Central Administrative Tribunal - Delhi
C.L. Bavalia, Ex-Grade-I (Dass) vs The Lieutenant Governor, Govt. Of ... on 23 April, 2007
ORDER Shanker Raju, Member (J)
1. Applicant, an ex-Grade-I DASS, by virtue of this OA has assailed an order passed by the respondents on 26.5.2005 by the disciplinary authority (DA) in pursuance of the disciplinary proceedings, inflicting upon him a penalty of compulsory retirement. Also assailed is an order passed by the Lieutenant Governor on 10.5.2006 in appeal, upholding the punishment.
2. A brief factual matrix transpires that applicant while functioning as Tehsildar, Ram Chander and others filed CWP No. 245.92 before the Delhi High Court whereby they have claimed to be in cultivatory possession of the land, sought direction of the High Court to record the factum of their cultivatory possession in the relevant Revenue records. Accordingly, an order passed on 14.8.2001, taking cognizance of the fact that irrespective of the petitioners in actual possession of the land or not, Revenue authorities have been directed to record the possession of the person who is cultivating the fields with liberty to the petitioners to approach the Revenue authorities for appropriate relief and if are found to be in actual possession of the land, Revenue authorities will take appropriate action to record their possession in revenue records. As a note written by applicant on 20.10.2001 directed entries to be made in O-4 register as per the directions of the High Court, which was later on corrected on record in register P-5, culminates into a major penalty chargesheet issued to applicant under Rule 14 of the CCS (CCA) Rules, 1965, whereby he has been alleged to have committed gross misconduct of his alleged connivance with private party and abuse of the official position to extend undue advantage to the parties regarding possession of land. During the course of enquiry evidence for prosecution was recorded and on general examination of the CO and on submission of the statement of defence, the following findings has been recorded:
Even during the general examination, the CO himself has admitted that the orders of the Hon'ble High Court were for recording possession of the person for cultivating the land. He even sought further clarifications/orders of the SDM and SDM in turn simply directed the CO, the then Tehsildar (Najafgarh), to implement the orders of the High Court. During general examination, when questioned 'as per the judgment dated 14.8.2001, the Hon'ble High Court directed the respondents i.e. Revenue Deptt. to record the possession of the person who is cultivating the fields at the spot in accordance with the provisions of the Act and the rules framed thereunder, whereas the Assami rights have been conferred on the petitioner by way of entering name in O-4 register. Does it mean that you have conferred more rights than the High Court orders by exceeding his competency?', the CO replied in the negative and further added that he simply passed the orders to the Subordinate staff to implement the orders of the Hon'ble High Court/SDM/RA in Revenue records through O-4 register. Thus it is clear that the CO himself had ordered to make entries in O-4 register. He has further admitted during general examination that in O-4 register only mutation orders issued by Tehsildar on account of sale, purchase, lease, mortgage, successor in undisputed cases and in addition, mutation orders issued by SDM/RA in disputed cases are made. On questioning as to whether the orders of Hon'ble High Court were to record entries for physical possession of cultivators or for the legal title/Assami in the revenue records, the C.O. confirmed that orders of the Hon'ble High Court were for recording the possession of the person who was cultivating the land.
FINDINGS It was imperative and rather a legal duty of the CO Shri C.L. Bawalia, being then Tehsildar (Najafgarh) and having sufficient experience i.e. Naib Tehsildar (Najafgarh) for 1-1/2 years and Tehsildar (Najafgarh) for about 2 years and 8 months, he must have known the procedure and the legal requirements and entries to be made in revenue records like O-4 register, P-4, P-5, P-5A etc. He himself has admitted in general examination that entries relating to only mutation orders issued by Tehsildar on account of sale, purchase, lease, mortgage, successor in undisputed cases and in addition, mutation, orders issued by SDM/RA in disputed cases are made in O-4 register. The P.O. has stated in his brief that the cultivatory possession are entered only in P-5 and P-5A forms and not in O-4 register and this statement of the P.O. has not been contested by the C.O. in his brief or otherwise, which means that whatever the PO has stated about entries to be made in P-5 and P-5A is correct. The C.O., in his brief, has simply tried to shift the blame on lower functionaries, forgetting his own orders dated 20.11.2001 for making entries in O-4 register. Thus, it is established that entries relating to cultivatory possession are not made in O-4 register, but in P-5 and P-5A forms. Thus it can be very easily inferred that C.O. has willfully committed irregularities in implementing the orders of the Hon'ble High Court. Thus amply exhibits irresponsibility and sheer disregard of the law and directions/observations of the higher authority i.e. SDM/RA and gross misconduct and malafides on the part of the C.O., Shri C.L. Bawalia.
Thus, the charge stands fully proved beyond any doubt.
3. The aforesaid when represented to by applicant culminated into a penalty order with the following observations:
On a dispassionate examination of the inquiry report and the documents placed on record I find that none of the arguments put forward by the Charged Officer hold water. The inquiry officer has taken into account the evidence given by PW-1 and PW-3 that O-4 register is used for making entries pertaining to mutation of land and for implementing orders of the High Court recording 'assami' etc. The inquiry officer has also relied upon exhibit P-1 and exhibit P-2 and Charged Officer's note dated 20/11/2002 for proof against him. The charged officer has rebutted none of these documents or the orders. I have, therefore, no hesitation in coming to the conclusion that the inquiry officer has properly assessed the evidence placed on record and then arrived at a considered conclusion. Further, it is not possible to accept the argument of the Charged Officer that he had only directed his staff to make entries in O-4 register and never asked them to mention the petitioner as 'assami/bhumidhar'. Even, if we accept his argument, it still does not explain why he did not obey the orders of the SDM/RA and filled up form P-4 and called for objections from Gaon Sabha? The correct procedure for him would have been to follow the orders of the SDM/RA and not do anything on his own which was against any rule or provision of law. So the defence of the Charged Officer that he never asked his staff to enter the name of the petitioner as 'assami' is not relevant to the issue under consideration. For the same reason, I feel that his argument about having issued orders for the entries to be struck down cannot be accepted. Implicit in this argument is his admission that it was wrong to enter petitioner as 'assami' in O-4 register. To seek to correct a wrong that was perpetrated because of his own action does not help his cause. Because asking the revenue assistant to enter entries in O-4 register was tantamount to insubordination and blatant violation of law. I, therefore, feel that the article of charge against Sh. C.L. Bawalia, Grade-I, DASS have been proved on the basis of documents placed on record and preponderance of probability. He has failed to maintain absolute integrity and exhibited conduct unbecoming of a government servant and thereby contravened Rule 3 of CCS (Conduct) Rules 1964.
The issue that needs consideration is the appropriate penalty that must be imposed upon him. In Delhi, particularly in South Delhi, matters relating to land are very sensitive because of its high market value. People get into disputes, fight court battles over ownership of land, manipulate law and get ownership rights through manipulation of revenue system. Such people find revenue staff a willing instrument in their nefarious design. A small entry in record of right which if not detected in time may confer a wrong title on a party to a dispute. It becomes very difficult thereafter to reverse the process if this illegality comes to light as the party that unlawfully manages to get ownership rights invariably obtains injunction from court. It is, therefore, necessary to impose condign penalties on that section of revenue staff which connives with private parties in bestowing on them undue favours. I, therefore, feel that the ends of justice in this case would be met if the penalty of compulsory retirement were to be imposed on Sh. C.L. Bawalia, the Charged Officer.
4. The appeal preferred to the Lieutenant Governor against the penalty of compulsory retirement was disposed of with the following observations:
I have gone through the charge against the appellant, his rebuttal statement, findings of Inquiring Authority, representation of the appellant against the inquiry report, impugned penalty order of Disciplinary Authority, the averments adduced by the appellant in his written appeal and during the personal hearing granted to him and the relevant records of the case. I find that the appellant cannot be absolved of the responsibility of recording the private party as 'Assami' in revenue records despite the fact that he did not mention the word 'Assami' in his directions dated 30.11.2001 for making an entry in O-4 Register. This order itself meant the same and was issued in complete disregard to the directions dated 07.11.2001 and 19.11.2001 of SDM/RA. Even the averment of the appellant that no evidence on record has proved his connivance with private party, does not hold water considering that the appellant blatantly disobeyed the orders of SDM/RA and exceeded his powers as Tehsildar while issuing directions for making an entry in O-4 Register. Thus, the departmental procedure was clearly violated with an intent to benefit the private party. Further it was not mandatory for Disciplinary Authority to obtain the 2nd stage advice of CVC in this matter in accordance with CVC's office order dated 16.04.2004.
Considering the totality of facts and circumstances of the case and gravity of proven misconduct and lack of absolute integrity to duty on the part of Shri C.L. Bavalia, formerly Tehsildar/Grade-I (DASS), I am of the considered opinion that the contentions of the appellant are not convincing enough to call for any interference with the penalty order dated 26.05.2005 passed by the Disciplinary Authority. The penalty so imposed appears to be just and reasonable and is commensurate to the gravity of the proven misconduct of the delinquent officer. I, therefore, reject the appeal being devoid of any force and uphold the penalty order of Disciplinary Authority. Shri C.L. Bavalia, formerly Tehsildar/Grade-I DASS be so informed.
5. The aforesaid gives rise to the present OA.
6. Shri A.K. Behera, learned Counsel appearing for applicant contended that as per Section 3 (6) of Delhi Land Revenue Act, Revenue Court includes the Court of Tehsildar. Accordingly, it is stated that whatever has been done by applicant was done while acting as a quasi-judicial authority and as there has been a mere error in the judgment without coupled with any culpable negligence, as neither the charge of connivance nor extending undue favour to the party has been established by the enquiry officer (EO), relying upon the following decisions stated that when there is no misconduct, i.e., culpable negligence is not proved and for want of any corrupt motive established, Kanungo who had made entries, error can be rectified under Section 56 of the Act ibid, the enquiry initiated was without jurisdiction and consequent punishment is also rendered illegal:
i) Zunjarao Bhikaji Nagarkar v. Union of India .
ii) P.C. Joshi v. State of U.P. 2001(6) SCC 54.
iii) Ram Singh v. State of Punjab 1992 (4) SCC 491.
iv) A.L. Kalra v. Project & Equipment Corporation of India Ltd. .
7. Learned Counsel would further contend that when the charge of connivance with the party and extending undue benefits has not been established by the EO, the DA without recording his finding on disagreement after following due process of law has punished applicant on this charge, which is extraneous, for which applicant has been deprived of a reasonable opportunity to rebut, cannot be countenanced in law.
8. Learned Counsel would contend that insofar as this issue of jurisdiction to act against applicant in a disciplinary proceeding, more particularly with reference to applicant's functioning as a quasi-judicial authority is concerned, when the appeal is preferred against the order of the Tehsildar the aforesaid grounds have neither been dealt with by the DA as well as appellate authority and no reasons have been recorded, which makes the orders passed as non-speaking and without application of mind.
9. Lastly, it is contended that the respondents have not consulted the Central Vigilance Commission at the 2nd stage advice by seeking their 2nd stage advice, yet the infirmity in law renders the orders illegal.
10. On the other hand, Shri Ajesh Luthra, learned Counsel appearing for respondents has produced before us Delhi Land and Revenue Code and contended that the orders passed by the High Court directed only entry of cultivation right in the revenue records and as per Section 4 of the Delhi Land Act Assami has been defined and while relying upon Rule 63 (3) of Delhi Land Revenue Rules, 1962 it is stated that cultivatory right does not confer any title or right to the holder and while relying upon Rule 153 of the Rules it is stated that the entry relates to mutation, which vests title and right in the party.
11. Insofar as quasi-judicial authority is concerned, it is stated that failure to exercise quasi-judicial power properly is misconduct and even if an appeal is provided against the order of quasi-judicial authority it does not preclude the Government from proceeding the Government servant in a disciplinary proceeding. Learned Counsel has also relied upon the decision of the Apex Court in Govt. of T.N. v. K.N. Ramamurthy also Union of India v. Duli Chand 2006 (5) SCC 680 to contend that in a case of exercise of power by a quasi-judicial authority if it is established that the act committed is negligent in order to unduly favour a party the same would be amenable to disciplinary proceedings.
12. Learned Counsel has stated by referring to the doctrine of severability that if the charge of insubordination is not alleged, yet penalty is sustainable on severability and other proven misconduct, there is no illegality.
13. Learned Counsel further states that on a proven misconduct where willful negligence of applicant is established, the penalty imposed is proportionate to the charge.
14. We have carefully considered the rival contentions of the parties and perused the material on record.
15. In a matter of disciplinary proceeding we are not to sit in judicial review as an appellate authority. What is precluded is re-appreciation of evidence and substitution of a different view. But what is permissible is to explore procedural infirmity, causing prejudice and also proportionality of punishment on the wednesbury principle of reasonableness.
16. Insofar as quasi-judicial authority is concerned, in Duli Chand (supra) the following observations have been made:
5. The law on the subject was considered in extenso in the three-Judge Bench decision of Union of India v. K.K. Dhawan 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 disciplinary action. The Court listed six instances when such action could be taken: (SCC p. 67, para 28)
28. (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'.
6. The Court, however, made it clear that ultimately the matter would have to depend upon the facts of a particular case. The present case would fall squarely within the fourth instance listed above.
7. The decision in K.K. Dhawan case was considered by this Court and followed in Govt. of T.N. v. KN. Ramamurthy . In that case the Tribunal had set aside the order imposing punishment on an officer who had been discharging judicial functions. The Court was of the view that the Tribunal's action was contrary to the several judgments of this Court and the settled law on the question.
8. In 1999 another Bench of two Judges in Zunjarrao Bhikaji Nagarkar considered and referred to these earlier decisions. However, the Court appears to have reverted back to the earlier view of the matter where disciplinary action could be taken against an officer discharging judicial functions only where there was an element of culpability involved. Since in that particular case there was no evidence whatsoever that the employee had shown any favour to the assessee to whom refund had been made, it was held that the proceedings against him would not lie. In fact the Court set aside the disciplinary proceedings at the stage of the issuance of charge-sheet to the charged officer.
9. In our opinion, Nagarkar case was contrary to the view expressed in K.K. Dhawan case . The decision in K.K. Dhawan being that of a larger Bench would prevail. The decision in Nagarkar case therefore does not correctly represent the law. Inasmuch as the impugned orders of the Tribunal and the High Court were passed on the law enunciated in Nagarkar case this appeal must be allowed. The impugned decisions are accordingly set aside and the order of punishment upheld. There will be no order as to costs.
17. Having regard to the above, a Government servant who exercises judicial or quasi-judicial powers acting negligently or recklessly or there has been an omission of the conditions prescribed could be proceeded against by way of disciplinary action. Accordingly, even if there is negligence, if it is not culpable as per the decision of the Apex Court in Union of India v. J. Ahmed is not misconduct. However, the particular facts of the case would decide as to applicability of the principles laid down in Union of India v. K.K. Dhawan 1993 (2) SCC 5, which has been upheld by the Larger Bench.
18. Applying the aforesaid in the present case, though applicant was designated while functioning as Tehsildar as a Court and the orders passed are appealable, yet if it is shown that his case is covered in one of the six instances listed in K.K. Dhawan (supra) he would not be exempted from being proceeded against in a disciplinary proceeding. We do not want to record any finding on the aforesaid, as we have found that whereas the charge against applicant in the imputation is to have connived with the party and recorded an entry in register O-4 with a view to extend undue benefit to the concerned party the EO in his report has not recorded a specific finding as to the connivance of applicant with the party or his extension of undue benefits. What has been established is willful commission of irregularities, which exhibit irresponsibility, amounting to gross misconduct.
19. Whereas the DA has agreed with the findings of the EO, yet established the charge of insubordination by holding that because the RA was asked to make entry in O-4 register, which is insubordination, was one of the charges and circumstances weighed in the mind of the DA to inflict a penalty of compulsory retirement upon applicant. The aforesaid charge is extraneous to the memorandum and as applicant has been deprived of a reasonable opportunity to defend this part of the charge, it is in violation of principles of natural justice and prejudice has been caused to him, as an alien factor has been taken into consideration, which has not been confronted by applicant, who has a right to defend against all the charges relied upon. Such a punishment on extraneous charge has been held to be illegal by the Apex Court in M.V. Bijlani v. Union of India . Moreover, what we find is that the punishment imposed upon applicant is not on a specific charge but on a composite cumulative charge, which inter alia includes insubordination. The doctrine of severability, as projected by the learned Counsel of respondents, cannot be applied because the charges are so interwoven that we cannot segregate to hold that on one proven charge the punishment is justifiable. It is the cumulative effect of all the charges considered by the DA that a penalty of compulsory retirement has been inflicted.
20. Apart from it, though the charge of connivance and extension of undue benefit to the party has not been established against applicant by the EO, yet the DA in its own wisdom while imposing upon punishment of compulsory retirement recorded a categorical finding of connivance of applicant with the private party with a view to extend undue favour. This is a clear-cut disagreement of the DA with the report of the EO. Though under Rule 15 of the CCS (CCA) Rules, 1965 DA is not precluded from disagreeing with the EO, but only after recording a tentative view and accord of reasonable opportunity to show cause to the concerned, failing which a punishment on a charge, which is not established against applicant, would be an illegality in violation of principles of natural justice, causing prejudice to the delinquent. On this count alone, as no disagreement has been arrived at and no procedure was adopted, punishment imposed cannot be countenanced in law.
21. As regards appellate order, though several contentions have been raised by applicant in his appeal, yet the appellate authority on consideration of an extraneous charge of insubordination and connivance with extension of benefit to the private party, which is not a charge established by the EO, upheld the punishment is an order passed with a close mind without application. It is the boundant duty, as an obligation, of the appellate authority under Rule 27 of the CCS (CCA) Rules to have explored the possibility of procedural infirmity in the enquiry and as this has not been done the order is not in consonance with Rule 27 of the Rules ibid. As an appellate authority it is the duty of the authority to deal with all the contentions and record a finding with reasons. This becomes more important when certain aspects of the matter are precluded from consideration in a judicial review but have been left at the discretion of the appellate authority. The authority concerned in the present case has not discharged his role in accordance with rules and in the light of the decision of the Apex Court in Narinder Mohan Arya v. United India Insurance Co Ltd. and Ors. 2006 (3) SLR SC 92 the orders passed cannot sustain in law.
22. Learned Counsel of respondents has also cited decision of the Apex Court in State of U.P. and Ors. v. Nand Kishore Shukla and Anr. and State of Orissa and Ors. v. Bidyabhushan Mohapatra to invoke the doctrine of severability by contending that if a penalty can be imposed on a particular misconduct the Court has no jurisdiction if the finding of the EO prima facie makes out a case of misdemeanor. It is also contended that proportionality cannot be gone into by the Court, if one of the charges is held as proved it is sufficient to impose the penalty. In the above backdrop we have examined the case of applicant where he has been alleged to have made an entry in the O-4 register instead of P-5 and as the allegations of conniving with the party and extending him undue benefit has not been established by the EO by recording a specific finding, the aforesaid finding on such allegations recorded both by DA and appellate authority has greatly prejudiced applicant, as he has been deprived of an opportunity in violation of the principles of natural justice to defend this part of the charge and if we exclude these two parts of the charges the only charge of making a wrong entry, which has later on been corrected is not a misconduct, which would entail the severe punishment of compulsory retirement, as segregation of charge cannot be made in the present case because the finding is so interwoven, yet by doing so we still hold that the punishment imposed upon applicant is not in accordance with law.
23. Leaving other grounds open, we are of the considered view that the orders passed against applicant are procedurally incorrect, causing prejudice to him.
24. In the result, for the foregoing reasons, OA is partly allowed. Impugned orders are set aside. Respondents are directed to forthwith reinstate applicant in service, however, with consequential benefits as per FR. If so advised, respondents are at liberty to proceed further against applicant from the stage of drawl of enquiry report. No costs.