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Lalta Prasad v/s State of U.P. & Others


Company & Directors' Information:- PRASAD CORPORATION PRIVATE LIMITED [Active] CIN = U32301TN1994PTC028160

Company & Directors' Information:- PRASAD AND CO. PRIVATE LIMITED [Active] CIN = U67120DL1995PTC068088

Company & Directors' Information:- M. PRASAD AND CO LIMITED [Active] CIN = U67120WB1999PLC090325

Company & Directors' Information:- H PRASAD & CO PVT LTD [Strike Off] CIN = U51109WB1944PTC011797

    Writ - A No. 24207 of 2016

    Decided On, 20 July 2018

    At, High Court of Judicature at Allahabad

    By, THE HONOURABLE MR. JUSTICE PRADEEP KUMAR BAGHEL

    For the Petitioner: Udayan Nandan, Shahsi Nandan, Advocates. For the Respondents: C.S.C.



Judgment Text

Pradeep Kumar Singh Baghel, J.

1. The writ jurisdiction of this Court under Ar ticle 226 of the Constitution of India is invoked against the order dated 6.8.2015 passed by the District Magistrate whereby he has dismissed the petition from service of Lekhpal and the order passed by the Commissioner dated 30.4.2016 whereby he has dismissed his appeal.

2. A brief reference to factual aspect would suffice. The petitioner was initially appointed as Lekhpal and later on he earned his promotion to the post of Registrar Kanoongo. While he was working in Tehsil Dibai District Bulandshahr, he was served upon a charge sheet dated 25.11.2014 containing the sole charge that while he was functioning as a Lekhpal at Tehsil Siana in the year 2002, he had submitted an incorrect report relating to a sale deed on the basis which Tehsildar passed an order to record name of the vendee in the revenue papers. To be more specific, one Ikramul Haq had executed a registered sale deed dated 28.8.2002 in favour of his wife Smt. Noorjahan. Tehsildar asked the petitioner to submit the report in respect of the said sale deed. The Tehsildar passed the order for mutation based upon the petitioner, which was found to be incorrect.

3. The petitioner was granted 15 days time to submit his reply. Before submitting his reply, he submitted an application dated 8.12.2014 before the Enquiry Officer requesting him to provide him some documents, which are necessary to submit effective reply to the charge sheet. It is submitted that his request was declined by the Sub Divisional Magistrate, Siana who communicated the petitioner, vide communication dated 29.12.2014 addressed to the Enquiry Officer that the documents required by the petitioner are not available as they have been sent to Board of Revenue, Lucknow in respect of a enquiry. The petitioner again moved an application on 2.1.2015 to provide some other documents relating to the enquiry. The said application was also rejected by the Sub Divisional Magistrate, Siana, vide communication dated 8.1.2015, on the ground that document sought by the petitioner were not relevant for the enquiry proceedings.

4. It is averred by the petitioner that under such circumstances, he had no other option but to submit reply though documents which were relevant for giving effective reply, were not furnished to him. The Enquiry Officer submitted a report dated 3.3.2015 wherein he held the petitioner guilty of charge levelled against him. The Enquiry Officer found that the petitioner had submitted an incorrect report dated 28.8.2002 with regard to ownership of Ikramul Haq as a result of which the name of vendee Smt. Noorjahan was recorded in the revenue record pursuant to the sale deed dated 8.8.2002.

5. The disciplinary authority on the basis of the enquiry report issued a show cause notice dated 19.3.2015 to petitioner calling upon him to submit his reply.

6. The petitioner challenged the said show cause notice dated 19.3.2015 by filing Writ- A No. 17442 of 2015 which was dismissed by this Court on 3.4.2015. It is averred in the writ petition that later on a notice was also issued on 16.4.2015 to the petitioner by the Revenue Record Officer asking him to be present on 22.4.2015 for personal hearing in the office of District Magistrate. It is stated that the petitioner went to the office of the District Magistrate on 22.4.2015 but he was not given personal hearing by the District Magistrate. By another letter dated 5.5.2015, he was called to appear on 7.4.2015 (sic) in the office of the District Magistrate. It is stated that on the said date also, the petitioner was not heard by any official. Whereafter, he submitted his reply on 6.4.2015 to the show cause notice dated 19.3.2015. On 6.8.2015 the District Magistrate, Bulandshahr passed an order dismissing the petitioner from service. Aggrieved by the order of the District Magistrate, the petitioner preferred an appeal which was also dismissed.

7. It is stated in the writ petition that during the pendency of the appeal, the Commissioner called for a report from the Additional Commissioner, Meerut who submitted his report dated 31.3.2016 which is on the record as Anneuxre No. 22 to the writ petition. In the said report, it is mentioned that the Tehsildar who had passed the order ought to have verified the facts but no action has been taken against the Tehsildar who had passed the erroneous order and the petitioner has been inflicted with major punishment of dismissal which, in his opinion, was disproportionate and he suggested that the petitioner be reverted to his substantive post and he be awarded censure entry.

8. In the writ petition, the petitioner has challenged aforesaid two orders amongst other grounds that entire enquiry has vitiated on the ground of violation of the natural justice; material procedural irregularity, which has caused serious prejudice to the petitioner; during the course of entire enquiry proceedings no date, time or place was fixed by the Enquiry Officer for holding any oral enquiry to prove the charges against the petitioner; the petitioner was not granted any opportunity to cross-examine witnesses to prove his innocence and the petitioner was not given relevant documents which he sought by two separate applications dated 8.12.2014 and 2.1.2015.

9. Learned counsel for the petitioner further submitted that the entire enquiry stood vitiated on the ground that no witness was examined by the Department to prove the charges. Hence, without any oral inquiry, a major penalty cannot be imposed. He further submits that Enquiry Officer did not fix any date time or place for holding the enquiry. For the aforesaid reasons, the dismissal order passed by the respondent no.3 is illegal. He lastly submitted that there is no provision under the Land Revenue Rct or the U.P. Z.A. & L.R. Act which casts an obligation on the petitioner to judge the validity of any sale deed and it is only a court of competent jurisdiction which is entitled to decide the question of title. The petitioner was liable to submit a report on only five issues:-

(a) The land does not belong to Gram Sabha and purchaser has been given the possession of the land in question.

(b) The land is free from encumbrances.

(c) The seller does not have more than 2.5 acre of land

(d) Both buyer and purchaser belong to scheduled caste.

(e) Provision of Section 168 A of the Act are inapplicable.

10. It is further submitted by the learned counsel for the petitioner that the petitioner had submitted his report diligently in accordance with provision of the Land Revenue Act and the Land Record Manual. Therefore, charge against the petitioner was not proved at all. Lastly he urged that in any view of the matter, the major punishment of dismissal was disproportionate in the facts and circumstances of the case.

11. Counter affidavit has been filed wherein it is stated that the petitioner was working a Revenue Kanoongo not as Revenue Inspector. It is averred in the counter affidavit that the petitioner was found guilty of charges levelled against him and he was offered full opportunity to defend himself and charges levelled against him were fully proved.

12. Learned Standing Counsel submitted that petitioner has been afforded full opportunity by the District Magistrate and the Enquiry Officer has found the petitioner guilty of the charge mentioned in the charge sheet. The learned Standing Counsel placed the relevant para of counter affidavit. No other submission was made.

13. I have heard learned counsel for the petitioner Sri Udayan Nandan and learned Standing Counsel.

14. The petitioner was subjected to the disciplinary proceeding in the year 2014 in respect of an erroneous report submitted by him in the year 2002. In the charge sheet, there was only one charge regarding submission of said incorrect report by him. There is no material on record to indicate reason for initiating the disciplinary proceeding against the petitioner after 12 years. The petitioner in paragraphs 17 & 18 of the writ petition has averred that Enquiry Officer did not fixe any date, time or place during enquiry proceedings and also no oral inquiry was conducted. The said averment has not been denied in the counter affidavit. Averments made by the petitioner in paragraphs 17, 18 & 19 read as under:-

"17. That it is submitted that during the course of the entire inquiry proceedings, no date, time or place was fixed by the Inquiry Officer for holding any oral inquiry against the petitioner.

18. That it is clear from the perusal of the inquiry report that no oral inquiry whatsoever was held by the Inquiry Officer before submitting the report dated 03.03.2015.

19. That it is submitted that no witnesses were examined by the Inquiry Officer to prove the charges against the petitioner and, as such, the entire inquiry proceedings are completely illegal."

15. The said averments have been replied in paragraphs 12 and 13 of the counter affidavit in the following terms:-

"12. That the contents of paragraph Nos. 16 & 17 of the writ petition are not correct as stated hence denied.

13. That the contents of paragraph Nos. 18, 19 & 20 of the writ petition are not correct as stated hence denied. In reply it is submitted that petitioner was afforded full opportunity to defend himself and the charge leveled against him were fully proved."

16. I have perused the enquiry report, from a careful reading of the enquiry report, it emerges that the allegations made in the writ petition that Department did not produce any witness to prove the charges is correct. Thus, from the pleadings and from the material on record, it is established that no oral enquiry was conducted and the enquiry officer has not fixed any date, time or place for holding the enquiry. It is trite law that disciplinary proceedings are akin to quasi judicial proceedings. The Supreme Court and this Court also in long line of decisions have settled that in the departmental proceedings specially when a major punishment is to be inflicted, the oral inquiry is necessary.

17. It is trite law that strict rule of evidence is not applicable to the disciplinary proceedings but the charges levelled against the employee must be found to have been proved. In arriving at the finding of guilt, a duty is cast upon the Enquiry Officer to take into consideration all material facts and evidence. His findings should not be perverse or unreasonable. If it is found that finding is based upon irrelevant factors not germane for the purpose of arriving at finding of fact, in such cases, a case of judicial review is made out.

18. In disciplinary proceedings unlike criminal proceedings only preponderance of probabilities and some material on record is a must to establish the misconduct against employee. But in criminal proceedings the offences registered against him are established beyond doubt.

19. The next question, which falls for consideration, is the effect of non-examining any witness by the Department in respect of the proof of charge. Concededly, no oral enquiry was conducted in support of the charge. The effect of not examining any witness by the Department has been considered by this Court in number of cases including the case of Govind Lal Srivastava Vs. State of U.P., 2009 (4) ADJ 630.

20. In Subhash Chandra Sharma Vs. Managing Director and another, 2000 (1) UPLBEC 541, the Division Bench of this Court has held as under:-

"7. ...The Court also held that in the enquiry witnesses have to be examined in support of the allegations, and opportunity has to be given to the delinquent to cross-examine these witnesses and to lead evidence in his defence. In Punjab National Bank v. A.I.P.N.B.E. Federation, AIR 1960 SC 160 (vide para 66) the Supreme Court held that in such enquiries evidence must be recorded in the presence of the charge-sheeted employee and he must be given an opportunity to rebut the said evidence. The same view was taken in A.C.C. Ltd. v. Their Workmen, (1963) II LLJ 396, and in Tata Oil Mills Co. Ltd. v. Their Workmen, (1963) II LLJ. 78(SC).

8. Even if the employee refuses to participate in the enquiry the employer cannot straightaway dismiss him, but he must hold and ex-parte enquiry where evidence must be led vide Imperial Tobacco Co. Ltd. v. Its Workmen, AIR 1962 SC 1348, Uma Shanker v. Registrar, 1992 (65) FLR 674 (All)."

21. Supreme Court is Roop Singh Negi Vs. Punjab National Bank, (2009) 2 SCC 570, held as under:-

"Indisputably, a departmental proceeding is a quasi-judicial proceeding. The enquiry officer performs a quasi-judicial function. The charges levelled against the delinquent officer must be found to have been proved. The enquiry officer has a duty to arrive at a finding upon taking into consideration the materials brought on record by the parties. The purported evidence collected during investigation by the investigating officer against all the accused by itself could not be treated to be evidence in the disciplinary proceedings. No witness was examined to prove the said documents. The management witnesses merely tendered, the documents and did not prove the contents thereof. Reliance, inter alia, was placed by the enquiry officer on the FIR which could not have been treated as evidence."

22. Similar view has been taken in following paragraphs (2013) 6 ADJ 250, Sohan Lal Vs. U.P. Co-operative Federation Ltd., and another:-

"26. The principle of law emanates from the above judgments are that initial burden is on the department to prove the charges. In case of procedure adopted for inflicting major penalty, the department must prove the charges by oral evidence also.

27. From the perusal of the enquiry report it is demonstrably proved that no oral evidence has been led by the department. When a major punishment is proposed to be passed the department has to prove the charges against the delinquent/employee by examining the witnesses and by documentary evidence. In the present case no witness was examined by the department neither any officer has been examined to prove the documents in the proceedings.

28. It is trite law that the departmental proceedings are quasi-judicial proceedings. The Inquiry Officer functions as quasi-judicial officer. He is not merely a representative of the department. He has to act as an independent and impartial officer to find out the truth. The major punishment awarded to an employee visit serious civil consequences and as such the departmental proceedings ought to be in conformity with the principles of natural justice. Even if, an employee prefers not to participate in the enquiry the department has to establish the charges against the employee by adducing oral as well as documentary evidence. In case the charges warrant major punishment then the oral evidence by producing the witnesses is necessary."

23. Applying the aforesaid principle in the present case, Court finds that the enquiry proceedings stand vitiated on the ground of major infirmity that no oral evidence was adduced to prove the charges nor any date, time or place fixed by the Enquiry Officer as alleged by the petitioner which has not been specifically denied.

24. In so far the finding of the Enquiry Officer regarding submission of an incorrect report by the petitioner is also not correct. The allegation against the petitioner was that one Ikramul Haq son of Hanif Khan executed a sale deed dated 8.8.2002 in favour of his wife Noorjahan. The vendee moved an application to record her name on the basis of the sale deed. On the said application, the Tehsildar called for the report from the petitioner, who was working as a Lekhpal. From the record, it appears that in 1380-1390F, Khata No. 1029, Plot No. 1959 area 1-3-0 and Plot No. 1962 area 0.04.0, total area 3.4.0 was recorded in the name of Mohd. Hanif son of Mohd. Saddiq Khan, resident of Siana. In compliance of the order of the Civil Judge, as per order of the SDO, Siana dated 19.5.1974, the name of Mohd. Hanif was struck off and in his place, name of Mohisina Begum daughter of Mohd. Hanif was recorded.

25. It appears that Ikramul Haq son of Mohd. Hanif filed a suit under Section 229-B of U.P. Z.A. & L.R. Act in respect of the same plots. The suit was decreed on 25.10.1993 and in 1406-1411F, in the Khatauni, Ikramul Haq's name was recorded in place of Mohisin Begum. The Judgment of the revenue court was challenged by Smt. Mohisina Begum, who is sister of Ikramul Haq before the Additional Commissioner, Meerut under Section 331 of the U.P. Z.A. & L.R. Act . The Additional Commissioner, vide his order dated 31.3.1986, set aside the order dated 25.10.1983.

26. Being dissatisfied with the order of Additional Commissioner, Ikramul Haq preferred Revision No. 108 of 1985-86 before the Board of Revenue on 28.8.1986. The Board of Revenue by its interim order dated 22.8.1986 stayed the operation of the order of the Additional Commissioner till further order. It appears that the said revision was dismissed in default on 23.9.1988.

27. From the aforesaid fact, it is clear that there was long drawn litigation between Ikramul Haq and his sister Mohisina Begum and the matter was pending and at the time of initiation of disciplinary proceedings, the litigation was going on between the parties for the last several years and different orders were passed by the Revenue Court.

28. Regard being had to the fact that the appellate authority has called for a report from the Additional Commissioner, Meerut, who had submitted his report on 31.3.2016, which is on record as Annexure No.22 to the writ petition. From the perusal of the said report, it is evident that there was no evidence against the petitioner that he submitted the said report with some ulterior motives and it appears to be a bona fide mistake due to several Judgments and orders of the Revenue Court from time to time.

29. Department has not adduced any oral evidence to prove the charge against the petitioner that he submitted the report with ulterior motive or for extraneous consideration. The petitioner, who has more than 25 years of unblemished service record, cannot be visited with a major punishment of dismissal from service on the basis of an enquiry report in whi

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ch Department failed to prove the charge against the petitioner. Thus, the view taken by the Commissioner that on account of his submission of a wrong report, a person has been deprived of his land, is totally an erroneous view. It is well settled law that mutation does not decide the title. Its limited scope is only to pay the revenue. Hence, the District Magistrate and Commissioner both have taken erroneous view that due to the mistake of the petitioner, the person has lost his title. 30. Both the authorities have also failed to notice that there was series of litigation regarding title of land between the brother and sister and Ikramul Haq has executed the sale deed in favour of his wife. Thus, it was a family dispute and a litigation was going on in respect of the title of the land. When the disciplinary proceeding was initiated, the Suit filed by Ikramul Haq under Section 229 B was decreed and the litigation between the parties was still going on. For the said reasons, it cannot be said that the petitioner has deliberately submitted a false report. The bona fide mistake in such circumstances cannot be completely ruled out. 31. The charge against the petitioner relates to the year 2002, hence, in my view, it would not be appropriate to send the matter back for fresh inquiry at this distance of time as discussed above the material on record does not establish the charge against petitioner. 32. For all the reasons discussed above, petition is allowed. The order of the District Magistrate dated 6.8.2015 dismissing the petitioner from the post of Lekhpal and the order of the Commissioner dated 30.4.2016 rejecting his appeal, are set aside. 33. The petitioner shall be entitled for the consequential benefits. In so far the salary of the petitioner during the period which he has not worked is concerned, the District Magistrate shall pass appropriate order in accordance with law. Irrespective of the order of the District Magistrate, the petitioner shall be treated to be in service for other benefits.
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22-07-2019 Manik Lal Prasad Versus State of Bihar & Others High Court of Judicature at Patna
22-07-2019 Rajendra Prasad Sharma Versus M/s. Hartin Harris Ltd. High Court of Judicature at Calcutta
19-07-2019 K.M. Prasad Versus State by Assistant Commissioner of Police, Devaraja Division, Benglauru & Another High Court of Karnataka
18-07-2019 Sujan Bhabani Prasad Chatterjee & Another Versus Rajendra Kumar Singh & Another High Court of Judicature at Bombay
17-07-2019 Ramjee Prasad Versus State of Bihar & Others High Court of Judicature at Patna
16-07-2019 State of U.P. Thru Collector Allahabad Versus Haushala Prasad High Court of Judicature at Allahabad
09-07-2019 Nitya Nand Prasad Gupta Versus The State of Bihar through the Pinki Pal, Secretary, Department of Housing & Urban Development & Others High Court of Judicature at Patna
08-07-2019 C. Rajendra Prasad Versus The Tamil Nadu State Legal Services Authority, Rep. by its Member Secretary, Chennai & Others High Court of Judicature at Madras
08-07-2019 Ranjan Prasad Srivastava Versus State of Bihar & Others High Court of Gauhati


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