irrigation Department. 4. On 29.02.1980, the petitioner was served with a charge-sheet by the Collector, Udaipur that the appellant had collected in the year 1976, 351 Kgs. of levy wheat from seven persons named in the details of charges, the price of levy wheat has not been disbursed to them, though, the amount was received by the appellant from the Food Corporation of India, nor the amount has been shown as payable to the said persons from whom the levy wheat has been procured. After receiving the reply of the appellant-petitioner denying the charges, an Inquiry Officer was appointed by the Order dated 11.06.1980 by the Collector, Udaipur. The Inquiry Officer concluded his inquiry and submitted his report dated 26.02.1981 finding that though the entries have been made in the Register about the payment of a sum of Rs.12,705/-as against the amount received by the petitioner-appellant amounting to Rs.12,700/-, but the thumb impressions shown against the payment are not on the stamp receipts and the persons to whom the amount is alleged to have been given had appeared in person and had stated that they had not received money. On this premise, the Inquiry Officer found proved the charge of non-disbursement of the price of levy wheat received from Food Corporation of India. 5. The findings recorded by the Inquiry Officer were accepted by the Collector, Udaipur. The Collector, in his order, noticed that after giving many opportunities, the delinquent officer has not appeared and the inquiry had to be started ex parte, nor he has lead any evidence in rebuttal. 5. The findings recorded by the Inquiry Officer were accepted by the Collector, Udaipur. The Collector, in his order, noticed that after giving many opportunities, the delinquent officer has not appeared and the inquiry had to be started ex parte, nor he has lead any evidence in rebuttal. He has not replied to the notices sent to him on 31.03.1981 and 02.04.1981 calling him to show-cause against the findings recorded by the Inquiry Officer, which led to inference that the petitioner-appellant has nothing to say against the findings recorded against him. By his order dated 06.06.1981, the Collector passed an order dismissing the delinquent officer from service. The formal order was passed on 08.06.1981 (Annexure-8) in pursuance of the aforesaid order passed earlier. 6. Appeal against this aforesaid order was dismissed by the Board of Revenue on 04.05.1982 vide Annexure-9. By Order dated 05.01.1984 (Annexure-10), the review petition filed by the delinquent officer was also dismissed by the State Government. The petition was filed thereafter on 112.1986, however, it appears that some defects were pointed out and time was taken by the learned Counsel to remove the defects and finally the petition was registered as D.B. Civil Writ Petition No. 2335/1988. 7. At the time of admitting the writ petition (at that time, it was considered by the Division Bench), a speaking order was made by the Court detailing the issues that requires consideration in the writ petition, namely, that the charges related to the period during which the delinquent officer remained under the control of Collector, Udaipur under Revenue Department, the incumbent was original appointee in the Irrigation Department as Patwari and at the time when show-cause notice was given to the delinquent officer by the Collector, the delinquent officer has returned to his parent department namely, Irrigation and his deputation in the Revenue Department has come to an end, therefore, the question which arise for consideration is whether the Department in which the petitioner was on deputation, was competent to pass an order of dismissal or removal from service when before passing such order, the deputation has come to an end and the incumbent has returned to his parent Department. 8. 8. We have noticed above that the impugned order of punishment was passed by the Collector under the Revenue Department and the appeal has also been heard by the Board of Revenue as Appellate Authority under the CCA Rules for the Revenue Department. 9. When the matter came up for hearing, the matter was to be heard by the learned Single Judge as per the High Court Rules as existed then. The learned Single Judge has dismissed the writ petition vide Judgment under appeal. 10. The learned Single Judge firstly found that the writ petition was grossly belated by almost three years and required to be dismissed on the ground of delay and latches which were not explained. On the issues raised at the time of admission before the Division Bench, the learned Single Judge was of the view that since, the matter was admitted by the Division Bench and also thereafter the writ petition was not amended after it was admitted and the issue was raised suo moto by the Court, the petitioner cannot be permitted to raise and argue a ground which is not found in the writ petition and lastly on the merit of the order passed by the Disciplinary Authority, the Court was of the opinion that the petitioner has not participated in the inquiry by not availing the opportunities offered to him. From the inquiry report, it appears that the persons to whom the amount is alleged to have been paid have themselves appeared as witnesses before the Inquiry Officer and deposed that they have not received any amount of the levy wheat and also that since, the register in which payment has been shown to have been made under the thumb impressions which are not supported by a stamp receipt and mere appearance of thumb impressions coupled with the statement made by the persons who appeared before the Inquiry Officer probabilised the fact that the amount has not been paid by the delinquent to the persons from whom the levy wheat has been procured which amount was received by the delinquent from the Food Corporation of India for the purpose of disbursement. Therefore, the finding cannot be said to be perverse which can require invocation of extraordinary jurisdiction for setting aside the proceedings of inquiry which have been properly taken and finding reached thereof . 11. Therefore, the finding cannot be said to be perverse which can require invocation of extraordinary jurisdiction for setting aside the proceedings of inquiry which have been properly taken and finding reached thereof . 11. Having given our careful consideration to the rival submissions and the material placed before us while we agree with the first and the last reason that prevailed with the learned Single Judge, as noticed by us above, for dismissing the writ petition, the ground on which the learned Single Judge refused to examine the issue raised by the Division Bench at the time of admission cannot be accepted. However, raising a ground and examining on merit is one thing but to sustain the ground or not on material that has been placed on record is another. 10.12. So far as the ground raised by the Court at the time of admission of the writ petition suo moto needed a foundation in facts that the petitioner-appellant was permanently transferred from the Revenue Department to the Irrigation Department and was absorbed in the Irrigation Department and his lien in Revenue Department was brought to an end. This vital aspect of delinking of petitioner-appellant from the Department of Revenue is missing in the present case. From the material placed on record, it appears that the petitioner-appellant was appointed as a Patwari under the Irrigation Department prior to coming into force of the Rajasthan Subordinate Offices Ministerial Staff Rules, 1957 or the Rajasthan Land Revenue (Land Records) Rules, 1957. In Appendix 12 appended to the R.S.R., Patwaries in all the Departments have been included in the category of Ministerial Services. The Land Record Rules, 1957 while gives the details regarding duty requirement of a Patwari in the Land Revenue Department, at the same it also refers to the duties which a Pawari has to perform in respect of other Departments. It does not deal with recruitment of Patwaries under any other Department including Irrigation Department under which Patwaries appears to have been working prior to the promulgation of 1960 Rules. 113. Since, the petitioner-appellant was appointed as Amin and was working as a Patwari in 1966 in Irrigation Department when he was declared surplus from the Irrigation Department, by the Order of D.O.P., he was absorbed in the Revenue Department on the corresponding post. 113. Since, the petitioner-appellant was appointed as Amin and was working as a Patwari in 1966 in Irrigation Department when he was declared surplus from the Irrigation Department, by the Order of D.O.P., he was absorbed in the Revenue Department on the corresponding post. It was not a case where the incumbent was working under Revenue Department, as assumed in the question framed at the time of admission of the petition. He on absorption became a member of service of Revenue Department. However, thereafter in what circumstances, the petitioner-appellant again came to be transferred to the Irrigation Department and on what status he has been transferred, has not been brought on record by either of the parties and, therefore, it cannot be assumed as a matter of fact that the petitioner was declared surplus from the Revenue Department or permanently transferred or his services were surrendered to the Irrigation Department for its purposes. 14. In this Connection, we may notice Rule 41 of the Rules of 1957 which envisages assignment of duties to a Patwari under the Land Revenue Department for the Irrigation Department. Rule 41 envisages the services of the Patwari that has to be discharged under the Irrigation Department at the time of the final measurement in the village by a Canal Amin and he is required to perform many duties under Rule 41 of the Rules of 1957. Rules 45, 46, 46-A, 47 of the Rules of 1957 further envisage the Departments in which the services of a Patwari has to be placed for the disposal of work which include the Census and Election Departments, Police Department, Excise Co-operative, Court of Wards and Forest Department etc. In these circumstances, unless the exact nature of the order by which the petitioner was transferred to the Irrigation Department after he was permanently absorbed in the Revenue Department in 1966, the question cannot be answered hypothetically on the assumed facts. We therefore, declined to go into the merit of the contention for the reasons other than what has weighed with learned Single Judge. 15. So far as delay and latches is concerned, it is writ large on the facts of the present case. The last order passed against the petitioner-appellant by the Department viz., rejection of his Review Petition was on 05.01.1984. 15. So far as delay and latches is concerned, it is writ large on the facts of the present case. The last order passed against the petitioner-appellant by the Department viz., rejection of his Review Petition was on 05.01.1984. The petition has been filed on 112.1986 almost three years after the last order was passed against the petitioner. Nothing has been explained on the record to show how three years expired from the date of order until filing of the writ petition and, therefore, in our opinion, the learned Single Judge was right in opining that this petition is required to be dismissed on the ground of delay which has not at all been explained. 16. On the question of merit of the findings reached by the Inquiry Officer which have been accepted by the Disciplinary Authority and have not been interfered by the Appellate Authority and Reviewing Authority, it cannot be said that the finding recorded by the Inquiry Officer that it is proved that the delinquent officer has not made the payment received by him from F.C.I. to the claimants, is perverse or based on no material or on irrelevant consideration which could vitiate such finding of fact and open to be interfered with by this Court in exercise of extra-ordinary jurisdiction. Two glaring and obvious facts which have emerged from the inquiry report are that the entry has been made for payment of a larger sum then what has been received by the delinquent officer to the persons against whom the payment is alleged to have made and entry to that effect has been made in register of payment and the persons have appeared in person before the Inquiry Officer and they have stated on oath that they have not received such amount as shown against their names. The presumption which at best can be drawn in favour of the correctness of an official record is only a rebuttal presumption and not a conclusive proof . Therefore, if the Inquiry Officer accepts the evidence rebutting such presumption, it cannot be said that he has acted contrary to record or has taken into consideration the facts which were not relevant. That the thumb impressions in the entry register are not under stamp about the alleged payment made to the claimants is also an attending circumstance which was taken into consideration by the Inquiry Officer. 17. That the thumb impressions in the entry register are not under stamp about the alleged payment made to the claimants is also an attending circumstance which was taken into consideration by the Inquiry Officer. 17. In view thereof , we are of the opinion that no interference is called for in this appeal in the Judgment of the learned Single Judge dismissing the writ petition. The appeal fails and is hereby dismissed. 18. No costs.