Jharkhand High Court
Naresh Kumar vs The State Of Jharkhand on 8 December, 2020
Equivalent citations: AIRONLINE 2020 JHA 1290
Author: Sanjay Kumar Dwivedi
Bench: Sanjay Kumar Dwivedi
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P. (S) No. 7354 of 2019
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Naresh Kumar, aged about 69 years, son of Late Dr. Deo Narayan Mandal, resident of Shantideo, Modi Compound, Taigore Hill Road, Morabadi, P.O. Ranchi University, P.S. Bariatu, District-Ranchi-834008.
.... .... .... Petitioners
Versus
1. The State of Jharkhand
2. The Principal Secretary, Personnel, Administrative Reforms and Rajbhasha Department, Government of Jharkhand, Ranchi
3. The Joint Secretary, Personnel Administrative Reforms and Rajbhasha Department, Government of Jharkhand, Ranchi
4. The Deputy Secretary, Personnel Administrative Reforms and Rajbhasha Department, Government of Jharkhand, Ranchi
5. The Accountant General, Jharkhand, Ranchi .... .... .... Respondents CORAM : HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI For the Petitioner : Mr. Saurabh Shekhar, Advocate For the Respondents-State: Mr. Salona Mittal, S.C. to G.A.-I For the Respondent No. 5 : Mr. Amit Kumar Verma, Advocate
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C.A.V. On:- 11/11/2020 Pronounced on:- 08/12/2020 Heard Mr. Saurabh Shekhar, learned counsel for the petitioner, Mr. Salona Mittal, learned counsel for the respondents-State and Mr. Amit Kumar Verma, learned counsel for the respondent no.5.
2. This writ petition has been heard through Video Conferencing in view of the guidelines of the High Court taking into account the situation arising due to COVID-19 pandemic. None of the parties have complained about any technical snag of audio-video and with their consent this matter has been heard.
3. The petitioner has preferred this writ petition for quashing of punishment order dated 13.11.2019 contained in Annexure-8 whereby decision has been taken to deduct 20% of pension for future 10 years. Further prayer has been made for setting aside entire departmental proceeding. Prayer has also been for direction upon the respondents to pay the arrears of pensionary benefits if deducted in view of the punishment 2 order dated 13.11.2019.
4. The petitioner joined the service after becoming successful in the combined competitive examination duly conducted by the then Bihar Public Service Commission. The petitioner joined his service under the State Administrative Services on the post of Deputy Collector on 20.05.1980 and after bifurcation of the State, the petitioner was allocated the State of Jharkhand cadre and thereafter, the petitioner superannuated from service on 31.07.2010. While in service, the petitioner was served with Resolution dated 31.12.2005 issued by the by respondent No. 4 whereby decision was taken to initiate departmental proceeding in relation to incorrect mutation done by the petitioner in favour of 75 persons, who had been transferred the land from one Jai Bhawani Co-operative Grih Nirman Samiti. Vide another resolution dated 17.07.2006, Enquiry Officer was appointed and the petitioner was asked to submit reply. Thereafter, the petitioner retired on 31.07.2010 from the post of Deputy Secretary, Urban Development Department, Government of Jharkhand, Ranchi. By another resolution dated 08.06.2013, it was decided that in the departmental proceeding which was initiated on 31.12.2005 everything was remained same, except the enquiry officer that was changed. The petitioner filed reply on 17.11.2014 whereby he denied all the allegations levelled against him and also supplied copy of one criminal case being W.P.(Cr.) No. 497 of 2010 whereby vide order dated 05.04.2013, this Hon'ble Court quashed the criminal proceeding against the petitioner. The petitioner was again show-caused vide letter dated 11.01.2019 to the effect that proposed punishment of deduction of 20% from pension for next 10 years. The petitioner was supplied enquiry report whereby the enquiry officer has been pleased to find petitioner guilty in Case No. 1 and Case No. 21, however, in the matter of Case No. 14 the petitioner has been exonerated and in other cases no finding was given. The 3 petitioner filed reply to the proposed punishment denying all the charges and raising questions on the enquiry report. By order dated 13.11.2019, punishment has been inflicted to the petitioner of deduction of 20% pension for next 10 years.
5. Mr. Saurabh Shekhar, learned counsel appearing for the petitioner assailed the impugned order on the ground that allegation levelled against the petitioner is not maintainable. He submitted that the since the first allegation pertaining to case no. 1 that deals with mutation done by the petitioner, while he was posted as Circle Officer, Sadar, Ranchi, of land which was Garmajurwa Malik and this was done on the basis of running name of Chandan Sao and Bharat Sao, which was later on detected as to be fraudulently inserted. He further submitted that it was not considered that earlier to the posting of the petitioner on 23.01.1989 the mutation in pursuance to transfer of lands from Chandan Sao and Bharat Sao to one Jai Bhawani Co-operative Grih Nirman Samiti was already done for the same parcel of land, by earlier incumbent. He submitted that the petitioner gave his joining on 25.01.1989 only followed prescribed mutation proceeding on the basis of what was earlier entered in Register-II records wherein the recorded name is Jai Bhawani Co-operative Nirman Samiti and entering the names had moved application-75 purchasers after inviting public notice. He submitted that the petitioner has done in accordance with law and the petitioner was not empowered to go beyond record. He further submitted that so far as allegation no. 3 pertaining to Case No. 21, whereby it has been alleged that mutation of Kaiser-e-hind land has been done, without taking into consideration the reply of the petitioner that the mutation was done on the basis of final decree passed in Partition Suit No. 185 of 1966 whereby the portion of land was settled and partitioned in favour of Biltu Ali and Karuwa Bhuinya and others. He submitted that partition suit is decreed 4 in favour of the applicants on the presumption that they have correct title over the land and hence in view of this the mutation could not have been denied and in that view of the matter, petitioner passed mutation order. Learned counsel for the petitioner referred to Government's Circular, 1998 contained in Annexure-9 and submitted that in view of this circular it has been indicated that in case of Kaiser-e-hind, which has been in possession of private person for more than 12 years, if the State wishes to take possession, then the only remedy is by way of getting declaration in suit from competent Court of Civil jurisdiction to that effect. He further submitted that the petitioner was only Circle Officer and it was not in domain of the petitioner to file suit. He further submitted that the petitioner sitting as quasi judicial authority and in case there is an error in the judgment, the correction is opened to be done by way of preferring statutory appeal and revision thereafter. He submitted that there is no misconduct or it must be considered as case of error in judgment. He submitted that the respondents have not considered that the petitioner has followed all the statutory procedure and there is no misconduct on the part of the petitioner. He submitted that the petitioner has passed mutation order on the basis of past records of Register-II. He submitted that the mutation is only proof of the fact of possession of land. He submitted that right and title cannot be decided in mutation case. He submitted that departmental proceeding was initiated in the year, 2005 does not disclose any financial loss to the Government. He submitted that the present departmental proceeding was beyond the purview of Rule 43 (b) of the Jharkhand Pension Rules. He submitted that Resolution dated 11.06.2013 has been passed with a preposition that post retirement nothing has been changed. He submitted that in view of Rule 55 of Civil Services (Classification, Control and Appeal) Rules, 1930 punishment order was required to passed before retirement but 5 punishment order has been passed after retirement which is not maintainable. He submitted that there is violation of principle of natural justice and there is non application of mind. To buttress his argument, learned counsel for the petitioner relied on judgement in the case of " Lal Muni Devi Vs. The State of Bihar and Others" reported in MANU/BH/0398/1987 equivalent citation (1998) PLJR 174 in which it has been held as under:
"4. The learned counsel appearing on behalf of the petitioner has raised various contentions. However, this petition, in my opinion, can be disposed of on a short ground. From a perusal of the order as contained in Annexure-7 to the writ application which was passed by the respondent no. 2, it would appear that one of the grounds upon which the said order is based is that the petitioner was in possession of the excess land. i.e. evidently more than permissible under the provision of Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus land) Act. 1961. In the said order it has further been found that the local enquiry was made and the land was found Parti even on the date of inspection. In my opinion, both the grounds could not have (sic) taken into consideration by the said authority while passing the impugned orders. In my opinion the question as to whether a person is in possession of a particular land or not does not depend upon the nature of the land i.e. to say whether the same was lying fallow on the date of inspection or not. In my opinion, for the purpose of entering the name of some person in the Jamabandi, what is necessary, is to find out the actual physical possession and not the manner of possession. Further, the Commissioner in the impugned order could not have based his decision on the ground that the petitioner is in possession of excess land. The question as to whether the petitioner is in possession of the land which is said to be in excess than prescribed under the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961 or not, the same could only be determined in a proper proceeding initiated under the said Act. Such a question which falls for determination by a competent authority under the provision of the said Act cannot be taken recourse to by the revenue authorities white disposing of a matter relating to mutation.
5. In this view of the matter, in my opinion, the impugned orders are illegal. Further, as the orders contained in Annexure-1 was passed by 6 the Circle Officer and no appeal was preferred therefrom, the Land Reforms Deputy Collector could not have initiated a proceeding for cancellation of Jamabandi."
6. Learned counsel for the petitioner further relied on judgment in the case of " Depta Tewari and Others Vs. State of Bihar and Others"
reported in MANU/BH/0361/1987 equivalent citation (1987) PLJR 1037 in which it has been held as under:-
"5. From a perusal of the impugned order it appears that the respondent nos 2 and 3 have rightly decided the case of the respective parties on the basis of the possession. It is not disputed nor can it be in law, that an order with regard to mutation has to be passed on the basis of possession only inasmuch as the authorities concerned cannot decide in such a case a disputed and complicated question of title. The findings of fact by aforementioned respondents having been arrived after taking into consideration all relevant fact and as such I am not in a position to interfere therewith.
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8. In my view the Officers passing the orders on mutation matter do not exercise any judicial or quasi judicial function. They arrive at a decision of possession on the basis of the evidence placed before them including the reports of the officers concerned. Respondent nos. 2 and 3, in my opinion, cannot be said to be a Court within the meaning of section 3 of the Evidence Act, and as such it was not necessary for them to follow the procedure laid down under the Evidence Act, for the purpose of proving any docuwei1t or otherwise."
7. Learned counsel for the petitioner submitted that mutation does not create any right and title in the property. It is simply an evidence of possession for the land. He relied on judgment in the case of " Smt. Urmila Prasad Vs. The State of Jharkhand & Ors." reported in 2004(4) JLJR 425 in which it has been held as under:-
"4. Admittedly, after purchase of the said land, the petitioner came in possession of the same. The respondents have not disclosed the full description of the vigilance case in which this land is involved, nor there is any averment that the land in question has been seized or is under attachment by the order of the competent Court of law. It is well settled that mutation does not create any right and title in the property. It is 7 simply an evidence of possession over the land. I do not find any justification in rejecting the application of the petitioner for mutation particularly, when the petitioner is taking the risk of making construction on the land although the land is the subject matter of vigilance case. It goes without saying that if any adverse order is passed by a competent Court of law regarding the title of the petitioner over the land in question then the petitioner will not only be deprived of the land but also from any improvement made therein."
8. Learned counsel for the petitioner further relied on judgment in the case of " Sitaram Choubey and others Vs. State of Bihar and Others"
reported in MANU/BH/0073/1993 equivalent citation 1993 (2) PLJR 255 in which it has been held as under:-
"22. The said decision of the Division Bench which had a vital bearing on the subject was not even noticed by this Court in the subsequent Division Benches, namely in Harihar Singh V/s. Additional Collector and Ors. reported in 1978 BBCJ 323 and Khiru Gope V/s. Land Reforms Deputy Collector reported in 1983 PLJR 727.
23. This aspect of the matter has been considered by one of us in Depta Tiwary V/s. State of Bihar, 1987 0 PLJR 1037 and Sundari Devi V/s. The State of Bihar and Ors., 1993 1 PLJR 231.
24. This aspect of the matter has again recently been considered by a Division Bench of this Court in CWJC No. 4130 of 1992 Most Panna Kumari and Ors. V/s. The State of Bihar and Ors. disposed of on 19-3- 1993.
25. By reason of an entry in Register II, a person merely becomes entitled to deposit rent. It is, therefore, difficult to comprehend as to now cancellation of Jamabandi would amount to cancellation of settlement, as it is well known neither payment of rent creates title nor non-payment extinguishes any.
26. An administrative order of mutation passed by the Revenue Authorities is not and cannot be a decision on the question of title. Such a decision can only be taken by a Civil Court in a duly constituted civil suit. It is, therefore, not correct to contend that the effect of the impugned order would be cancellation of settlement by itself resulting in extinguishment of the settlement purported to have been made in favour of the petitioners by the ex-landlord."
9. Learned counsel for the petitioner further submitted that Circle Officer and of making settlement of tribal land in favour of non-tribal minor 8 settlee, such orders are appealable and mutation order passed on the basis of possession and mutation by itself does not show right, title and interest. To buttress his argument, he relied on judgment in the case of "Pradip Prasad Vs. State of Jharkhand & Others" reported in (2016) (2) JLJR 142 in which it has been has as under:-
"5. After hearing learned counsel for the respective parties at length and on perusal of the documents on records, the petitioner has been able to make out a case for interference due to the following facts and reasons:-
(i) On perusal of the charge it appears that the charge no.1 pertains to violation of Rule 46 of the Chhotanagpur Tenancy Act, 1908 and the charge no.2 pertains to settlement of land to non-tribal people in favour of minor settlee basing on sale registered, 1963 in violation of rule 46 of the Chhotanagpur Tenancy Act. After the said charge, the petitioner while continuing as Circle Officer, Sadar Chaibasa committed the said irregularities in exercise of his quasi-judicial function. So far as violation of Section 46 of the Chhotanagpur Tenancy Act, 1908 in mutation cases, Rule-46 of the said Act deals with restrictions on transfer of their right by raiyat. But, as per the law of mutation order passed in mutation cases are amenable to appeal and the order passed in mutation cases neither creates right over the land nor extinguishes the same. Therefore, the same cannot be construed to be passed over the land in violation of rule 46 of the Chhotanagpur Tenancy Act, 1908.
Therefore, the charge against the petitioner is misconceived so far as charge no.2 against the petitioner is concerned relating to settlement of land in favour of a non-tribal minor settlee, the same has been passed basing on the registered sale deed of the year 1963 and the charge was that the petitioner approved mutation of the tribal land in favour of the non-tribal people in violation of rule 46. But whatever power has been exercised by the petitioner in quasi-judicial capacity, the said order passed in mutation cases was amenable in appeal. Moreover, the mutation order passed basing on the possession and the mutation by itself is not document to show right title and interest.
(ii) Although the punishment inflicted on the petitioner i.e. censure and stoppage of four increments are minor punishment but Rule-55-A, it is evident that in a case where penalties specified in clause (i) (ii) or (iv) of Rule 49 there may be imposed no regular department proceeding is to be initiated but there cannot be any doubt that departmental penalty 9 can be imposed only upon framing of charges, upon giving an adequate opportunity of making any representation to the delinquent officer and upon taking into consideration the materials on record, such a penalty can be imposed only for good and sufficient reasons. Therefore, it is quite clear that such a penalty can be imposed only when the disciplinary authority framed definite charges against the delinquent officer and gives an opportunity making an effective representation.
(iii) In the instant case, after acceptance of the explanation by the Deputy Commissioner, West Singhbhum, Chaibasa, there was no occasion on the part of respondent no.2 to differ with the opinion of the Deputy Commissioner. However, no show cause was issued prior to imposition of punishment which has prevented the petitioner to make an effective representation as envisaged under Rule 55-A of Civil Services (C. C. & A) Rules.
6. On the cumulative effect of facts and reasons stated in the foregoing paragraphs, the impugned order of punishment dated 20.02.2013 being not legally sustainable is, hereby, quashed and set aside."
10. On the aforesaid grounds, learned counsel for the petitioner submitted that the writ petition is fit to be allowed.
11. Per contra, Mr. Salona Mittal, learned counsel for the respondent-State submitted that there is no illegality in the impugned order and the writ petition is fit be dismissed. He submitted that in terms of letter issued vide memo dated 08.01.2004 and memo dated 10.01.2004 by the Department of Revenue, Registration & Land Reforms, Govt. of Jharkhand along with memo dated 27.01.2004 of the Addl. Collector, Ranchi a charge memo framed against the petitioner was supplied to the answering departments whereby different allegations with regard to dereliction of duties resulting the same to loss of government exchequer were levelled. He submitted that a show-cause was issued to him vide departmental memo dated 14.05.2004 and disciplinary action was taken against the petitioner. He submitted that the enquiry officer proceeded on the right direction. He submitted that earlier K. Vidyasagar was appointed as enquiry officer thereafter one Sri Vinod Chandra Jha was made enquiry 10 officer for conducting enquiry against the petitioner. He submitted that in terms of said departmental proceeding, the petitioner was show-caused. The petitioner participated in the same by way of filing his reply to the said show-cause. He submitted that the enquiry officer submitted report vide letter dated 06.10.2017 including three memo of charges issued against the petitioner in which the petitioner was found guilty for dereliction of his duties resulting loss to government exchequer. The petitioner was found indulged acting in contravention of Rule 3 (1) (ii) of the Government Servant Conduct Rules, 1976. The enquiry report along with second show-cause was issued to the petitioner. The petitioner submitted his reply which was not accepted thereafter memo no. 9040 dated 13.11.2019 has been issued against the petitioner inflicting with punishment under Rule 43(b) of the Jharkhand Pension Rules. Learned counsel for the respondent-State submitted that order of punishment is absolutely correct.
12. Learned counsel for the respondent-State submitted that power of judicial review under Article 226 of the Constitution of India is very limited. He relied on judgment in the case of "State of Karnataka and Another Vs. N. Gangaraj" reported in (2020) 3 SCC 423 in which in para 8 & 15, the Hon'ble Supreme Court has held as under:-
"8. We find that the interference in the order of punishment by the Tribunal as affirmed by the High Court suffers from patent error. The power of judicial review is confined to the decision-making process. The power of judicial review conferred on the constitutional court or on the Tribunal is not that of an appellate authority.
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"15. The disciplinary authority agreed with the findings of the enquiry officer and had passed an order of punishment. An appeal before the State Government was also dismissed. Once the evidence has been accepted by the departmental authority, in exercise of power of judicial review, the Tribunal or the High Court could not interfere with the 11 findings of facts recorded by reappreciating evidence as if the courts are the appellate authority. We may notice that the said judgment has not noticed the larger Bench judgments in S. Sree Rama Rao2 and B.C. Chaturvedi3 as mentioned above. Therefore, the orders passed by the Tribunal and the High Court suffer from patent illegality and thus cannot be sustained in law."
13. Learned counsel for the respondent-State submitted that acquittal does not vitiate departmental proceedings and scope of judicial review. He relied on judgment in the case of "State of Rajasthan & Others Vs. Heem Singh" reported in (2020) SCC Online 886 in which in para 39 the Hon'ble Supreme Court has held as under:-
"39. In exercising judicial review in disciplinary matters, there are two ends of the spectrum. The first embodies a rule of restraint. The second defines when interference is permissible. The rule of restraint constricts the ambit of judicial review. This is for a valid reason. The determination of whether a misconduct has been committed lies primarily within the domain of the disciplinary authority. The judge does not assume the mantle of the disciplinary authority. Nor does the judge wear the hat of an employer. Deference to a finding of fact by the disciplinary authority is a recognition of the idea that it is the employer who is responsible for the efficient conduct of their service. Disciplinary enquiries have to abide by the rules of natural justice. But they are not governed by strict rules of evidence which apply to judicial proceedings. The standard of proof is hence not the strict standard which governs a criminal trial, of proof beyond reasonable doubt, but a civil standard governed by a preponderance of probabilities. Within the rule of preponderance, there are varying approaches based on context and subject. The first end of the spectrum is founded on deference and autonomy-deference to the position of the disciplinary authority as a fact finding authority and autonomy of the employer in maintaining discipline and efficiency of the service. At the other end of the spectrum is the principle that the court has the jurisdiction to interfere when the findings in the enquiry are based on no evidence or when they suffer from perversity. A failure to consider vital evidence is an incident of what the law regards as a perverse determination of fact. Proportionality is an entrenched feature of our jurisprudence. Service jurisprudence has recognized it for long years in allowing for the authority of the court to interfere when the finding or the penalty are 12 disproportionate to the weight of the evidence or misconduct. Judicial craft lies in maintaining a steady sail between the banks of these two shores which have been termed as the two ends of the spectrum. Judges do not rest with a mere recitation of the hands-off mantra when they exercise judicial review. The determine whether the finding in a disciplinary enquiry is based on some evidence an initial or threshold level of scrutiny is undertaken. That is to satisfy the conscience of the court that there is some evidence to support the charge of misconduct and to guard against perversity. But this does not allow the court to re- appreciate evidentiary findings in a disciplinary enquiry or to substitute a view which appears to the judge to be more appropriate. To do so would offend the first principle which has been outlined above. The ultimate guide is the exercise of robust common sense without which the judges' craft is in vain."
14. Learned counsel for the respondent-State submitted that so far as show cause is concerned that has been considered in the case of "Union of India and others Vs. K. Rajrappa Menon" reported in (1969) 2 SCR 343 in which in para 6, the Hon'ble Supreme Court has held as under:-
"6. Learned counsel for the respondent has sought to raise the second point which the High Court had declined to decide, namely, that the disciplinary authority was not entitled to have finally made up its mind before the explanation to the second show cause notice had been received by it and at a stage prior to the issuance of the notice. Such a contention is wholly untenable in view of the decisions of this Court. It has been made quite clear in Khem Chand v. The Union of India 1958 SCR 1080 = (AIR 1958 SC 300) that the procedure which is to be followed under Art. 311 (2) of the Constitution of affording a reasonable opportunity includes the giving of two notices, one at the enquiry stage and the other when the competent authority as a result of the enquiry tentatively determines of inflict a particular punishment. It is quite obvious that unless the disciplinary or the competent authority arrives at some tentative decision it will not be in a position to determine what particular punishment to inflict and a second show cause notice cannot be issued without such a tentative determination."
15. Learned counsel for the respondent-State further submitted that officer exercising quasi-judicial functions not immune from quasi-judicial proceedings. To buttress his argument, he relied on judgment in the case 13 " Union of India & Others Vs. K.K. Dhawan" reported in (1993) 2 SCC 56 in which in para 28 the Hon'ble Supreme Court has held as under:-
"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".
16. Learned counsel for the respondent-State further submitted that even if appeal lies against mutation proceedings, departmental proceedings are not barred. To buttress his argument, he relied on judgment in the case of "Arvind Ballabh Chaubey Vs. State of Jharkhand & Others" reported in 2013 SCC Online Jhar 1757 in which in para 10, the Hon'ble Supreme Court has held as under:-
"10. It is now well settled by a judgment rendered by the three Judges Bench of the Hon'ble Supreme Court in the case of Union of India and others vs. K.K. Dhawan [(1993) 2 Supreme Court Cases 56 that the disciplinary proceeding can be initiated against an 14 officer exercising judicial or quasi judicial power if he has acted negligently and recklessly in discharge of his duties. The Court has listed instances where such an action could be taken. The aforesaid judgment of the Hon'ble Supreme Court has been quoted in the subsequent judgment rendered in the case of Union of India & others vs. Duli Chand i.e. 2007 (1) J C R 145 (SC). Para-5 thereof is quoted hereunder:
"5. The law on the subject was considered in extenso in the three Judge Bench decision of Union of India v. K.K. Dhawan (1993) 2 SCC 56: 1993 SCC (L&S) 325: (1993) 24 ATC 1. wherein it was noted that the view that no disciplinary action could be initiated against an officer in respect of judicial or quasi judicial functions was wrong. It was further said that the officer who exercises judicial or quasi judicial powers acting negligently or recklessly could be proceeded against by way of a disciplinary action. The Court listed six instances when such action could be taken:
(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 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. With regard to continuation of proceedings after retirement, learned counsel for the respondent-State relied on judgment in the case of "Jag Narain Singh Vs. State of Jharkhand & others" reported in 2015 SCC Online Jhar 3296 in which in para 5, the Hon'ble Supreme Court has held as under:-
"5.It however appears from considering the submissions of the parties that apprehension of the petitioner for continuance of the Departmental Proceeding on that ground is misplaced. Pension Rules do not lay down a procedure for conduct of Departmental Proceeding. If an 15 employee has retired during the pendency of a Departmental Proceeding, the only difference that could result is in the nature of punishment which in that case, would be governed by the provisions of Jharkhand Pension Rules. Therefore, when the proceedings initiated at the time of his service did not end up finally before his retirement, they would be deemed to have continued after retirement of the petitioner. This proposition is also well settled by the Full Bench judgment rendered by the Patna High Court in the case of Shri Krishna Singh V. Union of India [2011 (1) PLJR 665]. Counsel for the parties are not able to apprise the Court as to whether Departmental Proceeding has been concluded or whether Inquiry Officer has finally submitted his report."
18. The enquiry report has been annexed as Annexuer-6 to the writ petition. The enquiry officer with regard to the Garmajurwa Malik land has stated that the jamabandi of the said land was registered in the year, 1965-66 and on that basis the petitioner has mutated the land only to that effect enquiry officer has given finding that there is financial loss to the government. The enquiry officer has recorded that so far as the Kaiser-e- hind land is concerned which was on the basis of Partition Suit No. 185 of 1966, the order of mutation was passed. On perusal of enquiry report it transpires that not even a single witness has been examined to prove the charges against the petitioner. The documents relied in the enquiry proceeding was required to be proved by way of adducing evidence. For the Garmajurwa Malik land, petitioner passed mutation order on the basis of running name of Chandan Sao and Bharat Sao. The name of Chandan Sao and Bharat Sao was recorded in Register-II on 23.01.1989. Pursuant to partition of land from Chandan Sao and Bharat Sao to one Jai Bhawani Co- operative Grih Nirman Samiti, mutation was done for the same partition was incumbent to the petitioner. The petitioner only followed prescribed procedure and looked into the Register-II record and passed the order. With regard to Kaiser-e-hind, mutation was done by the petitioner on the basis of final decree in Partition Suit No. 185 of 1966. In that view of the matter 16 and considering the Circular of 1997 that can be challenged only in suit before competent civil court if possession of more than 12 years is there. The petitioner was not the authority to decide and to file suit. The judgment passed in quasi-judicial can be corrected by preferring statutory appeal and review. In the light of these discussions the Court has to consider whether for deciding the mutation case, is there any misconduct on the part of the petitioner or not ? On perusal of record, it transpires that the petitioner has followed all the statutory procedures for passing mutation order before the petitioner was not entitle to empower transfer of land in question. The petitioner has acted on the basis of Register-II. The mutation order was passed on the basis of possession and mutation itself does not show right, title and interest that has been considered by a Co-ordinate Bench of this Court in "Pradip Prasad" (case). The petitioner passed order on the basis of possession of Chandan Sao and Bharat Sao and after looking into the possession nor manner of possession, which has been considered in the case of "Lal Muni Devi" (supra) and Depta Tewari (supa). It is well-settled proposition of law that mutation does not create any right and title in the property. It is simply an evidence of possession for the land. This aspect of the matter has been considered in the case of "Smt. Urmila Prasad" (supra). Thus, it transpires that the Department has proceeded against the petitioner for a misconduct which cannot be said misconduct in view of duties prescribed to the petitioner and the record suggest that the petitioner has acted in terms of prescribed procedure for passing mutation order. The proceeding was initiated under Rule 55 of Civil Services (Classification, Control and Appeal) Rules, 1930 and after retirement of the petitioner it was not converted under Rule 43(b) of the Jharkhand Pension Rules and merely it has been observed by the authorities that the proceeding is same. For taking shelter of Rule, 43(b) of 17 the Jharkhand Pension Rules, financial loss has to be determined which has not been done in the case in hand and Rule 43(b) of the Jharkhand Pension Rules has been invoked against the petitioner which is not in accordance with law in view of the facts stated hereinabove. So far as the judgement relied by the learned counsel for the respondent-State in "N. Gangarai"
(supra) that is not in dispute with regard to judicial review. However, the case in hand, in the facts and circumstances of the present case, this judgement is not applicable as in the present case misconduct itself has not been proved. So far as the judgment in the case of " Heem Singh"
(supra) relied by the learned counsel for the respondent-State is on different footing. In that case, criminal case arises out of regular trial where in the present case, the criminal case has been quashed by the High Court under section 482 of the Cr.P.C. This judgment is not helping the respondent-State. The judgment relied by the learned counsel for the respondent-State in the case of "K. Rajappa Menon" (supra) was prior to 42nd amendment of the Constitution of India. The Hon'ble Supreme Court in the case of " Managing Director, ECIL, Hyderabad" Vs. Karunakar"
reported in (1993) 4 SCC 27 in para 25 & 26 has held as under:-
"25. While the right to represent against the findings in the report is part of the reasonable opportunity available during the first stage of the inquiry viz., before the disciplinary authority takes into consideration the findings in the report, the right to show cause against the penalty proposed belongs to the second stage when the disciplinary authority has considered the findings in the report and has come to the conclusion with regard to the guilt of the employee and proposes to award penalty on the basis of its conclusions. The first right is the right to prove innocence. The second right is to plead for either no penalty or a lesser penalty although the conclusion regarding the guilt is accepted. It is the second right exercisable at the second stage which was taken away by the Forty-second Amendment.
26. The reason why the right to receive the report of the enquiry officer is considered an essential part of the reasonable opportunity at the first 18 stage and also a principle of natural justice is that the findings recorded by the enquiry officer form an important material before the disciplinary authority which along with the evidence is taken into consideration by it to come to its conclusions. It is difficult to say in advance, to what extent the said findings including the punishment, if any, recommended in the report would influence the disciplinary authority while drawing its conclusions. The findings further might have been recorded without considering the relevant evidence on record, or by misconstruing it or unsupported by it. If such a finding is to be one of the documents to be considered by the disciplinary authority, the principles of natural justice require that the employee should have a fair opportunity to meet, explain and controvert it before he is condemned. It is negation of the tenets of justice and a denial of fair opportunity to the employee to consider the findings recorded by a third party like the enquiry officer without giving the employee an opportunity to reply to it. Although it is true that the disciplinary authority is supposed to arrive at its own findings on the basis of the evidence recorded in the inquiry, it is also equally true that the disciplinary authority takes into consideration the findings recorded by the enquiry officer along with the evidence on record. In the circumstances, the findings of the enquiry officer do constitute an important material before the disciplinary authority which is likely to influence its conclusions. If the enquiry officer were only to record the evidence and forward the same to the disciplinary authority, that would not constitute any additional material before the disciplinary authority of which the delinquent employee has no knowledge. However, when the enquiry officer goes further and records his findings, as stated above, which may or may not be based on the evidence on record or are contrary to the same or in ignorance of it, such findings are an additional material unknown to the employee but are taken into consideration by the disciplinary authority while arriving at its conclusions. Both the dictates of the reasonable opportunity as well as the principles of natural justice, therefore, require that before the disciplinary authority comes to its own conclusions, the delinquent employee should have an opportunity to reply to the enquiry officer's findings. The disciplinary authority is then required to consider the evidence, the report of the enquiry officer and the representation of the employee against it."
19. So far as the judgment relied by the learned counsel for the respondent-State in " K.K. Dhawan" (supra) is concerned, in that case it 19 was considered that the officer who exercises judicial or quasi-judicial powers if the person acts negligently or recklessly in order to confer undue favour to a person is not acting as a judge which is not subject matter in the case in hand. In the case of "Arvind Ballabh Chaubey" (supra) relied by the learned counsel for the respondent-State, on the prima facie materials on record, the Court has come to the conclusion in that case that the petitioner has passed the order negligently against the interest of justice. In "Jag Narain Singh" (supra) relied by the learned counsel for the respondent-State, the Court directed to conclude the disciplinary proceeding to logical conclusion and the petitioner of that case was directed to co-operate with the disciplinary proceeding.
20. As a cumulative effect of the discussions made here-in-above, the impugned order dated 13.11.2019 is quashed. The petitioner shall be entitled for consequential benefits.
21. The writ petition stands allowed and disposed of.
(Sanjay Kumar Dwivedi, J.) Jharkhand High Court, Ranchi Dated: 8th of December, 2020 Satyarthi/NAFR