Research › Search › Judgment

Gujarat High Court · body

2022 DIGILAW 1662 (GUJ)

Vinodchandra Kantilal Tanna v. State of Gujarat

2022-11-30

A.S.SUPEHIA

body2022
ORDER : The affidavits tendered by the learned AGP are ordered to be taken on record. 1. Rule. Learned AGP waives service of notice of rule for the respondent-State. 2. At the outset, learned Senior Advocate Mr. Oza has submitted that the issue raised in the present group of petitions is squarely covered by the judgment and order dated 28.03.2022 passed in Special Civil Application No.1316 of 2021. It is submitted that on the identical facts this Court, after examining such facts and issue has allowed the writ petition by setting aside the penalty order dated 20.05.2015 passed by the District Collector, Gandhinagar on the petitioner, which was confirmed by the Gujarat Civil Services Tribunal, Gandhinagar vide order dated 06.06.2014 passed in Appeal No.164 of 2015. He has submitted that in Special Civil Application Nos.7760, 7716, 7844, 7847, 8304 and 8382 of 2022 the petitioner is challenging the charge-sheets dated 04.03.2020, 04.12.2020, 11.03.2020, 04.12.2020, 04.12.2020 and 04.03.2020 respectively. 3. Learned Senior Advocate Mr. Oza has submitted that in view of the judgment of this Court, the entire exercise of undertaking the regular departmental proceedings pursuant to the charge-sheets would be a futile exercise and the issue would be governed by the said judgment. He has submitted that in fact the charge-sheets themselves are misplaced and misdirected since the petitioner, while discharging his duty as quasi judicial authority, has certified the revenue entries. It is submitted that it was always open for the higher authority to re-examine the aforesaid entries by exercising suo motu revision power under the provisions of Section 211 of the Gujarat Land Revenue Code, 1879 and instead of doing so, the charge-sheets have been issued. It is submitted that thus, the impugned charge-sheets and show cause notices may be set aside in view of the judgment passed by this Court. 4. Per contra, learned AGP appearing for the respondent authority has submitted that the writ petitions may not be entertained as it was noticed that there were 224 entries made by the present petitioner in the revenue record, which were erroneous and certified by the petitioner while discharging his duty as Circle Officer, Gandhinagar. It is submitted that during the preliminary inquiry, these erroneous revenue entries were noticed and since the same were found de hors the provision of law in access of jurisdiction vested upon the petitioner, the charge-sheets have been issued. It is submitted that during the preliminary inquiry, these erroneous revenue entries were noticed and since the same were found de hors the provision of law in access of jurisdiction vested upon the petitioner, the charge-sheets have been issued. It is submitted that accordingly the show cause notices were issued to the petitioners for 127 revenue entries and the petitioner was called upon to justify such entries and accordingly, it was thought to initiate departmental proceedings against him. He has further submitted that the writ petitions may not be entertained since looking to the statement of imputation, it is necessary that the petitioner, who has exceeded his jurisdiction in certifying such entries, is required to be proceeded departmentally under the provisions of Rule 9 of the Gujarat Civil Services (Disciplinary and Appeal) Rules, 1971. Thus, it is submitted that the present writ petitions may not be entertained. 5. The established facts from the respective submissions and the averments made in the writ petitions and the affidavits are that the petitioner, who was serving as a Circle Officer, Gandhinagar had certified 127 revenue entries in the revenue records. It is also not in dispute that the petitioner was exercising his quasi judicial powers while certifying such entries. The petitioner was also accordingly proceeded departmentally by levelling identical charges by various other chargesheets. One of which culminated into penalty of stoppage of two increments with future effect, which was subject matter of challenge before the Gujarat Civil Services Tribunal, Gandhinagar in Appeal No.164 of 2015. The Tribunal confirmed the order passed by the District Collector dated 20.02.2015, whereby the petitioner was imposed penalty of stoppage of four increments with future effect. The said order of the Tribunal as well as the penalty of stoppage of increments was assailed by the petitioner in the writ petition being Special Civil Application No.1316 of 2021. 6. By the judgment dated 28.03.2022 passed in Special Civil Application No.1316 of 2021, the Coordinate Bench of this Court has set aside the order of punishment as well as the judgment passed by the Tribunal. The Coordinate Bench has observed thus:- “10. Perusal of the order of the Tribunal in context of the charge levelled against the petitioner would indicate that the department was of the view that the petitioner had committed a misconduct as Circle Officer at the Mamlatdar office. The Coordinate Bench has observed thus:- “10. Perusal of the order of the Tribunal in context of the charge levelled against the petitioner would indicate that the department was of the view that the petitioner had committed a misconduct as Circle Officer at the Mamlatdar office. An entry 13016 was mutated in the revenue record on the basis of the registered sale deed dated 02.12.2011. The stand of the department in the charge-sheet was once that entry was cancelled by the Mamlatdar, Gandhinagar, on 28.03.2012, the petitioner could not have certified such entry and and mutate the same in the revenue record on 07.12.2012. The action of the petitioner as a Circle Officer in certifying the entry despite it having been cancelled by the Mamlatdar was an act of negligence in discharge of his duties as a Circle Officer. 11. Though the matter of certification of entries and mutation of entries are actions which can be subject to appeals in the hierarchy of revenue laws, a coordinate bench of the Jharkhand High Court while discussing the role of the Revenue Officer in discharge of his duties and certifying entries has held as under: “17. With regard to continuation of proceedings after retirement, learned counsel for the respondent-State relied on judgment in the case of "Jag Narain Singh Vs. State of Jharkhand & others" reported in 2015 SCC Online Jhar 3296 in which in para 5, the Hon'ble Supreme Court has held as under:- "5. It however appears from considering the submissions of the parties that apprehension of the petitioner for continuance of the Departmental Proceeding on that ground is misplaced. Pension Rules do not lay down a procedure for conduct of Departmental Proceeding. If an employee has retired during the pendency of a Departmental Proceeding, the only difference that could result is in the nature of punishment which in that case, would be governed by the provisions of Jharkhand Pension Rules. Therefore, when the proceedings initiated at the time of his service did not end up finally before his retirement, they would be deemed to have continued after retirement of the petitioner. This proposition is also well settled by the Full Bench judgment rendered by the Patna High Court in the case of Shri Krishna Singh v. Union of India [2011 (1) PLJR 665]. This proposition is also well settled by the Full Bench judgment rendered by the Patna High Court in the case of Shri Krishna Singh v. Union of India [2011 (1) PLJR 665]. Counsel for the parties are not able to apprise the Court as to whether Departmental Proceeding has been concluded or whether Inquiry Officer has finally submitted his report." 18. The enquiry report has been annexed as Annexuer-6 to the writ petition. The enquiry officer with regard to the Garmajurwa Malik land has stated that the jamabandi of the said land was registered in the year, 1965-66 and on that basis the petitioner has mutated the land only to that effect enquiry officer has given finding that there is financial loss to the government. The enquiry officer has recorded that so far as the Kaiser-e-hind land is concerned which was on the basis of Partition Suit No. 185 of 1966, the order of mutation was passed. On perusal of enquiry report it transpires that not even a single witness has been examined to prove the charges against the petitioner. The documents relied in the enquiry proceeding was required to be proved by way of adducing evidence. For the Garmajurwa Malik land, petitioner passed mutation order on the basis of running name of Chandan Sao and Bharat Sao. The name of Chandan Sao and Bharat Sao was recorded in Register-II on 23.01.1989. Pursuant to partition of land from Chandan Sao and Bharat Sao to one Jai Bhawani Co-operative Grih Nirman Samiti, mutation was done for the same partition was incumbent to the petitioner. The petitioner only followed prescribed procedure and looked into the Register-II record and passed the order. With regard to Kaiser-e-hind, mutation was done by the petitioner on the basis of final decree in Partition Suit No. 185 of 1966. In that view of the matter and considering the Circular of 1997 that can be challenged only in suit before competent civil court if possession of more than 12 years is there. The petitioner was not the authority to decide and to file suit. The judgment passed in quasi-judicial can be corrected by preferring statutory appeal and review. In the light of these discussions the Court has to consider whether for deciding the mutation case, is there any misconduct on the part of the petitioner or not ? The petitioner was not the authority to decide and to file suit. The judgment passed in quasi-judicial can be corrected by preferring statutory appeal and review. In the light of these discussions the Court has to consider whether for deciding the mutation case, is there any misconduct on the part of the petitioner or not ? On perusal of record, it transpires that the petitioner has followed all the statutory procedures for passing mutation order before the petitioner was not entitle to empower transfer of land in question. The petitioner has acted on the basis of Register-II. The mutation order was passed on the basis of possession and mutation itself does not show right, title and interest that has been considered by a Co-ordinate Bench of this Court in "Pradip Prasad" (case). The petitioner passed order on the basis of possession of Chandan Sao and Bharat Sao and after looking into the possession nor manner of possession, which has been considered in the case of "Lal Muni Devi" (supra) and Depta Tewari (supa). It is well-settled proposition of law that mutation does not create any right and title in the property. It is simply an evidence of possession for the land. This aspect of the matter has been considered in the case of "Smt. Urmila Prasad" (supra). Thus, it transpires that the Department has proceeded against the petitioner for a misconduct which cannot be said misconduct in view of duties prescribed to the petitioner and the record suggest that the petitioner has acted in terms of prescribed procedure for passing mutation order. The proceeding was initiated under Rule 55 of Civil Services (Classification, Control and Appeal) Rules, 1930 and after retirement of the petitioner it was not converted under Rule 43(b) of the Jharkhand Pension Rules and merely it has been observed by the authorities that the proceeding is same. For taking shelter of Rule, 43(b) of the Jharkhand Pension Rules, financial loss has to be determined which has not been done in the case in hand and Rule 43(b) of the Jharkhand Pension Rules has been invoked against the petitioner which is not in accordance with law in view of the facts stated hereinabove. So far as the judgement relied by the learned counsel for the respondent-State in "N. Gangarai" (supra) that is not in dispute with regard to judicial review. So far as the judgement relied by the learned counsel for the respondent-State in "N. Gangarai" (supra) that is not in dispute with regard to judicial review. However, the case in hand, in the facts and circumstances of the present case, this judgement is not applicable as in the present case misconduct itself has not been proved. So far as the judgment in the case of "Heem Singh" (supra) relied by the learned counsel for the respondent-State is on different footing. In that case, criminal case arises out of regular trial where in the present case, the criminal case has been quashed by the High Court under section 482 of the Cr.P.C. This judgment is not helping the respondent-State. The judgment relied by the learned counsel for the respondent-State in the case of "K. Rajappa Menon" (supra) was prior to 42nd amendment of the Constitution of India. The Hon'ble Supreme Court in the case of "Managing Director, ECIL, Hyderabad" Vs. Karunakar" reported in (1993) 4 SCC 27 in para 25 & 26 has held as under:- "25. While the right to represent against the findings in the report is part of the reasonable opportunity available during the first stage of the inquiry viz., before the disciplinary authority takes into consideration the findings in the report, the right to show cause against the penalty proposed belongs to the second stage when the disciplinary authority has considered the findings in the report and has come to the conclusion with regard to the guilt of the employee and proposes to award penalty on the basis of its conclusions. The first right is the right to prove innocence. The second right is to plead for either no penalty or a lesser penalty although the conclusion regarding the guilt is accepted. It is the second right exercisable at the second stage which was taken away by the Forty-second Amendment. 26. The reason why the right to receive the report of the enquiry officer is considered an essential part of the reasonable opportunity at the first stage and also a principle of natural justice is that the findings recorded by the enquiry officer form an important material before the disciplinary authority which along with the evidence is taken into consideration by it to come to its conclusions. It is difficult to say in advance, to what extent the said findings including the punishment, if any, recommended in the report would influence the disciplinary authority while drawing its conclusions. The findings further might have been recorded without considering the relevant evidence on record, or by misconstruing it or unsupported by it. If such a finding is to be one of the documents to be considered by the disciplinary authority, the principles of natural justice require that the employee should have a fair opportunity to meet, explain and controvert it before he is condemned. It is negation of the tenets of justice and a denial of fair opportunity to the employee to consider the findings recorded by a third party like the enquiry officer without giving the employee an opportunity to reply to it. Although it is true that the disciplinary authority is supposed to arrive at its own findings on the basis of the evidence recorded in the inquiry, it is also equally true that the disciplinary authority takes into consideration the findings recorded by the enquiry officer along with the evidence on record. In the circumstances, the findings of the enquiry officer do constitute an important material before the disciplinary authority which is likely to influence its conclusions. If the enquiry officer were only to record the evidence and forward the same to the disciplinary authority, that would not constitute any additional material before the disciplinary authority of which the delinquent employee has no knowledge. However, when the enquiry officer goes further and records his findings, as stated above, which may or may not be based on the evidence on record or are contrary to the same or in ignorance of it, such findings are an additional material unknown to the employee but are taken into consideration by the disciplinary authority while arriving at its conclusions. Both the dictates of the reasonable opportunity as well as the principles of natural justice, therefore, require that before the disciplinary authority comes to its own conclusions, the delinquent employee should have an opportunity to reply to the enquiry officer's findings. The disciplinary authority is then required to consider the evidence, the report of the enquiry officer and the representation of the employee against it." 19. The disciplinary authority is then required to consider the evidence, the report of the enquiry officer and the representation of the employee against it." 19. So far as the judgment relied by the learned counsel for the respondent-State in "K.K. Dhawan" (supra) is concerned, in that case it was considered that the officer who exercises judicial or quasi-judicial powers if the person acts negligently or recklessly in order to confer undue favour to a person is not acting as a judge which is not subject matter in the case in hand. In the case of "Arvind Ballabh Chaubey" (supra) relied by the learned counsel for the respondent-State, on the prima facie materials on record, the Court has come to the conclusion in that case that the petitioner has passed the order negligently against the interest of justice. In "Jag Narain Singh" (supra) relied by the learned counsel for the respondent-State, the Court directed to conclude the disciplinary proceeding to logical conclusion and the petitioner of that case was directed to co-operate with the disciplinary proceeding. 20. As a cumulative effect of the discussions made here-inabove, the impugned order dated 13.11.2019 is quashed. The petitioner shall be entitled for consequential benefits. 21. The writ petition stands allowed and disposed of.” 12. While deciding the issue, the Jharkhand High Court took into consideration in case of Union of India & Others Vs. K.K. Dhawan reported in (1993) 2 SCC 56 . It would be relevant to reproduce paragraph no.28 of the judgment. "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". 13. In that case while dealing with the delinquency in case of an Income Tax Officer who was exercising quasi judicial powers, the Court opined that unless and until the government was of the opinion that while exercising quasi judicial powers, act was actuated by corrupt motive and extraneous consideration, it was not open for the disciplinary authority to expose an employee to disciplinary proceedings. 14. In the facts of the present case, what is found is that the action of the petitioners certifying an entry had stood the test of a judicial order inasmuch as, the SSRD has confirmed the order of the Circle Officer, therefore, even otherwise, in absence of any extraneous consideration alleged against the petitioner, it was not open for the respondent to initiate any departmental proceedings against the petitioner. 15. Consequentially, the order of penalty dated 20.05.2015 passed by the District Collector, Gandhinagar and the order of the Gujarat Civil Services Tribunal, Gandhinagar passed in Appeal No.164 of 2015 dated 06.06.2014 (17.06.2019) are quashed and set aside. 16. The petition is allowed. Rule is made absolute.” 7. 15. Consequentially, the order of penalty dated 20.05.2015 passed by the District Collector, Gandhinagar and the order of the Gujarat Civil Services Tribunal, Gandhinagar passed in Appeal No.164 of 2015 dated 06.06.2014 (17.06.2019) are quashed and set aside. 16. The petition is allowed. Rule is made absolute.” 7. This Court in the said judgment has set aside the punishment by observing that while exercising quasi judicial powers, if any employee has passed orders, which are not actuated by corrupt motive and extraneous consideration, it was not open for the disciplinary authority to impose punishment on such employee. 8. All the aforesaid entries, for which the charge-sheets have been issued, have become final and it is also an undisputed fact that the higher authority has not exercised any suo motu review powers to set aside the revenue entries certified by the petitioner. No appeal is filed against the certification of the revenue entries for all these years. The petitioner had certified the entries in the year 2012 and the charge-sheets are issued in the year 2020. 9. In wake of the aforesaid undisputed fact of not undertaking any further action by the higher authorities, the action of the petitioner in certifying such entries by exercising the quasi judicial powers, cannot be faulted with and the petitioner cannot be forced to be embroiled in departmental proceedings, for any misconduct. The act of certifying the revenue entries by the petitioners cannot be questioned in departmental proceedings so long such entries have not be questioned by any one including the higher authorities for a period of eight years. 10. Thus, in light of the aforesaid judgment and order passed by this Court in identical charges, on which the penalty of stoppage of two increments with future effect imposed upon the petitioner having been set aside by the Coordinate Bench, this Court has no reason to deviate the observation made by this Court. In light of the aforesaid judgment, the further departmental proceedings undertaken pursuant to the impugned charge-sheets would be a futile exercise. Hence, all the writ petitions succeed. The impugned charge-sheets and show cause notices are quashed and set aside. Rule is made absolute. 11. In view of setting aside the charge-sheets, the respondent authority shall pass a consequential order in accordance with law. Hence, all the writ petitions succeed. The impugned charge-sheets and show cause notices are quashed and set aside. Rule is made absolute. 11. In view of setting aside the charge-sheets, the respondent authority shall pass a consequential order in accordance with law. The same shall be passed within a period of two months from the date of receipt of the order of this Court. Direct service is permitted.