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2014 DIGILAW 79 (CHH)

Virendra Kumar Shrivastava v. State of C. G.

2014-02-21

NAWAL KISHORE AGARWAL

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ORDER Nawal Kishore Agarwal, J. 1. By way of this petition, the petitioner wants to impugn and challenge the legality and validity of the order dated 26.08.2006 passed by the Collector, North Bastar, Kanker (C.G.) (Annexure P/6) dismissing the petitioner's appeal/representation against the order dated 12.08.2004 passed by respondent No. 3. The petitioner is also challenging the order dated 12.08.2004 passed by respondent No. 3 removing the petitioner from the post of Patwari. Facts, in nutshell, necessary for disposal of this petition are as under: i. The petitioner was appointed on the post of Patwari on 24.09.1987 (Annexure P/1) by the Collector and was posted under S.D.O., Bijapur. ii. On account of serious allegations regarding misappropriation of funds of one Sukko Bai, a naxal effected lady, for which F.I.R. was lodged against him and for his unauthorised absence, the petitioner was charge-sheeted and after enquiry, the S.D.O., Bhanuparappur, District Kanker, vide order dated 12.08.2004 (Annexure P/3) removed him from service. The order was assailed by the petitioner by filing appeal/representation before the Collector. The same was dismissed vide order dated 26.08.2006. Hence, this petition. 2. Learned counsel appearing for the petitioner, while inviting attention of this Court to Section to Section 104 of the M.P./C.G. Land Revenue Code, 1959 (for short, 'the Code'), submitted that the Collector is 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. In support of his submission, learned counsel for the petitioner has placed his reliance on the decision of Madhya Pradesh High Court rendered in the case of Devi Dayal Jha Vs. State of M.P. & ors. ILR (2013) MP 363. 3. On the other hand, Shri Bhaskar Payashi, learned counsel appearing for the State, while inviting attention of this Court to M.P. Bhu Abhilekh Niyamavali, part-I, clause-8, would submit: the powers of appointment, removal and dismissal of Patwari have been delegated by the State Government to the S.D.O., and therefore, action has been taken against the petitioner by the competent authority, which does not call for any interference. 4. I have heard learned counsel for the parties and perused the paper book. 5. 4. I have heard learned counsel for the parties and perused the paper book. 5. Section 104 of the Code provides 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. Though, as per clause-8 of M.P. Bhu Abhilekh Niyamavali, part-I, the powers of dismissal and removal have been delegated to the S.D.O. by the State Government but in the instant case, vide appointment order dated 24.09.1987, the petitioner was appointed by the Collector and not by the S.D.O. 6. 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, [please see Ishwar Singh Vs. State of Rajasthan and others (2005) 2 SCC 334 ] 7. In view of the aforesaid well settled legal position, notwithstanding the above delegation to the S.D.O., the Collector was competent to appoint the petitioner to the post of Patwari. The Collector appointed the petitioner vide appointment order (Annexure P/1), Thus, the Collector is appointing authority as well as the disciplinary authority of the petitioner. Admittedly, the order of dismissal was passed by the S.D.O. in the capacity of disciplinary authority, which cannot be sustained in the eye of law. For this, I am in respectful agreement with the law laid down by the High Court of Madhya Pradesh in Devi Dayal Jha's case ILR (2013) MP 363 (supra). 8. In view of the above, the order of dismissal dated 12.08.2004 and the appellate order passed by the Collector, deserve to be and are hereby quashed. However, looking to the seriousness of the charges, in the light of ratio of law laid down by the Supreme Court in the case of Secretary, Ministry of Defence and others Vs. 8. In view of the above, the order of dismissal dated 12.08.2004 and the appellate order passed by the Collector, deserve to be and are hereby quashed. However, looking to the seriousness of the charges, in the light of ratio of law laid down by the Supreme Court in the case of Secretary, Ministry of Defence and others Vs. Prabhash Chandra Mirdha (2012) 11 SCC 565 , wherein the Supreme Court has held that the removal and dismissal of a delinquent on misconduct must be by the authority not below the appointing authority, however, it does not mean that disciplinary proceedings may not be initiated against the delinquent by the authority, lower than the appointing authority, liberty is reserved to the competent authority to proceed further in the departmental enquiry based on the charge-sheet already issued to the petitioner. Needless to mention that the respondents shall pass appropriate order after giving full opportunity of hearing to the petitioner. No order as to costs.