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2013 DIGILAW 89 (MP)

Devi Dayal Jha v. State of M. P.

2013-01-17

ALOK ARADHE

body2013
JUDGMENT : With the consent of learned Counsel for the parties the matter is heard finally. 2. In this petition, the petitioner has assailed the validity of the order dated 7-11-2009 by which the appeal preferred by the petitioner against the order of dismissal has been rejected. The petitioner inter alia also seeks a direction to accord him all consequential benefits. 3. The facts, leading to filing of the writ petition, briefly stated, are that the petitioner was appointed on the post of Patwari on 18-7-1961 by the Collector and was posted in Patwari Circle Pali, Tehsil Jatara, District Tikamgarh. By order dated 9-9-1990, the petitioner was placed under suspension by the Sub-Divisional Officer. The petitioner assailed the validity of the aforesaid order in original application before the erstwhile M.P. Administrative Tribunal, Jabalpur (in short "the Tribunal"). The Tribunal vide order dated 26-12-1990, inter alia held that in view of the automatic revocation of suspension as provided under Rule 9 of the M.P. Civil Services (Classification, Control and Appeal) Rules, 1966 (in short "the 1966 Rules") the respondents may permit the petitioner to join his duties or show cause. In compliance of the aforesaid order, the petitioner submitted his joining on 7-1-1991. Thereafter, a Departmental Enquiry was instituted against the petitioner and vide order-dated 2-1-1991 the penalty of dismissal was imposed on the petitioner by the Sub-Divisional Officer. Against the aforesaid order, the petitioner filed an appeal under Rule 23 of the 1966 Rules. The petitioner also challenged the validity of the order of dismissal in original application, namely, O.A. No. 928/1992 before the Tribunal. On abolition of the Tribunal, the aforesaid original application was transferred to the High Court and was registered as W.P. No. 7382/2003. The writ petition was disposed of by a Bench of this Court by order dated 18-9-2007 with the direction to the petitioner to prefer an appeal before the Appellate Authority and the Appellate Authority was directed to consider the quantum of punishment and decide the appeal within a period of three months. In compliance of the aforesaid order, the Appellate Authority vide order dated 7-11-2009, dismissed the appeal preferred by the petitioner. 4. In compliance of the aforesaid order, the Appellate Authority vide order dated 7-11-2009, dismissed the appeal preferred by the petitioner. 4. Learned Counsel for the petitioner while inviting the attention of this Court to Section 104 of the M.P. Land Revenue Code, 1959 (in short "the Code") submitted that the Collector is the Appointing Authority of the petitioner and, therefore, the Sub-Divisional Officer has no authority in law to pass the impugned order. It is further submitted that the impugned order passed by the Sub-Divisional Officer in the capacity of Disciplinary Authority is per se without jurisdiction and ab initio void. However, the aforesaid aspect of the matter has not been properly considered by the Appellate Authority. In support of his submissions, learned Counsel for the petitioner has placed reliance on the decision in Vinod Kumar Khare Vs. State of M.P. and others, 2008 (4) MPLJ 44 , as well as the order dated 10-1-2005 passed in W.P. No. 7785/2003. 5. On the other hand, learned Government Advocate submitted while inviting the attention of this Court to the order passed by the Appellate Authority submitted that, in fact, by a notification dated 9-10-1959, the power of appointment of Patwari was delegated by the State Government to the Sub-Divisional Officer and the Sub-Divisional Officer is Appointing Authority of the petitioner and, therefore, action has been taken against the petitioner by the Competent Authority which does not call for interference. It is further submitted that in the case of Vinod Kumar Khare (supra), and in the order dated 10-1-2005 passed in W.P. No. 7785/2003, the notification dated 9-10-1959 has not been considered. 6. I have considered the submissions made by learned Counsel for the parties. Section 104 (2) of the Code provided that 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. By notification dated 9-10-1959, the State Government has delegated the power of appointment of Patwari to the Sub-Divisional Officer. However, it is well-settled in law that the Delegating Authority will not only retain the power to revoke the grant but also the power to act concurrently on matters within the area of delegation, except in so far as it may already have become bound by act of its delegate. [See : Godavari S. Parulekar Vs. State of Maharashtra,. However, it is well-settled in law that the Delegating Authority will not only retain the power to revoke the grant but also the power to act concurrently on matters within the area of delegation, except in so far as it may already have become bound by act of its delegate. [See : Godavari S. Parulekar Vs. State of Maharashtra,. AIR 1966 SC 1404 and Ishwar Singh Vs. State of Rajasthan and others, (2005) 2 SCC 334 ] 7. In view of the aforesaid well-settled legal position, notwithstanding the notification dated 9-10-1959, the Collector was competent to appoint the petitioner to the post of Patwari. From perusal of the order dated 7-11-2009, it is apparent that the Collector himself recorded a finding that the petitioner is appointed by the Collector. The petitioner has annexed a copy of the relevant extract of service book (Annexure P-1) from which it is evident that the petitioner was appointed by the Collector. Thus, the Collector is Appointing Authority as well as the Disciplinary Authority of the petitioner. Admittedly, the order of dismissal was passed by the Sub-Divisional Officer in the capacity of Disciplinary Authority which cannot be sustained in the eye of law. 8. In view of the preceding analysis, the order dated 7-11-2009 and the order of dismissal of the petitioner dated 2-1-1991 are hereby quashed. It is well settled in law that question of grant of full backwages has to be considered in the facts of each case. [See : Kanpur Electricity Supply Company Ltd. Vs. Shamim Mirza, (2009) 1 SCC 20 ] In the instant case, though on 2-1-1991, the order of dismissal was passed by the Sub-Divisional Officer, the petitioner against the aforesaid order filed an appeal before the Appellate Authority under Rule 23 of the 1966 Rules and simultaneously approached the erstwhile Tribunal. Eventually, the original application preferred by the petitioner was registered as writ petition and was decided by this Court vide order dated 18-9-2007. Thus, the petitioner had prosecuted two remedies simultaneously. In the facts of the case, the petitioner in quite promptitude ought to have prosecuted the appeal diligently and should have ensured its earlier decision. Thus, the petitioner cannot be allowed to take advantage of his inaction. Thus, the petitioner had prosecuted two remedies simultaneously. In the facts of the case, the petitioner in quite promptitude ought to have prosecuted the appeal diligently and should have ensured its earlier decision. Thus, the petitioner cannot be allowed to take advantage of his inaction. Taking into account the conduct of the petitioner and in the facts of the case, I deem it appropriate to restrict the benefit of arrears of salary to the petitioner to 40%. However, the services of the petitioner shall be counted for the purpose of retiral dues and the petitioner shall be entitled to all consequential benefits. 9. Accordingly, the writ petition is allowed. C.C. as per rules.