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2022 DIGILAW 48 (JHR)

Manoj Kishore Rukhaiyar v. State of Jharkhad

2022-01-06

S.N.PATHAK

body2022
JUDGMENT : S.N. PATHAK, J. 1. Heard the parties. 2. The present writ petition has been filed for quashing the penalty order dated 05.11.2015 contained in Memo No. 1376 (Annexure-7), whereby the petitioner has been reverted back to lower post i.e. from the post of District Sub-Registrar to the post of Sub-Registrar. 3. Shorn of unnecessary details, the material fact of the present writ is that while the petitioner was posted as District Sub-Registrar. Koderma, charge-sheet, containing as many as eight charges, was served upon the petitioner under Rule 55 of the Jharkhand Civil Services (Classification, Control and Appeal) Rules, 1930 to the effect inter-alia that the petitioner has given approval for registration of land measuring 427 acres, which are not in existence, situated in Domchanchan Circle on the basis of forged and fabricated documents and identity and thereby, he was also put under suspension by issuance of notification dated 3.4.2014. On the basis of said charges, a departmental proceeding was initiated by appointing enquiry officer directing the petitioner to appear before the enquiry officer to put forth his defence. Thereafter, the petitioner submitted his reply to the memo of charge. Enquiry Officer after delving into the matter proved the charges, except charge no. 6 against the petitioner. Second show cause notice was also issued on 10.8.2015 to the petitioner mentioning the proposed punishment, which the petitioner replied on 26.8.2015. The Disciplinary Authority issued the punishment order reverting the petitioner from the post of District Sub-Registrar to the post of Sub-Registrar. It is stated that the said punishment order dated 5.11.2015 has also been approved by the Hon'ble Chief Minister of the State on 20.7.2017. Aggrieved by the penalty order, the petitioner has knocked the door of this Court. 4. Mr. Anil Kumar Sinha, lamed senior counsel appearing for the petitioner assiduously argued that the impugned penalty order is neither sustainable in law nor on facts, inasmuch as, the very charge memo served upon the petitioner is without the approval of the Hon'ble Chief Minister of the State, who is the competent authority to sanction the same. 4. Mr. Anil Kumar Sinha, lamed senior counsel appearing for the petitioner assiduously argued that the impugned penalty order is neither sustainable in law nor on facts, inasmuch as, the very charge memo served upon the petitioner is without the approval of the Hon'ble Chief Minister of the State, who is the competent authority to sanction the same. In support of his contention, learned senior counsel places much reliance upon the decision of the Hon'ble Apex Court in the case of State of Tamil Nadu vs. Pramod Kumar and Another, (2018) 17 SCC 677 , wherein the Hon'ble Apex Court held that approval for initiation of disciplinary proceeding includes approval of charge memo also. Further, learned senior counsel relying upon the decision of this Court in the case of Abhay Kumar vs. State of Jharkhand, 2016 (3) JBCJ 506 (HC), submitted that unless the competent authority approves the charge memo, the departmental proceeding to enquire into the charge framed against the delinquent officer cannot commence. Learned counsel submitted that the impugned punishment is too excessive and disproportionate to the allegations levelled against the petitioner. 5. Learned senior counsel further argued that no misconduct can be fastened for grant of approval for registration of land, which is in existence or non-existence, since the transaction of money shall be borne in between the parties, who is selling land and another who is purchasing the same. Learned counsel further adds that existence of land on paper or physically cannot be ascertained in the registry office. Learned counsel submitted that the registering authority has no power and jurisdiction to enter into and examine the right title of the land being conveyed. Registering authority is bound to register the document duly presented after fulfilling all the legal requirements. 6. Demonstrating the charges levelled against the petitioner, learned senior counsel submitted that the land in question is a Raiyati land, and rent receipts of the said lands were also produced while the purchaser/seller were applying for registration of the land and there is no provision in the Registration Manual to hold an enquiry regarding the authenticity of the documents submitted in the registry office. In absence of any evidence that the petitioner has knowledge regarding the forgery, no misconduct can be fastened upon the petitioner. In absence of any evidence that the petitioner has knowledge regarding the forgery, no misconduct can be fastened upon the petitioner. Learned counsel submitted that to substantiate this charge, the Department has produced a notification of State Government dated 8.12.1952 declaring certain land as protected/reserved forest. In the said notification, there was no mention about the plots, which were to be registered and in absence thereof this notification has no relevance to substantiate the allegation levelled. The second evidence which was given by the Department is the certified copy of cadastral map of the concerned area, which also does not corroborate this charge. The last evidence enclosed with the charge-sheet is the letter of Division Forest Officer dated 23.7.2013. The learned Sr. Counsel submitted that at the time of registration of land, the said letter has not been brought on record, though the NOC from the Forest Department was enclosed with the registration document i.e. the letter dated 1186 dated 4.5.2018, stating that the land which was applied for registration is not the forest land, rather, the said land is a Raiyati land. Considering the aforesaid entire relevant documents as well as the current rent receipt of the concerned land and having the proper stamp fee, the petitioner has ordered for registration of land. There is no irregularity at all committed by the petitioner. Therefore, the order of punishment is fit to be quashed and set aside by this Court. 7. On the other hand, learned counsel appearing for the respondent- State opposes the contention of learned senior counsel for the petitioner and submits that no interference by this Court is required in the impugned order of reversion, inasmuch as, the petitioner was accorded ample opportunity to participate in the enquiry proceedings, and in contemplation of a full-fledged enquiry the penalty has been imposed. Referring to paragraph no. 13 of the counter affidavit, learned counsel submits that the charge memo was duly approved by the competent authority i.e. Hon'ble Minister of the Department. Learned counsel also submits that even non-approval of charge-sheet by the competent authority does not vitiate the proceeding. Learned counsel adds that considering the nature of allegation levelled against the petitioner, he was reverted to the lower post. Learned counsel also submits that even non-approval of charge-sheet by the competent authority does not vitiate the proceeding. Learned counsel adds that considering the nature of allegation levelled against the petitioner, he was reverted to the lower post. In support of this contention, learned counsel placed reliance upon decision of the Hon'ble Apex Court in the case of Ashok Kumar Sahu vs. Union of India and Others, (2006) 6 SCC 704 . 8. Be that as it may, having gone through rival submission of the parties across the bar, this Court is of the considered view that case of the petitioner needs consideration. Charge was never framed by the disciplinary authority i.e. the Deputy Commissioner, which finds strength from paragraph-9 of the Supplementary Counter Affidavit. The gravity of the alleged misconduct is not as such which warrants major punishment of reversion from the post of Deputy Registrar to Sub Registrar. From counter affidavit at Annexure-A, Page-24, it is crystal clear that the order of punishment was approved and not charge. From perusal of Annexure- B, it appears that the enquiry proceeding was approved and not the charge. The issue fell for consideration before the Hon’ble Apex Court in the case of Union of India vs. B.V. Gopinath, (2014) 1 SCC 351 . The Hon’ble Apex Court observed that the provisions seeking approval of the charge memo subsequent to the decision taken by the competent authority without initiation of the departmental proceeding is in consonance with the mandate contained under Article 311(1) and (2) of the Constitution of India. 9. Under the Rule it is requirement of law that charge has to be approved by the competent authority and the same was not done here, which is dehorse the Rule. The same view was reiterated in the case of State of Tamil Nadu vs. Premchand Kumar IPS and Others, (2018) 17 SCC 679. Paragraph-21 of the said Judgment reads as under: “21. It is clear that the approval of the disciplinary authority was taken for initiation of the disciplinary proceedings. It is also clear from the affidavit that no approval was sought from the disciplinary authority at the time when the charge memo was issued to the delinquent officer. Paragraph-21 of the said Judgment reads as under: “21. It is clear that the approval of the disciplinary authority was taken for initiation of the disciplinary proceedings. It is also clear from the affidavit that no approval was sought from the disciplinary authority at the time when the charge memo was issued to the delinquent officer. The submission made on behalf of the appellant is that approval of the disciplinary authority for initiation of disciplinary proceedings was sufficient and there was no need for another approval for issuance of charge memo. The basis for such submission is that initiation of disciplinary proceedings and issuance of charge memo are at the same stage. We are unable to agree with the submission in view of the Judgment of this Court in Union of India vs. B.V. Gopinath, (2014) 1 SCC 351 . In that case the charge memo issued to Mr. Gopinath under Ruler 14(3) of the Central Civil Service (Classification Control and Appeal) Rules, 1965 was quashed by the Central Administrative Tribunal on the ground that the Finance Minister did not approve it. The judgment of the Tribunal was affirmed by the High Court. The Union of India, the appellant therein submitted before this Court that the approval for initiation of the departmental proceedings includes the approval of the charge memo. Such submission was not accepted by this Court on an interpretation of Rule 14(3) which provides that the disciplinary authority shall “draw up or cause to be drawn up” the charge memo. It was held that if any authority other than the disciplinary authority is permitted to draw the charge memo, the same would result in destroying the underlying protection guaranteed under Article 311(2) of the Constitution of India.” 10. This Court in the case of Abhay Kumar vs. State of Jharkhand in L.P.A. No. 627 of 2015 [2016 (3) JBCJ 506] reiterated the same view and quashed the proceeding initiated against the petitioner taking into consideration that the charge-sheet was never approved by the competent authority. The learned counsel for the respondents has relied upon Judgment of the Hon’ble Apex Court passed in the case of Ashok Kumar Sahu vs. Union of India and Others, (2006) 6 SCC 704 . Paragraph-18 of the said Judgment reads as under: “18. The expression “approval” presupposes an existing order. “Acceptance” means communicated acceptance. The learned counsel for the respondents has relied upon Judgment of the Hon’ble Apex Court passed in the case of Ashok Kumar Sahu vs. Union of India and Others, (2006) 6 SCC 704 . Paragraph-18 of the said Judgment reads as under: “18. The expression “approval” presupposes an existing order. “Acceptance” means communicated acceptance. A distinction exists between the expression “approval” and “acceptance.” Whereas in the latter, an application of mind on the part of competent authority is sine qua non, approval of an order only envisages statutory entitlement. Approval of an order is required as directed by the statute. It can be given a retrospective effect. Even valid contract comes into being only after the offer is accepted and communicated. Where services of an employee are dispensed with, the order takes effect from the date when it is communicated and not from the date of passing of the order.” 11. The said contention of the learned counsel for the respondents is not acceptable to this Court since from perusal of counter affidavit and the supplementary counter affidavit (Annexure-A and B) it appears that the punishment as well as the proceeding was approved and not the charge memo. The said Judgment does not come to the rescue of the respondents. However, since counsel for the petitioner has not found any folly with the procedures in the departmental proceeding and has raised the technical flaw of approval of the charge-sheet, this Court is of the view that on that ground the entire proceeding does not vitiate. The liberty is reserved with the respondents-State of Jharkhand to issue a fresh charge-sheet in accordance with law and march ahead with the departmental proceeding and conclude the same within a stipulated period, preferably within a period of twelve weeks from the date of receipt/ production of a copy of this order. 12. As a sequel of the aforesaid rule, guidelines and judicial pronouncement, the impugned order of punishment dated 05.11.2015 issued vide Memo No. 1376 (Annexure-7) is hereby quashed and set aside. However, petitioner cannot be left scot free in view of technical flaw in the departmental proceeding and as such, this Court think it proper to remit the matter back for issuance of fresh charge-sheet and proceed in accordance with law. However, petitioner cannot be left scot free in view of technical flaw in the departmental proceeding and as such, this Court think it proper to remit the matter back for issuance of fresh charge-sheet and proceed in accordance with law. Accordingly, the matter is remitted back to the disciplinary authority for issuance of fresh charge-sheet duly approved by the competent authority and proceed ahead in accordance with law. 13. The writ petition is accordingly allowed.