Madras High Court
N.Udayakumar vs The Principal Secretary / ... on 14 September, 2023
W.P.No.14852 of 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 14.09.2023
CORAM :
THE HONOURABLE MR.JUSTICE C.V.KARTHIKEYAN
W.P.No.14852 of 2016
and W.M.P.Nos.12985 & 12986 of 2016
N.Udayakumar .. Petitioner
vs
The Principal Secretary / Commissioner of
Revenue Administration, Disaster Management &
Disaster Mitigation Department, Chepauk,
Chennai – 5. .. Respondent
Petition filed under Article 226 of the Constitution of India
praying to issue a writ of certiorarified mandamus calling for the
records on the file of the respondent herein in Ser.2(1)/16785/2015
dated 20.02.2016, quash the same and issue consequential
directions to the respondent to include the name of the petitioner in
the panel for promotion as Deputy Collector in the appropriate place
therein and to promote the petitioner as such with retrospective
effect from the date of promotion of immediate junior and to permit
the petitioner to peacefully retire on service on 31.05.2016 with all
consequential benefits.
For Petitioner : Mr.M.Ravi
For Respondent : Mr.S.Ravikumar
Special Government Pleader
ORDER
Writ petition has been filed in the nature of a certiorarified
mandamus seeking records on the file of the respondent, the
Principal Secretary / Commissioner of Revenue Administration,
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Disaster Management & Disaster Mitigation Department, Chennai in
Ser.2(1)/16785/2015 dated 20.02.2016 and quash the same and
issue consequential directions to the respondent to include the
name of the petitioner in the panel for promotion as Deputy
Collector and thereafter to also promote the petitioner to such other
promotional posts with retrospective effect and permit the petitioner
to retire from service on 31.05.2016 with all consequential benefits.
2. The petitioner was working as Revenue Divisional Officer
/ Deputy Collector at Vriddachalam. At that particular point of time,
on 20.02.2016, he was issued with the impugned charge-memo.
The writ petition has been filed questioning that particular charge-
memo. The entire charge related to an earlier order passed in his
capacity as Revenue Divisional Officer on 18.09.2013. That
particular order, came to be passed since as RDO, he had the
authority to confirm grant of patta to beneficiaries who can be
categorized as landless poor. In Irulakurichi village, there were
substantial lands belonging to the revenue department in survey
nos. 266, 267 & 268, which totally measured about 15.5 acres.
These lands, were to be sub-divided and patta came to be granted
to those who should be categorized as landless poor. The lands
were actually sub-divided and one such subdivision was Survey
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no.268/8 measuring 2 acres. The lands were agricultural lands. The
petitioner having had the authority to confirm grant of patta,
naturally should follow the rules and guidelines under which such
patta has to be granted and, more importantly should also ensure
that those who benefit from grant of such patta require such land
and could be categorized as landless poor. The patta for this
particular land of 2 acres in Survey no.268/8 was granted to one
Sudha, who was actually not residing in the said village but residing
in another village, Kedilam. Patta no.1192 was issued. Questioning
grant of such patta to the said Sudha, a resident of Irulakurichi
village, Solaimuthu, had raised a complaint before the petitioner
herein.
3. The petitioner, who had to examine whether the patta
has been properly granted and in accordance with the Rules and
Regulations had passed an order in the petition given by Solaimuthu
on 18.09.2013 in Mu.Mu.A3/3187/2011. He rejected the
representation given by Solaimathu and justified the grant of patta
to the said Sudha.
4. Questioning this particular proceedings of the petitioner
herein, Solaimuthu preferred a further representation / appeal
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W.P.No.14852 of 2016
before the District Revenue Officer at Cuddalore. By an order dated
12.03.2014, in Na.Ka.V3/25322/2013, the DRO, had set aside this
particular grant of patta to Sudha and had restored the entire lands
of 15.5 acres back to the Revenue Department and classified them
as “punsei tharisu” and had directed that the lands could be again
subdivided and allotted to the landless poor in accordance with the
guidelines issued by the Government, more particularly, by the
Commissioner of Land Administration.
5. After that particular order had been passed, there was
an examination of the original order dated 18.09.2013 passed by
the petitioner herein and holding that it had been passed in violation
of the facts and in violation of the guidelines under which he was
expected to perform and discharge his duties, the charge-memo
was issued complaining that he had affirmed grant of patta to
Sudha without adhering to the Rules and guidelines. This particular
charge-memo has been questioned by the writ petitioner in the
present writ petition.
6. In the affidavit filed in support of the writ petition, the
petitioner stated that it was alleged that he had confirmed an order
of grant of free patta and had rejected an appeal preferred against
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W.P.No.14852 of 2016
such grant. He also stated that there was an appellate remedy
available against the order which he had passed and the party so
aggrieved, Solaimuthu, had also actually preferred an appeal before
the DRO. It had therefore been stated that since it could be
categorized as a judicial order even though he was a quasi judicial
authority, motive cannot be imputed against him for passing such
an order. It had been stated that an alternative forum was available
and even if the order was palpably wrong, it could be addressed by
the appellate authority. It had also been stated that initiation of
disciplinary proceedings were violative of the policy of the
Government, more particularly, as enunciated in Government letter
14353/Per.N/93-1 dated 11.03.1993. It had been stated that
therefore, the charge-memo should be quashed by this Court.
7. When the matter came up for admission, a learned
Single Judge of this Court had taken note of the judgment of the
Hon'ble Supreme Court in the case of Zunjarrao Bhikaji Nagarkar v
Union of India (1997) 7 SCC 409 and stated that a charge-memo
cannot be issued against a quasi judicial authority who had
discharged statutory duties and more particularly, in the absence of
motive, had stayed all further proceedings.
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W.P.No.14852 of 2016
8. A counter affidavit had been filed on behalf of the
respondents, wherein it had been stated that the land for which
patta was issued, was specifically identified for distribution to
landless poor agricultural families. There was also a circular in this
regard and it had been stated that according to the guidelines, patta
should be granted only to the landless poor of the same village and
not to anybody who is outside the village. It was also contended
that before confirming the grant of patta, a field inspection should
have been done by the petitioner herein and without determining
the actual facts, the petitioner had affirmed grant of patta to the
said Sudha. It had been stated that it was an issue of fact and not
of wrong interpretation of law and it had been therefore stated that,
without making necessary or proper inquiry, the petitioner had
confirmed the grant of patta to Sudha. The issuance of the charge-
memo was justified by the respondents.
9. Heard Mr.M.Ravi, learned counsel for the petitioner and
Mr.S.Ravikumar, learned Special Government Pleader for the
respondent.
10. Learned counsel for the petitioner had brought to the
notice of this Court the facts of the case and stated that the
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W.P.No.14852 of 2016
beneficiary Sudha had actually been identified only by the Village
Level Committee consisting of VAO, Tahsilar, Panchayat President
and such other officers and thereafter the patta had been granted
by the Tahsildar to Sudha. It had been stated that subsequently a
petition had been addressed to the petitioner herein that patta to
the land had been irregularly granted to the said Sudha, and on that
particular petition, the petitioner had passed an order rejecting the
petition.
10.1 It had been contended by the learned counsel that it
was an order which was appellable in nature and quite rightly the
petitioner who sufferred an adverse order had also preferred an
appeal before the DRO, who had set aside the grant of patta to
Sudha. It is therefore contended that since there is an appellate
remedy available, parallely issuing a charge-memo, was quite
contrary to the rules and regulations and was violative of the
protection granted to the petitioner, as a public servant.
10.2 Learned counsel for the petitioner placed reliance on the
judgment of the Hon'ble Supreme Court in Zunjarrao Bhikaji
Nagarkar v Union of India (1997) 7 SCC 409.
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10.2.1 In the said judgment, the Hon'ble Supreme was
concerned with an order passed by the appellant therein, who was
working as Collector of Central Excise, Nagpur in the year 1995. He
had passed an order favouring M/s.Hari Vishnu Packaging Ltd.,
Nagpur in an assessment proceedings and it was alleged that such
order had been passed against the provisions of Central Excise
Rules 9,49,52A, 53, 173G and 226. It had been stated that
consequent to such order, the beneficiary had benefited non-
payment of duty of Rs.4,81,950/-.
10.2.2 On that ground, when a charge-memo was filed,
the appellant therein had originally approached the Central
Administrative Tribunal, which had initially granted an interim stay
and later vacated the stay. Questioning the order vacating the stay,
the appellant had filed a writ petition before the High Court and
suffered an order of dismissal. The appeal filed by the appellant
before the Division Bench was also dismissed. Thereafter, the
appellant filed an appeal before the Hon'ble Supreme Court. In the
order of the Hon'ble Supreme Court, the portion relied on by the
learned counsel for the petitioner is extracted below:-
“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
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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.”
10.3 It is therefore contended by the learned counsel for the
petitioner that since there is an appellate remedy available, which
had also been taken recourse to by the original complainant, the
charge-memo necessarily will have to be quashed by this Court.
11. Learned Special Government Pleader, however, pointed
out the facts of the case. He pointed out that the petitioner had the
responsibility of ensuring that patta was granted only to those who
could be classified as landless poor. Substantial government lands
had been vested with the revenue department and thereafter when
a decision was taken to grant patta to landless poor, the petitioner,
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W.P.No.14852 of 2016
having control of the lands, had affirmed grant of patta to an
individual Sudha, who could not be classified as either landless or
poor and as a matter of fact, was a resident of another village. She
was also not doing cultivation in the said village.
11.1 Learned Special Government Pleader, therefore, stated
that without making basic inquiry and without conducting any field
inspection, the petitioner had affirmed grant of such patta in the
order passed. It had also been stated that had the complainant
therein not preferred any appeal, then valuable land would have
been vested with the said Sudha and landless poor would have been
denied the benefit of the policy of the Government. It was therefore
contended that the charge-memo had been issued only with respect
to dereliction of duty by the petitioner herein. The charge-memo
was justified. It was contended by the learned Special Government
Pleader that the writ petition should be dismissed.
12. I have carefully considered the arguments advanced
and perused the records.
13. The petitioner was working as Revenue Divisional Officer
at Vriddhachalam. At that particular point of time, one Solaimuthu
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W.P.No.14852 of 2016
had preferred a petition before him that free patta for land
measuring 2 acres in Survey No.268/8 in Irulakurichi village had
been allotted to one Sudha who was not even a resident of that
particular village. It had been complained that the petitioner therein
Solaimuthu was doing agriculture and overlooking his credentials,
the land had been allotted to the said Sudha.
14. The petitioner who was working as Revenue Divisional
Officer / Deputy Collector, had the responsibility and duty to ensure
the Government land is allotted only to those who would benefit by
the same and who could be categorized as landless poor. The
Government land is not meant to be fettered away to anybody or
everybody who seeks allotment of such land.
15. The facts stated by the Solaimthu could have been very
easily determined by the petitioner herein had he an inspection of
the said lands. It was evident that the said Sudha was not a
resident of Irulakurichi village. She belonged to Kedilam village. The
petitioner had not even verified that particular fact. The petitioner
had not even verified whether she was doing at least agriculture in
Irulakurichi village. She was not doing such agriculture. She was not
at all entitled for grant of land by way of free patta. Two acres of
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agricultural land would have provided necessary income and would
have provided solace to those who can be only categorized as
landless poor. Identifying them was the responsibility of the
petitioner herein and even if it is the Tahsildar who so recommends,
the petitioner as RDO had the duty to ensure that the Tahsildar
discharged his duty properly. Merely because, the petitioner had
passed a quasi judicial order, which is appealable in nature, it
cannot be stated that the petitioner should never be proceeded
against departmentally. The petitioner had let down the good
intentions of the Government and also the policy of the
Government. He had also acted in contravention of the policies.
16. In this connection, learned Special Government Pleader
had also brought to the notice of this Court to the Circular issued,
wherein guidelines have been prescribed as to whom the patta
could be granted. The conditions are that the total annual income of
the family should not exceed 16,000/- and the beneficiary should be
a resident of the village where the land lies and the beneficiary
should do direct cultivation in the encroached land.
17. The beneficiary in this case Sudha did not qualify in any
one of the three conditions. With respect of her income, it was an
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ascertainable fact. The petitioner had however not taken that
particular effort. He will have to suffer the consequences of
explaining as to why he had affirmed grant of patta to the said
Sudha. That opportunity would be granted to him during the course
of departmental inquiry. The departmental inquiry cannot be
scuttled at the stage of charge-memo itself.
18. It is also a fact that the beneficiary was not a resident of
the Irulakurichi village. It is a fact that the beneficiary Sudha
therefore could not do direct cultivation of the lands. Overlooking
these two facts, the petitioner had affirmed grant of patta to her.
Naturally he should explain the reasons and the respondents have a
duty to proceed against him departmentally. It is a weak argument
to hold that since the order is appealable, the petitioner cannot be
proceeded with departmentally.
19. The judgment referred to by the learned counsel for the
petitioner Zunjarrao Bhikaji Nagarkar (supra) is distinguishable on
facts. There, the charge was a mistake or an error on application of
law while passing the order. Here there was no law involved. It was
a determination of the fact. The determination of the facts were
whether Sudha was a resident of Irulakurichi village, whether Sudha
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was doing direct agriculture in the same village where the land was
situated and about her income. Even a cursory look at her address
would have shown that she was not a resident of Irulakurichi
village. This would also lead to a conclusion that she could not do
agriculture directly. Once she is disqualified, the petitioner should
not have affirmed grant of patta to her. It is also weak argument to
hold that it was a Village Committee which had proposed the name
Sudha and that the Tahsildar had granted patta. The petitioner
cannot hide behind that screen.
20. Records produced by the learned Special Government
Pleader reveal that the respondents had also proceeded, not only
against the petitioner herein but also against the VAO and also
against the Tahsildar. Thus, the entire issue had been examined by
the respondents and all the officials who were responsible for
wrongful grant of patta to an ineligible person had been examined in
their proper light. They had been proceeded with departmentally. .
The reasons surrounding the order passed by the petitioner will
have to be examined and the petitioner can explain those reasons
during the course of the inquiry.
21. At this stage, the learned counsel for the petitioner also
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stated that there is no misappropriation allegation in the charge
which had been framed under Rule 17(b) of the Tamil Nadu Civil
Services (Discipline and Appeal) Rules. It is evident that when
valuable agricultural land of 2 acres is fettered away to a person
who is not eligible, naturally there may not be direct
misappropriation of money, but land is also valuable and fettering
away of such land, would naturally invite framing of charge under
Rule 17(b). The argument raised by the petitioner is therefore
rejected.
22. I hold that the charge-memo will have to be proceeded
with further. The stay granted is vacated. The respondents are
permitted to proceed further with the charge-memo and call for an
explanation and proceed with the departmental enquiry.
23. Writ petition stands dismissed. No Costs. Connected
miscellaneous petitions are closed.
14.09.2023
Index:Yes/No
Neutral Citation:Yes/No
ssm
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W.P.No.14852 of 2016
C.V.KARTHIKEYAN,J.
ssm
To
The Principal Secretary / Commissioner of
Revenue Administration, Disaster Management &
Disaster Mitigation Department, Chepauk,
Chennai – 5.
W.P.No.14852 of 2016
14.09.2023
https://www.mhc.tn.gov.in/judis
