- (1.) DEVI Prasad Singh, J. Heard learned counsel for the parties. Present writ petition under Article 226 of the Constitution of India has been preferred against the impugned order of dismissal from service. The question cropped up in the present case is; whether only because of compliance of the judgment and order passed by the High Court without seeking prior permission of the superiors, the services of an employee can be dismissed treating the action as misconduct?
(2.) THE brief facts giving rise to the present writ petition is that the petitioner was posted as Registrar Kanungo in Tahsil Sandeela, District Hardoi. One Bhawani Prasad approached this Court by preferring a Writ Petition No. 9892 of 1989, which was allowed by judgment and order dated 22. 1. 1992, a copy of which has been filed as Annexure-4 to the writ petition. THE operative portion of the judgment and order dated 22. 1. 1992 is reproduced as under : "in view of above, I am of the opinion that the consolidation authorities incorrectly denied petitioner's claim. THE writ petition, therefore, deserves to be allowed and is hereby allowed and the order passed by all the three consolidation authorities are hereby quashed. THE consolidation authorities shall treat the petitioner as 'bhumidhar1 of the land in question and proceed in accordance with law. However, there shall be no order as to costs. " The petitioner Bhawani Prasad of the aforesaid writ petition submitted a certified copy of the judgment of this Court (supra) to the District Magistrate, who in turn forwarded the same for compliance to Sub-Divisional Magistrate concerned. The Sub Divisional Magistrate, Sandeela forwarded the same for compliance to the petitioner, who was working as Registrar Kanungo, In compliance of the judgment of this Court, the petitioner recorded the name of Sri Bhawani Prasad for which he was authorised under law. On account of the aforesaid act on the part of the petitioner, by an order dated 18. 7. 1996 the petitioner was suspended in contemplation of the departmental enquiry. The inquiry officer submitted a report that while recording the name of Sri Bhawani Prasad in compliance of the judgment of this Court, the petitioner as Registrar Kanungo did not follow the procedure provided under the statute and straightaway mutated the name of farmer. A finding was recorded by the inquiry officer that since procedure for mutation was not followed by the petitioner and he had recorded the name of Bhawani Prasad without approval of superiors hence he has committed serious misconduct and his services are liable to be dismissed. In pursuance of the report of the inquiry officer, the services of the petitioner were dismissed by impugned order dated 14. 11. 1996 passed by the District Magistrate, Hardoi, as contained in Annexure-1 to the writ petition. The operative portion of the impugned order dated 14. 11. 1996 is reproduced as under : "maine aropi dwara prastut espastikaran, janch adhikari ki akhya tatha karan batao notice ke prati prastut espastikaran dinankit 7. 11. 1996 ka bhalibhanti parikshan va vicharan kar liya hai. Chunk prasnagat prakaran gaon sabha bhumi sa ek bahut bade kshetrapal par aropi dwara apne kisi bhi uchchadhikari ka adesh prapt kiye bina hi amaldaramad kar liya gaya hai jisme aropi ki durabhisandhi prateet hoti hai atev uske viruddha prasnagat arop purnataya siddha pate huve mat ishi niskarsha par pahuncha hoon ki is prakar manmane dhang ke swechhacharita baratne wale anushashanheen karmchari ko sewa mein banaye rakhane ka koi auchitya prateet nahi hota hai tatha use sewa se barkhast (nilambit) kar diya jana hi rajya sarkar ke hit mein uchit va nyay sangat hoga. Uprokta karno se Sri Ganesh Prasad, Sahayak Registrar Kanungo Tahsil Sandila, Janpad Hardoi ko etaddwara tatkalik prabhav se sewa se barkhast kiya jata hai. Es adesh ki tamil aropi par tatkal sunischit ki jaye. " While assailing the impugned order, it has been submitted by the petitioner's counsel that since the order of dismissal has been passed only because of the fact that the petitioner complied the judgment and order of this Court, it suffers from substantial illegality. It has also been submitted that by proceeding against the petitioner on the aforesaid ground, the District Magistrate, Hardoi virtually has tried to interfere with the administration of justice. It has further been submitted by the petitioner's counsel that since the consolidation proceedings were de-notified under Section 52 of the U. P. Consolidation of Holdings Act (in short the 'act'), in view of the provisions contained in Rule 109a the petitioner was entitled to discharge the duty in place of consolidation authority. The submission is that after issuance of the notification under Section 52 of the Act, the petitioner was fully empowered to make entry in compliance of the judgment of this Court. Under Section 49a of the Act, no suit or prosecution or other legal proceedings may take place against the action taken in good faith. For convenience, Section 49a of the Act, as well as sub-rule (1) of Rule 109a of the Rules is reproduced as under : "section 49a. Protection of action taken under this Act and Rules made there under.-No suit, prosecution or other legal proceedings shall lie against any person for anything which is in good faith done or intended to be done under this Act or Rules made there under. " "rule 109a (1 ). Order passed in cases covered by sub-section (2) of Section 52 shall be given effect to by the consolidation authorities, authorized in this behalf under sub-section (2) of Section 42. In case there be no such authority, the Assistant Collector-in-charge of the sub division, the Tahsildar, the Naib- Tahsildar, the Supervisor Kanungo and the Lekhpal of the area to which the case relates shall, respectively, perform the functions and discharge the duties as the Settlement Officer, Consolidation, Consolidation Officer, the Assistant Consolidation Officer, the Consolidator and the Consolidation Lekhpal respectively for the purpose of giving effect to the order, aforesaid. "
(3.) WHILE rebutting the argument advanced by the learned counsel for the petitioner, learned standing counsel submitted that power was conferred only to the consolidation courts and the petitioner was not entitled to make entry in compliance of the judgment of this Court. I have considered the argument advanced by the learned counsel for the parties. It has not been disputed that consolidation operation was de-notified in pursuance to the provisions contained in Section 52 of the Act and the procedure prescribed by the Rule 109a of the Rules is not disputed. The provision of Rule 109a of the rules empowers Supervisor Kanungo to make entry in the revenue record. Moreover, in the present case, when the judgment of this Court was submitted to District Magistrate, he himself referred the same to the Sub-Divisional Magistrate, who, in turn, forwarded to the Tahsildar and then Tahsildar to the petitioner. Thus, in the hierarchy of system, it was the higher authority, who referred the judgment of this Court (supra) for compliance to the petitioner. No pleading has been pointed out by the learned standing counsel, which may indicate that the authority had not referred the judgment of this Court to the petitioner for compliance. There is also nothing on record, which may indicate that the petitioner has acted malafidely for some extraneous reasons. Accordingly, in view of statutory provisions (supra), the decision taken by the petitioner to declare Bhawani Prasad as bhumidhar in compliance of the judgment of this Court does not seem to suffer from any illegality or impropriety more so when the judgment stands final being not set-aside by some higher forum/supreme Court.;