# Shri Prakash Gupta v. State of U.P. & Ors

- **Citation:** (2022) 8 ILRA 1062
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-07-13
- **Case number:** Writ A No. 29828 of 2021
- **Bench:** Alok Mathur
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shri-prakash-gupta-v-state-of-u-p-ors-48710
- **Pages:** 5

## Headnote

Civil Law - Disciplinary Proceedings -
Issue - whether a person while in exercise
of his discharge of official functions can be
subjected to disciplinary proceedings with
regard to any decision taken by him -
Misconduct - mere error of judgment,
carelessness or negligence in performance
of the duty not amounts to misconduct -
merely because a wrong order has been
passed does not warrant initiation of
disciplinary
proceedings
-
any
order
passed
by
judicial
or
quasi
judicial
authority may be incorrect or otherwise,
but merely on the basis of passing of
incorrect order, disciplinary proceedings
cannot be initiated. (Para 18, 21)

Petitioner, a Deputy Collector, allowed an
application u/s 33/39 of the Land Revenue Act -
In revision Commissioner, set aside the order &
held that petitioner did not had any jurisdiction
to exercise power u/s 33/39 for converting non
ZA land to ZA land & directed for conducting
inquiry - minor punishment of 'censure' was
imposed upon the petitioner - Held - inquiry
proceedings could not be initiated against the
petitioner considering the fact that he passed
order u/s 33/39 of the Land Revenue Act in
exercise of his quasi judicial functions - land was
non ZA land and its conversion to ZA land may
not be permissible under the jurisdiction held by
the petitioner, but this fact in itself cannot be
the sole basis for initiation of disciplinary
proceedings against the petitioner - No material
to show that there was any extraneous
consideration in passing the order (Para 22)

Allowed. (E-5)

List of Cases cited :

## Text

1062 INDIAN LAW REPORTS ALLAHABAD SERIES
no rules prescribing any such procedure.
The enquiry starts after issuance of charge
sheet in which charges are mentioned
which should be clear and unambiguous. If
the petitioner requires the copies of any
document and makes an application in that
behalf, the Enquiry Officer shall consider
the application of the petitioner for supply
of documents and after being satisfied
about the relevancy of such documents, he
shall supply the copies of such documents
to the petitioner and in case it is not
practically possible for any valid reason to
supply the copy of any such document, he
may allow inspection of such document to
the petitioner by fixing date, time and place
for such inspection. The enquiry officer
shall ensure free access to the petitioner to
such documents which are to be inspected
by the petitioner. After gathering such
information, reply is submitted to the
charge sheet . On receipt of reply of the
charge sheet the Enquiry Officer has to fix
date, time and place for holding enquiry,
for which formally the Department is to
give one opportunity first, to lead evidence
wherein the delinquent is also permitted to
remain present, who is given opportunity to
cross-examine
the
witnesses,
if
any
examined
and
also
to
rebut
the
documentary evidence. Thereafter a date is
to be fixed by the Enquiry Officer to allow
adducing of evidence by the delinquent, if
he so desires, which may be oral as well as
documentary. It is thereafter that the
Enquiry Officer after hearing the parties
records his finding on the basis of the
evidence which is collected during the
enquiry and enquiry report is submitted by
the Enquiry Officer to the Disciplinary
Authority. Disciplinary Authority has to see
whether procedure in holding enquiry has
been followed or not and if not then the
matter need be remitted to the Enquiry
Officer to rectify the mistake but during the
enquiry if he finds that all required
procedure has been followed and enquiry
has been held following the principles of
natural justice, then he would see whether
charge stands proved on the basis of
material collected or brought before the
enquiry officer . If the disciplinary
authority is satisfied with the report of the
enquiry officer, he will pass final orders
after
affording
opportunity
to
the
delinquent."

16. In the light of above, this Court is
of the opinion that impugned order dated
26.05.2018, is illegal and arbitrary and is
accordingly quashed. The amount of
deduction made from the pension of the
petitioner is liable to be refunded within
six weeks from the date of production of
certified copy of this order before the
competent authority, alongwith interest at
the rate of 6% from the date of deduction
till the amount is refunded to the
petitioner.

17. The writ petition is allowed.
----------
(2022) 8 ILRA 1062
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 13.07.2022

BEFORE

THE HON'BLE ALOK MATHUR, J.

Writ A No. 29828 of 2021

Shri Prakash Gupta ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Amrendra Nath Tripathi, Ashutosh Shahi

Counsel for the Respondents:
C.S.C., A.S.G., Alok Kumar Tripathi
8 All. Shri Prakash Gupta Vs. State of U.P. & Ors.
1063
Civil Law - Disciplinary Proceedings -
Issue - whether a person while in exercise
of his discharge of official functions can be
subjected to disciplinary proceedings with
regard to any decision taken by him -
Misconduct - mere error of judgment,
carelessness or negligence in performance
of the duty not amounts to misconduct -
merely because a wrong order has been
passed does not warrant initiation of
disciplinary
proceedings
-
any
order
passed
by
judicial
or
quasi
judicial
authority may be incorrect or otherwise,
but merely on the basis of passing of
incorrect order, disciplinary proceedings
cannot be initiated. (Para 18, 21)

Petitioner, a Deputy Collector, allowed an
application u/s 33/39 of the Land Revenue Act -
In revision Commissioner, set aside the order &
held that petitioner did not had any jurisdiction
to exercise power u/s 33/39 for converting non
ZA land to ZA land & directed for conducting
inquiry - minor punishment of 'censure' was
imposed upon the petitioner - Held - inquiry
proceedings could not be initiated against the
petitioner considering the fact that he passed
order u/s 33/39 of the Land Revenue Act in
exercise of his quasi judicial functions - land was
non ZA land and its conversion to ZA land may
not be permissible under the jurisdiction held by
the petitioner, but this fact in itself cannot be
the sole basis for initiation of disciplinary
proceedings against the petitioner - No material
to show that there was any extraneous
consideration in passing the order (Para 22)

Allowed. (E-5)

List of Cases cited :

1. Abhay Jain Vs High Court of Judicature of
Rajasthan & anr., 2022 SCC OnLine Supreme
Court 319

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

(Delivered by Hon'ble Alok Mathur, J.)

1. Heard Sri S.K. Kalia, learned
Senior Advocate assisted by Sri Ashutosh
Sahai, learned counsel for the petitioner as
well as learned Standing Counsel for the
respondent no. 1 and 2 and Sri Alok Kumar
Tripathi, learned counsel for the respondent
no. 4.

2. Learned counsel for the petitioner
at the very outset has submitted that he
does not want to press prayer no. 1 and
accordingly, this Court proceeds to consider
prayer no. 2 of the writ petition.

3. The sole question for consideration
of this Court is as to whether a person
while in exercise of his discharge of official
functions can be subjected to disciplinary
proceedings with regard to any decision
taken
by
him,
if
so
under
what
circumstances?

4. It has been submitted by learned
counsel for the petitioner that the petitioner
was initially appointed on the post of
Deputy Collector by the Union Public
Service Commission in the year 1999 and
was posted at District - Mau, Tehsil Sadar.
When an application was moved before
him under Section 33/39 of the Land
Revenue Act, seeking conversion of land
from the nature of non ZA to ZA land.

5. The petitioner in exercise of his
jurisdiction as Deputy Collector heard the
said matter, invited objections as well as
report from the Tehsildar and after
considering entire material available on
record,
by
means
of
order
dated
17.11.2009, allowed the said application
converting the said land into ZA land.

6. It has been submitted by learned
counsel for the petitioner that while
deciding the said application, it was
mentioned that certain fraudulent entires
have been made and corrected. The said
1064 INDIAN LAW REPORTS ALLAHABAD SERIES
land which was infact ZA land was
recorded non ZA land and only to rectify
and correct the revenue records, the
petitioner was called upon to exercise
power under Section 33/39 of Land
Revenue Act.

7. Order dated 17.11.2009, passed by
the petitioner was subjected to revision
before the Commissioner, who allowed the
said revision and set aside the order passed
by the petitioner. While allowing the said
revision the Commissioner held that
petitioner did not had any jurisdiction to
exercise power under Section 33/39 of the
Land Revenue Act for converting non ZA
land to ZA land. While setting aside the
order
passed
by
the
petitioner,
the
Commissioner also recorded that copy of
his judgment be placed before the Chief
Secretary, Appointments for conducting an
inquiry in the said matter. It is on the basis
of direction issued by the Additional
Commissioner
that
disciplinary
proceedings were initiated against the
petitioner and charge sheet was issued to
him on 05.02.2018. The charge sheet was
issued by the Commissioner, Azamgarh
Division, Azamgarh who was appointed
inquiry officer.

8. The inquiry proceedings concluded
and inquiry report was submitted on
19.06.2018, exonerating the petitioner of
all the charges. Finding was returned in the
inquiry report that there was no malafide
intention neither it can be alleged nor can
be proved for which the petitioner in
exercise of his judicial functions could be
charged.

9. On the inquiry report dated
19.06.2018, opinion was sought from
Board of Revenue, in pursuance to which
Board of Revenue also gave its opinion on
22.03.2019, for dropping the proceedings
against the petitioner.

10. In the aforesaid backdrop of the
facts, where the inquiry officer has also
recorded finding in favour of the petitioner
and even Board of Revenue had gave
finding that there is no infirmity with the
order passed by the petitioner, the matter
was considered by the State Government
and surprisingly by means of order dated
31.07.2019, the inquiry officer was asked
to give his report specifically stating that on
what facts guilt of the petitioner could not
be proved during the said inquiry.

11. Learned counsel for the petitioner
has submitted that said order on the face of
it speaks of malafide on the part of
respondents as the said order on the face of
it is without jurisdiction and once inquiry
officer has passed an order he becomes
functus officio and only in case of direction
for
re-inquiry,
he
cannot
have
any
jurisdiction in his capacity as inquiry
officer, to submit a fresh inquiry report.
Such a exercise of jurisdiction is alien to
the service jurisprudence.

12. In view of the order of the State
Government, the inquiry officer again
submitted
his
report
to
the
State
Government, where he slightly deferred
from his earlier opinion and now he stated
that order passed by the petitioner was
erroneous. Even in the second inquiry
report there is no allegation that the
petitioner has either misconducted himself
or there was any extraneous consideration
for deciding the said application. In the said
report it was also recorded that all aspects
of the matter which have been considered
by the inquiry officer there are various
judgments of Hon'ble Supreme Court and
High Court and therefore, it was stated that
8 All. Shri Prakash Gupta Vs. State of U.P. & Ors.
1065
legal opinion in this regard be taken by the
Law Department of the State Government.

13. In pursuance to the second inquiry
report, opportunity of hearing was given to
the petitioner and consequently, impugned
order dated 02.12.2021, has been passed
imposing minor punishment of 'censure' to
the petitioner.

14. It has been informed by learned
counsel for the petitioner that letter of the
State
Government
dated
31.07.2019,
requiring the inquiry officer to submit his
opinion, was subjected to challenge before
this Court by filing Writ Petition No. 2091
of 2021, which was disposed of by means
of order dated 18.02.2021, with direction to
the respondents to conclude disciplinary
proceedings within two months.

15. Learned counsel for the petitioner
has assailed the impugned order on the
ground that firstly that the petitioner was
discharging quasi judicial functions and he
had decided the application which was filed
before him under Section 33/39 of the Land
Revenue Act for converting non ZA land to
ZA land.

16. The petitioner had followed due
process of law and he infact invited
objections and also report from the
Tehsildar. It is only after perusal of entire
material available on record that he has
proceeded to pass order dated 17.11.2009.
While passing the said order the petitioner
has also relied upon the judgment of Full
Bench in the case of State of U.P. Vs.
Satish Chandra Sharma, 2008 LRT 71.

17. It is also submitted by learned
counsel for the petitioner that any order
passed by judicial or quasi judicial
authority may be incorrect or otherwise, but
merely on the basis of passing of incorrect
order, disciplinary proceedings cannot be
initiated against the petitioner.

18. In the entire material either in the
inquiry report, charge sheet, second inquiry
report, there is not even an iota of
allegation that petitioner's misconducted
himself or there was any overt act or
omission, which may entail initiation of
disciplinary proceedings. It is submitted
that law in this regard has been settled in
series of judgments of Apex Court and
most of them have been considered in the
recent judgment of Apex Court in the case
of Abhay Jain Vs. High Court of
Judicature of Rajasthan and Another,
2022 SCC OnLine Supreme Court 319,
wherein the Court has held as under :

"71. We concur with the view of
this Court in the aforesaid case that merely
because a wrong order has been passed by
the appellant or the action taken by him
could have been different, this does not
warrant
initiation
of
disciplinary
proceedings against the judicial officer.

...........

74. In light of the above judicial
pronouncements, we hold that the appellant
may have been guilty of negligence in the
sense that he did not carefully go through
the case file and did not take notice of the
order of the High Court which was on his
file. This negligence cannot be treated to be
misconduct. ......"

19. Heard learned counsel for the
parties and perused the record.

20. From entire proceedings it cannot
be seen from any material that there was
any extraneous consideration while passing
the said order by the petitioner. The
petitioner had exercised his jurisdiction
1066 INDIAN LAW REPORTS ALLAHABAD SERIES
under Section 33/39 of the Land Revenue
Act, it may be a case that appear to decide
the said application specifically in view of
the fact that the said land was non ZA land
and its conversion to ZA land may not be
permissible under the jurisdiction held by
the petitioner, but this fact in itself cannot
be the sole basis for initiation of
disciplinary
proceedings
against
the
petitioner.

21. Hon'ble Apex Court in the case of
Zunjarrao Bhikaji Nagarkar Vs. Union
of India and Others, (1999) 7 SCC 409,
in para 29 has observed as under :

"29. In State of Punjab v. ExConstable Ram Singh this Court referred to
the definition of "misconduct" as given in
Black's Law Dictionary and Aiyar's Law
Lexicon and said as under :

"6. Thus it could be seen that the
work 'misconduct' though not capable of
precise definition, on reflection receives its
connotation
from
the
context,
the
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
behavious, wilful 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
terms occurs, regard being had to the scope
of the stature and the public purpose it
seeks to serve.""

22. Considering various judgments of
the Apex Court as stated above, present
case is squarely covered by the aforesaid
judgment of Apex Court and hence inquiry
proceedings could not have been initiated
against the petitioner considering the fact
that he passed the said order in exercise of
his quasi judicial functions.

23. In the light of above observations,
the order of punishment sated 02.12.2021 is
clearly illegal and arbitrary and is hereby
quashed.

24. Writ petition stands allowed.
----------
(2022) 8 ILRA 1066
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 06.07.2022

BEFORE

THE HON'BLE ABDUL MOIN, J.

Writ B No. 247 of 2022

Udayvir & Ors. ...Petitioners
Versus
Board of Revenue, U.P. at Prayagraj & Ors.
 ...Respondents

Counsel for the Petitioners:
Dharm Raj Mishra, Ratnesh Singh

Counsel for the Respondents:
C.S.C., Ashok Kumar Singh, Pankaj Gupta,
Rahul Kumar Singh, Vijai Bahadur Verma

Civil Law - Uttar Pradesh Zamindari
Abolition and Reforms Act, 1950 - Issue -
whether after dismissal of the appeal u/s
331 (3) of of the Act, 1950, whether one
should file a second appeal u/s 331(4) of
Act, 1950 or a revision before the Board of
Revenue u/s 333 of the Act, 1950 ? - Held
- where an appeal has been preferred u/s
331 (3) of the Act, 1950, the forum of
filing of a revision u/s 333 of the Act,
1950 would not be available - statue, in its
wisdom has specifically mandated u/s 331
(4) of the Act, 1950 for filing of second