Research › Search › Judgment

Jharkhand High Court · body

2019 DIGILAW 959 (JHR)

Kartik Kumar Prabhat v. State of Jharkhand

2019-05-01

H.C.MISHRA, SANJAY KUMAR DWIVEDI

body2019
JUDGMENT : 1. Heard learned senior counsel for the appellant and learned counsel for the State. 2. This Letters Patent Appeal is directed against the impugned Judgment dated 2.03.2017, passed in W.P.(S) No.1858 of 2016, by the Hon’ble Single Judge, whereby, the writ application filed by the petitioner, challenging the orders of punishments imposed upon him by the Disciplinary Authority, as well as by the Appellate Authority, of stoppage of three annual increments of the petitioner with cumulative effect, stoppage of promotion for three years from the due date, and no payment except the subsistence allowance during the period of suspension, was dismissed. 3. The facts of this case lie in a short compass. The writ petitioner appellant, at the relevant time, was working as Land Reforms Deputy Collector at Ranchi, and in that capacity, he had granted the permission of transfer of the tribal lands in eleven cases, in favour of the wife of Anos Ekka, who was then a Minister in the State of Jharkhand, against whom, subsequently Vigilance and E.D. cases were lodged. No doubt, both the transferor and the transferee of the lands in all the cases belonged to the Scheduled Tribes, but in all these cases, there was allegation of granting permission for transfer of lands in violation of the provisions of Sections 46 and 48 of the Chota Nagpur Tenancy Act, 1908, (hereinafter referred to as the ‘CNT Act’), alleging that the transferee and her husband Anos Ekka, who was a Minister in the State, were residents of the Districts of Gumla/Simdega, and at the relevant time, they were living under Doranda Police Station, and accordingly, the transferee was not the resident of the local limits of the police stations, where the property were situated. The petitioner had violated the provisions of the CNT Act, with mala fide intention, and he had failed to protect the interests of the tribal people, in order to favour the persons in power. The fact however, also remains that all these transfers were ordered by the writ petitioner while exercising the quasi judicial power, and orders passed by the writ petitioner were appealable under Section 215 of the CNT Act, and against the appellate order, the revision was also maintainable under Section 217 of the CNT Act. The fact however, also remains that all these transfers were ordered by the writ petitioner while exercising the quasi judicial power, and orders passed by the writ petitioner were appealable under Section 215 of the CNT Act, and against the appellate order, the revision was also maintainable under Section 217 of the CNT Act. In all those 11 cases, the State was a necessary party, but no appeal was filed by the State against any of the allegedly illegal order passed by the writ petitioner, though it has been brought on record by way of supplementary counter affidavit filed on behalf of the State, that in three matters, the orders were challenged by the private parties, which were allowed by the appellate authority. 4. The writ petitioner was put under suspension and subjected to the departmental proceeding, pursuant to the memo of charges served upon him vide Memo No.6198 dated 13th October 2010, stating that while investigating the Vigilance Case No.26 of 2008, it was found that in all those 11 cases, relating to the transfer of the tribal lands, the order was passed by the writ petitioner in violation of the provisions of Sections 46 and 48 of the CNT Act. It was also stated in the memo of charges that in all those cases, the wife of the Minister was shown to be resident of the concerned Police Stations, where the property were situated, and the permission for transfer of the land was accorded in order to provide wrongful gain to the Minister's wife, who was also an accused in the said Vigilance Case No.26 of 2008. 5. The petitioner was subjected to the departmental proceeding with the said memo of charges, and the enquiry report was submitted by the Enquiry Officer to the Disciplinary Authority on 22.09.2011, finding the charges to be proved, holding that the delinquent officer had violated the provisions of the CNT Act, with mala fide intention and he had worked against the basic object of the CNT Act, by not protecting the interests of the tribal people, in order to favour the persons in power. It was held that the purchaser was required to be the resident of the same police station, but it was a known fact that the husband of the purchaser, namely, Anos Ekka was a Minister in the State and they were residents of Gumla/Simdega Districts, and were living under Doranda Police Station. The charges against the writ petitioner were accordingly, found to be proved, and on that basis, the punishments of stoppage of three annual increments with cumulative effect, stoppage of promotion for three years from the due date, and no payment except the subsistence allowance during the period of suspension, were imposed upon the writ petitioner appellant, by the Disciplinary Authority, which order was also upheld by the Appellate Authority. 6. The Hon’ble Single Judge, while deciding the writ application has come to the conclusion that the writ petitioner was afforded reasonable opportunity and after adhering to the principles of natural justice, the departmental proceeding culminated into the punishments imposed upon the delinquent officer, and as such, there was no procedural irregularity. The Hon’ble Single Judge has also held that it is quite explicit that the word ‘Resident’ as used in Section 46 of the CNT Act, means one having a permanent place of abode and does not include temporary or occasional resident, and referring to the decision of the Hon’ble Apex Court in State of Uttar Pradesh and Anr. Vs. Man Mohan Nath Sinha & Anr., reported in (2009) 8 SCC 310 , the Hon’ble Single Judge held that in view of the seriousness of allegation and misconduct committed by the petitioner, the power of judicial review cannot be applied, and the fact finding given by the Enquiry Officer, based on the materials on record, cannot be interfered with. Accordingly, the writ application was dismissed by the Hon’ble Single Judge. 7. Learned senior counsel for the writ petitioner appellant, submitted that findings given by the Hon’ble Single Judge that under Section 46 of the CNT Act, ‘Resident’ means one having a permanent place of abode and does not include temporary or occasional resident, is against the provisions of law, as there is no such definition of ‘resident’ given in the CNT Act, and a citizen has the fundamental right to reside in any part of the Country and that fundamental right is protected under Article 19(1)(e) of the Constitution of India. Learned senior counsel also submitted that the writ petitioner was exercising the quasi judicial power and the orders passed by the writ petitioner were subject to appeal and further revision under Sections 215 and 217 of the CNT Act, but it is admitted fact that no appeal was filed against the orders passed by the writ petitioner by the State Government, though three appeals were filed by the private parties. Learned senior counsel submitted that at one hand the State Government is allowing the allegedly illegal orders passed by the appellant to continue, and on the other hand has punished the appellant for having passed those orders. Learned senior counsel further submitted that the departmental proceeding was not conducted in accordance with law, as no witness, whatsoever, was examined in the departmental proceeding, and only upon looking into the memo of charges, the findings have been given by the Enquiry Officer, which has formed basis of punishing the writ petitioner by the Disciplinary Authority, as well as the Appellate Authority. It is further submitted by learned senior counsel that in any event, the writ petitioner was exercising the quasi judicial function, and even though the orders were not in accordance with law, but for that, the writ petitioner could not be subjected to departmental proceeding, particularly when there was no charge of culpability against the appellant writ petitioner. In support of his contention, learned senior counsel has placed reliance upon the decision of the Hon’ble Supreme Court of India, in Union of India & Ors. Vs. A.N. Saxena, reported in (1992) 3 SCC 124 , and submitted that the Writ Court had entered into a manifest error of law in not interfering with the matter, even though the departmental proceeding was not in accordance with law. 8. Learned counsel for the State on the other hand, has opposed the prayer submitting that the orders passed by the writ petitioner were mala fide and in order to provide wrongful gain to the wife of the then Minister, in violation of the provisions of Sections 46 and 48 of the CNT Act, which required that the purchaser should be the resident of the local limits of the police station, within which the holding is situated. Learned counsel submitted that the Enquiry Officer has come to the right finding that the husband of the purchaser, being the Minster, it was well known that they were the residents of Districts of Gumla/Simdega, and presently living under the Doranda Police Station. Still giving the finding that both the seller and purchaser were the residents within the same police stations, where the property sought to be transferred were situated, clearly showed that the orders passed by the writ petitioner were in mala fide exercise of power, and as such there was no illegality in the departmental proceeding, as a well as the punishment orders passed by the Disciplinary Authority, as well as the Appellate Authority. In this connection, learned counsel has placed reliance upon the decision of the Hon’ble Supreme Court of India in Union of India & Ors. Vs. K.K. Dhawan, reported in AIR 1993 SC 1478 , wherein, the law has been laid down as follows:- “28. Certainly, therefore, the officer who exercises judicial or quasi-judicial powers acts negligently or recklessly or in order to confer undue favour on a person is not acting as a Judge. Accordingly, the contention of the respondent has to be rejected. It is important to bear in mind that in the present case, we are not concerned with the correctness or legality of the decision of the respondent but the conduct of the respondent in discharge of his duties as an officer. The legality of the orders with reference to the nine assessments may be questioned in appeal or revision under the Act. But we have no doubt in our mind that the Government is not precluded from taking the disciplinary action for violation of the Conduct Rules. The legality of the orders with reference to the nine assessments may be questioned in appeal or revision under the Act. But we have no doubt in our mind that the Government is not precluded from taking the disciplinary action for violation of the Conduct Rules. Thus, we conclude that 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 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 exercise 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.” (Emphasis supplied). Placing reliance on this decision, learned counsel for the State submitted that there is no illegality in the impugned Judgment passed by the Writ Court, worth any interference in this Letters Patent Appeal. 9. Through I.A. No.2468 of 2018, the appellant has brought on record the report submitted by the revenue karamchari, with respect to the report about the 'residence' of the seller and purchaser, in two cases in which the orders were passed by him, and the revenue karamchari reported that both the purchaser and the seller were members of the Scheduled Tribes community, and were residents of the same police station and district. It is submitted that similar reports were given by the revenue karamchari in all the 11 cases, on the basis of which the orders were passed by the writ petitioner, granting permission for transfer of the tribal lands. Though in the departmental proceeding the Enquiry Officer has given the finding that it was well known that the purchaser was living with her husband and they were residents of Gumla/Simdega Districts and were presently living under Doranda Police Station, but such finding was given by the Enquiry Officer without examining any witness, or without there being any such evidence on record. It is an admitted fact even by the learned counsel for the State that no evidence had been adduced during the departmental proceeding, and the findings of the Enquiry Officer is based only on the materials available with the memo of charges, and the reply thereto submitted by the petitioner. 10. Having heard learned counsels for both the sides and upon going through the records, we find that the submission of learned senior counsel for the appellant that since the appellant had passed the orders in exercise of his quasi judicial function, against which no departmental proceeding could be held, cannot be accepted. In view of the fact that the appellant is alleged to have acted mala fidely, in order to provide wrongful gain to the wife of the then Minister of the State, violating the provisions of the CNT Act, and ignoring the interests of the tribal people, if the allegations are true, the writ petitioner had certainly acted in a manner unbecoming of a Government servant. In view of the law laid down in K.K. Dhawan's case (supra), the holding of the departmental proceeding against the writ petitioner cannot be said to be illegal or uncalled for. 11. Law is equally well settled, that the scope of judicial review against the findings given by the Enquiry Officer and the punishment imposed in the disciplinary proceeding is very limited. The only question that is required to be seen is whether the disciplinary proceeding has been conducted in a fair manner, and in accordance with law. The findings of facts have to be based on the cogent evidence proved during the proceeding, giving the fair opportunity to the delinquent to rebut such evidence, either by cross-examining the witness, or by adducing defence evidence. The findings of facts cannot be based on the personal knowledge of the Enquiry Officer. In the present case, the Enquiry Officer has given a clear finding that it was well known that the purchaser was living with her husband Anos Ekka and they were the residents of Districts of Gumla/Simdega and were presently living under Doranda Police Station. The findings of facts cannot be based on the personal knowledge of the Enquiry Officer. In the present case, the Enquiry Officer has given a clear finding that it was well known that the purchaser was living with her husband Anos Ekka and they were the residents of Districts of Gumla/Simdega and were presently living under Doranda Police Station. This finding of the fact clearly appears to be given by the Enquiry Officer without any evidence on record and only on the basis of his personal knowledge, which was contrary to the reports submitted by the revenue karamchari, to the effect that both the purchaser and the seller were members of the Scheduled Tribes community, and were residents of the same police station and district. It is an admitted fact by the learned counsel for the State that no evidence had been adduced during the departmental proceeding conducted against the petitioner and the findings of the Enquiry Officer is based only on the materials available with the memo of charges, and the reply thereto submitted by the writ petitioner. We are of the considered view that such finding of fact could not have been given without entering into the evidence. The other finding given by the inquiry officer that the action of the writ petitioner was with mala fide intention, in order to favour the persons in power, also suffers from the same vice, as this finding has also been given only due to the fact that in all those 11 transactions, the purchaser was the wife of a Minister of the State. There could be no presumption of favouritism only due the fact that the purchaser was the wife of a Minister of the State, and this finding also had to be based on the basis of the evidence brought on record. As such, we are of the considered view that the inquiry report submitted against the petitioner and the subsequent actions by the Disciplinary Authority and the Appellate Authority, suffered from inherent illegality, and could not be sustained in the eyes of law. We are also of the considered view that in view of the patent illegality in the departmental proceeding, it was a fit case for an judicial review by the High Court, under Article 226 of the Constitution of India, particularly when the findings of the departmental proceeding were based on no evidence. We are also of the considered view that in view of the patent illegality in the departmental proceeding, it was a fit case for an judicial review by the High Court, under Article 226 of the Constitution of India, particularly when the findings of the departmental proceeding were based on no evidence. Had the findings in the departmental proceeding and the presumptions against the appellant been based on any cogent evidence on record, there was no occasion for any interference in the same, but in the present case, it was a fit case, in which the Writ Court ought to have exercised its power of judicial review. That having not been done, we are of the considered view that the impugned Judgment passed by the Hon’ble Single Judge cannot be sustained in the eyes of law. We accordingly, set aside the Judgment dated 02.03.2017, passed by Hon’ble Single Judge, in W.P.(S) No.1858 of 2016. 12. Consequently, the impugned order dated 2.2.2012 passed by the Disciplinary Authority, imposing the punishments of stoppage of three annual increments with cumulative effect, stoppage of promotion for three years from the due date, and no payment except the subsistence allowance during the period of suspension, as contained in Annexure-10 to the memo of appeal, as well as the order dated 9.10.2015 passed by the Appellate Authority, dismissing the appeal of the writ petitioner, as contained in Annexure-12 to the memo of appeal, are hereby, quashed. 13. In view of the allegations against the writ petitioner, which prima facie show that he had acted in a manner unbecoming of a Government servant, we deem it fit to remand the matter to the Disciplinary Authority for a fresh departmental proceeding against the petitioner, in accordance with law. We direct that the departmental proceeding shall be concluded as expeditiously as possible, preferably within a period of six months of the date of the communication of the order. 14. We make it clear that we have deliberately not entered into the question of the meaning of the expression 'resident' used in Section 46 of the CNT Act, and we leave this question also to be decided in the departmental proceeding afresh by the respondent authorities, if necessary in the facts and circumstances of the case. 15. This appeal is accordingly, allowed with the directions and observations as above.