UDICATURE AT BILASPUR v. M.R. Sarthi

Union of India Through Secretary Personal and Administrative Reforms, New Delhi. State of Chhattisgarh Through the Principal Secretary, Government of Chhattisgarh, Deptt. Of General Administration, D.K.S. Bhavan, Raipur (Chhattisgarh) v^^R^PWETITION UNDER ARTICLE 226/227 OF THE CONSTITUTION OF INDIA HtGH COURT OF JUDICATURE CHHATTISGARH : BILASPUR (Division Bench) CORAM : HON'BLE SHRI A.K. PATNAIK, CJ & HON'BLE SHRI DHIRENDRA MISHRA, J. WR1T PETITION N0.2327 QF 2004 ORDERFORCQN8!DEMT!ON HON'BLE SHRI A.K. PATNAIK. CJ Sd/- JUDGE 25/09/2005 Sd/- Chief Justice POSTITFOR: 06/09/2008 Sd/- Dhirendra Mishra Judge ^ f' Mc ^ 13^

DIVISION BENCH: HON'BLE SHRI A.K.PATNASK, C.J. and HON'BLE SHRI DHIRENDRA MISHRA, J, Writ Petition No. 2327 of 2004 Petitioner: IVi. R. Sarthi Vs. //— Respondents: Union of India and Others. Shri Manindra Shrivastava, learned Sr. Counsel with Shri Amit Verma, for the petitioner. Shri Prarriod Verma, learned Addl. Advocate General respondent No. 2. ^' ^ ,< Per Dhirendra Mishra. J ORDER (Passed on 06/0^005) The petitioner is an I.A.S. officer who at the relevant time was posted as Additional Collector, Dantewada, District-Bastar, from 22.02.1994 to 28.01.1996. Vide letter dated 27.12.1997 the then Government of Madhya Pradesh issued a Show Cause Notice to the petitioner alieging that he was guilty of gross misconduct and suspicious loyalty which was in violation of rule 3(1) and 3(3)(1) of AII India Service (Conduct) Rules, 1968. Allegation against the petitioner was that while acting as an officer of Government he granted permission to feli 2111 trees in violation of M.P. Protection of (Aboriginal Tribes) (Interest of trees) Act, of 1956' for convenience).

1956 (hereinafter referred to.as The petitionerreplied to the said Show Cause Notice vide reply dated 01.01.2004 of Annexure P/7. Thereafter, the petitioner 'Act 13^ was served with a charge sheet along with the statements of the charges coupled with list of reievant documents on 24.12.2003 on the basis of which the charges were proposed to be proved including the names of the witnesses proposed to be examined in support of the charges. Charge No. teveled against the 1 petitioner was that he in collusion with some private persons accorded permission for felling trees in violation of section 3 of the Act of 1956. At the same time he is also alleged to have accorded permission for feliing prohibited trees in contravention of sections 240 and 241 of the Chhattisgarh Land Revenue Code, 1959 (hereinafter referred to as 'Code of 1959') in orderto benefit the private persons. The petitioner preferred an original application No, 61/2004 before the Central Administrative Tribunal (C.A.T.) praying for quashment of charge sheet dated 24.12.2003.

However, the Tribunal vide order dated 09.07.2004 disposed of application with a direction to the respondents to conclude the enquiry against the petitionerwithin a period of six months form fhe date of receipt of copy of the said order. However, the prayer of the petitioner for quashing the charge sheet was turned down. The petitioner by the instant petition is chaiienging the order passed by the Central Administrative Tribunal and praying for setting aside the charge sheet dated 04.12.2003. Case of the petitioner is that charges leveled against him are based on the order passed by the petitioner in the revenue cases detaiied in paragraphs No. 5.10 and 5.11 ofthe petition by which it is aileged that the petitioner while discharging his duties of public servant as Additional Collector, Dantewada, granted permission to the app!icants of the aforesaid revenue cases for feliing trees, the vaiue of which was exceeding Rs.5,000/- in violation of the provisions of section 3 of the Act of 1956. Charge No.2 against the petitioner is that while the aforesaid according permission to the applicants of

\r 13 e revenue cases the rules contained in sections 240 and 241 of the Code of 1959 have been ignored. The submission of iearned counsel for the petitioner is that from perusal of the records of the aforesaid revenue cases is evident that the orders referred to in the charge sheet, It have been passed by the petitioner while exercising quasi judidal functions and the same were challengeable by way of appeal under the Code of 1959 as well as under the Act of 1956 but no appeal has been preferred against passed by the petitioner. petitioner has been issued with the charge sheet on the basis the report submitted by the C.B.l. and as such the is further submitted that the order It disciplinary authorities are guided by external initiating discipiinary proceedings against the petitioner for imposition of major penalty which is nof permissible under the is also submitted that even if the aliegations made iaw. factors for It against the petitioner are accepted, termed as misconduct as the misinterpretation of law cannot the same may not be be said to be an act of misconduct.

Similarly, the appiicant in Revenue Case No. 12-A 63/1992-93 namely Ghasiram purchased 3.78 acres of land from its triba! owners for a sum of Rs. 4000/- through registered sale deed dated 21.3.1988 executed by Paklu, Sudru and Lakhma, and applied for permission to cut 16 teak trees, 01 Aden tree, and sell the same to the forest department. However, the sale deed so executed by the persons named above did not make any mention of the trees standing on the said land. The then Coilector called for the report from the concerned DFO as aiso the SDO (Revenue). However, during the pendency ofthe said application another sale deed in favour of the appSicant of this revenue case was got executed by Paklu, the tribal owner, on 11.10.1994 and by this sa!e deed 12 teak trees standing on the iand sold earlier were again sold for a consideration of Rs. 45,000/-. As per the demarcation report submitted by the Revenue Inspector 23 trees were standing on the said land. The petitioner vide order dated 2.6.1995 granted permission to cut 10 teak trees and sell the same to the forest department.

Likewise, the applicant of Revenue Case No. 9-A 63/1994-95 namely Ghasiram submitted an application to lift the two trees lying in his land measuring 3.78acres which he had purchased through registeredsale deed dated from its tribal owners

21.3.1988, as they had failen due So the storm in the year 1992-93 and requested the concerned DFO to make payment against the same. Taking cognizance of that application DFO South Bastar vide memo dated 16.3.1994 informed the Collector that 2 teak trees have been transported to the Forest Depot, Dantewada and therefore appropriate order may be passed for payment against the said trees to the applicant. On the basis of said information given by the concerned DFO the aforesaid case was registered. During the pendency of the case tribal Paklu had executed another sale deed fpr the 12 teak trees for a consideration of Rs. 55,000/- in favour of the 6 ^ applicant. The Collector vide order dated 21.11.1994 permitted the Forest Department to the applicant to make payment namelyGhasiram.

ln Revenue Case No. 158-A 63/1994-95 applicant Bhushan Singh purchased 3.77 acres of Lakhan Singh Gond for a consideration of Rs. 4000/- through land from its tribal owner registered sale deed dated 27.07.1988,1 .33 acres of land from tribal owner Hando and Hirma for a consideration of Rs. 2000/» through registered sale deed dated 4.7.1988, 5.76 acres of land from tribal owners Manglu, Chamru and Lakhma through registered sale deed dated 26.10.1988 for a consideration of Rs. 10,000/-, 2.31 acres of land fromiBodo widow of Pandu Gond fbr a consideration ofRs. 4000/-through registered sale deed dated 26.10.1988. Thereafter, he applied for permission to cut the trees standing on his land and seil the same to the Forest Department. The then Collector vide order dated

21.1.1992 rejected the application of the applicant on the ground that in the sale deeds the sale of the timber trees had not been mentioned. The appeal preferred by the applicant was also dismissed by the Commissioner on 30.11.1992. However, the Board of Revenue vide order dated 26.8.1994 orders passed the Collector Commissioner. The applicant thereafter submitted application on 5.6.1995 before the petitioner. During the pendency of the said application the triba! owners of the trees namely Madka, Lakhma, Chappe, deceased Magdu, Kama and one other person executed another sale deed on 20.12.1995 in favour of the applicant and sold 31 teak trees, 01 Bija tree, 02 Tinsa trees and 05 Mundi trees for a consideration of Rs. 80,000/- market vaiue of which was shown to be 2,04,000/-. Thereafter, the petitioner vide order dated 5.1.1996, after recording the statements ofvendor Madka and Murki, accorded permission to sell 16 teak trees standing on his land and for that he was paid Rs. 4,05,355/- by the Forest Departmentas consideration ofthe same.

In the same way, in Revenue Case No. 111-A 63/1994-95 applicant Digpal Shah purchased 5.28 acres of land and 34 trees were also standing thereon from the tribal owners namely Chaitu, Mandu and one other tribai owner for a consideration of Rs. 1,00,000/-. the market value of the said land was mentioned in the saie deed as 1,51,000/- and that oftrees was mentioned as 18,500/-. Thereafter, the applicant applied for permission to the petitioner to cut 21 teak trees and one Aden tree and sell the same to the forest department. The petitioner after obtaining report from the Subordinate Revenue Officers and the concerned DFO accorded permission on 12.7.1995 to cut 15 teak trees and sell the same to the Forest Department. Thereafter applicant Digpal Shah was paid a sum of Rs. 9, 39,168/- as value of the 15 teakltrees as per the permission dated 12.7.1995.

In Revenue Case No. 109-A 63/1994-95 applicant Shishupai Shah purchased 4.20 acres of standing over the said land for a consideration of Rs. 1, !and along with 28 trees 00,000/- from its tribal owner. The market value of the land was mentioned inthe sale deed as 10.600/- and that of trees was mentioned as 1,32,000/-. Thereafter he applied for permission to cut the 19 teak trees, and 7 other trees and sell the same to the forest department. Subsequentiy, the petitioner granted permission to the applicant vide order dated 27.1.1996 to cut 13 teak trees. As per the permission granted by the petitioner Qn 27.1.1996 the trees were cut and the applicant was paid a sum of Rs. 4,83,457 on 26.9.1996 by the forest department as value of the 13 number of trees.

ln Revenue Case No. 109-A 63/1994-95 applicant Shishupal Shah purchased 2.35 acres of land with 34 trees standing thereon from its triba! owners namely Budri widow of Hadma Muriya and Sukka for a consideration of Rs. 1,25,000. Market value of the land was mentioned in the sale deed as 4,700/- and that of the trees was mentioned as 1,91,500/- He thereafter appiied to the petitioner for permission to cut the 34 141 trees standing on his land and sell the same to the Forest Department. Thepetitioner then after obtaining the report from the concerned DFO and the SDO (Revenue) Dantewada, accorded permission videorder dated 24.7.1995 to cut 15 teai trees and sell the same to the Forest Department. As per the permission granted by the petitjoner the applicant was paid a sum of Rs. 8, 48,547/- as value ofthe 15 teak trees.

In Revenue Case No. 154-A 63/1994-95 applicant Kamlesh Kumar purchased 0.68 acres of land from tribal owners for a consideration of Rs. 50.000/- through registered sale deed dated

2.3.1995. The applicant applied for permission to the petitionerto cut 12 teak trees standing on his land. The petitioner sent the inquiry to the SDO (Revenue) concerned. Naib case for TehsiSdar submitted the report through the SDO (Revenue) to the petitioner and the petitioner on the basis of the said report granted permission to the applicant vide order dated 12.7.1995 the said order of the to cut 12 teak trees. In pursuance of petitioner the applicant was paid a sum of Rs. 4, 08,851/- by the Forest Department as value thereof.

In Revenue Case No. 112-A 63/1989-90 applicant Merpelli Shankar alias Samaiya purchased 1.57 acres of land from its tribal owner vide registered sale deed dated 24.7.89. Thereafter, he applied for permission to the then Additional Collector to cut the trees standing on his land and sell the same to the Forest Department. In the application he mentioned that the land is situated near a River. Tehsildar of the area recommended the matter for permission on 4.1 .1995. In the report apart from other things, it is stated that there is no tank or river near the land and as such there is no apprehension of land erosion. However, the cbncerned SDO (Revenue) did not recommend the matter for in the sale deed there is no permission on the ground that mention to the effect that the tribal owner has sold the trees as well situated on the land. The then Additional Collector called for the report from the subordinate Revenue Officers. The concerned SDO (Revenue) 28.2.1992 and 30.9.1992 and on the basis of the said reports, submitted his reports dated B H2 the then Additional Collector, Dantewada vide order dated

24.11.1992 rejected the application of the applicant. The applicant preferred an appeal before the Commissioner who allowed the appeal vide order dated 19.12.1994 and remanded the case to the Additional Collector to verify whether the value of the trees standing on the said land was paid to its tribal owners and thereafter decide the same on merits. The petitioner after recording the statement of Kursam Buchaiya and Lakshamiya and Kursam Chandraiya, allowed the appiication ofthe applicant for permission to cut the 19 teak trees and sell the same to the Forest Department vide order dated 2.1.1996.

In Revenue Case No. 3/A-63/89-90, applicant Digambar Soni purchased 0.08 acres of Mohanlal Kurmi for a consideration of Rs. 9,000/-. On 19.2.1987 land from its tribal owner nameiy he applied for permission to the then Additiona! Collector under section 241 of the Code of 1959 to cut the 3 teak trees standing on his land. The then Additional Collector called for the report of the concerned SDO (Revenue) and after obtaining the report granted permission to cut 4 teak trees and 01 Bija tree to the applicant.

The legal submission made by the learned counsel for the petitioner is that the petitioner has passed the above orders while discharging the duties of a Revenue Officer under the Code of 1959 and as such the status of Court has been conferred as per section 31 of the Code of 1959. He further submits thatthe act ofthe petitioner is protected under Section 3 of the Judges (Protection) Act 1985 and therefore no disciplinary the petitioner for the proceedings could be initiated against above said act done by him. Sub section 1 of Section 3 of the Act of 1985 enumerates the additional protection available to the Judges and no Court can contemplate or continue any civil or criminal proceeding against any person who js or was a Judge for any act, thing or word committed, done or spoken by him when, or ih the course of, acting or purporting to act discharge of his official or judicial duty or function. However, sub in the ^c. 10 li£ section 2 of section 3 of the Act of 1985 makes it very clear that the Central Government or the State Government are not debarred from taking action by way of civil, criminal or departmental proceedings against such person who is or was a Judge.

Learned counsel the petitioner relying upon the judgment of the Supreme Court Bhikaii Naaarkar Vs. Union of Indla and others reported in in the matter of Juniarrao (1999) 7 SCC 409 submits that the departmental enquiry can not be initiated on the basis of vague and indefinite information and on the basis of suspicion unless there is aliegation that the officer has done his officia! duty with improper motive or for extraneous considerations and the charge sheet against him is not maintainable. It is argued that to maintain the charge sheet against against a Quasi JudicJal Authority, some extraneous consideration influencing quasi judicial order, deliberate act or mala fide has to be alleged and negligence in order to constitute misconduct should not be mere careiessness, inadvertence or omission but culpabie negiigence. It issubmitted that the quasi judicial authority needs protection from falling into disrepute. He submitted that the entire system of administrative adjudication fal! into disrepute if the officers performing quasi judicia! functions are inhibited from doing so without fear or favour in case they are subjected to constant threat of disciplinary proceedings. ^

The Apex Court in the matter of Union of India Vs. K.K. Dhawan reported in (1993) 2 SCC 56 discussing its eariier decisions in the matter of S.Govinda Menon Vs. Union of India reported in AiR 1967 SC 1274 and in the matter of Union of India Vs. A.N.Saxena reported in (1992) 3 SCC 124, has held that the disciplinary proceedings can not be initiated against an officer on vague and indefinite information and every error of law does not constitute a charge of misconduct as the same wiil impinge upon independent functioning of quasi judidal officers like the petitioner. To maintain a charge sheet against a quasi authority, something more such as extraneous consideration judicia! 11 Ki influencing quasi judidal order has to be alleged. The relevant portion of the of the judgment is reproduced as under:

"Certainty, therefore, the officer who exercises judidaf or quasi judicial powers acts negligently or reckless!y or !n 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 t ^- is important in the present case, we are not concemed with the correctness or to bear in mind that fegafity of the decision of the respondent but the conduct of the respondent in dischaiye of his duties as an officer The iegality 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 Govemment is not precluded from taking the disdplinary action the Conduct Rules. Thus, we for violation of conclude that the discipfinary action can be taken jn the following cases: Where the officer had acted in a manner QS wouid (i) reflect on his reputation for integnty or good faith or devotion to duty; (ii) !f facie materia! reckfessness or misconduct in the discharge ofhis duty; (iii) (iv) fv^ (vi) If he has acted in a manner which is unbecoming of a Govemment Sen/ant; if he had acted negligentfy or that he omitted the prescribed conditions whlch are essential for the exercise ofthe statutory powers; If he had acted in order to unduly favour a party; If he had been actuated by corrupt motive, however smalf the bnbe may be because Lord Coke said fong ago "though the btibe may be smaH yet the fault is great" , 12 IfE "The

instances catalogued exhaustive. However, we may add that for a mere technicaf violation or mere!y because the order is wfong and the action is not falfing under the above enumerated instances, disciplinary aotion is not warranted. Here, we may utter a word of caution. Each case will depend upon the facts and no absolute can be postuiated. "

Learned counsel for the petitioner relying on the judgment of the Supreme Court in the matter of Kashinath Rov Vs. State of Bihar reported in (19961 4 SCC 539. submits that the petitioner has passed the orders in the aforesaid revenue cases as per the provisions contained the Act of 1956 which are appellable under the said Act as also under the Code of 1959. However, according to the counsel for the petitioner the State has not preferred any appeal against orders passed by the petitioner in the aforesaid revenue cases. He further submits that if there was an intolerable error detected by the the said State in the orders passed by the petitioner, corrected by the appellate authorities and cn the basis of such error the the same could be Departmenta! Enquirycan not be initiated.

21. Learned counsel the applicant furtherT relying upon the decision of the Apex Court in the matter of Union of india Vs. J. Ahmed reported in (1979) 2 SCC 286 submits that allegation against the petitioner in the charge sheet that the orders have been passed for any extraneous consideration or with any ulterior motive and in the absence of such allegation the charge leveled against there is no in the context of Rule 3 of the petitioner does not constitute misconduct All India Service (Conduct) Rules 1954. According to the learned counsel for the petitioner the charge against the petitioner is that in the discharge of his duties as public sen/ant whiie posted as Additional Collector, Dantewada, he in collusion with some private persons passed orders in the above mentioned revenue cases as described in charge No.1 and thereby permitted the applicants ofthose cases to cut the trees exceeding the value of Rs. 5000/- as described in section 3 of the Act of 1956. Secondly, he passed orders in revenue cases 13 l^ described in charge No.2 and thereby accordedpermission to cut trees ignoring the provisions of sections 240 and 241 of the Code of 1959 and rules framed there under. Section 3 (1) and 3 (3) of the Act of 1956 are quoted below for ready reference: "3.1- No contract enterecf into after the commencement of this Act by a tenure-holder befonging to Aboriginal Tribe for the speclfsed trees in his holding shall be vaHdln so far as it reiates to speclf'sed trees witfwut the prevsous perm'ission in wnting ofthe Collector.

3.1 A- A tenure holder belonging to Aboriginal Tribe intending to seek permsssion under sub section (1) shalf make an application to the collector in such form as may be prescribed. 3.3- Where pennission is granted under sub-section (2) the transportation and sale of specified trees shall be cutting, done by such officer of the Forest Oepartment of Govemment and in such manner as may be prescribed"

As detailed in the foregoing paragraphs, the circumstances in which the orders have been passed by the petitioner in the revenue cases mentioned in charge No.1 indicate that while passing the drders the petitioner did not consider the provisions of section 3 of the Act of 1956 as in all the cases the land on which the trees were standing initially belonged to the other tribal owners and the same were purchased by the applicants of immediately before prefemng an application for sanction to cut the said trees. There is no inquiry regarding adequacy of the consideration paid to the origina! owners by the applicants. In some cases interest in the the aforesaid revenue cases trees was transferred by the original owners to the applicants during the pendency of the revenue cases but even then noinquiry was conducted regarding the value paid to the original owners before passing the orders giving permission to cut the trees. 14 l^

23. Thus at this stage it can not be said that the petitioner had passed the orders in the revenue cases mentioned above bonafidely as per the best of his judgment whiie exercising quasi judicial powers. The fact that numerous orders have been passed ignoring the provisions of section 3 of the Act warrants departmental inquiry. There is ampie .^J material available on record along wjth the charge sheet which clearly demonstrates that in aii the aforesaid revenue cases referred to in charge No.2 the orders have been passed ignoring the prohibition contained in section 240 of the Code of 1959 and ruies made there under. As to whether the said orders have been passed by the petitioner for extraneous consideration or uiterior motive or recklessly or negligently or bona fide can be decided in the departmental inqulry and not in this writ petition.

Thus in view of the foregoing analyticaj discussion we are of the view that this petition has no force and the same is iiabie to be dismissed. Accordingly, it is dismissed. However, it is made clear that it shall be open to the petitioner departmental enquiry which shall be considered on its own merits to take al! his defence in the without being influenced by the observations made in this order, Sd/- Chief Justice Sd/- Dhirendra Mishra Judge