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Madhya Pradesh High Court · body

2008 DIGILAW 589 (MP)

VINOD KUMAR KHARE v. STATE OF M. P.

2008-04-16

R.K.GUPTA

body2008
Judgment R.K. Gupta, J. ( 1. ) The present petition is filed by the petitioner challenging the order dated 29/30.12.1991 (Annexure A-17). By this order a penalty of removal from services has been imposed on the petitioner. This order has been passed by the Sub Divisional Officer after holding a departmental enquiry against the petitioner. Petitioner was employed on the post of Patwari and a charge-sheet was issued to the petitioner, which is Annexure A-l wherein the following charges were framed against the petitioner :- ( 2. ) A departmental enquiry was conducted against the petitioner and in the said enquiry the petitioner was found guilty of the charges. Petitioner was also placed under suspension by an order dated 9.3.1989 (Annexure A-5) and the said order of suspension was ultimately rej.cted by order dated 12.2.1990 (Annexure A-6). Petitioner was again placed under suspension by order dated 25.6.1991 (Annexure A-7) and another charge-sheet was issued to the petitioner on 22.8.1991 (Annexure A-8). The charge-sheet Annexure A-8 contains the following charges against the petitioner: ( 3. ) In pursuance of charge-sheet dated 22.8.1991 (Annexure A-8) a departmental enquiry was conducted by Shri M.K. Tiwari, who was appointed as the inquiry officer. Petitioner was issued a show cause notice on 11.12.1991 (Annexure A-12). In the said show cause notice a penalty of removal from services was imposed upon the petitioner as the charges were found proved against the petitioner. ( 4. ) With reference to another charge petitioner was issued a show cause notice dated 22.8.1991 (Annexure A-14). By order dated 29/30.12.1991 (Annexure A- 17) a penalty of removal from services was imposed upon the petitioner. Petitioner submitted an appeal to the Collector, which is Annexure A-18 to the petition. The said appeal has also been dismissed by the appellate authority by passing an order dated 20.10.1992 (Annexure A-19). ( 5. ) On the basis of the aforesaid factual backdrop of the case, learned counsel for the petitioner raised a solitary ground that according to the judgment passed by this Court in W.P.No. 7785/2003 (O.A. No. 3466/1992 (Ashok Kumar Khare Vs. State of M.P. and, others) the Sub-Divisional Officer is not the competent authority to dismiss the petitioner and the competent authority is the Collector. State of M.P. and, others) the Sub-Divisional Officer is not the competent authority to dismiss the petitioner and the competent authority is the Collector. Since in the present case the order imposing the penalty of removal from services has been passed by the Sub-Divisional Officer, therefore, in view of the ratio of the judgment passed by this Court in the case of Ashok Kumar Khare (supra) the order of dismissal impugned in the petition is bad in law. ( 6. ) Learned counsel for the respondents submitted that the Sub-Divisional Officer is the competent authority to dismiss the petitioner and there is no illegality in the order. In this reference the judgment passed by this Court in the case of Ashok Kumar Khare (supra) is to be considered wherein the ratio has been laid down as under: - "Section 104(2) clearly envisages that the Collector is the appointing authority. It cannot be construed that Section 24 of the Code has delegated the power on the S.D.O. for initiating departmental proceedings for removing a Patwari. What has been stated in the Section 24 is that State may confer on any Assistant Collector or on any Revenue Officer certain powers. Needless to emphasise, that is for the purpose of the said but there is no such conferral of power on the S.D.O. to proceed against the Patwari. In view of the aforesaid facts and circumstances as well as the provisions which are enshrined in the Code, I am of the considered opinion that the order of the disciplinary proceeding passed vide Annexure A-19 which has been affirmed by the order of the appellate authority have to pave the path of destruction and accordingly they are lanceted. At this juncture I have been apprised that no action has been taken against the petitioner so far, by the Collector. When the whole proceeding is vitiated from the stage of inception itself because of the lack of jurisdiction, petitioner is bound to be reinstated. He was removed in the year 1991. He has yet not attained the age of superannuation. The consequential benefits are bound to follow. However, at this juncture it is submitted that grant of full salary to the petitioner would be difficult as the State is going through extreme financial difficulty. He was removed in the year 1991. He has yet not attained the age of superannuation. The consequential benefits are bound to follow. However, at this juncture it is submitted that grant of full salary to the petitioner would be difficult as the State is going through extreme financial difficulty. Keeping the aforesaid facet in consideration it is directed that the petitioner be reinstated in the post of Patwari within a period of three months from the date of order passed today and be paid the arrears of salary which is fixed at 50%. Needless to emphasise, the competent authority is at liberty to proceed against the petitioner as per law." ( 7. ) The view taken in the case of Ashok Kumar Khare (supra) has also been followed by this Court in W.P. No. 8478/2003 (O.A. No. 3079/ 1993) decided on 20. 11.2007. ( 8. ) Shri Vinod Mehta, learned Govt. Advocate appearing for the respondent-State submitted that in view of the Notification dated 1st October, 1959 published in the Gazette of M.P. on 9th October, 1959, the Sub-Divisional Officer is the competent authority to dismiss the Patwari. The Notification No. is 11429 C.R. 635- 7th dated 9th October, 1959 and on this basis it is submitted by him that the competent authority to dismiss the Patwari is not the Collector. In the earlier judgment, this Court has not taken into account the aforesaid Notification. ( 9. ) Submission of Shri Mehta is considered. In this reference, it is to be seen that Section 258 of the M.P. Land Revenue Code, 1959 provides the general rule making powers of the State Government and by virtue of Section 258 Sub-section (2) Sub-clause (xix) subject is provided for making the rule which relates to prescription of other duties of Patwari under sub-section (2) of Section 104, which has been substituted by amending of Section 19(1) of the First Amendment Act (24 of 1961) and prior to the substitution of the aforesaid provision the subject in Section 258(2) Sub-Clause (xix) was appearing as "Regulation of appointment of Patwari and prescription of their additional duties under Sub-section (4). But, after Amending Act (24 of 1961) this has been omitted and new sub-clause 19 has been added which only provides prescription of duties of Patwari under sub-section (2) of Section 104. But, after Amending Act (24 of 1961) this has been omitted and new sub-clause 19 has been added which only provides prescription of duties of Patwari under sub-section (2) of Section 104. On the basis of the same, there has been an amendment for the rule making power of the State Government under Sub-clause 19 of Section (2) of Section 258 of the M.P. Land Revenue Code, 1959. Under sub-section (2) of Section 104 it is provided that the Collector shall appoint one or more Patwaris for each Patwari Circle for the maintenance and correction of land records and for such other duties as the State Government may prescribe. It is also to be seen that this sub-section (2) has also been amended by the Amendment Act No. 24 of 1961 by Section 5 of the M.P. Act No. 24 of 1961 (Amendment Act) and before the amendment in the Sub-section (2) it was mentioned that "Subject to the rules made under Section 258" and these words have been omitted by Section 5 of the M.P. Act No. 24 of 1961. The amended provision reads as under:- "(2) The Collector shall appoint one or more patwaris to each patwari circle for the maintenance and correction of land records and tor such other duties as the State Government may prescribe." ( 10. ) On the basis of the aforesaid position of law under the MP. Land Revenue Code, 1959 and by virtue of sub-section (2) of Section 104 the substantive power is vested with the Collector. Under the un-amended provision the power to appoint was subject to rule made under Section 258. These words have been omitted and there had also been corresponding amendment in Sub-clause (xix) of Sub-section (2) of Section 258. After the amendment, the State Government has power to assign such other duties as may be prescribed. The duties of Patwaris are to be prescribed by the State Government in exercise of powers with reference to the prescription of the duties to Patwaris in terms to the existing entries which state that prescription of other duties of Patwari under Sub-section (2) of Section 104. The first part of Section 104(2) is not disturbed which relates to the power of the Collector to appoint Patwaris. ( 11. ) Learned counsel for the respondents placed reliance on the Notification dated 9th October, 1959. The first part of Section 104(2) is not disturbed which relates to the power of the Collector to appoint Patwaris. ( 11. ) Learned counsel for the respondents placed reliance on the Notification dated 9th October, 1959. After the amendment in Sub-section (2) of Section 104 and also in Sub-clause (xix) of Sub-section (2) of Section 258 the Notification dated 9th October, 1959 shall have no application in the present case. No other notification has been shown to this Court on behalf of the respondents by which the Sub-Divisional Officer has been empowered by the State Government to appoint a Patwari and rightly so because the substantive Section of the M.P. Land Revenue Code, 1959 i.e. Section 104(2) itself empowers the Collector to appoint Patwari. Thus, even though the notification is issued by the State Government but that will not have the effect of damaging the substantive Section 104(2) which may run contrary to the Notification. ( 12. ) On the basis of the aforesaid reasoning, I am inclined to hold that in the present case since the order imposing penalty passed by the Sub-Divisional Officer is without any jurisdiction, therefore, the order dated 29/30.12.1991 (Annexure A-17) is set aside and accordingly I direct for the reinstatement of the petitioner with 50% of back wages. However, this order shall not restrict the right of the competent authority to pass an appropriate order in accordance with law. Accordingly, the present petition stands partly allowed. Petition partly allowed.