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2023 DIGILAW 1664 (ALL)

Balram Gupta v. State of U. P.

2023-07-12

AJIT KUMAR

body2023
JUDGMENT : 1. Heard Sri Dharmendra Kumar Srivastava, learned counsel for the petitioner and learned Standing Counsel for the State. 2. Petitioner who has been working as a Tehsildar, Tehsil Jalaun, District Jalaun, is aggrieved by some departmental preliminary fact finding report submitted on 03.02.2023 on the complaint made by the Tehsil Bar Association. 3. It is submitted by learned counsel for the petitioner that in view of the bar created under Section 225 of U.P. Revenue Code, 2006, no such enquiry was tenable in the matter of conduct of the petitioner in discharge of official duty. It is further submitted that this internal departmental enquiry may be a preliminary fact finding enquiry which has been forwarded to the Board of Revenue upon which he apprehends that the competent authority may set into motion a regular departmental enquiry. Learned counsel in order to advance his argument has relied upon a number of judgments by the Supreme Court as Zunjarrao Bhikaji Nagarkar versus Union of India and others: 1999 VII Supreme Court Cases 409, (2007) 4 SCC 247 :Ramesh Chandra Singh versus High Court of Allahabad and another and recent judgment by a division Bench of this Court passed in Special Appeal Defective No.40 of 2023, Anjali Chaurasia versus State of U.P. and others. 4. Per contra, it is argued by learned Standing Counsel that this is not the stage to interfere in the matter as the preliminary fact finding report has yet not been taken into consideration by the competent authority to set into motion any regular enquiry. It is submitted that mere apprehension cannot be a ground to move to this Court invoking its extra ordinary jurisdiction under Article 226 of the Constitution of India. Learned Standing Counsel further submits that the provisions as contained under Section 225 of U.P. Revenue Code, 2006 may also not be attracted at this stage. He argued that writ petition is premature. 5. Having heard learned counsel for the parties, having perused the record and even going through the report which has been impugned here in this petition, I find that on the basis of certain complaints made against the petitioner, the competent authority in the Revenue Department held some preliminary fact finding enquiry in which a report was submitted holding the petitioner, prima facie, guilty of the allegations made in the complaint. 6. 6. The question as to whether this preliminary fact finding enquiry report at this stage can be gone into on the ground that the allegations made were bald allegations and had no basis and that there was no evidence available, in view of the fact that the allegations were regarding official discharge of duty by the petitioner in the capacity of Tehsildar of the tehsil concerned in view of the provisions as contained under Section 225 of U.P. Revenue Code, 2006. 7. I proceed to first examine the provisions as contained under Sections 225 of the U.P. Revenue Code, 2006. The provisions for better appreciation as contained under Section 225 of the U.P. Revenue Code are reproduced hereunder:- "(1) No officer or servant of the State Government shall be liable in any civil or criminal proceeding in respect of any act done or purporting to be done under this Code or any rules made thereunder, if the act was done in good faith and in the course of execution of the duties or the discharge of functions imposed by or under this Code. (2) No suit or other proceeding shall lie against the State Government for any damage caused or likely to be caused or any injury suffered or likely to be suffered by virtue of any provisions of this Code or by anything in good faith done or intended to be in pursuance of the provisions of this Code or any rules made thereunder." 8. Upon a bare reading of the aforesaid provision, it is very much clear that an officer in discharge of his administrative and quasi judicial function has been protected from any criminal or civil proceedings being drawn in respect of any act done by him. In other words as statute provide, if in purported exercise of power under the Act, an act has been in good faith and in the course of execution or discharge of functions as may be assigned to him/her under the Act, no civil or criminal liability can be fastened upon such officer. 9. This above stage, in my considered view would come, if the petitioner is visited with a chargesheet and an enquiry as such, is set into motion. 9. This above stage, in my considered view would come, if the petitioner is visited with a chargesheet and an enquiry as such, is set into motion. It is at that stage it may remain open for the petitioner to question a disciplinary proceeding drawn if in respect of any of his act in discharge of duty in good faith while exercising quasi judicial power. 10. Looking to the facts, I find that there were some complaints made by the Revenue Bar Association which led to the department concerned to hold some preliminary enquiry. A preliminary enquiry report unless and until forms basis of a regular employee and such proceeding which is set into motion, such in house enquiry cannot be questioned. It will be only an internal departmental communication and thus there is no occasion for this Court to judicially review such internal communication. 11. In my above view, I find support in the judgment cited by learned counsel for the petitioner himself. In the case of Zunjarrao Bhikaji Nagarkar (Supra), Supreme Court proceeded to hold that negligence in exercise of quasi judicial power in order to constitute misconduct should be a mere carelessness for inadvertence but not a culpable negligence and that in order to appreciate it before the regular enquiry is set into motion, the authority must give consideration to the documents that have been lead in evidence. Vide Paragraph 42 and 43, the Court held thus: "42. Initiation of disciplinary proceedings against an officer cannot take place on an information which is vague or indefinite. Suspicion has no role to play in such matter. There must exist reasonable basis for the disciplinary authority to proceed against the delinquent officer. Merely because penalty was not imposed and the Board in the exercise of its power directed filing of appeal against that order in the Appellate Tribunal could not be enough to proceed against the appellant. There is no other instance to show that in similar case the appellant invariably imposed penalty. 43. If every error of law were to constitute a charge of misconduct, it would impinge upon the independent functioning of quasi judicial officers like the appellant. There is no other instance to show that in similar case the appellant invariably imposed penalty. 43. If every error of law were to constitute a charge of misconduct, it would impinge upon the independent functioning of quasi judicial officers like the appellant. Since in sum and substance misconduct is sought to be inferred by the appellant having committed an error of law, the charge-sheet on the face of it does not proceed on any legal premise rendering it liable to be quashed. In other words, to maintain any charge-sheet against a quasi judicial authority something more has to be alleged than a mere mistake of law, e.g., in the nature of some extraneous consideration influencing the quasi judicial order. Since nothing of the sort is alleged herein the impugned charge-sheet is rendered illegal. The charge-sheet, if sustained, will thus impinge upon the confidence and independent functioning of a quasi judicial authority. The entire system of administrative adjudication whereunder quasi judicial powers are conferred on administrative authorities, would fall into disrepute if officers performing such functions are inhibited in performing their functions without fear or favour because of the constant threat of disciplinary proceedings." 12. Having held so, the Court finally observed vide paragraph 44 that looking to the entire aspect of the matter, it was not a case for initiation of any disciplinary proceeding against that appellant before the Supreme Court, as the charge to his conduct was held to be not dropped. 13. There can be no quarrel about the proposition laid down by the Supreme Court as above. The only issue is when this Court will intervene. Any exercise of power under Article 226 of the Constitution of India whether it is a case of issuance of writ of certiorari or writ of mandamus, the issue will be whether a particular document, which is sought to be quashed or whether the authority was under an obligation to discharge duty has really discharged it or not, as the case may be, so as to warrant interference by this Court. 14. In the present case, the preliminary enquiry or to hold it as internal departmental communication has yet not found basis as per own admission of the petitioner to hold a regular enquiry till date. In the circumstances, therefore, the case of the petitioner is distinguishable from that one decided by Supreme Court. 15. 14. In the present case, the preliminary enquiry or to hold it as internal departmental communication has yet not found basis as per own admission of the petitioner to hold a regular enquiry till date. In the circumstances, therefore, the case of the petitioner is distinguishable from that one decided by Supreme Court. 15. Coming to the second judgment which relates to holding of an enquiry for any judicial order, as I have already held above that in case of petitioner herein, no regular enquiry has yet been set into motion, so the occasion does not arise to examine the enquiry at this stage. The action in discharge of function by the competent authority has yet not happened so as to bind it under any obligation that before holding an enquiry it has to form a view that framing of the charges are really based upon cogent and tenable evidence, may be prima facie, so as to render the act amounting to such negligence that can be termed as culpable negligence. In the case of Ramesh Chandra Singh (Supra) disciplinary enquiry was set into motion qua a judicial order passed by the officer but that stage has yet not come here in this case. This judgment is also distinguishable on facts. 16. In the case of Anjali Chaurasia (Supra) the issue was as to whether there being no affidavit in respect of the complaint made against judicial officer in discharge of his judicial function, any disciplinary proceedings could have been set into motion or not. In that case, admittedly, the judicial officer Anjali Chaurasia was under suspension and the writ court had directed for an enquiry to be concluded. Upon an intra court appeal being preferred, the Court took the view that merely on the basis of a complaint without being supported by an affidavit, no disciplinary enquiry could have been initiated, as the complaint was regarding judicial discharge of function in which some order had been passed. The disciplinary proceeding, it was held, could not have been initiated. 17. Relying upon the case of Zunjarrao Bhikaji Nagarkar (Supra), as discussed above, vide paragraph 26 and 27 the Division Bench held thus: "26. The disciplinary proceeding, it was held, could not have been initiated. 17. Relying upon the case of Zunjarrao Bhikaji Nagarkar (Supra), as discussed above, vide paragraph 26 and 27 the Division Bench held thus: "26. It will be thus seen that once there was a case of imposition of penalty only the amount of penalty to be levied was left to the discretion of the assessing authority on the facts of the case. 27. In Government of Tamil Nadu vs. K.N. Ramamurthy ( 1997 (7) SCC 101 ) it has been held that failure to exercise quasi judicial power properly amounts to misconduct. In this case, the respondent working as Deputy Commercial Tax Officer was served with the following charges: "(i) That he failed to analyse the facts involved in each and every case referred to above; (ii) that he failed to check the accounts deeply and thoroughly while making final assessment; (iii) that he failed to subject the above turnover to tax originally; and (iv) that he failed to safeguard government revenue to a huge extent of Rs.44,850." 18. I find this case also to be one where an order was already passed placing the officer under suspension and the departmental disciplinary enquiry was also set into motion which was directed by the writ court initially to be concluded in accordance with law, without granting any indulgence. 19. Since, in the present case no disciplinary enquiry has been set into motion, nor the petitioner has been placed under suspension, the question of interference in the preliminary fact finding enquiry by this Court at this stage does not arise. 20. The obligation of an authority competent in the matter to hold an enquiry on flimsy or unavailable grounds would be called in question when the regular enquiry itself has been set into motion and has been challenged before this Court. It is then in that case writ of mandamus would be maintainable. The writ of certiorari would also be maintainable where some disciplinary proceedings has been drawn which would have adverse effect upon the civil rights of the petitioner, if brought to its logical end. That report of the disciplinary proceedings would be questionable and judicially review able at that stage only. 21. In view of the above, I decline to interfere in the matter at this stage. That report of the disciplinary proceedings would be questionable and judicially review able at that stage only. 21. In view of the above, I decline to interfere in the matter at this stage. It will, however, remain open for the petitioner to question proceedings in the event regular enquiry is set into motion on the basis of such preliminary report. 22. The question as to whether the complaint could have been entertained without it being supported by an affidavit, in violation of the provisions as contained under the Government Order dated 09.05.1997, would also remain open. 23. This petition is accordingly, dismissed at this stage subject to aforesaid liberty.