BEFORE THE HON‘BLE MAE-IYA PRADES—I STATE AWINISTRATIVE TRIBUNEL. RAIPUR (CHHATTxsGARH) WW“) _. WK H’K >M—VO'} r4 /* No... -21923.1.. tiled taday...?:.%...‘.lEffgi. by 5hri&%v%«w~* b Fo gistrar, M. P, State dw Tr$mah RAIPUR. o oA. N0 9 Petitioner ... Jairan Déwangan S/e Late shri Dulbo Prasad Dewangan. aged about 54 years, Revenue Inspector. Settlement office. South Easter. Jagdalpur (Chhatpisgarh) VERSU$ RESPONDENTS . o . 1) sum or CHHATTISGARH. magma .ma sEcRETARY; REVENUE DEPARmmT, 11.x. EHAWAN. RAIPUR (CHHATTIsGARH) STATE OF M.P. thmugh the secretary, Revenue Department Vallabh shawan, Empalmm.) ’ 3) The Commissioner, Bastar Division, Jagdalpur (Chhattisgaz‘h) 4) ’Ihe Collector. Dis'tt. Bastar, Jagdalpur (Chhattisgalh) APPLICATI‘oN UNDERHSECTION 19 OF s'rATE ADMINIs'rRA'rIVE TRIBUNEL'ACT.‘ 1985. 1) Name“ and Address of Applicant. 2) Name and Addresaes : As stated above. of Respondents ’ As stated above. ooze. HIGH COURT OF CHHATTISGARH, BILASPUR SINGLE BENCH : HON’BLE SHRI MANINDRA MOHAN SHRIVASTAVA,J. Writ Petition [SI No. 3515(2005 PETITIONER Jairam Dewangan Versus RESPONDENTS State of Chhattisgarh 85 Ors. ORDER POST ON $AUGUST 2010 "i(/\ V/K sdl‘ n shfhlastava Man‘m9r3 W1; ’xudg /r, V / i W 7/ Je HIGH. COURT OF CHHATTISGARH z BILASPUR Writ Petition 1S] No. 35 15[2005 PETITIONER Jairam Dewangan Versus Stat6 of Chhattisgarh 85 Ors. RESPONDENTS __—_'——— Agpearance: Shri Manoj Paranjpe, counsel for the petitioner. Shri V.V.S. Murthy, Dy. Advocate General along with Smt. Smita Ghai, Panel Lawyer for the State. ORDER (Passed on 2.3 .082010) 1. This petition has been tiled by the petitioner assailing legality and validity of order dated 21St/ 30m March, 2000 (Annexure A—2), by which penalty of withholding four increments with cumulative effect has been imposed on the petitioner, as also order dated 24.10.2000 (Annexure A-l) passed in appealyby the Appellate Authority/ Commissioner, ' Bastar Division, Jagdalpur, by which the petitioner’s appeal against the order of penalty has also been dismissed. 2. Case of the petitioner is: that while he was working as Revenue Inspector, on certain allegations, he was placed under suspension vide order dated 28m January, 1997 (Annexure Av4). Thereafter, a charge sheet was issued to the petitioner on 30th January, 1997 ‘(Annexure A- 5), instituting departmental enquirywPetitioner submitted applications (Annexures A-6 82, A—7)‘ demanding copy of preliminary enquiry as also 3 statements of witnesses recorded during preliminary enquiry. However Vide letter dated 18.2.1997 (Annexure A-8); the petitioner’s application was rejected. Thereafter, an Enquiry Officer was appointed, who conducted the enquiry, examined prosecution and defence witnesses. After submission of enquiry report dated 31st December, 1999 (Annexure A-12), the Disciplinary Authority/Collector, issued a show- cause notice to the petitioner on 10.1.2000 along with copy of the enquiry report and after receipt of petitioner’s reply dated 8.2.2000, passed impugned order dated 215t/30'h March, 2000 (Annexure A—2), by which a penalty of withholding four increments with cumulative effect was imposed. On appeal made to the Commissioner, the order of penalty was upheld and the appeal was dismissed. . Assailing the legality and validity of the order of penalty and dismissal of appeal, learned counsel for the petitioner submitted that though none of the charges were proved, Enquiry Officer perversely recorded charge No.1 as partly proved. Charge No.2 was not proved. It was further contended that the petitioner had demanded copy of preliminary enquiry report as also statements of witnesses recorded during the preliminary enquiry, which were not supplied to the petitioner, which seriously prejudiced the petitioner in his defence and thus, the entire enquiry is vitiated on the ground of violation of principles of natural justice. Learned counsel for the petitioner further argued that present is a case where the Enquiry Officer though found that the charge No.1 was not proved yet it held the petitioner guilty of some other charge, which was not even alleged against the petitioner in the departmental enquiry and, therefore, the petitioner was seriously prejudiced. As, what Was proved was never alleged nor the petitioner was charged of such allegation, there was no occasion for the petitioner to defend the. newly invented charge of misconduct. Therefore, the same is illegal and unsustainable in law. In support of his submission, learned counsel for the petitioner relied upon the decisions of the Supreme Court in the cases of Khem Chand Vs. Union of India an 0rs.1, Sawai Singh Vs. State of RajasthanF. Sved Rahimuddin Vs. Director General, C.S.I.R & Ors.3, Principal Secretary, Govt. of A.P. and another Vs. M. Adinarayana", Ashok Laxman Gaikwad Vs. State of Maharashtra5 85 State of U.P. and Ors. Vs. Saroj Kumar Sinha5. 4. Per contra, submission of learned counsel for the respondents is that the allegation which was found proved by the Enquiry Officer and which was made basis for imposition of penalty, was. very much implicit in charge No.1 and, therefore, the petitioner’s challenge to those findings of the Enquiry Officer on such technical grounds is without merit. It is submitted that from the material which was placed on record and the circumstances appearing, it was clearly proved that the petitioner in his capacity and official status as Patwari, failed to check the illegal activity of sale of land held under lease from the ’ GWernment by the vendors. Those lands could not be sold—out without permission of ‘the Collector and it was duty of the petitioner as Patwari to ensure that such salevand purchase of large chunk of land held under the Government lease does not take place without due permission of the Collector, as required in the provisions of M.P. /C.G. é. 1 AIR 1958 SC 300 'i’J-l 2 AIR 1986 SC 995 3 AIR 2001 SC 2418 4 2004 AIR SCW 5593 5 2006 AIR SCW 2095 5 2010 AIR SCW 1077 Lénd Revenue Code, 1959 (hereinafter referred to as “the Code of 1959”). 5. As far as non—supply of documents as demanded by the petitioner is concerned, learned counsel for the State submitted that in fact on petitioner’s application, a memo was written on 3.6.1997 from the Office of Collector, Bastar to the Head Copyist of the Collectorate, to supply copy of statements recorded during preliminary enquiry and the Head Copyist endorsed to have received those records and, therefore, it is incorrect that the petitioner was not supplied the documents demanded by him. 6. I have considered the rival submissions made by counsel for the respective parties and perused the records. 7. In so far as charge No.2 is concerned, it is not in dispute that that the same was not proved and it is only charge No. 1 which was found partly proved by the Enquiry Officer and on which basis, the Disciplinary { l Authority imposed the penalty. Charge No.1 against the petitioner as alleged in the charge sheetlis reproduced as below:-r “aiiwmeaimmwmadwmmfanwam ‘; Wmmamwmmmemm 3 smegewhmiaoiméwamamg‘gaaew _ WadamowaWWWtgm~W Hmaiiiav‘r usaganouoWW(W)W1965%Wae(1)a§ (WHaiNEHriiroiriWrre mafnarrarmwmriem Wt!” A perusal of charge No.1 would show that what was alleged against the petitioner was that during incumbency as Patwari of Patwari Halka . W No.52 of Village Markel, Tahsil- Jagdalpur, he threatened 26 persons to sell-out 81. 0 acres of land to one Prakash Kumar Lunia by saying that their lan will be taken over by the Forest Department. In the statements of allegation’of charge No. 1, it was stated that the petitioner threatened 26 lease holders of Government lan for selling ther land to one Prakash Lunia by saying that their lands Will otherwise go to Forest Department and those lands we non—transferable in View of the provisions contained i Section 165 (7) (b), (6) of the Code of‘ 1959. 8. perusal of he enquiry report shows that the Enqry Officer duing the course of enqury exaed those lease holders who were alleged to have been threatened to sell their nd to one Prakash Lunia. The Eniry Officer also recorded a finding that prosecution Witnesses, the lease holders, were examined on different dates and they deposed in their testimony' tat they had obtai agricultural lnd under settlement from the Government and for fulfilling their respective needs, they directly contacted Lunia Seth of Jagdalpur to sell their land and sal deed were executed and registered in he office of Deputy Registrar, Jagdalpur and that they received full consideration from purchaser La Set The Enqry Ofcer further recorded that the lease holders stated that the peiner di not n any manner threaten them for selling their land nor demanded any bribe for the purpose They further stated that the then Collector had made enquiry in the Village whereafter, Nayab Tahsildar had recorded their statements and their signatures were obtained but their statements were not read over to them and that they never gave any statements against the petitioner in the preliminary enquiry either before Nayab Tahsildar or Collector or Sub Divisional Officen 1 d d i re n A t ui r i min la qu h ned a e t uni h ui fi ttio d i 'L‘ ‘ lW The Enquiry Officer also considered the statements of defence witnesses, who stated that they sold their land of their freewill and later on the Collector and Nayab Tahsildar prepared their statements and the signatures of lease holders were obtained without reading over to them the statements recorded in their name. The Enquiry Officer after taking into consideration the oral and documentary evidence on record, recorded a finding that the allegation that the petitioner had threatened lease holders to sell—out their land to one Prakash Lunia is not fully proved, but is partly proved because the petitioner failed to check sale of land settled in favour of lease holders, which could not be sold without the permission of the Collector. 9. From the findings recorded by the Enquiry Officer, it is apparent that the charge which was alleged against the petitioner that he threatened the lease holders to sell- out their land was not proved. The petitioner has placed on record the statements of witnesses examined during the course of enquiry, collectively as Annexure A—l 1. Prosecution examined Vidyadhar, Ghasiram, Jitendra, Tulsiram, Kapilnath, Lakhiram, Smt. Arabati, Smt. Lilabati, Dilip Kumar, Cakradhar, Baijnath, Pitambar, Rameshwar, Balram, Sukhasen, ’I‘ularma, Sukhram, Maniram, Bhagbati, Ujarbati, Parwati, Sua Singh, Kailash 85 Sona. These witnesses of th‘e prosecution are those lease holders whose names find place in the list of lease holders under charge No. l, as contained in the charge sheet. After going through the statements of these Witnesses who were the lease holders and who were alleged to be threatened by the petitioner, it is found that none of them supported the case of the l prosecution and they stated that they were never threatened by the petitioner for selling their land. The Enquiry Officer having come to the [69 conclusion that the charge of threatening the holders of land to sell their land to purchaser, is not made out, it was wholly unwarranted for the Enquiry Officer to travel beyond the charges leveled against the petitioner, to record that petitioner failed to check-sale of land in official capacity as Revenue Staff. There is no whisper of such an allegation against the petitioner either in the article of charge or in the statements of allegation of charge No.1. Submission of learned counsel for the State that such an allegation was implicit in the charge No.2, cannot be accepted. It constituted entirely different charge that the petitioner failed to check sale and purchase of leased lands, which were settled Patta lands, which cannot be sold without due permission of the Collector. It appears that during the course of enquiry, one of the prosecution witnesses- A. K. Toppo, the then Sub Divisional Officer stated in his testimony that the sale and purchase of the land could not take place Without due permission of the Collector. Under what circumstances, those sales 85 purchase had taken place and what were the duties of the petitioner as Patwari were all matters beyond the scope of enquiry on allegation contained in charge No. 1. . In a situation where Enquiry Officer is clearly of the opinion that the prodeedings of the enquiry establish an article of charge different from the original article of charge, the Enquiry Officer is obliged under the law to follow the procedure as prescribed under Rule 14 (23) of M.P./C.G. Civil Services (Classification, Control 8r, Appeal) Rules, 1966 (hereinafter referred to as “the Rules of 1966”). Sub—rule (23) of Rule 14 cf the'Rules of 1966 is reproduced below: “(23) (i) After the conclusion of the inquiry, a report shall be prepared and it shall contain- the articles of charge and the statement of the imputations of misconducts of misbehaviour; ii. the defence of the Government servant in respect of each articles of charge; iii. an assessment of the evidence in respect of each article of charge; arid iv. the finding on each article of charge and the reasons therefor.” From perusal of the aforesaid provision, it would be clear that in such a situation, finding on any article of charge different from the original article of charges shall not be recorded unless the Government servant has either admitted facts on which such article of charge is based or had a reasonable opportunity of defending himself against such article of charge. A perusal of the enquiry report would show that the procedure as laid down in the Rules was not followed. There is no finding recorded by the Enquiry Officer that the petitioner admitted the facts on which the allegation that the petitioner failed to check sale and purchase was based. In fact, from perusal of the articles of charge No.1 and statements of allegations in respect thereof, there is no description of any such facts as the(necessary facts to constitute such charge. Neither in the charges nor anywhere else, ithas come in evidence that the petitioner as Patwari failed to do something which he was supposed to do in relation to the disputed sale transactions. There is no evidence : on record as to what‘were the duties of the petitioner in such case of sale and purchase of Patta Lands nor is there any iota of evidence to prove that certain acts of commission 0r omission on the part of the petitioner amounted to failure of duty-on his part to exercise check and control over such sale transactions. On the contrary, from the contents of paragraph —3 of the enquiry report, it is revealed that the petitioner Z 11. 12. in his preliminary statement and submission stated that no one demanded copy of the Map, Khasara B-1 from the petitioner nor it was ever supplied by the petitioner and sellers voluntarily on the basis of Rin Pustika, sold their land by deed of sale registered in the office of Deputy Registrar, Jagdalpur. K. L. Sori Nayab, Tahsildar, one of‘the prosecution Witnesses in his cross examination stated that under the provision of Section 165 (7) of the Code of 1959, Pattedar cannot sell his land and in the Patta, the same should be marked as “non— transferable" in red ink by the Patwari. It is not a case of the prosecution nor has any evidence come on record to establish any act of commission or omission on the part of the petitioner in his capacity as Patwari, which facilitated sale transaction. In View of the provision contained in Rule 14 (3) of the Rules of 1966, there were no admitted facts to establish newly carved—out charge against the petitioner. The only course open to the Enquiry Officer was to issue a notice to the petitioner-giving him reasonable opportunity to defend himself against such article of charge. It is neither the case of the petitioner nor borne—out from records that the petitioner was afforded, any such opportunity by the Enquiring Authority. rThe provision contained in the explanation under clause (i) of sub-rule (23) of Rule 14 ofrthe Rules of 1966, in its very nature are mandatory, non— compliance of which, would render the findings contrary to the provision of the statutory rules and thus unsustainable in law. Even in the order of the Disciplinary Authority, there is no consideration of this aspect. The Disciplinary Authority has proceeded to act upon the report of the Enquiry Officer by recording that the petitioner was given due and proper opportunity of hearing and there {(Ké was no consideration of this aspect With reference to the provision contained in Rule (23) of the Rules of 1966. 13. From the order passed in the appeal by the Appellate Authority, it is clear that a specific ground to this effect was raised by the petitioner that the petitioner'has been punished on certain chares different than the charges alleged against him. The Appellate Authority referring to paraWise comments of the Collector recordedthat the agriculturist were distributed Rin Pustika after settlement of land in their favour in the year 1982—83 and the Patwaris, Who were working at that time did not examine those Pattas and when petitioner came to be posted in the month of 1985, the petitioner ought to have examined Rin Pustika and marked with red ink as non—transferable being land under settlement. It was further recorded that while recovery of land revenue, the petitioner ought to have taken care of this aspect and updated the records and he failed to do that. To say the least, the Appellate Authority acted upon entirely new’facts, circumstances and material, which were not even disclosed in the departmental enquiry, nor were taken into consideration [either by the Enquiry Authority or by the Disciplinary Authority. § . This Court, therefore, comes to the conclusion that the imposition of penalty on the petitioner was illegal, based on findings of guilt in respect of some charges other than those which were leveled against Ll the petitioner, and while recording such finding, mandatory provision contained in Rule 14(23) of the Rules of 1966 were not complied with. It is not necessary for this Court to ‘consider any other submission of learned counsel for the petitioner, as the conclusion of guilt recorded in mm ,4‘ _~ , w 3 ww m -11- L ‘W the enquiry report and punishment awarded tb the petitioner on such enquiry report is vitiated. 15. In the result, the petition is allowed and the impugned order of penalty dated 213t/3Oth March, 2000 (Annexure A—2) passed by the'Collectdr and the order dated 24.10.2000 (Annexure A—l) passed by the Commissioner in appeal both are set a side. 1,6. There shall be no order as to costs. Praveen