Gujarat High Court

Vinodkumar Kantilal Tanna vs District Collector, Gandhinagar on 28 March, 2022

Bench: Biren Vaishnav

     C/SCA/1316/2021                               JUDGMENT DATED: 28/03/2022



             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 1316 of 2021


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE BIREN VAISHNAV

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1     Whether Reporters of Local Papers may be allowed
      to see the judgment ?

2     To be referred to the Reporter or not ?

3     Whether their Lordships wish to see the fair copy
      of the judgment ?

4     Whether this case involves a substantial question
      of law as to the interpretation of the Constitution
      of India or any order made thereunder ?

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                          VINODKUMAR KANTILAL TANNA
                                     Versus
                       DISTRICT COLLECTOR, GANDHINAGAR
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Appearance:
MR MEHUL SHARAD SHAH(773) for the Petitioner(s) No. 1
MR.KURVEN DESAI, AGP for the Respondent(s) No. 1
NOTICE SERVED for the Respondent(s) No. 2
SERVED BY RPAD (N) for the Respondent(s) No. 2
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    CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV

                               Date : 28/03/2022

                               ORAL JUDGMENT

1. RULE returnable forthwith. Mr.Kurven Desai

learned AGP waives service of notice of Rule on

behalf of the respondent State.

C/SCA/1316/2021 JUDGMENT DATED: 28/03/2022

2. With the consent of learned advocates for the

respective parties, the petition is taken up for final

hearing.

3. By way of this petition under Article 226 of the

Constitution of India, the challenge is to the order of

the Tribunal viz. Gujarat Civil Services Tribunal,

Gandhinagar, in Appeal No.164 of 2015, by which,

the Tribunal, confirmed the order of the District

Collector dated 20.02.2015. By the aforesaid orders,

the petitioner was imposed a penalty of stoppage of

two increments with future effect.

4. Facts in brief would indicate that the petitioner was

working as a Circle Officer. While he was so

working, a show cause notice dated 24.04.2013 was

issued to the petitioner. According to the show

cause notice, while the petitioner was serving as a

Circle Officer at Mamlatdar office, Gandhinagar, one

entry no.13016 was mutated in the revenue record

based on the registered sale deed dated 02.12.2011.

The entry was thereafter cancelled by the

Mamlatdar, Gandhinagar, on 28.03.2012. Since the

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entry was thereafter again mutated by the

Mamlatdar, the petitioner certified the same. The

case of the employer is that the petitioner did not

take care in certifying an entry which according to

the department was earlier cancelled. A response

was filed by the petitioner on 01.05.2013 pointing

out that the petitioner was aware of the earlier order

of the Mamlatdar, rejecting entry no.13016 and only

when he received the entry for certification on

verifying that the purchaser was an agriculturist, he

certified the same.

5. Mr.Mehul Shah, learned advocate for the petitioner

amongst other arguments, would submit that apart

from the fact that he not being aware of the earlier

order of the Mamlatdar, the petitioner was acting in

his quasi-judicial capacity. Even otherwise, the very

entry which the petitioner certified was confirmed

by the SSRD vide an order dated 16.08.2018. The

action having attained finality inasmuch as having

been tested judicially by the highest authority of the

State on the judicial side, no misconduct can be

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attributed to the petitioner.

6. On approaching the Tribunal when the order of

penalty was passed, the Tribunal by the order

impugned in the petition merely reiterated the stand

of the department and opined that since negligence

was writ large on the conduct of the petitioner

inasmuch as, he did not exercise due caution in

certifying the entry and once the inquiry officer has

held the charge to be proved, there was no reason

for the Tribunal to interfere with the order of

penalty.

7. Reliance was placed on the decision in case of

Naresh Kumar v. The State of Jharkhand

rendered in W.P. (S) No.7354 of 2019, delivered by a

coordinate bench of the Jharkhand High Court,

wherein, a penalty order was under challenge. One

of the grounds on which the order of penalty was

challenged was that an exercise of mutation carried

out by revenue officer was in exercise of his judicial

capacity. In exercise of his extraneous consideration,

Mr.Shah would submit that the penalty was

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misconceived.

8. Mr.Kurven Desai learned AGP for the State would

draw the attention of the Court to the reply filed on

behalf of the State by the Collector, Gandhinagar.

Once the entry was cancelled by the competent

authority, Mamlatdar on 28.03.2012, according to

the department, the Circle Officer has no power or

jurisdiction to certify the entry. From the

cancellation of the entry, an appeal has to be filed

under Rule 108 of the Gujarat Land Revenue Rules

and it was the duty of the Circle Officer to act with

due diligence and certify the entry after verifying all

records which the petitioner did not.

9. Mr.Desai would submit that a penalty of stoppage of

two increments to the petitioner with future effect

was only on the ground that the petitioner had

certified entry of sale deed beyond his power and

therefore had shown serious negligence in discharge

of his duties. This was a misconduct as defined

under Rule 3 of the Gujarat Civil Services (Conduct)

Rules.

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10. Perusal of the order of the Tribunal in context of the

charge levelled against the petitioner would indicate

that the department was of the view that the

petitioner had committed a misconduct as Circle

Officer at the Mamlatdar office. An entry 13016 was

mutated in the revenue record on the basis of the

registered sale deed dated 02.12.2011. The stand of

the department in the charge-sheet was once that

entry was cancelled by the Mamlatdar,

Gandhinagar, on 28.03.2012, the petitioner could

not have certified such entry and and mutate the

same in the revenue record on 07.12.2012. The

action of the petitioner as a Circle Officer in

certifying the entry despite it having been cancelled

by the Mamlatdar was an act of negligence in

discharge of his duties as a Circle Officer.

11. Though the matter of certification of entries and

mutation of entries are actions which can be subject

to appeals in the hierarchy of revenue laws, a

coordinate bench of the Jharkhand High Court while

discussing the role of the Revenue Officer in

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discharge of his duties and certifying entries has

held as under:

"17. With regard to continuation of proceedings after retirement, learned counsel for the respondent-State relied on judgment in the case of "Jag Narain Singh Vs. State of Jharkhand & others" reported in 2015 SCC Online Jhar 3296 in which in para 5, the Hon'ble Supreme Court has held as under:-

"5.It however appears from considering the submissions of the parties that apprehension of the petitioner for continuance of the Departmental Proceeding on that ground is misplaced. Pension Rules do not lay down a procedure for conduct of Departmental Proceeding. If an employee has retired during the pendency of a Departmental Proceeding, the only difference that could result is in the nature of punishment which in that case, would be governed by the provisions of Jharkhand Pension Rules. Therefore, when the proceedings initiated at the time of his service did not end up finally before his retirement, they would be deemed to have continued after retirement of the petitioner. This proposition is also well settled by the Full Bench judgment rendered by the Patna High Court in the case of Shri Krishna Singh V. Union of India [2011 (1) PLJR 665]. Counsel for the parties are not able to apprise the Court as to whether Departmental Proceeding has been concluded or whether Inquiry Officer has finally submitted his report."

18. The enquiry report has been annexed as Annexuer-6 to the writ petition. The enquiry officer with regard to the Garmajurwa Malik

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land has stated that the jamabandi of the said land was registered in the year, 1965-66 and on that basis the petitioner has mutated the land only to that effect enquiry officer has given finding that there is financial loss to the government. The enquiry officer has recorded that so far as the Kaiser-e- hind land is concerned which was on the basis of Partition Suit No. 185 of 1966, the order of mutation was passed. On perusal of enquiry report it transpires that not even a single witness has been examined to prove the charges against the petitioner. The documents relied in the enquiry proceeding was required to be proved by way of adducing evidence. For the Garmajurwa Malik land, petitioner passed mutation order on the basis of running name of Chandan Sao and Bharat Sao. The name of Chandan Sao and Bharat Sao was recorded in Register-II on 23.01.1989. Pursuant to partition of land from Chandan Sao and Bharat Sao to one Jai Bhawani Co- operative Grih Nirman Samiti, mutation was done for the same partition was incumbent to the petitioner. The petitioner only followed prescribed procedure and looked into the Register-II record and passed the order. With regard to Kaiser-e-hind, mutation was done by the petitioner on the basis of final decree in Partition Suit No. 185 of 1966. In that view of the matter and considering the Circular of 1997 that can be challenged only in suit before competent civil court if possession of more than 12 years is there. The petitioner was not the authority to decide and to file suit. The judgment passed in quasi-judicial can be corrected by preferring statutory appeal and review. In the light of these discussions the Court has to consider whether for deciding the mutation case, is there any misconduct on the part of the petitioner or not ? On perusal of record, it transpires that the petitioner has followed all

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the statutory procedures for passing mutation order before the petitioner was not entitle to empower transfer of land in question. The petitioner has acted on the basis of Register-II. The mutation order was passed on the basis of possession and mutation itself does not show right, title and interest that has been considered by a Co-ordinate Bench of this Court in "Pradip Prasad" (case). The petitioner passed order on the basis of possession of Chandan Sao and Bharat Sao and after looking into the possession nor manner of possession, which has been considered in the case of "Lal Muni Devi" (supra) and Depta Tewari (supa). It is well-settled proposition of law that mutation does not create any right and title in the property. It is simply an evidence of possession for the land. This aspect of the matter has been considered in the case of "Smt. Urmila Prasad" (supra). Thus, it transpires that the Department has proceeded against the petitioner for a misconduct which cannot be said misconduct in view of duties prescribed to the petitioner and the record suggest that the petitioner has acted in terms of prescribed procedure for passing mutation order. The proceeding was initiated under Rule 55 of Civil Services (Classification, Control and Appeal) Rules, 1930 and after retirement of the petitioner it was not converted under Rule 43(b) of the Jharkhand Pension Rules and merely it has been observed by the authorities that the proceeding is same. For taking shelter of Rule, 43(b) of the Jharkhand Pension Rules, financial loss has to be determined which has not been done in the case in hand and Rule 43(b) of the Jharkhand Pension Rules has been invoked against the petitioner which is not in accordance with law in view of the facts stated hereinabove. So far as the judgement relied by the learned counsel for the respondent-State in "N. Gangarai"

(supra) that is not in dispute with regard to

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judicial review. However, the case in hand, in the facts and circumstances of the present case, this judgement is not applicable as in the present case misconduct itself has not been proved. So far as the judgment in the case of " Heem Singh" (supra) relied by the learned counsel for the respondent-State is on different footing. In that case, criminal case arises out of regular trial where in the present case, the criminal case has been quashed by the High Court under section 482 of the Cr.P.C. This judgment is not helping the respondent-State. The judgment relied by the learned counsel for the respondent-State in the case of "K. Rajappa Menon" (supra) was prior to 42nd amendment of the Constitution of India. The Hon'ble Supreme Court in the case of " Managing Director, ECIL, Hyderabad" Vs. Karunakar" reported in (1993) 4 SCC 27 in para 25 & 26 has held as under:-

"25. While the right to represent against the findings in the report is part of the reasonable opportunity available during the first stage of the inquiry viz., before the disciplinary authority takes into consideration the findings in the report, the right to show cause against the penalty proposed belongs to the second stage when the disciplinary authority has considered the findings in the report and has come to the conclusion with regard to the guilt of the employee and proposes to award penalty on the basis of its conclusions. The first right is the right to prove innocence. The second right is to plead for either no penalty or a lesser penalty although the conclusion regarding the guilt is accepted. It is the second right exercisable at the second stage which was taken away by the Forty-second Amendment.

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26. The reason why the right to receive the report of the enquiry officer is considered an essential part of the reasonable opportunity at the first stage and also a principle of natural justice is that the findings recorded by the enquiry officer form an important material before the disciplinary authority which along with the evidence is taken into consideration by it to come to its conclusions. It is difficult to say in advance, to what extent the said findings including the punishment, if any, recommended in the report would influence the disciplinary authority while drawing its conclusions. The findings further might have been recorded without considering the relevant evidence on record, or by misconstruing it or unsupported by it. If such a finding is to be one of the documents to be considered by the disciplinary authority, the principles of natural justice require that the employee should have a fair opportunity to meet, explain and controvert it before he is condemned. It is negation of the tenets of justice and a denial of fair opportunity to the employee to consider the findings recorded by a third party like the enquiry officer without giving the employee an opportunity to reply to it. Although it is true that the disciplinary authority is supposed to arrive at its own findings on the basis of the evidence recorded in the inquiry, it is also equally true that the disciplinary authority takes into consideration the findings recorded by the enquiry officer along with the evidence on record. In the circumstances, the findings of the enquiry officer do constitute an important material before the disciplinary authority which is likely to influence its conclusions. If the enquiry officer were only to record the evidence

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and forward the same to the disciplinary authority, that would not constitute any additional material before the disciplinary authority of which the delinquent employee has no knowledge. However, when the enquiry officer goes further and records his findings, as stated above, which may or may not be based on the evidence on record or are contrary to the same or in ignorance of it, such findings are an additional material unknown to the employee but are taken into consideration by the disciplinary authority while arriving at its conclusions. Both the dictates of the reasonable opportunity as well as the principles of natural justice, therefore, require that before the disciplinary authority comes to its own conclusions, the delinquent employee should have an opportunity to reply to the enquiry officer's findings. The disciplinary authority is then required to consider the evidence, the report of the enquiry officer and the representation of the employee against it."

19. So far as the judgment relied by the learned counsel for the respondent-State in " K.K. Dhawan" (supra) is concerned, in that case it was considered that the officer who exercises judicial or quasi-judicial powers if the person acts negligently or recklessly in order to confer undue favour to a person is not acting as a judge which is not subject matter in the case in hand. In the case of "Arvind Ballabh Chaubey" (supra) relied by the learned counsel for the respondent-State, on the prima facie materials on record, the Court has come to the conclusion in that case that the petitioner has passed the order negligently against the interest of justice. In "Jag Narain Singh" (supra) relied by the learned counsel for the respondent-State, the Court directed to

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conclude the disciplinary proceeding to logical conclusion and the petitioner of that case was directed to co-operate with the disciplinary proceeding.

20. As a cumulative effect of the discussions made here-in-above, the impugned order dated 13.11.2019 is quashed. The petitioner shall be entitled for consequential benefits.

21. The writ petition stands allowed and disposed of."

12. While deciding the issue, the Jharkhand High Court

took into consideration in case of Union of India &

Others Vs. K.K. Dhawan reported in (1993) 2

SCC 56. It would be relevant to reproduce

paragraph no.28 of the judgment.

"28. Certainly, therefore, the officer who exercises judicial or quasi-judicial powers acts negligently or recklessly or in order to confer undue favour on a person is not acting as a Judge. Accordingly, the contention of the respondent has to be rejected. It is important to bear in mind that in the present case, we are not concerned with the correctness or legality of the decision of the respondent but the conduct of the respondent in discharge of his duties as an officer. The legality of the orders with reference to the nine assessments may be questioned in appeal or revision under the Act. But we have no doubt in our mind that the Government is not precluded from taking the disciplinary action for violation of the Conduct Rules. Thus, we conclude that the disciplinary action can be taken in the following cases:

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(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".

13. In that case while dealing with the delinquency in

case of an Income Tax Officer who was exercising

quasi judicial powers, the Court opined that unless

and until the government was of the opinion that

while exercising quasi judicial powers, act was

actuated by corrupt motive and extraneous

consideration, it was not open for the disciplinary

authority to expose an employee to disciplinary

proceedings.

14. In the facts of the present case, what is found is that

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the action of the petitioners certifying an entry had