Jharkhand High Court
Jag Narain Singh vs The State Of Jharkhand on 12 January, 2021
Equivalent citations: AIRONLINE 2021 JHA 407, 2021 (3) AJR 226
Author: Deepak Roshan
Bench: Deepak Roshan
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IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(S) No. 5778 of 2015
Jag Narain Singh ..... Petitioner
Versus
1. The State of Jharkhand.
2. The Principal Secretary, Personnel, Administrative Reforms
and Rajbhasa Department, Government of Jharkhand,
Project Building, Post Office and Police Station-Dhurwa,
Ranchi.
3. The Deputy Secretary, Personnel, Administrative Reforms
and Rajbhasa Department, Government of Jharkhand,
Project Building, Post Office and Police Station-Dhurwa,
Ranchi. ..... Respondents
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CORAM: HON'BLE MR. JUSTICE DEEPAK ROSHAN
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For the Petitioner : Mr. Saurabh Shekhar, Advocate For the Respondent : Mr. Mukesh Kr. Sinha, Advocate
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09/Dated: 12th January, 2021 Heard learned counsel for the parties through V.C.
2. The instant writ application has been preferred by the petitioner praying for quashing the order dated 09.10.2015, whereby punishment was imposed under Rule 43(B) of Bihar Pension Rules and it was ordered that 10% of pension was to be withheld for a period of five years.
3. Mr. Saurabh Shekhar, learned counsel for the petitioner submits that while the petitioner was in service, a decision was taken to initiate a departmental proceeding against this petitioner vide order dated 08.11.2006 in connection with Mutation of CNT land to a non-tribal and a charge-sheet (izi=& d) was issued alleging therein as under:-
"(i) In village Hundru, Khata No. 312-3.53 Acre shows as Bakast Bhuinhari Land in the name of Birsa Pahaan in R.S.-
Survey Khatian, also registered in his name in Register II,- for 6 Kattha of this land- Zamabandi was illegally allowed in 2 the name of Non-tribal, vide Daakhil Khariz Case No. 589 R 27/86-87.
(ii) In village Hundru, Khata No. 316, different plots, Land shows in the name of Mahaliya Pahann in R.S. Survey Khatian, also registered in the name of Birsa Pahan in Register II- later on land was transferred to Non-tribal (Chhedi Khan), Zamabandi in the name of non-tribal happened through case no. 15 R/70-71, the land was thereafter further transferred in succession and succession Zamabandi Case no. 1765 R 27/77-78 ( in the name of Badal Khan) was concluded.
3.69 acre of this land was thereafter again transferred to non-tribals and this time Zamabandi was finalized by the petitioner in the year 1986-87. It is alleged that the latest Zamabandis of 1986-87 were illegally allowed in the name of Non-tribals, vide Daakhil Khariz Case No. 589 R 27/86-87 and others, by the petitioner."
4. Learned counsel contended that all the above lands were Bhuinhari lands, and the Zamindari over these lands were not vested in the State Government. The allegation in all cases is that the names of the tenants were replaced by the petitioner while performing his duty as Circle Officer in Dakhil Khariz case and it has further been alleged that the said mutation is in violation to Section 46 and Section 49 of the CNT Act, and transfer of tribal lands in all the above cases had taken place without the permission of Deputy Commissioner; as such, it was concluded by the disciplinary authority that the Dakhil Khariz done by this petitioner, on the basis of irregular transfer is irregular and against the provisions of CNT Act.
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5. The departmental proceeding culminated in the impugned order (Annexure-12). Mr. Shekhar contended that the mutation of any land does not create any right title and interest over the property and there cannot be any illegal transfer done beyond the provisions of CNT Act. He further contended that in CNT Act there is no provision of mutation and the Dakhil Khariz/Mutation is only done after transfer of land and its registration.
He submits that in the instant case, the application for the Daakhil Khariz/Mutation was inspected and scrutinized by the Karamchari and the Circle Inspector and after this process, the matter was placed before him and proceeding for mutation in the name of the owner was initiated by publishing a general public notice and thereafter, the name of the purchaser was mutated. He contended that in all this procedure, no irregularity or misconduct has been committed by this petitioner. He further submits that no any person has even challenged the said mutation by filing any appeal before the competent authority.
He contended that mutation does not create any right title and interest over the land; rather it only relates to the land revenue to be paid to the Government and proof of possession. In other words; one who is in possession of the land will pay the rent to the Government. The incorporation 4 of provisions of CNT Act by the respondents in proving the charge against this petitioner is totally misplaced and against the provision of law.
He further submits that in a similar case and circumstances a proceeding was initiated against one co- employee namely, Naresh Kumar who was also a Circle Officer who has also done mutation in favor of a Gair Majarua land and proceedings were initiated against him also and the Co-ordinate Bench of this Court has quashed the order of punishment. He fairly submits that the difference between the case of Naresh Kumar and the instant case is only with regard to nature of land i.e. in the case of Naresh Kumar the land was Gair Majarua land whereas in the instant case the land was tribal land. So far as the charge is concerned; it was same and similar and this Court after dealing several judgments quashed the impugned order and held that the petitioner shall be entitled for all consequential benefits.
6. Learned counsel contended that since the law is well settled that mutation does not create any right title and interest over the property and it is simply an evidence of possession of the land; as such, the entire proceeding initiated against this petitioner and the order of punishment is misplaced in the eye of law.
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7. Before concluding his argument, he referred to a judgment as annexed in the supplementary affidavit dated 02.07.2019 and submits that even the basis of the charge that a tribal land has been mutated in the name of non- tribal has no substance, inasmuch as, the non-tribal filed a writ application before this Court, for the same portion of land for quashing the order passed by the SRA Court for restoration and the same was allowed in favour of the non- tribal-petitioners of W.P.(C) No. 225 of 2003.
8. In order to buttress his argument; learned counsel relied upon the following judgments:-
(i) Lal Muni Devi Vs. The State of Bihar and Ors, reported in 1988 PLJR 174.
(ii) Depta Tewari and Ors. Vs. State of Bihar and Ors, reported in 1987 PLJR 1037
(iii) Sitra Ram Choubey & Ors. Vs. State of Bihar and Ors, reported in 1993 (2) PLJR 255 and
(iv) Smt Urmila Prasad Vs. The State of Jharkhand & Ors, in W.P.(C) No. 2732 of 2003.
Relying upon the aforesaid facts and judgments, learned counsel for the petitioner submits that the impugned order deserves to be quashed and set aside.
9. A counter-affidavit has been filed in this case, Mr. Mukesh Kr. Sinha relying upon the counter-affidavit contended that there is no irregularity in the procedure and in view of specific averments made in para 9 to 11 of the counter affidavit, the impugned order deserves to be 6 sustained. For better appreciation of this case; para 9, 10 and 11 of the counter affidavit dated 05.05.2016 is quoted herein below;
"9. That Smt. Rapaz submitted her enquiry report vide her letter no. 86, dated 20.03.2014 in which the charges leveled against the petitioner were reported as proved. The allegations against the petitioner, his defense statement and the enquiry report of the Conducting Officer were reviewed and analysed by the department and agreeing with the report of the Conducting Officer, deduction of 10% amount from the monthly pension of the petitioner for the period of 5 years was proposed to be awarded under Rule 43(B) of Pension Rules.
10. That in the light of this decision, the second show cause was issued to the petitioner vide letter no. 1495, dated 19.02.2015. He submitted his reply vide letter dated 03.03.2015, which was reviewed by the department. In course of review, it was found that his reply is bereft of any new fact, which could exonerate him from the charges and required any change in the proposed punishment. So, confirming the proposed punished, it was decided to award it to him. Accordingly, the opinion of Jharkhand Public Service Commission was sough vide department's letter No. 4538, dated 21.05.2015 under provision-(c) of the Rule-43 (B) of the Pension Rules on the penalty going to be awarded to him. The Commission communicated his assent vide letter no. 1894, dated 10.08.2015. Finally, the said penalty was awarded to the petitioner vide department's resolution no. 8910, dated 09.10.2015.
11. That in reply to paragraph-1 of the writ application it is stated and submitted that the prayer of the petitioner is not acceptable. The Deputy Commissioner, 7 Ranchi vide his letter no. 123(i)/rev., dated 19.07.2000 sent a memo of charges in Form-'K' against the petitioner relating to his tenure as the Circle Officer, Sahahar Anchal, Ranchi alleging that the petitioner approved mutation of tribal Bakast Bhuinhari lands in favour of non-tribal vide different mutation cases. It was also alleged that the sale of land by tribal raiyats without permission of the Deputy Commissioner of the concerned district is prohibited under Section-46 and 48 of Chhotanagpur Tenancy Act. So, the mutation approved by the petitioner is illegal and against the provisions of the Chhotanagpur Tenancy Act because the sale of the land was illegal.
The petitioner was asked for explanation for the said charges, but instead of submitting his explanation, he demanded for certain records. The case of the petitioner was reviewed by the department and it was decided to institute the departmental proceeding against him in view of the gravity of the charges. The departmental proceeding was conducted against him vide resolution no. 5972, dated 08.11.2006 and Smt. Mridula Sinha, I.A.S the then Secretary, Cooperative Department, Jharkhand was appointed the Conducting Officer. Later on, Smt. Shiela Kisku Rapaz, the retired I.A.S, the Departmental Enquiry Officer, Jharkhand was appointed the Conducting Officer vide Resolution No. 8275, dated 17.07.2012 in place of Smt. Sinha.
Smt. Rapaz submitted her inquiry report vide her letter no. 86, dated 20.03.2014 in which the charges leveled against the petitioner were reported as proved. The allegations against the petitioner, his defense statement and the enquiry report of the Conducting Officer were reviewed and analyzed by the department and agreeing with the report of the Conducting Officer, deduction of 10% amount from the monthly pension of the petitioner for the period of 5 8 years was proposed to be awarded under Rule-43(B) of Pension Rules.
In the light of this decision, the second show cause was issued to the petitioner and after getting his reply the matter was reviewed. Finally after getting assent of the Jharkhand Public Service Commissioner, the said penalty was awarded to the petitioner vide department's resolution no. 8910 dated 09.10.2015."
10. Learned counsel for the State relied upon the judgments of the Hon'ble Apex Court in the case of "Union of India and others Vs. K. Rajappa Menon" reported in (1969) 2 SCR 343 and also in the case of "Arvind Ballabh Chaubey Vs. State of Jharkhand & Others", reported in 2013 SCC Online Jhar. 1757.
He further referred to a judgment passed by the Hon'ble Apex Court in the case of "Union of India and Ors. Vs. K.K.Dhawan," reported in (1993) 2 SCC 56, wherein the Hon'ble Court has held that in our view, an argument that no disciplinary action can be taken in regard to action taken or purported to be done in course of judicial or quasi- judicial proceeding is not correct.
11. Having heard learned counsel for the parties and after going through the averments made in the respective affidavits, it appears that a departmental proceeding was initiated vide order dated 08.11.2006 and the Inquiry Officer had submitted its report on 20.03.2014 holding that 9 the tribal land has been renamed in the name of non-tribal and the Mutation/Dakhil Kharij of the land sold out to non- tribal is against the provision of CNT Act.
12. At the outset, I would like to refer the judgment of Lal Muni Devi (Supra), wherein this Court has held at para 5 of the judgment as under:-
"5. 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 10 matter relating to mutation."
13. Further in the case of Depta Tewari and Ors (Supra) the Co-ordinate Bench of this Court after looking to the facts and circumstances of the case has held that the respondents rightly decided the case of respective parties, on the basis of possession. It was further held that the 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. For better appreciation para 6 and 9 of the aforesaid judgment is quoted herein below;
"6. 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.
9. 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 document or otherwise."11
14. Now the issue is no more res integra, inasmuch as, mutation does not create any right tile and interest over the property. It is simply an evidence of possession of land. Further, the charge alleged against this petitioner is not with respect to any male practice or misappropriation; rather it has been only alleged that the land was transferred from a tribal to non-tribal persons. In this regard it is not out of place to say that the present matter is only with regard to mutation, it is not about illegal transfer done beyond provisions of CNT act and the same is not alleged against the petitioner.
There is no doubt that CNT Act prohibits the transfer, but it does not say anything about mutation for the obvious reason that mutation is only an enquiry of fact into one's possession of land and is not a certificate of good or bad transfer of land, correctness of transfer of land as per CNT act and factum of possession of land certified by mutation, are two different things.
Further, Dakhil/Kharij-Mutation is done only after transfer of land and after its investigation. From the records and averments available, it appears that after filing of the application for Dakhil Kharij/Mutation, the land was inspected and scrutinized by Karmachari and Circle Inspector and the same was placed before this petitioner; as such, there was no any lacuna in the proceeding. Above all, 12 there is no such charge with respect to procedural irregularity in mutating the name in favor of non-tribal and also the charge alleged against this petitioner is not with respect to any male practice or misappropriation.
Apart from the aforesaid finding, this Court in a similar case after dealing with several judgments has quashed the order of punishment against that petitioner, wherein the charges were similar and the only difference was with respect to nature of land, inasmuch as, in the instant case; the land was a tribal land whereas in the said case it was a Gair Majrua Land.
15. The judgment relied upon by the defence counsel has already been dealt by the Co-ordinate Bench of this Court in the case of Naresh Kumar Vs. State of Bihar W.P(S) No. 7354 of 2019. Para 18 of the said judgment is quoted herein below;
"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 13 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 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 14 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 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 15 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.16
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 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 alongwith 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 17 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."
16. In view of the aforesaid discussions and the judicial pronouncements, the impugned order dated 09.10.2015, is hereby, quashed and set aside. The respondents are directed to extend all consequential benefits for which the petitioner has been prevented pursuant to the impugned order, within a period of four months from the date of receipt/production of the copy of this order.
17. With the aforesaid observations and direction, the instants writ application stands allowed and disposed of.
(Deepak Roshan, J.) Amardeep/