SC and HC Judgments Online at MyNation

Judgments of Supreme Court of India and High Courts

C.L.Verma vs State & Ors on 1 May, 2018

HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR

S.B. Civil Writs No. 1832/1997

C.L.Verma aged about 41 years Son of Shri Kesar Lal Verma R/O
VP Bichoon, District Jaipur.
—-Petitioner
Versus
1. State of Rajasthan through Chief Secretary, Government of
Rajasthan, Secretariat, Jaipur.

2. Secretary, Department of Personnel, Govt. of Rajasthan,
Secretariat, Jaipur.

3. Shri B.B.Mohanty, Commissioner, Departmental Enquiries,
Rajasthan, Jaipur.

4. Rajasthan Public Service Commissioner, Ajmer through its
Secretary.
—-Respondent

For Petitioner(s) : Mr.Gaurav Sharma, Advocate.
For Respondent(s) : Mr.B.L.Avasthi, Addl.Govt. Counsel
and Mr.Anand Sharma, Advocate for
RPSC.

HON’BLE MR. JUSTICE ASHOK KUMAR GAUR

Order

01/05/2018
REPORTABLE

The present writ petition has been filed by the petitioner with

the following prayer:-

“It is, therefore, prayed that the Hon’ble Court may call
for the entire record concerning the case and after
taking the same by issuing writ, order or direction:

(i) quash the charge sheet dated 29.7.94, enquiry
report forwarded vide letter dated 27.3.96, letter dated
25.1.1997 and the punishment order dated 14.3.97
with all consequential benefits and the petitioner be
treated to be in continuous service;

(ii) if during the pendency of the writ petition the
petitioner is superseded in RAS Senior Scale, the
respondents be directed to further grant him promotion
to RAS Senior Scale with all consequential benefits of
pay and allowance;

(2 of 23) [CW-1832/1997]

(iii) any other order or direction as may be deemed fit
and proper in the facts and circumstances of the
present case may also be passed in favour of the
humble petitioner;

(iv) cost of this writ petition may also be awarded in
favour of the humble petitioner.”

The brief facts of the case are that the petitioner had joined

Rajasthan Tehsildar Services in the year 1978 and appointed as

Naib Tehsildar on 11.01.1978 and thereafter he was posted on the

post of Tehsildar. The petitioner was promoted to the Rajasthan

Administrative Services cadre on the basis of seniority-cum-merit

vide order dt.31.10.1991.

The petitioner was working in the year 1985 as Assistant

Settlement Officer, Rajgarh, District Alwar and was also having the

power of Land Record Officer and as such the petitioner was

holding judicial Officer’s post, as per Section 5(35) of the

Rajasthan Tenancy Act, 1955.

The petitioner was served with a memorandum of charges

along with allegations under Rule 16 of the Rajasthan Civil

Services (Classification, Control and Appeal) Rules, 1958

dt.29.07.1994 wherein total seven charges were leveled against

the petitioner. The charges Nos.1 to 6 were in relation to opening

of mutation proceedings in respect of different khasra numbers in

village Chhilodii and the charge No.7 was in respect of violating

the provisions of Section 42 of the Rajasthan Tenancy Act, as the

petitioner was alleged to have allowed entries to be made in

excess to the land than measurement by accepting the

fragmented portion of the land. The extract of chargesheet is

reproduced hereunder:-

(3 of 23) [CW-1832/1997]

“vkjksi i fo:n Jh fNxu yky oekZ] Hkw-iw-,-,l-vks-gkWy
vkj-,-,l-

vkjksi la[;k 1
;g gS fd mDr fNaxu yky oekZ us o”kZ 1985 esa HkwizcU/k
vf/kdkjh] vyoj ds v/khuLFk ,-,l-vks- ds in ij dk;Zjr
gksrs gq, mDr vof/k esa xzke fNykSMh rglhy jktx ds
ifj’kh/ku la[;k 6 dks jtkcUnh ds vk/kkj muds Lohd`r djus
,oa dUgS;k iq ikapk dk fgLlk vfu;fer :i ls ,d rjQk
esa ‘kkfey djus o LFkkukUrj.k dj vius inh; gSfl;r dk
nq:i;ksx o fu;eksa dh vosguk djus ds fy;s mRrjnk;h gS
tSlk fd layXu vkjksi fooj.k i esa of.kZr gSA

vkjksi la[;k 2
;g fd mDr Jh oekZ] ,-,l-vks- us mDr in ij mDr vof/k
esa dk;Zjr gksrs gq, xzke fNyksMh rglhy jktx ds [kljk
ifj’kks/ku i la- 7 ij jktLFkku dk’r dkjh vf/kfu;e 1956
dh /kkjk 48 ds fo:) fofue; Lohdkj djus ds fy;s
mRrjnk;h gS tSlk fd layxu vkjksi fooj.k i esa of.kZr gSA

vkjksi la[;k 3
;g gS fd mDr Jh oekZ] ,-,l-vks- us mDr in ij mDr
vof/k esa dk;Zjr gksrs gq, xzke fNyksMh rg- jktx ds
[kkljk ifjxkS/ku la- 8 dk’rdkjh dh jatkcanh o dCtk dk’r
ds vk/kj ij [kkrsnkjh ifjorZu ds vkns’k fu;efo:) djus o
viuh inh; gSfl;r dk nq:i;ksx djus ds fy;s mRrjnk;h
gSA tSlk fd layxu vkjksi forj.k i esa of.kZr gSA

vkjksi la[;k 4
;g gS fd mDr Jh oekZ] ,-,l-vks- us mDr in ij mDr
vof/k esa dk;Zjr gksrs gq;s mDr Jh oekZ ,-,l-vks- us mDr in
ij mDr vof/k esa dk;Zjr gksrs gq, xzke fNyksMh rg- jktx
ds [kljk ifj’kks/ku i la- 9 dCtk dk’r jtkcanh o HkkbZ
cVokjk vuqlkj jsdkMZVsM [kkrsnkj ds Lfkku ij vU; d`”kdksZa
ds uke ntZ djus ds vkns’k vfu;fer :i ls fcuk l{ke
U;k;ky; ds fu.kZ;kuqlkj djus o viuh inh; gSfl;r dk
nq:i;ksx djus ds fy;s mRrjnk;h gSA tSlk fd layxu
vkjksi fooj.k i la[;k 7 esa of.kZr gSA

vkjksi la[;k 5
mDr Jh oekZ ,-,l-vks- us mDr in ij mDr vof/k esa dk;Zjr
gksrs gq, xzke fNyksMh rg- jktx ds [k-ifj’kks/kZau la-10
dCtk dk’r jtkca/kh ,ao HkbZ caVokjk dk gokyk nsrs gq,
jsdkMsaV [kkrsnkj dk uke gVk;k tkdj vU; d`”kdksZa ds uke
ntZ djus ds vkns’k ikfjr fd;s gSA tc fd fu;ekUrxZr
[kkrsnkjh dk fijoZru iathd`r nLrkost vFkok l{ke
(4 of 23) [CW-1832/1997]

U;k;ky; ds fu.kZ; vuqlkj fd;s tkus dk izko/kku gSA bl
rjg mDr Jh oekZ fu;eksa dh vogsyuk dj vius dRrZO;ksa ds
izfr ykijokgh o mnklhurk cjrus ds fy;s nks”kh gS ftldk
fooj.k vkjksi fooj.k i esa vafdr gSA

vkjksi la[;k 6
;g fd mDr Jh oekZ us mDr in ij mDr vof/k esa dk;Zjr
gksrs gq, xzke fNyksMh rg- jktx ds [k- ijf’kks/kuu la- 11
ds }kjk jsdkMsZM [kkrsnkj xksfoUn iq eksrh dk 1@2
fgLlk ,d rjQk esa rdZ djus ds vkns’k ikfjr fd;s gS tc
fd fu;ekuqlkj iaftd`r nLrkost vFkok l{ke U;k;ky; ds
fu.kZ;kuqlkj gh ,d rjQk esa rdZ djuk vFkok ‘kkfey esa
LfkkukUrj.k djus dk izko/kku gSA bl rjg osfu;eksa dh
vogsyuk djus o vius drZO;ksa ds izfr ykijokgh o
mnklhurk cjrus ds fy;s nks”kh gS ftldk fooj.k vkjksi
fooj.k esa of.kZr gSaA

vkjksi la[;k 7
;g fd mDr Jh oekZ ,-,l-vks- us mDr in ij mDr vof/k esa
dk;Zjr gksrs gq, xzke fNyksMh rg- jktx ds [kljhk
ifj’kks/ku la- 17 c;ukek fnukad 2-7-79 ds }kjk [kjhnnkj
dszrk dks cspku gqbZ vkjkth ls nqxquh vkjkth ls Hkh vf/kd
jdck fn;s tkus dk vkns’k ikfjr fd;k gSaA bl rjg mDr Jh
oekZ jkt] VsusUlh ,DV dh /kkjk 42 ds foijhr mDr c;ukek
dk mDr ifj’kks/ku i Lohd`r dj cspku dh xbZ vkjkth ls
nqxquh ls Hkh vf/kd vkjksth [kjhnnkj dks nh tkdj vkns’kksa
dh vogsyuk djus o drZO;ksa ds izfr mnklhurk cjrus ds
fy;s nks”kh gSaA tSlk fd layXu vkjksi fooj.k i esa of.kZr
gSaA”

The petitioner submitted his reply to the chargesheet and

denied the charges leveled against him. The petitioner pleaded in

his reply that the allegation leveled against him were absolutely

baseless. The petitioner pleaded that he had undertaken the

exercise of opening of mutation in favour of different khatedars as

per the record available before him and further he followed the

procedure as required under Section 125 of the Rajasthan Land

Revenue Act. The petitioner pleaded that there was family

settlement/family arrangements arrived at between the khatedars

and members of their family and accordingly the petitioner had
(5 of 23) [CW-1832/1997]

undertaken the exercise of opening the mutations. The petitioner

further pleaded in respect of charge No.7 that there was no

violation of Section 42 of the Rajasthan Tenancy Act and there was

an amendment also whereby the authorities could take action for

making entry in respect of different khasra numbers, if the same

has been done after survey being undertaken.

The petitioner pleaded that there was no malafide intention

on his part in discharging of his judicial functions. The petitioner

further highlighted the fact that orders which were passed by him,

were maintained by the higher authorities and no person was

having any grievance against the functions which the petitioner

had discharged as judicial officer/authority. The petitioner further

pleaded before the respondents that in absence of any ill motive,

the procedure of issuing chargesheet to him was not justified.

The respondents after receipt of reply appointed the Enquiry

Officer and the Enquiry Officer conducted the enquiry and

submitted his report, finding all the charges proved against the

petitioner.

The petitioner after receipt of enquiry report, submitted his

representation and again highlighted the facts with respect to the

findings which were erroneously recorded by the Enquiry Officer.

The Disciplinary Authority after receipt of reply of the

petitioner passed the impugned order and found that the

petitioner was guilty of the charges leveled against him. The

Disciplinary Authority recorded a finding that even if the review

petitions were filed against the decisions taken by the petitioner

and the orders were not set aside in revision petitions, the same
(6 of 23) [CW-1832/1997]

did not amount to approve the irregularity being committed by the

petitioner.

The Disciplinary Authority further recorded a finding that that

opening of mutation on the basis of family settlement/

compromises was not justified, if there was a violation of the

Rules. The Disciplinary Authority further recorded a finding with

regard to the charge No.7 that entering excess land in the name

of the khatedar was definitely a violation of Section 42 of the

Rajasthan Tenancy Act. The Disciplinary Authority also found

violation of orders of Settlement Commissioner dt.20.03.1985 and

01.11.1983 as petitioner did not follow these orders. The said

orders prohibited opening of mutation on the basis of possession

or compromise until registered document was produced. The

Disciplinary Authority by the impugned order came to the

conclusion that the penalty of ‘compulsory retirement’ with

proportionate pension was required to be imposed upon the

petitioner.

The petitioner has pleaded in his writ petition that the

respondents have not acted in bonafide manner in issuing

chargesheet to him. The Enquiry Officer has not recorded his

independent findings except quoting the names of the witnesses

who were produced by the department to support the allegations

leveled against the petitioner. The petitioner has further pleaded in

the writ petition that there is no allegation of any ill motive,

malafide, arbitrariness or capriciousness on his part while passing

the judicial orders.

The respondents have filed reply to the writ petition. The
(7 of 23) [CW-1832/1997]

respondents have averred in the reply that the Disciplinary

Authority has issued the penalty order after considering the entire

facts and the Enquiry Officer’s report was self-explanatory wherein

all the charges leveled against the petitioner were found to be

proved. The respondents have further pleaded in their reply that

punishment which was proposed by the State Government was

found to be justified and proper and after concurrence from the

Governor, the order of penalty was passed. The respondents have

justified the issuance of chargesheet and the penalty order passed

against the petitioner.

Counsel for the petitioner has raised following submissions:-

1. The chargesheet was issued after nine years from the

alleged incident whereas the petitioner had acted in judicial

capacity. The issuance of chargesheet at a belated stage has

resulted into violating the right to defend in the departmental

enquiry as the petitioner was not in a position to have his proper

representation by producing oral or documentary evidence, as the

alleged incident was in relation of acts which were done by the

petitioner in the year 1985.

2. The petitioner had passed all the orders as quasi-

judicial authority/judicial officer and such orders were appealable

or revisable and since no appeal/revision was filed, the orders

passed in quasi-judicial capacity cannot become the subject

matter of disciplinary proceedings and such acts do not amount to

misconduct, as per the Rajasthan Civil Services (Conduct) Rules,

1971.

3. The petitioner had passed the orders exercising his
(8 of 23) [CW-1832/1997]

power under Section 125 of the Rajasthan Land Revenue Act and

the definition given in Section 23(2) of the Rajasthan Land

Revenue Act provides that the judicial matters can be decided

where rights and liabilities of the parties are determined and since

the petitioner has discharged his functions in the capacity of

judicial authority, the respondents could not have initiated

departmental proceedings against him.

4. There was no allegation of violation of orders of

Settlement Commissioner dt.01.11.1983 and 20.03.1985 yet

Disciplinary Authority found the petitioner guilty of such violation.

The learned counsel for the petitioner has placed reliance on

the judgments of this court in the case of Chandrapal Singh Vs.

State of Raj. Ors. reported in 2006 (2) RDD 1050 (Raj.),

Pankaj Manu Vs. State of Raj. [S.B.Civil Writ Petition

No.2398/1990] decided on 03.04.1992, Alka Devi Vs. State of

Raj. Anr. reported in 2005 (1) WLC (Raj.) 723, Kundan

Singh Jhala Vs. State of Rajasthan reported in 1976 WLN

(UC) 175 and the judgments of the Apex Court in the case of

Ramesh Chander Singh Vs. High Court of Allahabad Anr.

reported in (2007) 4 SCC 247, Inspector Prem Chand Vs.

Govt. of NCT of Delhi Ors. reported in (2007) 4 SCC 566

and a recent judgment of the coordinate Bench at Principal Seat at

Jodhpur in the case of Jagmal Singh Vs. State of Raj. Ors.

reported in (2015) 4 WLC (Raj.) 551 and State of Rajasthan

Anr. Vs. Jagmal Singh [D.B.Civil Special Appeal (Writ)

No.789/2015] decided on 25.05.2017.

Counsel has submitted that the consistent view of the Apex
(9 of 23) [CW-1832/1997]

Court and of this court has been that if a person who discharges

quasi-judicial function and has acted in a bonafide manner and

there is no allegation of any illegal gratification or ill motive, the

authorities cannot punish the said person by way of departmental

enquiry.

Counsel has further submitted that there has been no finding

in respect of the any act of the petitioner done in a malafide

manner and in absence of any charge or evidence, the petitioner

cannot be held responsible for the acts which he has done as a

quasi-judicial authority/judicial officer.

Per contra, Mr.Avasthi, learned counsel for the respondents

has submitted that the nature of allegation leveled against the

petitioner clearly make out a case of gross misconduct committed

by the petitioner. Counsel submitted that the petitioner ought not

to have passed the orders which resulted into violation of the

statutory provisions of law.

Counsel further submitted that simply because orders which

the petitioner passed were not assailed in higher judicial forum,

the same does not amount to giving a clean chit to the petitioner

who has acted in an illegal manner.

Counsel has placed reliance on the judgment of the Apex

Court in the case of CISF Ors. Vs. Abrar Ali reported in AIR

2017 SC 200 and State of UP Anr. Vs. Manmohan Nath

Sinha Anr. reported in (2009) 8 SCC 310.

Counsel submitted that scope of judicial review in

departmental enquiry is very limited and the High Court under
(10 of 23) [CW-1832/1997]

Article 226 227 of the Constitution of India will not re-appreciate

the evidence or will not consider the findings which are arrived at

by the Disciplinary Authority after due consideration of evidence.

Counsel has further placed reliance on the judgment of this court

in the case of S.N.Byadwal Vs. State of Raj. Anr. [S.B.Civil

Writ Petition No.5654/1997] decided on 26.02.2010.

I have heard learned counsel for the parties.

It would be appropriate to quote Section 5(35) of the

Rajasthan Tenancy Act, 1956, Section 23(2) and Section 125 (now

deleted) of the of the Rajasthan Land Revenue Act, 1955 and the

same read as follows:-

“Rajasthan Tenancy Act, 1956

5. Definitions:- (35) “Revenue Court” shall mean a
court or an officer having jurisdiction to entertain suits
or other proceedings relating to agricultural tenancies,
profits and other matters connected with land or any
rights or interest in land, wherein such court or officer is
required to act judicially; it shall include the Board and
every member thereof, a Revenue Appellate Authority, a
Collector, a Sub-Divisional Officer, an Assistant Collector,
a Tehsildar or any other revenue officer while so acting.

Rajasthan Land Revenue Act, 1956
Sec.23. Controlling Power – (1) XX XX XX
(2) The expression ‘judicial matters’ means a
proceeding in which a revenue court or officer has to
determine the rights and liabilities of the parties thereto
and the proceedings and orders as well as appeals,
revisions and references in the cases specified in the
First Schedule shall be deemed to be judicial matters for
the purpose of this Act.

125. Settlement of disputes as to entries in record
of rights – (1) All other disputes regarding entries in
the record of rights shall be decided on the basis of
possession.

(2) If in the course of enquiry into a dispute under this
section the Land Records Officer is unable to satisfy as
(11 of 23) [CW-1832/1997]

to which party is in possession, he shall ascertain by
summary inquiry who is the person best entitled to
possession and shall decide the dispute accordingly.
(3) No order as to possession passed under this section
shall debar any person from establishing his right to the
property in any civil or revenue court having
jurisdiction.”

This court finds that the impugned order has been passed by

the Disciplinary Authority by holding the petitioner guilty of all the

charges leveled against him. The charges which have been leveled

against the petitioner relate to the orders which have been passed

by him as a quasi-judicial authority. This court finds that the

charges which were leveled against the petitioner nowhere alleges

any malafide exercise of powers by the petitioner and there is no

allegation of any illegal gratification demanded by the petitioner

for passing such orders. This court further finds that in the entire

departmental proceedings, the respondents have not come up

with the plea that the petitioner had any ill motive to pass the

orders. This court finds that until the employer alleges specifically

against the delinquent-employee that while passing even the

quasi-judicial orders, the person has acted in a malafide manner

or had ill motive to pass such orders, the same cannot be a

subject matter of departmental enquiry and the person cannot be

punished.

The Apex Court as well as this court time and again, have

reiterated the principles of law that in absence of specific charge

against the delinquent that he has acted in a malafide manner or

there has been the charges of illegal gratification, the same

cannot result into initiation of departmental enquiry. The employer

has to specifically allege that the person who passed the order had
(12 of 23) [CW-1832/1997]

adopted corrupt practice or there was a malafide intention on his

part to pass such orders. If the delinquent officer passes

juidicial/quasi-judicial orders, the same cannot be termed as

having passed by exceeding his power by using any corrupt

motive. This court finds that neither in the memo of

allegations/chargesheet nor the Enquiry Officer and finally the

Disciplinary Authority have recorded any finding with respect to ill

motive or any malafide intention of the petitioner to pass such

orders.

The judgment of this court passed in Jagmal Singh Vs.

State of Raj. Ors. (supra) deals with the similar situation and

the relevant portion of the judgment as reported in para 18, 19

20 are reproduced as under:-

“18. As already noticed above, in the absence of any
specific charge that the petitioner acted in a malafide
manner or for illegal gratification, there was no
evidence led from either side either to prove or
defend the said charge. It amounts to denial of
reasonable opportunity to defend himself. To conclude
otherwise in absence of any such charge or evidence
is unjust, unfair, arbitrary and against the principles of
natural justice. No evidence worth the name that the
same was on account of malafides or for illegal
gratification or he adopted corrupt practice was
produced. Therefore, a finding that the said actions
were malafide cannot be sustained. The findings of
the enquiry become more doubtful in the face of the
admitted fact that no appeal or revision was filed
against the orders passed by the petitioner in his
official capacity. All the orders passed by the
petitioner, which were subject matter of the charges,
are either appealable or revisable. However, the
department has never challenged the same till date.
Under these circumstances, the said quasi judicial
orders attained finality. There being no allegation of
corrupt motive against the petitioner, the entire
disciplinary action for passing the orders was,
therefore, not called for.

19. In view of the well settled proposition of law, it is
impossible for this Court to take any other view. There
is not an iota of evidence of malafide or extraneous
(13 of 23) [CW-1832/1997]

consideration against the petitioner. Therefore, to
pass an order of withholding the entire pension for
having passed the orders while exercising his quasi
judicial orders without the charge of having passed
them with ulterior or malafide motive is not only a
dangerous trend but shall put fear in the mind of an
officer not to act without favour or fear.

20. Once this Court is satisfied that the order
withholding the entire pension is unsustainable, it
need not go into the remaining questions raised by
the learned counsel for the petitioner that as to
whether the punishment was in violation of provisions
of Rule 170 of the Rules of 1951 or whether the same
could be passed under Rule 7 of the Rules of 1996
and the question as to whether the disciplinary
authority has passed the impugned order without
application of mind and without taking into account
the evidence, record and the representation of the
petitioner.”

This court has also an occasion to deal with the similar

situation in S.B.Civil Writ Petition No.11263/2009 [Rajendra

Prasad Sharma Vs. State of Rajasthan] decided on 22.03.2018

and observed as under:-

“The Court finds that as per Rule 3(2)(ii) of the
Conduct Rules, Government Servant while performing
his official duties or in the exercise of power conferred
on him, has to act in his best judgment. The said rule
makes it very clear that if an Officer has conducted
himself in faithful discharge of his duties and the
same is as per provisions of law, it cannot be said that
the person has committed a misconduct for which he
is liable to be tried by way of disciplinary proceedings.
The Court further finds that error of judgment,
innocent mistakes and act of negligence cannot
constitute misconduct. Plain and simple meaning of
“misconduct” means misconduct arising from ill-
motive.

The submission of Mr. Mathur that petitioner while
discharging judicial duties has acted in bonafide
manner and no ill-motive has been attributed, this
Court finds that the charges levelled against the
petitioner are in respect of not following the due
procedure and issuing a warrant of arrest at first
instance, the allegation against the petitioner is that
he misused his power in order to confer undue benefit
on a person, cannot be treated to be a misconduct.
The second charge with regard to arrest of non-

(14 of 23) [CW-1832/1997]

complainant -Om Prakash, the petitioner is said to
have misused his official position and also showed act
of indiscipline, the Court finds that the petitioner after
considering the situation and due to behaviour of such
person, had to exercise his power of sending such
person to the judicial custody. The Court finds that the
said charge is also in respect of not exercising the
power in proper manner and as such, it cannot be
construed as a misconduct if the petitioner had
exercised his power in best of his judgment and he
thought to take action against such person. The
charge no.3 against the petitioner that he misused his
power by asking the non-complainants to execute the
bond for maintaining peace for six months in spite of
compromise entered between the parties and such
order being set aside by District Sessions Judge,
this Court finds that the order passed by the
petitioner on 9th July, 1997 was set aside by the
judicial forum and as such, it cannot be presumed
that petitioner had misused his power and committed
a serious misconduct.

In the opinion of the Court, the acts which were done
by the petitioner while exercising his powers cannot
be considered as misconduct and the petitioner
cannot be punished on such charges. This Court
further finds substance in the submission of the
learned counsel for the petitioner that once petitioner
was not found guilty of any charges during the enqury
by Enquiry Officer, the Disciplinary Authority without
due application of mind and without levelling a charge
on different allegation, yet passed the punishment
order. This Court is of the opinion that Disciplinary
Authority has a right to disagree with the findings of
the Enquiry Officer, however, the Disciplinary
Authority has to give his note of
disagreement/reasons only on the allegations which
are levelled in the charge-sheet. The perusal of note
of disagreement and punishment order show that
Disciplinary Authority has gone on different tangent to
punish the petitioner.

The submission of Mr. Mathur with respect to order
dated 28th April, 2003 passed by the Reviewing
Authority where it has recorded that petitioner had
not acted in malafide manner, this Court finds that the
Reviewing Authority also recorded that petitioner was
only guilty of not following the due procedure and it
resulted into violation of rights of the other parties
(noncomplainants) but there was no ill-motive of the
petitioner in passing such order. This Court finds that
once the Reviewing Authority had found that
petitioner had not acted in malafide manner or with
ill-motive, only on the ground of violation of
procedure, the petitioner could not have been
punished and even the substitution of punishment
(15 of 23) [CW-1832/1997]

with stoppage of one annual grade increment with
cumulative effect is also not justified.

XX XX XX XX XX
In the case of State of Rajasthan Ors. Vs. Jagmal
Singh, this Court has held, a under:-

“16. If any error while deciding a case in the
quasi judicial jurisdiction is not an outcome of
malafides or ulterior motive, then the same does
not constitute any misconduct.

17. The Hon’ble Supreme Court in Zunjarrao
Bhikaji Nagarkar Vs. Union of Inaia Ors.; AIR
1999 SCC 2881 has held as under:-

“43. If, every error of law were to constitute
a charge of misconduct, it would impinge
upon the independent functioning of quasi
judicial officers like the appellant. Since in
sum and substance misconduct is sought to
be inferred by the appellant having
committed an error of law, the charge-sheet
on the face of it does not proceed on any
legal premise rendering it liable to be
quashed. In other words, to maintain any
charge-sheet against a quasi judicial
authority something more has to be alleged
than a mere mistake or law, e.g., in the
nature of some extraneous consideration
influencing the quasi judicial order. Since
nothing of the sort is alleged herein the
impugned chargesheet is rendered illegal.
The charge-sheet, if sustained, with thus
impinge upon the confidence and
independent functioning of a quasi judicial
authority. The entire system of administrative
adjudication whereunder quasi judicial
powers are conferred on administrative
authorities would fall into disrepute if officers
performing such functions are inhibited in
performing their functions without fear or
favour because of the constant threat of
disciplinary proceedings.”

18. From perusal of the allegations in the
charge-sheet, the explanation thereto in the
statement of charge and the evidence and the
findings recorded by the Enquiry Officer as well
as the order passed by the disciplinary authority
in the present case shows that at the most
petitioner can be termed to be guilty of
committing a judicial error and such error by no
stretch of imagination can be alleged as
misconduct under the Rajasthan Civil Service
(Classification, Control and Appeal) Rules, 1958.

As it has already been discussed in the
(16 of 23) [CW-1832/1997]

preceding paras, there is no allegations against
the petitioner with respect to any corrupt
practice, ulterior motive, embezzlement or
misappropriation then in these circumstances
proceedings against the petitioner and awarding
a penalty of stoppage of entire withholding of
100% pension is absolutely uncalled for, much
less the same cannot be termed as misconduct.

20. The judgment relied upon is clearly
distinguishable on the facts of the present case
as there is no allegation of any integrity or
recklessness or misconduct in discharge of his
duties and there is no malafide intention of
causing loss to the State. Therefore, principles
which has been enunciated in the abovesaid
judgment are not applicable to the facts of the
present case.”

The submission of the learned counsel for the
respondents, Mr. Avasthi that petitioner has
committed a misconduct as he did not follow the
procedure for initiating the proceedings under Section
107 onwards and he did not make any enquiry under
Section 116 of Cr.P.C., and he directly issued process
of warrant, this Court finds that petitioner if in best of
his judgment realizing the situation relating to breach
of peace, if exercised his jurisdiction, the same cannot
be said to be suffering from any malafides being
attributed to the petitioner on account of undertaking
the process.”

The Division Bench of this court while disposing of the appeal

filed by the State Government in the case of Jagmal Singh (supra)

has also reiterated the principles of law that if there is no

allegation against the delinquent with respect to any corrupt

practice, ulterior motive, embezzlement or misappropriation then

the same cannot be termed as ‘misconduct’ and penalty cannot be

imposed. This court following the judgments of the Apex Court as

well as the Division Bench of this Court has no hesitation in

holding that issuance of chargesheet and further holding the

petitioner guilty is not in accordance with law and the petitioner

could not have been made liable for the act which he has done as

a quasi-judicial authority.

(17 of 23) [CW-1832/1997]

This court further finds that the petitioner was issued

chargesheet in the year 1994 for the alleged acts which he had

done in the year 1985 while working as Assistant Settlement

Officer. The respondents have not come out with any explanation

with regard to the delay caused in issuance of chargesheet. This

court finds that it is the prerogative of the employer to conduct

departmental enquiry for certain allegations which are construed

as ‘misconduct’ but at the same time, it is also required that the

delinquent should be apprised or the chargesheet be issued to him

within the reasonable time. There is no time limit prescribed under

the CCA Rules, 1958 for issuance of chargesheet, nevertheless, it

is the duty of the employer to take action within the reasonable

time. This court finds that issuance of chargesheet at a belated

stage may deprive the delinquent to defend himself in the

departmental enquiry. The departmental enquiry necessarily

requires production of oral as well as documentary evidence by

both the sides. The delinquent if is not confronted with the

charges, in normal course, by giving chargesheet, the right to

defend is definitely affected in such cases. This court finds that

there is no explanation for issuance of chargesheet in the year

1994 for the alleged occurrence of the year 1985 and as such the

action of the State Government is not found in consonance with

law. This court finds that Enquiry Officer had not given any finding

in respect of violation of orders passed by the Settlement

Commissioner and yet the Disciplinary Authority found the

petitioner guilty of committing misconduct of not keeping in mind

such orders while passing the orders of opening mutation in

favour of certain persons. It can be safely presumed by this court
(18 of 23) [CW-1832/1997]

that the Disciplinary Authority has taken into account irrelevant

facts while forming its opinion to punish the petitioner.

The submission of learned counsel for the respondents that

the scope of interference by this court in disciplinary proceedings

is very limited and the learned counsel relied upon judgment of

the Apex Court in the case of CISF Ors. Vs. Abrar Ali (supra),

it would be relevant to quote para-8 of the judgment, which reads

as follows:-

“8. Contrary to findings of the Disciplinary Authority, the
High Court accepted the version of the Respondent that he
fell ill and was being treated by a local doctor without
assigning any reasons. It was held by the Disciplinary
Authority that the Unit had better medical facilities which
could have been availed by the Respondent if he was really
suffering from illness. It was further held that the delinquent
did not produce any evidence of treatment by a local doctor.
The High Court should not have entered into the arena of
facts which tantamounts to re-appreciation of evidence. It is
settled law that re-appreciation of evidence is not
permissible in the exercise of jurisdiction under Article 226 of
the Constitution of India. In State Bank of Bikaner and Jaipur
v. Nemi Chand Nalwaiya reported in (2011) 4 SCC 584, this
Court held as follows:

“7. It is now well settled that the courts will not act as an
appellate court and reassess the evidence led in the
domestic inquiry, nor interfere on the ground that another
view is possible on the material on record. If the inquiry
has been fairly and properly held and the findings are
based on evidence, the question of adequacy of the
evidence or the reliable nature of the evidence will not be
grounds for interfering with the findings in departmental
enquiries. Therefore, courts will not interfere with findings
of fact recorded in departmental enquiries, except where
such findings are based on no evidence or where they are
clearly perverse. The test to find out perversity is to see
whether a tribunal acting reasonably could have arrived at
such conclusion or finding, on the material on record. The
courts will however interfere with the findings in
disciplinary matters, if principles of natural justice or
statutory regulations have been violated or if the order is
found to be arbitrary, capricious, mala fide or based on
extraneous considerations. (Vide B.C. Chaturvedi v. Union
of India [(1995) 6 SCC 749: 1996 SCC (LS) 80: (1996)
32 ATC 44], Union of India v. G. Ganayutham [(1997) 7
SCC 463: 1997 SCC (LS) 1806], Bank of India v. Degala
Suryanarayana [(1999) 5 SCC 762: 1999 SCC (LS)
(19 of 23) [CW-1832/1997]

1036] and High Court of Judicature at Bombay v.
Shashikant S. Patil.”

In Union of India Ors. v. P. Gunasekaran reported in
(2015) 2 SCC 610, this Court held as follows:
“12. Despite the well-settled position, it is painfully
disturbing to note that the High Court has acted as an
appellate authority in the disciplinary proceedings, re-
appreciating even the evidence before the inquiry officer.
The finding on Charge I was accepted by the disciplinary
authority and was also endorsed by the Central
Administrative Tribunal. In disciplinary proceedings, the
High Court is not and cannot act as a second court of first
appeal. The High Court, in exercise of its powers under
Articles 226/227 of the Constitution of India, shall not
venture into re-appreciation of the evidence. The High
Court can only see whether:

(a) the inquiry is held by a competent authority;

(b) the inquiry is held according to the procedure
prescribed in that behalf;

(c) there is violation of the principles of natural justice in
conducting the proceedings;

(d) the authorities have disabled themselves from
reaching a fair conclusion by some considerations
extraneous to the evidence and merits of the case;

(e) the authorities have allowed themselves to be
influenced by irrelevant or extraneous considerations;

(f) the conclusion, on the very face of it, is so wholly
arbitrary and capricious that no reasonable person

13.could ever have arrived at such conclusion;

(g) the disciplinary authority had erroneously failed to
admit the admissible and material evidence;

(h) the disciplinary authority had erroneously admitted
inadmissible evidence which influenced the finding;

13.(i) the finding of fact is based on no evidence.

13. Under Articles 226/227 of the Constitution of India,
the High Court shall not:

(i) re-appreciate the evidence;

(ii) interfere with the conclusions in the inquiry, in case
the same has been conducted in accordance with law;

(iii) go into the adequacy of the evidence;

(iv) go into the reliability of the evidence;

(v) interfere, if there be some legal evidence on which
findings can be based.

(vi) correct the error of fact however grave it may appear
to be;

(20 of 23) [CW-1832/1997]

(vii) go into the proportionality of punishment unless it
shocks its conscience.”

The Apex Court while defining the parameters where High

Court can have the judicial review of the departmental

proceedings, has categorically held that the High Court can

definitely consider as whether the authorities have been

influenced by irrelevant or extraneous considerations and the High

Court has power to see that conclusions, which are drawn, if are

wholly arbitrary and capricious that no reasonable person, could

have ever arrived at such conclusion, then interference can be

made in such matters.

This court finds that perusal of chargesheet, enquiry report

and the findings of the disciplinary authority in the instant case

have been influenced by the irrelevant considerations. This court

further finds that nature of allegations which have been leveled

against the petitioner while acting as a quasi-judicial authority and

the conclusions which have been drawn, are wholly arbitrary as

power of petitioner to act as Assistant Settlement Officer has

nowhere been doubted. This court finds that as per the limited

scope which has been carved out by the Apex Court, the case of

the petitioner falls in the category (e) (f), referred by the Apex

Court in the case of CISF Ors. Vs. Abrar Ali (supra) and as

such the impugned order cannot be sustained.

Reliance has been placed by counsel for the respondents on

the judgment passed by this court in the case of S.N.Byadwal

(supra) wherein this court while considering the delay in initiation

of disciplinary enquiry, in the peculiar facts of that case, observed
(21 of 23) [CW-1832/1997]

that no prejudice was caused to the petitioner as the issue was

alive because the matter was pending in the Rajasthan Legislative

Assembly where protracted enquiry was conducted by the

Lokayukta and as such after conclusion of the proceedings by

Lokayukta, the disciplinary proceedings were initiated.

In the opinion of this court, the facts of the case of

S.N.Byadwal (supra) makes it very clear that if the proceedings

are not concluded and is being investigated either by the

Assembly or by the Lokayukta, there was no occasion to issue

chargesheet. This court finds that in the instant case, there was

no pendency of any enquiry after original orders were passed by

the petitioner and as such the department cannot take this plea

that the chargesheet could have been issued at a belated stage.

The submission of learned counsel for the respondents that

this court in the case of S.N.Byadwal (supra) has found the act

of a RAS Officer of committing a gross misconduct, as he issued

patta in favour of certain persons, while he was dealing only with

the conversion of land, this court found that under the Rajasthan

Land Revenue (Conversion and Allotment of Agriculture Land)

Rules, 1978 the delinquent could not have taken up the powers of

regular court under Section 88 and could not have recognized title

of such persons. This court considering the power of delinquent of

land conversion only, recorded a finding that the Officer concerned

violated the provisions of The Rules, 1978 and Rule 88 in

particular. The fact situation in the present case is different and

as such the judgment cited by learned counsel for the

respondents, is of no assistance.

(22 of 23) [CW-1832/1997]

The submission of Mr.Avasthi, learned counsel for the

respondents that as far as charge No.7 is concerned, the

petitioner is guilty of violating Section 42 of the Rajasthan

Tenancy Act, this court finds that the Enquiry Officer while giving

finding has also recorded a fact that it was not the petitioner but

one Inspector Land Record (Ameen) who had made the final entry

in the revenue record. This court finds that the petitioner had also

specifically denied that no such order was passed by him of

making entry. The plea of the petitioner that under Section 42 of

the Rajasthan Tenancy Act, 1955 fragmentation of land was

prohibited only if the purchaser is new person to the land, the

petitioner had pleaded that the purchaser himself has possessed

the land adjacent to the part of the land and as such Section 42 of

the Act, 1955 was not to apply, has altogether been not

considered at all and without any reason, the charge has been

found to be proved. Moreover, the order passed by the petitioner

was in his quasi-judicial capacity.

This court finds that neither the Enquiry Officer nor the

Disciplinary Authority has considered the provisions of Section 42

of the Act, 1955 as in what manner there was a violation of any

mandatory requirement. This court finds that the plea of the

learned counsel for the respondents that the allegations in respect

of charge No.7 had ultimately resulted into change in the order by

the higher authority, has no substance. This court finds that

change of order in the review petition will not declare the initial

order to be illegal until some ill-motive was attached to it. This

court finds that charge No.7 on which the Disciplinary Authority

has recorded finding is also not supported by any legal document
(23 of 23) [CW-1832/1997]

or any other evidence adduced before the authorities.

This court finds that the impugned penalty order

dt.14.03.1997 has been passed in illegal and arbitrary manner

and the same deserves to be quashed and set aside. The

chargesheet issued to the petitioner is also declared bad in law.

Accordingly, the writ petition deserves to be allowed and is

hereby allowed. The charge sheet dated 29.07.1994, enquiry

report dated 27.03.1996 and the penalty order dated 14.03.1997

are hereby quashed and set aside. The petitioner may be granted

all the consequential benefits on account of setting aside of these

orders. Compliance be made within a period of three months from

the receipt of this order.

No order as to costs.

(ASHOK KUMAR GAUR),J

Solanki DS, PS/1

Leave a Reply

Your email address will not be published. Required fields are marked *


Not found ...? HOW TO WIN 498a, DV, DIVORCE; Search in Above link

All Law documents and Judgment copies
Laws and Bare Acts of India
Landmark SC/HC Judgements
Rules and Regulations of India.

STUDY REPORTS

Copyright © 2018 SC and HC Judgments Online at MyNation