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Court No. 28
Writ Petition No. 69858 of 2009
Munna Lal Vs. District Magistrate/Collector and others
Hon'ble Sudhir Agarwal, J.
1. Heard Sri A.P.N. Giri, learned counsel for the petitioner and
learned Standing Counsel for the respondents.
2. Despite time having been granted to respondents no counter
affidavit has been filed. Learned Standing Counsel, however, stated
that since the relevant record has been filed alongwith the writ
petition, he does not propose to file any counter affidavit and the
writ petition may be heard and decided on merits after hearing the
parties. Sri A.P.N. Giri, learned counsel for the petitioner has no
objection to the same. I proceed accordingly to dispose of the
matter under the Rules of the Court at this stage.
3. Sri Giri vehemently submitted that major penalty of reversion
has been imposed upon petitioner without any departmental
inquiry and, therefore, it is in violation of the principle of natural
justice. He further submits that the appellate order has been passed
by the Additional District Magistrate though under the Rules it is
the District Magistrate who could pass this order and further while
partly allowing the appeal the appellate authority has remanded
the matter to the disciplinary authority for fresh inquiry after
giving due opportunity to petitioner which jurisdiction he did not
possess.
4. However, I find no force in the above submissions. It appears
that the petitioner was a substantively appointed Lekhpal and was
given a purely officiating and temporary promotion on the post of
Record Inspector (Bhulekh Nirikshak) vide order dated 23.02.1988
passed by the Record Officer, Etawah. He however was never made
substantive on the promoted post of Bhulekh Nirikshak
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(subsequently designated as Revenue Inspector) though he made
request for the same vide his letters dated 15.07.1998 and
31.08.1998 wherein he also says that he has yet to be sent for
training for regular promotion to the post of Bhulekh Nirikshak
though he is working on the same for the last 10 years. The
competent authority, i.e., the Record Officer vide order dated
13.10.1998 reverted the petitioner to his substantive post of
Lekhpal pursuant to the District Magistrate’s order dated
07.10.1998. It appears thereafter that instead receiving the said
order the petitioner absented himself from 14.10.1998 and
onwards. It also appears that on account of his continuous absence
a charge sheet was issued to him on 13.01.1999 pursuant whereto
Tahsildar Auraiyya submitted his inquiry report on 06.08.1999 and
after finding the charge of unauthorised absence proved, major
penalty of reduction on the lowest of the pay scale of substantive
post was passed by the SubDivisional Magistrate Auraiyya on
30.10.1999, whereagainst the petitioner filed an appeal which was
partly allowed by the appellant authority by order dated
12.11.2009 and he while setting aside punishment order dated
30.10.1999, directed the disciplinary authority to hold a fresh
inquiry after giving opportunity of hearing to petitioner.
5. The order of reversion dated 13.10.19998 has not been
challenged in the writ petition. Though learned counsel for the
petitioner argued that the said reversion was a punishment but he
could not substantiate his submission either from any pleading in
the writ petition or from the order dated 13.10.1998 which is
simplicitor order. Since the petitioner’s promotion on the post of
Record Inspector (subsequently redesignated as Revenue
Inspector) was purely officiating and on temporary basis, he had
no right on the said post and could be reverted by a simplicitor
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order at any point of time. Nothing has been placed before this
Court to substantiate his right on the said post. It is well settled
that an officiating temporary promotion does not give any right to
hold the post and the incumbent is liable to be reverted at any
point of time.
6. The proceedings with respect to the major penalty of
reduction at the lowest stage in the pay scale are different and
pursuant to the petitioner’s alleged unauthorised absence from
14.10.1998 and onwards, were initiated by the respondents
treating petitioner’s substantive appointment on the post of
Lekhpal pursuant to the reversion order dated 13.10.1998 which
had attained finality having not been challenged. The order of
punishment dated 30.10.1999 passed by the SubDivisional
Magistrate, Auraiyya which is consequent to different proceeding
has been found illegal by the appellate authority and on the very
same ground, i.e., no adequate opportunity of hearing was given to
petitioner, the very argument which has been raised before this
Court. The order dated 30.10.1999 was set aside by the appellate
authority. That being so, no cause of action survives to petitioner
for challenging the said order of appeal. So far as the appellant
authority has directed the disciplinary authority to proceed afresh
after giving due opportunity to the delinquent employee, I find no
illegality therein inasmuch as the order of punishment having been
set aside on technical ground of non affording of adequate
opportunity to petitioner, the disciplinary authority is not deprived
of any power not to proceed afresh in accordance with law. The
power of appellate authority are coextensive with disciplinary
authority. The appellate authority has not faulted in directing the
disciplinary authority to proceed afresh after giving opportunity of
hearing to the petitioner. The appellate order dated 12.11.2009
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warrants no interference. A perusal of the appellate order also
shows that the same has actually been passed by the District
Magistrate and not by the Additional District Magistrate. Even
otherwise the question as to whether Collector includes Additional
Collector was a question raised in a bunch of writ petitions and the
issue has been finally settled by a Full Bench of this Court in the
case of Brahm Singh Vs. Board of Revenue and others, 2008(5)
ADJ 331. The words “District Magistrate” and “Additional District
Magistrate” are basically in reference with the criminal
administration of justice and for revenue purposes the appointment
is made on the post of Collector and Additional Collector under
Section 14 and 14A of the Land Revenue Act, 1901. Considering
the fact as to whether the Collector shall include Additional
Collector and where the power is required to be exercised by the
Collector if the same is discharged by Additional Collector, would
make it without jurisdiction, is the issues considered by the Full
Bench in Brahm Singh (supra) and has been negatived while
observing as under:
“Therefore, while construing the word ‘Collector’ as
defined in 1950 Act, it is relevant and necessary to read the
other provisions and statutes which are part of the same
scheme, harmoniously and collectively so that the object and
purpose of the enactment and the intent of the legislature are
construed correctly. The declaration under Subsection 4 of
Section 14A provides that every Additional Collector appointed
under 1901 Act is a ‘Collector’ of the District in respect to such
powers and duties which he exercises in the District as assigned
to him by the concerned Collector and for that purpose it shall
be deemed as if he is the Collector of the District. Once a
declaration has been made in the statute itself, the same would
5carry to 1950 Act also inasmuch as in respect to such matters
‘Additional Collector’ would be the ‘Collector’ of the District. The
reason for adding the requirement of issuance of a notification
by the State Government empowering ‘Assistant Collector of
first class’ would be clear from a bare reading of Section 15 of
1901 Act, which shows that though an Assistant Collector is
also appointed in the District and he is a subordinate officer to
the Collector, but there is no declaration like Subsection 4 of
Section 14A in Section 15 that the Assistant Collector would
also be treated to be a Collector of the District when he will be
discharging duties assigned to him by the Collector or any other
authority competent to do so in respect to the said District. Sub
section 4 of Section 3 of 1951 Act provides that only those
Assistant Collector of first class are included within the
meaning of Collector who are empowered by the State
Government by Notification in the Gazette to discharge all or
any of the functions of the Collector under the aforesaid Act.
Thus, the issuance of notification by the State Government was
necessitated because of absence of any provision like subsection
(4) of section 14A of 1901 Act where under the order passed
by an Additional Collector while exercising power or
discharging any duty as a Collector would be deemed to be an
order under that Act. Therefore, the Legislature while defining
the Collector under subsection (4) of Section 3 of 1950 Act
provides that the Collector means an officer appointed as
Collector under the provisions of 1901 Act and by legal fiction
in view of subsection (4) of Section 14A of the U.P.Land
Revenue Act, it would include Additional Collector also when he
acts and discharges the duties of the Collector as authorised
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under subsection (3) of Section 14A. We are, therefore, of the
view that as per definition given in subsection (4) of Section 3
of Act No. 1 of 1950, Collector will include Additional Collector
also when he discharges the duties and functions of the
Collector as provided under sub section (3) of Section 14A of
1901 Act. In view of the discussions made above, answer of
question no.1 can only be in affirmative, i.e., the power and
functions of the Collector can be exercised by the Additional
Collector under section 198(4) of 1950 Act, provided he has
been so directed by the Collector of the district.
In support of our above view, it would be relevant to refer
a Single Judge judgment rendered by His Lordship Hon’ble V.
Bhargava (as His Lordship then was) in Baikuntha Narain
Major and others Vs. Surend and others, 1954 ALJ 602 where
referring to Section 14A (4) of 1901 Act and applying the
same in a similar kind of controversy occurred with reference to
Section 2 of U.P. Land Utilization Act, 1948, his Lordship held
as under:
“This means that the Legislature by this fiction
intended that an Additional Collector, once he is
empowered under subsec. (3) of Sec. 14A of the U.P.
Land Revenue Act, should have the status of and should
be treated as if he were “the Collector” of the district for
purposes of the U.P. Land Revenue Act as well as for
purposes of every other law for the time being applicable
to a Collector.”
Section 14A(4) of 1901 Act was again considered in
Ratan Raj Vs. R.A.Rahmani,Election Tribunal, Meerut & others,
1960 RD 149, and the Division Bench of this Court following
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the judgement in Baikuntha Narain Major and others v. Surend
and others (supra) observed as under:
“Sub section (4) of Section 14A provides that the
Additional Collector when exercising any power of
discharging any duty under subsection (3), would be
deemed ” as if he were the Collector of the District.” The
Election Tribunal has overlooked these words which enact
the legal fiction that the Additional Collector should be
deemed to be the Collector of the District. The legislature
has by these words endowed him with the ‘personae’ of
the Collector so that Sri Gauri Shanker Singh, though in
fact the Additional Collector, would in law be deemed to
have acted as the Collector of the District while receiving
the petitioner’s election petition. The Tribunal’s opinion
that the election was not validly presented to him is
therefore patently wrong.”
We are in respectful agreement with the aforesaid view
expressed by their Lordships in the above cases, which also finds
support from the judgment of the Hon’ble Apex Court in the
case of State of U.P. & others Vs. Raja Syed Mohammad Sadat
Ali Khan, AIR 1960 SC 1283.”
7. In view of the aforesaid exposition of law even this argument
of learned counsel for the petitioner lacks substance. No other
point has been argued.
8. The writ petition lacks merit and is dismissed. No costs.
Dt21.07.2010
AK