Lt. Governor & Ors. vs Shri C.L. Bavalia
2009 Latest Caselaw 4576 Del

        *       IN THE HIGH COURT OF DELHI AT NEW DELHI

                         Judgment reserved on: 03.11.2009
        %                Judgment delivered on: 10.11.2009


        +                       W.P(C)No.6227 OF 2007


        LT. GOVERNOR & ORS.                             ..... Petitioners
                       Through:        Mrs. Avnish Ahlawat, Advocate.

                             versus


        SHRI C.L. BAVALIA                               ....Respondent
                         Through:      Mr. Sanjoy Ghose, Advocate.

        CORAM:
        HON'BLE MR. JUSTICE ANIL KUMAR
        HON'BLE MR. JUSTICE VIPIN SANGHI

        1. Whether the Reporters of local papers may             No.
        be allowed to see the judgment?

        2. To be referred to Reporter or not?                    Yes.

        3. Whether the judgment should be reported               Yes.
        in the Digest?


VIPIN SANGHI, J.

*

1. The petitioners have challenged the order dated 23.04.2007

passed by the Central Administrative Tribunal, Principal Bench, Delhi

(The Tribunal) in O.A. No.1366/2006 whereby the aforesaid original

application filed by the respondent was partly allowed. The order

imposing penalty of compulsory retirement upon the respondent was

set aside. The petitioners were directed to reinstate the respondent

in service, however, with consequential benefits as per Fundamental

Rules the petitioners were also given liberty to proceed further

against the respondent from the stage of drawl of Inquiry report.

2. We may note a few relevant facts at this stage. In Civil Writ

No. 245/1992 filed by one Sh. Ram Chander and Ors (hereinafter

referred to as "the said writ petitioners") against Delhi Administration

and Anr., this court on 14.08.2001 passed an order holding that in

case the said writ petitioners are in possession of the land in dispute,

the possession of the persons in cultivation at the spot should be

recorded as per the provisions of the Delhi Land Reforms Act and the

Rules framed thereunder. The said writ petitioners were granted

liberty to approach the Revenue Authority for appropriate relief. It

was directed that if they are found to be in actual possession of the

land, the Revenue Authorities will take appropriate action to record

their possession in revenue records. The said writ petition was

disposed off with the aforesaid direction.

3. Following the said direction the said writ petitioners filed an

application on 03.09.2001 before the Tehsildar (Nazafgarh)

requesting him to record their cultivatory possession in the revenue

records. The respondent Sh. C.L. Bavalia then Tehsildar (Nazafgarh)

placed the matter before the SDM/RA (Nazafgarh) along with his note

dated 05.11.2001. The SDM/RA (Nazafgarh) then issued directions,

that as per the decision of the High Court aforesaid, Khasra Girdawari

be recorded after following the appropriate Rules "i.e. issuing P-5." It

was further directed that objections from the Gaon Sabha be also

called and be taken into account.

4. Respondent no.2 then sent another note to the SDM/RA

dated 16.11.2001 stating that allotment in favour of the said writ

petitioners had been done under the 20 point program in the year

1984 through Pradhan, Gram Panchayat of village Jhuljhuli, but the

same was not entered in the revenue record. His note further stated

that the case filed by the said writ petitioners before the RA (Punjabi

Bagh) had been rejected as being time barred. The Financial

Commissioner had also rejected their pleas. He also noted that the

said writ petitioners had then moved the High Court wherein a local

commissioner was appointed to ascertain the physical possession of

the parties in respect of the land in question and to verify that the

parties were cultivating the land since the date of their allotment. The

respondent further stated that the Halka Patwari (H/P) and Field

Kanoongo (F/K) had also visited the site and found that the said writ

petitioners were in physical and cultivatory possession of the land in

question. The respondent suggested that there was no need for

issuing P-5 etc. in such cases because physical possession had

already been proved before the High Court. The respondent,

therefore, recommended to the SDM/RA (Nazafgarh) for declaration of

Assami/Bhoomidari status of the said writ petitioners.

5. The SDM/RA (Nazafgarh) did not grant approval to the

suggestion of the respondent i.e. Tehsildar (Nazafgarh). Instead the

SDM/RA (Nazafgarh) vide his note dated 19.11.2001 asked the

respondent, the then Tehsildar (Nazafgarh) to comply with the High

Court‟s order, which only pertained to the recording of possession of

the said writ petitioners, if they were found to be in possession of the

lands in question.

6. The respondent however, passed an order on 20.11.2001

requiring the Revenue staff to make an entry in O-4 Register meant

for recording change in ownership rights of land for conferring legal

rights on the said writ petitioners.

7. On account of the aforesaid conduct of the respondent, the

petitioners issued a memorandum dated 05.12.2003 proposing to

hold a departmental Inquiry under Rule 14 of the CCS (CCA) Rules

1965 against the respondent. The statement of Articles of Charge

framed against the respondent reads as follows:

"That the said Sh. C.L. Bawalia, Grade-I of DASS, while functioning as Tehsildar, (Nazafgarh) during the year 2001 committed gross misconduct in as much as he allegedly connived with a private party and maliciously abused his official position as Tehsildar (Nazafgarh) in order to extend undue advantage to that party regarding possession of land in village Jhuljhuli belonging to Gram Sabha.

Thus the said Sh. C.L. Bawalia, Grade-I of DASS, failed to maintain absolute integrity and exhibited conduct unbecoming of a Government servant thereby contravening the provisions of Rule-3 of the CCS (conduct) Rules, 1964."

8. The statement of imputation of misconduct in support of

Article of Charge narrated the aforesaid facts and concluded with the

remark that the respondent had "failed to maintain absolute integrity

and exhibited conduct in unbecoming of a Government servant

thereby contravening the provisions of Rule 3 of the CCS (conduct)

Rules, 1964". A departmental Inquiry followed. The Inquiry Officer

made a detailed Inquiry Report after examining witnesses and

considering the defence of the respondent. The finding returned by

the Inquiry Officer is relevant and the same reads as follows:

"It was imperative and rather a legal duty of the CO Sh. C.L. Bawalia, being then Tehsildar (Nazafgarh) and having sufficient experience i.e. Naib Tehsildar (Nazafgarh) for 1-1/2 years and Tehsildar (Nazafgarh) for about 2 years and 8 months, he must have known the procedure and the legal requirements and entries to be made in revenue records like O-4 register, P-4, P-5, P- 5A etc. He himself has admitted in general examination that entries relating to only mutation orders issued by Tehsildar on account of sale, purchase, lease, mortgage, successor in undisputed cases and in addition, mutation orders issued by SDM/RA in disputed cases are made in O-4 register. The P.O. has stated in his brief that the cultivator possession are entered only in P-5 and P-5A forms and not in O-4 register and this statement of the P.O. has not been contested

by the C.O. in his brief or otherwise, which means that whatever the PO has stated about entries to be made in P-5 and P-5A is correct. The C.O; in his brief, has simply tried to shift the blame on lower functionaries, forgetting his own orders dated 20.11.2001 for making entries in O-4 register. Thus, it is established that entries relating to cultivatory possession are not made in O-4 register, but in P-5 and P- 5A forms. Thus it can be very easily inferred that C.O. has willfully committed irregularities in implementing the orders of the Hon‟ble High Court. This amply exhibits irresponsibility and sheer disregard of the law and directions/observations of the higher authority i.e. SDM/RA and gross misconduct and malafides on the part of the C.O. Shri C.L. Bawalia.

Thus, the charge stands fully proved beyond any doubt."

9. The respondent, after receiving the Inquiry Report made a

representation which was considered by the disciplinary authority.

He accepted the report of the Inquiry Officer. By a detailed and

speaking order the disciplinary authority held that the Article of

charge framed against the respondent had been proved on the basis

of documents placed on record and on preponderance of probability.

He concluded that the respondent had failed to maintain absolute

integrity and exhibited conduct unbecoming of a Government servant

and thereby contravened Rule 3 of the CCS (conduct) Rules 1964.

After taking into account the repercussions of such conduct, the

disciplinary authority held that the ends of justice would be met if the

respondent is inflicted the penalty of compulsory retirement.

Accordingly the said penalty was imposed upon the respondent.

10. The respondent then preferred a departmental appeal before

the Lt. Governor. The Lt. Governor also passed a reasoned order

dismissing the respondent‟s appeal and affirming the penalty

imposed upon him.

11. The respondent then preferred the aforesaid original

application which, as aforesaid, has been partially allowed by the

Tribunal by its impugned order.

12. The reasoning of the Tribunal for passing the impugned

order, inter alia, is that "whereas the charge against applicant in the

imputation is to have connived with the party and recorded an entry

in register O-4 with a view to extend undue benefit to the concerned

party the EO in his report has not recorded a specific finding as to the

connivance of applicant with the party or his extension of undue

benefits. What has been established is willful commission of

irregularities, which exhibit irresponsibility, amounting to gross

misconduct."

13. According to the Tribunal, the findings of the Enquiry Officer,

at best, establish the charge of insubordination. The Tribunal notices

that the Disciplinary Authority agreed with the findings of the Enquiry

Officer and proceeded to inflict the punishment of compulsory

retirement on the respondent. The Tribunal holds that the charge of

insubordination is extraneous to the memorandum, and that the

respondent has been deprived of a reasonable opportunity to defend

this part of the charge. Therefore, the Tribunal holds, that the

principles of natural justice have been violated and the respondent

has been prejudiced. The Tribunal holds that extraneous factors went

into consideration of the Disciplinary Authority while passing the

penalty order, which has prejudiced the respondent.

14. However, the Tribunal also holds "that the punishment

imposed upon the applicant is not on a specific charge but on a

composite cumulative charge, which inter alia includes

insubordination." The Tribunal observes that it is the bounden duty,

as an obligation, of the Appellate Authority under Rule 27 CCS (CCA)

Rules to have explored the possibility of procedural infirmity in the

Inquiry and that this was not so done by the appellate authority.

15. The Tribunal holds that the allegation of connivance with the

private party to extend undue benefit to them has not been

established by the Inquiry Officer by recording a specific finding. The

Disciplinary Authority and the Appellate Authority have, however,

proceeded on the basis that the said charge stood established. This

means that the Disciplinary Authority and the Appellate Authority

have not concurred with the finding as recorded by the Inquiry

Officer. It holds that despite the said disagreement, the respondent

was not given an opportunity in this regard. Consequently, the

respondent‟s rights as well as the principles of natural justice have

been breached.

16. Ms. Avnish Ahlawat, learned counsel for the petitioner, has

assailed the impugned order passed by the Tribunal by submitting

that the Tribunal proceeded on a fundamentally wrong premise that

the aforesaid charge framed against the respondent has not been

established in his report by the Enquiry Officer. She has taken us

extensively through the record, including the memorandum framing

the article of charge against the respondent, the imputation of

misconduct, the Inquiry report, the order passed by the Disciplinary

Authority, the appeal preferred by the respondent and the order

passed by the Appellate Authority.

17. She submits that it was not the case of the respondent that

the statement of imputation of misconduct in support of article of

charge, even if established, did not make out the charge as framed

against the respondent. Though the representation made by the

respondent upon his being furnished with the Inquiry report has not

been placed on record, from the order dated 26.05.2005 passed by

the Disciplinary Authority she has shown to us the various grounds

taken by the respondent in his defence before the Disciplinary

Authority. She submits that the respondent had not rebutted the

documents and the orders produced in the Inquiry. Instead, his

defence was that he had directed his staff to make entries in O-4

register and never asked them to mention the said writ petitioners as

asami/bhumidhar. She submits that only at the appellate stage, for

the first time, the respondent sought to urge that there was not an

iota of evidence on record to establish the fact that he was acting in

connivance with the private parties. She submits that even this plea

was not correct, inasmuch as, the deliberate, willful, malafide and

conscious conduct of the respondent in recording the entries in favour

of the said writ petitioners in the O-4 register itself leads to the

inference of his connivance with the said writ petitioners as there was

no other reason for him to have blatantly defied the directions of the

SDM/RA (Najafgarh), who repeatedly directed that after conducting an

Inquiry and issuing notice to the Gaon Sabha the entries in P-5 form

(khasra girdawari) be made as per the direction of the High Court.

She submits that it is the deliberateness and willfulness of the said

action, taken in defiance of the orders of his superior, and malafide

abuse of his official position by the respondent to extend undue

advantage to the private parties, which leads to the inference of the

respondent having acted in connivance with the private party.

18. On the other hand, learned counsel for the respondent has

sought to support the decision of the Tribunal. He submits that the

respondent had over 33 years of service and this was the only

occasion in his long service tenure that the respondent had been

chargesheeted. He submits that the fact that the respondent had

twice referred the matter to the SDM/RA (Najafgarh) to seek his view

shows that the respondent was acting bonafide. He submits that the

respondent had reversed the entries made in O-4 register soon after

making the said entries in the first place.

19. He further submits that the charge of the respondent

conniving with the private parties and maliciously abusing his official

position as Tehsildar (Najafgarh) to extent undue advantage to any

party could have been proved only by producing the private parties

with whom the respondent had allegedly connived. No evidence of

connivance has been produced by the petitioners in the Inquiry.

Consequently, the charge of connivance was not established before

the Inquiry Officer. He submits that no finding of connivance has

been returned by the Enquiry Officer. He submits that the order

compulsorily retiring the respondent had been passed by the

Disciplinary Authority and upheld by the Appellate Authority on the

assumption that the said charge of connivance stood duly proved,

which was not the case.

20. He further submits that all that the Tribunal had directed is

the reinstatement of the respondent after setting aside the order

imposing penalty of compulsory retirement. Moreover, the petitioners

have been given the liberty to proceed further against the respondent

from the stage of drawl of the Inquiry report and, insofar as

consequential benefits are concerned, the same have to be worked

out in terms of the Fundamental Rules. He submits that this Court,

therefore, should not interfere with the impugned order in its writ

jurisdiction.

21. Having heard learned counsels for the parties and perused

the record carefully, we are of the view that the impugned order is

contrary to record and cannot be sustained. The fundamental

premise, on which the Tribunal has proceeded to pass the impugned

order is that the Enquiry Officer did not return a finding of the

respondent having connived with the private party and of the

respondent having maliciously abused his official position as Tehsildar

(Nazafgarh) in order to extend undue advantage to the private party.

This finding of the Tribunal, in our view, is patently incorrect.

Pertinently, the charge framed against the respondent was founded

upon documents and record, about which there was hardly any

dispute. The respondent admitted that he had issued directions to

the revenue staff to make entries in favour of the said writ petitioners

in O-4 register. The said direction had been issued by the respondent

without even issuing notice to the Gaon Sabha. Moreover, the said

directions have been issued in proceedings initiated on the

application of the private party only to seek the recording of their

possession in the P-5 form, and despite the repeated orders of the

SDM/RA (Najafgarh) requiring the respondent to act in terms of the

order of the High Court which, as we have already noticed, only dealt

with the aspect of recording of possession in the P-5 Form (Kharsra

Girdawari) and not recording of title in the O-4 register.

22. The Enquiry Officer also returned a finding that the

respondent has sufficient experience as Naib Tehsildar (Najafgarh) for

one and half years and thereafter, as Tehsildar (Najafgarh) for about

2 years and 8 months. He also held that the respondent would have

been aware of the procedural and legal requirements with regard to

the making of entries in revenue records like O-4 register, P-4, P-5

and P-5A etc. The respondent also admitted during his general

examinations that entries relating to only mutation orders issued by

Tehsildar on account of sale, purchase, lease, mortgage, successor in

undisputed cases and in addition, mutation orders issued by SDM/RA

in disputed cases are made in the O-4 register. The respondent also

did not dispute the stated position that cultivatory possession is

entered in the forms P-5 and P-5A and not in the O-4 register. He also

returned a finding that the respondent sought to shift the blame on

the lower functionaries forgetting that he had himself passed orders

on 20.11.2001 for making entries in the O-4 register in favour of the

said writ petitioners. The Inquiry Officer returned a categorical

finding that the respondent "willfully committed irregularities in

implementing the orders of the Hon'ble High Court". He concluded

that this amply exhibits irresponsibility and sheer disregard of the law

and directions/observations of the higher authority i.e. SDM/RA and

"gross misconduct and malafides" on the part of the respondent. He

concluded by observing that "Thus, the charge stands fully proved

beyond any doubt".

23. In our view, it was not necessary for the Inquiry Officer to

again detail the contents of the article of charge i.e. with regard to

the connivance of the respondent with the private party and the

malicious abuse of his official position as Tehsildar (Najafgarh) by him

to extend undue advantage to the private party. The Inquiry Officer

was conscious of what the article of charge was, as he had set it out

on the first page of the Inquiry Report itself. Therefore, it was

sufficient for the Enquiry Officer to observe that "the charge stands

fully proved beyond any doubt".

24. We agree with the submission of Ms. Ahlawat that to prove

the charge of connivance with the private party and the malicious

abuse of his official position by the respondent to extend undue

advantage to the private party, it was not essential that the

petitioners should have produced the beneficiary private parties

during the course of inquiry. Obviously, a party who is a beneficiary

of collusion and connivance with a revenue officer cannot be

expected to come and admit, in the course of the inquiry, the fact of

his collusion and connivance, and make a statement contrary to his

own interests. Even if he comes to the inquiry, and denies the charge

of connivance it has no meaning. Such collusion and connivance is

writ large in the facts of this case, inasmuch as, the Enquiry Officer

has found the conduct of the respondent to be deliberate, willful,

malicious, contrary to the rules and procedures, of which he was

aware, in disregard of the law and the directions/observations of the

SDM/RA. The factum of collusion is, therefore, clearly inferred from

the findings recorded by the Inquiry Officer and that is why he has

held that the charge has been fully proved beyond any doubt. It has

to be kept in mind and this aspect appears to have escaped the

Tribunals consideration, that the standard of proof in a departmental

enquiry is preponderance of probabilities, and not the strict standard

of proof as required in a criminal trial. By application of the said

standard of proof, the inescapable conclusion reached is that the

charge of connivance of the respondent with the private party, and of

his having extended an undue advantage to the private party stands

completely established. The connivance of the respondent is also writ

large from the motivation exhibited by him in blatantly, willfully and

deliberately violating the law, the procedures and the orders of his

superior and granting undue advantage to the said writ petitioners.

There could be no other explanation (the explanation of the said

conduct being bona fide having been rejected), for the conduct of the

respondent. Pertinently, the charge against the respondent was not

of corruption and merely of connivance of the respondent with the

private party. The fact that the private party derived undue

advantage needs no elaboration and is evident from the fact that

entry was made in favour of the private party in O-4 register as an

„Assami‟, which would vest title in the land in the private party.

25. In our view, the Tribunal has not correctly appreciated the

content of the findings recorded by the Inquiry Officer, and merely

because while recording his findings the Inquiry Officer did not use

the words "connivance with a private party", the Tribunal has

proceeded on the assumption that no such finding has been recorded.

26. As we have noticed above, the Tribunal appears to be

contradicting itself. On the one hand, it holds that the respondent

has not been granted an opportunity to meet the charge of

insubordination, (which, according to the Tribunal, has been

established by the Enquiry Officer and is different from the charge of

connivance with a private party) while on the other hand in the same

paragraph (para 19 of the impugned order) the Tribunal holds that

the charge against the respondent is a "composite cumulative charge

which, inter alia, includes insubordination."

27. We are of the view that the impugned order cannot be

sustained as it proceeds on a wholly fallacious basis that the finding

recorded by the Enquiry Officer did not amount to a finding of

respondent‟s connivance with a private party to maliciously abuse his

authority to extend undue advantage to the private party. We,

therefore, do not agree with the finding of the Tribunal that the

Disciplinary Authority disagreed with the findings of the Enquiry

Officer, or took into account extraneous or alien considerations. The

Enquiry Officer, in his report does not say that only a part of the

charge had been proved against the respondent. He does not say

that the charge of respondent‟s connivance with the private party, so

as to extend undue advantage to them has not been proved. On the

contrary, he says that the charge stands established „fully‟, beyond

any doubt.

28. Pertinently, the respondent did not seek to contend, during

the course of inquiry, that the statement of imputation of misconduct

made in support of the charge, even if established, would not

establish the charge of connivance with the private party against the

respondent. The respondent was aware of the list of documents by

which the article of charge was sought to be sustained and the list of

witnesses by whom the article of charge was proposed to be

sustained by the petitioners. No document of any private party was

listed in the list of Documents, and none of the private party, who

were alleged to have connived with the respondent and were

beneficiaries of his conduct, was listed as a witness by the

prosecution. Therefore, the objection sought to be raised by the

respondent could well have been raised at the earliest stage, even

before the start of the enquiry. As the same was raised at a highly

belated stage in his appeal for the first time, in any event, the same

could not have been sustained. Had the said objection been taken in

a timely manner before the Enquiry Officer, the petitioners could have

obviated the said hyper technical objection, which even otherwise has

no merit, at that stage itself. Pertinently, when the aforesaid

objection was raised by the respondent in his appeal, the same was

dealt with by the appellate authority by holding that the same "does

not hold water considering that the appellant blatantly disobeyed the

orders of the SDM/RA and exceeded his powers as Tehsildar while

issuing directions for making an entry in O-4 register".

29. We also find no merit in the submission of learned counsel

for the respondent that this Court should not interfere with the

impugned order as the petitioners have been permitted to proceed

against the respondent after reinstating him in service and also

because the consequential benefits are to be paid only as per the

Fundamental Rules. Looking to the conduct of the respondent, we

are of the view that by imposing the penalty of compulsory retirement

after the respondent had rendered over 33 years of service, the

petitioners have taken a lenient view and have practically let off the

respondent.

30. For the aforesaid reasons, we set aside the impugned order

passed by the Tribunal in O.A. No.1366/2006 on 23.04.2007 and

restore the order of compulsory retirement from the service passed

against the respondent.

31. Parties are left to bear their own costs.

VIPIN SANGHI, J.

NOVEMBER 10, 2009                                        ANIL KUMAR, J.
„dp/rsk‟