Madhya Pradesh High Court
Bhupendra Singh Kushwah vs State Of M.P. on 27 October, 2015
1 Writ Petition No.3878/2013
[Bhupendra Singh Kushwah vs. State of M.P. and another]
HIGH COURT OF MADHYA PRADESH
BENCH GWALIOR
SINGLE BENCH:
HON. SHRI JUSTICE ROHIT ARYA
WRIT PETITION NO.3878/2013
.........Petitioner: Bhupendra Singh Kushwah
Versus
.......Respondents : State of M.P. and another
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Shri D.K. Katare and Shri M.P.S. Raghuvanshi, Advocates for
petitioner.
Shri S.K. Jain, Government Advocate for respondents/State.
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Date of hearing : 14/10/2015
Date of order : 27/10/2015
Whether approved for reporting :
ORDER
(27/10/2015) Per Justice Rohit Arya, This Writ Petition under Article 226 and 227 of the Constitution of India has been filed seeking quashment of the charge-sheet, Annexure P/1, dated 31/5/2013 issued to the petitioner under Rule 14 of the M.P. Civil Services (Classification, Control and Appeal) Rules, 1966 (hereinafter referred to as the 'Rules of 1966') under the orders of the Commissioner, Chambal Division Morena while petitioner was posted as Additional 2 Writ Petition No.3878/2013 [Bhupendra Singh Kushwah vs. State of M.P. and another] Tehasildar, Morena, District Morena, on following grounds:-
i- Respondent no.2 not being the disciplinary authority within the meaning of Rule 2 (d) of the Rules of 1966 was not competent to issue the impugned charge-sheet. ii- Besides, even otherwise, as the order has been passed by the petitioner in exercise of his statutory duties, he cannot be subjected to disciplinary proceedings for orders so passed, as those orders, even if erroneous, may be subject matter of appeal, revision or review before the competent authority and the same cannot be the basis of issuance of charge-sheet. Learned counsel relied on judgments in Union of India vs. R.K. Desai, 1993 (2) SCC 49, Zunjarrao Bhikaji Nagarkar v. Union of India, (1997) 7 SCC 409 and order dated 22/1/2015 in Civil Appeal No.1159/2015, Virendra Kumar Singh vs. State of M.P. and others.
iii- The charges levelled against the petitioner since are in the realm of discharge of his statutory duties and order passed under the provisions of M.P. Land Revenue Code as a judicial authority, hence, he is entitled for protection as provided for under the Judges (Protection) Act, 1985 (hereinafter referred to as the 'Act of 1985'). He relied on the judgment of Balram Harprasad Choubey and another vs. Aswani Kumar Yadav and another, 2001 (2) MPWN,
154. 3 Writ Petition No.3878/2013
[Bhupendra Singh Kushwah vs. State of M.P. and another] iv- The charge-sheet is issued purportedly on the basis of order passed by the Collector on 11/11/2011 in exercise of suo motu revisional jurisdiction under Section 50 of the M.P. Land Revenue Code. The aforesaid order has since been stayed by this Court on 2/1/2012 in Writ Petition No.8685/2011, the charge-sheet is unsustainable.
2. Respondents/State have filed counter affidavit.
As regards first ground, it is contended that Rule 2(d) of the Rules of 1966 defines disciplinary authority as under:-
"means the authority competent under these Rules to impose on a government servant any of the penalties specified in Rule 10 [Rule 10 prescribes for minor penalties under sub-rule (i) to (iv) and major penalties under sub-rule (v) to (ix)]."
Respondent no.2 is competent to impose minor penalty under the Rules. As respondent no.2 is covered within the definition of disciplinary authority under Rule 2 (d) of the Rules of 1966, therefore, the charge-sheet issued by respondent no.2 is by a disciplinary authority and no exception thereto can be taken.
As regards second ground, it is contended that a bare perusal of the charges framed against the petitioner suggest that while passing the order on 23/11/2010 in case No.9/09-10/Aa-6 A for correction of revenue entries in relation to land in survey nos.413, 415 and 416, which are Government land for Mercy 4 Writ Petition No.3878/2013 [Bhupendra Singh Kushwah vs. State of M.P. and another] Home, petitioner did not follow the procedure prescribed for correction of entries and without opportunity of hearing to the concerning department, order has been passed in favour of the private persons in respect of the Government land. No advertisement was issued inviting objections before passing of the aforesaid order. No procedure as prescribed under Sections 115 and 116 of the M.P. Land Revenue Code (hereinafter referred to as the 'Code') has been followed in the matter of mutation of names in revenue record in respect of agricultural land while transferring the Government land in the name of private persons. The aforesaid dereliction of duties and negligence on the part of petitioner has been found to be in violation of sub-rule (1) (2) and (3) of Rule 3 of the Rules of M.P. Civil Services (Conduct) Rules, 1965 (hereinafter referred to as the 'Rules of 1965') punishable under Rule 10 of the Rules of 1966. Hence, no exception thereto can be taken, as charges of the nature framed against the petitioner can be well enquired into in the light of the judgment of Hon'ble Supreme Court in Union of India v. K.K. Dhawan, (1993) 2 SCC 56, where the Hon'ble Supreme Court has listed six instances when departmental action can be taken:-
"28. (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 5 Writ Petition No.3878/2013 [Bhupendra Singh Kushwah vs. State of M.P. and another] 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'."
Learned counsel contends that the case in hand falls in category (iv) and (v). It is also contended that the proposition laid down in the case of Zunjarrao Bhikaji Nagarkar (supra) [two judges bench] was examined juxtaposing the same with the judgment of Hon'ble Supreme Court in Union of India and others vs. Duli Chand, (2006) 5 SCC 680 [three judges bench] considering the ratio of the decision rendered in the case of K.K. Dhawan (supra) [three judges bench]. Learned counsel, therefore, submits that the charge-sheet issued to the petitioner since relates to negligence and dereliction of duty in the matter of non- observance of procedure prescribed while exercising powers under Sections 115 and 116 of the Code in the matter of 6 Writ Petition No.3878/2013 [Bhupendra Singh Kushwah vs. State of M.P. and another] correction of entries substituting names of individuals for that of the State Government in respect of Government land for Mercy Home, therefore, initiation of disciplinary proceedings against the petitioner by issuance of charge-sheet cannot be said to be bad in law.
As regards third ground, learned counsel contends that the Act of 1985 has no application to the case in hand in the light of the provisions contained in sub-section (2) of Section 3 thereof. For ready reference the same is quoted below:-
"3. Additional protection to Judges.- (1) xxxxx (2) Nothing in sub-section (1) shall debar or affect in any manner the power of the Central Government or the State Government or the Supreme Court of India or any High Court or any authority under any law for the time being in force to take such action (whether by way of civil, criminal, or departmental proceedings or otherwise) against any person who is or was a Judge."
It is submitted that as the charge-sheet has been issued by and under the orders of respondent no.2, no exception can be taken to the said charge-sheet by seeking shelter of the aforesaid Act of 1985, as sub-section (2) of Section 3 thereof empowers the State Government to issue the charge-sheet in question. Further, in respect to the judgment cited by learned counsel for the 7 Writ Petition No.3878/2013 [Bhupendra Singh Kushwah vs. State of M.P. and another] petitioner viz. Balram Harprasad Choubey (supra), learned counsel for respondents submits, that was not the case of charge- sheet issued or action taken by the State Government, instead a criminal case was filed by an individual against the delinquent, hence, protection was found to be available to the delinquent in terms of sub-section (1) of Section 3 of the Act of 1985. Accordingly, learned counsel submits that the aforesaid decision is distinguishable and is of no assistance to the petitioner.
As regards fourth ground, learned counsel submits that true it is that the Collector while exercising suo motu revisional jurisdiction has found serious procedural lapses and dereliction of duty on the part of the petitioner in the matter of exercise of powers under Sections 115 and 116 of the Code. The Collector has also found that the aforesaid negligence was with calculated intention to accord undue benefit to individuals by taking recourse to correction of entries in purported exercise of powers under Sections 115 and 116 of the Code in relation to the Government land. The Collector has passed the order in detail with due advertence to the material placed on record, hence, no error can be found with the order passed by the Collector. Besides, the charges relate to the conduct of the petitioner in the matter of ignorance of statutory provisions required to be adhered to while exercising the powers. As submitted above, issuance of charge- sheet for his alleged act is well covered under clause (iv) and (v) 8 Writ Petition No.3878/2013 [Bhupendra Singh Kushwah vs. State of M.P. and another] of judgment rendered in the case of K.K. Dhawan (supra). The contention that as the order passed by the Collector under Section 50 of the Code is subject matter of writ petition and there is an interim order, hence, no charge-sheet can be issued to the petitioner, is devoid of substance. It is submitted that true it is that this Court has issued notices in Writ Petition No.8685/2011 vide order dated 2/1/2012, however, the interim order passed therein is only as regards maintaining status quo as regards the land in question. Neither pendency of the writ petition nor the interim order passed of the aforesaid nature can come in the way of issuance of charge-sheet to the petitioner.
With the aforesaid submissions, it is prayed that the writ petition be dismissed.
3. Heard counsel for the parties.
Before adverting to the rival contentions advanced by the counsel for the parties, it is considered apposite to reproduce charges levelled against the petitioner, which are as follows:-
vkjksi dzekad&01 dk vk/kkj vkids }kjk rRle; rglhy Xokfy;j ds o`Rr&5 eqjkj esa vij rglhynkj ds in ij inLFkh ds nkSjku xzke Mksaxjiqj ds losZ dzekad 413 jdck 3-344 gSDVs;j] dzekad 414 jdck 3-344 gSDVs;j] dzekad 416 jdck 3-344 gSDVs;j dqy fdrk 3 jdck 10-032 gSDVs;j voS/k :i ls izdj.k dzekad@09@2009&10@v&6v vkns'k fnukad 23-11-2010 ds }kjk Jhfuokl] egkohj flag] rglhynkj flag iq=x.k Jh HkkxhjFk ds uke futh LoRo ij ntZ djk fn;kA mDr Hkwfe iwoZ esa 'kkldh; gksdj xtjkjktk vukFk vkJe elhZ gkse ds uke ntZ FkhA vkius xtjkjktk vukFk vkJe elhZ gkse dks ;k e0iz0 'kklu dks fof/kor lquokbZ gsrq vkgwr ugha fd;k x;kA 'kkldh; dk;Z ds izfr drZO; 9 Writ Petition No.3878/2013 [Bhupendra Singh Kushwah vs. State of M.P. and another] foeq[k vkpj.k mnklhurk o ykijokgh dk ifjp; fn;k gSA vkjksi dzekad&02 dk vk/kkj vkids }kjk izdj.k dzekad@09@2009&10@v&6v esa fof/kor b'rgkj Hkh tkjh ugha fd;k x;kA futh O;fDr }kjk izLrqr vkosnu e/;izns'k Hkw&jktLo lafgrk 1959 dh /kkjk 116 ds rgr xzkg~; dj lquokbZ dh tkuk pkfg, Fkh] fdUrq vkids }kjk /kkjk&115 ds rgr Loizsj.kk ls izdj.k ntZ dj vkns'k ikfjr djds Hkwfe ij futh O;fDr;ksa dk uke bUnzkt fd;k x;k tks ihBklhu vf/kdkjh ds :i esa 'kklu ds izfr vkidh drZO; foeq[krk dk lwpd gSA vkjksi dzekad&03 dk vk/kkj vkids }kjk xzke Mkasxjiqj dh ukekUrj.k iath dz0&08 fnukad 20-03-2011 vkns'k fnukad 10-04-2011 ds }kjk /kesZUnz iq= nyohj flag] Hkjryky] jksfgr ck/kok] xksiky vxzoky] fot;] vHk; vxzoky] Jherh eksfguh xqIrk ds uke ukekUrj.k vkns'k ikfjr fd;k x;kA vkids }kjk fu/kkZfjr izfdz;k iwjh fd;s fcuk ,oa b'rgkj tkjh fd;s fcuk dzsrkx.kksa dk ukekUrj.k Lohdkj dj fy;k x;kA Charges levelled against the petitioner in fact and in effect are related to the conduct of the petitioner in discharge of his duties as an officer ignoring mandatory procedural requirements of notice and publication of advertisement to concerning department before ordering for correction of mutation record substituting the names of private parties for State Government in respect of Government land for Mercy Home in exercise of powers under Sections 115 and 116 of the Code. As such, the charges do not relate to correctness or legality of the decision of the petitioner. Under such circumstances, in the light of the judgment of Hon'ble Supreme Court in the case of K.K. Dhawan (supra), in the opinion of this Court, the charge-sheet issued to the petitioner falls under category (iv) and (v) mentioned in para 28 of the said judgment and, therefore, contention advanced in that behalf by 10 Writ Petition No.3878/2013 [Bhupendra Singh Kushwah vs. State of M.P. and another] the counsel for respondents/State is upheld. The judgments cited by the counsel for the petitioner, viz. Union of India vs. R.K. Desai, 1993 (2) SCC 49, Zunjarrao Bhikaji Nagarkar v. Union of India, (1997) 7 SCC 409 and order dated 22/1/2015 in Civil Appeal No.1159/2015, Virendra Kumar Singh vs. State of M.P. and others, are of no assistance to the petitioner. Respondent no.2 since is competent to impose minor penalty under Rule 10 of the Rules of 1966, he shall fall within the definition of disciplinary authority, as defined under Rule 2 (d) of the Rules of 1966. The contention of the petitioner that respondent no.2 is not competent to impose major penalty upon the petitioner, hence, does not fall within the definition of disciplinary authority is held to be misconceived and based on misreading of the provisions contained in Rule 2 (d) of the Rules of 1966, as the disciplinary authority means the the authority competent to impose on a government servant any of the penalties specified in Rule 10 of the Rules of 1966, which includes minor penalty as well as major penalty.
As regards the contention of counsel for petitioner for protection under the Act of 1985, suffice it to say that in the instant case departmental enquiry has been ordered and charge-sheet is issued to the petitioner under the orders of respondent no.2; a competent authority, therefore, in view of the provisions contained under sub-section (2) of Section 3 thereof (quoted above), the 11 Writ Petition No.3878/2013 [Bhupendra Singh Kushwah vs. State of M.P. and another] contention advanced is found to be misplaced and in ignorance of the provisions contained under sub-section (2) of Section 3 of the Act of 1985. The judgment cited by learned counsel for petitioner viz. Balram Harparasad Choubey (supra) is clearly distinguishable as that was not the case of charge-sheet issued or action taken by the State Government, instead a criminal case was filed by an individual against the delinquent, hence, protection was found to be available to the delinquent in terms of sub-section (1) of Section 3 of the Act of 1985, therefore, the said judgment is of no assistance to the petitioner.
As regards contention that the order passed under Section 50 of the Code in suo motu revisional jurisdiction by the Collector is subjudice in Writ Petition No.8685/2011 and interim order dated 2/1/2012 is in operation, therefore, the impugned charge-sheet could not have been issued as a sequel to the order so passed by the Collector, in the opinion of this Court, arguments though at the first blush is attractive, but in fact pales into insignificance if the charges levelled against the petitioner in the charge-sheet are carefully seen in the facts and circumstances of the case. It is well evident that the charges do not relate to correctness or legality of the decision taken by the petitioner under Sections 115 and 116 of the Code, but relate to conduct and dereliction in discharge of his duties as an officer having omitted prescribed conditions / procedure essential for exercise of the statutory powers under 12 Writ Petition No.3878/2013 [Bhupendra Singh Kushwah vs. State of M.P. and another] Sections 115 and 116 and such conduct undully favouring individual persons. Before correcting the entries in question, the concerned Health Deprtment in whose name the Government land for Mercy Home was recorded was not noticed and order was passed substituting the name of individual persons for that of the Government Department vide order dated 23/11/2010 and within four months the same land was transferred to the third persons and on the basis of the order of the Tehsildar dated 23/11/2010 again the land in question was ordered to be mutated on 10/4/2011. Both the orders have been passed by the petitioner without notice and without advertisement. Hence, no exception can be taken to the aforesaid charge-sheet under the garb of pendency of Writ Petition. Further, the interim order passed by this Court only relates to maintaining status quo as regards possession of the land in question and not restraining respondents to examine the negligence and conduct of the petitioner in discharge of his official duties.
Hence, none of the grounds raised by the petitioner are found to be sustainable. Accordingly, the Writ Petition sans merit. Dismissed.
(Rohit Arya) Judge Arun* 13 Writ Petition No.3878/2013 [Bhupendra Singh Kushwah vs. State of M.P. and another] HIGH COURT OF MADHYA PRADESH, JABALPUR, BENCH AT GWALIOR WRIT PETITION NO.3878/2013 .........Petitioner: Bhupendra Singh Kushwah Versus .......Respondents : State of M.P. and another ORDER post for 27/10/2015 (Rohit Arya) Judge 26/10/2015