Xavier Harenz v. The State of Jharkhand

victims including three persons, namely, Sardar Sardul Singh Kalsi, Smt. Gurucharan Kour and Sardar Sabrjeet Singh Kalsi to the tune of Rs. 1000/-. In compliance of the order of the then Additional Collector, Bokaro, the then S.D.O., Chas vide memo dated 1.8.1988 disbursed the amount of Rs. 2 1000/- each to the said persons. Subsequently, the Deputy Commissioner, Bokaro issued order dated 31.8.1993 directing the then Dy. Collector, Nazarat, Bokaro for payment of Rs. 48,000/- in favour of Sardar Sardul Singh Kalsi for the loss suffered on account of riot to his business premises, named as, Hotel Allora in Bokaro Steel City and it was directed that payment shall be paid to the victim by 1.9.1993 and the victim Sardar Sardul Singh Kalasi received said amount of Rs. 48,000/- on 1.9.1993 from the Dy. Collector, Nazart Bokaro. The Deputy Collector, Land Reforms before making payment of Rs. 48,000/- has made an assessment of Rs. 5,50,000/- as a loss to the industry vide his letter dated 4.7.1988. A further assessment of Rs. 1,63,000/- was estimated for payment on account of loss suffered by the son of Sardar Sarbjeet Khalsi by the Deputy Collector Land Reforms, Bokaro. Therefore, a total sum of Rs. 5,50,000/- and Rs. 1,63,000/- was assessed by the then LRDC for Sabarjit Industries while Rs. 48,000/- was paid out of the loss of Allora Hotel owned by the Sardar Sardul Singh Kalsi.

5. The petitioner was posted as S.D.O., Chas in the district of Bokaro from 8.3.2006 to 27.8.2007. Vide Memo No. 260 dated 16.3.2007, the petitioner was appointed as DDO for an amount of Rs. 1,19,000.00 for the Rehabilitation package and the same was withdrawn by the petitioner upon the decision of the Committee and the order of Nodal Officer. Further in the light of the decision taken the Committee vide letter no. 242 dated

13.3.2007 and memo nos. 284 and 288 dated 30.3.2007, the payment was made to the Sarabjit Singh Kalsi and Sardul Singh Kalsi and a receiving dated 13.4.2007 was obtained and sent for compliance report by the petitioner. Thereafter, the petitioner was transferred to Hazaribagh as District Supply Officer on 27.8.2007. During this period, a letter dated

14.2.2011 was received by the petitioner under the signature of Dy. Secretary, Govt. of Jharkhand along with memo of charge dated 1.10.2010 issued by the Deputy Commissioner, Bokaro, alleging therein that the victim Sarabjit Singh Kalsi and Sardul Singh Kalsi have been paid Rs. 71,30,000/- instead of Rs. 4,32,000.

6. Thereafter, an enquiry was started and the petitioner denied the allegation levelled against him. Finally, the enquiry officer found the charges to be proved against the petitioner and same was culminated into 3 dismissal from service vide order dated 16.9.2015 (Annexure-10). Aggrieved thereby, the petitioner challenged the termination order dated

16.9.2015 by filing W.P.(S) No. 4772 of 2015. This Court, by order dated

24.8.2016 after hearing the parties, has been pleased to quash and set aside the termination order with direction for reinstatement of the petitioner. However, liberty was given to the respondents to start fresh proceedings after affording opportunity to the petitioner. There-against, the State of Jharkhand preferred letters patent appeal, being L.P.A. No. 16 of 2017, which also stood dismissed on 2.5.2017.

7. It may be stated that before termination of the petitioner in connection with the above matter, a memo of charge dated 16.4.2015 was issued under the signature of Deputy Commissioner, Ranchi to the petitioner with the allegation that during the period 2014-15, while he was posted as Special Officer, Ranchi, he misused the provisions of Section 71 (A) (2) of the Chotanagpur Tenancy Act, 1980, while passing the order of compensation for the land on which substantial structures were found to be of less than 30 years. It was further alleged in the memo of charge that the order for compensation was passed without verifying the opposite party and without physical verification of the site. It was also alleged in the memo of charge that despite the records were called for by the appellate Court, the petitioner has passed the order of compensation. There were altogether six cases, in which, the petitioner has violated the provisions of Chotanagpur Tenancy Act. The petitioner while denying the charges levelled against him replied by his representation dated 11.5.2015 that he never flouted the provisions of Chotanagpur Tenancy Act while passing the order of compensation, rather, after going through the records of land, affidavit and depositions of the parties along with the photographs of the structure, he used to pass the orders. The petitioner further replied that the orders of appellate court were not annexed with the records. Therefore, the compensatory amount was accepted by the Court through demand draft. Soon thereafter, the petitioner was suspended and transferred to the office of Regional Commissioner, South Chotanagpur, Ranchi.

8. Thereafter enquiry proceeding started and finally, the enquiry officer submitted the report on 5.1.2016 finding the charges are proved. Along with the report, a comparative chart was also submitted by the 4 enquiry officer. It is stated that at the time of submission of enquiry report regarding violation of CNT Act in passing the orders by the petitioner as Special Judge, SAR Court, there was already a termination order against the petitioner dated 16.9.2015 on the charges of misuse of fund related to Sikh Riot case. Though the said termination order dated 16.9.2015 was quashed and set aside by this Court in W.P.(S) No. 4772 of 2015, affirmed in L.P.A. No. 16 of 2017 and the petitioner in compliance of the Court’s order was yet to be reinstated in service, but second show cause dated

4.8.2017 was issued to the petitioner, directing him to submit his reply to the enquiry report dated 5.1.2016. It is specific case of the petitioner that since at that time, he was not in service and as such, the proceeding is illegal and without jurisdiction. Again the petitioner moved before this Court in W.P.(S) No. 5642 of 2017 and requested the respondents by letter dated 7.9.2017 to give some time to file reply to the enquiry report dated

5.1.2016. However, the petitioner was again dismissed from service by the impugned order dated 15.2.2018 (Annexure-23). Challenging the order of dismissal dated 15.2.2018, the petitioner has filed this writ petition.

9. Counter affidavit was filed by the respondents stating therein that the Department has framed a memo of charge in Prapatra-‘Ka’ vide letter dated 17.3.2015 with the allegation that during the tenure, the petitioner as Special Area Regulation Officer, Ranchi, had regularized the tribal land by determining compensation for the transfer of land without holding proper inquiry in altogether six cases. In these cases, there was no substantial structures on the lands and it was also not ascertained whether the lands were in possession of the opposite parties prior to 1969 and lands were not verified physically. Thereafter, the Department has framed another memo of charge against the petitioner in Prapatra-‘Ka dated 16.4.2015 with the allegation that the petitioner had regularised the land on 30.3.2015 in SAR Case No. 185/09-10 in favour of opposite party though SAR Appeal Case No. 35R15/14-15 was under consideration in the Court of Deputy Commissioner, Ranchi. Thus, the petitioner passed the order against the rules. The enquiry officer after examining every aspects found the petitioner guilty of the charges. It is also stated that the petitioner was dismissed in another case which related to the allegation during his tenure as Sub-Divisional Officer, Chas, by resolution no. 8297 dated 16.9.2015. 5 Therefore, before inflicting punishment related to SAR cases, the Department took legal opinion and in turn, it was opined that there was no bar in service rule from passing order of punishment against the persons already punished in different proceeding. Even in criminal proceeding, the punishment is awarded separately in all the proceedings.” Thereafter, the department moved ahead with the enquiry report submitted in connection with SAR cases and issued second show cause notice, but the petitioner never replied the same. However, the petitioner submitted an application on

29.11.2017 stating therein that since he had filed a writ petition, being W.P.(S) No. 5642 of 2017, which is sub-judice, it is not imperative to submit reply to the second show cause. Thereafter, the matter was reviewed and it was found that no stay order has been passed by the Court and finally after adhering to the procedure established by law, dismissed the petitioner from service by the impugned order. It is also stated in the counter affidavit that approval of Hon’ble the Chief Minister of the State was also obtained on the proposed penalty of dismissal of the petitioner in the meeting of Cabinet held on 7.2.2018. Arguments of learned counsel for Petitioner

10. Mr. Anoop Kumar Mehta, learned counsel for the petitioner strenuously urges that the order of dismissal is not tenable in the eyes of law. It has been argued that the petitioner was already dismissed in another departmental proceeding and as such, proceeding conducted in the present case and passing order of dismissal is not tenable and non-est in the eyes of law. In furtherance of his argument, learned counsel submits that no oral or documental evidence was ever produced before the enquiry officer and as such, it can comfortably be said that it is a case of no evidence. Referring to para-38 of the writ petition, he argues that in the entire departmental proceeding, neither any documents nor any evidence has been brought on record. So far as charges levelled against the petitioner is concerned, learned counsel submits that there was no stay order by the appellate court or even no order of calling the case records by the appellate court has been brought on record and as such, the petitioner proceeded in the SAR cases. Therefore, the charges are vague and it is well settled that if the delinquent was punished for the vague charges, the entire departmental proceeding including the punishment vitiates. Learned counsel further submits that 6 there has been no dereliction of duty on the part of the petitioner and the allegation of violation of Section 71-A of the Chota Nagpur Tenancy Act is not made out in the present case. He further argues that the enquiry officer has relied upon the preliminary enquiry and the same has been taken into consideration for proving the guilt as an evidence. Learned counsel further submits that negligence or mere error in a quasi-judicial adjudication does not come within the meaning of ‘misconduct’. He further submits that if every error or law were to constitute a charge of misconduct, it would impinge upon the independent functioning of quasi-judicial officers like the petitioner. Since, in sum and substance misconduct is sought to be inferred by the respondents having committed an error of law, the charge-sheet including the punishment order on the face of it does not proceed on any legal premises, rendering it liable to be quashed.

11. In support of his arguments, learned counsel for the petitioner places heavy reliance’s upon the judgments rendered by the Hon’ble Apex Court in following cases:- (i) (1999) 7 SCC 409 (Zunjarparo Bhikaji Nagarkar Vs. Union of India (ii) (iii) & Anr.). (2010) 2 SCC 772 (State of Uttar Pradesh & Ors. Vs. Saroj Kumar Sinha) (2013) 4 SCC 301 (Nirmala J. Jhala Vs. State of Gujarat and Another).

12. Concluding his argument, learned counsel submits that the order of dismissal is not tenable in the eyes of law as the same is based on no evidence. The entire departmental proceeding is based on the vague charges, which cannot be sustained and as such, the entire departmental proceeding along with the order of dismissal is fit to be quashed and set aside. Arguments of learned counsel for Respondents

13. On the other hand, Mr. Ajit Kumar, AC to GA-V, representing the respondents, vehemently opposes the contention of learned counsel for the petitioner and submits that the petitioner has not approached this Court with clean hand. Learned counsel points out that Annexure-A, at page-49 of the counter affidavit is the first charge-sheet in Prapatra’Ka’ dated

17.3.2015, which relates to regularization of tribal land in favour of non- 7 tribal person, which has neither been brought on record nor assailed by the petitioner, either in the present case or in first round of litigation, in W.P.(S) No. 4772 of 2015, which amounts to concealment of facts. While the petitioner has challenged his earlier dismissal order dated 16.9.2015 in connection with Sikh Riot case, the present charges dated 17.3.2015 and

16.4.2015 were in existence there and the petitioner has concealed this fact. In furtherance of his argument, it has been submitted that the petitioner was very much aware about the appeal pending before the appellate Court, as the lower court records were called for from the SAR Court of the petitioner itself and as such, the ignorance of the same amounts to duping the appellate Court. In reply to the argument advanced by learned counsel for the petitioner to the effect that since the petitioner was already dismissed in another departmental proceeding, there could not be second order of dismissal, learned counsel for the State submits that the same is not tenable, as the same has been passed in different departmental proceeding and there is no such bar in not awarding different punishment in different departmental proceeding in the eyes of law. He also argues that misconduct on the part of the petitioner has rightly been enquired into by the enquiry officer as well as by the disciplinary authority, wherein, it was found that the conduct of the petitioner was an unbecoming of a Government servant, since the petitioner has violated the provisions enshrined in Section 71-A of the Chota Nagpur Tenancy Act. Learned counsel further submits that the petitioner in several cases had regularized the tribal land by determining compensation for transfer of land without holding proper inquiry, which is against the provisions of law. Learned counsel further submits that even the quasi-judicial power has to be exercised in a proper way in accordance with law.

14. Placing reliance upon the judgment rendered in the case of Union of India & Others. Vs. K.K. Dhawan, reported in (1993) 2 SCC 56, learned counsel submits that disciplinary proceedings could be initiated against the Government servant even with regard to exercise of quasi- judicial powers provided there is prima facie material, the act or omission is such as to reflect on the reputation of the Government Servant for his integrity or good faith or devotion to duty and in other cases.

15. Learned counsel lastly argues the entire 8 departmental proceeding, nothing has been brought on record to show that there has been violation of principle of natural justice. Neither any foully has been pointed by the petitioner during course of entire departmental proceeding and as such, no interference is warranted in the writ petition and the same is fit to be dismissed. Findings of the Court

16. Having heard the learned counsel for the parties and having gone through the records, this Court is of the considered view that no interference is warranted in the writ petition for the following facts and reasons:- (i) Admittedly no folly has been pointed out by the petitioner in the entire departmental proceeding. The cardinal principal of natural justice has been followed. The petitioner has been given ample opportunity and he has participated in the proceeding and the finding has been returned by the enquiry officer holding the petitioner guilty of the charges. (ii) The act or omission of the petitioner is reflected as unbecoming of a Government Officer. The charge of regularizing the tribal land in favour of non-tribal person by determining compensation without holding proper inquiry of the land and the person concerned is proved by the enquiry officer. The enquiry officer has cited at least six orders passed by the petitioner, wherein, the petitioner without ascertaining as to whether the lands were in possession of the opposite parties or not and without verifying the physical verification and evidences of the parties, has passed the orders for transfer of land. (iii) By order dated 3.1.2023, this Court directed the respondents to bring on record at least one order which has been passed by the petitioner in the proceeding under section 71 A of the Chotanagur Tenancy Act. The respondents by way of supplementary counter affidavit dated

20.2.2023 brought on record the order dated 30.3.2015 passed by petitioner in SAR Case No. 185/2009-10 (Etwa Kachhap & Ors Vs. Gyatri Devi & Ors), as also the order passed by the Deputy Commissioner, Ranchi in SAR Appeal No. 35 R 15 /2014-15. From perusal of both the orders, it is apparent that the petitioner has passed 9 the order of regularization of land in lieu of compensation without verifying the substantial constructions and therefore, the Deputy Commissioner has remanded back the matter to the petitioner for passing fresh order. (iv) From the documents brought on record, it also appears that the appeal was preferred by the parties and the same were pending before the appellate court and despite this, the petitioner has passed the order. Such ignorance of the petitioner amounts to duping the higher court, which is impermissible in the eyes of law. (v) In first round of litigation, i.e. in W.P.(S) No. 4772 of 2015, the petitioner has challenged the memo of charge dated 1.10.2010 and dismissal order dated 16.9.2016, which gave rise of the complaints related to Sikh Roit. At that time, the petitioner was already served with another memo of charge dated 17.3.2015, which at page-49 of the counter affidavit, related to the present proceeding. The petitioner has purposely not challenged the present departmental proceeding and has concealed the materials facts, even in the present writ petition. (vi) The argument advanced by learned counsel for the petitioner that since the petitioner was already dismissed in earlier case, so the proceeding conducted in the present case and passing order of dismissal is not tenable, is totally misconceived. From the record it appears that the petitioner was earlier dismissed in a different proceeding on 16.9.2016. The 2nd charge memo was issued in the instant case on 17.3.2015 itself. Therefore, the law is very clear that whenever a proceeding has been initiated from the date of issuance of charge-sheet, the same has to come a logical end. In the instant proceeding also, after framing of the charges, enquiry officer was appointed and after the finding of the enquiry officer, the disciplinary authority has awarded the punishment. There is no illegality or infirmity in the order. (vii) Regarding quasi-judicial powers exercised by the petitioner, the issue fell for consideration before the Hon’ble Apex Court in the case of Union of India & Ors. Vs. K.K. Dhawan (supra). Their Lordships in para-19 has held the circumstances for initiation of department 10 proceeding against the Government servant even with regard to exercise of quasi-judicial powers, which reads as under :- “19. The above case, therefore, is an authority for the proposition that disciplinary proceedings could be initiated against the Government servant even with regard to exercise of quasi-judicial powers provided:- (i) The act or omission is such as to reflect on the reputation of the Government servant for his integrity or good faith or devotion to duty, or (ii) There is prime facie material manifesting recklessness or misconduct in the discharge of the official duty, or (iii) The officer had failed to act honestly or in good faith or had omitted to observe the prescribed conditions which are essential for the exercise of statutory power.” (viii) The charge against the petitioner in the present proceeding is fully covered with the ratio laid down by the Hon’ble Supreme Court in the aforesaid case. From the perusal of the orders passed by the petitioner in SAR cases, vis-à-vis, the order passed in SAR appeal, it appears that there is prime facie material against the petitioner manifesting recklessness in the discharge of official duty. The petitioner has failed to act honestly which is essential for the exercise of statutory power. The act of the petitioner appears to be an unbecoming of a Government servant and his integrity and devotion of duty are questionable beyond all reasonable doubts. (ix) The reliance placed by learned counsel for the petitioner upon the judgment in the case of Zunjarrao Bhikaji Nagarkar (supra) is of no help to the petitioner as the same is not attracted in the instant case. Their Lordship in para-40 held as under:- this Court talk of negligence “40. When we in a quasi-judicial adjudication, it is not negligence perceived as carelessness, inadvertence or omission but as culpable negligence. This is in State of Punjab v. Ex-Constable Ram Singh [(1992) 4 SCC 54 : 1992 SCC (L&S) 793 : (1992) 21 ATC 435] interpreted “misconduct” not coming within the purview of mere error performance of duty. In the case of K.K. Dhawan [(1993) 2 SCC 56 : 1993 SCC (L&S) 325 : (1993) 24 ATC 1] the allegation was of conferring undue favour upon the assessees. It was not a case of negligence as such. In Upendra Singh case [(1994) 3 SCC 357 : 1994 SCC (L&S) 768 : (1994) 27 ATC 200] the charge was that he gave illegal and improper directions to the assessing officer in order to unduly favour the assessee. The case of K.S. Swaminathan [(1996) 11 SCC 498] was not where judgment, carelessness or negligence 11 the respondent was acting in any quasi-judicial capacity. This Court said that at the stage of framing of the charge the statement of facts and the charge-sheet supplied are required to be looked into by the court to see whether they support the charge of the alleged misconduct. In M.S. Bindra case [(1998) 7 SCC 310 : 1998 SCC (L&S) 1812] where the appellant was compulsorily retired this Court said that judicial scrutiny of an order imposing premature compulsory retirement is permissible if the order is arbitrary or mala fide or based on no evidence. Again in the case of Madan Mohan Choudhary [(1999) 3 SCC 396 : 1999 SCC (L&S) 700] which was also a case of compulsory retirement this Court said that there should exist material on record to reasonably form an opinion that compulsory retirement of the officer was in public interest. In K.N. Ramamurthy case [(1997) 7 SCC 101 : 1997 SCC (L&S) 1749] it was certainly a case of culpable negligence. One of the charges was that the officer had failed to safeguard government revenue. In Hindustan Steel Ltd. case [(1969) 2 SCC 627 : AIR 1970 SC 253] it was said that where proceedings are quasi- judicial penalty will not ordinarily be imposed unless the party charged had acted deliberately in defiance of law or was guilty of conduct contumacious or dishonest or acted in conscious disregard of its obligation. This Court has said that the penalty will not also be imposed merely because it is lawful so to do. In the present case, it is not that the appellant did not impose penalty because of any negligence on his part but he said it was not a case of imposition of penalty. We are, however, of the view that in a case like this which was being adjudicated upon by the appellant imposition of penalty was imperative. But then, there is nothing wrong or improper on the part of the appellant to form an opinion that imposition of penalty was not mandatory. We have noticed that the Patna High Court while interpreting Section 325 IPC held that imposition of penalty was not mandatory which again we have said is not a correct view to take. A wrong interpretation of law cannot be a ground for misconduct. Of course it is a different matter altogether if it is deliberate and actuated by mala fides.” (x) Here, the allegation against the petitioner is not of interpreting the law, rather, he acted in concealing the material facts and against the provisions of law and passed order which amounts to unbecoming of a Government servant and as such, the judgment relied upon by the learned counsel for the petitioner is of no help to the petitioner. (xi) Further reliance placed in the case of State of Uttar Pradesh and ors. Vs. Saroj Kumar Sinha (supra) is also of no help to the petitioner as the ratio laid down therein is not attracted in the instant case. (xii) Further the petitioner has also relied on the judgment in the case of Nirmala J. Jhala (supra) which is also not attracted in the instant case and the same is of no help to the petitioner. Nowhere it has 12 come that enquiry report is based on preliminary enquiry. The argument of learned counsel for the petitioner is not acceptable to this Court, as the same is not in consonance with the legal provisions and is totally misconceived. The impugned order passed by the disciplinary authority is totally justified and the same requires no interference. (xiii) Even otherwise, the scope of judicial review is very limited. The decision of disciplinary authority on proof of charge is not to be interfered in exercise of judicial review by the constitutional courts. The interference with the disciplinary proceedings by the Court sitting under Article 226 cannot be on the basis of re-appreciation of evidence. The Court cannot go on the sufficiency and reliability of the evidence. The Court shall not interfere if there are some legal findings. In the present proceeding, this Court is in full agreement with the order passed by the disciplinary authority.

17. As a squitter to the aforesaid rules, regulations, guidelines and judicial pronouncements, this Court finds no ground to interfere with the impugned order dated 15.2.2018, dismissing the petitioner from service.

18. Having no merit in the writ petition, the same is hereby dismissed. R.Kr. (Dr. S. N. Pathak, J.)