Somnath Mishra vs Shri Ram Singh And 5 Others on 13 January, 2023

[Cites 7, Cited by 1]

Allahabad High Court

Somnath Mishra vs Shri Ram Singh And 5 Others on 13 January, 2023

Heard Sri Rakesh Pande, learned senior counsel, assisted by Sri Ramesh Chandra Tiwari, for the appellant; Sri J.B. Singh for the respondent no.1; and the learned Standing Counsel for the respondents 2, 3, 4 and 6.

In Re:- Leave to Appeal No.Nil of 2023 Leave to appeal granted.

In Re:- Appeal.

By this appeal, the appellant, who had passed the order dated 10.08.2022 in the capacity of Deputy Director of Consolidation, which was impugned in Writ B No. 3198 of 2022, has prayed for expunging certain adverse remarks made against him in the interim order dated 08.12.2022 passed therein.

We have perused the interim order wherein the offending remarks have been made against the appellant. A perusal whereof would indicate that before the appellant an order of Assistant Settlement Officer of Consolidation, dismissing an appeal against the order of Assistant Consolidation Officer on basis of a compromise, was challenged. The appellant dismissed the revision while exercising power under Section 48 of the U.P. C.H. Act. In the writ petition on 24.11.2022 an interim order was passed calling for personal affidavit of the appellant as to why he did not take notice of the report that the record of the proceedings before Assistant Consolidation Officer was not available. Prima facie view of the learned Single Judge was that the merit of an order on basis of compromise could only be tested on perusal of the record and, therefore, non availability of record was an important aspect. Pursuant to the order dated 24.11.2022, the appellant filed his personal affidavit stating that the revision was decided by him in good faith and as per his understanding of the law and the rules. The learned Single Judge took the view that the appellant could not have satisfied himself in respect of correctness of the compromise order in absence of the record and, therefore, the appellant acted negligently and thus misconducted himself thereby rendering himself vulnerable to disciplinary proceeding, etc. The learned counsel for the appellant submitted that the appellant on the basis of his understanding of the facts of the case and the law applicable had passed the order dated 10.08.2022 and though the order was challenged by the writ petitioner (the respondent no.1 herein) but there was no allegation in respect of any mala fides or lack of bona fides on the part of the appellant in passing the order. It has been submitted that by section 49-A of the U.P. Consolidation of Holdings Act, 1983 no suit, prosecution or other legal proceedings would lie against any person for anything which is in good faith done or intended to be done under the Act or the rules framed thereunder. It has been submitted that the appellant has acted in good faith; had affirmed the order passed by the appellate court; and there being no allegation of lack of bona fides or mala fides against the appellant, the adverse remarks made in the order dated 08.12.2022, while staying the effect and operation of the orders dated 10.08.2022 and 14.08.1992, are uncalled for.

In light of the submissions above, the learned counsel for the appellant seeks expungement of the remarks highlighted in bold in the paragraph extracted below:-

"After considering the personal affidavit of Shri Som Nath Mishra, Deputy Director of Consolidation aforesaid it is clear that he has decided the case without considering the original record, which was not available as duly certified by the record keeper. The compromise dated 23.2.1988 was never before the aforesaid Deputy Director of Consolidation Jaunpur ,when he passed the impugned order and he has admitted the same in his personal affidavit and has tendered unconditional apology. The finding that Rule 25-A of U.P. C.H. Rules , 1954 was complied with is only based on the findings recorded in the order of the Assistant Settlement Officer ,Consolidation Shahganj, Jaunpur which was under challenge in Revision and there is clearly negligence in performance of duty by Deputy Director of Consolidation, Jaunpur in exercise of its power under section 48 U.P. C.H. Act, 1953,where the Deputy Director of Consolidation Jaunpur is required to examine the record of the case decided by the subordinate authority for satisfying himself as to regularity of proceedings and the correctness ,legality and propriety of any order passed by subordinate court. It is clear case of misconduct in office committed by Shri Som Nath Mishra, Deputy Director of Consolidation, Jaunpur."

That apart, the learned counsel for the appellant seeks expungement of the following direction/observation:-

"The Consolidation Commissioner, U.P. Lucknow is directed to suspend Shri Som Nath Mishra, Deputy Director of Consolidation,Jaunpur from the service in order to prevent him passing such illegal orders further .The disciplinary proceedings shall be initiated against the aforesaid public servant by the Consolidation Commissioner aforesaid in accordance with certain Rules by the disciplinary authority of the aforesaid public servant. The disciplinary authority shall appoint an inquiry officer who was conduct disciplinary inquiry against the aforesaid public servant regarding his misconduct in office and submit its report to the disciplinary authority within three months. The disciplinary authority will pass appropriate order after considering the report of the inquiry officer and objection to the same, if any, by the aforesaid public servant.

The report of the inquiry officer and decision taken thereon by the disciplinary authority shall be filed before this court by the Consolidation Commissioner, U.P. Lucknow on or before the next date fixed. The disciplinary proceedings against the aforesaid public servant shall be conducted strictly in accordance with procedure provided under the rules.

Usual practice of committing procedural lapses in disciplinary inquiry conducted by the public servant in inquiry against another public servant shall not be tolerated by this court and would be considered seriously against the disciplinary authority and inquiry officer in case it is found that procedural lapse in inquiry has been committed only to help the delinquent employee."

It has also been argued that since the impugned direction is beyond the scope of writ prayer and is by way of suo motu exercise of powers as a writ court, the intra court appeal would be maintainable under Chapter VIII Rule 5 of the Rules of the Court.

In the facts of the case, the counsel for the respondents have not questioned the maintainability of the appeal.

Having noticed the submissions and perused the order of the learned Single Judge. Before we proceed to address the submissions it would be useful to notice the observations made by the Supreme Court in K.P. Tiwari Vs. State of M.P. 1994 Suppl (1) SCC 540 (para 4). Therein it was observed by the Supreme Court that "the higher courts every day come across orders of the lower courts which are not justified either in law or in fact and modify them or set them aside. That is one of the functions of the superior courts. Our legal system acknowledge the fallability of the judges and hence provides for appeals and revisions. A judge tries to discharge his duties to the best of his capacity. While doing so, sometimes, he is likely to err. .... Sometimes, the difference in views of the higher and lower courts is purely a result of a difference in approach and perception." After making these observations in K.P. Tiwari's case (supra), the Supreme Court advised superior court judges to exercise self-restraint in making disparaging remarks against the judicial officers and in passing of strictures against them. Similar has been the view expressed by the Apex Court in a catena of decisions i.e. Ishwari Prasad Misra Vs. Mohd. Isa, AIR 1963 SC 1728; A.M. Mathur Vs. Pramod Kumar Gupta, (1980) 2 SC 533; Manish S. Pardasani and others Vs. Inspector State Excise, P-1, Division Mumbai and others, (2019) 2 SCC 660; and Aswani Kumar Upadhyay Vs. High Court of Judicature of Allahabad, (2013) 12 SCC 392.

In the instant case, the offending remarks/direction was issued, prima facie, because the appellant passed the order in absence of trial court's (Assistant Consolidation Officer's) records. Notably, there existed a report regarding the trial court's record being not available. The appellant was sitting as a revisional court examining the legality and propriety of the orders of the two courts below. If he proceeded to pass order on the basis of appellate court's finding in absence of trial court's record, it could be an error of judgment for which the remarks made against him and the direction issued highlighted/extracted above is completely uncalled for, particularly, when there is no allegation of bias or of extraneous consideration.

In our view, the aforesaid remarks need to be expunged. The appeal is allowed. The afore-quoted highlighted portion of the observations and the aforequoted (extracted) directions in the order dated 08.12.2022 in Writ-B No.3198 of 2022 are hereby expunged.

It is made clear that we have not expressed any opinion on the merits of Writ B No. 3198 of 2022.

Order Date :- 13.1.2023 Sunil Kr Tiwari

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Allahabad High Court