Additional Collector's 'Quasi Judicial' Action Protected Under Judges (Protection) Act: Madhya Pradesh HC Nixes 'Malafide' Disciplinary Case

While quashing a charge sheet and setting aside 'malafide' disciplinary proceedings against an Additional Collector, the Jabalpur bench of the Madhya Pradesh High Court said that the petitioner falls under the definition of a judge while discharging functions as quasi-judicial officer and is protected under the Judges (Protection) Act. 

In doing so the high court also criticised the act of the respondent/state for not "acting fairly and using their powers illegally to harass an employee". 

A single-judge bench of Justice Sanjay Dwivedi in its order observed, “…Court cannot ignore this aspect that any proceeding that is being initiated for no reason and for no fault of him, the same cannot be misutilized, merely because the power is available with the employer to initiate the same. Fair play is expected in every matter, whether it is judicial or it is an administrative.”

Background

The petitioner was initially appointed as a Deputy Collector, joined on September 1, 2000 promoted to the post of Joint Collector in November, 2007 and was further promoted to the post of Additional Collector in October, 2014. He being the senior most officer, was due for promotion to the post of IAS cadre. A chargesheet was served upon him on April 29, 2019 and a disciplinary proceeding was initiated against him.

The petitioner, at the time of discharging his duties as Additional Collector granted permission exercising the power provided under Sections 165(6) and 165(7-b) of the Madhya Pradesh Land Revenue Code. It was alleged that the permission was given by the petitioner by not following  due procedure thereby causing loss to the Government exchequer and that he was not competent to grant such permission. After issuing chargesheet, an enquiry was initiated against him which was challenged by him before the high court but no interim order has been granted to him and the departmental proceeding is still going on. He sought quashing of order rejecting his request for not initiating departmental enquiry and also for quashing of chargesheet.

The counsel for petitioner said the chargesheet issued by the respondents is illegal for the reason that the petitioner is protected under the provisions of The Judges (Protection) Act, 1985. He submitted that the State Government had also issued a circular in 2021 whereby the revenue officers have also been considered to be a 'Judge' as per Section (2) of the Act. Therefore, the proceeding which is claimed to be illegal and initiated by the petitioner granting permission under Section 165 cannot be subjected to a disciplinary proceeding.

He further submitted that the enquiry can be initiated only when there is any oblique motive of the authority in granting permission or exercising power under Section 165 of the Code of 1959. However he argued, the Economic Offences Wing (EOW) had also conducted an enquiry and submitted its report clarifying that there was no oblique motive available with the petitioner while performing the duties as Additional Collector and granting permission under Section 165 of the Code of 1959. It is also clarified that no financial loss has been caused to the Government Exchequer due to such action of the petitioner.

The counsel for the respondent/state opposed the above contentions and submitted that petitioner is not entitled to get the benefit of provisions of Act of 1985. It was argued that the power is still vested with the authority and also with the State Government to initiate disciplinary and criminal proceedings against the revenue officers or Judges who have been protected under the provisions of Act of 1985. He further submitted that the petitioner has exercised his power under Section 165 of Code of 1959 by virtue of work distribution order by Collector and according to him. He argued that it is a settled principle of law that work distribution order cannot delegate the judicial power to the authority and therefore, the petitioner has exercised that power illegally, therefore, he is rightly subjected to judicial proceedings as has been done by the respondents in the present case issuing chargesheet against the petitioner.

Whether Petitioner as Additional Collector was competent to act as a Collector to grant permission under the Code

Pursuant to the work distribution order of the then Collector of the district, duty was assigned to the petitioner to hear the matters seeking permission under Section 165 (6) & (7) of the Code of 1959 to which objection was raised by the respondents that this can be done only by the Collector and not by the Additional Collector and the work distribution order issued by Collector did not make the petitioner eligible and competent to decide such applications.

With regard to this issue, the court referred to Section 11 of the Code which defines 'Revenue Officers' from which it can be concluded that the Collector includes Additional Collector. Section 17 of the Code of 1959 further provides that an Additional Collector shall exercise such powers and discharge such duties conferred and imposed on a Collector by or under this Code or by or under any other enactment for the time being in force. Thus, the court concluded that the Additional Collector has every competence to perform the duties as has been assigned to the Collector if occasion arises. It relied on Dinesh Kumar vs. The State of Madhya Pradesh and Ors wherein it was held that an Additional Collector is competent to decide the application under Section 165 of the Code of 1959 and no further permission and approval from the Collector is required.

Can petitioner get any protection treating him as a Judge while proceeding to grant permission under the Code 

The court observed that while dealing with the applications seeking grant of permission under Section 165(6) & (7) of the Code, it was clear from the definition of 'Judge' provided under the 1985 Act that the same includes not only the Judge but also the officers acting or purporting to act in the discharge of his official or judicial duty or function as a quasi-judicial officer.

The Revenue Officers have also been considered to be a Judge at the time of performing the judicial proceeding and an order in this regard has been issued by the Revenue Department on March 25, 2021, it noted.

"If a Judge while performing his duties acted beyond the scope of that function then I can understand that the action can be taken but here in this case as the discussion made hereinabove when there was nothing wrong committed by the petitioner and he has not acted beyond the scope of quasi-judicial proceeding for which he was empowered, even then, ignoring the said protection and initiating disciplinary proceeding against the said officer, cannot be said to be proper and that cannot be allowed to continue because it is otherwise contrary to law," the court said. 

The court said that the Additional Collector has been considered to be judicial officer and held entitled to get protection as has been provided under the Act of 1985.

Therefore, the court in the present case observed that when EOW and Lokayukt has already enquired the matter and has given specific opinion that the alleged act of petitioner granting permission under the Code while deciding applications under Section 165(6) & (7) being an Additional Collector was without any oblique motive or without getting any personal profit or causing no financial loss to the Government Exchequer.

Thus, initiating disciplinary proceeding against the petitioner is apparently illegal and arbitrary and in violation of the protection provided to him, it said.

Whether disciplinary proceeding is properly initiated against the petitioner or not?

The court concluded that it was not proper on the part of the respondents to keep the disciplinary proceeding alive for such a long time. The petitioner had requested the authorities to take a decision on his reply to the chargesheet so that he could be considered for promotion to the post of IAS cadre but the authorities did not do so, it said.

The court said that it can't reject the petitioner's submission that the entire proceedings and respondents' conduct is malicious just to keep the petitioner away from consideration. This was because the over-all circumstances existing in the case, gives a sign of "malafide attitude" of the respondents/authorities to make the petitioner's "proceeding malicious for no reason, particularly, when the special agencies have opined that the conduct of the petitioner was without any oblique motive and has not caused any financial loss to the Government.

The court also observed, “In the existing circumstances, if existing disciplinary proceeding is allowed to continue when everything has already been enquired about and nothing was found against the petitioner then keeping the said disciplinary proceeding pending depriving him from consideration for promotion to the post of IAS cadre, is nothing but an arbitrary and malicious exercise of powers just to keep the petitioner away from the said consideration. In my opinion, if such an exercise is kept alive that would also be an act to shaken the confidence of the authority performing quasi-judicial function.”

The petition was thus, allowed and the impugned chargesheet was quashed. The order appointing enquiry officer and presenting officer was also set aside.

Case Title: Kailash Bundela versus The State Of Madhya Pradesh And Others, Writ Petition No. 4820 Of 2023

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