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2011 DIGILAW 32 (MP)

Kala Bai v. State of M. P.

2011-01-07

R.S.JHA, RAJENDRA MENON, SANJAY YADAV

body2011
ORDER R.S. Jha, J. 1. This petition, which involves the question of competence of the Sub Divisional Officer to dismiss a Patwari from service has been referred to the Full Bench by order dated 8-4-2010. 2. The brief facts, leading to the filing of the petition, are to the effect that the Petitioner is the wife of one Fattelal Jharia who was appointed as Patwari on 31-7-1978 and at the relevant time was posted as Patwari in Kundam Tehsil, District Jabalpur. 3. A show-cause notice was issued to him alleging tampering of 'Rin Pustika' on 23-7-1999 to which a reply was filed by him, not being satisfied by which the Respondent No. 3 issued a charge-sheet to the Petitioner's husband on 11-8-1999, which was received by him on 23-9-1999. The Petitioner's husband submitted a reply to the charge-sheet on 6-12-1999. Thereafter, the Tehsildar Kundam was appointed as an Inquiry Officer for conducting the Departmental Enquiry against the Petitioner's husband and as many as 14 witnesses were examined therein. The enquiry report was submitted by the Tehsildar on 13-3-2000 pursuant to which order dated 4-4-2000 was issued by the Sub Divisional Officer dismissing the Petitioner's husband from service. The Petitioner's husband preferred an appeal against the impugned order before the Collector which was also dismissed by order dated 12-6-2000. 4. It is stated that subsequent thereto the Petitioner's husband died on 14-6-2000 and, therefore, the Petitioner filed a review application before Respondent No. 2 on 2-8-2000, which was also dismissed by him on 5-8-2000. Being aggrieved by the aforesaid orders, the Petitioner has filed the present petition praying for the following reliefs: (i) It is, therefore, prayed that the family pension be given to the Petitioner. (ii) It is also prayed that all the service benefits of the husband of the Petitioner be also given to the Petitioner treating her husband in service with retrospective effect with interest. (iii) It is further prayed that compassionate appointment be also given to the son of the Petitioner. (iii) (a) It is, therefore, prayed that the order dated 4-4-2000 (Annexure A-6), dated 12-6-2000 (Annexure A-7) and 5-8-2000 (Annexure A-8) may kindly be quashed giving all benefits to the Petitioner with retrospective effect. (iv) Any other relief which this Hon'ble Tribunal deems fit and proper in the facts and circumstances of the case may also kindly be granted in favour of the Petitioner. 5. (iv) Any other relief which this Hon'ble Tribunal deems fit and proper in the facts and circumstances of the case may also kindly be granted in favour of the Petitioner. 5. When the matter came up for hearing before the learned Single Judge on 8-4-2010, it was argued that, in view of the provisions of Section 104 of the M.P. Land Revenue Code, 1959 (hereinafter referred to as 'the Code'), the Competent Authority to appoint as well as dismiss the Petitioner's husband, who was a Patwari, was the Collector and in such circumstances, in view of the Division Bench judgment of this Court in the case of Vishwanath Prasad v. Board of Revenue 1964 MPLJ SN 38 and the recent decision of the Single Bench in the case of Vinod Kumar Khare v. State of M.P. and Ors. 2008 (4) MPLJ SN 44, the impugned orders be quashed. 6. On the other hand the learned Govt. Advocate appearing for the Respondent-State brought to the notice of the learned Single Judge another Division Bench judgment of this Court in the case of Mangilal v. State of M.P. and Ors., 1995 RN 67, and submitted that the Sub Divisional Officer was competent to dismiss the Petitioner's husband in view of the fact that the powers of the Collector under Section 104(2) of the Code had been conferred by the State upon the Sub Divisional Officer by notification dated 9-10-1959. The learned Counsel for the State also placed reliance on the provisions of Rule 8 of the Schedule appended to the M.P. Civil Services (Classification, Control and Appeal) Rules, 1966 (hereinafter referred to as 'the Rules of 1966') which prescribed that the Disciplinary Authority of the Patwari would be the Sub Divisional Officer who was also the Appointing Authority. 7. The learned Single Judge took into consideration the provisions of Section 104 of the Code and the notification dated 1-10-1959 published in the M.P. Gazette, dated 9-10-1959 issued under the provisions of Section 24 (2) of the Code conferring powers on the Sub Divisional Officer to exercise powers of the Collector and also took into consideration the provisions of Rule 8 of the Schedule appended to the Rules of 1966. The learned Single Judge, thereafter, took into consideration the Division Bench judgment of this Court rendered in the cases of Vishwanath Prasad (supra) and Mangilal (supra) and in view of the following discussion has referred the matter to this Full Bench: (10) This question again came up for consideration before another Division Bench in Mangilal (supra), wherein the Division Bench considered the judgment of Vishwanath Prasad (supra), held thus: 9. Learned Counsel for the Appellant has referred to a case reported in 1964 MPLJ Note (38) (Vishwanath Prasad v. Board of Revenue) and submitted that dismissal of a Government servant appointed by the Collector by SDO is in valid. We are in agreement with the provision of law made therein, but here case is the different. The power of appointment has been delegated to the SDO vide notification referred to above. Thereafter, it is SDO who appointed him, according to the Plaintiff Appellant, as such the dismissal by him, after due enquiry, would be legal and valid. The Division Bench found that in view of the powers conferred by the State Govt. under Section 24 (2) by Notification dated 9-10-1959, the SDO was Competent Authority to pass a punishment order. The Division Bench though agreed with the judgment of Vishwanath Prasad but held that the SDO who appointed the Patwari was competent to dismiss him which judgment is apparently in conflict of the law laid down by earlier Division Bench in Vishwanath Prasad. Recently, a learned Single Judge of this Court in Vinod Kumar Khare held that the Collector is empowered to appoint Patwari and only he can dismiss the Patwari. Any order passed of removal of Patwari by the SDO was without jurisdiction. The learned Single Judge considered the notification dated 9-10-1959 and another Single Bench judgment of this Court in A.K. Khare v. State of M.P., in W.P. No. 7785/2003, dated 10-1-2005, while laying down such proposition. (11) From the perusal of the aforesaid, it is apparent that in none of the judgments the provision as contained in M.P. Civil Services (Classification, Control and Appeal) Rules, 1966, in particular Rule 8 and the Schedule, were considered, providing provision for initiating disciplinary proceedings and for imposing penalty. (11) From the perusal of the aforesaid, it is apparent that in none of the judgments the provision as contained in M.P. Civil Services (Classification, Control and Appeal) Rules, 1966, in particular Rule 8 and the Schedule, were considered, providing provision for initiating disciplinary proceedings and for imposing penalty. The Legislation by the aforesaid Rules specifically provided that the SDO shall be the Appointing Authority and Competent Authority to impose all the penalties as provided in Rule 9, and the Collector is the Appellate Authority but the aforesaid aspect has been escaped from the notice of the earlier Benches. (12) Apart from this, apparently there are two conflicting judgments on the issue one by Vishwanath Prasad and another by Mangilal. (13) In view of the aforesaid, matter deserves to be referred to a Larger Bench for considering the correctness of cither of the aforesaid Division Bench judgments. 8. In view of the aforesaid reference, this Pull Bench is required to consider the question as to the competency of the Sub Divisional Officer to dismiss a Patwari and as to whether there is any conflict between the law laid down by the Division Bench of this Court rendered in the case of Vishwanath Prasad (supra) and Mangilal (supra). 9. During the course of the arguments subsequent Single Bench judgments rendered in the case of Vinod Kumar Khare v. State of M.P. and Ors. ILR 2008 (MP) 1436 Phulloo Ram Kol v. State of M.P. and Ors., W.P. No. 8777/2003, decided on 25-9-2008, Ashok Kumar Khare v. State of M.P. and Ors., W.P. No. 7785/2003, decided on 10-1-2005 andRavindra Kumar Gupta v. State of M.P. and Ors., W.P. No. 10863/2009, decided on 5-8-2010, were also placed before this Court in support of the rival submissions. 10. The provision of Section 104 of the Code, which is relevant for deciding the issue, reads as under: 104. Formation of Patwaris' circles and appointment of Patwaris thereto.- (1) The Collector shall from time to time arrange the villages of the Tehsil in Patwari circles and may, at any time, alter the limits of any existing circle and may create new circles or abolish existing ones. (2) The Collector shall appoint one or more Patwaris to each Patwari circle for the maintenance and correction of land records and for such other duties as the State Government may prescribe. (2) The Collector shall appoint one or more Patwaris to each Patwari circle for the maintenance and correction of land records and for such other duties as the State Government may prescribe. Sub-section (2) which was earlier to the amendment dated 23-6-1961 was having following words before the Collector "subject to the rules made under Section 258". The aforesaid words were omitted by Section 5 of the M.P. Act No. 24 of 1961. 11. A perusal of Section 104 (2) of the Code clearly indicates that the Legislature has conferred upon the Collector power to appoint one or more Patwaris' to each Patwari Circle for maintenance and correction of land records and for such other duties as the Slate Government may prescribed. 12. Sections 22 and 24 of the Code are in the following terms: 22. Sub-Divisional Officers.- (1) The Collector may place one or more Assistant Collectors or Deputy Collectors in-charge of a Sub Division of a District or in-charge of two or more Sub Divisions of a District. (2) Such Assistant Collector or Deputy Collector shall be called a Sub-Divisional Officer and shall exercise such powers of a Collector as the State Government may, by notification, direct. 24. Conferral by the State Government of powers of Revenue Officers on officials and other persons.- (1) The State Government may confer on any person the powers conferred by or under this Code on any Revenue Officer. 13. A perusal of the aforesaid sections makes it clear that while Section 24 is more in general terms, Section 22, which deals with Sub Divisional Officer specifically provides that the Sub Divisional Officer shall exercise such powers of the Collector as the State Government may by notification direct and, therefore, the provisions under Section 22 of the Code empowers the State to prescribe such powers of the Collector that may be exercised by the Sub Divisional Officer by issuing a notification. 14. On 1-10-1959 the State Government issued three notifications, two under Section 24 of the Code and one under Section 22 of the Code which were published in the M.P. Gazette on 9-10-1959. 14. On 1-10-1959 the State Government issued three notifications, two under Section 24 of the Code and one under Section 22 of the Code which were published in the M.P. Gazette on 9-10-1959. Notification No. 11429-CR-653-VII-N-2, dated 1-10-1959 published in the M.P. Gazette on 9-10-1959 issued under Section 22 (2) of the Code is in the following terms: In exercise of the powers conferred by Sub-section (2) of Section 22 of the Madhya Pradesh Land Revenue Code, 1959 (No. 20 of 1959), and in supersession of all previous notifications on the subject, the State Government hereby directs that all Sub Divisional Officers shall exercise powers of a Collector under Sub-section (2) of Section 57, Sub-section (5) of Section 59, Section 87, Sub-section (2) of Section 104 and Sub-section (2) of Section 110 of the said Code, within their respective jurisdictions. 15. On a perusal of the aforesaid notification it is clear that apart from other persons the power of the Collector under Section 104 (2) to appoint a Patwari has been directed to be exercised by the Sub Divisional Officer by the State Government by the aforementioned notification issued in exercise of powers under Section 22 (2) of the Code and, therefore, the Sub Divisional Officer has the power to appoint a Patwari in view of the aforesaid provisions of law. The provisions of Rule 8 of the Rules of 1966 and the Schedule appended thereto, which were framed subsequent to the statutory provisions of the Code and the notification issued thereunder, is in tune with and in accordance with the aforesaid statutory provisions and provides that the Sub Divisional Officer shall be the appointing as well as the Disciplinary Authority of the Patwaris. 16. In the case of Vishwanath Prasad (supra), it was held as under in Paragraph 5 of the judgment record of which was perused by this Court: 5. In our judgment, this petition must be accepted. The Petitioner having been admittedly appointed by the Collector could not be dismissed by the Sub Divisional Officer who was subordinate in rank to the Collector. Article 311(1) expressly provides that no civil servant shall be dismissed or removal by an authority subordinate to that by which he was appointed. In our judgment, this petition must be accepted. The Petitioner having been admittedly appointed by the Collector could not be dismissed by the Sub Divisional Officer who was subordinate in rank to the Collector. Article 311(1) expressly provides that no civil servant shall be dismissed or removal by an authority subordinate to that by which he was appointed. As pointed out by the Supreme Court in Mahesh Prasad v. State of U.P., AIR 1955 SC 70 , Article 311(1) cannot be read as implying that the removal must be by the very same authority who made the appointment or by his direct superior and that it is enough if the Removing Authority is of the same rank or grade. The subordination of the authority dismissing or removing a civil servant must be in respect of rank and not in respect of functions. This is clear also from the decisions of the Privy Council in Rangachari v. Secretary of State, AIR 1937 PC 27 and North-West Frontier Province v. Suraj Narain, AIR 1949 PC 1 12. These two Privy Council cases lay down that the authority making the appointment cannot delegate the power of dismissal or removal so as to destroy the protection afforded by Section 240 of the Government of India Act, 1935 and Section 96B(1) of the Government of India Act, 1919, so that the dismissal of a servant by an authority subordinate to that by which he was appointed will be unlawful and inoperative, even if the Subordinate Authority was authorized under the rules to dismiss a civil servant. To the same effect are the decisions in Hiralal v. State of M.P., AIR 1954 Nag. 258 and Ramchandra Gopalrao v. DIG Police, AIR 1957 MP 126 . The dismissal, therefore, of the Petitioner by the Sub Divisional Officer was clearly illegal. The notification issued on 1st October, 1959 authorizing the Sub-Divisional Officer to exercise the powers of a Collector under Section 104 (2) of the Code can be of no assistance to the Respondents for the simple reason that the Petitioner was not appointed by any Sub Divisional Officer. No order was placed before us showing that there was a fresh appointment of the Petitioner as a Patwari by an order made by the Sub Divisional Officer when his services were placed at the disposal of the Sub Divisional Officer, Ambikapur, after the implementation of the Nistar Scheme. No order was placed before us showing that there was a fresh appointment of the Petitioner as a Patwari by an order made by the Sub Divisional Officer when his services were placed at the disposal of the Sub Divisional Officer, Ambikapur, after the implementation of the Nistar Scheme. The Petitioner's dismissal by the Sub Divisional Officer, Ambikapur, was clearly in violation of Article 311(1) of the Constitution. 17. From a perusal of the above it is clear that while the Court specifically took note of the notification conferring powers of the Collector on the Sub Divisional Officer, it went on to hold that the Petitioner therein had admittedly been appointed by the Collector as a Patwari but was dismissed by the Sub Divisional Officer who was subordinate in rank to the Collector and, therefore, in view of the provisions of Article 311(1) of the Constitution of India the dismissal of the Patwari by the Sub Divisional Officer was contrary to law. 18. We are constrained to observe that the Division Bench, while holding the aforesaid, went on to wrongly observe that the authority making the appointment would not delegate its power of dismissal or removal to an authority subordinate to it in view of Article 311(1) of the Constitution of India inasmuch as in the instant case the power of appointment or dismissal has not been delegated by the Collector to the Sub Divisional Officer but has in fact been conferred upon the Sub Divisional Officer by the State Government itself in exercise of the statutory provisions of Section 22 (2) of the Code. 19. In the case of Mangilal (supra), the issue as to the power of the Sub Divisional Officer again came up for adjudication before the Division Bench of this Court. In that case, it was alleged by the Appellant that he was initially appointed as Patwari on 3-12-1959 by the Collector but was subsequently removed from service by the Sub Divisional Officer and the appeal filed by the Petitioner therein before the Collector also suffered dismissal. However, subsequently Mangilal was again given fresh appointment as a Patwari on 18-11-1961 and was again dealt with departmentally and dismissed from service by the Sub Divisional Officer on 12-11-1973. 20. However, subsequently Mangilal was again given fresh appointment as a Patwari on 18-11-1961 and was again dealt with departmentally and dismissed from service by the Sub Divisional Officer on 12-11-1973. 20. Appellant Mangilal relying upon the decision in the case of Vishwanath Prasad (supra), submitted that he could not have been removed by the Sub Divisional Officer as his initial appointment on the post of Patwari had been made by the Collector in view of the provisions of Article 311(1) of the Constitution of India. However, the Division Bench recorded a finding to the effect that the subsequent fresh appointment of the Petitioner having been made by the Sub Divisional Officer, he could have been removed by the Sub Divisional Officer in view of the notification issued by the State Government under Section 22 (2) of the Code, distinguishing the decision in the case of Vishwanath Prasad (supra), on facts, in the following terms: 9. Learned Counsel for the Appellant has referred to a case reported in 1964 MPLJ Note (38) (Vishwanath Pd. v. Board of Revenue) and submitted that dismissal of a Government servant appointed by the Collector by SDO is invalid. We are in agreement with the provisions of law made therein, but here case is the different. The power of appointment has been delegated to the SDO vide Notification referred to above. Thereafter, it is SDO who appointed him, according to the Plaintiff Appellant, as such the dismissal by him, after due enquiry, would be legal and valid. 21. On a careful scrutiny of the aforesaid two judgments, it is clear that while in the case of Vishwanath Prasad (supra), the appointment of the Patwari had been made by the Collector but he was dismissed from service by the Sub Divisional Officer, in the case of Mangilal (supra), the appointment of the Patwari had been made by the Sub Divisional Officer and he was also removed by the same authority and in such circumstances the factual matrix on the basis of which the judgment in the case of Vishwanath Prasad (supra) and Mangilal (supra), were rendered was substantially different and, therefore, the subsequent Division Bench in the case of Mangilal (supra), has rightly distinguished the judgment of Vishwanath Prasad (supra), in Para 9 of its judgment. 22. 22. In view of the aforesaid it is apparent that there is no conflict in the two Division Benches of this Court, i.e., in the case of Vishwanath Prasad (supra) and Mangilal (supra), and the reference by the learned Single Judge regarding the correctness of either of the two judgments need not be answered. 23. At the same time we are constrained to clarity and observe that in both the aforesaid Division Bench judgments the narration of facts to the extent that the Collector had delegated his powers to the Sub Divisional Officer to dismiss a Patwari is factually incorrect in view of the fact that the power to appoint a Patwari has been conferred by the State Government itself upon the Sub Divisional Officer and has not been delegated by the Collector as is clear from a perusal of the notification issued by the State in exercise of its statutory powers under Section 22 (2) of the Code. 24. In view of the aforesaid provision of law and the notification issued thereunder, we are of the considered opinion that the Sub Divisional Officer has been conferred powers to appoint a Patwari by the State Government itself by Notification dated 1-10-1959 published in the M.P. Gazette, dated 9-10-1959 issued under the provisions of Section 22(2) of the Code and that the provisions of Rule 8 of the Rules of 1966 and the Schedule appended thereto issued subsequent to the enactment of the Code are in conformity with the statutory provisions of the Code and, therefore, the Sub Divisional Officer has the power to appoint a Patwari and as a consequence thereof the power to dismiss him. 25. After carefully going through the decisions in the case of Vinod Kumar Khare v. State of M.P. and Ors., (supra), the judgment in the case of Ashok Kumar Khare v. State of M.P. and Ors. (supra), and the judgment in the case of Phulloo Ram Kol v. State of M.P. and Ors. 25. After carefully going through the decisions in the case of Vinod Kumar Khare v. State of M.P. and Ors., (supra), the judgment in the case of Ashok Kumar Khare v. State of M.P. and Ors. (supra), and the judgment in the case of Phulloo Ram Kol v. State of M.P. and Ors. (supra), we are of the considered opinion that they do not lay down the correct law in view of the fact that they were rendered in ignorance of the provisions of Section 22 (2) of the Code, the Notification issued thereunder conferring power of the Collector on the Sub Divisional Officer to appoint a Patwari and the Division Bench judgment of this Court rendered in the case of Vishwanath Prasad (supra), Mangilal (supra), and in the case of Manmohan Singh Thakre v. Govt. of M.P. and Ors. 1978 (II) MPWN Note 116, which were not brought to the notice of the learned Single Judge while deciding the aforesaid petitions. At the same time on going through the judgment in the case of Ravindra Kumar Gupta (supra), we approve and affirm the view taken therein after considering all the aforesaid decisions. 26. The conclusion recorded by us on the question referred to by the Single Bench are summarized as under: (a) That the Sub Divisional Officer has been conferred powers of the Collector to appoint a Patwari in view of the provisions of Section 22 (2) of the Code and the Notification dated 1-10-1959 published in the M.P. Gazette on 9-10-1959 and as a consequence thereof he also has the power to remove a Patwari from service. (b) That there is no conflict between the decision rendered in the case of Vishwanath Prasad (supra) and Mangilal (supra), as the factual matrix on the basis of which the two judgments were rendered was totally different and that the Division Bench in the case of Mangilal (supra), on that count has right distinguished the case of Vishwanath Prasad (supra). (c) The Single Bench judgments in the cases of Vinod Kumar Khare v. State of M.P. and Ors. (supra), Ashok Kumar Khare v. State of M.P. and Ors. (supra) and Phulloo Ram Kol v. State of M.P. and Ors. (supra), are hereby overruled while the judgment in the case of Ravindra Kumar Gupta v. State of M.P. and Ors. (c) The Single Bench judgments in the cases of Vinod Kumar Khare v. State of M.P. and Ors. (supra), Ashok Kumar Khare v. State of M.P. and Ors. (supra) and Phulloo Ram Kol v. State of M.P. and Ors. (supra), are hereby overruled while the judgment in the case of Ravindra Kumar Gupta v. State of M.P. and Ors. 2010(5) M.P.H.T. 46 : W.P. No. 10863/2009, decided on 5-8-2010, is hereby affirmed and approved. The reference made to this Full Bench is answered accordingly. 27. Apart from the aforesaid issue, the other issues raised by the Petitioner in the petition challenging the validity of the impugned orders shall be heard and decided by the Single Bench on merits. 28. The petition be, accordingly, placed before the learned Single Judge for further hearing.