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2022 DIGILAW 1079 (ALL)

Prakash Gupta v. State of U. P.

2022-07-13

ALOK MATHUR

body2022
JUDGMENT : ALOK MATHUR, J. 1. Heard Sri S.K. Kalia, learned Senior Advocate assisted by Sri Ashutosh Sahai, learned counsel for the petitioner as well as learned Standing Counsel for the respondent no. 1 and 2 and Sri Alok Kumar Tripathi, learned counsel for the respondent no. 4. 2. Learned counsel for the petitioner at the very outset has submitted that he does not want to press prayer no. 1 and accordingly, this Court proceeds to consider prayer no. 2 of the writ petition. 3. The sole question for consideration of this Court is as to whether a person while in exercise of his discharge of official functions can be subjected to disciplinary proceedings with regard to any decision taken by him, if so under what circumstances? 4. It has been submitted by learned counsel for the petitioner that the petitioner was initially appointed on the post of Deputy Collector by the Union Public Service Commission in the year 1999 and was posted at District - Mau, Tehsil Sadar. When an application was moved before him under Section 33/39 of the Land Revenue Act, seeking conversion of land from the nature of non ZA to ZA land. 5. The petitioner in exercise of his jurisdiction as Deputy Collector heard the said matter, invited objections as well as report from the Tehsildar and after considering entire material available on record, by means of order dated 17.11.2009, allowed the said application converting the said land into ZA land. 6. It has been submitted by learned counsel for the petitioner that while deciding the said application, it was mentioned that certain fraudulent entries have been made and corrected. The said land which was infact ZA land was recorded non ZA land and only to rectify and correct the revenue records, the petitioner was called upon to exercise power under Section 33/39 of Land Revenue Act. 7. Order dated 17.11.2009, passed by the petitioner was subjected to revision before the Commissioner, who allowed the said revision and set aside the order passed by the petitioner. While allowing the said revision the Commissioner held that petitioner did not had any jurisdiction to exercise power under Section 33/39 of the Land Revenue Act for converting non ZA land to ZA land. While allowing the said revision the Commissioner held that petitioner did not had any jurisdiction to exercise power under Section 33/39 of the Land Revenue Act for converting non ZA land to ZA land. While setting aside the order passed by the petitioner, the Commissioner also recorded that copy of his judgment be placed before the Chief Secretary, Appointments for conducting an inquiry in the said matter. It is on the basis of direction issued by the Additional Commissioner that disciplinary proceedings were initiated against the petitioner and charge sheet was issued to him on 05.02.2018. The charge sheet was issued by the Commissioner, Azamgarh Division, Azamgarh who was appointed inquiry officer. 8. The inquiry proceedings concluded and inquiry report was submitted on 19.06.2018, exonerating the petitioner of all the charges. Finding was returned in the inquiry report that there was no mala-fide intention neither it can be alleged nor can be proved for which the petitioner in exercise of his judicial functions could be charged. 9. On the inquiry report dated 19.06.2018, opinion was sought from Board of Revenue, in pursuance to which Board of Revenue also gave its opinion on 22.03.2019, for dropping the proceedings against the petitioner. 10. In the aforesaid backdrop of the facts, where the inquiry officer has also recorded finding in favour of the petitioner and even Board of Revenue had gave finding that there is no infirmity with the order passed by the petitioner, the matter was considered by the State Government and surprisingly by means of order dated 31.07.2019, the inquiry officer was asked to give his report specifically stating that on what facts guilt of the petitioner could not be proved during the said inquiry. 11. Learned counsel for the petitioner has submitted that said order on the face of it speaks of mala-fide on the part of respondents as the said order on the face of it is without jurisdiction and once inquiry officer has passed an order he becomes functus officio and only in case of direction for reinquiry, he cannot have any jurisdiction in his capacity as inquiry officer, to submit a fresh inquiry report. Such a exercise of jurisdiction is alien to the service jurisprudence. 12. Such a exercise of jurisdiction is alien to the service jurisprudence. 12. In view of the order of the State Government, the inquiry officer again submitted his report to the State Government, where he slightly deferred from his earlier opinion and now he stated that order passed by the petitioner was erroneous. Even in the second inquiry report there is no allegation that the petitioner has either misconducted himself or there was any extraneous consideration for deciding the said application. In the said report it was also recorded that all aspects of the matter which have been considered by the inquiry officer there are various judgments of Hon'ble Supreme Court and High Court and therefore, it was stated that legal opinion in this regard be taken by the Law Department of the State Government. 13. In pursuance to the second inquiry report, opportunity of hearing was given to the petitioner and consequently, impugned order dated 02.12.2021, has been passed imposing minor punishment of ‘censure’ to the petitioner. 14. It has been informed by learned counsel for the petitioner that letter of the State Government dated 31.07.2019, requiring the inquiry officer to submit his opinion, was subjected to challenge before this Court by filing Writ Petition No. 2091 of 2021, which was disposed of by means of order dated 18.02.2021, with direction to the respondents to conclude disciplinary proceedings within two months. 15. Learned counsel for the petitioner has assailed the impugned order on the ground that firstly that the petitioner was discharging quasi judicial functions and he had decided the application which was filed before him under Section 33/39 of the Land Revenue Act for converting non ZA land to ZA land. 16. The petitioner had followed due process of law and he infact invited objections and also report from the Tehsildar. It is only after perusal of entire material available on record that he has proceeded to pass order dated 17.11.2009. While passing the said order the petitioner has also relied upon the judgment of Full Bench in the case of State of U.P. vs. Satish Chandra Sharma, 2008 LRT 71. 17. It is also submitted by learned counsel for the petitioner that any order passed by judicial or quasi judicial authority may be incorrect or otherwise, but merely on the basis of passing of incorrect order, disciplinary proceedings cannot be initiated against the petitioner. 18. 17. It is also submitted by learned counsel for the petitioner that any order passed by judicial or quasi judicial authority may be incorrect or otherwise, but merely on the basis of passing of incorrect order, disciplinary proceedings cannot be initiated against the petitioner. 18. In the entire material either in the inquiry report, charge sheet, second inquiry report, there is not even an iota of allegation that petitioner's misconducted himself or there was any overt act or omission, which may entail initiation of disciplinary proceedings. It is submitted that law in this regard has been settled in series of judgments of Apex Court and most of them have been considered in the recent judgment of Apex Court in the case of Abhay Jain vs. High Court of Judicature of Rajasthan and Another, 2022 SCC Online SC 319, wherein the Court has held as under: “71. We concur with the view of this Court in the aforesaid case that merely because a wrong order has been passed by the appellant or the action taken by him could have been different, this does not warrant initiation of disciplinary proceedings against the judicial officer. ........... 74. In light of the above judicial pronouncements, we hold that the appellant may have been guilty of negligence in the sense that he did not carefully go through the case file and did not take notice of the order of the High Court which was on his file. This negligence cannot be treated to be misconduct.......” 19. Heard learned counsel for the parties and perused the record. 20. From entire proceedings it cannot be seen from any material that there was any extraneous consideration while passing the said order by the petitioner. The petitioner had exercised his jurisdiction under Section 33/39 of the Land Revenue Act, it may be a case that appear to decide the said application specifically in view of the fact that the said land was non ZA land and its conversion to ZA land may not be permissible under the jurisdiction held by the petitioner, but this fact in itself cannot be the sole basis for initiation of disciplinary proceedings against the petitioner. 21. Hon'ble Apex Court in the case of Zunjarrao Bhikaji Nagarkar vs. Union of India and Others, (1999) 7 SCC 409 , in para 29 has observed as under: “29. 21. Hon'ble Apex Court in the case of Zunjarrao Bhikaji Nagarkar vs. Union of India and Others, (1999) 7 SCC 409 , in para 29 has observed as under: “29. In State of Punjab vs. Ex-Constable Ram Singh this Court referred to the definition of “misconduct” as given in Black's Law Dictionary and Aiyar's Law Lexicon and said as under: “6. Thus it could be seen that the work ‘misconduct’ though not capable of precise definition, on reflection receives its connotation from the context, the delinquency in its performance and its effect on the discipline and the nature of the duty. It may involve moral turpitude, it must be improper or wrong behaviour; unlawful behavious, wilful in character; forbidden act, a transgression of established and definite rule of action or code of conduct but not mere error of judgment, carelessness or negligence in performance of the duty; the act complained of bears forbidden quality or character. Its ambit has to be construed with reference to the subject-matter and the context wherein the terms occurs, regard being had to the scope of the stature and the public purpose it seeks to serve.” 22. Considering various judgments of the Apex Court as stated above, present case is squarely covered by the aforesaid judgment of Apex Court and hence inquiry proceedings could not have been initiated against the petitioner considering the fact that he passed the said order in exercise of his quasi judicial functions. 23. In the light of above observations, the order of punishment sated 02.12.2021 is clearly illegal and arbitrary and is hereby quashed. 24. Writ Petition stands allowed.