Central Administrative Tribunal - Delhi
Than Singh Tyagi S/O Udai Singh Tyagi vs Government Of Nct Of Delhi Through on 8 August, 2011
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH NEW DELHI Original Application No.1929 of 2010 This the 8th day of August, 2011 HONBLE SHRI JUSTICE V. K. BALI, CHAIRMAN HONBLE DR. RAMESH CHANDRA PANDA, MEMBER (A) Than Singh Tyagi S/o Udai Singh Tyagi, R/o H-217, Vikas Puri, New Delhi. Applicant ( By Shri Ajesh Luthra, Advocate ) Versus 1. Government of NCT of Delhi through Chief Secretary, 5th Floor, Delhi Sachivalaya, New Delhi. 2. Director, Directorate of Vigilance, Government of NCT of Delhi, 4th Level, C-Wing, Delhi Sachivalaya, IP Estate, New Delhi. 3. Secretary, Ministry of Home Affairs, North Block, New Delhi. Respondents ( By Shri Vijay Pandita, Advocate ) O R D E R Justice V. K. Bali, Chairman:
Than Singh Tyagi, the applicant herein, while working as ad hoc DANICS officer retired on attaining the age of superannuation on 30.10.2009. Just two hours before he was to demit the office, the respondents bid him adieu with a charge memorandum proposing to hold an enquiry against him under rule 14 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965, as regards an incident of the year 1998, more than a decade ago when he was to retire. The statement of article of charge annexed with the charge dated 30.10.2009 recites that the applicant while functioning as Sub-Registrar (Narela) during the period July, 1998 committed gross misconduct inasmuch as, in order to extend undue advantage to a party, he deliberately and willfully violated the provisions of the Indian Registration Act, 1908 by registering a sale deed executed by one Mahdner Singh, general attorney of Mange Ram in favour of (1) Smt. Kesar Wati, (2) Smt. Savita Gupta and (3) Smt. Kiran Gupta, even though the land as per revenue records belonged to Makbooja Kumharan and not to the individuals. In the manner aforesaid, it is further recited, the applicant failed to maintain absolute integrity and acted in a manner unbecoming of a Government servant thereby violating relevant provisions of the CCS (Conduct) Rules, 1964. The applicant takes very serious exception to the charge memorandum. His obvious prayer in the present Original Application filed by him under Section 19 of the Administrative Tribunals Act, 1985 is to quash and set aside the impugned charge memorandum, and direct the respondents to immediately release all his withheld retiral dues along with penal interest from the date the same were due and admissible till they are finally released.
2. The facts as projected in the Original Application reveal that the applicant had a good service record and earned promotions in due time and served the Government of NCT of Delhi in various capacities while holding key positions. It is the case of the applicant that the Sub-Registrar is the custodian of records pertaining to immovable properties and such other properties registration in respect of which is optional. Sub-Registrar has to register a deed presented before him provided the parties to the execution of deed appear before him and other formalities like payment of tax and other levies, witnesses and other things are in order, and he is not required under law to verify the title of the property in respect of which a sale deed is presented before him for registration; whether the seller has a valid title to transfer or not, is not the concern of Sub-Registrar and it is only the purchaser who may or may not satisfy himself of the valid title of the seller. The applicant has placed reliance upon executive instructions dated 13.8.1976 issued by the office of Inspector General of Registration, Delhi, that the registering officer is in no way concerned with the validity of the documents brought before him for registration on the ground that executant was dealing with property not belonging to him. Clause 42 of the instructions relief upon by the applicant reads as follows:
Registering Officers should bear in mind that they are in no way concerned with the validity of documents brought to them for registration, and that it would be wrong for them to refuse to register on any such ground as the following, e.g., that the executant was dealing with property not belonging to him, or that the instrument infringed the rights of third persons not parties to the transaction, or that the transaction was fraudulent or opposed to public policy. These and similar matters are for decision, if necessary, by competent courts of law and registering officers, as such, have nothing to do with them. If the document is presented in a proper manner by a competent person at the proper office within the time allowed by law, and if the registering officer is satisfied that the alleged executant is the person he represents himself to be, and if such person admits execution, the registering officer is bound to register the document without regard to its possible effect. The applicant, in addition to the plea raised by him that the chargesheet has been issued to him after inordinate delay without there being any explanation whatsoever and on that ground alone the chargesheet needs to be quashed, also pleads that the seller in the said deed had a registered power of attorney in his favour, and on the strength of the said document he had executed a sale deed. Copy of the registered power of attorney has been annexed with the OA. The applicant further pleads that the chargesheet is conspicuously silent on this relevant factor. It is pleaded that the power of attorney being already registered would make the entire difference in the case of the respondents inasmuch as, the group of Kumhars had already alienated their power to sell the property, but the respondents would deliberately not make a mention of the power of attorney in the chargesheet. Be that as it may, the applicant states that he had sought the report of Halqua Patwari, which indicated that the possession of land was with Maqbooja Kumharan, i.e., group of Kumhars and only five persons belonged to the said group. It is further pleaded that even the L.R.4 register mentioned that the Makbooja Kumharan were the bhumidars, and the rights of Bhumidars are transferable as per section 31 of the Delhi Land Reforms Act, 1954. As per provisions of section 48 of the said Act a Bhumidar can also bequeath his rights by way of a will. The chargesheet is stated not only to be delayed but contrary to the provisions of law. Because of the pending chargesheet, the applicant has been denied gratuity, leave encashment and other retiral benefits, and is getting only provisional pension.
3. In response to the notice issued by this Tribunal, the respondents have entered appearance and by filing their counter reply contested the cause of the applicant. Some preliminary objections have been raised, but inasmuch as the same have not been pressed during the course of arguments, there would be no need to make a mention of the same. On merits, the facts as stated in the OA are not much in dispute. As regards delay, there is no explanation furnished by the respondents. All that is pleaded in that regard is that a Government servant is liable for disciplinary action for any misconduct during his service or after his retirement as per provisions of CCS (CCA) Rules, 1965 and CCS (Pension) Rules, 1972, and, therefore, the chargesheet issued to the applicant would be in accordance with the provisions of rule 14 of the Rules of 1975. A Government servant, it is further pleaded, can be proceeded at any time during his service period, and disciplinary action can be taken even after his superannuation. As regards the basic plea of the applicant that he had discharged his official duties in accordance with law and it was not obligatory on his part to make any enquiry to find out as to whether the seller had an alienable title, it is pleaded that a complaint was made by Shri Rai Singh Dabas and others to the Chief Minister, Delhi alleging illegal transfer of Government land in village Sultan Pur Dabas. It is pleaded that the applicant, when working as Tehsildar (Narela) was given additional charge of Sub Registrar of Narela Sub Division vide order dated 19.12.1997, and that a sale deed in respect of the said land was received in the office of Sub Registrar on 24.7.1998 executed by Mahender Singh S/o Bhagwan Singh, general power of attorney of Shri Mange Ram S/o Naider, Prahlad Singh, Om Prakash S/o Rattan and Chet Ram, Lakhi Ram S/o Ramu, in favour of Smt. Kesar Wati w/o Har Prashad Gupta, Smt. Savita Gupta w/o Girish Gupta and Smt. Kiran Gupta w/o Anil Gupta. Status report in respect of the said land was sought by the applicant from the Halqua Patwari of the area Sultan Pur Dabas, who submitted his report dated 28.7.1998 to Sub Registrar, which is as follows:
As per your directions I have seen the record relating to Makbooja Kumharan in Village Sultanpur Dabas. After perusing the record it is found that in the entry at the column of Bhoomidar of Khata No.85/90 in Khatauni Chakbandi, it is mentioned as Makbooja Kumharan. On enquiry in the village it has been found that there are total five Kumhars and their names are as under:-
Mange Ram S/o Naider Prahlad Singh Om Prakash S/o Rattan Singh Chet Ram Lakhi Ram S/o Ramu The possession at the site is of them. The applicant, who was also working as Tehsildar (Narela), received the report of Halqua Patwari on 28.7.1998. On receipt of the report, it is pleaded, it was his duty to check the relevant record pertaining to the land in the revenue records, and that as per LR-4 register, the land was allotted to Makbooja Kumharan and not to the individual or partners, but the applicant in violation of the Indian Registration Act, 1908, registered the sale deed. It is further pleaded that the applicant failed to obtain no objection certificate/report from the competent authority, and that according to the rules and regulations of registration of documents the applicant as Sub Registrar was under obligation to obtain a status report/no objection certificate of the revenue and land in question.
4. We have heard the learned counsel representing the parties and with their assistance examined the records of the case. Before we may advert to the rival contentions of the learned counsel representing the parties, we may mention that the matter is at its initial stage when the applicant has only been issued a chargesheet. It is not in dispute that at this stage, the Tribunal or Courts would have no jurisdiction to go into the correctness or truth of the charges, which is a matter for the disciplinary authority to go into. The Courts or Tribunals can, however, interfere if on the charges framed read with imputation or particulars of the charges, if any, no misconduct or other irregularity can be said to have been made out or the charges framed are contrary to law. For this proposition of law, learned counsel representing both parties would rely upon the judgment of the Honble Supreme Court in Union of India & others v Upendra Singh [(1994) 3 SCC 357]. The chargesheet can also be quashed if the same has been issued after inordinate delay without there being any proper explanation for the same. The chargesheet can, however, be quashed for having been issued after inordinate delay, but the same would depend upon facts and circumstances of each case, is once again, an admitted position in law. The case of the applicant canvassed through Shri Ajesh Luthra, learned counsel representing him, is that the present is a case where delay in issuing the chargesheet to the applicant would be fatal, and further that the charges framed against the applicant cannot sustain being contrary to law.
5. We will first deal with the inordinate delay in issuing the chargesheet to the applicant. Sale deed with regard to the land said to be belonging to Kumhars was registered by the applicant when he was discharging the functions of Sub Registrar (Narela) on 24.7.1998. The chargesheet has been issued to him on the eve of his superannuation on 30.10.2009, i.e., after a period of more than eleven years. As mentioned above, in the reply filed on behalf of the respondents, there is not a word as regards explanation for delayed action against the applicant. The respondents would rather plead that it is their prerogative to take disciplinary action against a Government servant as long as he is in service or even after his superannuation. Without specifically saying so, what the respondents want to convey to this Tribunal is that delay in proceeding against a Government servant would be of no consequence whatsoever. Even though, as mentioned above, no explanation as regards delayed action against the applicant has been mentioned in the reply, it would not be difficult to return a finding on the basis of available material that there was indeed no reason whatsoever to take action against the applicant after almost twelve years from the date the sale deed came to be executed. Sale deed is a public document. The factum of the land having been sold would, in any case, would come to the immediate notice of everyone in the village when the vendees may have taken possession. It is not the case of the respondents that the purchasers had not entered possession of the land subject matter of sale. There is a mention in the charge memorandum and the accompanying documents of a complaint made by Rai Singh Dabas and others to the Chief Minister alleging illegal transfer of Government land. There is, however, no mention as to when this complaint came to be filed either in the charge memo or in the pleadings made by the respondents. On an earlier occasion after hearing the arguments, we had reserved judgment in this case on 16.5.2011. On 19.5.2011, we required the parties to furnish some information as regards the criminal case said to have been registered against the applicant with regard to the same very allegations. The respondents have shown us the status report in the criminal case, which would show that an enquiry in the complaints of residents of village Pooth Khurd was conducted by ADM/North-West Delhi and his enquiry report dated 16.5.2005 was referred to A.C. Branch through Directorate of Vigilance and was entrusted to ACP/ACB for enquiry. When was the complaint made by residents of village Pooth Khurd is not known, but indeed the report came to be made on 16.5.2005. In our considered view, the factum of the same ought to have come to the notice of the authorities when various complaints referred to above were made, or at least on a date when even the enquiry report came into being. The said report, we may reiterate, came into being on 16.5.2005. The respondent would not proceed against the applicant even at that stage. This Tribunal is in a position to return positive finding of fact that there is absolutely no explanation for delayed action against the applicant. Before we may, however, further deal with this aspect of the case, we may mention that as per the information as required by us vide order dated 19.5.2011, a criminal case indeed has been registered and is pending investigation. No challan has been submitted in the court till date. The prosecution sought sanction to prosecute the applicant; Suresh Chand, then ACO/Naib Tehsildar, Narela; and Shri Santosh Dutt, then Halqua Patwari, Village Sultanpur Dabas, but till date prosecution sanction in respect of only Santosh Dutt has been received, and despite reminders in that regard, sanction against the remaining officials as mentioned above, has not been received.
6. The applicant superannuated on 30.10.2009. He is to furnish explanation to the allegations contained in the charge memo now after more than thirteen years. In our considered view, it would not be possible for the applicant at this stage to recollect all facts for him to give a meaningful explanation. It is not possible for a human being to recollect incidents of distant past. The applicant must have registered number of sale deeds in the course of his duties as Sub Registrar. Loss of memory after twelve years, and particularly when a person would be more than 60 years, is a natural phenomenon.
7. We will deal with the legal aspect of the case as regards duties of Sub Registrar while registering sale deed to find out whether the vendor would have a right or legal title, but suffice it to say at this stage while dealing with the facts of the case that even though there is an allegation that the applicant registered the sale deed with a view to extend undue advantage to the party, there is nothing whatsoever to substantiate the said allegation, but for a presumption that may arise if it is to be found that the applicant illegally registered the sale deed. Neither in the article of charge nor in the reply filed on behalf of the respondents there is any mention of facts or circumstances which may show ulterior motive on the part of the applicant. We reiterate that even during the course of arguments nothing in that regard was pointed out, but for a presumption that may arise if it is to be found that it was a case of illegal registration of the sale deed. The delay is unexplained and the facts and circumstances of the case, in our view, would not warrant an enquiry against the applicant at this distance of time.
8. The Honble Supreme Court in State of Madhya Pradesh v Bani Singh & another [1990 (Supp) SCC 738] held that delay of 12 years in initiating disciplinary proceedings would be fatal if no satisfactory explanation in issuing the chargesheet has been stated. It was further held that to permit departmental enquiry to proceed at a late stage would be unfair. A Division Bench of the Kerala High Court in Meeran Rawther v State of Kerala [2001 (5) Service Law Reporter 518] held that when there is no reasonable explanation given for delay in initiating proceedings, delay by itself would constitute denial or reasonable opportunity to show cause and that would amount to violation of principles of natural justice. A Division Bench of the High Court of Delhi in Union of India v P. K. Mathur [WP(C) No.3638/2010 decided on 25.5.2010], where delay was of 12 years in conducting enquiry, held that the State is required to explain the delay even for serving the memorandum of charge, and when the State is unable to explain the delay, it would be a fit case for interference. A Division Bench of the High Court of Allahabad in A. N. Verma v S. K. Chaturvedi & others [2004 (2) Service Law Reporter 516] held that inordinate delay in initiation of proceedings when there is no explanation and when the proceedings were initiated on the eve of retirement would be bad in law. There are number of judicial precedents on the issue, but it would be unnecessarily burdening the judgment by making mention of all of them. We may only mention that it is a settled proposition of law by now that if there is delay in initiating the departmental proceedings without there being explanation for the same and in the facts and circumstances of the case the employee concerned is prejudiced in defending the charge against him, the courts and tribunals would be well within their right to quash the disciplinary proceedings.
9. We find considerable merit in the contention of the learned counsel representing the applicant that there was no duty cast upon the applicant to verify the title of the vendor, and to first to come to the conclusion that the seller had an alienable title. Before we may refer to the case law on the issue, we may mention that it is not in dispute that the land was sold on the basis of a general power of attorney executed by all the Kumhars who were in possession of the land. The land in the revenue records (LR-4) has been described in the column of ownership as Maqbuza Kumharan. In column 4 mention is of Gram Sabha, and in column 5 pertaining to possession it has been shown Maqbuza Kumharan. It is the case of the respondents themselves that the applicant asked for status report in respect of the land from the Halqua Patwari of the area Sultan Pur Dabas, who reported in the entry at the column of Bhoomidar of Khata No.85/90 in Khatauni Chakbandi that the land was Maqbuza Kumharan and that there were total five Kumhars who were in possession. The same very persons who were in possession as reported by the Patwari, had executed the power of attorney in favour of the seller.
10. The applicant has filed rejoinder wherein it is pleaded that he had sought information under the Right to Information Act, and was informed that Makbooja Kumharan were declared Bhoomidar of the land and there was no provision of law which may prevent such Bhoomidar to transact any sale in respect of their respective land. Information received by the applicant has been annexed with the rejoinder as Annexure X-1. We may reproduce Annexure X-1, which is as regards information sought and supplied:
INFORMATION ASKED INFORMATION SUPPLIED (1) Name and designation of the competent authority who had during 1954 declared the Makbooja Kumharan as Bhoomidars in respect of the land bearing Khasra No.82/23 (2-11 and2415-2) situated in village Sultan Pur Dabas, Delhi As per entry in LR-4 then RA Shri Harphool Singh declared Makbooja Kumharan as Bhumidar in respect of Land 32/23-24 (2-11) (5-2) in Village Sultan Pur Dabas.
(2) A copy of all the relevant orders/record thereof may please be supplied. Copy of LR-4 is enclosed.
(3) Period for which information since 1954 to 27.7.1998 required.
(4) During the yr. 1998 which functioning as Sub Registrar (Narela) Delhi in exercise of his powers vested in him by Indian Registration Act, 1908, applicant had registered a sale deed in respect of a transaction pertaining to the land bearing Khasra No.88/23 (2-11) and 24 (5-2) situated in Village Sultan Pur Dabas, Delhi. It was submitted before the applicant the Makbooja Kumharan were the owners of the said land as Bhumidars and as such possessed every to execute the sale deed pertaining to the aforesaid land. Copy of Khatoni LR four and Khatauni Chakbandi in r/o Kh No.82/23(2-1) and 24 (5-2) Village Sultan Pur Dabas.
(5) Is there any provision of law that prevents a Bhumidar to transact any sale of the land by Bhumidar. If so, please indicate the exact provision of law therefor. As the Makbooja Kumharan were declared Bhumidar u/s 13 of DLR Act 1954 as per entries reflected in LR-4 and as such there is no provision of any kind which prevent such Bhumidar for transferring any sale in r/o their respective land.
(6) Period for which in formation required 1954 till 27.7.1998 Copy of record enclosed.
(7) During the year 1998 while functioning as Sub Registrar (Narela) Delhi in exercise of his powers vested in him by Indian Registration Act a sale deed in respect of a transaction pertaining to the land bearing khasra No.82/23 (8-1) and 24 (5-2) situated in village Sultanpur Dabas, Delhi. It was submitted before the applicant that Makbooja Kumharan wee the owners of the said land as Bhumidars and as such possessed every right to execute the sale deed pertaining to the aforesaid land. Copy of status report in r/o kh No.82/23 82/24 at Village Sultanpur Dabas furnished by then Halka Patwari before the SR/Tehsildar Narela is enclosed.
We are not in these proceedings determining the title of the land and right of Kumhars in possession to sell the same. That issue, if may arise, shall have to be gone into by a court of competent jurisdiction. It is only for the purpose of disposing of the present OA that we may observe that the applicant could well, as per the information supplied to him, and as per the knowledge of law that he had, be of the considered opinion that the land could be sold on the dint of power of attorney given by all the Kumhars in possession.
11. We would have delved into the issue as regards duty of a Sub Registrar to satisfy himself with regard to the title of the vendee in all its minute details in the context of the provisions of the Registration Act and other connected provisions of law, but since the matter is no more res integra and stands clinched by number of judicial precedents, we may not enter into the said exercise. A Single Bench of the Kerala High Court in K. Eshaque v Sub-Registrar, Kozhikode & Another [AIR 2002 KERALA 128], after examining the relevant provisions of the Registration Act and on the basis of earlier judicial precedents of various High Courts, has held that the provisions of Registration Act do not empower the registering authority to satisfy the title, possession or encumbrances in respect of the property with respect to which registration is sought for. The authority can raise a doubt with regard to the title and possession of the property only if the statute under which he is functioning authorises to do so, and in the absence of any such authorization, the authority would not be justified in directing the parties to obtain a possession certificate from the competent authority to clear the doubt regarding the title and possession of the property and to register the document. It may be mentioned that a circular came to be issued by the Inspector General of Registration which conferred such power on the Sub Registrar because of which only the Sub Registrar had not registered the sale deed. On challenge to the act of Sub Registrar in not registering the sale deed, it was held that the circular issued by the Inspector General of Registration which conferred such power on Sub Registrar would be inconsistent with the provisions of the Act and would be without jurisdiction, and as such would not be binding on the Sub Registrar. While so holding, as mentioned above, the learned Single Bench relied upon all the relevant provisions of the Registration Act and a judgment of the Patna High Court in Bihar Deed Writers Association v State of Bihar [AIR 1989 Patna 144], another judgment of the Patna High Court in Ram Lakhan v Pandit Raghunandan [AIR 1989 Patna 145], decision of the Punjab & Haryana High Court in Krishna v Stae of Punjab [AIR 1986 Punj & Har 328], and decision of the Madras High Court in Nalla Gounder v Krishnaswami Naicker [AIR 1945 Madras 465]. The applicant in addition to the case law on the subject would rely upon instructions reproduced above, to which there is no rebuttal whatsoever. Following the decisions as referred to above, we allowed OA No.1166/2007 vide order dated 29.5.2008 in the matter of S. K. Srivastava v Union of India & others, where too the allegation against the Sub Registrar was of registering a sale deed of which the vendor did not have the title. We are conscious that the matter aforesaid came before this Tribunal for decision after the applicant therein had been held guilty and when punishment was inflicted upon him, whereas in the present case, the applicant is asking for quashing of the chargesheet, as also that in the case aforesaid there were no allegations of mala fides on the part of the applicant, whereas in the present case, there is mention in the charge memo that the applicant registered the sale deed in order to extend undue advantage to the party. However, as mentioned above, if the charge cannot sustain being illegal, the same can be quashed at this stage as well, as also that as observed above, the allegation as regards extending undue advantage to the party concerned is only presumptive and is not to be proved by any independent evidence as such.
12. In totality of facts and circumstances of the case as fully detailed above, we quash and set aside the charge memo dated 30.10.2009. In consequences of setting aside the impugned charge memo, the applicant would be entitled to his full pension, as also payment of withheld post-retiral dues. Full pension of the applicant shall be restored forthwith, whereas arrears in that regard, as also the withheld post retiral dues shall be made over to him within a period of six weeks from today. Costs of this litigation are, however, made easy.
( Dr. Ramesh Chandra Panda ) ( V. K. Bali )
Member (A) Chairman
/as/