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2023 DIGILAW 712 (JHR)

Subodh Thakur v. State of Jharkhand

2023-05-17

RAJESH SHANKAR

body2023
JUDGMENT : 1. The present writ petition has been filed for quashing the order as contained in memo no.1749(ii) dated 22.09.2014 passed by the Deputy Commissioner, Ranchi- the respondent no.2, whereby the petitioner has been awarded major punishment of reduction of his basic pay to the initial stage of time scale of pay currently held by him. 2. Learned counsel for the petitioner submits that the petitioner was appointed as Revenue Karamchari on 18.8.1978 and he superannuated from service on 04.01.2016. A criminal case was lodged against the petitioner being Vigilance Case No.25 of 2000 and he was sent to judicial custody on 15.07.2006. Consequently, he was put under suspension vide order as contained in memo no.1447(ii) dated 30.12.2006 and the memo of charge was issued to him containing following charges:- (i) When the petitioner was posted in Town Anchal, Ranchi he opened jamabandi for the land appertaining to Khata No. 360, Plot No.1260, area 10.50 acres, Mauza-Hundru, P.S. no.224, which was Gair Majarua land to obtain personal gain and loss to the Government. (ii) The petitioner had issued the revenue receipt of Mauza-Hundru, P.S No. 224, Khata No. 360, Plot No. 1260 area 10.50 acres which was Gair Majurwa land. (iii) The petitioner while recommending for opening of jamabandi of Mutation Case Nos. 156, 157 & 158 of 1994-95 and Mutation Case Nos. 15/1995-96, 214/1995-96 & 427/1995-96 had not reported to the Circle Officer, Town Anchal, Ranchi that Jamabandi Nos.360/291 and 360/319 were opened without any order of the competent authority. (iv) Entries made in page nos.192, 193 and 194 of Volume-VII of Register-II while opening of Jamabandi concerning Gair Majarua land appertaining to Khata no.360, plot no.1260, area 10.50 acres, Mouja Hundru, P.S. no.224, it was shown by the petitioner that the details of Khata no.360 was taken from page no.320 of Volume- I of Register-II, however, there was no entry in the record relating to Khata no.360 at page no.320, Volume-I and, thus, those entries were made by the petitioner without verifying Register-II so as to make personal gain and causing loss to the Government. (v) The petitioner had not reported regarding encroachment over Gair Majarua Malik land which was in violation of rule 2(I) of the instruction booklet issued by the Revenue Department for the Karamchari. 3. (v) The petitioner had not reported regarding encroachment over Gair Majarua Malik land which was in violation of rule 2(I) of the instruction booklet issued by the Revenue Department for the Karamchari. 3. It is further submitted that the petitioner had filed a detailed reply against the allegation levelled in the memo of charge. During continuation of departmental proceeding, the inquiry officer requested the respondent no.4 to inquire the allegations made against the petitioner and to submit a report, whereupon the respondent no.4 (the then Circle Officer, Town Anchal, Ranchi) submitted report in which the petitioner was fully exonerated from the charges levelled against him. On 7.1.2013 the respondent no.4 again recommended the inquiry officer to exonerate the petitioner from the charges levelled against him as he was not at fault. However, the inquiry officer submitted the enquiry report making recommendation for imposing major penalty against him. Thereafter, second show cause notice was issued to the petitioner on 19.08.2013 which was replied by him denying all the charges, however, the impugned order has been passed against the petitioner. 4. It is further submitted that Jamabandi of the said land was already opened prior to joining of the petitioner on the basis of recommendation made by one Sarvanand Sahu, the erstwhile Revenue Karamchari of the Town Circle, Ranchi and a criminal case being Kotwali P.S. Case No. 246/1997 was also instituted by the concerned department against said Sarvanand Sahu on 21.05.1997, in which the petitioner was one of the prosecution witnesses and he was examined on 30.11.2005. 5. It is also submitted that a departmental proceeding was also initiated against said Sarvanand Sahu and on submission of show cause reply by him, the respondent no.2 passed the final order as contained in memo No. 617(ii) dated 16.8.2005 imposing minor punishment upon him and thereafter he was allowed to join the duty, despite the fact that he was the main person involved in opening of Jamabandi with respect to the land in question. 6. Learned counsel for the petitioner further submits that the change of inquiry officer in course of continuation of departmental proceeding can be done only when it emerges that he cannot continue to work as inquiry officer, however, the respondent no.2 changed the inquiry officer number of times without any cogent reason. 6. Learned counsel for the petitioner further submits that the change of inquiry officer in course of continuation of departmental proceeding can be done only when it emerges that he cannot continue to work as inquiry officer, however, the respondent no.2 changed the inquiry officer number of times without any cogent reason. Moreover, the respondent no.2 did not provide inquiry report along with the second show cause notice to the petitioner and thus the impugned order of punishment has been passed in violation of principles of natural justice as also against the settled proposition of law. 7. It is also submitted that the Inquiry Officer recommended for the major punishment against the petitioner which is against the well settled law as the duty of the inquiry officer is only to specify as to whether the charges are proved or not. In any situation, he cannot recommend for punishment that too of what nature. In fact, the Jamabandi of the said land was running since long and the petitioner did not open any Jamabandi, rather he only recommended in six mutation cases on the basis of confirming the possession during his posting from 1994 to 2000. 8. It is further submitted that the petitioner made inquiry as per the direction of higher/competent authority and submitted inquiry report to the Circle Inspector, Town Circle, Ranchi, who, thereafter, sent the file to the respondent no.4 and the order was finally passed and, accordingly, rent receipt was issued. The petitioner was not the competent authority under law to pass any order for creating any Jamabandi. If the Jamabandi is said to be opened wrongly or illegally, it was the duty of the concerned Circle Officer to inquire into the matter and make recommendation for cancellation of the same to the concerned Sub Divisional Officer, but the same was not done. 9. It is also submitted that prior to the joining of the petitioner, Jamabandi in respect of the land appertaining to Khata No.360/291 and 360/319 was already ordered to be opened in the name of 90 persons and the Revenue Karamchari, namely, Francis Lakra recommended to mutate the said land in the name of Jai Bhawani Grih Nirman Samiti vide Mutation Case nos. 1631/1989-90, 1669/1989- 90, 1970/1989-90, 2288/1989-90, 2291/1989-90 and 2405/1989-90. 1631/1989-90, 1669/1989- 90, 1970/1989-90, 2288/1989-90, 2291/1989-90 and 2405/1989-90. Moreover, the Revenue Karamchari, namely, Sarvanand Sahu had subtracted approximately 45 decimals of land from Register-II relating to Khata No.360/291 and after joining of the petitioner in Town Circle, Ranchi on 26.06.1994, he continued with the said subtraction as was done by his predecessors. Learned counsel for the petitioner further submits that there is no violation of rule-2(I) of the instruction booklet issued by the Revenue Department by the petitioner since said Jamabandis were cancelled by the concerned Circle Officer vide Miscellaneous Case No.5/1996-97 during the tenure of the petitioner. Moreover, it is a settled law that once the Jamabandi of land in question which is said to be Gair Majarua Malik Land, is created in Register-II, it cannot be said to be a government land, rather it is treated to be a raiyati land. 10. On the contrary, learned counsel for the respondents submits that the departmental proceeding initiated against the petitioner was based on the information communicated vide letter No.1444 dated 14.07.2000 by the Revenue and Land Reforms Department in which it was mentioned that the petitioner had illegally created Jamabandi in respect of the 'Gair Mazrua' land situated at Village-Hundru, P.S. No.224, Khata No.360, Plot No.1260, Total Area 10.50 acres for his personal gain giving undue benefit to other persons and thereby causing loss to the Government. 11. The said departmental proceeding was initiated against the petitioner on the charges of illegally creating Jamabandi in respect of the said 'Gair Mazrua' land and for issuing rent receipts of the same for his personal gain. Ms. Sangeeta Lal, the then Executive Magistrate, was appointed as Enquiry Officer-cum-Conducting Officer and on her transfer, Mr. Raj Kumar, Executive Magistrate was appointed as Enquiry Officer-cum-Conducting Officer. Subsequently, when Mr. Raj Kumar was transferred, Mr. Ravi Shankar Verma, Additional Collector, Naxal and Land Reforms, Ranchi was appointed as Enquiry Officer- cum-Conducting Officer in the said departmental proceeding who submitted final enquiry report vide memo no.1036(ii) dated 05.08.2013 after providing the petitioner due opportunity to file reply to the charges levelled against him. 12. It is further submitted that all the charges framed against the petitioner were found proved and as such the recommendation for awarding major punishment was made. 12. It is further submitted that all the charges framed against the petitioner were found proved and as such the recommendation for awarding major punishment was made. The petitioner was then served with a second show cause notice which was replied by him raising almost same grounds as were raised earlier before the enquiry officer which was not of any significance. Finally, the respondent no.2 imposed major punishment of reduction of his basic pay to the initial stage of his current time pay scale. 13. Heard the learned counsel for the parties and perused the materials placed on record. The petitioner is aggrieved with the order passed by the respondent no.2 whereby major punishment was imposed upon him by reducing his basic pay to the initial stage of time pay scale currently held by him. It was further ordered that the petitioner would not be entitled for any payment for the suspension period except the subsistence allowance paid to him during the said period. 14. The main contention of the learned counsel for the petitioner is that Sarvanand Sahu, the erstwhile Revenue Karamchari of the said circle, who had opened Jamabandi nos.360/291 and 360/319 of the said land and was the main person involved in the alleged irregularity, was imposed minor penalty whereas the petitioner who had only recommended for mutation of total six records relating to the land of Jamabandi no.360/291 on the basis of possession and issued rent receipts of the same after mutation was done by the respondent no.4 for which the concerned Circle Inspector had also made recommendation, was awarded major penalty which is an example of discrimination and non-application of mind by the respondent no.2. 15. The contention of the respondents is that the petitioner had issued rent receipt of the said land without verifying the fact that the said land was “Gair Majurwa” and there was no order of the competent authority for opening the jamabandi of the said land and thus the petitioner caused revenue loss to the Government for his personal gain as he also violated the provision of rule 2(I) of the instruction booklet issued by the Revenue Department to be followed by all revenue clerks. 16. 16. The record of the case reveals that the said land was recorded as “Gair Majarua Malik” and Jamabandi of the said land was initially opened in the name of Jai Bhawani Grih Nirman Samittee on the basis of the recommendation of the Revenue Karamchari, namely, Francis Lakra. Subsequently, Jamabandi of the said land was opened in the name of Bharat Sao and Chandan Sao on the recommendation of the Revenue Karamchari, namely, Sarvanand Sahu. The petitioner having posted in Town Circle, Ranchi on 26.06.1994 issued rent receipts for the land, Jamabandi of which was already opened on recommendation of his predecessors. The petitioner also made recommendation for opening the Jamabandi in Mutation Case Nos.15/1995-96, 214/1995-96, 427(iii)R-27/1995-96 and Mutation Case Nso.156, 157 & 158 of 1994- 95 and also issued the rent receipts for the same. 17. The departmental proceeding as well as criminal proceeding were also initiated against the predecessor of the petitioner namely Sarvanand Sahu who had recommended for opening of jamabandi in the name of Bharat Sao and Chandan Sao. The criminal proceeding against Sarvanand Sahu, however, ended in his acquittal, whereas in the departmental proceeding, minor punishment was imposed against him. 18. The petitioner had averred the said fact in his reply to the memo of charge, however, the conducting officer submitted the inquiry report recommending imposition of major penalty upon him. After issuance of second show cause notice also, the petitioner submitted his reply to the disciplinary authority stating the fact that Sarvanand Sahu was imposed minor punishment, however, in the impugned order the disciplinary authority though recorded the reply of the petitioner, yet did not give any finding on the said claim of the petitioner and merely observed that no information about the subsequent development was provided in the said matter. The disciplinary authority while passing the impugned order in a very mechanical manner observed that the conducting officer had recommended for major punishment and the second show cause of the petitioner was not found satisfactory. The disciplinary authority thus failed to distinguish the case of the petitioner as against the case of his predecessor before imposing major punishment to him. 19. The Hon’ble Supreme Court in the case of Union of India & Others Vs. Dwarka Prasad Tiwari, reported in (2006) 10 SCC 388 has held that the quantum of punishment should not be interfered in a routine manner. 19. The Hon’ble Supreme Court in the case of Union of India & Others Vs. Dwarka Prasad Tiwari, reported in (2006) 10 SCC 388 has held that the quantum of punishment should not be interfered in a routine manner. The court should also not interfere with the administrator's decision unless the same is found illogical or suffers from procedural impropriety or is shocking to the conscience of the court in the sense that it is in defiance of logic or moral standards. It has further been held that only in exceptional case, to shorten litigations, the court/Tribunal may impose appropriate punishment by recording cogent reasons in support thereof. However, in the normal course if the punishment imposed is shockingly disproportionate it would be appropriate to direct the disciplinary authority or the Appellate Authority to reconsider the penalty imposed. 20. Further, in the case of Lucknow Kshetriya Gramin Bank & Another (Now Allahabad, Uttar Pradesh Gramin Bank Vs. Rajendra Singh, reported in (2013) 12 SCC 372 , the Hon’ble Supreme Court has held that the judicial review of the quantum of punishment is available with a very limited scope. It is only when the penalty imposed appears to be shockingly disproportionate to the nature of misconduct that the courts would frown upon. Even in such a case, after setting aside the penalty order, it is to be left to the disciplinary/appellate authority to take a decision afresh and it is not for the court to substitute its decision by prescribing the quantum of punishment. 21. This court finds that the impugned order of major punishment passed by the respondent no.2 is illogical and shocking to its conscience since two persons i.e. the petitioner and Sarvanand Sahu holding the same post were levelled similar charges, but were imposed different punishments without any justifiable reason. 22. Under the aforesaid facts and circumstances, the impugned order dated 22.09.2014 passed by the respondent no.2 is hereby quashed. The respondent no.2 is directed to issue a fresh second show cause notice to the petitioner for minor punishment and to take an appropriate decision afresh after considering the reply of the petitioner. The said exercise shall be completed by the respondent no.2 within two months from the date of receipt/production of a copy of this order. 23. The writ petition is, accordingly, disposed of.