Hemnidhi Patel v. The State Of Chhattisgarh

: Mr. Roop Ram Naik, Advocate. (cause title downloaded from CIS Periphery) For Respondents : Mr. Dilman Rati Minj, Dy. AG with Mr. Mayur /State Khandelwal, Panel Lawyer. (Hon’ble Shri Justice ) Naresh Kumar Chandravanshi C.A.V. Order

1. Since both the petitions involve common questions of law and fact, and arise from almost similar factual backgrounds wherein the petitioners were terminated on the same date for identical reasons, both petitions have been heard together and are being disposed of by this common order.

2. By way of the present petition the petitioners are seeking following reliefs:- "10.1 That, this Hon'ble Court may kindly be pleased to issue an appropriate writ/order to quash/set-aside the impugned order dated 15.05.2023 (Annexure-P/1), passed by the respondent No.2 (Commissioner) in which order dated 21.12.2020 passed by respondent No.3 (Collector) and order dated 28.07.2017 passed by the respondent No.4 (Disciplinary Authority) has been merged. 3

10.2 That, any appropriate writ, direction or order may kindly be passed in favour of the petitioner, which Hon'ble Court deems fit in the circumstances of the case."

3. WPS NO.9695/2023 (HEMNIDHI PATEL) - The petitioner, appointed as a Patwari in 1995, was placed under suspension on 11.12.2015, by Respondent No. 4. While suspended, a departmental enquiry was initiated against him on 11.01.2016, involving a charge-sheet concerning a 'Benami sale purchase' and tribal land' transactions, wherein the petitioner was required to submit a 22 point report. During the enquiry, the petitioner’s repeated requests to provide defence documents were ignored. On

01.04.2017, the Enquiry Officer recorded prosecution witness statements in the absence of the presenting officer. The petitioner has also approached the High Court by filing WPS No.1774/2017 which was disposed of on

17.04.2017 on the ground that since enquiry proceeding is going on and it will open for the petitioner to raise the issue in appeal if eventuality arises. The petitioner further pleaded that the enquiry was conducted in gross violation of natural justice, alleging that his statements were forcefully recorded, necessary defence documents were withheld, and he was denied a fair opportunity to cross-examine prosecution witnesses. Based on an enquiry report dated 22.04.2017, that found him guilty of the alleged charges, and acting on the specific directions of the office of Collector, Respondent No. 4 issued a final order terminating the petitioner from service 28.07.2017. According to the petitioner, the petitioner’s subsequent departmental appeals were consistently dismissed, first by the Collector on

21.12.2020, due to a self-stated lack of jurisdiction because the termination was done on his own prior directions, and later by the Commissioner on 4

15.05.2023, who upheld the order of the disciplinary Authority, Collector. Hence, the petitioner has filed the present writ petition to challenge the validity of the disciplinary proceedings and his consequential termination and prayed for relief mentioned above.

4. WPS NO.9767/2023 (SUKHAN SAY SIDAR) - The petitioner, appointed as a Patwari on 23.09.1992, served in various circles within District Raigarh before being suspended on 16.12.2015. Following the revocation of his suspension on 06.02.2017, a Departmental Enquiry (DE) was initiated against him on 20.03.2017 based on allegations of involving a charge-sheet concerning a 'Benami sale-purchase' and tribal land' transactions, wherein the petitioner was required to submit 22 point reports. The petitioner also claimed that the enquiry was conducted in gross violation of natural justice, alleging that his statements were forcefully recorded, necessary defence documents were withheld, and he was denied a fair opportunity to cross- examine prosecution witnesses. The petitioner has also approached the High Court by filing WPS No.1787/2017 which was disposed of on 17.04.2017 on the ground that since enquiry proceeding is going on and it will open for the petitioner to raise the issue in appeal if eventuality arises. However, he was terminated from service on 28.07.2017 by respondent no. 4 under explicit directions from respondent no. 3 (Collector) based on enquiry report. According to the petitioner, his subsequent departmental appeals were consistently dismissed, first by the Collector on 21.12.2020, due to a self- stated lack of jurisdiction because the termination was done on his own prior directions, and later by the Commissioner on 15.05.2023, who upheld the order of the disciplinary Authority, Collector. Hence, the petitioner has filed the present writ petition to challenge the validity of the disciplinary proceedings and his consequential termination and prayed for relief 5 mentioned above.

5. Learned counsel for the petitioner in respect of WPS NO. 9695/2023 (Hemnidhi Patel) would submit that the imputation of charges levelled against the petitioner was vague and based on false allegations. No specific misconduct or misbehavior was mentioned against the petitioner in connection with charges pertaining to the alleged 'Benami sale purchase' of tribal persons. As per the charge levelled against the petitioners, they indulged in the illegal sale and purchase of land of Village Kunkuni, but no list of documents was supplied to the petitioners except a copy of the letters and the enquiry report. He further submits that during the cross- examination of the departmental enquiry, no such documents which were allegedly prepared by the petitioner have been exhibited. No opportunity for cross-examination of departmental witnesses had been provided, thus principle of natural justice has not been followed.

6. Learned counsel for the petitioner in respect of WPS NO. 9767/2023 (Sukhan Say Sidar) would submit that in this case, statements of departmental witnesses, who were the chairman/members of the Enquiry Committee, were prepared and submitted before the Enquiry Officer on

01.04.2017. Since necessary documents were not provided to the petitioner, he sought time for the cross-examination of the witnesses. He also submits that though the petitioner was provided an opportunity of cross- examination, but no documents were provided to him enabling him to properly defend himself. He also submits that the statements of departmental witnesses in the form of affidavits were prepared on

27.03.2017, but on the same day, the petitioner filed an application for 6 providing a copy of the documents vide Annexure-P/5, but only some documents were provided to him on 28.03.2017 i.e., after the recording of the chief-examination and cross-examination of the departmental witnesses.

7. Learned counsel in respect of both the petitioners submits that no proper opportunity of hearing was provided to the petitioners before passing the order of major penalty. Furthermore, no evidence has been produced by the respondent/Authorities to prove the involvement of the petitioners in the alleged illegal sale/purchase of tribal land. He further submits that after the submission of the enquiry report by the Enquiry Officer, the SDO Revenue Lelunga/Kharsia forwarded the same to the Collector, Raigarh, but the Collector suggested the removal of the petitioners. He submits that since the Collector is not the Disciplinary Authority of the petitioners, he could not have passed such an order; rather, the SDO (Revenue) Lelunga/Kharsia was the Disciplinary Authority. However, the SDO (Revenue) Lelunga/Kharsia, without application of mind, imposed a major penalty upon the petitioners by the impugned order dated 28.07.2017 on the basis of the order given by the Collector, Raigarh, which is completely illegal and arbitrary.

8. Learned counsel for the petitioners further submit that the petitioners were discharging their duties with honesty and sincerity, but they have been terminated from their service in an arbitrary and illegal manner, and yet they have also not attained the age of superannuation. In support of his contention, he places reliance on the judgments of Union of India Vs. Ram Lakhan Sharma1 - Anil Gilurker Vs. Bilaspur Raipur Kshetriya Gramin Bank and another2 and Union of India Vs. Gyan Chand Chattar3. He lastly submits 1(2018) 7 SCC 670 2(2011) 14 SCC 379 3(2009) 12 SCC 78 7 that it is well-settled law that when disciplinary action is taken against an employee, the inquiry must strictly follow official rules and the principles of natural justice, which mean giving the employee a fair and proper hearing, and the charges brought against them must be clear, specific, and detailed, spelling out exactly what they did wrong and when. If the accusations are vague or general, the employee cannot properly defend themselves. Because of this, the entire inquiry cannot stand up in court and would be dismissed. However, no such law has been followed by the Authorities in the present case. Therefore, the impugned orders may be set aside and the petitioners may be reinstated in service with back-wages and consequential service benefits.

9. Respondent/State has filed its reply. Learned State counsel referring to its reply would submit that the petitioner Hemnidhi Patel had filed document Annexure-P/7 dated 27.03.2017, whereby he has requested for the supply of documents, and documents were supplied to him on the same day, which is also clear from the note-sheets dated 27.03.2017 and 01.04.2017. Further, he himself had endorsed in the margin of the note-sheet that he received the copy of the receipts ' वि(cid:2)क्रय नकल' & ' नामांतरण पंजी'; despite that, the petitioner did not cross-examine the departmental witnesses on 01.04.2017. Therefore, the application/prayer by him seeking time to cross-examine witnesses has been rightly rejected and, as such, it cannot be said that a due opportunity of hearing was not provided.

10. Learned State counsel, in respect of petitioner Sukhan Say Sidar, submits that the petitioner himself had cross-examined the departmental witnesses on 27.03.2017. The learned State counsel fairly submits that after the cross- 8 examination of the witnesses, the document was supplied to him on the next date of hearing, i.e., 28.03.2017, which has been endorsed in the application (Annexure-R/2) itself.

11. Learned State counsel submits that in both cases, after a due enquiry conducted by the 6-member team of Revenue/Government officials, it was found that the petitioners indulged in illegal sale/purchase transactions of tribal land with outside people, for which they prepared revenue documents which were found proved in the departmental proceedings. The learned State counsel further submits that the petitioners failed to raise any sound defence in their statements and were unable to counter the charges levelled against them. The petitioners were afforded a full opportunity of hearing and principle of natural justice has been duly followed. Hence, the major penalty of removal was imposed on the petitioners after following due procedure under Rule 10 of the Chhattisgarh Civil Services (Classification, Control and Appeal) Rules, 1966 (hereinafter referred to as the "Rules, 1966"). In view of such submissions, he prays to dismiss both the writ petitions.

12. Heard learned counsel for the parties and perused the documents placed with the petition(s) with utmost circumspection.

13. The petitioners' case involves two land record officials i.e. who were appointed as Patwaris. Both the petitioners had long careers serving in District Raigarh before they were terminated on the same day i.e.

28.07.2017 for the same allegations which relates to illegal Benami land sales in Kunkuni village. Before proceed with the matter it would apt to peruse the allegations/charges levelled against the Petitioner - Hemnidhi 9 Patel by the Sub Divisional Officer (R) Kharsiya and Petitioner- Sukhan Say Sidar by the Sub Divisional Officer (R) Lailunga, which is reproduced as under:- HEMLATA NIDHI PATEL आरोप पत्र श्री हेमविनधि(cid:25) पटेल विनलंवि(cid:27)त पट(cid:2)ारी ह०नं० 38 तहसील खरसिसया द्वारा पू(cid:2)" पट(cid:2)ारी ह०नं 13 में पदस्थापना के समय ग्राम कु नकु नी के आविद(cid:2)ासिसयों की भूविमयों के (cid:27)ेनामी क्रय-वि(cid:2)क्रय में संलिलप्त रहे । अनुवि(cid:2)भागीय अधि(cid:25)कारी (रा.) खरसिसया आरोप वि(cid:2)(cid:2)रण पत्र आप पट(cid:2)ारी ह०नं० 26 तहसील खरसिसया में पदस्थ रहने के दौरान खरसिसया तहसील आविद(cid:2)ासी ब्लाक होने के (cid:27)ा(cid:2)जूद भी ग्राम कु नकु नी के आविद(cid:2)ासी कृ षकों की भूविम को कु नकु नी से (cid:27)ाहर रहने (cid:2)ाले अनुसूधि5त जनजाधित के व्यवि7यों को आपके द्वारा वि(cid:27)क्री छांट नकल दी जा कर आविद(cid:2)ासिसयों की भूविम (cid:27)ेनामी क्रय करने में सहयोग की गई है जो कलेक्टर रायगढ़ के पत्र क्रं . 12231/वि(cid:2)त्त-स्था./2015 विदनांक 01.01.2015 के साथ संलग्न जाँ5 प्रधित(cid:2)ेदन से प्रमाणिणत है। अनुवि(cid:2)भागीय अधि(cid:25)कारी (रा.) खरसिसया **** SUKHAN SAY SIDAR आरोप पत्र श्री सुखनसाय सिसदार पट(cid:2)ारी तत्कालीन पट(cid:2)ारी तहसील खरसिसया ए(cid:2)ं (cid:2)त"मान पट(cid:2)ारी तहसील लैलू ंगा सिजला रायगढ़ ग्राम कु नकु नी तहसील खरसिसया के आविद(cid:2)ासिसयों की भूविमयों के (cid:27)ेनामी क्रय-वि(cid:2)क्रय मामले में संलिलप्त रहे । अनुवि(cid:2)भागीय अधि(cid:25)कारी (रा.) लैलू ंगा आरोप वि(cid:2)(cid:2)रण पत्र आप तहसील खरसिसया में पट(cid:2)ारी के पद पर पदस्थ रहने के दौरान खरसिसया तहसील आविद(cid:2)ासी ब्लॉक होने के (cid:27)ा(cid:2)जूद भी ग्राम कु नकु नी तहसील खरसिसया के आविद(cid:2)ासिसयों की भूविम कु नकु नी से (cid:27)ाहर रहने (cid:2)ाले अनुसूधि5त जनजाधितयों के व्यवि7यों को आपके द्वारा वि(cid:27)क्री छांट नकल दी जाकर आविद(cid:2)ासिसयों के भूविम के (cid:27)ेनामी क्रय-वि(cid:2)क्रय मामले में संलिलप्त रहे हैं जो कलेक्टर रायगढ़ के पत्र क्रमांक 12231/वि(cid:2)त्त-स्था./2015 विदनांक 01.10.2015 के साथ संलग्न जां5 प्रधित(cid:2)ेदन विदनांक 04.08.2015 से प्रमाणिणत है । अनुवि(cid:2)भागीय अधि(cid:25)कारी (रा.) लैलू ंगा

14. The provisions for charge-sheet of imputation has been provided in Rule 14(3) of the Rules 1966 which is reproduced hereunder for ready reference:- 10 "Rule 14(3) - Preparation of charge-sheet. (3)Where it is proposed to hold an inquiry against a Government servant under this rule and Rule 15, the disciplinary authority shall draw up or cause to be drawn up- (i) the substance of the imputation of misconduct or misbehaviour into definite and distinct articles of charge; (ii) a statement of the imputations of misconduct or misbehaviour in support of each article of charge, which shall contain :- (a)a statement of all relevant facts including any admission or confession made by the Government servant; (b)a list of documents by which, and a list of witnesses by whom, the articles of charge are proposed to be sustained."

15. Bare perusal of aforesaid charges, statements of imputations reproduced above and perusal of Rule 14(3) would show that only vague allegations were made against the petitioners that they had indulged in alleged illegal Benami sale purchase of land of tribals. The imputations of charge only reveal that they prepare alleged "Bikri Chhant" and provided the same to the persons, but nothing has been mentioned in the charge and the statement of imputation that what is the Khasra number of area of the land, who were the tribal owners and that to whom alleged Bikri Chhant was provided by the petitioners. On such allegations, the disciplinary Authority has called upon the petitioners to submit their defence statement in reply to the charges. This Court fails to appreciate how the petitioners could have submitted their written statement in defence in respect of charges and how a fair enquiry could be held unless they were furnished with the particulars of the alleged land of tribal persons and what document was executed in respect of alleged indulgence of petitioners. In case of Surath Chandra 11 Chakrabarty Vs. Sate of W.B.4 the Hon'ble Supreme Court while considering the vague imputation charges observed as under in Para 5:- "5.....The grounds on which it is proposed to take action have to be reduced to the form of a definite charge or charges which have to be communicated to the person charged together with a statement of the allegations on which each charge is based and any other circumstance which is proposed to be taken into consideration in passing orders has also to be stated. This rule embodies a principle which is one of the basic contents of a reasonable or adequate opportunity for defending oneself. If a person is not told clearly and definitely what the allegations are on which the charges preferred against him are founded he cannot possibly, by projecting his own imagination, discover all the facts and circumstances that may be in the contemplation of the authorities to be established against him."

16. The aforesaid finding has been further reiterated by the Hon'ble Supreme Court in Anil Gilurker Vs. Bilaspur Raipur Kshetriya Gramin Bank and another 5 .

17. Needless to say, in the present case, all the departmental witnesses examined by the Enquiry Officer were either the Chairman or members of the Enquiry Committee, and the persons who had prepared the enquiry report itself.

18. Further, as per the list of documents provided to the petitioners along with the charge-sheet, the only documents provided were the enquiry report and letter(s) of the Collector. However, no document was found to have been provided to the petitioners which they had allegedly prepared, i.e., "Bikri