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2017 DIGILAW 839 (ALL)

Ashutosh Kumar Singh v. State of U. P.

2017-03-23

ABHAI KUMAR, DILIP GUPTA

body2017
JUDGMENT The petitioner, a Tehsildar, has sought the quashing of the order dated 4 November 2016 passed by the Commissioner-Cum-Secretary, Board of Revenue by which he has been placed under suspension as disciplinary proceedings are contemplated. The order mentions that while the petitioner was posted as a Tehsildar Phoolpur in district Allahabad, he had in a Mutation Case exceeded his jurisdiction and acted contrary to law. The submission of learned counsel for the petitioner is that a government servant can be suspended only in accordance with Rule 4(1) of the U.P. Government Servant (Discipline & Appeal) Rules, 19991 if a major penalty is warranted. It is also his submission that the order was passed on the judicial side and, therefore, cannot be subject matter of disciplinary proceedings, particularly in the absence of any evidence. Learned counsel also submitted that the suspension order has been passed without application of mind by the Competent Authority and at best the charges would reveal inefficiency which cannot be said to be misconduct. Ms. Meenakshi Singh, learned Standing Counsel has placed before the Court the instructions dated 28 November 2016 as also the communication dated 26 September 2016 sent by the District Magistrate and on the basis of these documents has submitted that the suspension order does not call for any interference by the Court. Learned Standing Counsel has also placed the original records. We have considered the submissions advanced by learned counsel for the petitioner, the submission made by the learned Standing Counsel and have examined the instructions and original records placed by the learned Standing Counsel. The communication dated 26 September 2016 sent by the District Magistrate mentions that Case No. 2953 of 2015 (Subhash Chandra Kesarwani v. Bholanath Kesarwani) under Sections 34/35 of the Land Revenue Act was pending in the Court of Naib Tehsildar South, Tehsil Phoolpur. The case had been instituted on the basis of an unregistered will dated 5 August 2015. Notices had been issued by the Naib Tehsildar and on objections having been received, the matter became disputed. Reference has been made to the order dated 30 November 2015 contained in the order-sheet. It records that the matter would be taken up next on 7 December 2015 because an application had been filed before the District Magistrate for transfer of the case and it was pending. Reference has been made to the order dated 30 November 2015 contained in the order-sheet. It records that the matter would be taken up next on 7 December 2015 because an application had been filed before the District Magistrate for transfer of the case and it was pending. The order-sheet dated 18 January 2016 records that since orders had been reserved on the Transfer Application, the case would be taken up on 25 January 2016. On 25 January 2016, general date 29 January 2016 was fixed and on 29 January 2016, general date 30 January 2016 was fixed. On 30 January 2016 the petitioner in his own handwriting fixed 5 February 2016 but subsequently overwriting was done and it was advanced to 2 February 2016 though in the cause list, 5 February 2016 continued. In the meantime, the District Magistrate rejected the transfer application by order dated 21 January 2016. The Sub-Divisional Magistrate, conducted a preliminary inquiry which indicated that the petitioner had conducted the proceedings contrary to the established procedure. It needs to be stated that the petitioner had been transferred. The District Magistrate, therefore, made recommendation to the Commissioner-Cum-Secretary of the Board of Revenue for initiating disciplinary proceedings and for suspending the petitioner. In order to satisfy ourselves regarding the facts stated by the District Magistrate in the communication dated 26 September 2016, we have examined the file of the case as also the Register. There is apparent overwriting in the order-sheet of the case dated 30 January 2016 as the next date 5 February 2016 that was fixed has been advanced to 2 February 2016. However, in the cause list it continued to remain pending and dated was fixed. We have also seen the Register and are satisfied that the matter does call for an inquiry and it is not a case where it can be said with certainty that judicial impropriety had not been done. It has also been pointed out that a charge-sheet had been prepared which contains five charges. The main charge is that on the basis of an unregistered Will dated 23 July 1993 that the mutation case was presented on 5 August 2015 in the Court of Naib Tehsildar though the testator had died on 1 April 1998. It has also been pointed out that a charge-sheet had been prepared which contains five charges. The main charge is that on the basis of an unregistered Will dated 23 July 1993 that the mutation case was presented on 5 August 2015 in the Court of Naib Tehsildar though the testator had died on 1 April 1998. The second charge relates to advancing the date in the Mutation Case from 5 February 2016 to 2 February 2016 though the cause-list indicated 5 February 2016. We are, however, deliberately not giving any specific finding on these issues as it may prejudice the case of the petitioner in the disciplinary proceedings. Learned counsel for the petitioner submitted that since the suspension order does not mention that the allegations if found to be proved would result in imposition of a major penalty, the suspension order deserves to be set aside. It is correct that the suspension order does not mention so, but we have ourselves examined the allegations contained in the suspension order and the documents placed by the learned Standing Counsel and find that in case the charges are proved they may result in imposition of a major penalty. It will, therefore, not be appropriate for the Court to quash the suspension order merely for this reason. The instructions also indicates that the charge-sheet has been prepared and directions have been issued for service upon the petitioner. The writ petition is, accordingly, dismissed. However, in view of the facts and circumstances of the case, we direct that the disciplinary proceedings against the petitioner should be concluded expeditiously and preferably within a period of four months from the date a certified copy of the order is filed by either of the parties before the Disciplinary Authority.