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2014 DIGILAW 126 (MP)

Virendra Kumar Singh v. State of M. P.

2014-01-27

D.K.PALIWAL, S.K.GANGELE

body2014
JUDGMENT Gangele, J. 1. Appellant has filed this appeal against the order dated 3.10.2013 passed by the learned Single Judge in W.P.No.4867/2012. 2. The appellant challenged the charge sheet issued vide memo dated 29th June 2012 by Commissioner, Jabalpur Division, Jabalpur. 3. When the appellant was posted as Sub Divisional Officer, Revenue, Jabalpur, he passed an order on 3.1.2009 on the application filed by some Munnibai under section 57(2) of M.P.Land Revenue Code, 1959 (hereinafter referred to as the ‘Code’). The aforesaid application was filed by power of attorney holder Mr.Vinay Kothari on behalf of Munnibai. It was pleaded in the application that forefathers of the applicant had been granted a land area 4.34 akar situate at Mauja Kosamghat, Tahsil and District Jabalpur in lieu of their service as Kotwar. They were in possession over the said land. The aforesaid land was recorded as Mafi Khidmati in revenue record in the year 1909-10. After coming into force of the Code, the land was recorded as Seva Bhumi (service land), however, the government had no right to register the land as service land. 4. The appellant recorded a finding that at the time of malgujari system, there were two types of servants, servants who were in personal service of Malgujar and others who were in service of community and two types of land were recorded, which had been given to the persons, who were in service of Malgujar; (i) Mafi Khidmati and (ii) Mafi Khairati. The land, which was recorded as Mafi Khidmati was the land which was given to Kotwar in lieu of service rendered by him to the community. Because the land was given to the forefathers of the applicant in lieu of service of the community, hence, in accordance with the provisions of section 45(3) of Swatva Samapti Adhiniyam, 1950 (hereinafter referred as ‘Act of 1950’), the applicant became Bhumiswami of the land. 5. The Collector had taken the matter in suo motu revision. He recorded a finding that the land was registered as Mafi Khidmati. The land had been given to the forefathers of the applicant because they were working as Kotwar of village. The Collector further recorded a finding that in accordance of the circular of the government dated 4.2.1999, the Kotwar did not get right of Maurishi Krishak over the land, which was allotted to him as service land. The land had been given to the forefathers of the applicant because they were working as Kotwar of village. The Collector further recorded a finding that in accordance of the circular of the government dated 4.2.1999, the Kotwar did not get right of Maurishi Krishak over the land, which was allotted to him as service land. The Collector further observed that after passing of the order by the SDO, applicant Munnibai sold the land area 1.71 hectare in favour of Smt.Sarita Jaiswal vide registered sale deed. The applicant Munnibai and Smt. Sarita Jaiswal both filed an appeal before the Commissioner, Jabalpur. 6. The appellant was subjected to a departmental enquiry by the Commissioner, Jabalpur Division, Jabalpur vide charge memo - Annexure P /1 for the charge that when he was posted as SDO, Revenue at Jabalpur, he passed the order in case No.18/v-6-v/2006-2007 (Smt. Munnibai W/o Roopchand Pradhan R/o Village Kosamghat, Tahsil and District Jabalpur v. State of M.P. through Collector, Jabalpur, M.P.) and conferred Bhumiswami rights on the applicant against a service land of village Kosamghat of Khasra Nos.116, 117 and 216, hence, he committed misconduct. In the imputation of misconduct, it is mentioned that the land was given to the village Kotwar in lieu of his service rendered to the village and in regard to aforesaid land, Bhumiswami rights could not be conferred on the Kotwar. The appellant passed the order in the case without hearing arguments, hence, he committed misconduct. 7. Learned Single Judge dismissed the writ petition on the ground that prima facie the act of the appellant constitutes misconduct and correctness of the allegation could not be examined at the initial stage of charge sheet. The allegation against the appellant was that he passed the order without hearing the arguments of the parties and he had not taken into account the findings recorded earlier by the Presiding Officer in the order dated 10.7.2007. 8. Learned counsel appearing on behalf of the appellant has contended that the order passed by the writ Court is contrary to law. The appellant passed the order in exercise of judicial powers, hence, he has protection under Judicial Officers (Protection) Act, 1950 (hereinafter referred as the Protection Act). Learned counsel further contended that the order of departmental enquiry has been issued to install the conferral of IAS on the appellant. The appellant passed the order in exercise of judicial powers, hence, he has protection under Judicial Officers (Protection) Act, 1950 (hereinafter referred as the Protection Act). Learned counsel further contended that the order of departmental enquiry has been issued to install the conferral of IAS on the appellant. Another argument has been advanced that the charge sheet has been issued by an incompetent authority. In support of his contentions, learned counsel relied on the following judgments :- (i) Morgan Stanley Mutual Fund v. Kartik Das – 1994 (4) SCC 225 (ii) Anowar Hussain v. Ajoy Kumar Mukherjee - AIR 1965 SC 1651 . (iii) Union of India v. Upendra Singh- 1994 (3) SCC 357 . 9. The law in regard to quashment of charge sheet is well settled that ordinarily no writ lies against a chargesheet or show-cause notice, however, under special circumstances, the charge sheet can be quashed if no charge is made out against the person taking into consideration the charges levelled against the person as true or it is issued by an incompetent authority (See : Executive Engineer, Bihar State Housing Board v. Ramesh Kumar Singh, Special Director v. Mohd. Ghulam Ghouse – (2004) 3 SCC 440 , Ulagappa v. Divisional Commr. (2001) 10 SCC 639 , Mysore, State of U.P. v. Brahm Datt Sharma – (1987) 2 SCC 179 . 10. In the present case, the allegation against the appellant is that he had passed an illegal order without following the procedure i.e. without hearing the arguments. The appellant accorded Bhumiswami rights to the applicant. From the record, the undisputed facts of the case are that the application was filed by power of attorney holder Mr.Vinay Kothari on behalf of Munnibai. It means that Munnibai herself did not file any application. 11. We have perused the record of the case. On 7.7.2007, there is noting of the officer that in the case of Munnibai, provisions of section 45 (3) of Act of 1950 are applicable and not the provisions of section 45 (2) of the Act of 1950. Thereafter, there is a noting on 7.8.2007 as “Discussed”. Thereafter the appellant passed the order on 3.1.2009. It means that after note dated 7.8.2007, the case was not listed and he passed the order on 3.1.2009. Thereafter, there is a noting on 7.8.2007 as “Discussed”. Thereafter the appellant passed the order on 3.1.2009. It means that after note dated 7.8.2007, the case was not listed and he passed the order on 3.1.2009. In the order, he has mentioned the fact that the arguments of the applicant were heard, however, there is no noting in this regard in the note sheet/order sheet neither there are signatures of the applicant or her power of attorney holder. It is not clear from the record that when the case was listed for argument or when the arguments were heard. 12. Rules have been framed under section 41 of the Code named as ‘Rules regulating the procedure to be followed by the Revenue Courts’. Rules, 6,7,8 prescribe procedure followed by Revenue Officers in regard to disposal of cases. The relevant provisions are as under :- “6. A revenue case is instituted on receipt of an application, report or order, requiring enquiry or action by a Revenue Officer. Before any enquiry is started or action taken, the case must first be registered by the Court dealing with it in the first instance. 7. No final order shall be passed by a Revenue Officer to the detriment of any person without giving him an opportunity to be heard and hearing him if he so desires and where the conflicting rights and interests of two parties are concerned they shall both be given such an opportunity. 8. The following procedure shall be followed by Revenue Officers in respect of passing orders in revenue cases or appeals before them :- (1)(a) After arguments are heard, a definite date may be fixed, if possible, for passing of the order and signature of parties or counsel shall be taken on the order-sheet in token of their having been informed of the date fixed. (b) On the date so fixed, the order shall be delivered. If parties or counsel are present, their presence shall be recorded. If they are absent, the ordersheet should indicate their absence inspite of having been intimated of the date of the order.” 13. (b) On the date so fixed, the order shall be delivered. If parties or counsel are present, their presence shall be recorded. If they are absent, the ordersheet should indicate their absence inspite of having been intimated of the date of the order.” 13. From the aforesaid rules, it is clear that it is necessary for the Revenue Officer, in deciding the cases, to fix a date for argument and thereafter fix a date for final order and it is also necessary that signatures of parties or counsel shall be taken on the order sheets. These provisions have been made to rule out any mischief. In the present case, from the record it is clear that the proposal was sent on 7.7.2007, thereafter on 7.8.2007 there is signature of SDO after “Discussed”. No date was fixed and thereafter the appellant passed the order conferring Bhumiswami rights on Munnibai. The application was filed by Mr. Vinay Kothari, power of attorney of Munnibai. It is also a fact that after conferral of Bhumiswami rights, Munnibai sold one portion of land to Smt. Sarita Jaiswal. Now a days, modus operandi is going on to grab the Government land anyhow. In the present case it can not be ruled out that the appellant was a party of transfer of government land to a particular person. The appellant did not fix the case for final argument, straightway he passed the order. The facts speaks volumes about the conduct of the appellant and utter disregard to the rules framed in regard to conduction of cases by the revenue officers as mentioned above in the order. 14. Hon’ble Supreme Court in Union of India v. K.K.Dhawan reported in (1993) 2 SCC 56 quoted by the learned Single Judge has specifically held that the disciplinary action could be taken under the following circumstances :- (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 service of the statutory powers; (v) if he had acted in order to unduly favour a party. (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 service 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. In the aforesaid case, Hon’ble Supreme Court clearly held that if an employee shows recklessness or if he had acted to undue favour to a party or if he had acted negligently or if he omitted the prescribed conditions, which are essential for exercise of statutory powers, then the person is not eligible to get benefit of Protection Act. In the present case, the appellant acted contrary to rules. Prima facie, we are of the opinion that the act of the appellant was to favour the applicant and it could not be ruled out prima facie that he was a party to the act, by which the valuable land of the government had been given to some persons. In such circumstances, in our opinion, the charge sheet could not be quashed and the appellant is not eligible to get benefit of Protection Act. 16. In regard to second argument advanced by the learned counsel for the appellant that the charge sheet has been issued by incompetent authority, in our opinion, this ground has not been taken by the appellant before the writ Court. The charge sheet has been issued by the Commissioner, who is competent to impose minor punishment against the appellant. Hence, in our opinion, the Commissioner is competent to issue charge sheet. 17. Thus, we do not find any merit in this appeal. It is hereby dismissed. A copy of the order be sent to the Commissioner, Jabalpur Division, Jabalpur. No order as to costs.