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2019 DIGILAW 2040 (RAJ)

Jagdish Prasad Mudgal v. State of Rajasthan

2019-07-25

SANJEEV PRAKASH SHARMA

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ORDER : SANJEEV PRAKASH SHARMA, J. In SBCWP No.8482/2002: 1. The writ petitioner - Jagdish Prasad Mudgal has expired during the pendency of the writ petition and his wife and children as legal heirs are pursuing this matter. They have already been taken on record and would be referred to as the 'writ petitioners'. 2. Brief facts, which need to be noted, are that the deceased delinquent had attained the age of superannuation on 30.08.1997 where-after he was punished by the impugned order dated 29.05.2001 stopping 1/5th of his pension for five years. The charge levelled against the deceased delinquent was that while he was holding the post of Tehsildar, he passed a judgment in the case of State V. Swai Tej Singh on 15.06.1995 whereby he dropped the proceedings initiated against respondent - Swai Tej Singh under Section 91 of the Rajasthan Land Revenue Act, 1956 and further, he was charged of having allowed conversion of land from agriculture to commercial purposes for hotel activity in contravention of the government circular dated 01.11.1994. Third charge levelled against him for having opened mutation in favour of the parties on 03.03.1995 contrary to the provisions of the Act of 1956. Inquiry was conducted and the Inquiry Officer held the deceased delinquent guilty of all the charges levelled against him where-after matter was referred under Rule 7 of the CCA Rules, 1996 to the State Government as the deceased delinquent had attained the age of superannuation. Copy of the inquiry report was made available to the deceased delinquent and the punishment order was passed as stated above. 3. Learned counsel for the petitioner submits that decision taken by the deceased delinquent was quasi-judicial and was in judicial proceedings conducted, against which appeal, reference and revision lies in terms of the Act of 1956. The deceased delinquent was holding a Court while deciding those matters and allegation of mala fide had not been held to be proved against the petitioner and further, after decision having been passed by the disciplinary authority, the decision taken by the deceased delinquent has already been upheld by the Board of Revenue vide its judgment dated 13.03.2000 in revision. In the circumstances, it is submitted that the punishment order cannot be allowed to be sustained. 4. In the circumstances, it is submitted that the punishment order cannot be allowed to be sustained. 4. He relies on the law laid down by the Supreme Court in the case of Union of India V. K.K. Dhawan reported in AIR 1993 SC 1478 . The same view was also taken earlier by the Supreme Court in the case of Union of India & Ors. V. A.N. Saxena reported in AIR 1992 SC 1233 . 5. Learned counsel appearing for the respondents further submits that at the time when the allegations were levelled, the decision of the Board of Revenue was not rendered and independently, the Superior Authority has held the deceased delinquent guilty of the charges and therefore, no interference is called for by this Court. 6. I have considered the submissions made by the learned counsel for the parties. 7. This Court finds that deceased delinquent had also preferred S.B. Civil Writ Petition No. 2725/2001 with regard to the similar charge-sheet alleged against him of having opened mutation in favour of one Ram Babu Sharma. Charge-sheet was issued on 28.08.1997 before his retirement. This Court vide its judgment dated 25.09.2002 while examining the said departmental inquiry proceedings wherein the deceased delinquent was punished with withholding of 1/10th portion of his pension held as under: "5. The order for which the petitioner has been penalized was a quasi judicial order. It is well settled that the Government is not precluded from taking the disciplinary action for violation of the conduct Rules even with regard to exercise of quasi judicial powers. The parameters for taking disciplinary action in respect of quasi judicial order have been laid down by their Lordships of the Supreme Court in Union of India V. K.K. Dhawan ( AIR 1993 SC 1478 ). The parameters for taking disciplinary action in respect of quasi judicial order have been laid down by their Lordships of the Supreme Court in Union of India V. K.K. Dhawan ( AIR 1993 SC 1478 ). The disciplinary action can be taken in the following cases- (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 had 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 exercise of the statutory powers; (v) if he had been actuated by corrupt motive however small the bribe may be. Their Lordships further observed that the parameters above catalogued are not exhaustive but for a mere technical violation or merely because the order is wrong, disciplinary authority is not warranted. 6. Bearing the ratio indicated in UOI vs. K.K. Dhawan (supra) when I peep into the material on record I find that the petitioner had acted on the basis of the report dated October 24, 1989 of the Assistant Engineer PWD. In my opinion the petitioner did not commit any act which could cause pecuniary loss to the State Government as mere attestation of mutation did not give that person legal title of the land, in whose favour the mutation was attested. The order of mutation was always subject to scrutiny by the District Collector. The act of petitioner in attesting mutation cannot be described as recklessness or misconduct in the discharge of his duty. There is no allegation against the petitioner that he unduly favoured Ram Babu Sharma in whose favour mutation was attested. The petitioner had also not failed to act honestly or in good faith. It was within the domain of the petitioner to attest the mutation and he did not even exceed his jurisdiction. Merely because the respondents treated the order wrong, the disciplinary action against the petitioner, in my view, was not warranted. 7. For the reasons aforementioned I allow the writ petition and quash the disciplinary Inquiry initiated against the petitioner pursuant to the charge sheet dated August 28, 1997, including the impugned order of punishment dated May 8, 2001. Merely because the respondents treated the order wrong, the disciplinary action against the petitioner, in my view, was not warranted. 7. For the reasons aforementioned I allow the writ petition and quash the disciplinary Inquiry initiated against the petitioner pursuant to the charge sheet dated August 28, 1997, including the impugned order of punishment dated May 8, 2001. Respondents are directed to release the amount of pension of the petitioner, withheld by them within sixty days from today. There shall be no order as to costs." 8. In the present case also, this Court finds that allegations of malice or ill-motive have not been found to be proved by the disciplinary authority and only allegation is that the order has been passed contrary to the circular issued by the Board of Revenue. It is also noticed that in the revision proceedings ultimately reference was answered against the State and the order passed by the petitioner in judicial capacity was upheld. Thus, it is noticed that punishment could not have been passed as against the deceased delinquent. Once, it is found that the order passed is a purely judicial order without actuated by any malice or ill-motive. Accordingly, this writ petition is allowed. The order impugned of withholding 1/5th pension of the deceased delinquent is set aside. The writ petitioners would be entitled for the consequential relief. The exercise for payment of arrears of the pension of the deceased delinquent shall be undertaken within a period of three months from the date a certified copy of this order is presented. In SBCWP No. 2568/2001: 9. In this case, the deceased delinquent was charge-sheeted for his conduct of having opened mutation in favour of Jungli Ram son of Kushala Ram Saini, Sunder Lai son of Bhappu Ram and Sohan Lal son of Bhore Lal on the basis of an affidavit filed by the Khatedars stating that aforesaid persons were having in possession of the land for 30-35 years. He also relied on one site inspection report dated 15.12.1993 and relying on the same opened mutation while as per the circular issued by Commissioner Settlement dated 01.11.1983, the mutation could have been opened on the basis of registered documents only. The Inquiry Officer conducted the inquiry and found no allegation of ill-motive or malice. The allegation of having given undue benefit to any person was also not found to be proved. The Inquiry Officer conducted the inquiry and found no allegation of ill-motive or malice. The allegation of having given undue benefit to any person was also not found to be proved. However, the Inquiry Officer held the deceased delinquent guilty of the charge of having opened mutation on the basis of the affidavits only. 10. Learned counsel for the petitioner submits that in view of the law laid down by the Apex Court in the case of Union of India V. K.K. Dhawan reported in AIR 1993 SC 1478 , while the respondents could have conducted the inquiry against him, but as there is no corrupt motive as against the deceased delinquent, he could not have been held guilty of an order passed by him on judicial capacity as aforesaid while he was working as Assistant Settlement Officer and holding as a judicial court. 11. Learned counsel has also relied on the provisions of the Rajasthan Land Revenue Act, 1956 (hereinafter referred to as "the Act of 1956"), to submit that the Assistant Settlement Officer is a revenue court in terms of Section 24 of the Act of 1956 and also relies on the manual to submit that the action of opening of mutation is a judicial proceedings for which a person can be charge-sheeted only if it is found that the order has been passed actuated with malice and ill-motive and with a purpose to benefit some person. 12. Per contra, learned counsel appearing for the respondents while supporting the order passed by the disciplinary authority submits that the provisions of the circular issued from time to time by the Settlement Commissioner are binding upon the subordinate officers and they are required to be followed strictly and it is found that the action has been taken in contravention of the circular aforesaid, the concerned person can be departmentally punished. 13. I have given my due consideration to the submissions advanced by both the learned counsel for the parties and found that the order passed by the petitioner as Assistant Settlement Officer was purely in judicial capacity and appeal thereto was available to any aggrieved party under the provisions of the Act of 1956. No one has challenged his order and also that the Inquiry Officer has found that there is no ill-motive on the part of the deceased delinquent. No one has challenged his order and also that the Inquiry Officer has found that there is no ill-motive on the part of the deceased delinquent. The disciplinary authority ought to have examined the said aspect before passing the order of punishment, however, these aspects have not been considered while passing the order of punishment of withholding of 20% pension of the deceased delinquent for two years. Thus, the order impugned is found to be defective and unjustified. 14. Taking into consideration that the deceased delinquent has already expired, no purpose would be served to remand the matter back to the disciplinary authority for passing a fresh order. Giving quietus to the matter, the order dated 16.05.2011 is quashed and set aside. The writ petitioners would be entitled for consequential benefits of arrears of the pension of the deceased, which has been withheld by the respondents in terms of the impugned order, which has been quashed. Exercise shall be undertaken within a period of three months from the date a certified copy of this order is presented. 15. Both the writ applications are allowed.