Jag Narain Singh vs The State Of Jharkhand
2021 Latest Caselaw 153 Jhar

                                     1

 IN THE HIGH COURT OF JHARKHAND AT RANCHI
                   W.P.(S) No. 5778 of 2015
     Jag Narain Singh                             ..... Petitioner
                            Versus
    1. The State of Jharkhand.
    2. The Principal Secretary, Personnel, Administrative Reforms
       and Rajbhasa Department, Government of Jharkhand,
       Project Building, Post Office and Police Station-Dhurwa,
       Ranchi.
    3. The Deputy Secretary, Personnel, Administrative Reforms
       and Rajbhasa Department, Government of Jharkhand,
       Project Building, Post Office and Police Station-Dhurwa,
       Ranchi.                              .....   Respondents
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CORAM: HON'BLE MR. JUSTICE DEEPAK ROSHAN

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For the Petitioner : Mr. Saurabh Shekhar, Advocate For the Respondent : Mr. Mukesh Kr. Sinha, Advocate

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09/Dated: 12th January, 2021 Heard learned counsel for the parties through V.C.

2. The instant writ application has been preferred by

the petitioner praying for quashing the order dated

09.10.2015, whereby punishment was imposed under Rule

43(B) of Bihar Pension Rules and it was ordered that 10%

of pension was to be withheld for a period of five years.

3. Mr. Saurabh Shekhar, learned counsel for the

petitioner submits that while the petitioner was in service, a

decision was taken to initiate a departmental proceeding

against this petitioner vide order dated 08.11.2006 in

connection with Mutation of CNT land to a non-tribal and a

charge-sheet (izi=& d) was issued alleging therein as under:-

"(i) In village Hundru, Khata No. 312-3.53 Acre shows as Bakast Bhuinhari Land in the name of Birsa Pahaan in R.S.- Survey Khatian, also registered in his name in Register II,-

for 6 Kattha of this land- Zamabandi was illegally allowed in

the name of Non-tribal, vide Daakhil Khariz Case No. 589 R 27/86-87.

(ii) In village Hundru, Khata No. 316, different plots, Land shows in the name of Mahaliya Pahann in R.S. Survey Khatian, also registered in the name of Birsa Pahan in Register II- later on land was transferred to Non-tribal (Chhedi Khan), Zamabandi in the name of non-tribal happened through case no. 15 R/70-71, the land was thereafter further transferred in succession and succession Zamabandi Case no. 1765 R 27/77-78 ( in the name of Badal Khan) was concluded.

3.69 acre of this land was thereafter again transferred to non-tribals and this time Zamabandi was finalized by the petitioner in the year 1986-87. It is alleged that the latest Zamabandis of 1986-87 were illegally allowed in the name of Non-tribals, vide Daakhil Khariz Case No. 589 R 27/86-87 and others, by the petitioner."

4. Learned counsel contended that all the above lands

were Bhuinhari lands, and the Zamindari over these lands

were not vested in the State Government. The allegation in

all cases is that the names of the tenants were replaced by

the petitioner while performing his duty as Circle Officer in

Dakhil Khariz case and it has further been alleged that the

said mutation is in violation to Section 46 and Section 49 of

the CNT Act, and transfer of tribal lands in all the above

cases had taken place without the permission of Deputy

Commissioner; as such, it was concluded by the

disciplinary authority that the Dakhil Khariz done by this

petitioner, on the basis of irregular transfer is irregular and

against the provisions of CNT Act.

5. The departmental proceeding culminated in the

impugned order (Annexure-12). Mr. Shekhar contended

that the mutation of any land does not create any right title

and interest over the property and there cannot be any

illegal transfer done beyond the provisions of CNT Act. He

further contended that in CNT Act there is no provision of

mutation and the Dakhil Khariz/Mutation is only done

after transfer of land and its registration.

He submits that in the instant case, the application

for the Daakhil Khariz/Mutation was inspected and

scrutinized by the Karamchari and the Circle Inspector and

after this process, the matter was placed before him and

proceeding for mutation in the name of the owner was

initiated by publishing a general public notice and

thereafter, the name of the purchaser was mutated. He

contended that in all this procedure, no irregularity or

misconduct has been committed by this petitioner. He

further submits that no any person has even challenged the

said mutation by filing any appeal before the competent

authority.

He contended that mutation does not create any

right title and interest over the land; rather it only relates to

the land revenue to be paid to the Government and proof of

possession. In other words; one who is in possession of the

land will pay the rent to the Government. The incorporation

of provisions of CNT Act by the respondents in proving the

charge against this petitioner is totally misplaced and

against the provision of law.

He further submits that in a similar case and

circumstances a proceeding was initiated against one co-

employee namely, Naresh Kumar who was also a Circle

Officer who has also done mutation in favor of a Gair

Majarua land and proceedings were initiated against him

also and the Co-ordinate Bench of this Court has quashed

the order of punishment. He fairly submits that the

difference between the case of Naresh Kumar and the

instant case is only with regard to nature of land i.e. in the

case of Naresh Kumar the land was Gair Majarua land

whereas in the instant case the land was tribal land. So far

as the charge is concerned; it was same and similar and

this Court after dealing several judgments quashed the

impugned order and held that the petitioner shall be

entitled for all consequential benefits.

6. Learned counsel contended that since the law is well

settled that mutation does not create any right title and

interest over the property and it is simply an evidence of

possession of the land; as such, the entire proceeding

initiated against this petitioner and the order of

punishment is misplaced in the eye of law.

7. Before concluding his argument, he referred to a

judgment as annexed in the supplementary affidavit dated

02.07.2019 and submits that even the basis of the charge

that a tribal land has been mutated in the name of non-

tribal has no substance, inasmuch as, the non-tribal filed a

writ application before this Court, for the same portion of

land for quashing the order passed by the SRA Court for

restoration and the same was allowed in favour of the non-

tribal-petitioners of W.P.(C) No. 225 of 2003.

8. In order to buttress his argument; learned counsel

relied upon the following judgments:-

(i) Lal Muni Devi Vs. The State of Bihar and Ors, reported in 1988 PLJR 174.

(ii) Depta Tewari and Ors. Vs. State of Bihar and Ors, reported in 1987 PLJR 1037

(iii) Sitra Ram Choubey & Ors. Vs. State of Bihar and Ors, reported in 1993 (2) PLJR 255 and

(iv) Smt Urmila Prasad Vs. The State of Jharkhand & Ors, in W.P.(C) No. 2732 of 2003.

Relying upon the aforesaid facts and judgments,

learned counsel for the petitioner submits that the

impugned order deserves to be quashed and set aside.

9. A counter-affidavit has been filed in this case, Mr.

Mukesh Kr. Sinha relying upon the counter-affidavit

contended that there is no irregularity in the procedure and

in view of specific averments made in para 9 to 11 of the

counter affidavit, the impugned order deserves to be

sustained. For better appreciation of this case; para 9, 10

and 11 of the counter affidavit dated 05.05.2016 is quoted

herein below;

"9. That Smt. Rapaz submitted her enquiry report vide her letter no. 86, dated 20.03.2014 in which the charges leveled against the petitioner were reported as proved. The allegations against the petitioner, his defense statement and the enquiry report of the Conducting Officer were reviewed and analysed by the department and agreeing with the report of the Conducting Officer, deduction of 10% amount from the monthly pension of the petitioner for the period of 5 years was proposed to be awarded under Rule 43(B) of Pension Rules.

10. That in the light of this decision, the second show cause was issued to the petitioner vide letter no. 1495, dated 19.02.2015. He submitted his reply vide letter dated 03.03.2015, which was reviewed by the department. In course of review, it was found that his reply is bereft of any new fact, which could exonerate him from the charges and required any change in the proposed punishment. So, confirming the proposed punished, it was decided to award it to him. Accordingly, the opinion of Jharkhand Public Service Commission was sough vide department's letter No. 4538, dated 21.05.2015 under provision-(c) of the Rule-43 (B) of the Pension Rules on the penalty going to be awarded to him. The Commission communicated his assent vide letter no. 1894, dated 10.08.2015. Finally, the said penalty was awarded to the petitioner vide department's resolution no. 8910, dated 09.10.2015.

11. That in reply to paragraph-1 of the writ application it is stated and submitted that the prayer of the petitioner is not acceptable. The Deputy Commissioner,

Ranchi vide his letter no. 123(i)/rev., dated 19.07.2000 sent a memo of charges in Form-'K' against the petitioner relating to his tenure as the Circle Officer, Sahahar Anchal, Ranchi alleging that the petitioner approved mutation of tribal Bakast Bhuinhari lands in favour of non-tribal vide different mutation cases. It was also alleged that the sale of land by tribal raiyats without permission of the Deputy Commissioner of the concerned district is prohibited under Section-46 and 48 of Chhotanagpur Tenancy Act. So, the mutation approved by the petitioner is illegal and against the provisions of the Chhotanagpur Tenancy Act because the sale of the land was illegal.

The petitioner was asked for explanation for the said charges, but instead of submitting his explanation, he demanded for certain records. The case of the petitioner was reviewed by the department and it was decided to institute the departmental proceeding against him in view of the gravity of the charges. The departmental proceeding was conducted against him vide resolution no. 5972, dated 08.11.2006 and Smt. Mridula Sinha, I.A.S the then Secretary, Cooperative Department, Jharkhand was appointed the Conducting Officer. Later on, Smt. Shiela Kisku Rapaz, the retired I.A.S, the Departmental Enquiry Officer, Jharkhand was appointed the Conducting Officer vide Resolution No. 8275, dated 17.07.2012 in place of Smt. Sinha.

Smt. Rapaz submitted her inquiry report vide her letter no. 86, dated 20.03.2014 in which the charges leveled against the petitioner were reported as proved. The allegations against the petitioner, his defense statement and the enquiry report of the Conducting Officer were reviewed and analyzed by the department and agreeing with the report of the Conducting Officer, deduction of 10% amount from the monthly pension of the petitioner for the period of 5

years was proposed to be awarded under Rule-43(B) of Pension Rules.

In the light of this decision, the second show cause was issued to the petitioner and after getting his reply the matter was reviewed. Finally after getting assent of the Jharkhand Public Service Commissioner, the said penalty was awarded to the petitioner vide department's resolution no. 8910 dated 09.10.2015."

10. Learned counsel for the State relied upon the

judgments of the Hon'ble Apex Court in the case of "Union

of India and others Vs. K. Rajappa Menon" reported in

(1969) 2 SCR 343 and also in the case of "Arvind Ballabh

Chaubey Vs. State of Jharkhand & Others", reported in

2013 SCC Online Jhar. 1757.

He further referred to a judgment passed by the

Hon'ble Apex Court in the case of "Union of India and Ors.

Vs. K.K.Dhawan," reported in (1993) 2 SCC 56, wherein the

Hon'ble Court has held that in our view, an argument that

no disciplinary action can be taken in regard to action

taken or purported to be done in course of judicial or quasi-

judicial proceeding is not correct.

11. Having heard learned counsel for the parties and

after going through the averments made in the respective

affidavits, it appears that a departmental proceeding was

initiated vide order dated 08.11.2006 and the Inquiry

Officer had submitted its report on 20.03.2014 holding that

the tribal land has been renamed in the name of non-tribal

and the Mutation/Dakhil Kharij of the land sold out to non-

tribal is against the provision of CNT Act.

12. At the outset, I would like to refer the judgment of

Lal Muni Devi (Supra), wherein this Court has held at

para 5 of the judgment as under:-

"5. The learned counsel appearing on behalf of the petitioner has raised various contentions. However, this petition, in my opinion, can be disposed of on a short ground. From a perusal of the order as contained in Annexure-7 to the writ application which was passed by the respondent no. 2, it would appear that one of the grounds upon which the said order is based is that the petitioner was in possession of the excess land. i.e. evidently more than permissible under the provision of Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus land) Act. 1961. In the said order it has further been found that the local enquiry was made and the land was found Parti even on the date of inspection. In my opinion, both the grounds could not have (sic) taken into consideration by the said authority while passing the impugned orders. In my opinion the question as to whether a person is in possession of a particular land or not does not depend upon the nature of the land i.e. to say whether the same was lying fallow on the date of inspection or not. In my opinion, for the purpose of entering the name of some person in the Jamabandi, what is necessary, is to find out the actual physical possession and not the manner of possession. Further, the Commissioner in the impugned order could not have based his decision on the ground that the petitioner is in possession of excess land. The question as to whether the petitioner is in possession of the land which is said to be in excess than prescribed under the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961 or not, the same could only be determined in a proper proceeding initiated under the said Act. Such a question which falls for determination by a competent authority under the provision of the said Act cannot be taken recourse to by the revenue authorities white disposing of a

matter relating to mutation."

13. Further in the case of Depta Tewari and Ors

(Supra) the Co-ordinate Bench of this Court after looking to

the facts and circumstances of the case has held that the

respondents rightly decided the case of respective parties,

on the basis of possession. It was further held that the

order with regard to mutation has to be passed, on the

basis of possession only, inasmuch as, the authorities

concerned cannot decide in such a case a disputed and

complicated question of title. For better appreciation para 6

and 9 of the aforesaid judgment is quoted herein below;

"6. From a perusal of the impugned order it appears that the respondent nos 2 and 3 have rightly decided the case of the respective parties on the basis of the possession. It is not disputed nor can it be in law, that an order with regard to mutation has to be passed on the basis of possession only inasmuch as the authorities concerned cannot decide in such a case a disputed and complicated question of title. The findings of fact by aforementioned respondents having been arrived after taking into consideration all relevant fact and as such I am not in a position to interfere therewith.

9. In my view the Officers passing the orders on mutation matter do not exercise any judicial or quasi judicial function. They arrive at a decision of possession on the basis of the evidence placed before them including the reports of the officers concerned. Respondent nos. 2 and 3, in my opinion, cannot be said to be a 'Court' within the meaning of section 3 of the Evidence Act, and as such it was not necessary for them to follow the procedure laid down under the Evidence Act, for the purpose of proving any document or otherwise."

14. Now the issue is no more res integra, inasmuch as,

mutation does not create any right tile and interest over the

property. It is simply an evidence of possession of land.

Further, the charge alleged against this petitioner is not

with respect to any male practice or misappropriation;

rather it has been only alleged that the land was

transferred from a tribal to non-tribal persons. In this

regard it is not out of place to say that the present matter is

only with regard to mutation, it is not about illegal transfer

done beyond provisions of CNT act and the same is not

alleged against the petitioner.

There is no doubt that CNT Act prohibits the

transfer, but it does not say anything about mutation for

the obvious reason that mutation is only an enquiry of fact

into one's possession of land and is not a certificate of good

or bad transfer of land, correctness of transfer of land as

per CNT act and factum of possession of land certified by

mutation, are two different things.

Further, Dakhil/Kharij-Mutation is done only after

transfer of land and after its investigation. From the records

and averments available, it appears that after filing of the

application for Dakhil Kharij/Mutation, the land was

inspected and scrutinized by Karmachari and Circle

Inspector and the same was placed before this petitioner; as

such, there was no any lacuna in the proceeding. Above all,

there is no such charge with respect to procedural

irregularity in mutating the name in favor of non-tribal and

also the charge alleged against this petitioner is not with

respect to any male practice or misappropriation.

Apart from the aforesaid finding, this Court in a

similar case after dealing with several judgments has

quashed the order of punishment against that petitioner,

wherein the charges were similar and the only difference

was with respect to nature of land, inasmuch as, in the

instant case; the land was a tribal land whereas in the said

case it was a Gair Majrua Land.

15. The judgment relied upon by the defence counsel has

already been dealt by the Co-ordinate Bench of this Court

in the case of Naresh Kumar Vs. State of Bihar W.P(S)

No. 7354 of 2019. Para 18 of the said judgment is quoted

herein below;

"18. The enquiry report has been annexed as Annexuer-6

to the writ petition. The enquiry officer with regard to the

Garmajurwa Malik land has stated that the jamabandi of

the said land was registered in the year, 1965-66 and on

that basis the petitioner has mutated the land only to that

effect enquiry officer has given finding that there is

financial loss to the government. The enquiry officer has

recorded that so far as the Kaiser-e- hind land is

concerned which was on the basis of Partition Suit No.

185 of 1966, the order of mutation was passed. On

perusal of enquiry report it transpires that not even a

single witness has been examined to prove the charges

against the petitioner. The documents relied in the enquiry

proceeding was required to be proved by way of adducing

evidence. For the Garmajurwa Malik land, petitioner

passed mutation order on the basis of running name of

Chandan Sao and Bharat Sao. The name of Chandan Sao

and Bharat Sao was recorded in Register-II on

23.01.1989. Pursuant to partition of land from Chandan

Sao and Bharat Sao to one Jai Bhawani Co- operative

Grih Nirman Samiti, mutation was done for the same

partition was incumbent to the petitioner. The petitioner

only followed prescribed procedure and looked into the

Register-II record and passed the order. With regard to

Kaiser-e-hind, mutation was done by the petitioner on the

basis of final decree in Partition Suit No. 185 of 1966. In

that view of the matter and considering the Circular of

1997 that can be challenged only in suit before competent

civil court if possession of more than 12 years is there.

The petitioner was not the authority to decide and to file

suit. The judgment passed in quasi-judicial can be

corrected by preferring statutory appeal and review. In

the light of these discussions the Court has to consider

whether for deciding the mutation case, is there any

misconduct on the part of the petitioner or not ? On

perusal of record, it transpires that the petitioner has

followed all the statutory procedures for passing mutation

order before the petitioner was not entitle to empower

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

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.

26.The reason why the right to receive the report of the enquiry officer is considered an essential part of the reasonable opportunity at the first stage and also a principle of natural justice is that the findings recorded by the enquiry officer form an important material before the disciplinary authority which alongwith the evidence is taken into consideration by it to come to its conclusions. It is difficult to say in advance, to what extent the said findings including the punishment, if any, recommended in the report would influence the disciplinary authority while drawing its conclusions. The findings further might have been recorded without considering the relevant evidence on record, or by misconstruing it or unsupported by it. If such a finding is to be one of the documents to be considered by the disciplinary authority, the principles of natural justice require that the employee should have a fair opportunity to meet, explain and controvert it before he is condemned. It is negation of the tenets of justice and a denial of fair opportunity to the employee to consider the findings recorded by a third party like the enquiry officer without giving the employee an opportunity to reply to it. Although it is true that the disciplinary authority is supposed to arrive at its own findings on the basis of the evidence recorded in the inquiry, it is also equally true that the disciplinary authority takes into consideration the findings recorded by the enquiry officer along with the evidence on record. In the circumstances, the findings of the enquiry officer do constitute an important material before the disciplinary authority which is likely to influence its conclusions. If the enquiry officer were only to record the evidence and forward the same to the disciplinary authority, that would not constitute any additional material before the disciplinary authority of which the delinquent employee has no knowledge. However, when the enquiry officer goes further and records his findings, as stated above, which may or may not be based on the evidence on record or are contrary

to the same or in ignorance of it, such findings are an additional material unknown to the employee but are taken into consideration by the disciplinary authority while arriving at its conclusions. Both the dictates of the reasonable opportunity as well as the principles of natural justice, therefore, require that before the disciplinary authority comes to its own conclusions, the delinquent employee should have an opportunity to reply to the enquiry officer's findings. The disciplinary authority is then required to consider the evidence, the report of the enquiry officer and the representation of the employee against it."

16. In view of the aforesaid discussions and the judicial

pronouncements, the impugned order dated 09.10.2015, is

hereby, quashed and set aside. The respondents are

directed to extend all consequential benefits for which the

petitioner has been prevented pursuant to the impugned

order, within a period of four months from the date of

receipt/production of the copy of this order.

17. With the aforesaid observations and direction, the

instants writ application stands allowed and disposed of.

(Deepak Roshan, J.) Amardeep/