Dismissed

Surendra Singh Choudhary v. State and Ors.

Rajasthan HC3 Jan 2014CW/20182/2012

Case brief

AI extract

What is this about?

This court dismissed a writ petition challenging a departmental punishment order. The court held that while immunity exists for judicial acts, it is not absolute when an order is palpably illegal or passed with corrupt intent. The writ was dismissed as the petitioner's conduct in the mutation case was not bona fide.

What did the court decide?

The writ petition and stay application were dismissed without interference in the impugned punishment order.

Surendra Singh Choudhary Vs State and Ors. — Service and Employment | Rajasthan HC (2014)

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S.B. CIVIL WRIT PETITION NO.20182/2012 (Surendra Singh Choudhary Vs.The State of Rajasthan & Ors.)

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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR

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S.B. CIVIL WRIT PETITION NO.20182/2012

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(Surendra Singh Choudhary Vs.The State of Rajasthan & Ors.)

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Date of Order : 03^rd January, 2014

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HON'BLE MR. JUSTICE M.N. BHANDARI

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Mr.Sunil Samdaria, for the petitioner/s.

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BY THE COURT:

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By the writ petition, a challenge is made to the order of punishment dated 31^st May, 2001 whereby petitioner was punished with stoppage of two grade increments with cumulative effect.

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Learned counsel submits that a charge sheet was served on the petitioner containing 23 charges. After enquiry 22 charges were found proved. The Disciplinary Authority accordingly passed order of punishment on 31^st May, 2001.

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It is stated that all the 22 charges were in respect of order passed by the petitioner as Additional Collector-cum-Executive Magistrate and was under the provisions of Revenue Laws. It was while he was discharging judicial duties. The order passed by the petitioner could have been further challenged but should not have been made subject matter of departmental action. The issue aforesaid has already been decided by the Hon’ble Apex Court in the case of Ramesh Chander Singh Vs. High Court of Allahabad & Ors. reported in (2007) 4 SCC 247 and also in the case of Zunjarrao Bhikaji Nagarkar Vs. Union of India & Ors. reported in JT 1999 (5) SC 366 .

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Learned counsel made a reference of charges and finding recorded therein to show that all the orders were passed while discharging judicial duties.

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I have considered the submissions made by learned counsel and perused

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S.B. CIVIL WRIT PETITION NO.20182/2012 (Surendra Singh Choudhary Vs.The State of Rajasthan & Ors.)

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the record so as the judgment cited at bar.

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I am first referring to the decision of Hon’ble Apex Court in the case of Ramesh Chander (supra). The Hon’ble Apex Court disapproved the practice of initiation of disciplinary proceedings against officers of the subordinate judiciary, contending judgments/orders passed by them to be wrong. In the case of Zunjarrao Bhikaji Nagarkar (supra), it was held that Appellate and Revisional Court can set aaside such orders. Similar view was taken there,as officers passed quasi judicial order. Learned counsel for the petitioner is fair enough to refer the judgment on the issue adverse to the petitioner/s. It is in the case of Union of India Vs. K.K. Dhawan reported in 1993 (2) SCC 56 . Therein, it was held that an officer discharging judicial and quasi judicial proceedings is not immune from disiplenary proceedings. The conduct of the officer in discharge of duties can be taken up for disciplinary action. Therein, action against the officer was regarding completion of income tax assessment in haste and with a view to extent undue favour to the assessee.

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Learned counsel submits that allegation of similar nature does not exist against the petitioner. The judgment aforesaid permits disciplinary action in the matter when allegation regarding conduct of the officer exists.

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It is no doubt true that if an officer passing an order on judicial or quasi judicial side, disciplinary action cannot be initiated to question the illegality or justification of the order. In my opinion, the immunity to that extent exists but it is not absolute, as has been clarified by the Hon’ble Apex Court in the case of K.K.Dhawan (supra). The protection is to be for bonafidely act and not for passing an order which is wrong on the face of it and shows the intention.

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If charge No.1 is looked into, it pertains to the order passed by the petitioner where he opened mutation in favour of a person based on his old possession. It

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S.B. CIVIL WRIT PETITION NO.20182/2012

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(Surendra Singh Choudhary Vs.The State of Rajasthan & Ors.)

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was in ignorance of nature of land. The posture land is not available for allotment or mutation based on possession. The order aforesaid was passed in violation of Section 16 of Rajasthan Tenancy Act, 1955 (for short “Act of 1955”). It was to benefit the person, who made an application for mutation of the land in his name. There are similar charges. The order passed in violation of law can be subjected to appeal and revision but it would mean endorsement of an order passed by the respondents in total ignorance of provision of law. The disciplinary action on judicial proceedings should not be initiated when order is passed where two interpretations are possible and Authority has taken one interpretation out of it.When an order is palpably wrong and illegal, and shows conduct of the officer, then interference in the order of punishment would mean nothing but promoting illegality or corruption in the name of immunity to pass order in judicial side. That should not be the endeavour to the court. As and when plea is taken or immunity is sought for the judicial order, in my opinion, the Court can look into the order to find out as to whether it is on the face of it illegal and in violation of provisions of law. It is to gather the conduct and intension of the officer.

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The petitioner was discharging the duties as Additional Collector-cum-Executive Magistrate, thus was acquainted with the revenue laws. A posture land is not available for mutation in the manner it has been opened by the petitioner. If the recent judgment of Hon’ble Apex Court in the case of Jagpal singh & Ors. Vs.State of Punjab and Ors. (2011)11 SCC 396 is looked into, the allotment of similar nature of land has been deprecated with the serious note. The Hon’ble Apex Court has given directions to the Chief Secretary of all the State Government/s to issue an order to restrain allotment of land of gram panchayat.The State of Rajasthan has already issued such an order. It is though not at the time when petitioner passed the order and made subject to the disciplinary enquiry. The charge No.2 is also an order passed in regard to the posture

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S.B. CIVIL WRIT PETITION NO.20182/2012 (Surendra Singh Choudhary Vs.The State of Rajasthan & Ors.)

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land. The act of the petitioner in such circumtances cannot be said to be bonafide so as to secure him by giving protection. In my opinion, the petitioner should have been given severe punishment for such an act and this Court was intend to issue a Show Cause Notice as to why punishment should not be enhanced, however, it is informed that erstwhile employee is no more.

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In view of discussion made above, I am not inclined to cause interference

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in the impugned order of punishment on the ground urged by learned counsel for the petitioner.

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The writ petition is accordingly dismissed so as the stay application.

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(M.N. BHANDARI), J.

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Preety, Jr.P.A.

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All corrections made in the judgment/order have been incorporated in the judgment/order being emailed.