SBCWP5654/1997 // 1 // IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR ORDER IN S.B. Civil Writ Petition No.5654/1997 S.N. Byadwal Vs. The State of Rajasthan and Another Date of Order ::: 26.02.2010 Present Hon'ble Mr. Justice Mohammad Rafiq Shri Prahlad Singh with Shri Dinesh Sharma, Counsel for petitioner Miss Raj Sharma, Additional Government Counsel for respondents #### //Reportable// By the Court:- This writ petition has been filed by petitioner challenging charge-sheet dated 23.06.1992 issued to him under Rule 16 of the Rajasthan Civil Services (Classification, Control & Appeal) Rules, 1958 (for short, 'CCA Rules'), and order dated 05.09.1997 by which he was awarded penalty of compulsory retirement on proportionate pension. Charge against petitioner was that he, while working as Officer-on-Special-Duty, Agriculture Land Conversion (Regularization) Jaipur, conferred undue benefit upon Smt. Triveni Devi Surekha and Shri Rajendra Kumar Surekha by recognizing their title over land SBCWP5654/1997 // 2 // measuring 449.79 Sq. Yard and 713.33 Sq.Yd., respectively, on the basis of adverse possession, under Section 88 of the Rajasthan Tenancy Act, 1955 and issued a land conversion order accordingly. Charge No.2 against petitioner was to the effect that he thereby violated Rules 5 and 8 of the Rajasthan Land Revenue (Conversion and Allotment of Agriculture Land) Rules, 1978, and while doing so, he did not issue any notice to former Maharajah of Jaipur who was adversely affected by the said order and issued 'patta' in favour of above referred to two persons on 30.10.1981. This issue was debated in on the floor of the Rajasthan Legislative Assembly and an enquiry was held by the then Lokayukta of the State also, who recommended disciplinary action against petitioner, and that is why, charge- sheet was served upon him though with certain delay, and ultimately penalty of compulsory retirement with proportionate pension was imposed upon him. Shri Prahlad Singh, learned counsel for petitioner, argued that petitioner merely ordered to recover conversion charges from Smt. Triveni Devi Surekha and Rajendra Kumar Surekha because the disputed property was residential SBCWP5654/1997 // 3 // property. Former Maharajah of Jaipur or his power of attorney holder never challenged the order of conversion passed by petitioner. No new rights were conferred by petitioner upon those two persons and on the contrary, petitioner by recovering conversion charges enhanced government revenue and acted in the interest of the Government. He did so according to policy of the Government and assurance given by the Government to the Assurance Committee of the Legislative Assembly. It is contended that the land, in dispute, was not agriculture land. It was adjacent to Hathroi fort and in fact was part of said fort, which was earlier in the ownership of former Maharajah Jaipur as per the Government record. The former Maharajah of Jaipur sold the plots on this land through his power of attorney holder, which scheme was named as 'Hathroi Gopal Bari Scheme', to 150- 200 persons and plots in question were merely two plots out of those so many. Same policy was applied to every one. Neither any ill-will nor any ulterior motive could therefore be attributed to petitioner for conversion of these two plots. It is contended that petitioner in his tenure decided near about 70 cases of this nature. In any case, there was no SBCWP5654/1997 // 4 // direct loss caused to the Government because the land in dispute was not a Government land and if it was a private land i.e. the land of former Maharajah of Jaipur, either he or his power of Attorney could have objected to it. The disciplinary proceedings against petitioner were wholly misconceived and uncalled for. Shri Prahlad Singh, learned counsel for petitioner further submitted that defence of petitioner was gravely prejudiced by reason of fact that disciplinary proceedings were initiated in respect of an incident which related to the year of 1980, by service of charge-sheet on 23.01.1992. The petitioner was not permitted to inspect important revenue documents including file No.418/1977, which contained entire set of documents of decision of Government regarding recovery of conversion charges and various correspondence exchanged in between Urban Improvement Trust, Collector, Government and former Maharajah of Jaipur. The enquiry officer has not correctly appreciated evidence before him and has not taken into consideration statements of prosecution witnesses produced before the enquiry officer. Statements of three defence witnesses recorded on behalf of petitioner, have not been SBCWP5654/1997 // 5 // correctly appreciated. The objection regarding summoning and production of file No.418/1977 was also not correctly considered. Shri Ramdev Singh Maharia, the Chairman of Public Accounts Committee of Legislative Assembly, and Shri I.G. Jhingran, who was Secretary of Town Planning Department, were not summoned in evidence despite repeated request of the petitioner; both of them were very material and important witnesses in the matter. While Shri Rajendra Kumar was summoned through bailable warrant, no such steps were taken for procuring their attendance. The enquiry officer has not recorded finding on each of the charges, thus there was violation of sub-rule (9) of Rule 16 of the CCA Rules. The disciplinary authority has also violated that Rule by not considering the entire record of the enquiry i.e. reply submitted by petitioner, various proceedings taken by enquiry officer and statements recorded during enquiry proceedings, including written submissions submitted by both - prosecution as well as defence. The disciplinary authority has therefore violated sub-rule (8) of Rule 16 of the CCA Rules. The impugned penalty has been imposed by a non- speaking oder since no reason has been assigned SBCWP5654/1997 // 6 // for arriving at the conclusion as to why penalty was imposed upon the petitioner. The charges were not so grave so as to justify penalty of compulsory retirements on proportionate pension. Period of 5 years of service of petitioner has been curtailed, and to that extent, this has reduced his pension and other retiral benefits would also be decreesed. Such a penalty was wholly unjustified. Miss Raj Sharma, learned Additional Government Counsel appearing on behalf of respondents, has opposed writ petition and submitted that this Court can only examine correctness of decision making process and not the merits of the decision. Learned counsel, in support of her submission, relied on judgment of the Surpeme Court in State of Uttar Pradesh & Another Vs. Man Mohan Nath Sinha & Another – (2009) 8 SCC 310. The learned counsel submitted that delay in present case has not caused any prejudice to petitioner because in present case no exercise was undertaken by respondents. The matter was raised on the floor of the Legislative Assembly. This was enquired into by the Lokayukta wherein also petitioner was SBCWP5654/1997 // 7 // associated by service of notice. It was in fact the Lokayukta of the State who recommended disciplinary action against petitioner and thereupon disciplinary proceedings were initiated. Entire set of evidence that has been produced against petitioner consists of government record. The petitioner himself has given in writing to disciplinary authority on 11.08.1992 that he had inspected entire record for period from 25.07.1992 to 05.08.1992 and that he did not want any further record to inspect. He submitted in that letter that he would file his written reply/statement by 20.08.1992. Learned counsel submitted that above referred to two witnesses were in fact cited by the petitioner as his witnesses in the list of witnesses even then the enquiry officer issued repeated notices to them. The enquiry proceedings from pages 39 to 42(c) show that after evidence of the prosecution, vide order dated 28.10.1995 the enquiry officer directed that on the next date through registered AD notices/summons will be issued to witnesses cited by defence and petitioner was ordered to produce correct address of witnesses. Summon dated 04.01.1995 was issued to Shri Ram Dev Singh Maharia, the then Chairman of Public SBCWP5654/1997 // 8 // Accounts Committee, Legislative Assembly, was served on his son. Summon dated 22.12.1995 was pasted on the house of Shri Ram Dev Singh Maharia. In the order-sheet dated 02.03.1996 enquiry officer has specifically stated that at several times summons were issued to Shri Ram Dev Singh Maharia, and such summons were even sent through Collector and Superintendent of Police of District Sikar but he did not appear. Direction was therefore issued to petitioner that he may take summons of that witness 'dasti' for service, and order-sheet dated 25.03.1996 reveals that petitioner was given last opportunity to take summons 'dasti' for service but he failed to do so. The enquiry officer thus made all possible efforts and when he failed, his evidence was ordered to be closed. So far as Shri I.G. Jhingran is concerned, it is submitted that he was not summoned but that did not prejudice petitioner's case because order with regard to non-issuance of summon was made in presence of petitioner to which he did not object. Having not raised such objection before enquiry officer now, he is estopped from questioning the same. SBCWP5654/1997 // 9 // Learned counsel further submitted that petitioner while passing order of land conversion could not have taken upon himself the task of revenue court and recognized title of Triveni Devi Surekha and Rajendra Kumar Surekha, who were claiming to have purchased the above referred two plots each measuring 533.33 Sq.Yd., only on the strength of agreement to sell through Power of Attorney Holder of former Maharajah of Jaipur. But the petitioner contrarily recognized their title to the extent of 983.12 Sq.Yd. And 1246.66 Sq.Yd. which was in excess of 449.79 Sq.Yd. and 713.33 Sq.Yd., respectively and the petitioner did this on assumption that being in possession of this much of land in excess, they had acquired adverse possession. By merely referring to Section 88 of the Rajasthan tenancy Act, petitioner could not have done so. Upon hearing learned counsel for parties and perusing material on record, I find that orders passed by petitioner rather reflected extra-ordinary administrative courage on his part where he indulged himself in granting title and issuing 'patta' in favour of Triveni Devi Surekha and Rajendra Kumar Surekha, who were respectively claiming to have purchased SBCWP5654/1997 // 10 // the land on the strength of agreement to sell of two plots, each measuring 533.33 Sq.Yd., bearing numbers 47 and 48 respectively. While in the case of Smt. Triveni Devi Surekha, petitioner could be persuaded to issue lease- deed to the extent of 983.12 Sq.Yd, which exceeded 449.79 sq.yd, and in the case of Rajendra Kumar Surekha more than double of the plot size i.e. the land measuring 1246.66 sq.yd, which exceeded by 713.33 Sq.Yd. It is very difficult to comprehend how in the scope of a land conversion order, the limited power with petitioner under Rajasthan Land Revenue (Conversion and Allotment of Agriculture Land) Rules, 1978, he could have taken up all powers of regular court under Section 88 and thereby recognized title of those two persons by granting them the land conversion order but also issuing lease-deed for plots in the size of 983.12 Sq.Yd. and 1246.66 Sq.Yd. On the strength of alleged adverse possession, such a title could be conferred on a person only after adjudication in the scope of either revenue suit or a civil suit. The delay in initiation of disciplinary enquiry in the facts of present case can hardly SBCWP5654/1997 // 11 // be said to be prejudicial to petitioner because this mater was very much alive when it was agitated in the Rajasthan Legislative Assembly and when protracted enquiry was conducted by the Lokayukta of the State, obviously with notice to petitioner and it was at the instance of Lokayukta that disciplinary proceedings were initiated against petitioner. Petitioner inspected the entire record and to this effect he gave in writing to disciplinary authority on 11.08.1992. Shri Ram Dev Singh Maharia, who was the then Chairman of Public Accounts Committee of Legislative Assembly, was repeatedly summoned. The plea that he should have been summoned by bailable warrant as was done in the case of Rajendra Kumar Surekha, has to be rejected because petitioner was offered notice 'dasti' and he failed to obtain such 'dasti' notice to get the same served upon him despite offer by the enquiry officer and, despite repeated efforts, service of notice on Shri Ram Dev Singh Maharia could be made through his son and the same was also pasted outside his house. In the capacity of a Chairman of Public Accounts Committee of Legislative Assembly, he could not be taken so lightly so as to be summoned by SBCWP5654/1997 // 12 // issue of bailable warrant. It is indeed too much on the part of petitioner to expect that he should have been summoned by bailable warrants. The enquiry, in my considered view, has been conducted in conformity with the provisions contained in the CCA Rules and the provisions of Rule 16 especially sub-rules 8 and 9 thereof have been observed by the respondents as would be evident from a reading of order passed by the disciplinary authority and I would rather observe that petitioner has been dealt with rather leniently in awarding only penalty of compulsory retirement on proportionate pension. Scope of judicial review with this Court is very restricted. This Court while examining matters arising out of disciplinary proceedings does not sit in judgment on merits of the decision so as to re- appreciate and reappraise the evidence led before inquiry officer and examine the findings recorded by enquiry officer as a court of appeal and reach at its own conclusions. The enquiry that may be made by this Court is limited to examining the process of decision making and not the merits of decision itself. No interference is called for in this matter. SBCWP5654/1997 // 13 // The writ petition is accordingly dismissed with no order as to costs. (Mohammad Rafiq) J. //Jaiman//