Allahabad High Court
Jai Vir Singh vs State Of Uttar Pradesh Through ... on 16 November, 2007
Bench: Anjani Kumar, Sabhajeet Yadav
JUDGMENT
Anjani Kumar and Sabhajeet Yadav, JJ.
1. By this petition the petitioner has sought relief in the nature of certiorari for quashing the order of punishment dated 17th January 2006 (Annexure-1) as well as inquiry report dated 14th September 2005 (Annexure-2 to the writ petition). Vide impugned order dated 17th January 2006 passed by State Government a major penalty of reduction in rank i.e. from substantive rank of Civil Judge (Senior Division) to the rank of Civil Judge (Junior Division) has been inflicted upon the petitioner. A further relief in the nature of mandamus has been sought for commanding the respondents not to take any further action either in furtherance of or as a consequence of the impugned order and to grant and restore all benefits for which the petitioner was entitled but for the impugned punishment awarded to him vide order dated 17th January 2006.
2. The facts of the case in brief are that the petitioner was appointed as Munsif (Civil Judge {Junior Division}) in the year 1980. Thereafter he was promoted on the next higher post of Civil Judge (Senior Division) substantively in the year 1990. He was further promoted to the cadre of Higher Judicial Service in the year 2000, under Rule 22(3) of U.P. Higher Judicial Sendee Rules, 1975 (hereinafter referred to as '1975 Rules). On all these posts the petitioner worked with utmost devotion, sincerity, integrity and in accordance with well established judicial norms. And to the best of his knowledge, during the entire period of about 26 years of his service, the work and conduct of the petitioner has been unblemished. No complaint, whatsoever, was ever brought to the notice of the petitioner. The petitioner understands and believes that the Hon'ble High Court granted to the petitioner promotion to the rank of Civil Judge (Senior Division) substantively and to the post of Additional District Judge in the cadre of U.P. Higher Judicial Service under Rule 22(3) of the 1975 Rules after careful, appropriate and effective evaluation of the merit of his work and conduct including efficiency, honesty and integrity reflected on its record. All of a sudden, without any material the petitioner has been presumed to be dishonest in performing his judicial duties on extraneous consideration or anxiety to unduly favour a party and thereby guilty of misconduct and a charge sheet dated 25.10.2004 was served upon the petitioner on 16.11.2004 vide letter dated 28.10.2004 through District Judge, Pilibhit where the petitioner was working as Additional District Judge. A true copy of the communication dated 28.10.2004 along with charge-sheet dated 25.10.2004 is on record as Annexure-4 of the writ petition. By this charge memo an allegation was levelled against the petitioner that on 16.1.2001 while working as IV th Additional District Judge, Ghaziabad, he had decided a reference case without proper reference and thereby unduly favoured the claimant in the said decision, against all judicial norms and propriety for extraneous consideration, thus committed misconduct within the meaning of Rule 3 of U.P. Government Servant Conduct Rules 1956 (hereinafter referred to as 1956 Rules) and the petitioner was asked to file written reply within stipulated time. In response to the said charge-sheet the petitioner has submitted his written reply on 20.1.2005 through proper channel, a true copy whereof is on record as Annexure 5 to the writ petition. Before the Hon'ble Enquiry Judges also the petitioner has submitted a written submission dated 3.9.2005. A true copy whereof is on record as Annexure-6 to If the writ petition. Thereafter Hon'ble Enquiry Judges have held inquiry against the petitioner and submitted their inquiry report dated 14.9.2005 holding the petitioner guilty of charge levelled in the charge-sheet. A true copy of inquiry report is on record as Annexure-2 of the writ petition. Thereupon the Registrar (Confidential) High Court, Allahabad vide letter dated 21.9.2005 has invited the comments of the petitioner against the findings of Hon'ble Enquiry Judges, in response to which the petitioner has submitted his comments dated 22.10.2005 through proper channel, a true copy whereof is on record as Annexure-3 to the writ petition. The said inquiry report was approved in Full Court meeting of this Court and the penalty of reduction in rank was recommended thereby to the State Government. Thereupon while acting upon the said recommendation the State Government has passed the impugned order reducing the petitioner in rank from his substantive post of Civil Judge (Senior Division) to the post of Civil Judge (Junior Division), hence this petition.
3. It is further stated that a dispute giving rise cause of action of aforesaid disciplinary inquiry was that a land bearing Khasra No. 437 ad-measuring an area about 3 Bighas 4 Biswa situated in village Dasna under Govind Puram Scheme, Ghaziabad belonging to Wing Commander P.D. Bali was acquired under the provisions of the Land Acquisition Act, 1894, hereinafter referred to as the 'Act'. It is stated in the writ petition that besides earth, on the land acquired, 7500 trees of Eucalyptus were standing thereon; there existed construction of two rooms, two hand pumps, one room housing boring of 5" diameter and a boundary wall on the four sides of the land. There were also tree of puava, Mango, Neem, Adoo. There was also a Samadhi on the land. After usual formalities were gone through, the Special Land Acquisition Officer determined the compensation vide, allegedly exparte, award dated 7.12.1990 confined only in respect of the earth, at the rate of Rs. 71.43 per square yard. The Special Land Acquisition Officer did not determine the compensation in respect of the trees and superstructure standing on the earth, although he was legally required to do so in view of the fact that the expression land' includes earth as well as benefits arise out of land and things attached to the earth or permanently fasten to anything attached to the earth vide Clause (a) of Section 3 of the Act; and that in view of the fact that Section 11(1) of the Act requires that the award must include, inter-alia, the compensation which ought to be allowed for the land as defined in Section 3(a) of the Act. The award dated 7.12.1990 did not comply fully the requirements of Section 11 of the Act, and was, obviously, incomplete. The compensation of the earth of the land determined by the award dated of 7.12.1990 was neither paid to nor accepted by Wing Commander P.D. Bali till the year 1997. In the meantime, he filed Civil Misc. Writ Petition No. 22274 of 1993, Wing Commander P.D. Bali v. State of U.P. and Ors. before this Court, initially challenging the acquisition proceedings, lateron, by amendment application, he also prayed for restoration of the land under proviso to Section 17(1) of the U.P. Urban Planning and Development Act, 1973. It was also stated that P.D. Bali had also applied to the State Government for restoration of the land vide his application dated 17th April, 1994 but the State Government had not decided the same. This Court, without going into the merits of the claim of Wing Commander P.D. Bali, disposed of the writ petition finally, vide order dated 15th May, 1996 with the direction to the State Government to dispose of the application of Wing Commander P.D. Bali dated 17th April, 1994 within two months from the date of production of a certified copy of the order, by a speaking order after hearing Wing Commander P.D. Bali as well as Ghaziabad Development Authority. In compliance of the order of this Court dated 15th May, 1996 the State Government considered the application of Wing Commander P.D. Bali dated 17th April, |994 and disposed of vide order dated 20th July, 1996 holding that it is true that until now compensation has been awarded only in respect of land (earth) but thereafter award in respect of trees and superstructure standing on the land on the basis of development of land shall surely be made. A true copy of the order of State Government dated 20th July, 1996 is on record as Annexure-7 to the writ petition.
4. Thereafter on the strength of the observation of the State Government, the exercise of determination of the compensation in respect of trees and construction etc. standing on the acquired land was undertaken by the I Additional Collector (Land Acquisition) Ghaziabad and the exercise was culminated into supplementary award dated 10.8.1997 (wrongly mentioned in the charge sheet served on the petitioner as dated 30.8.1997). It is submitted, that the award dated 7.12.1990 came to be completed on 10.8.1997 when the supplementary award was given and the requirement of Section 11 of the Act stood fully satisfied. It is further submitted that the award dated 7.12.1990 would be deemed to be incomplete till the delivery of supplementary award dated 10.8.1997.
5. It is further stated in the writ petition that Wing Commander P.D. Bali did not accept the offer of compensation made to him through the awards dated 7.12.1990 and 10.8.1997 as he was not satisfied with the quantum of compensation determined by the Special Land Acquisition Officer offered to him and on 8.9.1997 the Wing Commander P.D. Bali submitted an application under Section 18 of the Land Acquisition Act 1894 before Additional Collector (L.A.)(Irrigation) Ghaziabad for making reference before the court for determination of compensation of land as well as trees and superstructure standing on the land. It is pointed out that Wing Commander P.D. Bali had never applied for reference under Section 18 of the Act in respect of the determination of compensation offered to him through award dated 7.12.1990 which fact is admitted on record by the Additional Collector in his referral order passed under Section 19 of the Act as well as by E.W. '1', Sri Rajendra Kumar Tyagi, Legal Assistant of the Ghaziabad Development Authority before the Hon'ble Enquiry Judges, presumably, he waited for finality of award which was accomplished on the delivery of the supplementary award dated 10.8.1997. The claim of Wing Commander P.D. Bali under Section 18. of the Act, for determination by the Court, was referred to by the Additional Collector (Land Acquisition), Ghaziabad. A true copy of the referral order is on record as Annexure-9 to the writ petition. Vide his Judgment and order dated 16.1.2001, the petitioner decided the reference. He decided the objections of Wing Commander P.D. Bali on the basis of oral evidence produced by the parties and the documentary evidence in the shape of examplers produced by Wing Commander P.D. Bali alone. No documentary evidence was produced either on behalf of the State Government or on behalf of Ghaziabad Development Authority, Ghaziabad leaving the documentary evidence produced by Wing Commander P.D. Bali unrebutted. The fact that no documentary evidence was produced on behalf of State Government or Ghaziabad Development Authority, Ghaziabad has also been admitted by E.W. '1' Sri Rajendra Kumar Tyagi before the Hon'ble Enquiry Judges. However, while deciding the reference, the petitioner kept in mind the provisions of Sections 23 and 24 as well as other relevant provisions of the Act and the guidance given by the Hon'ble Supreme Court of India, Hon'ble Privy Council and the Hon'ble High Courts. The petitioner observed all judicial norms and propriety and decided the objection of the claimant Wing Commander P.D. Bali without any other consideration much less any extraneous consideration as inferred and presumed in the enquiry report dated 14th September, 2005 without any basis. In the date events chart filed in the writ petition, it is shown that claimant has filed First Appeal No. 365 of 2001 Wing Commander P.D. Bali v. State of U.P. and Ors. against the decision rendered by the petitioner in L.A.R. No. 624 of 1997 and Ghaziabad Development Authority, Ghaziabad has also filed First Appeal No. 466 of 2002 Ghaziabad Development Authority v. Wing Commander P.D. Bali against the same decision before this Court.
6. On the basis of assertions made in the pleadings of the writ petition, learned Senior Counsel Sri Shashi Nandan, Advocate appearing for the petitioner has submitted that the petitioner was appointed as Munsif (Civil Judge {Junior Division}) in the year 1980. He was promoted as Civil Judge (Senior Division) substantively in the year 1990. He was further promoted to the Cadre of U.P. Higher Judicial Service and appointed as Additional District Judge in the year 2000 under Rule 22(3) of 1975 Rules. On all these posts the petitioner worked with utmost devotion, sincerity, integrity and in accordance with the well established judicial norms. And, to the best of his knowledge, during the entire period of about 26 years of his service the work and conduct of the petitioner has been unblemished. No complaint, whatsoever, was ever brought to the notice of the petitioner. The petitioner understands and believes that the Hon'ble High Court granted to the petitioner promotion to the rank of Civil Judge (Senior Division) substantively and to the post of the Additional District Judge in the cadre of U.P. Higher Judicial Service under Rule 22(3) of 1975 Rules after careful, appropriate and effective evaluation of the merit of his work and conduct, including efficiency, honesty and integrity reflected on its record. All of a sudden and without any material the petitioner has been presumed to be dishonest in performing his judicial duties on extraneous consideration or anxiety to unduly favour a party and thereby guilty of misconduct. To the best of the knowledge of the petitioner, there is no statable data to buttress the presumption or inference of his dishonesty or performance of judicial duties for extraneous consideration or anxiety to unduly favouring a party leading to the guilt of alleged misconduct. Indeed, there is utter dearth of evidence in this regard. There being absolutely no evidence on record or otherwise giving rise to the presumption or inference of dishonesty or performance of judicial duties for extraneous consideration or anxiety to unduly favouring a party indicating alleged misconduct, the inferential finding holding the petitioner guilty of misconduct is totally arbitrary and perverse. The Hon'ble Enquiry Judges have also not specifically concluded in enquiry report regarding misconduct of petitioner. Thus, charge levelled against the petitioner remains unproved.
7. While elaborating and substantiating his submission Sri Shashi Nandan, learned Senior Counsel appearing for the petitioner has submitted that the misconduct implies a wrongful intention and not a mere error of judgment or decision. What is of relevance is not the correctness or legality of the judgment or decision. There is no evidence to demonstrate that the petitioner was actuated by any wrongful intention in rendering the judgment/decision giving rise to the controversy. At best, there may be some legal error in the judgment/decision rendered by the petitioner, which is not admitted. But, the alleged error does not constitute the fulcrum of any misconduct by the petitioner. In the context of the charge of alleged misconduct, it is further submitted that erroneous interpretation of law in the judgment in question, if any, which is not admitted, has not been held to be misconduct by this Hon'ble Court and the Hon'ble Supreme Court of India. It is also submitted that the possibility of any inference or conclusion other than the one drawn and arrived at in the judgment in question, which is not admitted, has not been held to be misconduct by this Hon'ble Court and the Hon'ble Supreme Court of India. The alleged error in the judgment/decision rendered by the petitioner cannot be held to reflect on his integrity. The error, if any, does not show prima facie or otherwise that the judgment/decision was given by the petitioner for extraneous consideration of any kind. No motives could be attributed to the petitioner on the basis of the alleged error. In any event as held by the Hon'ble Supreme Court of India in the case of K.P. Tiwari v. State of M.P. , our legal system acknowledges the fallibility of judges and hence provides for appeals and revisions. In the said case it has further been held that a judge who has not committed an error is yet to be born. And this applies to the judges at all levels from the lowest to the highest. The Hon'ble Supreme Court also cautioned that attributing motives is that surest way to take the judiciary downhill.
8. It is further submitted that the error, if any, alleged to have been committed by the petitioner, is not so grave as to invite the extreme two penalties of reductions in rank, namely, reversion from the post of Additional District Judge (officiating) to the post of Civil Judge (Senior Division)(substantive) and from the rank of Civil Judge (Senior Division) to the rank of Civil Judge (Junior Division). It is also submitted that material, such as any complaint or inspection report or preliminary report, if any, which formed the basis of initiation of the departmental enquiry for alleged extraneous consideration or anxiety to unduly favour the claimant has not be furnished, though it is the mandate of the principles of natural justice as has been held, times out of number, by this Hon'ble Court as well as the Hon'ble Supreme Court of India. The punishment inflicted upon the petitioner is highly disproportionate to the gravity of the alleged charge of misconduct and violative of the Article 14 of the Constitution of India. A penalty disproportionate to the gravity of the misconduct being violative of the Article 14 of the Constitution of India is liable to be annulled. The enquiry report dated 14th September, 2005 which is the foundation of the order of punishment, is based on conjectures and surmises. Thus, it is not sustainable in law and is liable to be quashed. The impugned order of punishment dated 17th January 2006 as well as its foundation i.e. the enquiry report dated 14th September 2005 both are wholly illegal and arbitrary, they eminently deserve to be quashed. In support of his submission Learned Counsel for the petitioner has cited several decisions to which we will refer a little latter.
9. A detailed counter affidavit has been filed on behalf of the High Court in justification of the impugned action taken against the petitioner, the pertinent averments made therein will be referred by us hereinafter at appropriate places.
10. We have heard Sri Shashi Nandan, learned Senior Counsel assisted by Sri Swapnil Kumar Advocate for the petitioner and Sri. K.R. Sirohi, learned Senior Counsel assisted by Sri Rajiv Gupta for the High Court and learned Standing Counsel for the State Government and also perused the original records summoned by us during the course of the hearing of the writ petition.
11. In view of the aforesaid submission the first question which arises for our consideration is that what constitutes 'misconduct'? In this connection it is necessary to point out that the 1956 Rules is applicable to the petitioner and said rules prescribes the code of conduct to be observed by the petitioner. Although the expression 'misconduct' has not been defined under the 1956 Rules but various provisions have been made thereunder to regulate the conduct of the Government servants. For instance Rule 3 of the said Rules provides that every Government servant shall at all times maintain absolute integrity and devotion to duty and conduct himself in accordance with specific or implied orders of Government regulating behaviour and conduct which may be in force. It implies that any conduct unbecoming to the Government servants would be misconduct.
12. A similar controversy has drawn attention of Hon'ble Apex Court in Union of India and Ors. v. J. Ahmed , wherein similar rule namely All India Service Conduct Rules 1954 was under consideration. In para 10 of the decision Hon'ble Apex Court has formulated the question as to what generally constitutes misconduct specially in the context of disciplinary proceedings entailing penalty? While adverting to the said question in para 11 and 12 of the decision the Hon'ble Apex Court observed as under:
11. Code of conduct as set out in the Conduct Rules clearly indicates the conduct expected of a member of the service. It would follow that that conduct which is blameworthy for the Government servant in the context of Conduct Rules would be misconduct. If a servant conducts himself in a way inconsistent with due and faithful discharge of his duty in service, it is misconduct see Pearce v. Foster (1886) 17 QBD 536 (at p. 542). A disregard of an essential condition of the contract of service may constitute misconduct see Laws v. London Chronicle (Indicator Newspapers) (1959) 1 WLR 698. This view was adopted in Shardaprasad Onkarprasad Tiwari v. Divisional Supdt. Central Railway, Nagpur Division, Nagpur and Satubha K. Vaghela v. Moosa Raza (1969) 10 Guj LR 23. The High Court has noted the definition of misconduct in Stroud's Judicial Dictionary which runs as under:
Misconduct means, misconduct arising from ill motive; acts of negligence, errors of judgment, or innocent mistake, do not constitute such misconduct.
In industrial jurisprudence amongst others, habitual or gross negligence constitute misconduct but in Management, Utkal Machinery Ltd. v. Workmen, Miss Shanti Patnaik , in the absence of standing orders governing the employee's undertaking, unsatisfactory work was treated as misconduct in the context of discharge being assailed as punitive. In Section Govinda Menon v. Union of India , the manner in which a member of the service discharged his quasi judicial function disclosing abuse of power was treated as constituting misconduct for initiating disciplinary proceedings. A single act of omission or error of judgment would ordinarily not constitute misconduct though if such error or omission results in serious or atrocious consequences the same may amount to misconduct as was held by this Court in P.H. Kalyani v. Air France, Calcutta , wherein it was found that the two mistakes committed by the employee while checking the load-sheets and balance charts would involve possible accident to the aircraft and possible loss of human life and, therefore, negligence in work in the context of serious consequences was treated as misconduct. It is, however, difficult to believe that lack of efficiency or attainment of highest standards in discharge of duty attached to public office would ipso facto constitute misconduct. There may be negligence in performance of duty and a lapse in performance of duty or error of judgment in evaluating the developing situation may be negligence in discharge of duty but would not constitute misconduct unless the consequences directly attributable to negligence would be such as to be irreparable or the resultant damage would be so heavy that the degree of culpability would be very high. An error can be indicative of negligence and the degree of culpability may indicate the grossness of the negligence. Carelessness can often be productive of more harm than deliberate wickedness or malevolence. Leaving aside the classic example of the sentry who sleeps at his post and allows the enemy to slip through, there are other more familiar (examples) instances of which (are) a railway cabinman signalling in a train on the same track where there is a stationary train causing headlong collision; a nurse giving intravenous injection which ought to be given intramuscular causing instantaneous death; a pilot overlooking an instrument showing snag in engine and the aircraft crashing causing heavy loss of life. Misplaced sympathy can be a great evil (see Navinchandra Shakerchand Shah v. Manager, Ahmedabad Co-op. Department Stores Ltd. (1978) 19 Guj LR. 108 at p. 120. But in any case, failure to attain the highest standard of efficiency in performance of duty permitting an inference of negligence would not constitute misconduct nor for the purpose of Rule 3 of the Conduct Rules as would indicate lack of devotion to duty.
12. The High Court was of the opinion that misconduct in the context of disciplinary proceeding means misbehaviour involving some form of guilty mind or mens rea. We find it difficult to subscribe to this view because gross of habitual negligence in performance of duty may not involve mens rea but may still constitute misconduct for disciplinary proceedings.
13. Again in State of Punjab v. Ram Singh Ex-constable , single instance of heavy drinking of alcohol by constable while on duty was held gravest misconduct warranting his dismissal from service. In this case the Hon'ble Apex Court has interpreted the expression 'misconduct' by taking assistance of the definition of 'misconduct' as given in Black's Law Dictionary and Aiyar's Law Lexicon and observed as under:
Thus it could be seen that the word 'misconduct' though not capable of precise definition, on reflection receives its connotation from the context, the delinquency in its performance and its effect on the discipline and the nature of the duty. It may involve moral turpitude, it must be improper or wrong behaviour, unlawful behaviour, wilful in character, forbidden act, a transgression of established and definite rule of action or code of conduct but not mere error of judgment, carelessness or negligence in performance of the duty; the act complained of bears forbidden quality or character. Its ambit has to be construed with reference to the subject matter and the context wherein the term occurs, regard being had to the scope of the statute and the public purpose it seeks to serve.
14. Thus from the afore-stated legal position enunciated by Hon'ble Apex Court, it is clear that code of conduct as set out under Conduct Rules clearly indicates the conduct expected of a member of service. It would follow that the conduct which is blameworthy for the Government servant in the context of Conduct Rules would be misconduct. If a servant conducts himself in a way inconsistent with due and faithful discharge of his duty in service, it is misconduct. A disregard of an essential condition of the contract of service may constitute misconduct. In Stroud's Judicial Dictionary the expression 'Misconduct' means, misconduct arising from ill motive; acts of negligence, errors of judgment, or innocent mistake, do not constitute such misconduct. In S. Govinda Menon's case (supra) it was held that a member of service discharged his quasi judicial function disclosing abuse of power was treated as constituting misconduct for initiating disciplinary proceedings. A single act of omission or error of judgment would ordinarily not constitute misconduct though if such error or omission results in serious or atrocious consequences, the same may amount to misconduct as held in P.H. Kalyani's case (supra), wherein it was found that the two mistakes committed by the employee while checking the load-sheets and balance charts would involve possible accident to the aircraft and possible loss of human life and, therefore, negligence in work in the context of serious consequences was treated as misconduct. In J. Ahmed's case (supra) Hon'ble Apex Court has further went on observing that it is, however, difficult to believe that lack of efficiency or attainment of highest standards in discharge of duty attached to public office would ipso facto constitute misconduct. There may be negligence in performance of duty and a lapse in performance of duty or error of judgment in evaluating the developing situation may be negligence in discharge of duty but would not constitute misconduct unless the consequences directly attributable to negligence would be such as to be irreparable or the resultant damage would be so heavy; that the degree of culpability would be very high. In industrial jurisprudence amongst others, habitual or gross negligence constitute misconduct. It was further observed in para 12 of the decision that the opinion of the High Court that misconduct in context of disciplinary proceeding means misbehaviour involving some form of guilty mind or mens rea could not be held to be a correct approach. According to the Hon'ble Apex Court the expression 'misconduct' does not necessarily involve ill motives or mens rea as necessary con-committant of it. It implies that there may be misconduct without any misbehaviour involving some form of guilty mind or mensrea such as gross or habitual negligence in performance of duty may not involve mens rea but may still constitute misconduct for disciplinary proceeding. In view of aforesaid discussion, we are of the considered opinion that it is not that misbehaviour involving some ill motive or mens rea which alone is to be seen rather the negligence or recklessness in discharge of duty and a lapse in performance of duty or error of judgment may also be looked into in context of consequences directly attributable to such negligence. However, in State of Punjab v. Ram Singh (supra) the Hon'ble Apex Court has interpreted the expression 'misconduct' to mean that mere error in judgment, carelessness or negligence in performance of duty are not misconduct. The act complained of bears forbidden quality or character. Its ambit has to be construed with reference to the subject matter and the context wherein the term occurs, regard being had to the scope of statute and the public purpose it seeks to serve.
15. Now next question, which arises for consideration is that as to whether the authority enjoys immunity from disciplinary proceedings with respect to matters decided by him in exercise of judicial or quasi judicial functions? In this connection, it is necessary to point out that while taking note of earlier decision rendered in S. Govinda Menon' case (supra) and Union of India v. A.N. Saxena A.I.R. 992 SC, 1233 in Union of India v. K.K. Dhawan the Hon'ble Apex Court has dealt with the question in issue in quite detail in paras 16 to 29 of the decision. It would be useful to reproduce the observations made in paras 16 to 19, 26, 28 and 29 of the decision as under:
16. In Govinda Menon v. Union of India 1967 SC 1274, it was contended that no disciplinary proceedings could be taken against appellant for acts or omissions with regard to his work as Commissioner under Madras Hindu Religious and Charitable Endowments Act, 1951. Since the orders made by him were quasi-judicial in character, they should be challenged only as provided for under the Act. It was further contended that having regard to scope of Rule 4 of All India Services (Discipline and Appeal) Rules, 1955, the act or omission of Commissioner was such that appellant was not subject to the administrative control of the Government and therefore, the disciplinary proceedings were void. Rejecting this contention, it was held as under (at pp. 1278-79) of AIR):
It is not disputed that the appropriate Government has power to take disciplinary proceedings against the appellant and that he could be removed from service by an order of the Central Government, but it was contended that I.A.S. Officers are governed by statutory rules, that 'any act or omission' referred to in Rule 4(i) relates only to an act or omission of an officer when serving under the Government means subject to the administrative control of the Government and that disciplinary proceedings should be, therefore, on the basis of the relationship of master and servant. It was argued that in exercising statutory powers the Commissioner was not subject to the administrative control of the Government and disciplinary proceedings cannot, therefore, be instituted against the appellant in respect of an act or omission committed by him in the course of his employment as Commissioner. We are unable to accept the proposition contended for by the appellant as correct. Rule 4(i) does not impose any limitation or qualification as to the nature of the act or omission in respect of which disciplinary proceedings can be instituted. Rule 4(1)(b) merely says that the appropriate Government competent to institute disciplinary proceedings against a member of the Service would be the Government under whom such member was serving at the time of the commission of such act or omission. It does not say that the act or omission must have been committed in the discharge of his duty or in the course of his employment as a Government servant. It is, therefore, open to the Government to take disciplinary proceedings against the appellant in respect of his acts or omissions which cast a reflection upon his reputation for integrity or good faith or devotion to duty as a member of the service. It is not disputed that the appellant was, at the time of the alleged misconduct, employed as the First Member of the Board of Revenue and he was at the same time performing the duties or Commissioner under the Act in addition to his duties as the First Member of the Board of Revenue. In our opinion, it is not necessary that a member of the Service should have committed the alleged act or omission in the course of discharge of his duties as a servant of the Government in order that it may form the subject matter of disciplinary proceedings. In other words, if the act or omission is such as to reflect on the reputation of the officer for his integrity or good faith or devotion to duty, there is no reason why disciplinary proceedings should not be taken against him for that act or omission even though the act or omission relates to an activity in regard to which there is no actual master and servant relationship. To put it differently, the test is not whether the act or omission was committed by the appellant in the course of the discharge of his duties as servant of the Government. The test is whether the act or omission was some reasonable connection with nature and condition of his service or whether the act or omission has cast any reflection upon the reputation of the member of the Service for integrity or devotion to duty as a public servant. We are of the opinion that even if the appellant was not subject to the administrative control of the Government when he was functioning as Commissioner under the Act and was not the servant of the government subject to its orders at the relevant time, his act or omission as Commissioner could form the subject-matter of disciplinary proceedings provided the act or omission would reflect upon his reputation for integrity or devotion to duty as a member of the service." In this context reference may be made to the following observations of Lopes, C.J. In Pearce v. Foster (1986) 17 QBD 536, p. 542.
If a servant conducts himself in a way inconsistent with the faithful discharge of his duty in the service, it is misconduct which justifies immediate dismissal. That misconduct, according to my view, need not be misconduct in the carrying on of the service of the business. It is sufficient if it is conduct which is prejudicial or is likely to be prejudicial to the interests or to the reputation of the master, and the master will be justified, not only if he discovers it at the time, but also if he discovers it afterwards, in dismissing that servant.
(Emphasis supplied)
17. Concerning, the exercise of quasi-judicial powers the contention urged was to the following effect (at pp. 1279-80 of AIR):
We next proceed to examine the contention of the appellant that the Commissioner was exercising a quasi-judicial function in sanctioning the leases under the Act and his orders, therefore, could not be questioned except in accordance with the provisions of the Act. The proposition put forward was that quasi-judicial orders, unless vacated under the provisions of the Act, are final and binding and cannot be questioned by the executive Government through disciplinary proceedings. It was argued that an appeal is provided under Section 29(4) of the Act against the order of the Commissioner granting sanction to a lease and that it is open to any party aggrieved to file such an appeal and question the legality or correctness of the order of the Commissioner and that the Government also may in revision under Section 99 of the Act examine the correctness or legality of the order. It was said that so long as these methods were not adopted the Government could not institute disciplinary proceedings and re-examining the legality of the order of the Commissioner granting sanction to the leases.
18. That was rejected as under (at pp. 1280-810 of AIR):
The charge is, therefore, one of misconduct and recklessness disclosed by the utter disregard of the relevant provisions of Section 29 and the Rules thereunder in sanctioning the leases. On behalf of the respondents it was argued both by Mr. Sarjoo Prasad and Mr. Bindra that the Commissioner was not discharging quasi-judicial functions in sanctioning leases under Section 29 of the Act, but we shall proceed on the assumption that the Commissioner was performing quasi-judicial functions in granting leases under Section 29 of the Act. Even upon that assumption we are satisfied that the Government was entitled to institute disciplinary proceedings if there was prima facie material for showing recklessness or misconduct on the part of the appellant in the discharge of his official duty. It is true that if the provisions of Section 29 of the Act or the Rules are disregarded the order of the Commissioner is illegal and such an order could be questioned in appeal under Section 29(4) or in revision under Section 99 of the Act. But in the present proceedings what is sought to be challenged is not the correctness or the legality of the decision of the Commissioner but the conduct of the appellant in the discharge of his duties as Commissioner. The appellant was proceeded against because in the discharge of his functions, he acted in utter disregard of the provisions of the Act and the Rules. It is the manner in which he discharged his functions that is brought up in these proceedings. In other words, the charge and the allegations are to the effect that in exercising his powers as Commissioner the appellant acted in abuse of his power and it was in regard to such misconduct that he is being proceeded against. It is manifest, therefore, that though the propriety and legality of the sanction to the leases may be questioned in appeal or revision under the Act, the Government is not precluded from taking disciplinary action if there is proof that the Commissioner had acted in gross recklessness in the discharge of his duties or that he failed to act honestly or in good faith or that he omitted to observe the prescribed conditions which are essential for the exercise of the statutory power. We see no reason why the Government cannot do so for the purpose of showing that the Commissioner acted in utter disregard of the conditions prescribed for the exercise of his power or that he was guilty of misconduct or gross negligence. We are accordingly of the opinion that the appellant has been unable to make good his argument on this aspect of the case.
19. The above case, therefore, is an authority for the proposition that disciplinary proceedings could be initiated against the government servant even with regard to exercise of quasi-judicial powers provided:
i) The act or omission is such as to reflect on the reputation of the government servant for his integrity or good faith or devotion to duty, or
ii) there is prima facie material manifesting recklessness or misconduct in the discharge of the official duty, or
iii) the officer had failed to act honestly or in good faith or had omitted to observe the prescribed conditions which are essential for the exercise of statutory power.
26. In the case on hand, article of charge clearly mentions that the nine assessments covered by the article of charge were completed:
i) in an irregular manner,
ii) in undue haste, and
iii) apparently with a view to confer undue favour upon the assessee concerned.
(Emphasis supplied) Therefore, the allegation of conferring undue favour is very much there unlike Civil Appeal No.560/91, If that be so, certainly disciplinary action is warranted. This Court had occasion to examine the position. In Union of India v. A.N. Saxena to which one of us (Mohan, J.) was a party, it was held as under (Paras 7 and 8 of AIR):
It was urged before us by Learned Counsel for the respondent that as the respondent was performing judicial or quasi-judicial functions in making the assessment orders in question even if his actions were wrong they could be corrected in an appeal or in revision and no disciplinary proceedings could be taken regarding such actions.
In our view, an argument that no disciplinary action can be taken in regard to actions taken or purported to be done in the course of judicial or quasi-judicial proceedings is not correct. It is true that when an officer is performing judicial or quasi-judicial functions disciplinary proceedings regarding any of his actions in the course of such proceedings should be taken only after great caution and a close scrutiny of his actions and only if the circumstances so warrant. The initiation of such proceedings, it is true, is likely to shake the confidence of the public in the officer concerned and also if lightly taken likely to undermine his independence. Hence the need for extreme care and caution before initiation of disciplinary proceedings against an officer performing judicial or quasi-judicial functions in respect of his actions in the discharge or purported to discharge his functions. But it is not as if such action cannot be taken at all. Where the actions of such an officer indicate culpability, namely a desire to oblige himself or unduly favour one of the parties or an improper motive there is no reason why disciplinary action should not be taken.
28. Certainly, therefore, the officer who exercises judicial or quasi-judicial powers acts negligently or recklessly or in order to confer undue favour on a person is not acting as a Judge. Accordingly, the contention of the respondent has to be rejected. It is important to bear in mind that in the present case, we are not concerned with the correctness or legality of the decision of the respondent but the conduct of the respondent in discharge of his duties as an officer. The legality of the orders with reference to the nine assessments may be questioned in appeal or revision under the Act. But we have no doubt in our mind that the Government is not precluded from taking the disciplinary action for violation of the Conduct Rules. Thus, we conclude that the disciplinary action can be taken in the following cases:
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 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.
29. The instances above catalogued are not exhaustive. However, we may add that for a mere technical violation or merely because the order is wrong and the action not falling under the above enumerated instances, disciplinary action is not warranted. Here, we may utter a word of caution. Each case will depend upon the facts and no absolute rule can be postulated.
16. Thus, from a close analysis of decision of Hon'ble Apex Court in K.K. Dhawan's case it is clear that while taking note of S. Govinda Menon's case in para 18 of the decision the Hon'ble Apex Court observed that though the propriety and legality of the sanction to leases may be questioned in appeal or revision under the Act, the Government is not precluded from taking disciplinary action if there is proof that the Commissioner had acted in gross recklessness in discharge of his duties or that he failed to act honestly or in good faith or that he omitted to observe the prescribed conditions which are essential for exercise of statutory power. We see no reason why the Government cannot do so for the purpose of showing that the Commissioner acted in utter disregard of conditions prescribed for the exercise of his power or that he was guilty of misconduct or gross negligence. In para 19 of the decision Hon'ble Apex Court has further held that the above case, therefore, is an authority for the proposition that disciplinary proceedings could be initiated against the government servant even with regard to exercise of quasi-judicial powers provided; (i) The act or omission is such as to reflect on the reputation of the government servant for his integrity or good faith or devotion to duty, or (ii) there is prima facie material manifesting recklessness or misconduct in the discharge of the official duty, or (iii) the officer had failed to act honestly or in good faith or had omitted to observe the prescribed conditions which are essential for the exercise of statutory power. In para 26 of the decision the observations made by Hon'ble Apex Court in paras 7 and 8 of decision rendered in A.N. Saxena's case (supra) have been quoted for approval, wherein it has been held that where the actions of such an officer indicate culpability namely a desire to oblige himself or unduly favour one of the parties or in improper motive, there is no reason why the disciplinary action should not be taken. In paras 28 of the decision the Hon'ble Apex Court has further held that the officer who exercises judicial or quasi-judicial powers acts negligently or recklessly or in order to confer undue favour on a person is not acting as a Judge. It was also observed that legality of orders with reference to nine assessments may be questioned in appeal or revision under the Act. But we have no doubt in our mind that the Government is not precluded from taking disciplinary action for violation of Conduct Rules. Thereafter the Hon'ble Apex Court concluded that the disciplinary action can be taken (i) Where the officer had actetf 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 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.
17. In K.P. Tiwari v. State of Madhya Pradesh , wherein while cancelling the bail granted by the petitioner, a Judicial Officer, High Court passed certain strictures against him. On challenge being made, the Hon'ble Apex Court while expunging the adverse remarks has held that every error in the Judgment may not to be attributed to improper motive. The pertinent observations made by the Hon'ble Apex Court in para 4 of decision are extracted as under:
4. We are, however, impelled to remind the learned Judge of the High Court that however anguished he might have been over the unmerited bail granted to the accused, he should not have allowed himself the latitude of ignoring judicial precaution and propriety even momentarily. 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 acknowledges the fallibility 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. It is will said that a judge who has not committed an error is yet to be bom. And that applies to judges at all levels from the lowest to the highest. Sometimes, the difference in views of the higher and the lower courts is purely a result of a difference in approach and perception. On such occasions, the lower courts are not necessarily wrong and the higher courts always right. It lias also to be remembered that the lower judicial officers mostly work under a charged atmosphere and are constantly under a psychological pressure with all the contestants and their lawyers almost breathing down their necks-more correctly upto their nostrils. They do not have the benefit of a detached atmosphere of the higher courts to think coolly and decide patiently. Every error, however gross it may look, should not, therefore, be attributed torn improper motive. It is possible that a particular judicial officer may be consistently passing orders creating a suspicion of judicial conduct which is not wholly or even partly attributable to innocent functioning. Even in such cases, the proper course for the higher court to adopt is to make note of his conduct in the confidential record of his work and to use it on proper occasions: The judges in the higher courts have also a duty to ensure judicial discipline and respect for the judiciary from all concerned. The respect for the judiciary is not enhanced when judges at the lower level are criticised intemperately and castigated publicly. No greater damage can be done to the administration of justice and to the confidence of the people in the judiciary than when the judges of the higher courts publicly express lack of faith in the subordinate judges for one reason or the other. It must be remembered that the officers against whom such strictures are publicly passed, stand condemned for ever in the eyes of their subordinates and of the members of the public. No better device can be found to destroy the judiciary from within. The judges must, therefore, exercise self-restraint. There are ways and ways of expressing disapproval of the orders of the subordinate courts but attributing motives to them is certainly not one of them. That is the surest way to take the judiciary downhill.
18. In Kashi Nath Roy v. State of Bihar , wherein the appellant was a Judicial Officer in Superior Judicial Service in State of Bihar. In a case in which a bail application had been rejected by his predecessor he granted bail on the ground that the evidence of test identification on parade of the culprits gathered by investigation, an evidence important in a dacoity case, was highly suspicious inasmuch as witnesses who were made to participate in the same had already on their own disclosed the names of the accused committing the crime, to the Investigating Officer. A Single Judge of High Court, while setting aside the appellant's order and cancelling the bail, passed serious remarks against the appellant and proposed disciplinary action against him. Allowing his appeal and expunging the said remarks, the Hon'ble Apex Court has held that the courts exercising bail jurisdiction normally do and should refrain from indulging in elaborate reasoning in their orders in justification of grant or non-grant of bail. For, in that manner, the principle of "presumption of innocence of an accused" gets jeopardized; and the structural principle of "not guilty till proved guilty" gets destroyed, even though all sane elements have always understood that such views are tentative and not final, so as to affect the merit of the matter. Here, the appellant has been caught and exposed to a certain adverse comment and action solely because in reasoning he had disclosed his mind while grating bail. This may have been avoidable on his part, but in terms not such a glaring mistake or impropriety so as to visit the remarks that the High Court has chosen to pass on him as well as to initiate action against him as proposed.
19. In M.S. Bindra v. Union of India and Ors. the appellant being Director of Ante Evasion Wing conducted series of raids on business houses to unearth huge amount of concealed excise duty. He was dubbed as an officer of doubtful integrity and ordered to compulsorily retire. The Screening Committee has evaluated three instances and recommended his compulsory retirement. The order of premature compulsory retirement was challenged by the the appellant before Central Administrative Tribunal. Being unsuccessful before the Tribunal, he preferred appeal before the Hon'ble Apex Court. The Hon'ble Apex Court has held that there was utter dearth of evidence for the Screening Committee to conclude that the appellant had doubtful integrity. In para 13 of the decision, the Hon'ble Apex Court observed as under:
13. While viewing this case from the next angle for judicial scrutiny, i.e., want of evidence or material to reach such a conclusion, we may add at want of any material is almost equivalent to the next situation that from the available materials, no reasonable man would reach such a conclusion. While evaluating the materials, the authority should not altogether ignore the reputation in which the officer was held till recently. The maxim "Memo firut repente turpissimus" (no one becomes dishonest all of a sudden) is not unexceptional but still it is a salutary guideline to judge human conduct, particularly in the field of administrative law. The authorities should not keep their eyes totally closed towards the over all estimation in which the delinquent officer was held in the recent past by those who were supervising him earlier. To dunk an officer into the puddle of "doubtful integrity", it is not enough that the doubt fringes on a mere hunch. That doubt should be of such a nature as would reasonably and consciously be entertainable by a reasonable man on the given material. Mere possibility is hardly sufficient to assume that it would have happened. There must be preponderance of probability for the reasonable man to entertain doubt regarding that possibility. Only then there is justification to ram an officer with the label "doubtful integrity.
20. In Zunjarrao Bhikaji Nagarkar v. Union of India and Ors. , the appellant was Collector of Central Excise while adjudicating the case of assessee held that assesseee had clandestinely manufactured and cleared the excise goods wilfully and evaded the excise duty. The Collector ordered confiscation of the goods. However, penalty under Rule 173-Q of Excise Rules was not levied on the assessee. Disciplinary proceedings were initiated, against the appellant Collector on allegation that he favoured the assessee by not imposing penalty. The Hon'ble Apex Court has held that it was not the case that the appellant did not impose penalty because of any negligence on his part but he said it was not a case of imposition of penalty. When penalty is not levied, the assessee certainly benefits. But it cannot be said that by not levying the penalty the officer has favoured the assessee or shown undue favour to him. There has to be some basis for the disciplinary authority to reach such a conclusion even prima facie. The pertinent observation made by Hon'ble Apex Court in paras 40 to 44 are extracted as under:
40. When we talk of negligence in a quasi judicial adjudication, it is not negligence perceived as carelessness inadvertence or omission but as culpable negligence. This is how this Court in State of Punjab v. Ram Singh Ex-constable interpreted "misconduct" not coming within the purview of mere error in judgment, carelessness or negligence in performance of the duty. In the case of K.K. Dhawan , the allegation was of conferring undue favour upon the assessees. It was not a case of negligence as such. In Upendra Singh's case , the charge was that he gave illegal and improper directions to the assessing officer in order to unduly favour the assessee. Case of K.S. Swaminathan , was not where the respondent was acting in any quasi judicial capacity. This Court said that at the stage of framing of the charge the statement of facts and the charge-sheet supplied are required to be looked into by the Court to see whether they support the charge of the alleged misconduct. In M.S. Bindra's case where the appellant was compulsorily retired this Court said that judicial scrutiny of an order imposing premature compulsory retirement is permissible if the order is arbitrary or mala fide or based on no evidence. Again in the case of Madan Mohan Choudhary , which was also a case of compulsory retirement this Court said that there should exist material on record to reasonably form an opinion that compulsory retirement of the officer was in public interest. In K.N. Ramamurthy's case , it was certainly a case of culpable negligence. One of the charges was that the officer had failed to safeguard Government revenue. In Hindustan Steel Ltd.'s case , it was said that where proceedings are quasi judicial penalty will not ordinarily be imposed unless the party charged had acted deliberately in defiance of law or was guilty of conduct contumacious or dishonest or acted in conscious disregard of its obligation. This Court has said that the penalty will not also be imposed merely because it is lawful so to do. In the present case, it is not that the appellant did not impose penalty because of any negligence on his part but be said it was not a case of imposition of penalty. We are, however, of the view that in a case like this which was being adjudicated upon by the appellant imposition of penalty was imperative. But then, there is nothing wrong or improper on the: part of the appellant to form an opinion that imposition of penalty was not mandatory. We have noticed that Patna High Court while interpreting Section 325, I.P.C. held that imposition of penalty was not mandatory which again we have said is not a correct view to take. A wrong interpretation of law cannot be a ground for misconduct. Of course it is a different matter altogether if it is deliberate and actuated by mala fides.
41. When penalty is not levied, the assessee certainly benefits. But it cannot be said that by not levying the penalty the officer has favoured the assessee or shown undue favour to Mm. There has to be some basis for the disciplinary authority to reach such a conclusion even prima facie. Record in the present case does not show if the disciplinary authority had any information within its possession from where it could form an opinion that the appellant showed 'favour' to the assessee by not imposing the penalty. He may have wrongly exercised his jurisdiction. But that wrong can be corrected in appeal. That cannot always form basis for initiating disciplinary proceedings for an officer while he is acting as quasi judicial authority. It must be kept in mind that being a quasi judicial authority, he is always subject to judicial supervision in appeal.
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. 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 son 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.
44. Considering whole aspects of the matter, we are of the view that it was not a case of initiation of any disciplinary proceedings against the appellant. Charge of misconduct against him was not proper. It has to be quashed.
21. In P.C. Joshi v. State of U.P. and Ors. , it has been held by Hon'ble Apex Court that possibility, of different conclusion in given set of facts cannot create basis to initiate disciplinary proceedings against judicial officer discharging judicial functions. While taking note of earlier decisions, the pertinent observation made in para 7 of the judgment of Hon'ble Apex Court is reproduced as under:
7. In the present case, though elaborate enquiry has been conducted by the Enquiry Officer there is hardly any material worth the name forthcoming except to scrutinize each one of the orders made by the appellant on the judicial side to arrive at a different conclusion. That there was possibility on a given set of facts to arrive at a different conclusion is no ground to indict a judicial officer for taking one view and that too for alleged misconduct for that reason alone. The Enquiry Officer has not found any other material, which would reflect on his reputation or integrity or good faith or devotion to duty or that he has been actuated by any corrupt motive. At best he may say that the view taken by the appellant is not proper or correct and not attribute any motive to him which is for extraneous consideration that he had acted in that manner. If in every case where an order of a subordinate court is found to be faulty a disciplinary action were to be initiated, the confidence of the subordinate judiciary will be shaken and the officers will be in constant fear of writing a judgment so as not to face a disciplinary enquiry and thus judicial officers cannot act independently or fearlessly. Indeed the words of caution are given in K.K. Dhawan's case (supra) and A.N. Saxena's case (supra) that merely because the order is wrong or the action taken could have been different does not warrant initiation of disciplinary proceedings against the judicial officer. In spite of such caution, it is unfortunate that the High Court has chosen to initiate disciplinary proceedings against the appellant in this case.
22.In recent case of Ramesh Chander Singh v. High Court of Allahabad and Anr. , the Hon'ble Apex Court has again considered the earlier decisions rendered in case of Ishwar Chandra Jain v. High Court of Punjab and Haryana , K.P. Tiwari v. State of Madhya Pradesh (supra), Kashi Nath Roy v. State of State of Bihar (supra), Brij Kishore Thakur v. Union of India , Alok Kumar Roy v. Dr. S.N. Sharma of the decision reiterated the view taken in Zunjarrao Bhikaji Nagarkar (supra) as under:
17. In Lunjarrao Bhikaji Nagarkar v. Union of India, this Court held that wrong exercise of jurisdiction by a quasi judicial authority or mistake of law or wrong interpretation of law cannot be the basis of initiating disciplinary proceeding. Of course, if the Judicial Officer conducted in a manner as would reflect on his reputation or integrity or good faith or there is a prima facie material to show recklessness or misconduct in discharge of his duties or he had acted in manner to unduly favour a party or had passed an order actuated by corrupt motive, the High Court by virtue of its power under Article 235 of the Constitution may exercise its supervisory jurisdiction. Nevertheless, under such circumstances it should be kept in mind that the Judges at all levels have to administer justice without fear or favour. Fearlessness and maintenance of judicial independence are very essential for an efficacious judicial system. Making adverse comments against subordinate judicial officers and subjecting them to serve disciplinary proceedings would ultimately harm the judicial system at the grass-root level.
23. Thus in view of the aforesaid legal position stated by the Hon'ble Apex Court we have to examine the case in hand. In this connection we must first note the gist of charge-memo which has been made basis for holding disciplinary inquiry against the petitioner and further the findings of Hon'ble Enquiry Judges forming basis of impugned order of punishment passed against the petitioner.
24. The charge-memo dated 25.10.2004 contained in Annexure-4 of the writ petition is extracted as under:
CHARGE SHEET.
To Sri Jaivir Singh the then IVth Additional District Judge Ghaziabad.
You are hereby charged as under:
charge No. 1. That you on 16.01.2001, while posted as IV th Additional District Judge, Ghaziabad, made a re-assessment of the value of 3 Bighas and 4 Biswa, by Rs. 95/- per square yard without having jurisdiction, so to do on the supplementary award restricted to dwelling house and trees, in your judgment in Land Acquisition Reference No. 624 of 1997, Wing Commander P.D. Bali v. State of U.P. entertaining the application of the claimant without there being any provision, so to do, in your anxiety to unduly favour the claimant illegally, as no reference under Section 18 of the Land Acquisition Act 1894 had been made against the award dated 07.12.1990 given by A.D.M. (Land Acquisition), thereby unduly giving the claimant an additional amount of Rs. 24,49,493/- against all judicial norms and propriety for extraneous considerations, and you thus committed misconduct within the meaning of Rule 3 of U.P. Government Servant Conduct Rules 1956.
Evidence which is proposed to be considered in support of the charges:
1. Photocopy of your judgment dated 16.01.2001 passed in L.A.R. No.624/1997, Wing Commander P.D. Bali v. State of U.P.
2. Photocopy of supplementary award dated 10.8.1997 of A.D.M. (Land Acquisition) in the aforesaid matter.
3. Photocopy of application of claimant dated 04.09.1997.
4. Photocopy of award of Special Land Acquisition Officer dated 0712.1990.
5. Photocopy of Writ Petition No. 22274/1993 Wing Commander P.D. Bali v. State of U.P.
6. Record of Civil Misc. Writ Petition No. 22274/1993, Wing Commander P.D. Bali v. State of U.P.
7. Calculation chart of the amount payable to the claimants on the basis of your judgment in the matter.
8. Any other evidence relating to any of the aforementioned charge, which may be found necessary during the course of enquiry, shall be considered after due notice to you.
You are required to put in your written reply to the charge, within 15 days of the receipt of this charge sheet.
You are further informed that in case you do not file written reply within the prescribe time, it will be presumed that you have none to furnish and if you fail to appear on the specified date, the enquiry shall proceed and be completed ex-parte.
The copies of the documentary evidence in support of the charge are attached herewith, except record of Civil Misc. Writ Petition No. 2274/1993, Wing Commander P.D. Bali v. State of U.P. which may be inspected by you in the office of O.S.D. (Enquiry) after giving prior information therefore.
If you desire, or if the undersigned so directs, an oral enquiry shall be held in respect of such allegations not admitted. At that enquiry, such oral evidence will be recorded as the undersigned consider necessary and you shall be entitled to cross-examine the witnesses.
You are further required to inform the undersigned, in writing, whether you desire to be heard in person and in case you wish to examine any witnesses, to submit alongwith your written reply, their names and addresses, together with a brief indication of the evidence which each such witness shall be expected to give.
Sd/-Illegible Sd/-Illegible
(JUSTICE S.U. KHAN) (JUSTICE IMTIYAZ MURTAZA)
Enquiry Judge Enquiry Judge
25.10.2004
25. The inquiry report dated 14.9.2005 is extracted as under:
DEPARTMENTAL ENQUIRY No. 23(D) OF 2004 AGAINST
SHRIJAIVIR SINGH. ADDITIONAL DISTRICT JUDGE
The charge-sheet was issued against Shri Jaivir Singh, A.D.J. On 25.10.2004 containing the following charge:
That you on 16.01.2001, while posted as IV th Additional District Judge, Ghaziabad, made a re-assessment of the value of the land enhancing the value of acquired land, area 3 Bighas & 4 Biswas, by Rs. 92/- per square yard without having jurisdiction, so to do, on the supplementary award restricted to dwelling house and trees, in your judgment in Land Acquisition Reference No. 624 of 1997, Wing Commander P.D. Bali v. State of U.P. entertaining the application of the claimant, without there being any provision, so to do, in your anxiety to unduly favour the claimant illegally, as no reference u/s 18 of the Land Acquisition Act 1894 had been made against award dated 7.12.1990 given by A.D.M. (Land Acquisition), thereby unduly giving the claimant and additional amount of Rs. 24,49,493/- against all judicial norms and propriety for extraneous considerations, and you thus committed misconduct within the meaning of Rule 3 of U.P. Government Servants Conduct Rules 1956.
When the aforesaid L.A., Reference No.624 of 1997 was decided by Sri Jaivir Singh, charged officer, (hereinafter referred to as CO.) on 16.01.2001 he was posted as IV th Additional District Judge, Ghaziabad.
The original award was given by S.L.A.O. on 7.12.1990 and it was confined only to the valuation of the acquired land. Thereafter the claimant i.e. Wing Commander P.D. Bali pressed before S.L.A.O. for award of compensation in respect of superstructure and the trees respect of the said two items was given on 30.08.1997 which is termed as supplementary award. Thereafter on 08.09.1997 claimant applied for reference to the District Judge under Section 18 of Land Acquisition Act as he was not satisfied with the compensation awarded by S.L.A.O. S.L.A.O. made the reference on the basis of which reference in question was registered and transferred to CO. for disposal. In the referring order S.L.A.O. under Clause 17 pertaining to basis for determination of compensation made a note, English translation of is given below:
The land owner did not file any application for reference under Section 18 against award in respect of land dated 07.12.1990 regarding which claimant/land owner has mentioned in his application dated 08.09.1997. Award in respect of property (superstructure and trees) was given on 30.08.1997. Hence application for reference in respect thereof is within time. In the application land owner has also requested for making reference in respect of the acquired land. In my opinion in respect of reference pertaining to acquired land, court, will have to decide as to whether it is maintainable or not.
17& izfrdj fu/kkZj.k dk vk/kkj% HkLokeh }kjk Hkwfe ds vfHkfu.kZ; fnukad 07-12-1990 ds fo:) /kkjk 18 dk jsQjsUl ;ksftr ugh fd;k x;k Fkk ftldk fooj.k mUgksus vius layXu izkFkZuk i= fnukad 08-09-1997 esa fn;k gS A lEifRr dk vokM+Z 30-08-1967 dks gqvk gS tks le; ds vUrxZr gS A ftles HkwLokeh us vftZr Hkwfe dk Hkh jsQjsUl fd;k gS A esjs fopkj ls vftZr Hkwfe ds jsQjsUl ij U;k;ky; dks fu.kZ; ysdj ;g r; djuk gksxk fd Hkwfe dk jsQjsUl izxfr'khy gS vFkok ugh A g0 v0 vij ftyf/kkdkjh w0 v0 flpkbZ] xft;kckn From the above it is quite clear that land Acquisition officer had not made any reference in respect of correctness of compensation awarded for the acquired land. While hearing the reference under Section 18 of land Acquisition Act, D.J./A.D.J. cannot go beyond the referring order.
In this regard reference may be made to the observation of Privy Council in P.N.M. Bahadur v. Secretary of State AIR 1930 P.C. 84 quoted with approval by the Supreme Court in P.U.A.E.N.S.S. Ltd. Allahabad Vikas Pradhikaran Their Lordships have no doubt that the jurisdiction of the courts under this Act. (LA. Act) is a special one and is strictly limited by the terms of these sections. It only arises when a specific objection has been taken to the Collector's award and it is confined to a consideration of that objection. Once, therefore, it is ascertained that the only objection taken is to the amount of compensation that alone is the "matter" referred and the court has no power to determine or consider anything beyond it.
However, CO. while deciding the reference enhanced the compensation in respect of the land also by determining and directing payment of compensation of the acquired land at the rate ofRs.163/- per sq. alongwith solatium etc. S.L.A.O. had determined the market value of the land at the rate of Rs. 71.43 p. per.sq. Yard. In this manner CO. by the judgment in question enhanced the market value of the land by Rs. 91.57 p. (Area of claimant's land which was acquired was 9680 sq. yards).
In this manner we are of the opinion that CO. has absolutely no jurisdiction or authority to re-determine the market value of the land. The said matter had not been referred to him. S.L.A.O. in the referring order unnecessarily noted the question of maintainability of reference in respect of the valuation of land shall be decided by court. There is no provision under Land Acquisition Act under which maintainability of reference may be left to be decided by the civil court. The decision whether to refer a particular matter or not has to be taken by S.L.A.O. The note appended by S.L.A.O. at the end of referring order leaves no doubt that no reference was made in respect of market value of the land. The most alarming aspect is that even if it is assumed that by virtue of note appended to the referring order by S.L.A.O., reference court was authorised to determine the validity of the reference, in respect of market value of land CO. should have specifically dealt with this aspect of the matter. It is rather shocking that CO. in his judgment in question did not say single word about the maintainability of reference in respect of the acquired land.
Accordingly we hold that the charge mentioned in the charge sheet is proved against the CO.
Quantum of punishment is left upon the Hon'ble the Chief Justice/A.C./Full Court.
The report is submitted accordingly.
Sd/- Sd/- (Justice S.U. Khan) (Justice Imtiyaz Murtaza) Enquiry Judge Enquiry Judge 14.9.2005
26. From the perusal of charge-sheet dated 25.10.2004 contained in Annexure-4 of the writ petition and inquiry repoit dated 14.9.2005 contained in Annexure-2 of the writ petition it appears that a charge was levelled against the petitioner that while deciding the Land Acquisition reference No. 624 of 1997 he made a re-assessment of value of land enhancing the value of acquired land area 3 Bighas 4 Biswas by Rs. 92 per square yard without having jurisdiction to do so on supplementary award restricted to dwelling house and trees while entertaining the application of the claimant without there being any provision so to do in his anxiety to unduly favour the claimant illegally without any reference under Section 18 of the Land Acquisition Act had been made against the award dated 7.12.1990 given by Additional Collector Land Acquisition, thereby unduly given the claimant an additional amount of Rs. 24,49,493/-compensation against all judicial norms and propriety for extraneous considerations and thus has committed misconduct within the meaning of Rule 3 of 1956 Rules.
27. At this juncture it is necessary to point out that from the perusal of charge-sheet dated 25.10.2004 and inquiry report dated 14.9.2005 there is nothing to indicate that either Ghaziabad Development Authority or anybody else has made any complaint against the petitioner or any preliminary inquiry or fact of finding inquiry has been held against him wherein some more material has been collected to establish guilt against the petitioner in disciplinary inquiry or any oral or other evidence has been adduced to demonstrate that some extraneous consideration has played dominant role or actuated the petitioner for giving the judgment and award dated 16.1.2001 which is subject matter of such disciplinary inquiry, rather the aforesaid judgment and order/award delivered in Reference No. 624 of 1997 alone is subject matter of disciplinary inquiry in question held against him, therefore, it is necessary to examine the same and test it at the anvil of the norms set out by Hon'ble Apex Court in various decisions rendered from time to time referred herein before. It is no doubt true that legality and propriety of the decision rendered by the petitioner can be examined at Appellate forum in the judicial side under Section 54 of the Act by this Court and thereafter by Apex Court. Nevertheless the same cannot be held to be immune from the scrutiny in disciplinary proceeding held against the petitioner. It is no doubt true that in such disciplinary proceeding the decision rendered by the petitioner while discharging his judicial or quasi judicial function cannot be set aside, howsoever erroneous it may be and error committed in the decision can be corrected and rectified only at higher forum in appeal but very conduct of the petitioner while discharging his judicial and quasi judicial function can be examined in disciplinary proceeding as otherwise there would be complete immunity from such inquiry regarding the acts or omissions of the officers discharging judicial or quasi judicial functions, while passing judicial or quasi judicial orders.
28. Now the questions arise for our consideration are that what are the essential conditions for making reference under Section 18 of the Act and how for the reference is made to the court and what is scope of inquiry to be made by the court? In this connection, it is pointed out that Section 18 of the Act provides provision for making reference which reads as under:
"REFENCE TO COURT AND PROCEDURE THEREON
18. Reference to Court. (1) Any person interested who has not accepted the award may, by written application to the Collector, require that the matter be referred by the Collector for the determination of the Court, whether his objection be to the measurement of the land, the amount of the compensation, the persons to whom it is payable, or the apportionment of the compensation among the persons interested.
2. The application shall state the grounds on which objection to the award is taken:
Provided that every such application shall be made,
(a) if the person making it was present or represented before the Collector at the time when he made his award, within six weeks from the date of the Collector's award;
(b) in other cases, within six weeks of the receipt of the notice from the Collector under Section 12, Sub-section (2), or within six months from the date of the Collector's award, whichever period shall first expire.
29. Section 19 of the Act provides provision for Collector's statement to the court while making reference under Section 18 of the Act which reads as under:
19. Collector's statement to the Court. (1) In making the reference, the Collector shall state for the information of the Court, in writing under his hand, -
(a) the situation and extent of the land, with particulars of any trees, buildings or standing crops thereon;
(b) the names of the persons who he has reason to think interested in such land;
(c) the amount awarded for damages and paid or tendered under Sections 5 and 17, or either of them, and the amount of compensation awarded under Section 11;
(cc) the amount paid or deposited under Sub-section (3-A) of Section 17; and
(d) if the objection be to the amount of the compensation, the grounds on which the amount of compensation was determined (2) To the said statement shall be attached a schedule giving the particulars of the notices served upon, and of the statements in writing made or delivered by, the parties interested respectively.
30. Section 20 of the Act deals with service of notice upon interested persons and Section 21 imposes restrictions on the scope of proceedings. The provisions of Sections 20 and 21 of the Act are extracted as under:
20. Service of notice.- The Court shall thereupon cause a notice, specifying the day on which the Court will proceed to determine the objection, and directing their appearance before the Court on that day, to be served on the following persons, namely:
(a) the applicant;
(b) all persons interested in the objection, except such (if any) or them as have consented without protest to receive payment of the compensation awarded; and
(c) If the objection is in regard to the area of the land or to the amount of the compensation, the Collector.
21. Restriction on scope of proceedings.- The scope of the enquiry in every such proceeding shall be restricted to a consideration of the interests of the persons affected by the objection.
31. At this juncture it would be useful to refer some decisions rendered by Hon'ble Apex Court from time to time. In Kothamasu Kanakarathama and Ors. v. State of Andhra Pradesh , the Land Acquisition Officer made a reference to the court for apportionment of compensation amount among the various claimants under Section 30 of the Act. Six of the appellants did not accept the award of Land Acquisition Officer and made application in writing to him within time allowed by law for referring the matter for determination of the court but no reference was made by Land Acquisition Officer in pursuance of these applications. When the matter came up before the court, it proceeded on footing that the reference made to it by the Land Acquisition Officer was not limited to the apportionment of compensation but was also with respect to amount of compensation. No objection was however raised on behalf of State that in absence of any reference upon the application of six of the appellants the court was incompetent to deal with that matter. When the matter went before the High Court by way of appeal from the Judgment of Subordinate Judge, the government pleader raised the question that in absence of reference on the question of quantum of compensation by the Land Acquisition Officer, the court had no jurisdiction to consider the matter at all. The High Court, though it ultimately reversed the finding of the court as to the amount of compensation, unfortunately allowed the plea to be raised before it but ultimately upon a consideration of certain decisions negatived it. In para 2 of the decision the Hon'ble Apex Court has noticed that quite clearly applications objecting rate at which compensation was allowed were taken in time by persons interested in the land which were under acquisition and it was no fault of theirs that reference was not made by Land Acquisition Officer. The Hon'ble Apex Court has observed as under:
Indeed, whenever applications are made under Section 18 of the Land Acquisition Act, it is the duty of the Land Acquisition Officer to make a reference unless there is a valid ground for rejecting the applications such as for instance that the applications were barred by time. Where an officer of the State is remiss in the performance of his duties in fairness the State ought not to take advantage of this fact. We are further of the opinion that the High Court, after the plea had been raised, would have been well-advised to adjourn the matter for enabling the appellants before us, who were respondents in the High court, to take appropriate steps for compelling the Land Acquisition Officer to make a reference.
32. In para 3 of the decision the Hon'ble Apex Court has further observed as under:
The proviso to Sub-section (2) prescribes the time within which an application under Sub-section (1) is to be made. Section 19 provides for the making of a reference by the Collector and specifies the matters which are to be comprised in that reference. Thus the matter goes to the court only upon a reference made by the Collector. It is only after such a reference is made that the court is empowered to determine the objections made by a claimant to the award. Section 21 restricts the scope of the proceedings before the court to consideration of the contention of the persons affected by the objection. These provisions thus leave no doubt that the jurisdiction of the court arises solely on the basis of a reference made to it. No doubt, the Land Acquisition Officer has made a reference under Section 30 of the Land Acquisition Act but that reference was only in regard to the apportionment of the compensation amongst the various claimants. Such a reference would certainly not invest the Court with the jurisdiction to consider a matter not directly connected with it. This is really not a mere technicality for as pointed out by the Privy Council in Nusserwanjee Pestonjee v. Meer Mynoodeen Khan wullud Meer Mynoodeen Khan wullud Meer Sudroodeen Khan Bahadoor 6 Moo Ind App 134 at p. 155 (PC) wherever jurisdiction is given by a statute and such jurisdiction is only given upon certain specified terms contained therein it is a universal principle that those terms should be complied with, in order to create and raise the jurisdiction, and if they are not complied with the jurisdiction does not arise. This was, therefore, a case of lack of inherent jurisdiction and the failure of the State to object to the proceedings before the court on the ground of an absence of reference in so far as the determination of compensation was concerned cannot amount to waiver or acquiescence. Indeed, when there is an absence of inherent jurisdiction, the defect cannot be waived nor can be cured by acquiescence.
33. The duty and scope of power of Collector for making reference under Section 18 of the Act and the duty and scope of inquiry of the reference court has been considered again by Hon'ble Apex Court in quite detail in case of Mohammed Hasnuddin v. State of Maharashtra , wherein one of the question which fell for consideration before the Hon'ble Apex Court was that whether the court can go into a question that the application for reference was not made to the Collector within time prescribed under Section 18 Sub-section (2) of the Land Acquisition Act and if so, can it refuse to entertain the reference if it finds it to be barred by time. The aforesaid question has been answered by Hon'ble Apex Court in paras 24 and 25 of the decision as under:
24. The word 'require' in Section 18 of the Act implies compulsion. It carries with it the idea that the written application makes it incumbent on the Collector to make a reference. The Collector is required to make a reference under Section 18 on the fulfilment of certain conditions. The first condition is that there shall be a written application by a person interested who has not accepted the award. The second condition is as to the nature of the objections which may be taken and the third condition is as to the time within which the application shall be made. The power of the Collector to make a reference under Section 18 is thus circumscribed by the conditions laid down therein, and one condition is the condition regarding limitation to be found in the proviso.
25. The conditions laid down in Section 18 are 'matters of substance and their observance is a condition precedent to the Collector's power of reference', as rightly observed by Chandavarkar J. in Re land Acquisition Act (supra). We are inclined to the view that the fulfilment of the conditions, particularly the one regarding limitation, are the conditions subject to which the power of the Collector to make the reference exists. It must accordingly be held that the making of an application for reference within the time prescribed by proviso to Section 18, Sub-section (2) is a sine qua non for a valid reference by the Collector.
34. However, in the aforesaid case while deciding another question regarding the scope of inquiry by the reference court in paras 26, 27, 28 and 29 of the aforesaid decision the Hon'ble Apex Court has observed as under:
26. From these considerations, it follows that the court functioning under the Act being a tribunal of special jurisdiction, it is its duty to see that the reference made to it by the Collector under Section 18 complies with the conditions laid down therein so as to give the court jurisdiction to hear the reference. In view of these principles, we would be extremely reluctant to accept the statement of law laid down by the Allahabad High Court in Abdul Karim's case (supra).
27. Every tribunal of limited jurisdiction is not only entitled but bound to determine whether the matter in which it is asked to exercise its jurisdiction comes within the limits of its special jurisdiction and whether the jurisdiction of such tribunal is dependent on the existence of certain facts or circumstances. Its obvious duty is to see that these facts and circumstances exist to invest it with jurisdiction, and where a tribunal derives its jurisdiction from the statute that creates it and that statute also defines the conditions under which the tribunal can function, it goes without saying that before that tribunal assumes jurisdiction in a matter, it must be satisfied that the conditions requisite for its acquiring seisin of that matter have in fact arisen. As observed by the Privy Council in Nusserwanjee Pastonjee v. Meer Mynoodeen Khan (1855) 6 Moo Ind. App. 134, wherever jurisdiction is given to a court by an Act of Parliament and such jurisdiction is only given upon certain specified terms contained in that Act it is a universal principle that these terms must be complied with, in order to create and raise the jurisdiction for if they be not complied with the jurisdiction does not arise.
28. If an application is made which is not within time, the Collector will not have the power to make a reference. In order to determine the limits of his own power, it is clear that the Collector will have to decide whether the application presented by the claimant is or is not within time and satisfies the conditions laid down in Section 18. Even if a reference is wrongly made by the Collector the court will still have to determine the validity of the reference because the very jurisdiction of the court to hear a reference depends on a proper reference being made under Section 18, and if the reference is not proper, there is no jurisdiction in the court to hear the reference. It follows that it is the duty of the court to see that the statutory conditions laid down in Section 18 have been complied with, and it is not debarred from satisfying itself that the reference which it is called upon to hear is a valid reference. It is only a valid reference which gives jurisdiction to the court and, therefore, the court has to ask itself the question whether it has jurisdiction to entertain the reference.
29. In deciding the question of jurisdiction in a case of reference under Section 18 by the Collector to the court, the court is certainly not acting as a court of appeal; it is only discharging the elementary duty of satisfying itself that a reference which it is called upon to decide is a valid and proper reference according to the provisions of the Act under which it is made. That is a basic and preliminary duty which no tribunal can possibly avoid. The court has, therefore, jurisdiction to decide whether the reference was made beyond the period prescribed by the proviso to Sub-section (2) of Section 18 of the Act, and if it finds that it was so made, decline to answer reference.
35. In Khazan Singh v. Union if India , while dealing with the import of the provisions of Sections 18, 20 and 26 of the Act it was held as under:
6. Section 18 of the Act empowers a person interested in the land to move by a written application to the Collector requiring that the matter is referred for determination of the Court, whether his objection be to the measurement of the land, the amount of compensation, the person to whom it is payable, or the apportionment of the compensation among the persons interested. If the application for reference is in order the Collector is bound to make a reference of it to the Court. Section 20 of the Act enjoins on the Court to "proceed to determine the objection." The Court shall after holding such inquiry as may be necessary pass an award.
36. In Prayag Upnivesh Awash Evam Nirman Sahkari Samiti Ltd. v. Allahabad Vikas Pradhikaran and Anr. , wherein a piece of land was acquired under the provisions of the Act at the instance of Allahabad Development Authority in the year 1987. Emergency provisions invoked and an award was published on 25.5.1987. The land in question was Government land which had been given on lease to Shiv Narain Chaudhary, Laxman Narain Chaudhary and Ors.. The period of lease had expired in 1960 and it was not renewed. An amount of Rs. 9,80,565.06/- was fixed in award. As both the Government and lease holders claimed the compensation, the Special Land Acquisition Officer referred the dispute to the Civil court on 12.10.1987 under Section 30 of the Act. The reference was registered as Reference case No. 124 Of 1987. While the reference was pending before the Civil court, the Additional District Judge, Allahabad sent a communication on 11.8.1992 to the S.L.O. stating that on perusal of case file an application filed under Section 18 of the Act by appellant before Hon'ble Apex Court namely Sahkari Samiti was found to be on file and that no mention had been made regarding that application in the letter of reference. A clarification, therefore, was sought by the Additional District Judge. Pursuant to this communication the S.L.O. sent the reply stating that such an application was also attached and due to an error, the same was not mentioned in the letter dated 12.10.1987. After rectification of this letter, the 1lth Additional District Judge impleaded the appellant Samiti and proceeded in the matter as if there was a proper reference under Section 18 of the Act, thus, the market value of the land was enhanced and 75% amount of compensation was awarded to the appellant whereas 25% to the Government. The aforesaid award was challenged before this Court by the A.D.A. and State Government both. This Court held that there was no proper reference under Section 18 of the Act and enhancement of compensation ordered by Reference Court was set aside. However, the apportionment of compensation between the appellant and State Government in proportion of 75% and 25% remained intact. The aforesaid decision of this Court was challenged before the Hon'ble Apex Court by the appellant.
37. In para 4 of the decision the Hon'ble Apex Court formulated the question and in para 5, 6 and 7 of the decision, the aforesaid question has been dealt with and answered as under:
4. The short question that arises for consideration is whether the SLAO had made a reference under Section 18 of the Act? Admittedly, the original reference was only under Section 30 of the Act, or apportionment as there was a dispute as to who should get the compensation.
5. In the reference letter sent by the SLAO on 12.10.1987, nothing has been stated regarding the claim for enhancement of compensation put in by any of the parties. It is also pertinent to note that in the reference letter, the appellant-Samiti is not shown as a party. The first claimant is one, Shiv Narain Lai Chaudhary and there are six other claimants. The reference letter of the SLAO clearly shows that the appellant-Samiti was not a party to such reference. It is surprising as to how the learned Addl. District Judge could seek a clarification on the basis of an application which was found on the file and if such an application was made by any party, naturally there would have been a reference under Section 18 of the Act and it would have been specifically mentioned in the reference letter. It is equally surprising that even though the appellant was not a party to the reference case and was allegedly not having knowledge of the proceedings, how and at whose instance the clarification was sought by the Additional District Judge. It is also pertinent to note that the clarification issued by the SLAO subsequent to the letter from the Addl. District Judge, cannot be construed as reference under Section 18 of the Act. There letter from SLAO reads as follows:
This is with reference to your letter dated 11.8.1992 whereby you have enquired as to whether in the reference forwarded on 12.10.1987 entitled as State State Government v. Shiv Narayan Chaudhary and Ors. the reference of Prayag Upnivesh Sahkari Samiti, under Section 30/18 was also made? In this connection it is submitted that in the file of the office, the reference of Prayag Upnivesh Samit Ltd., is also attached. Probably, due to error in the previous reference letter dated 12.10.1987 the same was not mentioned.
The letter quoted above by itself is not sufficient to make it as a reference purported to have been made under Section 18 of the Act. The learned Additional District Judge clearly erred in assuming that there a reference under Section 18 of the Act. The subsequent impleadment of the Samiti as a party to the reference, which was pending under Section 30 of the Act, and the conversion of the same also as a reference under Section 18, were illegal and has rightly been quashed by the High Court.
7. It is well established that the reference Court gets jurisdiction only if the matter is referred to it under Section 18 or 30 of the Act by the Land Acquisition Officer and that Civil Court has got the jurisdiction and authority only to decide the objections referred to it. The reference Court cannot widen the scope of its jurisdiction or decide matters which are not referred to it. This question was considered by various judicial authorities and one of the earliest decisions reported on this point is Pramatha Nath Mullick Bahadur v. Secy. Of State AIR 1930 PC 84. This was a case where the claimant sought a reference under Section 18 of the Act. In the application filed by the claimant, he raised objection only regarding the valuation of the land. The claimant did not dispute the measurements of the land given in the award. Before the reference Court, the claimant raised objection regarding the measurements of the land and sought for fresh measurements. This was refused and the claimant applied to the High Court for revision of this order, but without success. Again, in the appeal. The claimant raised same objection regarding measurements and the High Court rejected it. The Judicial Committee of the Privy Council held thus:
Their Lordships have not doubt that the jurisdiction of the Courts under this Act is a special one and is strictly limited by the terms of these sections. It only arises when a specific objection has been taken to the Collector's award, and it is confined to d consideration of that objection. Once therefore it is ascertained that the only objection taken is to the amount of compensation, that alone is the "matter" referred, and the Court has no power to determine or consider any thing beyond it.
38. From a close analysis of the statement of law enunciated by the Hon'ble Apex Court and a bare reading of the provisions of Section 18 of the Act it is clear that any person interested who has not accepted the award may by written application to the Collector, require that the matter be referred by the Collector for determination of the court whether his objection be the measurement of the land, the amount of the compensation, the persons to whom, it is payable or the apportionment of the compensation among the persons interested. The application shall state the grounds on which the objection to the award is taken. Provided that every such application shall be made, (a) if the person making it was present or represented before the Collector at the time when he made his award, within six weeks from the date of Collector's award, (b) in other cases within six weeks of the receipt of the notice from the Collector under Section 12 Sub-section (2) or within six months from the date of the Collector's award which ever period first expire.
39. Thus, from a plain reading of the provisions of Section 18 of the Act it is clear that any person interested who has not accepted the award may by written application to the Collector require that the matter be referred by the Collector for determination of the court, provided his application is within time as stipulated under Sub-section 2 of Section 18 of the Act and further his objection be in respect of (i) the measurement of land, (ii) the amount of compensation, (iii) the person to whom it is payable, or the apportionment of compensation among the persons interested. Therefore, in our opinion, the first-condition, which is essential for making reference by the Collector for determination of the court is that the application must be in writing to the Collector requiring him to refer the matter for determination of the court by a person interested who has not accepted the award, the second condition is that such application must be within stipulated period of time provided under Sub-section 2 of Section 18 of the Act and the third condition is that application shall state the grounds on which the objection to the award is taken. Those grounds of objection against the award may be only in the nature of (i) the measurement of the land (ii) amount of compensation i.e. quantum of compensation and (iii) the persons to whom it is payable or apportionment of compensation. If the aforesaid conditions are satisfied, the Collector/S.L.A.O. is under statutory duty to make reference or refer the matter to the court for determination. It follows that if the aforesaid conditions are satisfied, the Collector is bound to refer the matter for determination of the court in respect of the objections of the claimant, therefore, he can be compelled to do so.
40. Section 19 of the Act provides that while making reference the Collector is required to make certain statements of fact for information of the court in writing under his hand, which are to be comprised in that reference. Thus, the matter goes to the Court only upon a reference made by the collector. It is only after such reference is made, that the Court is empowered to determine the objections made by the claimant to the award of collector. Section 21 of the Act imposes the restriction on the scope of proceeding which, provides that every such proceeding shall be restricted to a consideration of the interests of person affected by the objection. The objection contemplated under Section 21 is same as contained in the application of the person for making reference before the Collector for determination of the Court against the award. Therefore, in our opinion a reference is nothing but it is precisely the grounds on which objection is taken by the claimant against the Collector's award and the information sent by the Collector along with the said objection against the collector's award. These informations are not mere formality but furnish basis for reference made to the court and which ultimately gives jurisdiction to the court, solely on the basis of reference made to it. It is in this background, it is to be held that the reference court cannot enlarge the scope of inquiry in the reference proceeding under the Act.
41. In the light of aforesaid settled legal position, now we have to examine that how the reference was made and what was actually referred by the Collector to the court for determination? From the covering letter of Additional Collector (Land acquisition) Irrigation, Ghaziabad dated 3.12.1997 addressed to the District Judge, Ghaziabad, as contained in Annexure-10 of the writ petition (which is in Hindi Dev Nagari script), it indicates that the application of Sri P.D. Bali for making reference under Section 18 was sent by him along with his comment and relevant documents purported to be under Section 19 of the Act. The English translation of the said letter reads as under:
Sir, In context of the above reference, I have to submit that the above applicant had made the application for making reference under Section 18. His application with comments and relevant documents are sent to the court for disposal.
42. From the above referring letter it appears that along with said letter Additional Collector had also sent the application of claimant and his comments purported to be under Section 19 of the Act, a gist of comments is on record as Annexure-9 of the writ petition. A bare reading of item No. 17 of gist of comments, which pertains to the basis for determining of compensation, it indicates that a statement was made to the effect that "the land owner had not filed any application for reference under Section 18 against the award dated 7.12.1990 in respect of land, regarding which claimant/land owner has mentioned in his application dated 8.9.1997. Award in respect of property (super-structure and trees) was given on 30.8.1997 (correct date 10.8.97) hence the application for reference in respect thereof is within time. In the application, land owner has requested for making reference in respect of acquired land also. In my opinion, in respect of reference pertaining to acquired land, court will have to decide as to whether it is maintainable or not".
43. Thus from a careful reading of the aforesaid statement of facts purported to have been made under Section 19 of the Act, it is clear that Additional Collector had found that the reference against supplementary award dated 10.8.97 was within time and had made reference pertaining thereto, but so far as reference in respect of compensation or value of land against the initial award dated 7.12.90 was concerned, though he had clearly stated that land owner had not made reference earlier to it in respect of the initial award dated 7.12.90 and had prayed for making reference in respect thereto but it appears that the Additional Collector (L.A.) was in utter confusion about the period of limitation for making reference against the award dated 7.12.1990 and otherwise about maintainability of reference against the said award, therefore, instead of deciding himself its maintainability, he had left the matter to be decided by the court. It implies that the Additional Collector did not make reference in respect of quantum of compensation pertaining to the land against the initial award dated 7.12.1990 and had left the matter to be decided by the court. In our opinion, he could not do so. He was under statutory obligation to decide maintainability of reference and could not be justified in leaving the matter of maintainability of reference to be decided by the Court. In fact, he has failed to discharge his duties assigned under law. In such a situation, now it is to be seen that as to whether the court was competent and justified to deal with the maintainability of reference in respect of the acquired land also along with the super-structure and trees standing thereon and if it was found maintainable in respect of acquired land also along with superstructure and trees standing in that eventuality whether the court was justified to answer it or it could decline to answer it for the reason that it was not properly made to it?
44. It is no doubt true as held by Hon'ble Apex Court in Kothamasu Kanakarathamma's case (supra), Mohammad Hasnuddin's case (supra) and in P.U.A.E.N.S.S. Ltd. v. A.V.P. and Anr. case (supra) that the reference court is under statutory duty to examine that as to whether all the three essential conditions for making proper and valid reference were existing before the Collector while making reference under Section 18 of the Act for determination to the court or not. If it is found that all the aforesaid three essential conditions were not existing despite thereof Collector has made reference, the court was bound to decline to answer the reference because of the simple reason that in such eventuality, the Collector has no jurisdiction to make reference under Section 18 of the Act, as the existence of those three essential conditions, are condition precedent for exercise of his jurisdiction for making reference under said section of the Act. However, if it is found that all the three conditions for making reference were existing but the Collector/officer of the State Government has failed to make reference to the court, in that eventuality as held by Hon'ble Apex Court in Kothamasu Kanakarathamma's case (supra), the court should adjourn the matter for enabling the claimant to take appropriate steps for compelling the land acquisition officer to make a reference, but the court can not proceed to answer the reference in absence of proper reference made to it. In our opinion, the existence of all the essential conditions for making valid and proper reference before the Collector is one thing and making of valid and proper reference by the Collector is quite different thing altogether. Therefore, from the aforesaid discussion, it is clear that before proceeding with the reference, the court is under statutory duty to examine the maintainability of the reference and to be satisfied about the fulfilment and existence of all the essential conditions stipulated under Section 18 of the Act for making valid reference because of the simple reason that it is only valid and proper reference, which gives jurisdiction to the court to proceed with the reference but despite existence of such essential conditions, unless proper reference is made by the Collector, court has no jurisdiction to decide the same.
45. Now in the light of the aforesaid legal position, it is necessary for us to examine the facts and circumstances of the case and judgment and award purported to have been made under Section 26 of the Act by the court/petitioner in Reference Case No.624 of 1997 Wing Commander P.D. Bali v. State of U.P. and Ors. decided on 16.1.2001. From a bare perusal of paragraphs 3 and 4 of the judgment and order/award passed by Charged Officer i.e. petitioner, it appears that while deciding the reference he has noted the case of State Government as well as Ghaziabad Development Authority wherein they have taken stand that the reference is barred by time and not maintainable inasmuch as the claimant has accepted the award given by the Collector and received the compensation without protest, therefore, the reference is not maintainable on both the counts. It appears that while deciding the reference the petitioner/Charged Officer has framed as many as four issues. The issue No. l has been framed in the manner that as to whether claimant is entitled to get compensation of the acquired land at the rate of Rs. 2000/- per sq. meter? The issue No. 2 pertains to the amount of compensation in respect of super-structure and trees standing on the acquired land. The third issue has been framed to the effect that as to whether the reference is barred by time and Sections 25 and 9 of the Act? Fourth and last issue has been framed to the effect that for which relief the claimant is entitled? No issue was framed regarding the fact that as to whether the claimant has accepted the award and received the compensation or not and as to whether on that count the reference is maintainable or not? Although, it was specific case of respondents before the reference court that the claimant Sri P.D. Bali has accepted the award made by the Collector and received the compensation without protest but neither any issue has been framed in this regard nor the same has been dealt with by the charged officer i.e. petitioner which was one of the essential condition for making valid and proper reference by the Collector to the court. The reference court was also under statutory duty to examine about the aforesaid facts and maintainability of reference on that count as being a tribunal having jurisdiction of special nature, it could not assume the jurisdiction unless satisfied about the existence of essential condition for making valid reference as held by Hon'ble Apex Court in Mohammad Hasnuddin's case (supra) referred herein before. Not only this but in his application dated 8.9.1997 (contained in Annexure-8 of the writ petition) for making reference before the Additional Collector, the claimant Wing Commander Sri P.D. Bali had stated that he had received the compensation in the year 1997 but it was not clearly stated that as to when he had received the compensation and as to whether he had received the said compensation under protest or without protest. In the statement of information, contained in Annexure-9, of the writ petition, purported to be under Section 19 of the Act sent by the Collector to the Court, there is nothing to indicate clearly as to whether the compensation awarded under Section 11 of the Act has been received by the claimant or not? If it is received on which date and as to whether it was received under protest or without protest?
46. In order to examine the aforesaid factual position, we have summoned the original record from the office of Land Acquisition Officer. In compliance of our direction, the learned Standing Counsel has placed the original records before us during the course of the hearing of the case. From a perusal of records it indicates that claimant Wing Commander Sri P.D. Bali has received the compensation under protest on 21.7.97 amounting Rs.l3,58.978 = 91p. after deduction of income tax amounting Rs. 55,910=00 against total sum of Rs. 14,14,888 = 91 p. in respect of initial award dated 7.12.1990 by making his signature and endorsement on receipt. He has also received a sum of Rs. 10,59,483 = 41 p. after deduction of income tax amounting Rs. 46011 = 00 against total sum of compensation amounting Rs. 11,05,494 = 41 p. on 2.9.1997 under protest against the supplementary award dated 10.8.1997. From a perusal of original records pertaining to the receipt of the compensation/offered under supplementary award dated 10.8.1997, it appears that claimant V. Wing Commander Sri P.D. Bali had made his signatures while receiving the compensation on 2.9.1997 twice and in between both the signatures he had made endorsement to the effect that the payment received under protest. It appears that initially while making signature on receipt of the payment, nothing had been written by him but subsequently thereafter he had made aforesaid endorsement and made his signature again. At this juncture, it is also necessary to point out that coupled with the aforesaid factual position, the omission to frame the issue as to whether the claimant had accepted the aforesaid awards and compensation offered thereunder or not and if received as to whether under protest or without protest, a reasonable doubt is created in our mind about the truthfulness of fact that the claimant Sri P.D. Bali has accepted the amount of compensation under protest. The aforesaid events leads to a conclusion that during the pendency of reference before the court, the said endorsement of receipt of payment of compensation under protest could not be made by the claimant Sri P.D. Bali and subsequently thereafter, having got some occasion, he has manipulated the office of Land Acquisition Officer and succeeded in making such endorsement otherwise there was no justification to omit this essential issue for determination by the petitioner. In our opinion, therefore, in order to escape from this controversy the charged officer/petitioner has deliberately omitted to frame and decide the aforesaid issue as otherwise the reference of claimant would not have been maintainable on that count alone and he would not have been able to proceed with reference and to decide the same. The aforesaid inference drawn by us also finds further support from the statement of facts falsely made by the petitioner in para 21 of the writ petition that claimant P.D. Bali did not accept the offer of compensation made to him through the awards dated 7.12.1990 and 10.8.1997, as he was not satisfied with the quantum of compensation. Although this statement of fact has been replied in para 29 of the counter affidavit filed on behalf of High Court, wherein it was stated that the same is subject matter of record and was further stated that in para 1 of his application dated 8.9.1997 (Annexure-8 of the writ Petition) the claimant P.D. Bali himself had stated that he was paid compensation in the year 1997 when he could know that award has been made. Although, in the said application no specific averment had been made to this, effect that he had received the compensation under protest or without protest, but the aforesaid statement of fact made by the petitioner while filing of instant writ petition at later stage, contrary to the record as indicated herein before, again creates doubt in our mind about his conduct. In this connection it is to be noted that when a specific plea was taken on behalf of the State Government and Ghaziabad Development Authority regarding the receipt of payment of the compensation by claimant and the argument regarding the same was also advanced before the petitioner, as noticed by him in judgment in question, it is surprise to note that why he did not frame and decide the said issue which was one of the essential conditions for making reference under Section 18 of the Act, and the court was duty bound to ascertain the existence of aforesaid essential condition before proceeding to answer the reference and enhancing compensation thereby. In our opinion, it was deliberate act or omission of the petitioner with ulterior motive for some gain by benefiting the claimant.
47. Another essential condition for making proper and valid reference under Section 18 of the Act is the period of limitation stipulated thereunder. It is not in dispute that initial award had been made on 7.12.90 and claimant Sri P.D. Bali, no doubt, had not made any application for making reference prior to 8.9.97. It is first time by making application on 8.9.97 he had sought composite reference for enhancement of compensation in respect of land against the award dated 7.12.90 and superstructure and trees standing on the acquired land against supplementary award dated 10.8.97 both after expiry of a period of about more than six and half years from the date of award dated 7.12.90. While dealing with the question of limitation the petitioner (charged officer) has made serious attempt to justify that the application for making reference made by the claimant is within time on account of the fact that supplementary award has been made by Additional Collector on 10.8.97 in respect of super-structure and trees standing on the acquired land, as such according to the petitioner that the award dated 7.12.90 would be deemed to be incomplete till the delivery of supplementary award dated 10.8.97 and same shall be treated to be in continuity of award dated 07.12.1990. Accordingly both the awards i.e. award dated 7.12.90 and award dated 10.8.97 would be treated to be one and single integrated award within the meaning of Section 11 of the Act. Thus, the period of limitation for making application for reference would start to run from the date of supplementary award dated 10.08.1997 and not from the date of initial award dated 7.12.90. In support of his findings and reasonings he has also placed reliance upon a decision of Hon'ble Privy Council rendered in Prag Narain v. Collector, Agra , wherein their Lordships of Privy Council have observed at page 104 as under:
The Act does not appear to contemplate that where more than one person is interested in a parcel of land there should be more than one award relating thereto. Their Lordships do not by this mean that the whole of the land at any one time to be acquired under the Act must necessarily be dealt with in one award: but only that any one piece of land (forming part of the whole) in which more than one person has an interest for which he can claim compensation, ought not to be made the subject of more than one award. Each award should contain within its four corners the fixing of the value of the land with which it deals and the apportionment of that value between the various persons interested in that land.
In the present case the difficulty has arisen from the fact that the officer has dealt with the land by two documents, and so far as the 495 square yards are concerned, that particular parcel of land figures in both. Their Lordships however think that the two documents (the later of which specifically refers to the earlier) must be read together as constituting one award in relation to that parcel of land by which the officer awards the compensation to be allowed for that land at a figure of Rs. 8 per square yard and awards the apportionment of that compensation in the proportion of one-fourth to the appellant and three-fourths to the tenants.
48. It is no doubt true that the Learned Counsels appearing for the State Government and High Court did not bring any other Authority of Hon'ble Apex Court wherein the aforesaid question has been considered and different view was taken. In such situation, the law laid down by their Lordship of Privy Council is binding upon this Court and ratio of the decision has to be accepted as continuance of existing law under Article 372 read with Article 141 of the Constitution but before its application in given facts of the case, it is to be seen that what is ratio of the said decision.
49. In this connection, it is also necessary to point out that a decision is only an authority for what it actually decides. What is of the essence in a decision is its ratio and not every observation found therein nor what logically follows from various observations made in it. In this connection the observations made by Hon'ble Apex Court in State of Orissa v. Sudhansu Shekhar Misra :
A decision is only an authority for what it actually decides. What is of the essence in a decision is its ratio and not every observation found therein nor what logically follows from the various observations made in it.
50. In Ambica Quarry Workds v. State of Gujarat and Ors. Hon'ble Apex Court observed:
The ratio of any decision must be understood in the background of the facts of that case. It has been said long time ago that a case is only an authority for what it actually decides, and not what logically follows from it.
51. In Bhavnaear University v. Palitana Sugar Mills Pvt. Ltd , Hon'ble Apex Court observed:
It is well settled that a little difference in facts or additional facts may make a lot of difference in the precedential value of a decision.
52. In the said decision their Lordships of Privy Council have held that the Act does not appear to contemplate that where more than one person is interested in a parcel of land there should be more than one award relating thereto. Their Lordships do not by this mean that the whole of the land at any one time to be acquired under the Act must necessarily be dealt within one award: but only that any one piece of land (forming part of the whole) in which more than one person has an interest for which he can claim compensation, ought not to be made the subject of more than one award. In the aforesaid case a particular piece of land ad measuring an area of about 495 square yards had been dealt with by the Land Acquisition Officer in two documents and that particular parcel of land figured in both. Their Lordships however thought that the two documents (the later of which specifically referred to the earlier) must be read together as constituting one award in relation to that parcel of land by which officer awarded the compensation to be allowed for that land to the interested persons.
53. In view of the aforesaid legal position enunciated by Hon'ble Privy Council, in absence of any decision of Hon'ble Apex Court contrary thereto, brought before us, we have no doubt in our mind to hold that the initial award dated 7.12.1990 and supplementary award dated 10.8.1997 in respect of the same parcel of the land and superstructure in question ought to have been dealt with as single unit in the same single award and pertaining to the same claimant could not be split up into two awards as the awards dated 7.12.1990 and 10.8.1997, pertain to same piece of acquired land with regards to the same claimant, therefore, they must be read together, so far as determination of compensation of acquired land and super-structure and trees standing on the said acquired land is concerned but the aforesaid decision cannot be further stretched upon to assume that the supplementary award dated 10.08.1997 shall be treated to be in continuity of initial award dated 07.12.1990 and the period of limitation would start to run from the date of delivery of supplementary award dated 10.8.97. In our opinion, the decision rendered by their Lordship of Privy Council in aforesaid case should be understood in context of the facts in which it was rendered and no logical conclusion can be drawn from the aforesaid decision that the award dated 10.8.97 should be treated to be in continuity of the initial award dated 07.12.1990 and the period of limitation would start to run from the date of delivery of supplementary award dated 10.08.1997. The charged officer did not mention any authority of Hon'ble Apex Court or any other High Courts in support of the proposition of continuity of initial award till the date of delivery of supplementary award. From a careful reading of the aforesaid decision of their Lordships of Privy Council, it transpires that the same piece of land cannot be subjected to two awards in respect of persons interested thereto so that a repetition of determination of compensation in respect of the same land is to be avoided. It is settled law that in evaluating the market value of acquired property, namely, land and building or the land with fruits bearing trees standing thereon, the value of both is to be determined not as separate unit but as one unit. (See-Airport Authority of India v. Satya Gopal Rai ). Since in pursuance of direction of this Court dated 15.5.96 in writ petition filed by the claimant and pursuant thereto the State Government vide order 20.7.96 has directed the Collector to make supplementary award on 10.8.97 in respect of super-structure and trees standing on the acquired land, in our opinion, therefore, only for the purpose of determination of compensation both the awards will be treated to be single unit and one award so far as it pertains to the value of land and superstructure of the acquired land for determination of compensation in respect thereof is concerned and nothing more than that.
54. In view of aforesaid settled legal position, we are unable to agree with the observation made by charged officer that the initial award dated 7.12.90 would be treated to be in continuity till the date of delivery of supplementary award dated 10.8.97 and period of limitation would start to run from the date of supplementary award dated 10.8.1997 for the purpose of making reference against the award dated 07.12.1990. In our considered opinion, the award dated 7.12.90 cannot be said to have been merged in the supplementary award dated 10.8.97 while integrating together and after the delivery of supplementary award dated 10.8.97 the initial award dated 7.12.90 has lost its identity. Neither the doctrine of merger has any application in facts of the case nor it can be said that initial award dated 07.12.1990 was interim award and not a final award thus, could not be challenged by aggrieved interested person earlier to the delivery of supplementary award on 10.8.97. Similarly, the initial award dated 7.12.90 can also not be treated as incomplete award within the meaning of Section 11 in the sense that it could not be challenged earlier by the aggrieved person unless it is completed by delivery of supplementary award dated 10.8.97, therefore, the observation made by charged officer while dealing with the question of limitation and theory of continuity of initial award dated 7.12.90 till the date of supplementary award dated 10.8.97 propounded by the petitioner, in our opinion, could not find any support from the aforesaid decision of Their Lordships of Privy Council, therefore, cannot be accepted at all. We are of the considered opinion that the aforesaid theory of continuity of initial award till the delivery of supplementary award has been evolved by the Charged Officer just to save his skin from committing grave error while treating time barred reference within time in respect of compensation of the land against the award dated 7.12.90 for which no reference was made by the Collector by evolving such a novel device in this regard. The aforesaid attempt clearly shows the screen of mind of Charged Officer that how much he was eager and anxious to decide the reference in question in favour of claimant, which was patently barred by time and was not made for determination to the court, thus, clearly shows his corrupt motive in this regard.
55. Not only this but on examining the issue from another angle, it appears that while dealing with issue No. 1 the Charged Officer has noticed the statement of Sri P.D. Bali/claimant that the land in question has been acquired in the year 1988, the award of which has been made on 7.12.1990 but neither any notice nor any information was given to the claimant. The claimant could hardly know about the said award in the year 1997 which was made in respect of the acquired land but not in respect of trees and superstructure standing thereon. Thereafter he moved representation for determination of compensation of superstructure and trees standing on the acquired land which ultimately resulted in supplementary award dated 10.8.1997. Being aggrieved by both the awards the claimant has moved application before the Collector for making reference but there is nothing to indicate that on which date the claimant got information about initial award dated 7.12.1990 and as to when he moved application before the State Government as well as before the Land Acquisition Officer/Additional Collector for making such supplementary award? In this connection, it is to be noted that it is not in dispute that the claimant has filed Writ Petition No. 22274 of 1993 titled as Wing Commander P.D. Bali v. State of Uttar Pradesh, which has been decided by this Court on 15.5.1996, wherein the claimant had initially challenged the proceeding under Land Acquisition Act but later on by amendment application, the prayer was made to restore/exempt the land belonging to the claimant under the Proviso of Section 17(1) of U.P. Urban Planning and Development Act. During the pendency of the writ petition, the claimant had also applied to the State Government on 17.4.1994 for redressal of his grievance but no decision was taken by the State Government in that regard, therefore, without going into the merits of the case, this Court vide Judgment and order dated 15.5.1996 had directed the State Government to dispose of the said application of claimant finally within a period of two months from the date of production of certified copy of the order passed by this Court by a speaking order after hearing the petitioner of the aforesaid case as well as Ghaziabad Development Authority. It cannot be disputed that in pursuance of the aforesaid direction given by this Court, the claimant had approached the State Government. Thereupon vide order dated 20th July 1996 the State Government had directed to give compensation to the claimant in respect of superstructure and trees standing on the acquired land. It clearly indicates that the State Government could not have given such direction to the Land Acquisition Officer unless the claimant P.D. Bali had categorically stated before the State Government that initial award dated 7.12.1990 does not contain the compensation of superstructure and trees standing on the acquired land, otherwise there would have been no occasion for the State Government to issue any such direction for making award of the superstructure and trees standing on the acquired land. Thus, it further indicates that the claimant P.D. Bali must have clear cut knowledge about the contents of initial award dated 7.12.1990 prior to 20.7.1996 when the State Government had passed order on the application of Sri P.D. Bali for making supplementary award in respect of superstructure and trees standing on the acquired land and further after the aforesaid decision of State Government dated 20.7.1996 he must have knowledge of the contents of initial award dated 7.12.1990 while moving application for making supplementary award before the Additional Collector.
56. We have already summoned the original records from the office of Land Acquisition Officer which was brought by learned Standing Counsel during the course of argument, whereby he has also produced copy of supplementary award dated 10.8.1997. A bare reading of which, it indicates that on 12.4.1993 the claimant P.D. Bali had moved an application before the Additional Collector (Land Acquisition), thereupon on 13.4.1993 the Additional Collector had directed to the Niab Tehsildar to make enquiry regarding superstructure and trees standing on the acquired land as the same had escaped attention from the initial award dated 7.12.1990. This fact clearly indicates that the claimant was aware of the contents of award dated 7.12.1990 at least on 12.4.1993 when he had moved the aforesaid application to the Additional Collector (Land Acquisition) for inspection of superstructure and trees standing on the acquired land. In pursuance of said application, the Niab Tehsildar, Ghaziabad Development Authority and Amin have made joint inspection on 16.4.1993 in respect of plot in question belonging to the claimant and submitted their report. Besides this, the Additional Collector had also noticed in his judgment/supplementary award dated 10.8.1997 that Principal Secretary was had decided the application of Sri P.D. Bali on 20.7.1996, wherein he had mentioned that compensation has been awarded in respect of the acquired land and not in respect of superstructure and trees standing thereon, therefore, at any rate the claimant must have knowledge about the contents of initial award dated 7.12.1990 latest by 12.4.1993 and 20.7.1996 but he did not make any application before the Collector under Section 18 for making reference against the award dated 7.12.90 earlier to 8.9.1997. Thus it appears that on the basis of aforesaid facts the reference was clearly barred by time even under Second part of proviso (b) of Section 18(2) of the Act which prescribes period of limitation 6 months where the case is not covered under other parts of the provisos of Section 18(2) of the Act. Although in State of Punjab v. Mst. Qaisar Jehan Begum and Anr. , Hon'ble Apex Court has held that the limitation of six months under the second part of Clause (b) runs from the date of knowledge of the contents of award. But in given facts and circumstances of the case, in our opinion, the claimant could not get help of the aforesaid decision of Hon'ble Apex Court, that is why it appears that the Charged Officer/petitioner did not deal with issue to its logical conclusion from the aforesaid angle and evolved a novel device of aforesaid theory of continuity of initial award till the date of supplementary award referred herein before. In our opinion, therefore, the reference against award dated 7.12.1990 was clearly barred by time prescribed under Section 18(2) of the Act and no proper and valid reference could have been made for determination of compensation by the Additional Collector in respect of the acquired land to the court and at any rate reference made in respect of superstructure and trees standing on the acquired land against the supplementary award dated 10.8.1997 could not include the reference of acquired land against the award dated 7.12.1990 automatically without any valid and proper reference is made by the Additional Collector in respect of the aforesaid land and Court has inherent lack of jurisdiction to proceed with the reference against the award dated 7.12.1990, therefore, the enhancement of value of acquired land/quantum of compensation in the tune of Rs. 24,49,493/-in our considered opinion is wholly without jurisdiction and contrary to the statutory provision of the Act, thus the petitioner has unduly favoured the claimant by giving the aforesaid benefit to him against all judicial norms and propriety for extraneous consideration.
57. It is, no doubt, true that the third essential condition for making reference under Section 18 of the Act in respect of nature of objection to be raised by the claimant against the award dated 7.12.90 was existing, as by the aforesaid application dated 8.9.1997 the claimant has clearly raised the objection regarding the quantum of compensation against the award dated 7.12.1990 and prayed for enhancement of compensation awarded by the Collector under said award but that alone could not entitle/empower the Collector to make valid and proper reference in absence of existence of other two conditions under Section 18of the Act as held by us herein before. Therefore, in our considered opinion, in absence of valid and proper reference against the award dated 7.12.1990 made by Collector, the court/petitioner had no jurisdiction to proceed with the reference and enhance the compensation sought for by the claimant. In given facts and circumstances of the case, since all the essential conditions referred herein before were not existing before the Collector/Land Acquisition Officer, therefore, the Collector could not be compelled to make reference for enhancement of compensation in respect of acquired land against the award dated 7.12.90, even by adjourning the proceeding before reference court or appellate court. In view of the aforesaid discussion, we have no doubt in our mind that the charge levelled against the petitioner has been fully established and clearly proved against him from his Judgment itself, thus the findings of Hon'ble Enquiry Judges, in our considered opinion, cannot be faulted with.
58. Besides the aforesaid charge and findings of Hon'ble Enquiry Judges, we have also gone through the award dated 16.1.2001 made by the petitioner and we found that while evaluating the market value of acquired land, the petitioner/Charged Officer did not place reliance upon only sale deed dated 12.2.88 filed by claimant, which was executed by Mohammad Gani in favour of Mohd. Irafan, few month earlier from the date of notification under Section 4(1) of the Act in respect of the acquired land. Except to copy of aforesaid sale deed no other sale-deed was filed by the claimant as revealed from decision of the petitioner. This sale deed was of very small piece of land measuring only 100 sq. yards at sale consideration of Rs. 10,000/-, which would come to Rs. 100/- sq. yard. The circle rate prescribed by Government for stamp duty was Rs. 150/- per sq. yard but the petitioner has placed reliance upon the decisions made in some reference cases in respect of land acquired under same notification under Section 4(1) dated 16.8.88 in respect of same villages namely, Dasna, Sadarpur and Harsoan, wherein the Reference Courts have awarded compensation at a rate of Rs. 163 per square yard. It appears that in Reference No. 329/92 the sale instances pertaining to plot Nos. 696/1, 694/1, 693/2, 693 and 696 of village Harsoan have been considered by the Reference court. The sale instance pertaining to plot Nos. 298/1 at a rate of Rs. 298/- per sq. yard was executed on 30.8.88 after notification under Section 4(1) of the Act which was made on 16.8.88, thus could not be considered to be a genuine sale, therefore, could not be relied by the reference court, but for the reason best known to the petitioner, he has placed reliance upon the aforesaid sale instance, which was not filed before him by the claimant, rather was filed in another reference case. Another instance of sale deed dated 11.7.93 in respect of plot No. 693 at a rate of Rs. 160/- per sq. yard was also noticed by petitioner, but no reason has been assigned to reject the aforesaid sale instance, though it appears that this sale deed was also considered in another reference case, which was relied upon by the petitioner. No reason has been assigned to ignore only sale instance given by the claimant, though it was in respect of very small piece of land, despite thereof the petitioner has accepted the sale instance of plot No. 298 of different village Harsoan, though included in same notification but awards could be made by belting the land included therein having regard to large track of the land and location thereof. In case, sale instance given by the claimant would have been accepted by the petitioner the market value of the land would come to Rs. 100/- per sq. yard only and after deducting 25%-30% for development charge having regard to the purpose of acquisition and area of 346 Acre land acquired, the market value of the land would hardly come to Rs. 70/- to 75/- per sq. yard. The petitioner has fixed market value in respect of acquired land in question as fixed by other reference courts without ascertaining that as to whether the aforesaid references have attained finality or they have been challenged under appeal under Section 54 of the Act or not. It appears that no exempler of any sale-deed or sale instance of any land of vicinity of land of claimant has been independently considered and relied upon rather sale instance of aforesaid reference has been taken into account and market value of the land in question appears to have been fixed on that basis. In our opinion, such judgments of reference court could not have been relied upon by the petitioner without ascertaining the finality of judgments of reference court that too under Section 23 of the Act while making award under Section 26 of the Act. Such approach of the petitioner as reflected from his Judgment does not appear to be a mere bonafide error in his Judgment but reflects his mental screen and integrity showing his corrupt motive to extend undue benefits to the claimant.
59. It is, no doubt, true that in case any award under reference made in respect of the land acquired under the same notification has attained finality, in that event of the matter the Collector under Section 28-A of the Act can re-determine the compensation of similarly situated persons who have not made reference despite they have accepted the compensation under the award made by the Collector. But so long as such award under reference has not attained finality, the Collector should stay his hands in the matter for re-determination of the compensation and keep the matter pending till the appeal is finally disposed of and he should re-determine the compensation only on the basis of final judgment and decree of Appellate forum as held by Hon'ble Apex Court in Babua Ram and Ors. v. State of U.P. and Anr. which has been overruled by Hon'ble Apex Court on limited question of limitation in Union of India and Anr. v. Pradeep Kumari and Ors. but not on other questions. The decision of Hon'ble Apex Court in Union of India v. Pradeep Kumari and Ors. (supra) has also been overruled in Union of India and Anr. v. Ansoli Devi on another limited question that when an application of land owner under Section 18 is dismissed on the ground of delay, even then such land owner is entitled to make application under Section 28-A of the Act. In view of aforesaid legal position, the claimant P.D. Bali could get his grievances redressed by the Collector himself, provided the conditions stipulated under Section 28-A of the Act are satisfied and he has moved such application within prescribed time provided under aforesaid section, but while passing award under Section 26 of the Act in reference under Section 18 of the Act, in our considered opinion, the Reference court could not place reliance upon any Judgment and award made by another reference court under Section 26 of the Act, in reference of other land owners of the land, acquired under the same notification under Section 4 of the Act unless such award attained finality.
60. In the wake of facts and circumstances of the case, we are of the opinion that while deciding the reference in question, the petitioner has made each and every efforts to give undue benefit to Sri P.D. Bali for extraneous consideration and unless he was actuated by corrupt motive, we are of the firm opinion that no such Judgment and award dated 16.1.2001 could be given by the petitioner in aforesaid reference case. His decision aforesaid, itself speaks about the state of affairs under which it was rendered. In view of foregoing discussion, we are of the further opinion that the charge levelled against the petitioner has been clearly proved against him and accordingly, the petitioner has been rightly held guilty of misconduct by the Hon'ble Judges of this Court vide inquiry report dated 14.9.2005, we are in full agreement with them and do not find any ground for interference in the said inquiry report. The submissions of the Learned Counsel for the petitioner in this regard appears to be wholly misplaced in given facts and circumstances of the case, therefore, has to be rejected.
61. Next question, which arises for our consideration is that what would be appropriate punishment even if the charge levelled in the charge sheet against the petitioner having been found proved by Hon'ble Inquiry Judges against him? In this connection, it is pointed out that there are series of decisions of Hon'ble Apex Court on the question of judicial review of disciplinary inquiry and quantum of punishment inflicted upon delinquent employee in such disciplinary inquiry. In Union of India v. Parmanand while considering earlier decisions of Hon'ble Apex Court including State of Orissa v. Bidyabhushan Mohapatra , Bhagat Ram v. State of Himachal Pradesh , Union of India v. Tulsi Ram Patel , Hon'ble Apex Court has held that the tribunal can not interfere with the quantum of punishment on the ground that it is not commensurate with the delinquency of employee, however, as exception to the aforesaid rule Hon'ble Apex Court has held that where the punishment has been imposed under Clause (a) of the second proviso of Article 311(2) only in those circumstances the quantum of punishment can be interfered with, where the court finds that the penalty imposed by impugned order is arbitrary or grossly excessive or out of all proportion to the offence committed, or not warranted by facts and circumstances of the case.
62. In B.C. Chaturvedi v. Union of India and Ors. , after making detail survey on the question in issue Hon'ble Apex Court has held that if the punishment is shocking conscience of High Court or tribunal, it can direct the authority to reconsider the punishment. However, it may also itself to shorten the litigation, impose appropriate punishment with cogent reasons in support thereof. For ready reference it would be appropriate to extract the pertinent observations made by Hon'ble Apex Court in para 17 and 18 of the decision as under:
17. The next question is whether the Tribunal was justified in interfering with the punishment imposed by the disciplinary authority. A constitution Bench of this Court in State of Orissa v. Bidyabhushan Mohapatra, held that having regard to the gravity of the established misconduct, the punishing authority had the power and jurisdiction to impose punishment. The penalty was not open to review by the High Court under Article 226. If the High Court reached a finding that there was some evidence to reach the conclusion, it became unassailable. The order of the Governor who had jurisdiction and unrestricted power to determine the appropriate punishment was final. The High Court had no jurisdiction to direct the Governor to review the penalty. It was further held that if the order was supported on any finding as to substantial misconduct for which punishment "can lawfully be imposed", it was not for the Court to consider whether that ground alone would have weighed with the authority in dismissing the public servant. The court had no jurisdiction, if the findings prima facie made out a case of misconduct, to direct the Governor to reconsider the order of penalty. This view was reiterated in Union of India v. Sardar Bahadur, . It is true that in Bhagat Ram v. State of Himachal Pradesh , a Bench of two Judge of this Court, while holding that the High Court did not function as a court of appeal, concluded that when the finding was utterly perverse, the High Court could always interfere with the same. In that case, the finding was that the appellant was to supervise felling of the trees which were not hammer marked. The Government had recovered from the contractor the loss caused to it by illicit felling of trees. Under those circumstances, this Court held that the finding of guilt was perverse and unsupported by evidence. The ratio, therefore, is not an authority to conclude that in every case the Court/Tribunal is empowered to interfere with the punishment imposed by the disciplinary authority. In Rangaswami v. State of Tamil Nadu , a Bench of three Judges of this Court, while considering the power to interfere with the order of punishment, held that this Court, while exercising the jurisdiction under Article 136 of the Constitution, is empowered to alter or interfere with the penalty; and the Tribunal had no power to substitute its own discretion for that of the authority. It would be seen that this Court did not appear to have intended to lay down that in no case, the High Court/Tribunal has the power to alter the penalty imposed by the disciplinary or the appellate authority. The controversy was again canvassed in State Bank of India's case 1994 AIR SCW 1465 (supra), where the court elaborately reviewed the case law on the scope of judicial review and powers of the Tribunal in disciplinary matters and nature of punishment. On the facts in that case, since the appellate authority had not adverted to the relevant facts, it was remitted to the appellate authority to impose appropriate punishment.
18. A review of the above legal position would establish that the disciplinary authority, and on appeal the appellate authority, being fact-finding authorities have exclusive power to consider the evidence with a view to maintain discipline. They are invested with the discretion to impose appropriate punishment keeping in view the magnitude or gravity of the misconduct. The High Court/Tribunal while exercising the power of judicial review, cannot normally substitute its own conclusion on penalty and impose some other penalty. If the punishment imposed by the disciplinary authority or the appellate authority shocks the conscience of the High Court/Tribunal, it would appropriately mould the relief, either directing the disciplinary/appellate authority to reconsider the penalty imposed, or to shorten the litigation, it may itself, in exceptional and rare cases, impose appropriate punishment with cogent reasons in support thereof.
63. The aforesaid view has also been reiterated by Hon'ble Apex Court in Apparel Export Promotion Council v. A.K. Chopra . While considering the scope of applicability of doctrine of proportionality in judicial review of punishment imposed in disciplinary inquiry, Hon'ble Apex Court in Management of Coimbatore District Central Co-operative Bank v. Secretary Coimbatore District Central Co-operative Bank Employees Association and Anr. in para 24 of the decision held as under:
24. So far as our legal system is concerned, the doctrine is well-settled. Even prior to CCSU, this Court has held that if punishment imposed on an employee by an employer is grossly excessive, disproportionately high or unduly harsh, it cannot claim immunity from judicial scrutiny, and it is always open to a Court to interfere with such penalty in appropriate cases.
64. In B. Swamy v. Depot Manager APSRTC J.T. 2007(6) SC 290, it was held by the Hon'ble Apex Court that even one act of dishonesty of Bus conductor amounting to breach of faith may invite serious punishment. While upholding the punishment of removal, it was further observed that there is no guarantee that he had not acted dishonestly in the past as well which went undetected. The pertinent observations made in para-7 of the decision are as under:
7. We fail to understand how the incident could be characterised as accidental. The mere fact that this was the first occasion when the respondent was caught, is no ground to hold that it was accidental. What weighed with the learned Judges was the fact that the respondent had not been found to be involved in such irregularities earlier. In our view that is not very material in the facts of this case. A conductor of a bus enjoys the faith reposed in him. He accepts the responsibility of honestly collecting fares from the passengers after issuing proper tickets and is obliged to account for the money so collected. If conductors were to be dishonest in the performance of their duties, it would cause serious pecuniary loss to the employer. The High Court was therefore, not justified in observing that the management gave "excess gravity" to the offence. We are constrained to observe that the High Court was not justified in characterising the order of the management as one induced by exaggeration of the gravity of the offence. The conductor performs only the duty of issuing tickets to the passengers and accounting for the fare collected from the passengers to the management. If he is dishonest in the performance of his duties, he is guilty of serious misconduct and the gravity of the misconduct cannot be minimised by the fact that he was not earlier caught indulging in such dishonest conduct. There is no guarantee that he had not acted dishonestly in the past as well which went undetected. Even one act of dishonesty amounting to breach of faith may invite serious punishment.
65. However in Ramesh Chander Singh's case (supra), Hon'ble Apex Court has held that in given facts and circumstances of the case, reduction in rank to the next lower post and withholding of two annual increments are harsh, disproportionate to the gravity of charge against the officer discharging fuction of granting bail application. Therefore, in view of aforesaid settled legal position, now we have to examine as to whether the punishment imposed upon the petitioner is harsh, excessive or disproportionate of the gravity of the charge levelled against him and found proved by Hon'ble Judges or it is justified in given facts and circumstances of the case? In this connection, we must note that in para 38 and 39 of the writ petition, it is stated that the petitioner was appointed as Munsif (Civil Judge (Junior Division}) in the year 1980. He was promoted as Civil Judge (Senior Division) substantively in the year 1990. He was further promoted to the Cadre of U.P. Higher Judicial Service and appointed as Additional District Judge in the year 2000 under Rule 22(3) of 1975 Rules and was continuing on the said post for a period of about six years, till the date of impugned order of punishment of reduction in rank was passed against him on 17.1.2006. On all these posts the petitioner worked with utmost devotion, sincerity, integrity and in accordance with the well established judicial norms. And, to the best of his knowledge, during the entire period of about 26 years of his service the work and conduct of the petitioner has been unblemished. No complaint, whatsoever, was ever brought to the notice of the petitioner. The petitioner understands and believes that the Hon'ble High Court granted to the petitioner promotion to the rank of Civil Judge (Senior Division) substantively and to the post of the Additional District Judge in the cadre of U.P. Higher Judicial Service under Rule 22(3) of 1975 Rules after careful, appropriate and effective evaluation of the merit of his work and conduct, including efficiency, honesty and integrity reflected on its record.
66. The reply of the aforesaid averments of the writ petition has been given in para 42 of the counter affidavit filed on behalf of High Court but same has been replied by saying that averments are wholly irrelevant in context of present case. Except the aforesaid averments, no other averments have been made anywhere in this counter affidavit with regard to the work and conduct and integrity of the petitioner. It is no doubt true that absence of specific reply of aforesaid assertion would not take the place of conclusive proof but uncontroverted facts would certainly raise a presumption in favour of the petitioner as a salutary guideline to judge his conduct from his past, particularly in the field of administrative law, as held by Hon'ble Apex Court in M.S. Binara's case (supra)(para-13), therefore, while deciding the quantum of punishment, the past conduct of the petitioner, in our opinion, as held by Hon'ble Court is also relevant factor to be considered. Thus on the basis of aforesaid uncontroverted fact through counter affidavit filed on behalf of the High Court, we find that the petitioner has rendered unblemished service for about 26 years except the incident in question giving rise cause of action of the disciplinary inquiry against him. Although in his aforesaid service career there is no guarantee that he had not acted dishonestly in past as well which went undetected, but having regard to the gravity of misconduct committed by the petitioner in the instant case, the punishment inflicted upon him, in our considered opinion, is highly extreme and disproportionate to the charge levelled and found proved against him.
67. By impugned order of punishment dated 17.1.2006 the petitioner has been reduced in rank from the post of Additional District Judge to the post of Civil Judge (Jr. Div.) which is two ranks below from his present officiating post and one rank below from his substantive post of Civil Judge (Sr. Div.). Officiating post of Additional District Judge is promotional post in higher pay scale from the post of Civil Judge (Sr. Div.). The effect of this punishment would be that he would lose his entire service benefits from the year 1989-1990 onwards from the post of Civil Judge (Senior Division) except the continuity of service and pay scale and other emoluments drawn by him till the date of impugned order dated 17.1.2006. Now he has to re-start from the stage prior to his promotion on the post of Civil Judge (Sr. Div.) from before the year 1990 in respect of pay scale and other service benefits and has to lose his service benefits for about 16-17 years. In other words, the clock is put back to the stage of Civil Judge (Junior Division), now he has to start working from that stage. He has to lose not only service benefits for about 16 years, but it would also ultimately affect adversely the pensionary or post retiral benefits. Not only this, but since the petitioner is still continuing in service, therefore, in our opinion, this state of affair is continuing cause of his mental torture and humiliation among the brother officers also. Thus, in given facts and circumstances of the case, we are of the firm opinion that punishment inflicted upon the petitioner is disproportionate to the charge levelled against him and is highly excessive, irrational and arbitrary, therefore, can not be sustained, accordingly we quash the impugned order dated 17.1.2006 passed by the State Government.
68. We are of the further opinion that in given facts and circumstances of the case, remitting the matter for consideration of Full Court will take some considerable time, thereupon recommendation has to be sent to the State Government, which again take time in taking decision. Having regard to the mental agony and torture faced by the petitioner, we are not inclined to tolerate present state of affair further more. Therefore, we are inclined to mould the relief appropriately and in given facts and circumstances of the case, we think it appropriate that stoppage or withholding of three future annual increments of the petitioner with cumulative effect permanently from the date of impugned punishment order dated 17.1.2006 after restoring him back to his post of Additional District Judge as on the date of impugned order, would meet the ends of justice. Such stoppage of increments would also be amounted to reduction in rank to a lower stage in a time scale of pay of the petitioner as a major penalty under relevant service rules. However, we are constrained to withhold the integrity of the petitioner for the year 2000-2001, the year in which he has rendered the decision in question giving rise cause of action to the instant case.
69. In view of the aforesaid observations and directions, a writ of mandamus is issued directing the respondents to restore the petitioner, status quo ante, on the post of Additional District Judge as on the date 17.1.2006 (the date on which impugned order of reduction in rank was passed against him) thereafter his three annual increments in future with cumulative effect permanently starting from the aforesaid date will be withheld or stopped. The petitioner shall also be entitled to get benefits of his arrears of salary and other emoluments attached to the post of Additional District Judge from the date of impugned order till the date of restoration of his earlier position or status quo ante on the post of Additional District Judge (officiating) as on 17.1.2006 and shall be paid to him within two months. However, his integrity for the year 2000-2001 shall be treated to be withheld and an entry in this regard shall be made in his Annual Confidential Remarks of the aforesaid year.
70. Before parting with the judgment, we must state that from the date and events chart enclosed in the writ petition, it appears that against the Judgment and award dated 16.1.2001 passed by the petitioner in reference case No. 624/97 Wing Commander Sri P.D. Bali v. State of U.P. and Ors. (contained in Annexure-11 of the writ petition) the claimant has filed first appeal No. 365/2001 Wing Commander P.D. Bali v. State of U.P. and Ors. and G.D.A. has also filed first appeal No. 466/2002 G.D.A. v. Wing Commander P.D. Bali. We could not ascertain the fact as to whether the aforesaid appeals are still pending before this Court or have been disposed of. In all probabilities having regard to the pendency of appeals, we expect that those appeals might have been still pending before this Court. In this connection, it is necessary to point out that although we have examined the decisions dated 16.1.2001 rendered by petitioner for the purpose of examining his conduct while discharging his judicial function but at the same time we have taken considerable pain to examine the relevant records even by asking from the office of Additional Collector (Land Acquisition Officer) Ghaziabad referred herein before in the Judgment and have recorded the finding regarding the maintainability of reference without hearing the claimant namely Wing Commander Sri P.D. Bali, therefore, our observations should not prejudice to the claimant without affording him adequate opportunity of hearing in the appeal filed by him. However, for perusal and necessary information the Registry of this Court is directed to place a copy of our decision upon the aforesaid first appeals by consolidating them together and we expect that this Court while hearing the appeals would not be influenced by our observations made in this judgment, however, it can be taken as information regarding the facts stated therein. The office is directed to list the aforesaid appeals before appropriate court forthwith after placing the copy of this order on the files of aforesaid appeals.
71. With the aforesaid observations and directions, the writ petition succeeds and allowed to the extent indicated herein before. There shall be no order as to costs.