SBCWP5108/1997 // 1 // IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR ORDER IN S.B. Civil Writ Petition No.5108/1997 Babudeen Vs. State of Rajasthan and Others Date of Order ::: 06.05.2010 Present Hon'ble Mr. Justice Mohammad Rafiq Shri Manoj Pareek, Counsel for petitioner Shri Syed Jakawat Ali, Deputy Government Counsel for respondents #### By the Court:- Heard learned counsel for parties. This writ petition has been filed by petitioner challenging order of penalty dated 23rd September, 1993 by which his three grade increments were ordered to be withheld with cumulative effect and it was directed that the earlier period when petitioner was dismissed from service and was reinstated pursuant to order of the Governor of the State in review petition, shall only be counted for the purpose of pension as part of service and he will not be entitled to any other benefit for the said period. Petitioner also challenged the order dated 25.04.1995 by which his appeal against order of penalty was dismissed by the appellate authority. Learned counsel for petitioner has argued that petitioner was earlier illegally dismissed from service. The petitioner filed appeal which was SBCWP5108/1997 // 2 // dismissed and then petitioner filed review petition which was accepted by the Governor of the State on the ground that copy of enquiry report was not supplied to him prior to passing of penalty of dismissal. The matter was remanded back to the disciplinary authority to make compliance of the aforesaid law. It was thereupon he was supplied copy of enquiry report, to which petitioner submitted a representation. The disciplinary authority viz. District Collector, Bundi, passed the impugned order of penalty. Learned counsel submitted that the District Collector in the impugned order has not found the charges No.1 and 2 proved against the petitioner because the petitioner had opened the mutation of the land in compliance with the judgment of the SDO dated 01.05.1980 and difference of khasra number occurred because the order of SDO reflected the earlier Khasra number whereas subsequently in the settlement khasra number was changed and therefore the petitioner on the basis of 'milan kshetraphal' opened mutation by giving new khasra number. There was minor variation in the measurement of that khasra but that was owing to mistake in the order of SDO, the action of the petitioner was thus bona- fide and the charge against him was not found proved. Charge No.3 namely that the petitioner got mutation of khasra Nos.42, 43, 47 and 49 attested without verification from the land record inspector, was also found only partly proved by the SBCWP5108/1997 // 3 // Collector holding that it was merely an irregularity. Charge No.4 also was not found fully proved, which was to the effect that there was overwriting in the mutation proceedings of Khasra Nos.47, 48, 49 and 51. The charge No.5 was dropped because in the enquiry earlier held the petitioner was exonerated of that charge. It is only charge no.6 for which the finding has been given that the petitioner was guilty but in that finding also the District Collector has noted that this mistake appears to have occasioned on account of oversight and in the working of the revenue department it was usual, so that charge was to the effect that the petitioner got attested the mutation of land of Khasra No.68 in favour of Kalu and Ghasi Dhakad for recording as 'gair khatedar' whereas this land was of irrigation department. The learned counsel cited the copy of relevant mutation of said khasra and argued that mutation was opened by petitioner as patwari in compliance of order of allotment committee which had on the basis of long possession of Kalu and Ghasi Dhakad made allotment of such land to them. There is no charge against the petitioner that he had prior to the allotment or on the application submitted by Kalu and Ghasi Dhakad for the purpose of allotment, gave any report to the allotment committee concealing the fact that this was the land of irrigation department. In fact in the mutation register itself the petitioner in column SBCWP5108/1997 // 4 // no.5 clearly noted the fact that this was land of irrigation department and also the fact that in column no.16 that mutation being occasioned in favour of Kalu because of allotment made in his favour and that presently Kalu is in possession of the land. This was counter signed by the land revenue inspector and then the mutation was attested by Tehsildar. The learned counsel submitted that the District Collector, in his order, has observed that this should be taken as minor mistake on the part of the petitioner but simultaneously he observed that the land revenue inspector was also responsible by not clarifying this position. It is contended that this finding is contrary to the record because the petitioner had categorically noted in the mutation register that this was the land of the irrigation department. The impugned order of penalty be therefore set-aside. Learned counsel submitted that the appellate authority has failed to appreciate all these arguments which pointedly raised in the appeal and also failed to appreciate that the penalty was wholly excessive. The order of appellate authority be therefore set-aside. Learned Deputy Government Counsel opposed the writ petition and submitted that the charges against the petitioner were found proved. Not only charge No.6 but also on charges No.3 and 4 although the findings recorded by the disciplinary authority in the manner showing that such charges were proved SBCWP5108/1997 // 5 // against the petitioner only partly but the finding on all these three charges would justify imposition of penalty of withholding all three grade increments with cumulative effect. Learned counsel submitted that the appellate authority has not committed any mistake in rejecting the appeal of the petitioner. Earlier the petitioner was dismissed from service but the disciplinary authority has taken lenient view in the matter by merely awarding penalty of stoppage of three grade increments with cumulative effect. Upon hearing learned counsel for the parties and perusing the impugned order I find that in so far as the charge No.6 is concerned, the same cannot be taken to be proved against the petitioner because copy of the relevant mutation entry which is on record, clearly shows that this mutation was opened by the petitioner on the basis of allotment made by the allotment committee and the petitioner could not be held guilty for the action of the allotment committee. The petitioner in the mutation register has clearly made an entry as to the fact that this land belongs to the irrigation department and he also stated therein that the mutation was being entered pursuant to the allotment made by the allotment committee. This was fact verified by the land revenue inspector and also attested by the Tehsildar. There is no charge to the effect that the petitioner was instrumental in getting such land allotted to Kalu and Ghasi Dhakad from the SBCWP5108/1997 // 6 // allotment committee or that the petitioner had in any manner omitted to make a correct report when called upon by such allotment committee as to what was the nature of land and which land belonged to him. Charge No.6 therefore cannot be taken as proved against the petitioner. On charges No.1 and 2, as it is, having not been found proved by the disciplinary authority against the petitioner. However coming to charge No.3 and 4, I find that those charges have been found partly proved against the petitioner. The order of penalty of stoppage of three grade increments with cumulative effect therefore could not have been justified. Ends of justices would meet if that penalty is reduced to the penalty of stoppage of only one grade increment with cumulative effect. The petitioner has again filed review petition before the Governor of the State. In the review order His Excellency the Governor of the State has partly allowed the review petition directing the respondents to pay consequential benefits in so far as the period when the petitioner was remained absent from service on account of illegal dismissal order. However, the penalty of withholding three grade increments with cumulative effect, was upheld. The writ petition is accordingly allowed in part. The order of penalty of stoppage of three grade increments with cumulative effect is reduced to the penalty of stoppage of only one grade increment with cumulative effect. The petitioner is SBCWP5108/1997 // 7 // held entitled to all consequential benefits follows from reduction of penalty, together with interest at the rate of 6% per annum. Compliance of the judgment be made within a period of three months from the date of submitting a copy of this order before the respondents. (Mohammad Rafiq) J. //Jaiman//