Madhya Pradesh High Court
Hari Singh Dhurvey vs The State Of Madhya Pradesh on 20 February, 2025
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IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE ASHISH SHROTI
ON THE 20th OF FEBRUARY, 2025
WRIT PETITION No. 5264 of 2025
HARI SINGH DHURVEY
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Vipin Yadav - Advocate for the petitioner.
Shri Yogesh Dhande - Government Advocate for the respondent/State.
ORDER
Invoking Article 226 of the Constitution of India the petitioner has
filed instant writ petition challenging the order dated 13.09.2024 (Annexure
P/6), whereby he has been placed under suspension on account of certain
irregularities and illegalities found against him. The petitioner has also
challenged the charge-sheet dated 23.10.2024 (Annexure P/7).
2. The facts necessary for decision of the instant writ petition are that
one Mahaveer Prasad was recorded Bhumiswami of certain piece of land. It
appears that he executed a Will on 14.02.1970 in favour of one Shyam
Narayan Choubey. The said Shyam Narayan Choubey made an application
for mutation of his name in the revenue record on the strength of the Will.
The petitioner was posted as Tahsildar Adhartal, District-Jabalpur and
accordingly, the application was placed before him for mutation. The
petitioner registered a revenue case which ultimately culminated into passing
of the order dated 08.08.2023 of mutation in favour of Shyam Narayan
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Choubey. It is gathered from the record that Shri Shyam Narayan Choubey
expired on 30.05.2024, therefore his legal heirs applied for fauti namantaran,
which was also allowed by the petitioner vide order dated 26.06.2024.
3. One Shiv Charan Pandey challenged the order dated 08.08.2023 and
26.06.2024, by filing an appeal under Section 44(1) of the Madhya Pradesh
Land Revenue Code before the Sub-Division Officer (Revenue), Adhartal,
Jabalpur. This appeal came to be decided by the S.D.O. vide order dated
09.09.2024 (Annexure P/4). The S.D.O. while allowing the appeal set aside
both the orders passed by the petitioner while working as Tahsildar. The
S.D.O. further passed the following order as contained in paragraph-9 :
"9. करण म अित र तहसीलदार ी ह रिसंह
धुव, पटवार ी जांगे पंपरे और कं यूटर
ऑपरे टर द प दब
ु े ारा लोकसेवक के नाते द
पद य अिधकार का द ु पयोग कया जाना िस
है । राज व यायालय ारा यायसंगत और
िनरपे कारवाई कया जाना अपे त है ले कन
वषयागत करण म उ लोकसेवक ारा
सुिनयो जत तर के से ष यं कर थम या
कूटरिचत द तावेज और एकतरफा कारवाई कर
एक 95 वष के य क भूिम को हड़पने के िलए
अपने अिधकार का द ु पयोग कया गया है । अतः
उ लोक सेवक एवं अ य लाभ हता तथा
संिल य य के व यथोिचत कारवाई हे तु
ताव कले टर जबलपुर को तुत कया
जाये।"
4. Pursuant to the order passed by the S.D.O., the petitioner is placed
under suspension vide order dated 13.09.2024 (Annexure P/6) in
contemplation of departmental enquiry. Subsequently a charge-sheet has
been issued to him vide memo dated 23.10.2024 (Annexure P/7). The
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petitioner has already submitted a reply to the charge-sheet on 29.01.2025
(Annexure P/8).
5. The challenge to the charge-sheet as well as the suspension order
has been made on the ground that the petitioner being a Judge within the
meaning of Section 2 of the Judges (Protection) Act, 1985, he is protected
from the impugned action by virtue of Section 3 of the aforesaid Act. The
petitioner has placed reliance upon the orders passed by this Court in W.P.
No.1901/2017, M.Cr.C. No.58759/2022, M.Cr.C. No.41607/2021, M.Cr.C.
No.4212/2002 and W.P. No.23674/2023.
6. Learned counsel for the petitioner submits that the allegations made
in the charge-sheet are based upon the acts done by him in discharge of his
official duty and therefore, he is protected from any action civil and/or
criminal by virtue of Section 31 of the Madhya Pradesh Land Revenue Code
read with Section 3 of the Judges (Protection) Act, 1985.
7. I have heard learned counsel for the petitioner at length on
admission.
8. The following issues arises for consideration :
"(i) Whether the petitioner is a Judge within
the meaning of Section 2 of the Judges
(Protection) Act ?
(ii) It yes, whether there is absolute
prohibition in proceeding against him if,
there are irregularities found against him in
discharge of his duties ?
(iii) Whether the impugned order of
suspension and the charge-sheet are liable to
be quashed at this stage ?"
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9 . Issue No.1 : Section 2 of the Judges (Protection) Act provides as
under :
"2. Definition.-- In this Act "Judge" means
not only every person who is officially
designated as a Judge, but also every person--
(a) who is empowered by law to give any
legal proceeding a definitive judgment, or
a judgment which, if not appealed against,
would be definitive, or judgment which, if
confirmed by some other authority, would be
definitive; or (b) who is one of a body of
persons which body of persons is empowered
by law to give such a judgment as is referred
to in clause (a)."
Section 31 of the Madhya Pradesh Land Revenue Code provides as
under :
"31. Conferral of Status of Courts on Board
and Revenue Officers.-The Board or a
Revenue Officer, while exercising power
under this Code or any other enactment for
the time being in force to enquire into or to
decide any question arising for determination
between the State Government and any
person or between parties to any proceedings,
shall be a Revenue Court."
10. By conjoint reading of Section 2 of the Judges (Protection) Act,
1985 (in short referred to "Act of 1985") and Section 31 of the Madhya
Pradesh Land Revenue Code makes it clear that the petitioner is a Judge
within the meaning of Section 2 of Act of 1985 and the protection provided
under Section 3 of the said Act is available to him also. This has been so held
by this Court in the case of Mrs. Manorama Koshti Malkapurkar wd/o. Shri
Arun Rao Malkapurkar Vs. State of Madhya Pradesh and Others (W.P.
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No.1901/2017 and is therefore entitled to protection under Section 3 of the
Act.
11. Issue No.2 : Section 3 of the Judges (Protection) Act provides as
under :
"3. Additional Protection to Judges.
(1) Notwithstanding anything contained in
any other law for the time being in force and
subject to the provisions of sub-section (2),
no Court shall entertain or continue any civil
or criminal proceedings against any person
who is or was a Judge for any act, thing or
word committed, done or spoken by him, or
in the course of acting or purporting to act in
the discharge of his official or judicial duty
or function.
(2) Nothing in sub-section (1) shall debar or
affect in any manner, the power of the
Central Government or the State Government
or the Supreme Court of India or any High
Court or any other authority under any law
for the time being in force to take such action
(whether by way of civil, criminal or
departmental proceedings or otherwise)
against any person who is or was a Judge."
12. Reading sub-section 1 of Section 3 makes it clear that the
prohibition incorporated in section 3 is against any Court in entertaining or
continue any civil or criminal proceedings. In the instant case, it is only the
administrative action which has been initiated against the petitioner. Further,
the provisions of sub-section 1 are subject to the provisions of sub-section 2
which empowers the competent authority to take disciplinary proceedings.
13. Thus, by reading Section 3 of the Judges (Protection) Act
particularly sub-section 2, it is evident that the power of the Central
Government, State Government, the Supreme Court of India, High Court or
any other authority, to take action whether by way of civil, criminal or
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departmental proceedings or otherwise, is saved.
14. Now the question arises whether by virtue of Section 3 there is a
blanket protection given to the petitioner. A bare perusal of the charges
levelled against the petitioner, it is evident that the allegations relates to the
act done by the petitioner, which cannot be said to be bonafide act on his part
while discharge of his official duty. These allegations are correct or not
would be subject matter of the departmental enquiry. However, at this stage,
it cannot be said that the charge-sheet in question cannot be issued to the
petitioner. The competent authority is empowered to issue charge-sheet by
virtue of sub-section 2 of Section 3 of the Judges (Protection) Act.
15. The Apex Court in the case of Union of India and others Vs. K.K.
Dhawan (1993) 2 SCC 56 has dealt with this issue and held as under :
"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 :
(i) Where the officer had acted in a manner as
would reflect on his reputation for integrity
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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."
16. Reliance is placed by the petitioner on orders passed in M.Cr.C.
No.58759/2022, M.Cr.C. No.41607/2021, M.Cr.C. No.4212/2002 [Om
Prakash Vs. Surjan Singh, (2004) 1 MPJR 244] are distinguishable on facts
inasmuch as all the aforesaid cases relates to initiation of criminal
proceedings against the officer concerned and this Court after considering
merits of the case have quashed the criminal proceedings. However, in none
of the aforesaid cases it has been held that there is absolute prohibition in
taking action against the officer concerned, particularly disciplinary
proceedings.
17. So far as the judgment rendered by this Court in the case of
Premnarayan Vs. State of Madhya Pradesh (W.P. No.23674/2023) is
concerned, in the said case also the facts were entirely different. In the said
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case, the order dated 25.05.2016 passed by the petitioner therein was subject
matter of the appeal before the S.D.O. and thereafter before the
Commissioner. The Commissioner while dealing with appeal upheld the
order passed by the petitioner therein. However, on the administrative side it
was directed that the charge-sheet be issued against him. In the aforesaid
facts, this Court held that having upheld the order on judicial side, the same
authority could not have directed for initiation of the departmental enquiry.
Thus, the petitioner does not get any help from this order passed in the case
of Premnarayan (supra).
18. Issue No.3 : The law is well settled as the scope of interference in
the cases where the charge-sheet is challenged at the initial stage. The
Supreme Court in the case of Special Director and another Vs. Mohd.
Ghulam Ghouse and another, (2004) 3 SCC 440 in paragraph No.5 read as
under :
"5. This Court in a large number of cases has
deprecated the practice of the High Courts
entertaining writ petitions questioning
legality of the show cause notices stalling
enquiries as proposed and retarding
investigative process to find actual facts with
the participation and in the presence of the
parties. Unless, the High Court is satisfied
that the show cause notice was totally non est
in the eye of law for absolute want of
jurisdiction of the authority to even
investigate into facts, writ petitions should
not be entertained for the mere asking and as
a matter of routine, and the writ petitioner
should invariably be directed to respond to
the show cause notice and take all stands
highlighted in the writ petition. Whether the
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show cause notice was founded on any legal
premises, is a jurisdictional issue which can
even be urged by the recipient of the notice
and such issues also can be adjudicated by
the authority issuing the very notice initially,
before the aggrieved could approach the
Court. Further, when the Court passes an
interim order it should be careful to see that
the statutory functionaries specially and
specifically constituted for the purpose are
not denuded of powers and authority to
initially decide the matter and ensure that
ultimate relief which may or may not be
finally granted in the writ petition is accorded
to the writ petitioner even at the threshold by
the interim protection, granted."
Further in the case of Union of India and another Vs. Kunisetty
Satyanarayan, (2006) 12 SCC 28 the Apex Court in paragraph No.13 and 14
held as under :
"13. It is well settled by a series of decisions
of this Court that ordinarily no writ lies
against a charge-sheet or show-cause notice
vid Executive Engineer, Bihar State Housing
Board V. Ramesh Kumar Singh (1996) 1
SCC 327, Special Director Vs. Mohd.
Ghulam Ghouse (2004) 3 SCC 440,
Ulagappa Vs. Divisional Commr., Mysore
(2001) 10 SCC 639, State of U.P. Vs. Brahm
Datt Sharma, (1987) 2 SCC 179.
14. The reason why ordinarily a writ petition
should not be entertained against a mere
show-cause notice or charge-sheet is that at
that stage the writ petition may be held to be
premature. A mere charge-sheet or show-
cause notice does not give rise to any cause
of action, because it does not amount to an
adverse order which affects the rights of any
party unless the same has been issued by a
person having no jurisdiction to do so. It is
quite possible that after considering the reply
to the show-cause notice or after holding an
enquiry the authority concerned may drop the
proceedings and/or hold that the charges are
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not established. It is well settled that a writ
petition lies when some right of any party is
infringed. A mere show-cause notice or
charge-sheet does not infringe the right of
anyone. It is only when a final order
imposing some punishment or otherwise
adversely affecting a party is passed, that the
said party can be said to have any
grievance."
19. Thus, a charge-sheet can only be challenged at the initial stage
when it is issued by an incompetent authority or is otherwise nonest in the
eye of law . In the the instant case, the petitioner has not raised either of the
two grounds and therefore, in my opinion the charge-sheet cannot be
quashed at this stage when there are only allegations levelled against the
petitioner and the same are yet to be inquired into.
20. In view of the aforesaid, the prayer challenging the charge-sheet
dated 23.10.2024 is rejected.
21. Since the charge-sheet has already been issued levelling serious
charges against the petitioner, the issuance of order of suspension dated
13.09.2024 can also be not found fault with. The prayer challenging the
suspension order also stands rejected.
22. The petition is devoid of merits and the same is dismissed.
(ASHISH SHROTI)
JUDGE
RC
