# Kumar Bhupendra Singh v. State of U.P. & Anr

- **Citation:** (2024) 2 ILRA 267
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-01-02
- **Case number:** Writ A No. 4136 of 2021
- **Bench:** Salil Kumar Rai
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kumar-bhupendra-singh-v-state-of-u-p-anr-51420
- **Pages:** 18

## Headnote

A. Service Law - UP Government Servant
(Discipline and Appeal) Rules, 1999 - Rule
9(2)
-
Disciplinary
proceeding
-
Punishment - Exchange of land with
pasture land u/s 161 of UP ZA&LR Act,
1950 was made - Petitioner, vide his
order dated 11.8.2016 directed mutation
in the revenue records implementing the
earlier
order
passed
by
Additional
Commissioner
-
Charge
of
providing
personal gain in favour of private parties
was leveled - Though the Inquiry Officer
found the order passed by the petitioner
268 INDIAN LAW REPORTS ALLAHABAD SERIES
beyond jurisdiction, but not found the
charge
of
personal
gain
proved
-
However, disciplinary authority awarded
punishment holding that the petitioner
while passing the order dated 11.8.2016
had not only acted beyond jurisdiction,
but had also acted for private gain -
Legality challenged - No opportunity to
represent before the disciplinary authority
was given - Effect - Held, mere passing of
an order in excess of jurisdiction does not
by itself cast doubt on the integrity of a
government servant and does not by itself
establish that the order was passed to
show favour to any party or for personal
gains - High Court held punishment order
contrary to Rule 9(2) of the Rules, 1999.
(Para 9, 16 and 31)

Writ petition allowed. (E-1)

List of cases cited :-

## Text

_Characters 0–39,731 of 62,327. This is a partial read: ask again with offset=39731 for what follows._

2 All. Kumar Bhupendra Singh Vs. State of U.P. & Anr.
267

28. In view of the above discussion, I
am of the considered view that any woman,
who has in the past lived in a domestic
relation with the respondent, is included in
the definition of an aggrieved person and
domestic relation includes a relationship by
marriage or through a relationship in the
nature of marriage.

29. As per the opposite party no. 2 -
complainant, she got married to the
applicant on 12.05.2018. A Suit filed by the
applicant under Sections 11 & 12 of the
Hindu Marriage Act, 1955 was decreed ex
parte on 26.03.2021 by the Family Court,
Dehradun and the marriage between the
applicant no. 1 and opposite party no. 2
was declared to be null and void for the
reasons that the applicant no. 1 and
opposite party no. 2 were sapindas and the
marriage between them was prohibited
under Section 5(v) of the Hindu Marriage
Act, and that the opposite party no. 2 was
suffering from bipolar disorder and the
consent of applicant no. 1 was obtained by
concealing this fact which made the
marriage voidable. Since that judgment is
not under challenge in these proceedings, I
am refraining from making any observation
regarding that judgment.

30. The applicant does not dispute
that he got married to the opposite party no.
2 and having been married to the applicant,
the opposite party no. 2 had lived in a
domestic relationship with the applicant,
before they started living separately. They
had been related by marriage till the
marriage was declared to be null and void.
Even though the marriage has subsequently
been declared to be null and void, when the
relationship between the applicant and the
opposite party no. 2 subsisted, it was a
relationship in the nature of marriage.
Therefore, the opposite party no. 2 is an
aggrieved person within the meaning of the
Act she has a right to present an application
under Section 12 of the DV Act.

31. I find no force in the preliminary
objection raised by the applicant against
maintainability of the application under
Section 12 of the DV Act. The impugned
order in no way defeats the ends of justice
and there is no merit in the application
under Section 482 filed by the applicant.

32. Accordingly, the application under
Section 482 Cr.P.C. is dismissed.
---------
(2024) 2 ILRA 267
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 02.01.2024
BEFORE
THE HON'BLE SALIL KUMAR RAI, J.

Writ A No. 4136 of 2021

Kumar Bhupendra Singh ...Petitioner
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Petitioner:
Sri Ramesh Chandra Tiwari, Sri Ashok
Khare (Sr. Advocate)

Counsel for the Respondents:
C.S.C., Sri Brahma Kumar Tiwari

A. Service Law - UP Government Servant
(Discipline and Appeal) Rules, 1999 - Rule
9(2)
-
Disciplinary
proceeding
-
Punishment - Exchange of land with
pasture land u/s 161 of UP ZA&LR Act,
1950 was made - Petitioner, vide his
order dated 11.8.2016 directed mutation
in the revenue records implementing the
earlier
order
passed
by
Additional
Commissioner
-
Charge
of
providing
personal gain in favour of private parties
was leveled - Though the Inquiry Officer
found the order passed by the petitioner
268 INDIAN LAW REPORTS ALLAHABAD SERIES
beyond jurisdiction, but not found the
charge
of
personal
gain
proved
-
However, disciplinary authority awarded
punishment holding that the petitioner
while passing the order dated 11.8.2016
had not only acted beyond jurisdiction,
but had also acted for private gain -
Legality challenged - No opportunity to
represent before the disciplinary authority
was given - Effect - Held, mere passing of
an order in excess of jurisdiction does not
by itself cast doubt on the integrity of a
government servant and does not by itself
establish that the order was passed to
show favour to any party or for personal
gains - High Court held punishment order
contrary to Rule 9(2) of the Rules, 1999.
(Para 9, 16 and 31)

Writ petition allowed. (E-1)

List of cases cited :-

1. Dr. (Smt.) Kuntesh Gupta Vs Management of
Hindu Kanya Mahavidyalaya, Sitapur (U.P.) &
ors.; 1987 (4) SCC 525

2. Writ B No. 39011 of 2010; Babu Lal & ors.Vs
Board of Revenue U.P. Allahabad & ors.decided
on 3.12.2014

3. C.M. Review Application No. 64657 of 2015 in
Writ B No. 39011 of 2010; Babu Lal & ors.Vs
Board of Revenue U.P. Allahabad & ors.decided
on 5.5.2017

4. Sushila Vs Additional Commissioner Azamgarh
& ors.; 2015 (127) RD 691

5. Kaptan Singh Vs St. of U.P. & anr.; 2014 (8)
ADJ 16 (DB)

6. Shyam Babu Vaish Vs St. of U.P. & anr.; 2019
(6) ADJ 398 (DB)

7. Hari Om Rastogi Vs St. of U.P. & ors.l 2022
(9) ADJ 169 (DB)

8. Ceiling No. 258 of 2016; Kaushlendra Singh &
anr. Vs St. of U.P. & ors.decided on 16.11.2016

9. Writ A No. 29828 of 2021; Shri Prakash
Gupta Vs St. of U.P. & ors.decided on 13.7.2022
10. Sri Kishun Vs Gaon Sabha; (1999) 90 RD
650

11. St. of Punjab & ors.Vs Ram Singh ExConstable; (1992) 4 SCC 54

12. M.S. Bindra Vs U.O.I.; (1998) 7 SCC 310

13. U.O.I.Vs K.K. Dhawan; (1993) 2 SCC 56

14. Zunjarrao Bhikaji Nagarkar Vs U.O.I. & ors.;
(1999) 7 SCC 409

15. P.C. Joshi Vs St. of U.P. & ors.; (2001) 6
SCC 491

16. Punjab National Bank & ors.Vs Kunj Behari
Misra; (1998) 7 SCC 84

17. St. of Assam Vs Bimal Kumar Pandit; AIR
(1963) SC 1612

18. Lav Nigam Vs Chairman & MD, ITI Ltd. &
anr.; (2006) 9 SCC 440

19. St. Bank of India & ors.Vs K.P. Narayanan
Kutty; (2003) 2 SCC 449

(Delivered by Hon'ble Salil Kumar Rai, J.)

The petition has been filed challenging
the order dated 14.1.2021 passed by the
Special Secretary, Appointment Section -
3, Government of Uttar Pradesh, Lucknow
by which the petitioner has been reverted to
the post of Tehsildar from the post of
Deputy District Magistrate.

At this stage, it is relevant to note that
during the arguments in the case, the
Standing Counsel had opposed the writ
petition on grounds of availability of
alternative remedy of appeal to the
petitioner under Rule 11 of the Rules, 1999.
However, as the petition was pending in
this Court since February, 2021 and
affidavits in the case had been exchanged,
therefore, in view of the judgment of the
Supreme Court in Dr. (Smt.) Kuntesh
2 All. Kumar Bhupendra Singh Vs. State of U.P. & Anr.
269
Gupta vs. Management of Hindu Kanya
Mahavidyalaya, Sitapur (U.P.) and Ors.
1987 (4) SCC 525, the objections of the
Standing Counsel regarding maintainability
of the writ petition on grounds of
availability of alternative remedy to the
petitioner were rejected and the petition
was heard on merits.

The facts of the case are that the
petitioner was initially appointed as Naib
Tehsildar in March, 1996, was promoted to
the post of Tehsildar in January, 2008 and
on 11.5.2016, he was promoted as Deputy
Collector / Deputy District Magistrate /
Sub-Divisional Magistrate. From 29.5.2016
to 3.9.2016, the petitioner was posted as
Sub-Divisional
Magistrate,
Sardhana,
District Meerut.

In 2013, M/s. A to Z Builders and
Developers (hereinafter referred to as,
'Builders') through its Directors / Partners -
Sri Jitendra Kumar and Sri Vinod Kumar
filed an application under Section 161 of
the Uttar Pradesh Zamindari Abolition and
Land Reforms Act, 1950 (hereinafter
referred to as, 'Act, 1950') for exchange of
their plots with the plots of Gaon Sabha.
The plots of the Gaon Sabha, which were
sought to be exchanged were pasture lands
included in Section 132 of the Act, 1950,
therefore, no Bhumidhari Rights could
have accrued in them. On the aforesaid
application, Case No. 03 of 2012-13 (M/s.
A to Z Builders and Developers Ltd. vs.
Gaon Sabha & Ors.) was registered in the
court of Sub-Divisional Magistrate. The
application was allowed by order dated
28.5.2013 passed by the then Deputy
District Magistrate, Sardhana, District
Meerut and by another order of the same
date, Process for mutation in the revenue
records was also issued. However, by order
dated 11.2.2014, the then Deputy District
Magistrate, Sardhana recalled his previous
order dated 28.5.2013 and restored Case
No. 03 of 2012-13 to its original number.
Against the order dated 11.2.2014, Appeal
No. 43 of 2013-14 was filed by the
Builders. The Additional Commissioner,
Meerut Division, District Meerut, vide his
order dated 27.8.2014 allowed the appeal,
set-aside the order dated 11.2.2014 and
affirmed
the
order
dated
28.5.2013
previously passed in Case No. 03 of 201213. An application for mutation in the
revenue records was filed by the Builders
on 25.7.2016. The petitioner, who at the
time was posted as the Deputy District
Magistrate, Sardhana, District Meerut,
through a letter dated 4.8.2016 sought legal
opinion on the aforesaid application and the
District
Government
Counsel
in
his
remarks dated 6.8.2016 opined that there
was no legal impediment in implementing
the
order
dated
27.8.2014
and
consequential mutation in the revenue
records. The petitioner, vide his order dated
11.8.2016 directed mutation in the revenue
records implementing the orders dated
27.8.2014 and 28.5.2013, but vide the same
order, also directed the Tehsildar to file an
appeal before the Board of Revenue, Uttar
Pradesh against the order dated 27.8.2014
passed by the Additional Commissioner.

Subsequently,
the
Commissioner,
Meerut Division, District Meerut vide his
order
dated
24.1.2018
cancelled
the
previous
order
dated
27.8.2014
and
restored Appeal No. 43 of 2013-14 to its
original number. The order dated 24.1.2018
passed
by
the
Commissioner
was
challenged by the Builders before this
Court in Writ - C No. 2758 of 2018 which
was admitted for hearing and parties were
directed to maintain status-quo during the
pendency of the writ petition. Writ - C No.
270 INDIAN LAW REPORTS ALLAHABAD SERIES
2758 of 2018 is still pending before this
Court.

Meanwhile, the District Magistrate,
Meerut vide his order dated 23.11.2016
instituted an inquiry in the matter and asked
for a report from the then Deputy District
Magistrate, Sardhana. The then Deputy
District Magistrate, Sardhana submitted his
report on 24.11.2016 stating that the
mutation in the revenue records was
contrary to the relevant provisions of the
Revenue Court Manual. It was noted in the
report that the land of Gaon Sabha
exchanged with the Builders was a pasture
land included in Section 132 of the Act,
1950 which could have been exchanged
only after permission from the State
Government and no orders for exchange
could have been passed under Section 161
of the Act, 1950 and the petitioner, instead
of ensuring that an appeal was filed against
the order dated 27.8.2014 passed by the
Additional Commissioner, got the name of
a private body entered into the revenue
records against the Gaon Sabha plots. On
the basis of report dated 24.11.2016,
departmental / disciplinary proceedings
were instituted against the petitioner under
the Uttar Pradesh Government Servant
(Discipline and Appeal) Rules, 1999
(hereinafter referred to as, 'Rules, 1999')
and
the
Commissioner,
Saharanpur
Division,
District
Saharanpur
was
appointed as the Inquiry Officer. A chargesheet dated 24.12.2019 was served on the
petitioner. The charge against the petitioner
was that while passing the order dated
25.7.2016 for implementation of the order
dated 27.8.2014 passed by the Additional
Commissioner, the petitioner had acted in
collusion with the Builders for personal
gain by giving favours to the Builders and
the conduct of the petitioner amounted to
misconduct
under
the
Uttar
Pradesh
Government Servant Conduct Rules, 1956
(hereinafter referred to as, 'Rules, 1956').

The petitioner submitted his reply to
the aforesaid charge-sheet stating that the
petitioner had not passed any order of
exchange under Section 161 of the Act,
1950 but had only implemented the order
passed by the Additional Commissioner
and was, therefore, not guilty of the
charges. It was also stated by the petitioner
that mutation in the revenue records was to
implement the order of the Additional
Commissioner and was done after the
District Government Counsel gave his legal
opinion that there was no legal impediment
in implementing the order of the Additional
Commissioner. It was submitted by the
petitioner that in his order dated 11.8.2016,
the petitioner had directed the Tehsildar to
file an appeal against the order of the
Additional Commissioner and the order of
the petitioner for mutation in revenue
records was in accordance with the relevant
provisions of the Revenue Court Manual
because the petitioner as the Deputy
District Magistrate was duty bound to
implement the order of the Additional
Commissioner.

The Inquiry Officer submitted his
report dated 3.6.2020 holding that the lands
which vested in the Gaon Sabha and were
subject-matters of exchange were pasture
lands included in Section 132 of the Act,
1950 and, therefore, no orders under
Section 161 of the Act, 1950 could have
been passed by any revenue officer
permitting exchange of Gaon Sabha land.
The Inquiry Officer held that it was the
duty of the petitioner to inform his senior
officers regarding the aforesaid fact and the
petitioner should have ensured that either
appeal or review application should have
been filed against the order dated 27.8.2014
2 All. Kumar Bhupendra Singh Vs. State of U.P. & Anr.
271
passed by the Additional Commissioner. In
his report, the Inquiry Officer noted that
instead of examining the delay by the
Builders in filing the application for
implementation of the order passed by the
Additional Commissioner, the petitioner
had mechanically relied on the opinion of
the District Government Counsel and
passed the order dated 11.8.2016. The
Inquiry Officer held that the act of the
petitioner was illegal and beyond his
jurisdiction. On the aforesaid findings, the
Inquiry Officer held that the charges
against the petitioner were partly proved.
No findings were recorded by the Inquiry
Officer on the charge that the petitioner
had acted in collusion with the Builders to
favour them for personal gain.

The petitioner was served a show
cause
notice
dated
16.7.2020.
The
disciplinary authority in the case was
Special Secretary, Appointment Section -
3, Government of Uttar Pradesh, Lucknow.
The show cause notice stated that the
Inquiry Officer had found the charges
levelled against the petitioner to be proved.
The show cause notice did not record that
the disciplinary authority disagreed with
the findings of the Inquiry Officer that the
charge against the petitioner was partly
proved and the disciplinary authority was
of the opinion that the charge against the
petitioner was proved in full. The petitioner
submitted
his
reply
but
the
State
Government vide order dated 14.1.2021
rejected the defence of the petitioner and
awarded a punishment reverting him to the
post of Tehsildar. The impugned order
holds the petitioner guilty of having acted
in collusion with the private parties for
personal gain and to favour the private
parties and thus guilty of misconduct in
passing the order dated 11.8.2016 for
mutation in revenue records.

The order dated 14.1.2021 has been
challenged in the present petition.

A counter affidavit has been filed by
the State respondents contesting the writ
petition and defending the reasons given in
the impugned order dated 14.1.2021. The
stand of the respondents in their counter
affidavit is that the petitioner was expected
to have informed his superior officers about
the order dated 27.8.2014 and instead of
implementing the order passed by the
Additional Commissioner and the order
dated 28.5.2013 passed by the SubDivisional Magistrate after two years of the
order
passed
by
the
Additional
Commissioner, the petitioner should have
ensured that an appeal, revision or review
was filed against the order of the Additional
Commissioner. The failure of the petitioner
to ensure filing of appeal, revision or
review against the order of the Additional
Commissioner was a misconduct under
Rules, 1956 and his order dated 11.8.2016
was illegal and beyond jurisdiction because
the land which vested in the Gaon Sabha
was pasture land and therefore, no orders
could have been passed under Section 161
of the Act, 1950 for exchange of the
aforesaid lands and any order of exchange
could have been passed only by the State
Government.

It was argued by the counsel for the
petitioner that there is no evidence or
finding by the Inquiry Officer of any
collusion between the petitioner and the
Builders. It was argued that in his report
dated 3.6.2020, the Inquiry Officer has only
held that the act of the petitioner was
contrary to the Rules and beyond his
jurisdiction and, therefore, the charge
levelled against the petitioners was only
partly established. It was argued that in the
show cause notice dated 27.7.2020, the
272 INDIAN LAW REPORTS ALLAHABAD SERIES
disciplinary authority has not recorded his
disagreement with the report of the Inquiry
Officer and has also not recorded his
tentative opinion that the charges against
the petitioner were fully proved and,
therefore, the
order
dated
14.1.2021
holding that the petitioner had acted
contrary to the interest of the State
Government and for personal gains in
collusion with the private parties is without
jurisdiction and in violation of the
principles of natural justice as the petitioner
was never given any opportunity to
represent against the aforesaid opinion of
the disciplinary authority. It was further
argued that through his order dated
11.8.2016, the petitioner had not committed
any illegality as the said order was passed
only for implementing the order dated
28.5.2013 passed by the then SubDivisional Magistrate, Sardhana and the
order dated 27.8.2014 passed by the
Additional Commissioner. The petitioner
had not passed any order of exchange under
Section 161 of the Act, 1950 and had,
therefore, committed no misconduct or any
illegality. It was argued that under
Paragraph 32 of the Revenue Court
Manual, the petitioner was duty bound to
ensure mutation of the orders passed by the
previous
Sub-Divisional
Magistrate,
Sardhana and the Additional Commissioner
and, therefore, the petitioner could not have
been subjected to disciplinary proceedings
for order dated 11.8.2016. It was argued
that for the aforesaid reasons, the order
dated 14.1.2021 is illegal and contrary to
law and liable to be quashed. In support of
his arguments, the counsel for the petitioner
has relied on the judgment and order dated
3.12.2014 passed by this Court in Writ- B
No. 39011 of 2010 (Babu Lal & Ors. vs.
Board of Revenue U.P. Allahabad & Ors.);
judgment and order dated 5.5.2017 passed
by this Court on C.M. Review Application
No. 64657 of 2015 passed in Writ - B No.
39011 of 2010 (Babu Lal & Ors. vs. Board
of Revenue U.P. Allahabad & Ors.);
judgments of this Court reported in Sushila
vs. Additional Commissioner Azamgarh &
14 Ors. 2015 (127) RD 691; Kaptan Singh
vs. State of U.P. and Anr. 2014 (8) ADJ 16
(DB), Shyam Babu Vaish vs. State of U.P.
and Anr. 2019 (6) ADJ 398 (DB) and Hari
Om Rastogi vs. State of U.P. & Ors. 2022
(9) ADJ 169 (DB), judgment and order
dated 16.11.2016 passed by this Court in
Ceiling No. 258 of 2016 (Kaushlendra
Singh & Anr. vs. State of U.P. Thru Secy.
Deptt. of Revenue Lko. & Ors.) and
judgment and order dated 13.7.2022 passed
by this Court in Writ - A No. 29828 of 2021
(Shri Prakash Gupta vs. State of U.P.
Thru. Addl. Chief Secy. Appointment Lko.
& Ors.).

Rebutting the contention of the
counsel for the petitioner, the Standing
Counsel has supported the order dated
14.1.2021 and the reasons given in the
same and has argued that from the facts on
record, it was proved that the petitioner had
committed misconduct and, therefore, there
was no illegality in the order of punishment
which has been passed after considering all
the relevant materials and factors.

I
have
considered
the
rival
submissions of the counsel for the parties
and perused the records.

After the order dated 27.8.2014 passed
by
the
Additional
Commissioner
confirming the order dated 28.5.2013
passed by the Sub-Divisional Magistrate
permitting exchange of Gaon Sabha plots
under Section 161 of the Act, 1950, it was
the duty of subordinate revenue officers to
make appropriate entries in the revenue
records in accordance with the order dated
2 All. Kumar Bhupendra Singh Vs. State of U.P. & Anr.
273
28.5.2013 (Reference may be made to the
judgment in Sri Kishun vs. Gaon Sabha
(1999) 90 RD 650). It is also relevant to
note that by order dated 28.5.2013, Process
for mutation in revenue records was also
issued. The confirmation of order dated
28.5.2013 by order dated 27.8.2014 revived
the Process initially issued for mutation in
the revenue records. Mutation in the
revenue records was a legal consequence to
the order dated 27.8.2014 passed by the
Additional Commissioner and should have
been done without any orders for the
purpose being issued by the petitioner or
any other authority. Further, the order of the
petitioner directing mutation in the revenue
records in pursuance to the order passed by
his superior revenue authority was only a
ministerial act and the petitioner as the
Sub-Divisional
Magistrate
had
no
discretion or choice in the matter. Mutation
in revenue records create no Bhumidhari
rights in favour of any person. Entries in
the revenue records are appropriately
modified
or
altered
if
any
order
adjudicating the rights of the parties is
either recalled or set-aside in appeal. The
order dated 11.8.2016 neither adjudicates
the rights of the parties nor does it facilitate
or causes exchange of Gaon Sabha property
which was facilitated by the orders dated
28.5.2013 and 27.8.2014 passed by the then
Sub-Divisional
Magistrate
and
the
Additional
Commissioner,
respectively.
The petitioner did not pass any order
permitting exchange
of
Gaon
Sabha
property included in Section 132 of the Act,
1950. No issue of jurisdiction arises so far
as the order dated 11.8.2016 is concerned
and there is no jurisdictional error in the
order dated 11.8.2016 itself. In any case, in
his order dated 11.8.2016, the petitioner
had also directed the concerned Tehsildar to
take appropriate steps for getting the order
dated 27.8.2014 passed by the Additional
Commissioner set-aside either by filing an
appeal or revision or a recall application.

Rule 3 of the Rules, 1956 mandates
that every government servant shall at all
times maintain absolute integrity and
devotion to duty and shall at all times
conduct himself in accordance with the
specific or implied orders of government
regulating behaviour and conduct which
may be in force. No order or regulation of
the government has been brought to the
notice of this Court either in the counter
affidavit filed by the Standing Counsel or
during the arguments to show that there
was any order or regulation of the
government
which
permitted
a
SubDivisional Magistrate not to comply with
the order of his superior officer passed in
an appeal or revision. The order dated
11.8.2016 was in compliance of the order
dated 27.8.2014 passed by the Additional
Commissioner. The opinion of the Inquiry
Officer and the disciplinary authority that
the petitioner should have informed his
superior officers is incorrect in as much as
the Additional Commissioner himself was
an officer superior in rank to the petitioner.
The charge-sheet or the findings of the
Inquiry
Officer
and
the
disciplinary
authority do not refer to any material which
shows that the petitioner had acted in
collusion with the Builders for his personal
gain and gave favours to the Builders in
passing the order dated 11.8.2016. The
charge-sheet
does
not
mention
any
evidence in support of the aforesaid
allegation. The mere fact that the order was
passed on an application which was filed
two years after the order passed by the
Additional Commissioner does not by itself
show that the petitioner had acted for
personal gain and in collusion with the
Builders. As noted earlier, there is no
jurisdictional error and no question of
274 INDIAN LAW REPORTS ALLAHABAD SERIES
jurisdiction arises so far as order dated
11.8.2016 itself is concerned as the said
order has not been passed under Section
161 of the Act, 1950 and does not facilitate
or permits exchange of Gaon Sabha
property. Even assuming that the order
dated
11.8.2016
was
beyond
the
jurisdiction of the petitioner acting as SubDivisional Magistrate, mere passing of an
order in excess of jurisdiction does not by
itself cast doubt on the integrity of a
government servant and does not by itself
establish that the order was passed to show
favour to any party or for personal gains.

At this stage, it would be apt to refer
to judgments of the Supreme Court dealing
with misconduct of a government servant.

In State of Punjab & Ors. vs. Ram
Singh Ex-Constable (1992) 4 SCC 54, the
Supreme Court observed that misconduct
involves unlawful behaviour which is
willful in character, is a forbidden act, a
transgression of established and definite
rule of action or misconduct but not a mere
error
of
judgment,
carelessness
or
negligence in performance of the duty. It
was observed by the Supreme Court that
acts referred as misconduct bear forbidden
quality
or
character.
The
relevant
observations of the Supreme Court are
reproduced below : -

"5. Misconduct has been defined
in Black's Law Dictionary, Sixth Edition at
page 999 thus :-

"A
transgression
of
some
established and definite rule of action, a
forbidden act, a dereliction from duty,
unlawful behavior, willful in character,
improper or wrong behavior, its synonyms
are misdemeanor, misdeed, misbehavior,
delinquency, impropriety, mismanagement,
offence but not negligence or carelessness."

Misconduct in office has been
defined as :

"Any unlawful behavior by a
public officer in relation to the duties of his
office, willful in character. Term embraces
acts which the office holder had no right to
perform, acts performed improperly, and
failure to act in the face of an affirmative
duty to act."

P.
Ramanatha
Aiyar's
Law
Lexicon, Reprint Edition 1987 at page 821
defines 'misconduct' thus:

"The term misconduct implies a
wrongful intention, and not a mere error
of judgment. Misconduct is not necessarily
the same thing as conduct involving moral
turpitude. The word misconduct is a
relative term, and has to be construed with
reference to the subject matter and the
context wherein the term occurs, having
regard to the scope of the Act or statute
which is being construed. Misconduct
literally means wrong conduct or improper
conduct. In usual parlance, misconduct
means a transgression of some established
and definite rule of action, where no
discretion is left, except what necessity
may demand and carelessness, negligence
and unskilfulness are transgressions of
some established, but indifinite, rule of
action,
where
some
discretion
is
necessarily left to the actor. Misconduct is
a violation of definite law; carelessness or
abuse of discretion under an indefinite law.
Misconduct
is
a
forbidden
act;
carelessness, a forbidden quality of an act,
and is necessarily indefinite. Misconduct
in office may be defined as unlawful
behaviour or neglect by a public officer, by
which the rights of a party have been
affected."

6. Thus it could be seen that the
word 'misconduct' though not capable of
precise definition, on reflection receives its
connotation
from
the
context,
the
2 All. Kumar Bhupendra Singh Vs. State of U.P. & Anr.
275
delinquency in its performance and its
effect on the discipline and the nature of the
duty. It may involve moral turpitude, it must
be improper or wrong behaviour; unlawful
behaviour, willful in character; forbidden
act, a transgression of established and
definite rule of action or code of conduct
but
not
mere
error
of
judgment,
carelessness or negligence in performance
of the duty; the act complained of bears
forbidden quality or character. Its ambit
has to be construed with reference to the
subject matter and the context wherein the
term occurs, regard being had to the scope
of the statute and the public purpose it
seeks to serve. ..."
(emphasis supplied)

In M.S. Bindra vs. Union of India
(1998) 7 SCC 310, the Supreme Court
observed as under : -

"13. ... To dunk an officer into
the puddle of 'doubtful integrity', it is not
enough that the doubt fringes on a mere
hunch. That doubt should be of such a
nature
as
would
reasonably
and
consciously
be
entertainable
by
a
reasonable man on the given material.
Mere possibility is hardly sufficient to
assume that it would have happened. There
must be preponderance of probability for
the reasonable man to entertain doubt
regarding that possibility. Only then there
is justification to ram an officer with the
label 'doubtful integrity'."

In Union of India vs. K.K. Dhawan
(1993) 2 SCC 56, the Supreme Court while
dealing with the circumstances in which
disciplinary proceedings can be instituted
against a government servant for acts done
by him in exercise of quasi-judicial
functions held that the disciplinary action
can be taken in the following cases : -

"(i) Where the officer had acted
in a manner as would reflect on his
reputation for integrity or good faith or
devotion to duty;

(ii) if there is prima facie
material
to
show
recklessness
or
misconduct in the discharge of his duty;

(iii) if he has acted in a manner
which is unbecoming of a government
servant;

(iv) if he had acted negligently or
that he omitted the prescribed conditions
which are essential for the exercise of the
statutory powers;

(v) if he had acted in order to
unduly favour a party;

(vi) if he had been actuated by
corrupt motive, however small the bribe
may be because Lord Coke said long ago
'though the bribe may be small, yet the
fault is great'."
(emphasis supplied)

It was further held by the Supreme
Court in Paragraph - 29 of the said reports
as follows : - .

"29.
The
instances
above
catalogued are not exhaustive. However,
we may add that for a mere technical
violation or merely because the order is
wrong and the action not falling under the
above-enumerated instances, disciplinary
action is not warranted. Here, we may
utter a word of caution. Each case will
depend upon the facts and no absolute rule
can be postulated."
(emphasis supplied)

In Zunjarrao Bhikaji Nagarkar vs.
Union of India & Ors. (1999) 7 SCC 409,
the Supreme Court while deciding the
validity of disciplinary proceedings against
a Collector of Central Exercise, Nagpur
who had failed to impose penalty on an
276 INDIAN LAW REPORTS ALLAHABAD SERIES
assessee under Rule 173-Q of the Central
Excise Rules, 1944 held that even though
the imposition of penalty was imperative,
there was nothing wrong or improper on
the part of the Collector to form an opinion
that imposition of penalty was not
mandatory
and
the
Collector,
while
exercising his quasi-judicial functions, was
not liable to disciplinary proceedings for
not imposing penalty on the assessee under
Rule 173-Q of the Central Excise Rules,
1944. The Supreme Court observed that
negligence in quasi-judicial adjudication is
not negligence perceived as carelessness,
inadvertence or omission but as culpable
negligence and held that mere error in
judgment, carelessness or negligence in
performance of duty is not misconduct. The
Supreme Court further held that there
should be some material before the
disciplinary authority to form an opinion
that the delinquent showed favour to the
assessee by not imposing the penalty and
mere wrong exercise of jurisdiction cannot
form a basis for initiating disciplinary
proceedings against an officer. It was
further held that initiation of disciplinary
proceedings against an officer cannot take
place on an information which is vague or
indefinite and suspicion has no role to play
in such matters. The relevant observations
of the Supreme Court in Zunjarrao Bhikaji
Nagarkar (supra) are reproduced below : -

"40. When we talk of negligence
in a quasi-judicial adjudication, it is not
negligence
perceived
as
carelessness,
inadvertance or omission but as culpable
negligence. This is how this Court in State
of Punjab v. Ex-Constable Ram Singh
interpreted "misconduct" not coming
within the purview of mere error in
judgment, carelessness or negligence in
performance of duty.

...

...

...

In Hindustan Steel Ltd. case it
was said that where proceedings are quasi-
judicial penalty will not ordinarily be
imposed unless the party charged had acted
deliberately in defiance of law or was
guilty
of
conduct
contumacious
or
dishonest or acted in conscious disregard
of its obligation. This Court has said that
the penalty will not also be imposed merely
because it is lawful so to do. In the present
case, it is not that the appellant did not
impose penalty because of any negligence
on his part but he said it was not a case of
imposition of penalty. We are, however, of
the view that in a case like this which was
being adjudicated upon by the appellant
imposition of penalty was imperative. But
then, there is nothing wrong or improper
on the part of the appellant to form an
opinion that imposition of penalty was not
mandatory. We have noticed that Patna
High Court while interpreting Section 325
IPC held that imposition of penalty was not
mandatory which again we have said is not
a
correct
view
to
take.
A
wrong
interpretation of law cannot be a ground
for misconduct. Of course it is a different
matter altogether if it is deliberate and
actuated by mala fides.

41. When penalty is not levied,
the assessee certainly benefits. But it
cannot be said that by not levying the
penalty the officer has favoured the
assessee or shown undue favour to him.
There has to be some basis for the
disciplinary authority to reach such a
conclusion even prima facie. The record
in the present case does not show if the
disciplinary
authority
had
any
information within its possession from
where it could form an opinion that the
appellant showed "favour" to the assessee
by not imposing the penalty. He may have
2 All. Kumar Bhupendra Singh Vs. State of U.P. & Anr.
277
wrongly exercised his jurisdiction. But
that wrong can be corrected in appeal.
That cannot always form basis for
initiating disciplinary proceedings against
an officer while he is acting as quasi-
judicial authority. It must be kept in mind
that being a quasi-judicial authority, he is
always subject to judicial supervision in
appeal.

42. Initiation of disciplinary
proceedings against an officer cannot take
place on an information which is vague or
indefinite. Suspicion has no role to play in
such matter. There must exist reasonable
basis for the disciplinary authority to
proceed against the delinquent officer.
Merely because penalty was not imposed
and the Board in the exercise of its power
directed filing of appeal against that order
in the the Appellate Tribunal could not be
enough to proceed against the appellant.
There is no other instance to show that in
similar case the appellant invariably
imposed penalty.

43. If every error of law were to
constitute a charge of misconduct, it would
impinge upon the independent functioning
of quasi-judicial officers like the appellant.
Since in sum and substance misconduct is
sought to be inferred by the appellant
having committed an error of law, the
charge-sheet on the face of it does not
proceed on any legal premise rendering it
liable to be quashed. In other words, to
maintain any charge-sheet against a
quasi- judicial authority something more
has to be alleged than a mere mistake of
law, e.g., in the nature of some extraneous
consideration
influencing
the
quasijudicial order. Since nothing of the sort is
alleged herein the impugned charge-sheet
is rendered illegal. The charge-sheet, if
sustained, will thus impinge upon the
confidence and independent functioning of
a quasi-judicial authority. The entire
system
of
administrative
adjudication
whereunder quasi-judicial powers are
conferred on administrative authorities,
would fall into disrepute if officers
performing such functions are inhibited in
performing their functions without fear or
favour because of the constant threat of
disciplinary proceedings."

(emphasis supplied)

Similarly, in P.C. Joshi vs. State of
U.P. & Ors. (2001) 6 SCC 491 in which the
disciplinary proceedings were instituted
against a judicial officer on allegations of
having granted bail where according to the
disciplinary authority, it ought not to have
been granted, the Supreme Court observed
as follows : -

"7. In the present case, though
elaborate enquiry has been conducted by
the Enquiry Officer, there is hardly any
material worth the name forthcoming
except to scrutinize each one of the orders
made by the appellant on the judicial side
to arrive at a different conclusion. That
there was possibility on a given set of facts
to arrive at a different conclusion is no
ground to indict a judicial officer for
taking one view and that too for alleged
misconduct for that reason alone. The
Enquiry Officer has not found any other
material, which would reflect on his
reputation or integrity or good faith or
devotion to duty or that he has been
actuated by any corrupt motive. At best he
may say that the view taken by the
appellant is not proper or correct and not
attribute any motive to him which is for
extraneous consideration that he had
acted in that manner. If in every case
where an order of a subordinate court is
found to be faulty a disciplinary action
were to be initiated, the confidence of the
subordinate judiciary will be shaken and
278 INDIAN LAW REPORTS ALLAHABAD SERIES
the officers will be in constant fear of
writing a judgment so as not to face a
disciplinary enquiry and thus judicial
officers cannot act independently or
fearlessly. Indeed the words of caution are
given in K.K. Dhawans case and A.N.
Saxena case that merely because the order
is wrong or the action taken could have
been different does not warrant initiation
of disciplinary proceedings against the
judicial officer. In spite of such caution, it
is unfortunate that the High Court has
chosen to initiate disciplinary proceedings
against the appellant in this case."
(emphasis supplied)

Even
though,
the
order
dated
11.8.2016 passed by the petitioner was
merely a ministerial act and not in exercise
of a quasi-judicial or judicial function, the
principle laid down by the Supreme Court
in Zunjarrao Bhikaji Nagarkar (supra)
and P.C. Joshi (supra) are to be applied
while considering the case of the petitioner.

In the present case also, there is no
material to indicate that the petitioner had
passed the order dated 11.8.2016 to grant
favour to any party or for his personal gain
and there is no material casting any doubt
on the integrity of the petitioner. The
charge-sheet does not refer to any such
material.
The
inquiry
report
dated
24.11.2016
of
the
Sub-Divisional
Magistrate does not refer to any material
which could cast doubt on the integrity of
the petitioner and that the petitioner had
acted for extraneous consideration. A mere
suspicion cannot be a valid reason to
institute disciplinary proceedings against a
government servant. The order dated
11.8.2016 may be erroneous but the same
would not be sufficient to hold that the
petitioner had committed any misconduct
especially in the circumstance when by the
same order, the petitioner had directed the
Tehsildar to take steps for getting the order
dated 27.8.2014 passed by the Additional
Commissioner set-aside.