Madhya Pradesh High Court
Om Prakash Shrivastava vs General Administration Department on 13 February, 2020
Equivalent citations: AIRONLINE 2020 MP 76, 2020 LAB IC 1191
Author: Vandana Kasrekar
Bench: Vandana Kasrekar
1
The High Court Of Madhya Pradesh
SINGLE BENCH : HON'BLE MS. JUSTICE VANDANA KASREKAR, J.
WP-28883-2018
OM PRAKASH SHRIVASTAVA
Vs
GENERAL ADMINISTRATION DEPARTMENT AND OTHERS
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Shri Madhusudan Dwivedi, learned counsel for the
Petitioner .
Shri Aarvind Kumar Sharma GA for the respondent/ State.
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ORDER
(Passed on 13/02/2020) The petitioner has filed the present writ petition under Article 226 of the Constitution of India against the order dated 12/10/2018 passed by the respondent / Secretary, State of M.P ( Mantralay) GAD, Bhopal.
2 The petitioner was retired on 30/04/2016 from the post of Joint Collector after attaining the age of superannuation. While he was in service, a show-cause notice was issued on 22/08/2013 by the Commissioner, Indore Division, Indore with respect of 33 Diversion orders passed in the year 2010-11 by exercising powers conferred under section 172 of the Madhya Pradesh Land Revenue Code, 1959 ( in short " MPLRC " ), while he was discharging the duties of SDO ( Revenue) Badnawar, District - Dhar. An inspection was carried out in the office of SDO ( Revenue) Badnawar by the President, Revenue Board, in which some irregularity was found in the diversion orders passed by the petitioner, which was made foundation for issuance of show-cause notice, mentioning therein that the act of the petitioner was amounting to misconduct as defined under Rule 3(1)(2) and (3) of the M.P. Civil Services ( Conduct) Rules, 2 1965 ( in short " Rules, 1965"), therefore, he is liable to face departmental proceedings under the M.P. Civil Services ( Classification, Control and Appeal ) Rules, 1966 ( in short "
CCA Rules, 1966" ) and he was asked for his explanation within 15 days. The petitioner has filed reply to the said show-cause notice and tendered apology for misconduct, if any committed by the petitioner while passing the orders. After filing of reply, nothing was done therefore, the petitioner had submitted an application on 13/01/2014 before the Commissioner, Indore Division, Indore whereby requested for dropping of the departmental proceedings on the ground of circular dated 22/08/1974. Thereafter, again second show-cause notice was issued on 24/06/2014, by which, it was alleged that the petitioner dismissed a case in relation to the mutation for want of prosecution in absence of parties, though the case was remanded by the Collector for deciding the issues on merit. After execution of the sale-deed again mutation order was passed by the Tehsildar and thereafter, the land use was changed by the passing diversion order by the petitioner for residential purposes, which shows dereliction on the part of the petitioner, therefore, he is liable tobe punished under Rule 10 of the CCA Rules, 1966. After receiving of the second show-cause notice, the petitioner was again requested through a letter dated 09/07/2014 for supply of documents and demanded copies of the proceedings. In pursuant to the said letter, Dy. Commissioner directed the Collector, Dhar to supply those documents to the petitioner. Thereafter, six members committee was constituted by the then SDO, Badnawar for examining 272 diversion orders passed by the petitioner. Thereafter, without conducting any preliminary enquiry or on the basis of any 3 reports from higher authority, only on the basis of procedural irregularity, the Commissioner ( Revenue) had issued charge- sheet on 28/29-08-2014 as per the provisions contained in Rule 14(3) of the Rules, 1966 by levelling as many as four charges against the petitioner. The petitioner filed reply to the said charge-sheet, however, without considering the reply submitted by the petitioner, the respondent appointed Inquiry Officer as well as the Presiding Officer vide order dated 01/07/2015 for conducting enquiry against the petitioner. Thereafter, the Inquiry Officer conducted the departmental enquiry proceedings by directing to the Presenting Officer to produce evidence in support of the charges levelled against the petitioner in the charge-sheet after recording the statements of both the parties. Thereafter, written brief had been filed by the parties and the Inquiry Officer, thereafter, sent inquiry report to the Commissioner and the said inquiry report was issued to the petitioner along with show-cause notice. In the said inquiry report, the charges levelled against the petitioner was not found proved and only lack of supervision with respect to registration of case in his office was not found proper, therefore, he found not guilty of charges, but lack of control in office administration by the petitioner. However, the petitioner filed reply to the said inquiry report. After submission of the reply to the Inquiry Officer, the Disciplinary Authority should have imposed minor penalty or he should have been exonerated. After dissatisfying with the findings recorded by the Inquiry Officer, the Commissioner issued show-cause notice dated 05/07/2017 under Rule 15(2) of the M.P. Civil Services ( Classification, Control and Appeal ) Rules, 1966. The petitioner replied to the said notice, however, without considering the reply submitted by 4 the petitioner, the respondent passed the impugned order dated 12/10/2018, thereby imposing punishment of withdrawal of 10% pension for ten years. Being aggrieved by that order, the petitioner has filed the present writ petition before this Court.
3 Learned counsel for the petitioner submits that the impugned order dated 12/10/2018 is illegal and arbitrary. He submits that while working as SDO, he was discharging his duties of judicial officer, therefore, he had same protection unde the MPLRC. He further submits that the orders passed by the petitioner was never challenged before any higher authority, therefore, it has attained finality. The diversion orders have been issued as per the provisions contained under section 172 of the MPLRC. Assessment of land revenue has already been made as per section 59 of the MPLRC. He further submits that the Commissioner was personally bias and prejudice against the petitioner, therefore, he made attempt somehow to punish the petitioner in departmental enquiry. Prima facie, no department enquiry can be initiated against the petitioner, who has passed the order, against which, provision of appeal or revision is available, but in the present case, no such type of proceedings has been initiated by any person or authority as initiated in revision, then the charges, which cannot be framed, cannot be the basis to record the statement of diversion. He further submits that the petitioner was fully exonerated by the Inquiry Officer from the charges, but all of a sudden, without graning any opportunity of personal hearing, punishment order withholding 10% pension for the period of 10 years under the CCA Rules, 1966 has been passed. In such circumstances, he submits that the present petition deserves to be allowed. For the sake of reference, he has placed reliance upon the order 5 dated 17th May 2019 passed in Writ Petition no. 1901/2017 ( Mrs. Manorama Koshti Malkapurkar Vs. State of M.P and others ) as also the judgment delivered by Hon'ble Supreme Court in the case of Zunjarrao Bhikaji Nagarkar, Vs. Union of India and others reported in AIR 1999 SC 2881.
4 Learned counsel for the respondent/s have filed their reply and in the reply, it has been stated that the charges have been levelled against the petitioner, for the work, which was performed by him in his official capacity as revenue Court and thus, in no stretch of imagination, the petitioner deserves protection under the aforesaid Act. That, while working as SDO ( Revenue, Badnawar, the petitioner, in one of the revenue case titled as Smt. Madhulika Jain, President, Yash Siksha Sansthan Badnawar Vs. State of M.P reviewed his previous order dated 07/08/2010 passed in Revenue Case no. 66/A-2/09- 10 by the subsequent order order dated 26/04/2011, wherein the petitioner cancelled the previous diversion order dated 07/08/2010, thereby re-diverted the land from commercial purpose to agricultural purpose without taking prioer permission of the District Collector, Dhar. Like this, number of irregularities have been done by the petitioner while passing diversion orders. It is further submitted that if in the aforesaid act alleged in the charge-sheet was done by the petitioner in his official capacity as a Revenue Court, the respondent no. 1 / State is not debarred to initiate disciplinary proceedings against the petitioner. As per Sub-section 2 of Section 3 of the Judges ( Protection) Act, 1985, the respondent / State has right to initiate departmental proceedings against the petitioner. The alleged act done by the petitioner has not found to be done in 6 good faith and therefore, he is not entitled to get protection under the provisions of the Judicial Officers Protection Act. In light of the aforesaid, present petition deserves to be dismissed. 5 Heard learned counsel for the parties and perused the records.
6 Section - 2 of the Judges (Protection) Act, 1985 defines about the word "Judge" which reads as under -
"2. Definition.-- In this Act "Judge" means not only every person who is officially designated as a Judge, but also every person-- (a) who is empowered by law to give any legal proceeding a definitive judgment, or a judgment which, if not appealed against, would be definitive,or judgment which, if confirmed by some other authority, would be definitive; or (b) who is one of a body of persons which body of persons is empowered by law to give such a judgment as is referred to in clause (a)."
7 As per the said definition, any person who is empowered by law to give any legal proceeding a definitive judgment and any person who is one of a body of persons which body of persons is empowered by law to give such a judgment as is referred to in Clause (a) is a Judge.
8 In the present case, the petitioner is empowered to give judgment, therefore, he is a judge as per definition given under the Act of 1985.
9 Section 3 of the Act of 1985 gives additional protection to Judges. The said section reads as under :-
"3. Additional Protection to Judges.
(1) Notwithstanding anything contained in any other law for the time being in force and subject to the provisions of sub-section (2), no Court shall entertain or continue any civil or criminal proceedings against any person who is or was a Judge for any act, thing or word committed, done 7 or spoken by him, or in the course of acting or purporting to act in the discharge of his official or judicial duty or function.
(2) Nothing in sub-section (1) shall debar or affect in any manner, the power of the Central Government or the State Government or the Supreme Court of India or any High Court or any other authority under any law for the time being in force to take such action (whether by way of civil,criminal or departmental proceedings or otherwise) against any person who is or was a Judge."
10 As per this Section, some protection has been given to the Judge while discharging his duty as Judge. The definition of judgment which is given under Section 2 of the Act is much wider and it includes an order which determines the right of the parties, for the reasons given in it.
11 The petitioner, exercising his power under the M.P. Land Revenue Code, is a Judge and, therefore, he is entitled to protection under Section 3 (1) of the Act and no Court could entertain any civil or criminal proceedings against him for any act, thing or word committed, done or spoken by him, or in the course of acting or purporting to act in the discharge of his official or judicial duty or function.
12 The Division Bench of this Court in the case of State of M.P Vs. Shriniwas Sharma & Anr. reported in 2005(2) M.P.L.J. 155 has held as under :-
"As per the settled legal position the officers who are discharging the duties as a quasi judicial authorities are protected under the umbrella of acts done in good faith. When law protects a judicial or quasi judicial authority in relating to his bonafide act then the concerned officer who discharges the duties cannot be brought in the net of the departmental enquiry unless something additional 8 has been brought into existence. A mere mistake committed while passing a quasi-judicial order does not partake the character or nature of misconduct. The Tribunal has analyzed the said aspect in a great detail we perceive no reason to differ with the same."
13 As per the said judgment, the officers, who are discharging the duties as a quasi-judicial authorities are protected under the umbrella of acts done in good faith. 14 Similar view has been taken by this Court in the case of Balram & Anr. Vs. Aswani Kumar Yadav & Anr. reported in 2001 (2) M.P.H.T. 330 as well as the judgment passed by this Court in the case of State of M.P. Vs. Rajeev Jain reported in 2001 (4) M.P.H.T. 58.
15 Thus, in the light of the aforesaid judgments, the orders passed by the petitioner while discharging the quasi- judicial powers, cannot be said to be illegal orders. The respondent is neither having any authority or jurisdiction to question the validity if any order passed by the petitioner while discharging his quasi-judicial duty nor to do any scrutiny of any order as every order passed by the petitioner under his duty as an quasi judicial officer is an appealable. Therefore, on this ground, the action cannot be taken against the present petitioner.
16 In the light of the aforesaid detailed discussion, the present petition is allowed. The impugned orders 12/10/2018 , by which, penalty has been imposed for withholding of 10% of pension for a period of 10 years, is hereby quashed.
CC as per rules.
(Ms. Vandana Kasrekar) Judge amol Digitally signed by AMOL N MAHANAG Date: 2020.02.13 17:39:39 +05'30'