wwg) WIL/ég §&FQRE MADHE% PRADE$§M§T&TE ADMINISTRATIVE TREB ABAJyU3: APPQ;C&NT: P¢K° Eeter,(@atwari) son of Peter £ne&d aged about 46 ye&rs resident of Gram Dhanelikanhar Teho Kanker, Disttn B&ster, M.?. VER$J$ §§§gpNDENT§i la State of Madhya Eradesh through Secretarty Department of Revenue Vallabh Bhavan, Bhopal“ 2, Settlement Offiéer $ettlement Office Utter Easter, Kanker Distta Bastet.’ kPELICATIGN FOR UNuL% § CTIQN 19 OF $DMLN;Sm&'VIW¥ TRIBUNeL JEB$LPUR* r 3 U" J. \ HIGH COURT OF CHHATTISGARH BILASPUR SINGLE BENCH : HON’BLE SHRI MANINDRA MOHAN SHRIVASTAVA,J. Writ Petition {S} No.97212005 P.K. Peter Versus PETITIONER RESPONDENTS State of Madhya Pradesh (now Chhattisgarh) and one another ORDER POST 0N2? APRIL: 2010 ’ \ Manindra Mohan Shrivastava Judge \ ’M Sdl- (F\ 'EW‘ ‘xJ HIGH COURT OF CHHATTISGARH : BILASPUR SINGLE BENCH HON’BLE SHRI MANINDRA MOHAN SHRIVASTAVA,J ’ Chhattisgarh) and one another Appearance Shrl ManOJ Dubey, counsel for the pet1t10ner Shr1 AJay Dw1ved1, Dy. Govt. Advocate for the State/respondents. O R D E R (Passed on 2”]z.04.2010) 1. Heard on I.A. No. 6 85 7, applications for taking documents on record. 2. On due consideration, the applications (LA. No. 6 8a 7) are allowed. Documents are taken on record. 3 , . This petition has been filed by the petitioner assailing legality and validity of order dated r24.1l.1992 (Annexure A—l) passed by the Settlement Officer, North Bastar, Kanker, by which penalty of dismissal from service has been imposed on the petitioner upon proof of charges of misconduct in departmental enquiry. /. 3 . Case of the petitioner is that he was appointed by the Collector, Jagdalpur and his services were later on lent on deputation with the Writ Petition IS) No.972/2005 PETITIONER P.K. Peter Versus RESPONDENTS State of Madhya Pradesh (now Settlement Department and he has been dismissed by the Settlement Ofiicer, North Bastar, Kanker vide impugned order dated 24.11.1992 (Annexure A-l). An appeal was preferred against the order imposing penalty of dismissal before the Commissioner, Land Record 85 Settlement, M.P., Gwalior. However, that appeal was rejected vide order dated 30th April 1993 (Annexure A-2). The impugned action has been challenged on the ground of violation of Article 311 of the Constitution of India as also Rule 14 of the M.P;/C.G. Civil Services (Classification, Control 85 Appeal) Rules, 1966 (hereinafter, referred to as “the Rules of 1 966”) as also on the ground of violation of principle of natural justice. 5. The contention raised before this Court by the counsel for the petitioner is that the impugned order dated 24. 1 1.1992 of imposition of penalty from service by the Settlement Officer is in violation of Article 31 1 of the Constitution of India inasmuch as petitioner was appointed by the Collector, Jagdalpur, Whereas the penalty of dismissal from service has been imposed by the Settlement Officer, who is subordinate to the Collector, who appointed the petitioner. It is argued that even if the powers of Collector have been delegated to the Settlement Officer under statutory scheme of M.P./C.G. Land Revenue Code 1959 } / (hereinafter referred to as “the Code of 1959”), particularly provision contained in Section 12 thereof, Settlement Officer remains 3 subordinate to the Collector. Learned counsel for the petitioner therefore submits that even if, on the date of issuance of impugned order of punishment, Settlement Officer being S.D.O. was empowered to appoint Patwari, petitioner could not be dismissed from service in view of constitutional embargo under Article 31 1 of the Constitution of India. . Learned counsel for the petitioner in support of his submission placed reliance upon the decision of Supreme Court in the matter of State of M.P. and others Vs. Shardul Singh, (1970) 1 SCC 108. . Per contra, submission of learned counsel for the respondents is that there is no violation of the Constitutional protection guaranteed to the petitioner, a government servant, under Article 311 (1) of the Constitution of India, inasmuch as the Settlement Officer is vested with the power to initiate enquiry against the petitioner as the powers of the Collector have been delegated to the Settlement Officer under Section 65 of the Code of 1959. It is argued that by virtue of such delegation of power, the Settlement Officer was competent authority to exercise all the powers which are exercisable by the Collector. Thus, even accepting that the petitioner was appointed by the Collector and the Collector had the authority to dismiss the petitioner by virtue of powers conferred upon him under Section 104 of the Code of 1959, in view of delegation of power of Collector on the Settlement Officer, Settlement Officer was fully competent and empowered under the law to impose the penalty of dismissal on the petitioner, a Patwari, and therefore it cannot be said that the petitioner has been dismissed from service by an authority subordinate to the authority by which he was appointed. . I have heard learned counsel for the parties and perused the records. 3 . Along with application (LA No.7) for taking documents on record, respondents have placed (Shire-cord the relevant extract of the service book of the petitioner. In the petition, it has been stated by the petitioner that he was appointed by the Collector. This fact has not been disputed by the respondents in their return. 10. Petitioner was appointed by the Collector, Bastar, District -Jagdalpur which is clearly admitted by the respondents in View of the documents filed by the respondents themselves along with application (I.A.No.7) for taking document on record. The relevant extract of the service book of the petitioner (Annexure D-l) records that the petitioner Was appointed by the Collector, Bastar, District Jagdalpur vide his order No. 610 qiO/WO 310 g0 310—2/2987/67, dated 6th September, 1967, on temporary basis until further order, in the pay scale of 65—1-75—2~95/— in Patwari Halka No. 41, Dabena. It has also been recorded that the petitioner joined his services on 17.9.1967 and since then he has been working. Later on, petitioner was declared permanent vide order dated 10.2.1983 passed by the Sub Divisional Officer, Revenue, Jagdalpur, District —Bastar which has been placed on record by the petitioner along with application (I.A.No.6) for taking documents on record. From the aforesaid pleadings and documents on record, it is clearly established that the petitioner was initially appointed as Patwari by the order of the Collector, Bastar, District—Jagdalpur on 6th September 1967 and was later on confirmed in service vide order dated 10.2. 1983 ' passed }, by the Sub Divisional Officer (Revenue), x Jagdalpur, District c Bastar w:e.f. 1.3.1.972. f Under Section 104 (2)‘of thé Code of 1959, Collector is empowered to appoint one or more Patwaris to each Patwari Circle for the maintenance and correction of‘land records and for such other duties as the State Government may prescribe. Section 24 of the Code of 1959 makes provision with regard to conferral by the State Government of powers of Revenue Officers on Officials and other persons. It provides )4w that the State Government may confer on any person, the powers conferred by under the Code of 1959 on any Revenue Officer. It also provides that the State Government may confer on any Assistant Collector, Tahsildar or Naib~Tahsildar, the powers conferred by the Code on a Revenue Officer of a higher grade. Under Section 65 of the Code of 1959, specific provisions have been made with. regard to the powers of Settlement and Assistant Settlement Offices. It provides that the State Government may invest any Settlement Officer or Deputy Settlement Officer or Assistant Settlement Officer with all or any of the powers of a Collector under the Code, to be exercised by him in such cases or classes of cases as the State Government may direct. It further provides that the State Government may invest any Deputy Settlement Officer or Assistant Settlement Officer with all or any of the powers of a Settlement Officer under the Code or any other enactment for the time being in force. . In exercise of powers conferred under Section 309 of the Constitution of India, the Governor has framed rules governing terms and conditions of the service of a Government servant. In the matter of power of appointment and disciplinary action, provisions have been made in the Rules pf 1966. Rule 8 provides that all appointments to the State Civil Services Cla‘ss1I'II and Class-IV, shall be made by the authorities specified in this behalf iri the Schedule. A reference to the provision contained under the heading “Survey Settlement and Land Records Department” of the Schedule-appended to the Rules of 1966 shows that in respect of Patwaris, Sub —Divisiona1 Officer‘has been designated as appointing authority. Respondents have stated in their reply that under Section 65 of ‘the Code of 1959, the State Government has " d?» V" wwn a}? x3“? x wiig" delegated the powers of Collector to the Settlement Officer. In the petition, the petitioner has not stated that on the date of issuance of charge sheet or on the date when the order of dismissal from service was passed, the Settlement Officer or the S.D.O. was not the appointing authority in respect of Patwari. Even though this Court directed the respondents to place on record the relevant notification, if any, under Section 104 of the Code of 1959, delegating power of the Collector under Section 104 (2) of the Code, the respondents in purported compliance of the order of this Court have only placed on record, statutory provisions under Sections 64, 65, 66 & 104 of the Code of 1959 along with the rules relating to duty and functions of Patwari. The Appellate Authority in its order (Annexure P—2) has recorded that the powers of Collector were delegated to the Settlement Officer, North Bastar in that area and the Patwaris' were also transferred under the jurisdiction of Settlement Officer. l3. In the case of Mangilal Vs. State of M.P., 1995, R.N. 67, a Division Bench of High Court of M.P. wile considering the issue with regard to powers of the Sub-Divisional Officer to impose the penalty of dismissal on Patvvari has taken notice of statutory notification issued by the State Government delegating the powers of Collector under Section 104 (2) on the Sub Divisional Officer. The hierarchy of Revenue Officers is provided under Section ll the Code of 1959 which includes Settlement Officer and Sub Divisional Officer. For the purpose of revenue survey and settlement in non-urban areas, the State Government has been empowered, under Section 64 of the Code of 1959, to appoint any officer as Settlement Officer, in charge of a revenue survey, and/or § < 3" ‘ a requirements of Article 31 1( the requirements the authority appointing, and not that in the absence of direct subordination any authority could dismiss even though the authority appointing might be a higher authority in rank. The dismissing authority should be at least co-ordinate in rank with the appointing authority and should not be subordinate in rank. Thus if a person is appointed by a Head of one of powers of Collector on the Settlement Officer would not by itself mean that a Revenue Officer (Settlement Officer) in a district shall cease to be subordinate to the Collector of that district. As has been _10. @ discussed above, respondents have not placed on record any direction of the State Government issued in exercise of powers under Section 12 (3f of the Code of 1959 to provide otherwise than what has been generally provided therein with regard to subordination. I am therefore of the opinion that even When the powers of Collector were delegated to Settlement Officer including powers of appointment on the post of Patwari, Settlement Ofiicer, North Bastar, Kanker continued to be subordinate in rank to Collector, District Jagdalpur on the date when petitioner was appointed and also on the date when impugned order of dismissal was passed. 19. Submission of learned counsel for the respondents that even if assuming that Settlement Officer, North Bastar, Kanker was subordinate to Collector Bastar, Jagdalpur on the date of imposing penalty, he was competent disciplinary authority by virtue of delegation of Collector’s powers of appointment of Patwari cannot be accepted. The constitutional protection embodied under Article 311 (1) of the Constitution of India is to the effect that no person who is a member of a civil service of the Union or an all~India service or a civil service of a State or holds a civil post under the Union or a State shall be dismissed or removed by an authority’subordinate to that by which he was appointed. Therefore, pven if on the date of exercise of the power of dismissal, the Settlement bfficer was competent to appoint Patwari or even to dismiss a Patwari under the provision of Section 104 (2) of the Code of 1959 by virtue of p6VVers of Collector delegated to him, he was subordinate to the Collector who appointed the petitioner. The View taken by this Court is supported by the judgment of Supreme Court in the case of Mysore State Road Transport Corporation (supra), wherein dealing with similar issue regarding exercise of powers of dismissal by Virtue 0f delegated authority, it was held as under : “10. In Gurmukh Singh V. Union of India where the petitioner was appointed as an Assistant Sub—Inspector of Police in the Delhi State Police Force by the Deputy Inspector General of Police Who was at the relevant time, the head of the Delhi Police and the post of Deputy Inspector_General afterwards ceased to exist and the two senior—most officers in the Police Force at the relevant period were the Inspector General and the Senior Superintendent of Police and the petitioner was dismissed by the order of the Senior Superintendent of Police who had been invested with the powers of Deputy Inspector General, Falshaw, C.J. accepting the contention of the petitioner that his dismissal contravened Article 31 1 since the Superintendent of Police even where he is designated as Senior Superintendent is subordinate to the Deputy Inspector—General of Police observed: “The word ‘subordinate’ in Article 311(1) of the Constitution means subordinate in rank and not with reference to the functions exercised. Consequently, when no officer of equal rank to the appointing officer is available then the order of dismissal or removal will have to be passed by an officer of superior rank. In no circumstances can such an order be passed by an officer of lesser rank. Any rule of statute which permits such an action, must be held to be ultra vires as infringing the provisions of Article $1 1(1) of the Constitution.” 11. In Mahadev Prasad Roy v. S.N. Chatterjee where the petitioner was appOi‘nted in 1928 as lino operator in the Government Press by the’ Superintendent of the Press and the Government Order was passed on June 20, ‘1952 delegating the power of appointment and dismissal to the Deputy Superintendent who initiated proceedings against the petitioner on a charge of theft and passed an order faw disissing the petitioner from service on September 16, 1953, Ramaswami, J. as he then was) accepting the contention of the petitioner that he could be dismissed only by the Supertendent of the Government Press or by any higher authority and the order passed by th Deputy Superintendent was invalid and inoperative observed: “The word ‘subordinate’ in Article 311(1) mst be properly construed to mean subordination in rank and not subordination of function: otherwise, th protection referred to in Article 31 l would be illusory.” This was followed by yet another authority of the Supreme Court in Krishna Kumar Vs. Divisional Assistant Electrical Engineer the case of 85 Ors AIR 1979 SC 1912. N In that case, the appellant was appointed as Train Lighting Inspector under an order passed by the Chief Electrical Engineer and was removed from service under an order passed by Divisional Assistant Electrical Engineer, Central Railway, Nagpur. In defence of the legality of the order of removal, submission advanced was that the power to make appointment to the post of Train Lighting Inspector was delegated to certain others officers including Divsional Assistant Technical Engineer. It was urged that since a Divisional Assistant Electrical Engineer has been given ithe a-power to make appointments/(to the post of Train Lighting nspector, he would: have power to remove any person from that post. Negativing the contention, it Whs held that :~ “5. In defence of the legality of the order of removal, counsel for the respondents relies on para 2 of Respondent 1’s affidavit, dated January 7, 1978, wherein he has stated that the power to make Appointments to the post of the Train Lighting Inspector was delegated to certain other officers including the Divisional Assistant Electrical Engineer. It is m ( in e u e i I -13- urged that since the Divisional Assistant Electrical Engineer has been given the power to make appointments to the post of the Train Lighting Inspector, he would have the power to remove any person from that post. We cannot accept this contention. Whether or not an authority is subordinate in rank to another has to be determined with reference to the state of affairs existing on the date of appointment. It is at that point of time that the constitutional guarantee under Article 311(1) becomes available to the person holding, for example, a civil post under the Union Government that he shall not be removed or dismissed by an authority subordinate to that which appointed him. 6. Besides, delegation of the power to make a particular appointment does not enhance or improve the hierarchical status of the delegate. An Officer subordinate to another will not become his equal in rank by reason of his coming to possess some of the powers of that another. The Divisional Engineer, in other words, does not cease to be subordinate in rank to the Chief Electrical Engineer merely because the latter’s power to make appointments to certain posts has been delegated to him. 7. Since the appellant was appointed by the Chief Electrical Engineer and has been removed from service by an order passed by Respondent 1 who, at any rate, was subordinate in rank to the Chief Electrical Engineer on the date of appellant’s appointment, it must be held that Respondent 1 had no pdwer to remove the appellant from Service. The order of removal is in patergt Violation of the provisions of Article 31 1(1) of the Constitution.” 21. In the final analysis, thisq‘Court comes to the conclusion that the impugned order of dismissal passed by the Settlement Officer was violative of Article 311 (l) of the Constitution of India and therefore void and non-est and of no effect. The petitioner accordingly shall be deemed t @ , if so advised, the Government takes appropriate steps o bring his service to an end. 22. Before prting with the case, I would reiterate What was observed by the Supreme Court while setting aside the order of compulsory retirement on the ground of want of authority in the case of Paragraph .14- to continue in service until t ’Dharam Dev Mehta Vs. Union of India 85 Ors. (1980) 2 SCC 205. 5 of the judgment being relevant is reproduced as under: “5. It is unfortunate that this legal flaw has proved fatal. Administrative law is a course necessary for administrative officers at the highest levels so that such flaws may not vitiate orders they pass. Eventually government is put to considerable loss for no fault of it, except that no proper legal training in this branch of the law for the concerned officers had been given by it ........ ” 23. In the result, the petition is allwed. Impugned order dated 24.11. 1992 (Annexure A—l) is accordingly set aside. There shall be no order as to cost. ‘\ Sd/- Manindra Mohan Shrivastava Judge a o