Punjab-Haryana High Court
Subhash Chander Goyal, Ias vs State Of Haryana & Anr on 23 January, 2018
Author: A.B. Chaudhari
Bench: A.B. Chaudhari
CRM-M-34579 of 2013 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CRM-M-34579 of 2013
Date of decision: January 23, 2018
Subhash Chander Goyal
......Petitioner
Versus
State of Haryana and another
.....Respondents
CORAM: HON'BLE MR. JUSTICE A.B. CHAUDHARI
Present: Dr. Anmol Rattan Sidhu, Senior Advocate with
Mr. Pratham Sethi, Advocate and
Mr. Subhash Godara, Advocate for the petitioner.
Mr. Deepak Sabharwal, Addl. AG Haryana
for the respondents.
****
A.B. CHAUDHARI, J
By the present petition under Section 482 of Code of
Criminal Procedure, 1973 (for short 'Cr. P.C.'), the petitioner has
sought quashing of FIR No.198 dated 09.06.2011, under Sections 419
420, 467, 468, 471, 120-B of Indian Penal Code, 1860, registered at
Police Station Tauru, District Mewat.
FACTS
Respondent No.2-Deputy Commissioner, Mewat at Nuh
had lodged FIR in question. It was stated in the complaint that this
Court had, in CWP No.2163 of 2011 titled as Maherdin and others
versus Smt. Medha and others, had quashed order dated 10.11.2008
passed by the present petitioner acting as Director, Consolidation,
Haryana under Section 42 of the East Punjab Holdings (Consolidation
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and Prevention of Fragmentation) Act, 1948 (for short 'Act of 1948')
and also observed that the order passed by the petitioner was clearly
arbitrary, unreasonable and for reasons dehors the law and is fanciful,
injudicious and irresponsible and Court also observed that the fraud
was played on the Gram Panchayat as there was no resolution passed
by the Gram Panchayat authorising Sarpanch or Panch to give
statement on behalf of the Gram Panchayat for allowing the exchange
of land on the application of Smt. Medha and others. The Gram
Panchayat lost the land. The allottee Smt. Medha is niece of the
officer, i.e. the present petitioner and the petitioner had not taken into
consideration the interest of the residence of the villagers. The order
was without jurisdiction and the Court had directed the Deputy
Commissioner, Mewat at Nuh to initiate criminal proceedings and it is
on that basis, the FIR in question was lodged. The judgment of this
High Court in CWP No.2163 of 2011 has attained finality.
The petitioner-Subhash Chander Goyal was served with a
charge-sheet under the memorandum dated 15.11.2011 and inquiry
officer was appointed vide order dated 22.02.2015 to conduct the
domestic enquiry on the charge-sheet made against the petitioner in
respect of the same subject matter, namely the FIR that was lodged by
respondent No.2 pursuant to the directions issued by this High Court
in CWP No.2163 of 2011. The petitioner felt aggrieved by the said
charge-sheet and the memorandum and appointment of inquiry officer
and filed Original Application No.060/00194/2016 before the Central
Administrative Tribunal, Chandigarh Bench, Chandigarh (for short
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'Tribunal'). The Tribunal decided the said Original Application and
consequently, quashed the charge-sheet under the memorandum dated
15.11.2011 as well as order dated 22.02.2015 appointing inquiry
officer. The said order dated 07.10.2016 passed by the Tribunal has
attained finality. The present petition for quashing the FIR has been
filed, inter alia, on the ground that there is already a decision of the
competent Tribunal in the same subject mater.
ARGUMENTS
In support of the petition, learned Senior counsel for the
petitioner has submitted that the petitioner in his personal capacity was
not a party to the petition, namely CWP No.2163 of 2011, decided on
21.04.2011 by the learned Single Judge of this Court and therefore,
any of the adverse observations against the present petitioner even in
relation to the direction to initiate criminal proceedings would be in
breach of principles of natural justice as admittedly, the petitioner was
never heard when the said judgment was made and the direction was
issued in Para 27 of the said judgment. Learned Senior counsel then
submitted that, though, the said judgment dated 21.04.2011 has
become final between the parties to the said petition including Smt.
Medha, the same would not affect the interest of the present petitioner.
He then submitted that at any rate, the petitioner had the legal authority
to act as Director, Consolidation, Haryana and exercising power of
State Government under Section 42 of the Act of 1948 vide gazette
notification dated 22.04.1983 (Annexure P-2) delegating power to the
Director. The petitioner was thus, within his authority to pass the order
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that was ultimately quashed by the High Court in the aforesaid CWP,
but then the order passed by him was certainly within jurisdiction and
could not be condemned as sans jurisdiction. Learned Senior counsel
then contended that there is no iota of evidence anywhere even till this
date and even in response to the present petition that Smt. Medha
Gupta the allottee is the niece of the petitioner as claimed and the said
fact was denied. Even otherwise, she has returned the land and her
claim. The findings that Medha Gupta was niece of the petitioner is
without any evidence and therefore, merely, for that reason, the
petitioner has been put to embarrassment. Learned Senior counsel for
the petitioner then submitted that the petitioner was entitled to
protection under Section 2 of the Judges Protection Act, 1985 (for
short 'Act') as he discharged his function as a judge within the meaning
of provisions of the said Act and therefore, the petitioner ought to be
protected as he did not act without jurisdiction and had the authority to
pass the order. At any rate, according to him, passing of a judicial or
quasi judicial order cannot lead to any criminal action against the
quasi-judicial authority passing the order and the law is settled
accordingly. Learned Senior counsel for the petitioner then invited my
attention to the judgment made by the Tribunal in the same subject
matter as the petitioner was proceeded in a departmental inquiry that
was ordered to be held against him. The petitioner had challenged the
charge-sheet itself so also the appointment of inquiry officer before the
Tribunal and the Tribunal had recorded categorical findings, which
have attained finality. Learned Senior counsel has cited some
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judgments.
Per contra, learned counsel for the respondents has
vehemently opposed the petition. He submitted that the judgment
dated 21.04.2011 made by the learned Single Judge of this Court in
CWP No.2163 of 2011 was put to challenge in the higher Courts, but
without any success. Therefore, the said judgment dated 21.04.2011
has become final and conclusive. Consequently, the direction to
initiate criminal proceedings has also been confirmed by the higher
Courts. Learned counsel then submitted that there is no bar in lodging
the FIR when the criminal offences are disclosed that too under the
direction made by this High Court in Para 27 of the judgment dated
21.04.2011. According to him, after all, the law is settled that merely
because departmental inquiry was decided in a particular manner, the
criminal offences would not get washed away because of the
exoneration in the departmental inquiry and therefore, the petitioner
has no reason to challenge the FIR in question. Learned counsel has
invited my attention to the said judgment dated 21.04.2011 of the
learned Single judge of this Court in CWP No.2163 of 2011. I have
gone through the same with his assistance. He contended that the
petitioner had deliberately and with a criminal intention and with a
view to favour his niece Smt. Medha Gupta had passed the order
malafidely. Learned State counsel submitted that there is no reason
why this Court should invoke the jurisdiction for quashing the FIR in
question, which was ordered to be lodged by this Court by issuing
directions in Para 27 of the judgment. He cited some judgments.
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Learned counsel for the respondents, therefore, prayed for dismissal of
the present petition.
CONSIDERATION
Upon hearing learned counsel for the rival parties at length
and having gone through the entire record, this Court finds the
following admitted facts:-
(i) The petitioner-Subhash Chander Goyal was not a party to
CWP No.2163 of 2011, decided on 21.04.2011 by the
learned Single Judge of this Court;
(ii) The petitioner did have power under Section 42 of the Act
of 1948 by virtue of notification dated 22.04.1983
(Annexure P-2) to act as the Director;
(iii) The petitioner was charged by charge-sheet vide
memorandum dated 15.11.2011 and the inquiry officer was
appointed on 22.02.2015;
(iv) The petitioner had put to challenge the said charge-sheet in
the departmental inquiry as well as the appointment of
inquiry officer by filing Original Application
No.060/00194/2016 before the Central Administrative
Tribunal;
(v) The said Original Application was decided in favour of the
petitioner vide judgment dated 07.10.2016 by recording
specific findings;
(vi) The said judgment dated 07.10.2016 of the Tribunal has
become final and conclusive and was not put to challenge
thereafter by anybody including the respondents.
The judgment passed by the Tribunal is the judgment
having full sanctity in law and would operate with full force because
the subject matter of the FIR and the said judgment of the Tribunal is
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the same without even any slightest difference.
Upon perusal of the said judgment of the Tribunal, this
Court finds that the following findings recorded by the Tribunal in
Paras 14, 15 and 16 in its judgment dated 07.10.2016, will have to be
reproduced in the present judgment:-
"14. ....... The applicant has placed on record various
orders (Annexure A-4 collectively) passed by other officers
as Director, Consolidation/Consolidation officers etc. The
said orders are prior as well as subsequent to the order
dated 10.11.2008 passed by the applicant. These orders
reveal that consistently power under Section 42 of the Act
was being exercised by Director, Consolidation by passing
similar orders as order dated 10.11.2008 passed by the
applicant. Consequently, if the applicant also followed the
said precedents and passed similar order, disciplinary
action cannot be initiated against him, notwithstanding
that the order passed by the applicant has been set aside
the Hon'ble High Court. In this context, it is significant to
notice that even office of the Director, Consolidation on
scrutiny of the application filed by Medha and Bimla did
not raise any objection to the maintainability of the said
applicant under Section 42 of the Act although Assistant
District Attorney/Law Officer was also posted in the office.
Consolidation officer also appeared during the hearing
before the applicant and did not raise any objection to the
maintainability of the application under Section 42 of the
Consolidation Act. The applicant remained posted as
Director, Consolidation for three months only.
Consequently he had to depend on the precedents of the
predecessors and also on office briefing. Besides, much
more significantly, mere error of law in passing any order,
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without anything more, is no ground to initiate
disciplinary action against judicial/quasi judicial
authority passing the order. In the instant case, the whole
basis of the impugned charge-sheet is order dated
10.11.2008 passed by the applicant as quasi judicial
authority. Consequently, even if he was not competent to
entertain application under Section 42 of the
Consolidation Act filed by Medha and Bimla and if the
said matter did not fall within his jurisdiction, it was only
an error or law on the part of the applicant to pass order
on the said application. Merely on the basis of the said
error of law, the applicant cannot be charge-sheeted for
disciplinary action. In this context, it is significant to
notice that in the charge-sheet as extracted hereinabove,
there is no allegation of personal gain, ill motive,
extraneous consideration, favoritism, malafide etc. against
the applicant. The only allegation is regarding the error of
law in entertaining the application under Section 42 of the
Act. Hon'ble Supreme Court in 1999 (7) SCC 409
Zunjarrao Bhikaji Nagarkar Vs. Union of India held that
the authority passing the order in exercise of its quasi
judicial function is immune from disciplinary proceedings
so far its action is in good faith. In the instant case, it is
not even alleged in the charge-sheet that applicant did not
act in good faith nor there is any allegation of bias,
malafide, favoritism etc. against the applicant. It may be
added that disciplinary action can be initiated against a
quasi judicial authority if the order passed by it reflects on
his reputation for integrity or good faith etc. or shows
recklessness or misconduct in the discharge of his duty.
Similarly, in 1992(3) SCC 124 Union of India Vs. A.N.
Saxena, the Hon'ble Supreme Court held that disciplinary
proceedings regarding conduct of an officer discharging
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judicial/quasi judicial function should be taken only after
great caution and close scrutiny of his actions. Initiation
of disciplinary proceedings regarding his judicial or quasi
judicial function is likely to shake confidence of public. If
such matters are taken lightly, it undermines his
independence. However, at the same time, it cannot be
said that such action cannot be taken at all. Where the
action of the officer indicates his desire to oblige himself
or unduly favour to any part or improper motive,
disciplinary action should be taken. In the instant case,
there is not even an allegation against the applicant in the
impugned charge-sheet regarding any undue
favour/illegal motive etc. of the applicant. In 2005(2)
P.L.R. 225 Smt. Gayatri Jain Vs State of Punjab, Hon'ble
High Court even quashed FIR lodged on the basis of order
passed by quasi-judicial authority. The said case also
related to order passed by Additional Director,
Consolidation in exercise of power under Section 42 of the
Consolidation Act. Similarly, in 2013 (1) Law Herald 154
Vivek Padam Singh Vs. State of Haryana, Hon'ble High
Court quashed FIR lodged on the basis of orders passed
by Assistant Collector Ist Grade exercising the power of
Collector as quasi judicial authority. No judgment to the
contrary has been cited. From the aforesaid judgments, it
is evident that disciplinary action cannot be initiated
against quasi judicial authority merely on the basis of
error of law in passing of any order, unless there is
something more to it e.g. favoritism, malafide, illegal
motive etc. In the instant case, there is not even an
allegation in the impugned charge-sheet against the
applicant regarding favoritism, malafide etc. The only
allegation is that he was not competent to pass order
dated 10.11.2008 while exercising power under Section 42
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of the Consolidation Act. However, mere error of law on
the part of the applicant in entertaining the application
under Section 42 of the Consolidation Act and passing
order dated 10.11.2008 cannot be made basis of initiating
disciplinary action against him as the said order was
passed by him as quasi-judicial authority and except
allegation of error of law on the part of the applicant,
there is no allegation of bad faith, malafide, illegal motive,
corruption etc. On the other hand, good faith of the
applicant in passing the said order is reflected by the fact
that similar orders have been passed by other officers
exercising similar powers prior as well as subsequent to
the order passed by the applicant. Besides it, the office
including law officer and Consolidation officer present
during the hearing also did not point out that the said
application under Section 42 of the Consolidation Act was
not maintainable before the applicant as Director,
Consolidation. The applicant has even issued notice to
Gram Panchayat and pursuant thereto, Sarpanch and
Panch of the Gram Panchayat appeared before the
applicant and made statement for consolidating the land
of both parties i.e. for passing order dated 10.11.2008.
The said order has also proved beneficial to Gram
Panchayat as per un-rebutted averment of the applicant.
15. Plea of learned counsel for the respondents that
charge-sheet has been issued on the basis of adverse
observations against the applicant in judgment dated
21.04.2011 by the Hon'ble High Court cannot be accepted
because the applicant in his individual capacity was not
even party to the Writ Petition in which judgment dated
21.04.2011 was passed by the Hon'ble High Court.
Moreover, as per impugned charge-sheet and statement of
imputations of misconduct, the same are not based on
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judgment of Hon'ble High Court. There is not even a
remote reference to the judgment of Hon'ble High Court
either in statement of imputations of misconduct or in the
Article of charge. Merely because error of law committed
by the applicant in passing order dated 10.11.2008 has
been rectified by the Hon'ble High Court by quashing the
said order vide judgment dated 21.04.2011 is no ground to
initiate disciplinary action against the applicant who
passed the said order as quasi judicial authority.
16. For the reasons aforesaid the instant O.A. is
allowed. Charge-sheet issued to the applicant vide
Memorandum dated 15.11.2011 (Annexure A-1) and order
dated 20.02.2015 (Annexure A-2) thereby appointing
Respondent No.2 as Inquiry Officer are quashed along
with consequent inquiry proceedings."
Perusal of the said judgment of the Tribunal clearly shows
that the Tribunal has recorded categorical findings on facts and in law
which are based on judgments of the Supreme Court that the petitioner
having acted with full authority as quasi judicial authority cannot be
prosecuted in a departmental inquiry. It has also held that even
assuming there was error in law on facts on the part of the petitioner
while passing the quasi judicial order for which he was duly
authorised under law, the question of holding departmental inquiry for
the same would not arise. In so far as the judgment of the learned
Single Judge is concerned, the same has been duly considered by the
Tribunal in Para 15 of the judgment above. Thus, the Tribunal which is
competent judicial Court has categorically dealt with the same subject
matter of the FIR and consequently, quashed the charge-sheet as well
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as order appointing inquiry officer. The said judgment of the Tribunal
having become final cannot be ignored and would be relevant for
quashing the FIR.
I have gone through the decision of the Apex Court cited
by learned State counsel in the case of State through SPE & CBI, AP
versus M. Krishna Mohan and another, 2007 (4) R.C.R. (Crimial)
882, in which Apex Court has held thus, in Para 33:
"33. In a case of this nature where departmental
proceeding was initiated only as against respondent No.2,
the enquiry officer did not have the benefit to consider all
the materials which could be brought on record by the
Department in the light of the investigation made by a
specialized investigating agency, the evidence of experts
and deposition of witnesses to show that forgery of
document has been committed by forging thumb
impression and handwriting, we are of the opinion that
exoneration of respondent No.2 in the departmental
proceedings cannot lead to the conclusion that he was not
guilty of commission of the offences wherefor he was
charged."
In the case of Kamal Kishore Prasad versus State of
Bihar through CBI, 2012 (7) R.C.R. (Criminal) 1168, the learned
Single Judge of Patna High Court has stated thus, in Para 15:-
"15. In view of ratio laid down by the Hon'ble Apex court
in cases noticed above, I find no merit in the submissions
of petitioner that a delinquent exonerated in departmental
proceeding would be ipso facto entitled to acquittal in
criminal prosecution on that basis alone, and the same is
accordingly rejected. Issue no.1 is thus decided against
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petitioner."
In the case of Susanta Kumar Dey and others versus
Union of India and others, 2010 (5) R.C.R. (Criminal) 173, the
Division Bench of Calcutta High Court has also held that exoneration
in departmental proceedings would not ipso facto lead to a judgment
of acquittal in criminal trial.
In the case of State of Bihar versus Dhirendra Prasad
Shrivastava, 2015 (1) R.C.R. (Criminal) 445, the Apex Court in Para
11 has held that the exoneration in the departmental proceedings ipso
facto would not result in quashing of the criminal prosecution.
Learned Senior counsel for the petitioner relied on the
decision of Apex Court in the case of P.S. Rajya versus State of
Bihar, (1996) 9 SCC 1. However, in view of Paragraph 11 of the
judgment of the Apex Court in State of Bihar versus Dhirendra Prasad
Shrivastava's case (supra), the decision in P.S. Rajya's case (supra)
would not be in any help of the petitioner. I quote following from Para
11 of judgment of the Apex Court in State of Bihar versus Dhirendra
Prasad Shrivastava's case (supra):-
"11. The third principal ground on which the High Court
thought it proper to grant relief to the respondents
accused is that in a departmental proceeding instituted
against the respondents on the same charges, the
respondents were exonerated. Relying on a decision of this
Court in P.S. Rajya v. State of Bihar, [1996(3) R.C.R.
(Criminal) 261: (1996) 9 SCC 1], the High Court
construed the ratio of the aforesaid decision to mean that
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in a situation where a departmental proceeding against an
accused is launched and the accused is exonerated therein,
the criminal proceeding on the same charges must
necessarily fail and, therefore, should be interdicted.
While relying on P.S. Rajya's case supra, the High Court
failed to notice a subsequent decision of this Court in
State v. M. Krishna Mohan, [ 2007(4) R.C.R. (Criminal)
882 : 2007(6) Recent Apex Judgments (R.A.J.) 96 :
(2007) 14 SCC 667], where this Court had taken the view
that exoneration in a departmental proceeding, ipso facto,
would not lead to the acquittal of the accused in the
criminal trial. Even otherwise, in a three judge Bench
decision of this Court in State (NCT of Delhi) v. Ajay
Kumar Tyagi, [2012(4) R.C.R. (Criminal) 297 : 2012(4)
Recent Apex Judgments (R.A.J.) 415 : (2012) 9 SCC
685], it has been explained that the decision in P.S. Rajya
(supra) must be understood to have been rendered in the
facts of the case............"
The decisions cited by the learned counsel for the
respondents lay down the preposition of law that the exoneration in the
departmental inquiry of the same subject matter would not
automatically lead to acquittal in a criminal trial or even quashing of
the criminal proceedings. There can be no quarrel over the said
preposition. However, in the present case, what is significant is that in
the same subject matter and the same facts on the basis of which FIR
in question has been lodged, there is a judgment of a competent
Tribunal with categorical findings that the petitioner did no wrong and
had the authority to make order as quoted above by me in respect of
the same subject matter. Not only that, by quoting the decisions of
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Apex Court in the cases of Zunjarrao Bhikaji Nagarkar vs. UOI
and others (1999) 7 SCC 409 and Union of India vs. A.N. Saxena,
(1992) 3 SCC 124 and Punjab and Haryana High Court's Judgments in
the cases of Gayatri Jain versus State of Punjab, (2005) 2 RCR
(Cri) 535 and Vivek Padam Singh versus State of Haryana and
others, 2008 SCC OnLine P&H 1685, that the quasi-judicial authority
is immune from disciplinary proceedings. The said judgment of the
Tribunal has become final and conclusive as it was not challenged
before the higher Courts. The sanctity attached to a judgment of a
Court (C.A.T.) cannot be compared with the institution of or
exoneration of delinquent in departmental proceedings. Thus, when the
Tribunal has clearly adjudicated about the insulation/protection to the
petitioner in terms of various decisions by the Supreme Court quoted
in the said judgment of the Tribunal, the petitioner having acted as
quasi judicial officer having power under Section 42 of the Act of
1948, cannot be allowed to be prosecuted in the manner that has been
done. Neither the police nor the criminal Court can be allowed to sit
over the findings recorded by the Tribunal as aforesaid in the same
subject matter and adjudicate about the same over and again. There is,
therefore, a marked distinction of exoneration of a person in
departmental inquiry and the judgment of a competent Tribunal which
is headed by a former Judge of the High Court. Allowing the police to
investigate and the criminal Court to adjudicate in such a fact situation
is not at all warranted as it would shake the public confidence. It is
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also significant to note that there is no semblance of even minimal
evidence except a bald statement that Mrs. Medha Gupta is niece of
the petitioner or his relative, nor there is any evidence of mala-fides.
Then the land is also said to have been returned by Mrs. Medha Gupta.
The upshot of the above discussion is that the present
petition must succeed. In the result, I make the following order:-
ORDER
(i) CRM-M-34579 of 2013 is allowed;
(ii) Rule is made absolute in terms of prayer which reads thus:-
"It is, therefore, respectfully prayed that the present petition may kindly be accepted and FIR No.198 dated 09.06.2011 under Sections 409, 420, 467, 468, 471, 120-B IPC registered at Police Station Tauru, District Mewat, may kindly be quashed, in the interest of justice, qua the petitioner."
(A.B. CHAUDHARI) JUDGE January 23, 2018 mahavir Whether speaking/ reasoned: Yes Whether Reportable: Yes 16 of 16 ::: Downloaded on - 04-02-2018 11:24:18 :::