Kumar Bhupendra Singh vs State Of U P And Another
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Allahabad High Court

Kumar Bhupendra Singh vs State Of U P And Another on 2 January, 2024

Author: Salil Kumar Rai

Bench: Salil Kumar Rai

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


A.F.R.
 
Neutral Citation No. - 2024:AHC:2632
 

 
RESERVED ON 03.07.2023
 
DELIVERED ON 02.01.2024
 
Court No. - 2
 

 
Case :- WRIT - A No. - 4136 of 2021
 
Petitioner :- Kumar Bhupendra Singh
 
Respondent :- State Of U P And Another
 
Counsel for Petitioner :- Ramesh Chandra Tiwari,Sr. Advocate Ashok Khare
 
Counsel for Respondent :- C.S.C.,Brahma Kumar Tiwari
 

 
Hon'ble Salil Kumar Rai,J.
 

The petition has been filed challenging the order dated 14.1.2021 passed by the Special Secretary, Appointment Section - 3, Government of Uttar Pradesh, Lucknow by which the petitioner has been reverted to the post of Tehsildar from the post of Deputy District Magistrate.

At this stage, it is relevant to note that during the arguments in the case, the Standing Counsel had opposed the writ petition on grounds of availability of alternative remedy of appeal to the petitioner under Rule 11 of the Rules, 1999. However, as the petition was pending in this Court since February, 2021 and affidavits in the case had been exchanged, therefore, in view of the judgment of the Supreme Court in Dr. (Smt.) Kuntesh Gupta vs. Management of Hindu Kanya Mahavidyalaya, Sitapur (U.P.) and Ors. 1987 (4) SCC 525, the objections of the Standing Counsel regarding maintainability of the writ petition on grounds of availability of alternative remedy to the petitioner were rejected and the petition was heard on merits.

The facts of the case are that the petitioner was initially appointed as Naib Tehsildar in March, 1996, was promoted to the post of Tehsildar in January, 2008 and on 11.5.2016, he was promoted as Deputy Collector / Deputy District Magistrate / Sub-Divisional Magistrate. From 29.5.2016 to 3.9.2016, the petitioner was posted as Sub-Divisional Magistrate, Sardhana, District Meerut.

In 2013, M/s. A to Z Builders and Developers (hereinafter referred to as, 'Builders') through its Directors / Partners - Sri Jitendra Kumar and Sri Vinod Kumar filed an application under Section 161 of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 (hereinafter referred to as, 'Act, 1950') for exchange of their plots with the plots of Gaon Sabha. The plots of the Gaon Sabha, which were sought to be exchanged were pasture lands included in Section 132 of the Act, 1950, therefore, no Bhumidhari Rights could have accrued in them. On the aforesaid application, Case No. 03 of 2012-13 (M/s. A to Z Builders and Developers Ltd. vs. Gaon Sabha & Ors.) was registered in the court of Sub-Divisional Magistrate. The application was allowed by order dated 28.5.2013 passed by the then Deputy District Magistrate, Sardhana, District Meerut and by another order of the same date, Process for mutation in the revenue records was also issued. However, by order dated 11.2.2014, the then Deputy District Magistrate, Sardhana recalled his previous order dated 28.5.2013 and restored Case No. 03 of 2012-13 to its original number. Against the order dated 11.2.2014, Appeal No. 43 of 2013-14 was filed by the Builders. The Additional Commissioner, Meerut Division, District Meerut, vide his order dated 27.8.2014 allowed the appeal, set-aside the order dated 11.2.2014 and affirmed the order dated 28.5.2013 previously passed in Case No. 03 of 2012-13. An application for mutation in the revenue records was filed by the Builders on 25.7.2016. The petitioner, who at the time was posted as the Deputy District Magistrate, Sardhana, District Meerut, through a letter dated 4.8.2016 sought legal opinion on the aforesaid application and the District Government Counsel in his remarks dated 6.8.2016 opined that there was no legal impediment in implementing the order dated 27.8.2014 and consequential mutation in the revenue records. The petitioner, vide his order dated 11.8.2016 directed mutation in the revenue records implementing the orders dated 27.8.2014 and 28.5.2013, but vide the same order, also directed the Tehsildar to file an appeal before the Board of Revenue, Uttar Pradesh against the order dated 27.8.2014 passed by the Additional Commissioner.

Subsequently, the Commissioner, Meerut Division, District Meerut vide his order dated 24.1.2018 cancelled the previous order dated 27.8.2014 and restored Appeal No. 43 of 2013-14 to its original number. The order dated 24.1.2018 passed by the Commissioner was challenged by the Builders before this Court in Writ - C No. 2758 of 2018 which was admitted for hearing and parties were directed to maintain status-quo during the pendency of the writ petition. Writ - C No. 2758 of 2018 is still pending before this Court.

Meanwhile, the District Magistrate, Meerut vide his order dated 23.11.2016 instituted an inquiry in the matter and asked for a report from the then Deputy District Magistrate, Sardhana. The then Deputy District Magistrate, Sardhana submitted his report on 24.11.2016 stating that the mutation in the revenue records was contrary to the relevant provisions of the Revenue Court Manual. It was noted in the report that the land of Gaon Sabha exchanged with the Builders was a pasture land included in Section 132 of the Act, 1950 which could have been exchanged only after permission from the State Government and no orders for exchange could have been passed under Section 161 of the Act, 1950 and the petitioner, instead of ensuring that an appeal was filed against the order dated 27.8.2014 passed by the Additional Commissioner, got the name of a private body entered into the revenue records against the Gaon Sabha plots. On the basis of report dated 24.11.2016, departmental / disciplinary proceedings were instituted against the petitioner under the Uttar Pradesh Government Servant (Discipline and Appeal) Rules, 1999 (hereinafter referred to as, 'Rules, 1999') and the Commissioner, Saharanpur Division, District Saharanpur was appointed as the Inquiry Officer. A charge-sheet dated 24.12.2019 was served on the petitioner. The charge against the petitioner was that while passing the order dated 25.7.2016 for implementation of the order dated 27.8.2014 passed by the Additional Commissioner, the petitioner had acted in collusion with the Builders for personal gain by giving favours to the Builders and the conduct of the petitioner amounted to misconduct under the Uttar Pradesh Government Servant Conduct Rules, 1956 (hereinafter referred to as, 'Rules, 1956').

The petitioner submitted his reply to the aforesaid charge-sheet stating that the petitioner had not passed any order of exchange under Section 161 of the Act, 1950 but had only implemented the order passed by the Additional Commissioner and was, therefore, not guilty of the charges. It was also stated by the petitioner that mutation in the revenue records was to implement the order of the Additional Commissioner and was done after the District Government Counsel gave his legal opinion that there was no legal impediment in implementing the order of the Additional Commissioner. It was submitted by the petitioner that in his order dated 11.8.2016, the petitioner had directed the Tehsildar to file an appeal against the order of the Additional Commissioner and the order of the petitioner for mutation in revenue records was in accordance with the relevant provisions of the Revenue Court Manual because the petitioner as the Deputy District Magistrate was duty bound to implement the order of the Additional Commissioner.

The Inquiry Officer submitted his report dated 3.6.2020 holding that the lands which vested in the Gaon Sabha and were subject-matters of exchange were pasture lands included in Section 132 of the Act, 1950 and, therefore, no orders under Section 161 of the Act, 1950 could have been passed by any revenue officer permitting exchange of Gaon Sabha land. The Inquiry Officer held that it was the duty of the petitioner to inform his senior officers regarding the aforesaid fact and the petitioner should have ensured that either appeal or review application should have been filed against the order dated 27.8.2014 passed by the Additional Commissioner. In his report, the Inquiry Officer noted that instead of examining the delay by the Builders in filing the application for implementation of the order passed by the Additional Commissioner, the petitioner had mechanically relied on the opinion of the District Government Counsel and passed the order dated 11.8.2016. The Inquiry Officer held that the act of the petitioner was illegal and beyond his jurisdiction. On the aforesaid findings, the Inquiry Officer held that the charges against the petitioner were partly proved. No findings were recorded by the Inquiry Officer on the charge that the petitioner had acted in collusion with the Builders to favour them for personal gain.

The petitioner was served a show cause notice dated 16.7.2020. The disciplinary authority in the case was Special Secretary, Appointment Section - 3, Government of Uttar Pradesh, Lucknow. The show cause notice stated that the Inquiry Officer had found the charges levelled against the petitioner to be proved. The show cause notice did not record that the disciplinary authority disagreed with the findings of the Inquiry Officer that the charge against the petitioner was partly proved and the disciplinary authority was of the opinion that the charge against the petitioner was proved in full. The petitioner submitted his reply but the State Government vide order dated 14.1.2021 rejected the defence of the petitioner and awarded a punishment reverting him to the post of Tehsildar. The impugned order holds the petitioner guilty of having acted in collusion with the private parties for personal gain and to favour the private parties and thus guilty of misconduct in passing the order dated 11.8.2016 for mutation in revenue records.

The order dated 14.1.2021 has been challenged in the present petition.

A counter affidavit has been filed by the State respondents contesting the writ petition and defending the reasons given in the impugned order dated 14.1.2021. The stand of the respondents in their counter affidavit is that the petitioner was expected to have informed his superior officers about the order dated 27.8.2014 and instead of implementing the order passed by the Additional Commissioner and the order dated 28.5.2013 passed by the Sub-Divisional Magistrate after two years of the order passed by the Additional Commissioner, the petitioner should have ensured that an appeal, revision or review was filed against the order of the Additional Commissioner. The failure of the petitioner to ensure filing of appeal, revision or review against the order of the Additional Commissioner was a misconduct under Rules, 1956 and his order dated 11.8.2016 was illegal and beyond jurisdiction because the land which vested in the Gaon Sabha was pasture land and therefore, no orders could have been passed under Section 161 of the Act, 1950 for exchange of the aforesaid lands and any order of exchange could have been passed only by the State Government.

It was argued by the counsel for the petitioner that there is no evidence or finding by the Inquiry Officer of any collusion between the petitioner and the Builders. It was argued that in his report dated 3.6.2020, the Inquiry Officer has only held that the act of the petitioner was contrary to the Rules and beyond his jurisdiction and, therefore, the charge levelled against the petitioners was only partly established. It was argued that in the show cause notice dated 27.7.2020, the disciplinary authority has not recorded his disagreement with the report of the Inquiry Officer and has also not recorded his tentative opinion that the charges against the petitioner were fully proved and, therefore, the order dated 14.1.2021 holding that the petitioner had acted contrary to the interest of the State Government and for personal gains in collusion with the private parties is without jurisdiction and in violation of the principles of natural justice as the petitioner was never given any opportunity to represent against the aforesaid opinion of the disciplinary authority. It was further argued that through his order dated 11.8.2016, the petitioner had not committed any illegality as the said order was passed only for implementing the order dated 28.5.2013 passed by the then Sub-Divisional Magistrate, Sardhana and the order dated 27.8.2014 passed by the Additional Commissioner. The petitioner had not passed any order of exchange under Section 161 of the Act, 1950 and had, therefore, committed no misconduct or any illegality. It was argued that under Paragraph 32 of the Revenue Court Manual, the petitioner was duty bound to ensure mutation of the orders passed by the previous Sub-Divisional Magistrate, Sardhana and the Additional Commissioner and, therefore, the petitioner could not have been subjected to disciplinary proceedings for order dated 11.8.2016. It was argued that for the aforesaid reasons, the order dated 14.1.2021 is illegal and contrary to law and liable to be quashed. In support of his arguments, the counsel for the petitioner has relied on the judgment and order dated 3.12.2014 passed by this Court in Writ- B No. 39011 of 2010 (Babu Lal & Ors. vs. Board of Revenue U.P. Allahabad & Ors.); judgment and order dated 5.5.2017 passed by this Court on C.M. Review Application No. 64657 of 2015 passed in Writ - B No. 39011 of 2010 (Babu Lal & Ors. vs. Board of Revenue U.P. Allahabad & Ors.); judgments of this Court reported in Sushila vs. Additional Commissioner Azamgarh & 14 Ors. 2015 (127) RD 691; Kaptan Singh vs. State of U.P. and Anr. 2014 (8) ADJ 16 (DB), Shyam Babu Vaish vs. State of U.P. and Anr. 2019 (6) ADJ 398 (DB) and Hari Om Rastogi vs. State of U.P. & Ors. 2022 (9) ADJ 169 (DB), judgment and order dated 16.11.2016 passed by this Court in Ceiling No. 258 of 2016 (Kaushlendra Singh & Anr. vs. State of U.P. Thru Secy. Deptt. of Revenue Lko. & Ors.) and judgment and order dated 13.7.2022 passed by this Court in Writ - A No. 29828 of 2021 (Shri Prakash Gupta vs. State of U.P. Thru. Addl. Chief Secy. Appointment Lko. & Ors.).

Rebutting the contention of the counsel for the petitioner, the Standing Counsel has supported the order dated 14.1.2021 and the reasons given in the same and has argued that from the facts on record, it was proved that the petitioner had committed misconduct and, therefore, there was no illegality in the order of punishment which has been passed after considering all the relevant materials and factors.

I have considered the rival submissions of the counsel for the parties and perused the records.

After the order dated 27.8.2014 passed by the Additional Commissioner confirming the order dated 28.5.2013 passed by the Sub-Divisional Magistrate permitting exchange of Gaon Sabha plots under Section 161 of the Act, 1950, it was the duty of subordinate revenue officers to make appropriate entries in the revenue records in accordance with the order dated 28.5.2013 (Reference may be made to the judgment in Sri Kishun vs. Gaon Sabha (1999) 90 RD 650). It is also relevant to note that by order dated 28.5.2013, Process for mutation in revenue records was also issued. The confirmation of order dated 28.5.2013 by order dated 27.8.2014 revived the Process initially issued for mutation in the revenue records. Mutation in the revenue records was a legal consequence to the order dated 27.8.2014 passed by the Additional Commissioner and should have been done without any orders for the purpose being issued by the petitioner or any other authority. Further, the order of the petitioner directing mutation in the revenue records in pursuance to the order passed by his superior revenue authority was only a ministerial act and the petitioner as the Sub-Divisional Magistrate had no discretion or choice in the matter. Mutation in revenue records create no Bhumidhari rights in favour of any person. Entries in the revenue records are appropriately modified or altered if any order adjudicating the rights of the parties is either recalled or set-aside in appeal. The order dated 11.8.2016 neither adjudicates the rights of the parties nor does it facilitate or causes exchange of Gaon Sabha property which was facilitated by the orders dated 28.5.2013 and 27.8.2014 passed by the then Sub-Divisional Magistrate and the Additional Commissioner, respectively. The petitioner did not pass any order permitting exchange of Gaon Sabha property included in Section 132 of the Act, 1950. No issue of jurisdiction arises so far as the order dated 11.8.2016 is concerned and there is no jurisdictional error in the order dated 11.8.2016 itself. In any case, in his order dated 11.8.2016, the petitioner had also directed the concerned Tehsildar to take appropriate steps for getting the order dated 27.8.2014 passed by the Additional Commissioner set-aside either by filing an appeal or revision or a recall application.

Rule 3 of the Rules, 1956 mandates that every government servant shall at all times maintain absolute integrity and devotion to duty and shall at all times conduct himself in accordance with the specific or implied orders of government regulating behaviour and conduct which may be in force. No order or regulation of the government has been brought to the notice of this Court either in the counter affidavit filed by the Standing Counsel or during the arguments to show that there was any order or regulation of the government which permitted a Sub-Divisional Magistrate not to comply with the order of his superior officer passed in an appeal or revision. The order dated 11.8.2016 was in compliance of the order dated 27.8.2014 passed by the Additional Commissioner. The opinion of the Inquiry Officer and the disciplinary authority that the petitioner should have informed his superior officers is incorrect in as much as the Additional Commissioner himself was an officer superior in rank to the petitioner. The charge-sheet or the findings of the Inquiry Officer and the disciplinary authority do not refer to any material which shows that the petitioner had acted in collusion with the Builders for his personal gain and gave favours to the Builders in passing the order dated 11.8.2016. The charge-sheet does not mention any evidence in support of the aforesaid allegation. The mere fact that the order was passed on an application which was filed two years after the order passed by the Additional Commissioner does not by itself show that the petitioner had acted for personal gain and in collusion with the Builders. As noted earlier, there is no jurisdictional error and no question of jurisdiction arises so far as order dated 11.8.2016 itself is concerned as the said order has not been passed under Section 161 of the Act, 1950 and does not facilitate or permits exchange of Gaon Sabha property. Even assuming that the order dated 11.8.2016 was beyond the jurisdiction of the petitioner acting as Sub-Divisional Magistrate, mere passing of an order in excess of jurisdiction does not by itself cast doubt on the integrity of a government servant and does not by itself establish that the order was passed to show favour to any party or for personal gains.

At this stage, it would be apt to refer to judgments of the Supreme Court dealing with misconduct of a government servant.

In State of Punjab & Ors. vs. Ram Singh Ex-Constable (1992) 4 SCC 54, the Supreme Court observed that misconduct involves unlawful behaviour which is willful in character, is a forbidden act, a transgression of established and definite rule of action or misconduct but not a mere error of judgment, carelessness or negligence in performance of the duty. It was observed by the Supreme Court that acts referred as misconduct bear forbidden quality or character. The relevant observations of the Supreme Court are reproduced below : -

"5. Misconduct has been defined in Black's Law Dictionary, Sixth Edition at page 999 thus :-

"A transgression of some established and definite rule of action, a forbidden act, a dereliction from duty, unlawful behavior, willful in character, improper or wrong behavior, its synonyms are misdemeanor, misdeed, misbehavior, delinquency, impropriety, mismanagement, offence but not negligence or carelessness."

Misconduct in office has been defined as :

"Any unlawful behavior by a public officer in relation to the duties of his office, willful in character. Term embraces acts which the office holder had no right to perform, acts performed improperly, and failure to act in the face of an affirmative duty to act."

P. Ramanatha Aiyar's Law Lexicon, Reprint Edition 1987 at page 821 defines 'misconduct' thus:

"The term misconduct implies a wrongful intention, and not a mere error of judgment. Misconduct is not necessarily the same thing as conduct involving moral turpitude. The word misconduct is a relative term, and has to be construed with reference to the subject matter and the context wherein the term occurs, having regard to the scope of the Act or statute which is being construed. Misconduct literally means wrong conduct or improper conduct. In usual parlance, misconduct means a transgression of some established and definite rule of action, where no discretion is left, except what necessity may demand and carelessness, negligence and unskilfulness are transgressions of some established, but indifinite, rule of action, where some discretion is necessarily left to the actor. Misconduct is a violation of definite law; carelessness or abuse of discretion under an indefinite law. Misconduct is a forbidden act; carelessness, a forbidden quality of an act, and is necessarily indefinite. Misconduct in office may be defined as unlawful behaviour or neglect by a public officer, by which the rights of a party have been affected."

6. Thus it could be seen that the word 'misconduct' though not capable of precise definition, on reflection receives its connotation from the context, the delinquency in its performance and its effect on the discipline and the nature of the duty. It may involve moral turpitude, it must be improper or wrong behaviour; unlawful behaviour, willful in character; forbidden act, a transgression of established and definite rule of action or code of conduct but not mere error of judgment, carelessness or negligence in performance of the duty; the act complained of bears forbidden quality or character. Its ambit has to be construed with reference to the subject matter and the context wherein the term occurs, regard being had to the scope of the statute and the public purpose it seeks to serve. ..."

(emphasis supplied)

In M.S. Bindra vs. Union of India (1998) 7 SCC 310, the Supreme Court observed as under : -

"13. ... To dunk an officer into the puddle of 'doubtful integrity', it is not enough that the doubt fringes on a mere hunch. That doubt should be of such a nature as would reasonably and consciously be entertainable by a reasonable man on the given material. Mere possibility is hardly sufficient to assume that it would have happened. There must be preponderance of probability for the reasonable man to entertain doubt regarding that possibility. Only then there is justification to ram an officer with the label 'doubtful integrity'."

In Union of India vs. K.K. Dhawan (1993) 2 SCC 56, the Supreme Court while dealing with the circumstances in which disciplinary proceedings can be instituted against a government servant for acts done by him in exercise of quasi-judicial functions held that the disciplinary action can be taken in the following cases : -

"(i) Where the officer had acted in a manner as would reflect on his reputation for integrity or good faith or devotion to duty;

(ii) if there is prima facie material to show recklessness or misconduct in the discharge of his duty;

(iii) if he has acted in a manner which is unbecoming of a government servant;

(iv) if he had acted negligently or that he omitted the prescribed conditions which are essential for the exercise of the statutory powers;

(v) if he had acted in order to unduly favour a party;

(vi) if he had been actuated by corrupt motive, however small the bribe may be because Lord Coke said long ago 'though the bribe may be small, yet the fault is great'."

(emphasis supplied)

It was further held by the Supreme Court in Paragraph - 29 of the said reports as follows : -

"29. The instances above catalogued are not exhaustive. However, we may add that for a mere technical violation or merely because the order is wrong and the action not falling under the above-enumerated instances, disciplinary action is not warranted. Here, we may utter a word of caution. Each case will depend upon the facts and no absolute rule can be postulated."

(emphasis supplied)

In Zunjarrao Bhikaji Nagarkar vs. Union of India & Ors. (1999) 7 SCC 409, the Supreme Court while deciding the validity of disciplinary proceedings against a Collector of Central Exercise, Nagpur who had failed to impose penalty on an assessee under Rule 173-Q of the Central Excise Rules, 1944 held that even though the imposition of penalty was imperative, there was nothing wrong or improper on the part of the Collector to form an opinion that imposition of penalty was not mandatory and the Collector, while exercising his quasi-judicial functions, was not liable to disciplinary proceedings for not imposing penalty on the assessee under Rule 173-Q of the Central Excise Rules, 1944. The Supreme Court observed that negligence in quasi-judicial adjudication is not negligence perceived as carelessness, inadvertence or omission but as culpable negligence and held that mere error in judgment, carelessness or negligence in performance of duty is not misconduct. The Supreme Court further held that there should be some material before the disciplinary authority to form an opinion that the delinquent showed favour to the assessee by not imposing the penalty and mere wrong exercise of jurisdiction cannot form a basis for initiating disciplinary proceedings against an officer. It was further held that initiation of disciplinary proceedings against an officer cannot take place on an information which is vague or indefinite and suspicion has no role to play in such matters. The relevant observations of the Supreme Court in Zunjarrao Bhikaji Nagarkar (supra) are reproduced below : -

"40. When we talk of negligence in a quasi-judicial adjudication, it is not negligence perceived as carelessness, inadvertance or omission but as culpable negligence. This is how this Court in State of Punjab v. Ex-Constable Ram Singh interpreted "misconduct" not coming within the purview of mere error in judgment, carelessness or negligence in performance of duty.

...

...

...

In Hindustan Steel Ltd. case it was said that where proceedings are quasi- judicial penalty will not ordinarily be imposed unless the party charged had acted deliberately in defiance of law or was guilty of conduct contumacious or dishonest or acted in conscious disregard of its obligation. This Court has said that the penalty will not also be imposed merely because it is lawful so to do. In the present case, it is not that the appellant did not impose penalty because of any negligence on his part but he said it was not a case of imposition of penalty. We are, however, of the view that in a case like this which was being adjudicated upon by the appellant imposition of penalty was imperative. But then, there is nothing wrong or improper on the part of the appellant to form an opinion that imposition of penalty was not mandatory. We have noticed that Patna High Court while interpreting Section 325 IPC held that imposition of penalty was not mandatory which again we have said is not a correct view to take. A wrong interpretation of law cannot be a ground for misconduct. Of course it is a different matter altogether if it is deliberate and actuated by mala fides.

41. When penalty is not levied, the assessee certainly benefits. But it cannot be said that by not levying the penalty the officer has favoured the assessee or shown undue favour to him. There has to be some basis for the disciplinary authority to reach such a conclusion even prima facie. The record in the present case does not show if the disciplinary authority had any information within its possession from where it could form an opinion that the appellant showed "favour" to the assessee by not imposing the penalty. He may have wrongly exercised his jurisdiction. But that wrong can be corrected in appeal. That cannot always form basis for initiating disciplinary proceedings against an officer while he is acting as quasi- judicial authority. It must be kept in mind that being a quasi-judicial authority, he is always subject to judicial supervision in appeal.

42. Initiation of disciplinary proceedings against an officer cannot take place on an information which is vague or indefinite. Suspicion has no role to play in such matter. There must exist reasonable basis for the disciplinary authority to proceed against the delinquent officer. Merely because penalty was not imposed and the Board in the exercise of its power directed filing of appeal against that order in the the Appellate Tribunal could not be enough to proceed against the appellant. There is no other instance to show that in similar case the appellant invariably imposed penalty.

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 of 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 charge-sheet is rendered illegal. The charge-sheet, if sustained, will 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."

(emphasis supplied)

Similarly, in P.C. Joshi vs. State of U.P. & Ors. (2001) 6 SCC 491 in which the disciplinary proceedings were instituted against a judicial officer on allegations of having granted bail where according to the disciplinary authority, it ought not to have been granted, the Supreme Court observed as follows : -

"7. In the present case, though elaborate enquiry has been conducted by the Enquiry Officer, there is hardly any material worth the name forthcoming except to scrutinize each one of the orders made by the appellant on the judicial side to arrive at a different conclusion. That there was possibility on a given set of facts to arrive at a different conclusion is no ground to indict a judicial officer for taking one view and that too for alleged misconduct for that reason alone. The Enquiry Officer has not found any other material, which would reflect on his reputation or integrity or good faith or devotion to duty or that he has been actuated by any corrupt motive. At best he may say that the view taken by the appellant is not proper or correct and not attribute any motive to him which is for extraneous consideration that he had acted in that manner. If in every case where an order of a subordinate court is found to be faulty a disciplinary action were to be initiated, the confidence of the subordinate judiciary will be shaken and the officers will be in constant fear of writing a judgment so as not to face a disciplinary enquiry and thus judicial officers cannot act independently or fearlessly. Indeed the words of caution are given in K.K. Dhawans case and A.N. Saxena case that merely because the order is wrong or the action taken could have been different does not warrant initiation of disciplinary proceedings against the judicial officer. In spite of such caution, it is unfortunate that the High Court has chosen to initiate disciplinary proceedings against the appellant in this case."

(emphasis supplied)

Even though, the order dated 11.8.2016 passed by the petitioner was merely a ministerial act and not in exercise of a quasi-judicial or judicial function, the principle laid down by the Supreme Court in Zunjarrao Bhikaji Nagarkar (supra) and P.C. Joshi (supra) are to be applied while considering the case of the petitioner.

In the present case also, there is no material to indicate that the petitioner had passed the order dated 11.8.2016 to grant favour to any party or for his personal gain and there is no material casting any doubt on the integrity of the petitioner. The charge-sheet does not refer to any such material. The inquiry report dated 24.11.2016 of the Sub-Divisional Magistrate does not refer to any material which could cast doubt on the integrity of the petitioner and that the petitioner had acted for extraneous consideration. A mere suspicion cannot be a valid reason to institute disciplinary proceedings against a government servant. The order dated 11.8.2016 may be erroneous but the same would not be sufficient to hold that the petitioner had committed any misconduct especially in the circumstance when by the same order, the petitioner had directed the Tehsildar to take steps for getting the order dated 27.8.2014 passed by the Additional Commissioner set-aside. As observed by the Supreme Court, an officer cannot be dunked into the puddle of 'doubtful integrity' merely on the basis of a doubt which fringes on a mere hunch and mere possibility is hardly sufficient to assume that the employee had acted in a dishonest manner for dishonest purposes. The opinion of the disciplinary authority that by passing the order dated 11.8.2016, the petitioner had committed misconduct under Rules, 1956 is not supported by any evidence on record.

There is another aspect of the matter. The disciplinary proceedings against the petitioner were conducted under the Rules, 1999. Rules 8 and 9 of the Rules, 1999 are relevant and are re-produced below : -

"8. Submission of Inquiry Report - When the Inquiry is complete, the Inquiry Officer shall submit its inquiry report to the Disciplinary Authority alongwith all the records of the inquiry. The inquiry report shall contain a sufficient record of brief facts, the evidence and statement of the finding on each charge and the reasons thereof. The Inquiry Officer shall not make any recommendation about the penalty.

9. Action on Inquiry Report -

(1) The Disciplinary authority may, for reason to be recorded in writing, remit the case for re-enquiry to the same or any other Inquiry Officer under intimation to the charged Government Servant the Inquiry Officer shall thereupon proceed to hold the inquiry from such stage as directed by the Disciplinary Authority, according to the provisions of Rule 7.

(2) The Disciplinary Authority shall, if it disagrees with the finding of the Inquiry Officer on any charge, record its own finding thereon for reasons to be recorded.

(3) In case the charges are not proved, the charged Government Servant shall be exonerated by the Disciplinary Authority of the charges and inform him accordingly.

(4) If the Disciplinary Authority, having regard to its finding on all or any of charges is of the opinion that any penalty specified in Rule 3 should be imposed on the charge Government Servant, he shall give a copy of the inquiry report and his finding recorded under sub-rule (2) to the charged Government Servant and require him to submit his representation if he so desires, within a reasonable specified time. The Disciplinary Authority shall having regard to all the relevant records relating to the inquiry and representation of the charge Government Servant, if any, and subject to the provisions of Rule 16 of these rules, pass a reasoned order imposing one or more penalties mentioned in Rule 3 of these and communicate the same to the charged Government Servant."

(emphasis supplied)

Rule 9(2) of the Rules, 1999 does not provide that if the disciplinary authority disagrees with the finding of the Inquiry Officer on any charge, it shall record its disagreement and its tentative opinion and show cause the petitioner to represent against the opinion of the disciplinary authority. However, in Ram Kishan vs. Union of India & Ors. (1995) 6 SCC 157, the Supreme Court held that in case the disciplinary authority disagrees with the conclusions reached by the Inquiry Officer, the disciplinary authority has to give specific reasons in the show cause notice on the basis of which the findings of the Inquiry Officer in that behalf is based and failure of the disciplinary authority to give reasons in the show cause notice would amount to an empty formality which would cause grave prejudice to the delinquent officer and would result in injustice to him. The relevant observations of the Supreme Court in Paragraph - 10 of the reports are reproduced below : -

"10. The next question is whether the show-cause notice is valid in law. It is true, as rightly contended by the counsel for the appellant, that the show-cause notice does not indicate the reasons on the basis of which the disciplinary authority proposed to disagree with the conclusions reached by the inquiry officer. The purpose of the show- cause notice, in case of disagreement with the findings of the enquiry officer, is to enable the delinquent to show that the disciplinary authority is persuaded not to disagree with the conclusions reached by the inquiry officer for the reasons given in the inquiry report or he may offer additional reasons in support of the finding by the inquiry officer. In that situation, unless the disciplinary authority gives specific reasons in the show cause on the basis of which the findings of the inquiry officer in that behalf is based, it would be difficult for the delinquent to satisfactorily give reasons to persuade the disciplinary authority to agree with the conclusions reached by the inquiry officer. In the absence of any ground or reason in the show-cause notice it amounts to an empty formality which would cause grave prejudice to the delinquent officer and would result in injustice to him. The mere fact that in the final order some reasons have been given to disagree with the conclusions reached by the disciplinary authority cannot cure the defect. ..."

(emphasis supplied)

In Punjab National Bank & Ors. vs. Kunj Behari Misra (1998) 7 SCC 84, the issue before the Supreme Court was regarding interpretation of Regulation 7(2) of the Punjab National Bank Officer Employees (Discipline and Appeal) Regulations, 1977. Regulation 7(2) of the Regulations provided as follows : -

"(2) The disciplinary authority shall, if it disagrees with the findings of the enquiring authority on any article of charge, record its reasons for such disagreement and record its own findings on such charge, if the evidence on record is sufficient for the purpose."

The regulations did not specifically state that if the disciplinary authority disagrees with the findings of the enquiring authority and is required to record its own reason for such disagreement and also to record its own finding on such charge, it was required to give a hearing to the delinquent officer. However, the Supreme Court while interpreting the said Regulations, held that the charged officer must have an opportunity to represent before the disciplinary authority before final findings on the charges are recorded and punishment imposed. The Supreme Court held that the principles of natural justice have to be read into Regulation 7(2) and, therefore, whenever the disciplinary authority disagrees with the enquiring authority on any charge then before it records its own finding on such charge, it must record its tentative reasons for such disagreement and give to the delinquent officer an opportunity to represent before it finally records its findings. The Supreme Court while laying down the aforesaid principles referred to its judgment in State of Assam vs. Bimal Kumar Pandit AIR (1963) SC 1612 wherein it was held that where the dismissing authority differed from the findings of the Inquiry Officer in favour of the charged employee, it would be necessary that the conclusions of the dismissing authority should be briefly indicated in the show cause notice issued to the charged employee. The relevant observations of the Supreme Court are reproduced below : -

"15. At this stage, it will be appropriate to refer to the case of State of Assam v. Bimal Kumar Pandit decided by a Constitution Bench of this Court. A question arose regarding the contents of the second show cause notice when the Government accepts, rejects or partly accepts or partly rejects the findings of the enquiry officer. Even though that case relates to Article 311 (2) before its deletion by the 42nd Amendment, the principle laid down therein, at p. 10 of the Report, when read alone with the decision of this Court in Karunakar case will clearly apply here. The Court observed at SCR pp. 10-11 as follows:-

"We ought, however, to add that if the dismissing authority differs from the findings recorded in the enquiry report, it is necessary that its provisional conclusions in that behalf should be specified in the second notice. It may be that the report makes findings in favour of the delinquent officer, but the dismissing authority disagrees with the said findings and proceeds to issue the notice under Article 311 (2). In such a case, it would obviously be necessary that the dismissing authority should expressly state that it differs from the findings recorded in the enquiry report and then indicate the nature of the action proposed to be taken against the delinquent officer. Without such an express statement in the notice, it would be impossible to issue the notice at all. There may also be cases in which the enquiry report may make findings in favour of the delinquent officer on some issues and against him on some other issues. That is precisely what has happened in the present case. If the dismissing authority accepts all the said findings in their entirety, it is another matter: but if the dismissing authority accepts the findings recorded against the delinquent officer and differs from some or all of those recorded in his favour and proceeds to specify the nature of the action proposed to be taken on it own conclusions, it would be necessary that the said conclusions should be briefly indicated in the notice. In this category of cases, the action proposed to be taken would be based not only on the findings recorded against the delinquent officer in the enquiry report, but also on the view of the dismissing authority that the other charges not held proved by the enquiring officer are, according to the dismissing authority, proved. In order to give the delinquent officer a reasonable opportunity to show cause under Article 311 (2), it is essential that the conclusions provisionally reached by the dismissing authority must, in such cases, be specified in the notice. But where the dismissing authority purports to proceed to issue the notice against the delinquent officer after accepting the enquiry report in its entirety, it cannot be said that it is essential that the dismissing authority must say that it has so accepted the report. As we have already indicated, it is desirable that even in such cases a statement to that effect should be made. But we do not think that the words used in Article 311 (2) justify the view that the failure to make such a statement amounts to contravention of Article 311 (2). In dealing with this point, we must bear in mind the fact that a copy of the enquiry report had been enclosed with the notice, and so, reading the notice in common sense manner, the respondent would not have found any difficulty in realising that the action proposed to be taken against him proceeded on the basis that the appellants had accepted the conclusions of the enquiring officer in the entirety."

17. These observations are clearly in tune with the observations in Bimal Kumar Pandit case quoted earlier and would be applicable at the first stage itself. The aforesaid passages clearly bring out the necessity of the authority which is to finally record an adverse finding to give a hearing to the delinquent officer. If the inquiry officer had given an adverse finding, as per Karunakar case the first stage required an opportunity to be given to the employee to represent to the disciplinary authority, even when an earlier opportunity had been granted to them by the inquiry officer. It will not stand to reason that when the finding in favour of the delinquent officers is proposed to be overturned by the disciplinary authority then no opportunity should be granted. The first stage of the inquiry is not completed till the disciplinary authority has recorded its findings. The principles of natural justice would demand that the authority which proposes to decide against the delinquent officer must give him a hearing. When the enquiring officer holds the charges to be proved, then that report has to be given to the delinquent officer who can make a representation before the disciplinary authority takes further action which may be prejudicial to the delinquent officer. When, like in the present case, the inquiry report is in favour of the delinquent officer but the disciplinary authority proposes to differ with such conclusions, then that authority which is deciding against the delinquent officer must give him an opportunity of being heard for otherwise he would be condemned unheard. In departmental proceedings, what is of ultimate importance is the findings of the disciplinary authority.

18. Under Regulation 6, the enquiry proceedings can be conducted either by an enquiry officer or by the disciplinary authority itself. When the enquiry is conducted by the enquiry officer, his report is not final or conclusive and the disciplinary proceedings do not stand concluded. The disciplinary proceedings stand concluded with the decision of the disciplinary authority. It is the disciplinary authority which can impose the penalty and not the enquiry officer. Where the disciplinary authority itself holds an inquiry, an opportunity of hearing has to be granted by him. When the disciplinary authority differs with the view of the enquiry officer and proposes to come to a different conclusion, there is no reason as to why an opportunity of hearing should not be granted. It will be most unfair and iniquitous that where the charged officers succeed before the enquiry officer, they are deprived of representing to the disciplinary authority before that authority differs with the inquiry officer's report and, while recording a finding of guilt, imposes punishment on the officer. In our opinion, in any such situation, the charged officer must have an opportunity to represent before the Disciplinary Authority before final findings on the charges are recorded and punishment imposed. This is required to be done as a part of the first stage of inquiry as explained in Karunakar case.

19. The result of the aforesaid discussion would be that the principles of natural justice have to be read into Regulation 7(2). As a result thereof, whenever the disciplinary authority disagrees with the inquiry authority on any article of charge, then before it records its own findings on such charge, it must record its tentative reasons for such disagreement and give to the delinquent officer an opportunity to represent before it records its findings. The report of the inquiry officer containing its findings will have to be conveyed and the delinquent officer will have an opportunity to persuade the disciplinary authority to accept the favorable conclusion of the enquiry officer. The principles of natural justice, as we have already observed, require the authority which has to take a final decision and can impose a penalty, to give an opportunity to the officer charged of misconduct to file a representation before the disciplinary authority records its findings on the charges framed against the officer."

(emphasis supplied)

The above principle was reiterated by the Supreme Court in Lav Nigam vs. Chairman & MD, ITI Ltd. & Anr. (2006) 9 SCC 440 and also in State Bank of India & Ors. vs. K.P. Narayanan Kutty (2003) 2 SCC 449. In K.P. Narayanan Kutty (supra), the disciplinary authority had disagreed with the findings of the Inquiry Officer that the charges against the delinquent employee had been only partly proved. Rule 9(2) of the Rules, 1999 have to be interpreted in light of the judgment of the Supreme Court in Punjab National Bank (supra) and the principles of natural justice have to be read in Rule 9(2). Thus under Rule 9(2), if the disciplinary authority disagrees with the findings of the Inquiring Authority on any article of charge, then before it records its own findings on such charge, it must record its tentative reasons for such disagreement and give to the delinquent officer an opportunity to represent before it records its findings.

In the present case, the charge against the petitioner was that he had exceeded his jurisdiction by passing the order dated 11.8.2026 and the order was passed for personal gains and to show favour to and in collusion with the private parties thereby causing loss to the State Government and the Gaon Sabha. Apparently, the charge was in two parts. The first part of the charge was that the order passed by the petitioner was beyond his jurisdiction. The second part of the charge was that the order was passed for personal gains and to show favour to the private parties. The Inquiry Officer held that the order passed by the petitioner was beyond his jurisdiction. The Inquiry Officer held that the charge against the petitioner had been partly proved. Apparently, the Inquiry Officer found the charge that the petitioner had acted for personal gain and to show favour to the Builders as not proved. The disciplinary authority, i.e., respondent no. 1, in his order dated 14.1.2021 has awarded punishment to the petitioner on the charge that the petitioner while passing the order dated 11.8.2016 had acted beyond his jurisdiction and had also acted for private gain and to show favour to the private parties, i.e., the Builders and had, therefore, committed misconduct as defined in Rules, 1956. Apparently, the disciplinary authority holds the charge against the petitioner to be fully proved. So far as the charge that the petitioner had acted for personal gain and to show favour to the private parties by passing the order dated 11.8.2016 is concerned, the disciplinary authority has disagreed with the findings of the Inquiry Officer. However, the show cause notice (annexed as Annexure - 14 to the writ petition) does not record the tentative conclusion of the disciplinary authority regarding his disagreement on the findings of the Inquiry Officer regarding the second part of the charge and also does not state its reasons or findings on the said charge. Evidently, the petitioner was not given any opportunity to represent before the disciplinary authority against the tentative opinion of the disciplinary authority that the petitioner had acted for personal gain and to show favour to the private parties. The show cause notice dated 27.7.2020 and the impugned order dated 14.1.2021 are, for the said reason, contrary to Rule 9(2) of the Rules, 1999 as interpreted in light of law laid down by the Supreme Court in its above noted judgments, i.e., Kunj Behari Misra (supra); Bimal Kumar Pandit (supra) and Ram Kishan (supra) and the show cause notice as well as the impugned order are liable to be set-aside on this ground.

Normally, where a disciplinary inquiry is vitiated because of any error in the show cause notice or because of violation of principles of natural justice or any other procedural error, the matter is required to be remanded back to the concerned disciplinary authority to hold a fresh inquiry in accordance with law. However, in the present case, no purpose would be served to remand back the matter to the disciplinary authority to hold a fresh inquiry in accordance with law as the charge-sheet does not indicate that there was any material or evidence against the petitioner so far as the charge of acting for private gain and to show favour to the private parties is concerned. It has already been held that a mere error in jurisdiction without any material to cast doubt on the integrity of the officer cannot be termed as misconduct making the employee liable to disciplinary proceedings. The charge-sheet was void ab initio and the entire disciplinary proceedings held against the petitioner were contrary to law.

For the aforesaid reasons, the order dated 14.1.2021 passed by the Special Secretary, Appointment Section - 3, Government of Uttar Pradesh, Lucknow as well as the entire disciplinary proceedings including the show cause notice and the charge-sheet issued to the petitioner are, hereby, quashed.

The writ petition is allowed. The petitioner will be entitled to all consequential service benefits including the arrears of salary that would accrue in his favour from 14.1.2021 onwards.

The consequential service benefits shall be given to the petitioner within three months from the date a certified copy of this order is produced before the competent authority.

It is clarified that the findings recorded in the present petition and the observations made are only in the context of disciplinary proceedings against the petitioner and shall not apply in disciplinary proceedings, if any, instituted against the Sub-Divisional Magistrate who passed the order dated 28.5.2013 and the Additional Commissioner who passed the order dated 27.8.2014 which shall be decided on their own merits.

With the aforesaid directions, the writ petition is allowed.

Order Date :- 2.1.2024

Satyam