Brij Bihari Rajput vs The State Of Madhya Pradesh
- Court
- Madhya Pradesh High Court
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IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE ANAND SINGH BAHRAWAT
WRIT PETITION No. 723 of 2017
BRIJ BIHARI RAJPUT
Versus
THE STATE OF MADHYA PRADESH AND OTHER
Appearance:
Shri Raj Bahadur Singh Tomar - Advocate for petitioner.
Smt. Smrati Sharma – Government Advocate for respondent/State.
Reserved on : 26.03.2026
Pronounced on : 22.05.2026
___________________________________________________________________
ORDER
This petition, under Article 226 of Constitution of India, has been filed
seeking the following relief (s):
“7.1 That, the order annexure P/1 dated 21-04-2016 issued by the
respondent no. 1, kindly quashed.
7.2 That, the respondent kindly directed to release and refund the
5% pension of the petitioner with the interest of 18% p.a. and also
directed to make fixation and pay arrears to the petitioner.
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7.3 That, other relief doing justice including cost be ordered.”
2. Learned counsel for petitioner submits that petitioner stood retired from
the post of Naib Tahsildar on 31-07-2011. Initially, petitioner was appointed on
the post of Revenue Inspector by order dated 06-11-1978 and thereafter he was
promoted on the post of Naib Tahsildar in the month of July, 2009. At the
relevant point of time i.e. in the year 2009 when petitioner was posted as Naib
Tahsildar District Guna, a case regarding mutation was put up before him for
exercising quasi judicial function and initially the mutation proceeding filed by
Smt. Savitri Bai regarding mutation of Survey No.80/1/1 measuring 1.00 Hectare
but said mutation proceeding was rejected by petitioner and it was alleged that
later on after cancelling the earlier order dated 08-12-2009, the mutation order
has been passed on 15-01-2010. Thereafter, a show cause notice was issued
which had been replied by petitioner stating that said mutation which was done
by petitioner was cancelled by the Sub-Divisional Officer. Thereafter, an enquiry
was conducted without giving any proper opportunity of hearing to petitioner and
enquiry officer submitted the enquiry report on 30-07-2011 i.e. before a day of
the retirement of petitioner. On 12-10-2011, a letter was issued to petitioner for
calling reply within a period of 7 days which was replied by petitioner stating
that mutation done by petitioner had already been cancelled by the Sub-
Divisional Officer and no pecuniary loss was caused to the State Government. It
is also submitted that a letter dated 26-09-2012 was served to petitioner and he
was called for hearing before respondent no. 1 at Bhopal on 16-10-2012. In
compliance of the said letter, petitioner appeared before respondent No. 1. It is
submitted that after retirement of petitioner the authority did not finalize his
pension, therefore, petitioner preferred an application/representation dated 03-01-
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2013 regarding finalization of his case. It is submitted that as per Rule 9 of M.P.
Civil Services (Pension) Rules, 1976 (for brevity “Rules, 1976”), it is clear that
the right of Governor to withhold or withdraw the pension or ordering recovery
for pension of the whole or part of any pecuniary loss caused to the Government,
if, in any departmental or any judicial proceeding, pensioner is found guilty of
grave misconduct or negligence during the period of his service. It is submitted
that in the present case no any pecuniary loss has been caused to the State
Government and it is further submitted that as per Rule 9 of the Rules, 1976,
pension can be withheld only in case, if there is finding of the authority about the
grave misconduct in which an order of dismissal of service could be made in
relation to the Government Servant during his service in case it is proposed to
withhold or withdraw the pension or part thereof whether permanently or for
specific period. Hence, it is clear that there is no finding by the authorities that
misconduct committed by petitioner is so grave that if he had been in service, he
would have been dismissed. It is submitted that respondents have not granted the
opportunity of hearing after getting concurrence from the Public Service
Commission, though it is the requirement of natural justice. It is further
submitted that on perusal of order Annexure P-1, it appears that the respondent-
authority has also not obtained the approval or permission from the Governor as
provided under Rule 9 of Rules, 1976. It is further submitted that allegations
made in the impugned order do not come under the definition of misconduct and
at the relevant point of time petitioner was working as Naib Tahsildar and he is
entitled to the benefit of the Judges (Protection) Act, 1985. It is submitted that
the order of stopping pension of petitioner was to be passed personally by the
Governor and could not have been passed by the Council of Ministers or any
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other authority competent as per Rules of Executive Business of Government. It
is submitted that as per Rule 32 of the M.P. Civil Services (Classification,
Control and Appeal) Rules, 1966 the advice received from the PSC must be
supplied to petitioner. The said aspect has not been considered by respondents
and a non-speaking and unreasoned order has been issued by the incompetent
authority.
3. Per contra , it is submitted by learned counsel for respondent/State that
charge-sheet was issued to petitioner alleging certain charges and after initiating
the departmental enquiry against petitioner and after conducting enquiry
proceedings, after examining witnesses, enquiry officer submitted his report on
31.7.2011. It is submitted that Enquiry Report reveals that charges levelled
against petitioner are found proved, therefore, as petitioner was already retired on
attaining the age of superannuation w.e.f. of 31.7.2011, therefore, matter was
referred to the State Government in view of Rule-9 of Rules, 1976 and ultimately
State Government passed the order dated 21.4.2016 by stopping 5% pension in
view of Rule-9 of Rules, 1976. It is submitted that petitioner was given full
opportunity of hearing in the departmental enquiry proceedings but he failed to
establish that he had not committed misconduct, therefore, punishment order has
rightly been passed. It is submitted that the scope of judicial review in a petition
filed under Article 226 of the Constitution of India is very limited. On these
premised submissions, learned counsel for respondent/State opposes the
arguments advanced by learned counsel for petitioner by supporting the order
impugned and prays for dismissal of instant petition.
4. Heard learned counsel for the parties and perused the record.
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5. Before analyzing contentions of rival parties, it would be apt to reproduce
relevant provision of Rule 9 of Rules, 1976 which goes as under:
“ 9. Right of Governor to withhold or withdraw pension. -
(1) The Governor reserves to himself the right of withholding or
withdrawing a pension or part thereof, whether permanently or for a
specified period, and of ordering recovery from pension of the whole
or part of any pecuniary loss caused to the Government if, in any
departmental or judicial proceeding, the pensioner is found guilty of
grave misconduct or negligence during the period of his service,
including service rendered upon re-employment after retirement:
Provided that the State Public Service Commission shall be consulted
before any final orders are passed :
Provided further that where a part of pension is withheld or withdrawn,
the amount of such pension shall not be reduced below [the minimum
pension as determined by the Government from time to time];
(2) (a) The departmental proceedings [xxx], if instituted while the
Government servant was in service whether before his retirement or
during his re-employment, shall, after the final retirement of the
Government servant, be deemed to be proceedings under this rule and
shall be continued and concluded by the authority by which they were
commenced, in the same manner as if the Government servant had
continued in service :
Provided that where the departmental proceedings are instituted by an
authority subordinate to the Governor, that authority shall submit a
report regarding its findings to the Governor.
(b) The departmental proceedings, if not instituted while the
Government servant was in service whether before his retirement or
during his re-employment :-
(i) shall not be instituted save with the sanction of the Governor; (ii)
shall not be in respect of any event which took place more than four
years before such institution; and
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(iii) shall be conducted by such authority and in such place as the
Government may direct and in accordance with the procedure
applicable to departmental proceedings :
(a) in which an order of dismissal from service could be made in
relation to the Government servant during his service in case it is
proposed to withhold or withdraw a pension or part thereof whether
permanently or for a specified period; or
(b) in which an order of recovery from his pay of the whole or part
of any pecuniary loss caused by him to the Government by negligence
or breach of orders could be made in relation to the Government
servant during his service if it is proposed to order recovery from his
pension of the whole or part of any pecuniary loss caused to the
Government].
(3) No judicial proceeding, if not instituted while the Government
servant was in service, whether before his retirement or during his re-
employment, shall be instituted in respect of a cause of action which
arose or in respect of an event which took place, more than four years
before such institution.
(4) In the case of a Government servant who has retired on attaining
the age of superannuation or otherwise and against whom any
departmental or judicial proceedings are instituted or where
departmental proceedings are continued under sub-rule (2), a
provisional pension and death-cum-retirement gratuity as provided in
[Rule 64], as the case may be, shall be sanctioned :
[Provided that where pension has already been finally sanctioned to a
Government servant prior to institution of departmental proceedings,
the Governor may, by order in writing, withhold, with effect from the
date of institution of such departmental proceedings fifty per cent of
the pension so sanctioned subject however that the pension payable
after such withholding is not reduced to less than [the minimum
pension as determined by the Government from time to time] :
Provided further that where departmental proceedings have been
instituted prior to the 25th October, 1978, the first proviso shall have
effect as it for the words "with effect from the date of institution of
such proceedings" the words "with effect from a date not later than
thirty days from the date aforementioned," had been substituted :
Provided also that-
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(a) If the departmental proceedings are not completed within a
period of one year from the date of institution thereof, fifty per cent of
the pension withheld shall stand restored on the expiration of the
aforesaid period of one year;
(b) If the departmental proceedings are not completed within a
period of two years from the date of institution the entire amount of
pension so withheld shall stand restored on the expiration of the
aforesaid period of two years; and
(c) If in the departmental proceedings final order is passed to
withhold or withdraw the pension or any recovery is ordered, the order
shall be deemed to take effect from the date of the institution of
departmental proceedings and the amount, of pension since withheld
shall be adjusted in terms of the final order subject to the limit
specified in sub-rule (5) of Rule 43].
(5) Where the Government decides not to withhold or withdraw
pension but orders recovery of pecuniary loss from pension, the
recovery shall not be made at a rate exceeding one-third of the pension
admissible on the date of retirement of a Government servant.
(6) For the purpose of this rule-
(a) departmental proceedings shall be deemed to be instituted on the
date on which the statement of charges is issued to the Government
servant or pensioner, or if the Government servant has been placed
under suspension from an earlier date, on such date; and
(b) judicial proceedings shall be deemed to be instituted-
(i) in the case of criminal proceedings, on the date on which the
complaint or report of a police officer, of which the Magistrate takes
cognizance, is made, and
(ii) in the case of civil proceedings, on the date the plaint is presented
in the Court.”
6. From perusal of record, it is gathered that petitioner stood retired from the
post of Naib Tahsildar on 31-07-2011. Initially, petitioner was appointed on the
post of Revenue Inspector by order dated 06-11-1978 and thereafter he was
promoted on the post of Naib Tahsildar in the month of July, 2009. At the
relevant point of time i.e. in the year 2009 when petitioner was posted as Naib
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Tahsildar District Guna, a case regarding mutation was put up before him for
exercising quasi judicial function and initially the mutation proceeding filed by
Smt. Savitri Bai regarding mutation of Survey No.80/1/1 measuring 1.00 Hectare
but said mutation proceeding was rejected by petitioner and it was alleged that
later on after cancelling the earlier order dated 08-12-2009, the mutation order
has been passed on 15-01-2010. Thereafter, a show cause notice was issued
which had been replied by petitioner stating that said mutation which was done
by petitioner was cancelled by the Sub-Divisional Officer. Thereafter, an enquiry
was conducted without giving any proper opportunity of hearing to petitioner and
enquiry officer submitted the enquiry report on 30-07-2011 i.e. before a day of
the retirement of petitioner. On 12-10-2011, a letter was issued to petitioner for
calling reply within a period of 7 days which was replied by petitioner stating
that mutation done by petitioner had already been cancelled by the Sub-
Divisional Officer and no pecuniary loss was caused to the State Government. A
letter dated 26-09-2012 was served to petitioner and he was called for hearing
before respondent no. 1 at Bhopal on 16-10-2012. In compliance of the said
letter, petitioner appeared before respondent No. 1. After retirement of petitioner
the authority did not finalize his pension, therefore, petitioner preferred an
application/representation dated 03-01-2013 regarding finalization of his case.
As per Rule 9 of Rules, 1976, it is clear that the right of Governor to withhold or
withdraw the pension or ordering recovery for pension of the whole or part of
any pecuniary loss caused to the Government, if, in any departmental or any
judicial proceeding, pensioner is found guilty of grave misconduct or negligence
during the period of his service. In the present case, no any pecuniary loss has
been caused to the State Government and as per Rule 9 of the Rules, 1976,
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pension can be withheld only in case, if there is finding of the authority about the
grave misconduct in which an order of dismissal of service could be made in
relation to the Government Servant during his service in case it is proposed to
withhold or withdraw the pension or part thereof whether permanently or for
specific period. Hence, it is clear that there is no finding by the authorities that
misconduct committed by petitioner is so grave that if he had been in service, he
would have been dismissed. Respondents have not granted the opportunity of
hearing after getting concurrence from the Public Service Commission, though it
is the requirement of natural justice. On perusal of Annexure P-1, allegations
made in the impugned order do not come under the definition of misconduct and
at the relevant point of time petitioner was working as Naib Tahsildar and he is
entitled to the benefit of the Judges (Protection) Act, 1985. As per Rule 32 of the
M.P. Civil Services (Classification, Control and Appeal) Rules, 1966 the advice
received from the PSC had to be supplied to petitioner.
7. The advice of the Public Service Commission, relied upon by the State
while passing the impugned order, was not supplied to petitioner, contrary to
settled legal principles. No financial loss to the State has been proved, and there
is no finding that the alleged misconduct was of such grave in nature as would
warrant dismissal from service. In such circumstances, withholding of the
petitioner’s pension under Rules, 1976 appears to lacking in sufficient legal
basis. Accordingly, these aspects require careful judicial scrutiny.
8. The judgment passed by the Apex Court in the case of S.N. Narula Vs.
Union of India and others, reported in (2011) 4 SCC 591 has been followed by
the Apex Court in the case of Union of India and others Vs. R.P. Singh,
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reported in (2014) 7 SCC 340 . In the case of R.P. Singh (supra) , in para- 12, 21
and 23, it is held as under :
“12. We will be failing in our duty if we do not take note of the
submission of Mr. W.A. Qadri that the decision in S.N. Narula case
is not an authority because the Tribunal has set aside the order of the
disciplinary authority on the ground that it was a non-speaking order.
Be that as it may, when the issue was raised before this Court and
there has been an advertence to the same, we are unable to accept the
submission of Mr. Qadri. The said decision in S.N. Narula case is an
authority for the preposition that the advice of UPSC, if sought and
accepted, the same, regard being had to the principles of natural
justice, is to be communicated before imposition of the punishment.
21. At this juncture, we would like to give our reasons for our
respectful concurrence with S.K. Kapoor. There is no cavil over the
proposition that the language engrafted in Article 320(3)(c) does not
make the said Article mandatory. As we find, in T.V.Patel's case, the
Court has based its finding on the language employed in Rule 32 of
the Rules. It is not in dispute that the said Rule from the very
inception is a part of the 1965 Rules. With the efflux of time, there
has been a change of perception as regards the applicability of the
principles of natural justice. An Inquiry Report in a disciplinary
proceeding is required to be furnished to the delinquent employee so
that he can make an adequate representation explaining his own
stand/stance. That is precisely what has been laid down in the
B.Karunakar case. …...............................”
23. We have referred to the aforesaid decision in B. Karunakar case
in extenso as we find that in the said case it has been opined by the
Constitution Bench that non-supply of the enquiry report is a breach
of the principle of natural justice. Advice from the UPSC, needless to
say, when utilized as a material against the delinquent officer, it
should be supplied in advance. As it seems to us, Rule 32 provides
for supply of copy of advice to the government servant at the time of
making an order. The said stage was in prevalence before the
decision of the Constitution Bench. After the said decision, in our
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considered opinion, the authority should have clarified the Rule
regarding development in the service jurisprudence.”
9. Thus, as per this judgment, non-supply of the enquiry report is a
breach of natural justice and advice from UPSC should be supplied in
advance and if the same is not done, the enquiry is vitiated on the count of
violation of natural justice and in the present case, advice from MPPSC has
not been supplied in advance, hence, the enquiry is vitiated on acount of
violation of natural justice .
10. Now, coming to the another aspect of the matter which has been raised by
petitioner is that the order should have been passed by the Governor personally
and could not be passed by the competent authority with approval of Council of
Ministers under the Rules of Business of Executive Government of the State.
11. The powers conferred on the Governor under various service rules framed
under Article 309 of Constitution of India have been considered in detail by the
Full Bench of this Court in the case of State of M.P. v. P.N. Raikwar reported
in ILR 2018 MP 2696 (FB) in which case the Full Bench of this Court has
considered the judgment of the Supreme Court in the case of Brajendra Singh
Yambem Vs. Union of India reported in (2016) 9 SCC 20 in detail so also the
earlier judgments on the point and after considering the entire law on the subject,
the Full Bench has held that in the case of Brajendra Singh Yambem (supra)
the earlier judgment of 7 Judges Bench of the Supreme Court in the case of
Samsher Singh v. State of Punjab, (1974) 2 SCC 831 so also the three judges
Bench judgment of Supreme Court in the case of Union of India v. Sripati
Ranjan Biswas, (1975) 4 SCC 699 were not brought to the attention of the
Supreme Court.
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12. The Full Bench considered the judgment of 7 judges Bench in Samsher
Singh (supra) which reads as under:-
“31. Further the Rules of Business and allocation of Business
among the Ministers are relatable to the provisions contained in
Article 53 in the case of the President and Article 154 in the case of
the Governor, that the executive power shall be exercised by the
President or the Governor directly or through the officers
subordinate. The provisions contained in Article 74 in the case of
the President and Article 163 in the case of the Governor that there
shall be a Council of Ministers to aid and advise the President or
the Governor, as the case may be, are sources of the Rules of
Business. These provisions are for the discharge of the executive
powers and functions of the Government in the name of the
President or the Governor. Where functions entrusted to a Minister
are performed by an official employed in the Minister's department
there is in law no delegation because constitutionally the act or
decision of the official is that of the Minister. The official is merely
the machinery for the discharge of the functions entrusted to a
Minister (see Halsbury's Laws of England 4th Ed., Vol. I,
paragraph 748 at p. 170 and Carltona Ltd. v. Works Commissioners
[(1943) 2 All ER 560] ).
44. The distinction made by this Court between the executive
functions of the Union and the executive functions of the President
does not lead to any conclusion that the President is not the
constitutional head of Government. Article 74(1) provides for the
Council of Ministers to aid and advise the President in the exercise
of his functions. Article 163(1) makes similar provision for a
Council of Ministers to aid and advise the Governor. Therefore,
whether the functions exercised by the President are functions of
the Union or the functions of the President they have equally to be
exercised with the aid and advice of the Council of Ministers, and
the same is true of the functions of the Governor except those
which he has to exercise in his discretion.
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45. In Sardari Lal case an order was made by the President under
sub-clause (c) to clause (2) of Article 311 of the Constitution. The
order was:
“The President is satisfied that you are unfit to be retained in the
public service and ought to be dismissed from service. The
President is further satisfied under sub-clause (c) of proviso to
clause (2) of Article 311 of the Constitution that in the interest of
the security of the State it is not expedient to hold an inquiry.”
The order was challenged on the ground that the order was signed
by the Joint Secretary and was an order in the name of the President
of India and that the Joint Secretary could not exercise the authority
on behalf of the President.
47. The decision in Sardari Lal case that the President has to be
satisfied personally in exercise of executive power or function and
that the functions of the President cannot be delegated is with
respect not the correct statement of law and is against the
established and uniform view of this Court as embodied in several
decisions to which reference has already been made.
These decisions are from the year 1955 up to the year 1971. These
decisions are Rai Saheb Ram Jawaya Kapur v. State of Punjab, A.
Sanjeevi Naidu v. State of Madras, and U.N.R. Rao v. Smt Indira
Gandhi. These decisions were neither referred to nor considered in
Sardari Lal case.
48. The President as well as the Governor is the constitutional or
formal head. The President as well as the Governor exercises his
powers and functions conferred on him by or under the
Constitution on the aid and advice of his Council of Ministers, save
in spheres where the Governor is required by or under the
Constitution to exercise his functions in his discretion. Wherever
the Constitution requires the satisfaction of the President or the
Governor for the exercise by the President or the Governor of any
power or function, the satisfaction required by the Constitution is
not the personal satisfaction of the President or Governor but the
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satisfaction of the President or Governor in the constitutional sense
in the Cabinet system of Government, that is, satisfaction of his
Council of Ministers on whose aid and advice the President or the
Governor generally exercises all his powers and functions. The
decision of any Minister or officer under Rules of Business made
under any of these two Articles 77(3) and 166(3) is the decision of
the President or the Governor respectively. These articles did not
provide for any delegation. Therefore, the decision of a Minister or
officer under the Rules of Business is the decision of the President
or the Governor.
53. The majority view in Babu Ram Upadhya case is no longer
good law after the decision in Moti Ram Deka case. The theory that
only the President or the Governor is personally to exercise the
pleasure or dismissing or removing a public servant is repelled by
express words in Article 311 that no person who is a member of the
civil service or holds a civil post under the Union or a State shall be
dismissed or removed by authority subordinate to that by which he
was appointed. The words “dismissed or removed by an authority
subordinate to that by which he was appointed” indicate that the
pleasure of the President or the Governor is exercised by such
officers on whom the President or the Governor confers or
delegates power.
57. For the foregoing reasons we hold that the President or the
Governor acts on the aid and advice of the Council of Ministers
with the Prime Minister at the head in the case of the Union and the
Chief Minister at the head in the case of State in all matters which
vests in the Executive whether those functions are executive or
legislative in character. Neither the President nor the Governor is to
exercise the executive functions personally. The present appeals
concern the appointment of persons other than District Judges to
the Judicial Services of the State which is to be made by the
Governor as contemplated in Article 234 of the Constitution after
consultation with the State Public Service Commission and the
High Court. Appointment or dismissal or removal of persons
belonging to the Judicial Service of the State is not a personal
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function but is an executive function of the Governor exercised in
accordance with the rules in that behalf under the Constitution.
13. The Full Bench held that in such Rules framed under Article 309 of the
Constitution of India the power conferred on the Governor is not to be exercised
by the Governor personally but by the Council of Ministers or the Ministers or a
competent authority as per the rules of Business. The said case before the Full
Bench was in relation to the Governor being named as an appellate authority
under the M.P. Civil Services (Classification, Control and Appeal) Rules, 1966.
14. Considering Para-48 of the judgment in the case of Samsher Singh
(supra) , the Full Bench considered the conclusions of a Constitution Bench in
case of Nabam Rebia & Bamang Felix v. Dy. Speaker, Arunachal Pradesh
Legislative Assembly, (2016) 8 SCC 1 wherein the Constitution Bench held as
under:-
155. We may, therefore, summarise our conclusions as under:
155.1. Firstly, the measure of discretionary power of the Governor,
is limited to the scope postulated therefor, under Article 163(1).
155.2. Secondly, under Article 163(1) the discretionary power of
the Governor extends to situations, wherein a constitutional
provision expressly requires the Governor to act in his own
discretion.
155.3. Thirdly, the Governor can additionally discharge functions
in his own discretion, where such intent emerges from a legitimate
interpretation of the provision concerned, and the same cannot be
construed otherwise.
155.4. Fourthly, in situations where this Court has declared that the
Governor should exercise the particular function at his own and
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without any aid or advice because of the impermissibility of the
other alternative, by reason of conflict of interest.
155.5. Fifthly, the submission advanced on behalf of the
respondents, that the exercise of discretion under Article 163(2) is
final and beyond the scope of judicial review cannot be accepted.
Firstly, because we have rejected the submission advanced by the
respondents, that the scope and extent of discretion vested with the
Governor has to be ascertained from Article 163(2), on the basis
whereof the submission was canvassed. And secondly, any
discretion exercised beyond the Governor's jurisdictional authority,
would certainly be subject to judicial review.
155.6. Sixthly, in view of the conclusion drawn at fifthly above
[para 155.5], the judgments rendered in Mahabir Prasad Sharma
case [Mahabir Prasad Sharma v. Prafulla Chandra Ghose, (1968) 72
CWN 328 : 1968 SCC OnLine Cal 3], and Pratapsingh Raojirao
Rane case [Pratapsingh Raojirao Rane v. Governor of Goa, AIR
1999 Bom 53 : 1998 SCC OnLine Bom 351] , by the High Courts
of Calcutta and Bombay, respectively, do not lay down the correct
legal position. The constitutional position declared therein, with
reference to Article 163(2), is accordingly hereby set aside.
15. Considering the entire law on the subject, the Full Bench in P.N. Raikwar
(supra) in concluding Para 23 held as under:-
“23. In view of the above, we find that no appeal shall lie to the
Governor if an order is passed by him personally in terms of Rule
22 Clause (i) of the Service Rules, but since the order of
punishment has not been passed by the Governor personally but has
been passed in the name of the Governor, therefore, an appeal
would lie under Rule 23 of the Service Rules. The appellate
authority shall be Governor in terms of Rule 24(1)(i)(b) of the
Service Rules, but again it is not the power to be exercised by the
Governor personally, but in terms of Rule of Business by the
‘Council of Ministers’ or the ‘Minister’ as may be warranted in the
Rule of Business.”
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The same view has been taken by a Division Bench of this court recently in WA
2061/2019 (Indore), decided on 15.6.2023 .
16. In view of aforesaid, the argument of petitioner that the order
stopping pension of petitioner was to be passed personally by the Governor
and could not be passed by the Council of Ministers or any other authority
competent as per Rules of Executive Business of Government cannot be
countenanced .
17. Now, another aspect of the matter:
“ Whether petitioner who was Naib Tahsildar is entitled to Judges
Protection Act while performing quasi judicial function ?
18. Section – 2 of the Judges (Protection) Act, 1985 defines about the word
“ Judge ” which reads as under -
"2. Definition.-- In this Act "Judge" means not only every person
who is officially designated as a Judge, but also every person-- (a)
who is empowered by law to give any legal proceeding a definitive
judgment, or a judgment which, if not appealed against, would be
definitive,or judgment which, if confirmed by some other authority,
would be definitive; or (b) who is one of a body of persons which
body of persons is empowered by law to give such a judgment as is
referred to in clause (a)."
19. As per the said definition, any person who is empowered by law to give
any legal proceeding a definitive judgment and any person who is one of a body
of persons which body of persons is empowered by law to give such a judgment
as is referred to in Clause (a) is a Judge.
20. In the present case, petitioner is empowered to give judgment, therefore,
he is a judge as per definition given under the Judges (Protection) Act, 1985.
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21. Section 3 of the Judges (Protection) Act, 1985 gives additional protection
to Judges. The said Section reads as under :-
" 3. Additional Protection to Judges.
(1) Notwithstanding anything contained in any other law for the
time being in force and subject to the provisions of sub-section (2),
no Court shall entertain or continue any civil or criminal proceedings
against any person who is or was a Judge for any act, thing or word
committed, done or spoken by him, or in the course of acting or
purporting to act in the discharge of his official or judicial duty or
function.
(2) Nothing in sub-section (1) shall debar or affect in any manner,
the power of the Central Government or the State Government or the
Supreme Court of India or any High Court or any other authority
under any law for the time being in force to take such action
(whether by way of civil,criminal or departmental proceedings or
otherwise) against any person who is or was a Judge."
22. As per this Section, some protection has been given to the Judge while
discharging his duty as Judge. The definition of judgment which is given under
Section 2 of the Judges (Protection) Act, 1985 is much wider and it includes an
order which determines the rights of the parties, for the reasons given in it.
23. Petitioner, exercising his power under the M.P. Land Revenue Code, is a
Judge and, therefore, he is entitled to protection under Section 3 (1) of the Judges
(Protection) Act, 1985 and no Court could entertain any civil or criminal
proceedings against him for any act, thing or word committed, done or spoken by
him, or in the course of acting or purporting to act in the discharge of his official
or judicial duty or function.
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24. The Division Bench of this Court in the case of State of M.P Vs.
Shriniwas Sharma & Anr. reported in 2005(2) M.P.L.J. 155 has held as
under :-
“As per the settled legal position the officers who are discharging
the duties as a quasi judicial authorities are protected under the
umbrella of acts done in good faith. When law protects a judicial or
quasi judicial authority in relating to his bonafide act then the
concerned officer who discharges the duties cannot be brought in
the net of the departmental enquiry unless something additional has
been brought into existence. A mere mistake committed while
passing a quasi-judicial order does not partake the character or
nature of misconduct. The Tribunal has analyzed the said aspect in a
great detail we perceive no reason to differ with the same.”
25. As per the said judgment, the officers, who are discharging the duties as a
quasi judicial authorities are protected under the umbrella of acts done in good
faith.
26. Similar view has been taken by this Court in the case of Balram & Anr.
Vs. Aswani Kumar Yadav & Anr. reported in 2001 (2) M.P.H.T. 330 as well
as the judgment passed by this Court in the case of State of M.P. Vs. Rajeev
Jain reported in 2001 (4) M.P.H.T. 58 .
Thus, in the light of the aforesaid judgments and enunciation of facts
and circumstances of the case, petitioner being Naib Tahsildar at the
relevant point of time was entitled to receive additional protection to Judges
given under the Judges (Protection) Act, 1985.
27. Now, coming to the last Issue i.e. whether charges framed against
petitioner come under the definition of misconduct?
28. As per charges mentioned in the impugned order, they do not come within
the definition of misconduct. As per the Division Bench judgment passed in the
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case of S.D. Bind v. Union of India and Others, 2015 (1) M.P.L.J. 74 , at best,
the act of petitioner may fall under the category of carelessness or negligence.
The relevant extract of order passed in the case of S.D. Bind (supra) is
reproduced below for ready reference and convenience:-
15. That apart, another aspect of the matter warrants consideration.
The irregularities which is found against the petitioner is only non-
following of certain procedure in the matter of awarding contract.
The question is as to whether such an irregularity in the matter of
following the procedure can be termed as a misconduct. The Supreme
Court has considered the aforesaid aspect in the case of Union of
India v. J. Ahmed, (1979) 2 SCC 286 : AIR 1979 SC 1022 which has
been followed again by the Supreme Court in the case of Inspector
Prem Chand v. Govt, of National Capital Territory of Delhi, (2007) 4
SCC 566, wherein it has been held by the Supreme Court that merely
lack of efficiency, failure to attain the highest standard of
administrative ability or negligent or careless want of dealing with a
matter on one isolated may not constituted a misconduct for which
punishment can be imposed.
16. In the present case apart from the fact that the Division Bench
has made the observations as reproduced hereinabove and interfered
with the imposition of cost, it found that there was certain
discrepancy in the guidelines laid down and, therefore, in paragraph 9
fresh guidelines for future action was issued. Once this is the factual
scenario then merely because the petitioner failed to follow the
guidelines for once, it cannot be said that the petitioner has
committed misconduct in the matter. At best action of the petitioner
may fall in the category of careless or negligence in the matter of
dealing with the case once an isolated occasion and if the principles
laid down by the Supreme Court as indicated in the case of J. Ahmed
(supra) is applied, we are of the considered view that allegations
levelled even do not amount to misconduct for which action can be
taken.
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29. There is nothing on record which shows that petitioner had ill-motive
while exercising his quasi judicial function regarding mutation of Survey
No.80/1/1 . Thus, the act of petitioner cannot be termed as misconduct as per the
judgment rendered by Hon’ble Apex Court in the case of Inspector Prem
Chand Vs. Govt. of NCT of Delhi and others reported in (2007) 4 SCC 566 ,
para 12 of which is quoted below for ready reference and convenience:
12. It is not in dispute that a disciplinary proceeding was initiated
against the appellant in terms of the provisions of the Delhi Police
(Punishment and Appeal) Rules, 1980. It was, therefore, necessary
for the disciplinary authority to arrive at a finding of fact that the
appellant was guilty of an unlawful behaviour in relation to
discharge of his duties in service, which was wilful in character. No
such finding was arrived at. An error of judgment, as noticed
hereinbefore, per se is not a misconduct. A negligence simpliciter
also would not be a misconduct. In Union of India v. J. Ahmed
[(1979) 2 SCC 286 : 1979 SCC (L&S) 157] whereupon Mr Sharan
himself has placed reliance, this Court held so stating: (SCC pp. 292-
93, para 11)
“ 11 . Code of conduct as set out in the Conduct Rules clearly
indicates the conduct expected of a member of the service. It
would follow that conduct which is blameworthy for the
government servant in the context of Conduct Rules would be
misconduct. If a servant conducts himself in a way inconsistent
with due and faithful discharge of his duty in service, it is
misconduct (see Pearce v. Foster [(1886) 17 QBD 536, 542 :
(1886-90) All ER Rep Ext 1752] ). A disregard of an essential
condition of the contract of service may constitute misconduct
[see Laws v. London Chronicle (Indicator Newspapers [(1959)
1 WLR 698] )]. This view was adopted in Shardaprasad
Onkarprasad Tiwari v. Divisional Supdt., Central Rly., Nagpur
Division, Nagpur [(1959) 61 Bom LR 1596] and Satubha K.
Vaghela v. Moosa Raza [10 Guj LR 23] . The High Court has
noted the definition of misconduct in Stroud's Judicial
Dictionary which runs as under:
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‘ Misconduct means, misconduct arising from ill motive; acts
of negligence, errors of judgment, or innocent mistake, do
not constitute such misconduct’ .”
Emphasis supplied
30. Having given anxious consideration to the totality of the facts and
circumstances of the case and in light of the pronouncements referred to
hereinabove, this Court is of the considered opinion that though mandatory
consultation with the State Public Service Commission was undertaken, however,
the copy of the said advice was not supplied to petitioner and petitioner was not
given opportunity of hearing in respect of the said advice. The petitioner,
discharging quasi-judicial functions, is entitled to the protection available under
the Judges (Protection) Act. There is nothing on record to indicate any
misconduct or mala fide conduct on the part of petitioner. Furthermore, pension
is a proprietary right as has been held by the Court in catena of judgments. Such
a proprietary right is not required to be taken away without following proper
procedure of law. If such a drastic penalty of withholding of pension is required
to be imposed on any such government servant, definite finding is required to be
recorded with respect to the gravity of the misconduct and the ultimate result of
the said misconduct. As nothing is found in this respect, no such consideration is
done by respondents while imposing penalty upon petitioner, hence, order dated
21.04.2016 cannot be sustained.
31. Consequently, present petition stands allowed and disposed of in the
following terms:
(i) Impugned order Annexure P-1 dated 21.04.2016 is hereby
quashed;
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(ii) Respondents are directed to refund the withheld 5% pension of
petitioner with interest at the rate of 6% per annum from the date of
retirement till actual payment is made within a period of three months
from the date of receipt of certified copy of this order, failing which
this amount would carry interest at the rate of 12% per annum from the
date of retirement till actual payment is made.
(Anand Singh Bahrawat)
Judge
pd
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