JUDGMENT D.K. Seth, J.
1. The petitioner was subjected to disciplinary proceedings in which the petitioner had submitted his reply, which is Annexure-7 to the writ petition. In the enquiry the petitioner was found guilty of all the charges levelled against him in the charge-sheets dated 2nd of April, 1983 and 23rd of June, 1983, which is apparent from the enquiry report dated 21st of September, 1983. On the basis thereof a notice dated 31st of December, 1983 was issued to the petitioner asking him to show cause against the proposed punishment. The petitioner had shown cause. After considering the same, by an order dated 27th of February, 1984 dismissal from service was inflicted as punishment. This order was challenged by the petitioner before the State Public Services Tribunal, Lucknow in Claim Petition No. 118/1 of 1985. By a decision dated 5th of May, 1993, the claim petition was dismissed. In the enquiry report, the petitioner was found partially guilty of the charges levelled in the first charge-sheet ; whereas he was found guilty of the charges levelled in the second charge-sheet. The disciplinary authority concurred with the report of the Inquiry Officer and inflicted the punishment ; whereas the learned Tribunal had discarded the findings of guilt in respect of the charges levelled through the first charge-sheet on the ground that partially proved charges cannot be sustained. However, the learned Tribunal had concurred with the findings of the disciplinary authority and the Inquiry Officer in respect of the charges levelled through the second charge-sheet. The copy of the order of the learned Tribunal is Annexure-12 to the writ petition. By means of this writ petition, the order dated 5th of May, 1993 passed by the learned Tribunal in Claim Petition No. 113/1 of 1985, enquiry report as well as the findings and indictment of punishment dated 27th of February. 1994 have been challenged.
2. Mrs. Archana Srivastava, learned counsel for the petitioner assails the said order on the ground that the findings of the Inquiry Officer are perverse and based on no material. The Inquiry Officer has not considered the reply and the explanation given by the delinquent. He has also not considered the evidence on record. A plain reading of the report shows that the Inquiry Officer had not applied his mind. Alternatively, she argued that he was so biased that he had deliberately omitted to consider the materials on record particularly the explanation given by the petitioner, which is solely based on record for which no oral evidence was necessary. The disciplinary authority while concurring with the findings of the Inquiry Officer had also not given reply nor it had discussed the evidence available on the record. The learned Tribunal had also omitted to consider the materials on record and had concurred with the findings without adverting to the reply on the ground that the copy of the reply was not filed before the learned Tribunal. According to her, the disciplinary proceedings having been challenged before the learned Tribunal, it was for the employer to produce before learned Tribunal to show that the enquiry was conducted in accordance with law and there was sufficient material to arrive at the conclusion that had been arrived at. As soon the disciplinary proceedings had been challenged, the entire record of the proceedings was before the learned Tribunal. The original reply, that was submitted by the delinquent, was on the record of the disciplinary proceedings. The delinquent could file the copy of the reply, but the same would be inadmissible. When the record was in the custody of the employer, it was incumbent for the employer to produce the same. On these grounds, according to Mrs. Srivastava, the findings of the Inquiry Officer, the order passed by the disciplinary authority and the findings of the learned Tribunal are wholly perverse and liable to be set aside. She further contended that on the basis of the materials there was nothing on which the charges could have at all been proved. On the basis of such materials, no reasonable person would have arrived at the finding of guilt. She further contends that so far as the explanation of the petitioner with regard to the first charge of the second charge-sheet is concerned, it is alleged that he had handed over the charge on 10th of January, 1983 and the report mentioned in the said charge, was not prepared by him. The same was prepared by his successor lo whom he had handed over the charge. There was no discussion on this question as to whether the report was prepared by the delinquent or by his successor. She then contends that so far as the second charge of the second charge-sheet is concerned, it has not been shown that the changes had affected any person or it had altered the right, title or interest of any person in respect of any properly. At the same time, the changes having been made on the basis of note given by his superiors or the order passed by his superiors, he cannot be held guilty for such alteration particularly when the alteration effected was not prohibited within the meaning of para A-155 of the Land Records Manual Part-I Chapter A-VIII. The said alteration has not been provided by any of the entries mentioned in clauses (1) to (14). The second charge of the charge-sheet cannot be construed to be a misconduct inviting the punishment of dismissal. There being no iota of evidence against the petitioner to prove any of the charges, the findings and the punishment, as above, were wholly perverse. On these grounds she prayed that this writ petition should be allowed and the impugned order should be quashed.
3. Mr. K.R. Singh, learned standing counsel, on the other hand, vehemently argued that once the delinquent has admitted in his explanation with regard to the second charge of the second charge-sheet that he had himself effected the changes, it was open to the disciplinary authority to find him guilty on admission and no evidence should be necessary. He further points out that two witnesses were examined and both Inquiry Officer and the disciplinary authority had relied on the said evidence. The learned Tribunal had also concurred with the said findings on the basis of those evidence. Thus, the findings have assumed the character of concurrent finding of fact the same cannot be interfered in writ jurisdiction. Even if this Court is of different view, then according to Mr. K.R. Singh, this Court cannot substitute its own view unless the findings are perverse. Since the findings are based on the evidence mentioned in the enquiry report as well as in the findings of the learned Tribunal, it cannot be said that there is any perversity. It is a question of belief or disbelief. This Court while exercising writ jurisdiction, does not sit on appeal and therefore, it cannot interfere with the question of belief or disbelief. However, there were some materials to arrive at such conclusion. He has also pointed out that the delinquent had not proposed to examine any witness nor he had asked for opportunity to cross-examine any witness. Therefore, the delinquent had not produced the evidence to support his reply or explanation and the case made out by him in the reply. Thus, he had not discharged the initial burden of proof. Therefore, the onus had never shifted on the employer. Therefore, there was no question for adducing evidence to disprove the reply given by the petitioner. Therefore, according to him the contention of Mrs. Srivastava, though appears to be very attractive, but lacks force and substance. He had pointed out in detail that there are materials, which may not have been discussed in detail, but in fact those were within the mind of the Inquiry Officer and the disciplinary authority and therefore, it cannot be said that the authorities did not apply its mind. She further contends that the delinquent never alleged bias against the Inquiry Officer or the disciplinary authority before the learned Tribunal. Therefore, in these proceedings the question of bias cannot be raised for the first time, which is a question of fact and the same can be raised only, it was so raised earlier. On these grounds. Mr. Singh contends that this writ petition should be dismissed.
4. I have heard both the learned counsels at length.
5. So far as the question of discharging initial burden of proof by the delinquent is concerned, as contended by Mr. K. R. Singh, appears to be unfounded on the basis of the materials that have been placed before this Court. Inasmuch as the charges were levelled against the delinquent by the employer. Therefore, the initial burden of proving the charges was on the employer. It might have been discharged at the time of the proceedings and the onus might have been shifted on the delinquent, but that onus is confined to the discharge of initial burden through adducing evidence. From the evidence, it does not transpire that there was anything by which the explanation and reply of the petitioner were ever met. Unless the reply and explanation are met, the onus is never shifted on the delinquent and the delinquent is never called upon to prove such reply or explanation. As contended by Mrs. Srivastava, it appears that the reply of the delinquent was based purely on the record. So far as the first and second charges are concerned, the delinquent was suspended with effect from 5th of January, 1983, after which he had no occasion to visit the concerned village and had handed over the charge on 10th of January, 1983. He had contended that the report was not prepared by him and the same was prepared by his successor Suresh Chandra to whom he had handed over the charge on 10th of January, 1983. The fact remains that Suresh Chandra was one of the witnesses in the proceedings. Both the disciplinary authority and the Tribunal had relied on the evidence of the said Suresh Chandra. In the reply, the finger was pointed out towards Suresh Chandra, who had succeeded the delinquent and might have prepared the report as contended in the reply. Therefore, it would be wholly unsafe to reply on the said Suresh Chandra who tried to disown the mistake. Admittedly when the delinquent had handed over the charge on 10th of January, 1983, he contended that he had not prepared the report, in that event it was incumbent to the employer to prove that the delinquent had prepared the report, but that question had not at all been considered. This amounts to a material omission, which goes to the root of the findings itself. Such omission or reliance on the evidence of an interested witness is wholly irregular and any findings arrived at on the basis of such evidence tantamount to perversity. No where either in the enquiry report or in the findings of the learned Tribunal, the reply of the petitioner had ever been gone into. Though the learned Tribunal records that the copy of the reply was not before it, but from the enquiry report it appears that the reply of the delinquent was quoted in detail in the report itself. Then again the learned Tribunal had stressed on the question of opportunity but not on the question of merits of the fact findings. A perusal of the report of the Inquiry Officer clearly indicates that it had arrived at the conclusion summarily without indicating any reason on which the findings were based. The learned Tribunal had also committed the same mistake and did not discuss anything in detail. On the other hand, it had come to a finding that the charges were proved without discussing as to how it could be proved on the face of the reply of the delinquent mentioned in the enquiry report. At the same time, the learned Tribunal had stressed the question of law to draw an adverse inference on account of non-availability of the reply of the delinquent on the face of the fact that the disciplinary proceedings having been challenged, it was incumbent for the employer to record in the enquiry proceedings as a whole in order to show that there was no infirmity in the whole proceedings. The record of the proceedings was admittedly in the custody of the employer. The delinquent could have filed only the copy of the reply, but the copy of the reply is not admissible in evidence, it could be filed only when the original is not available. As soon the disciplinary proceedings are challenged, the onus is shifted on the employer to prove that the disciplinary proceedings were validly conducted and that there was no infirmity in the proceedings and therefore, it was for them to produce adequate evidence, namely in the form of production of disciplinary proceedings itself, in case they fail to do so, the question of adverse inference appears to be attracted as against them. Thus, the learned Tribunal had misappreciated this question in the facts and circumstances of the present case.
6. So far as the second charge is concerned, the Tribunal had found that the petitioner is guilty of the said charge of the ground that the reply was not available before the learned Tribunal, which finding may be met with the same analogy as well. It appears that he had relied on the evidence of Suresh Chandra. So far as this charge is concerned, the learned Tribunal had dealt with the same cursorily and had not referred to any material indicating the reason on the basis of which he had come to such a conclusion. At the same time, the disciplinary authority had dealt with the same in the same manner without discussing the evidence as to how the petitioner was guilty. Admittedly the petitioner had admitted that he had incorporated a note that Smt. Laraiti, daughter of Ram Chandra wife of Gangadin resident of village Gramo and at present is resident at Gandhra. Admittedly the name of Smt. Laraiti was recorded against Khata No. 189 as daughter of Ram Chandra resident of Gramo, The only insertion that has been incorporated by the delinquent in addition is wife of Gangadin' and at present residing at Gandhra. It is not alleged that any part of the record has been deleted or any new interest has been inserted. On the other hand, it has been alleged that the present status of Smt. Laraiti was inserted, namely, daughter of Ram Chandra, is now the wife of Gangadin and on account of subsequent marriage, she has been residing in Gandhra, which fact has been noted. In the reply, the delinquent has contended that it was done on the basis of oral instructions of his superiors, which could be confirmed from a note that mentioned by him in the reply. This part has been sought to be explained by Mr. Singh to the extent that it was a note given by the delinquent himself ; whereas Mrs. Srivastava sought to explain the same that it was a note appended by his superiors, which was followed by inserting the present status of Smt. Laraiti in the record itself. Be that as it may, it may not be necessary to go into the said question in view of the observations made here-in-above. Admittedly, the delinquent has contended that it was done on the basis of the instructions of his superior Officers, but this question has not at all been dealt with and has been thoroughly omitted. At the same time, nowhere it has been shown that such an alteration could amount to a misconduct on the part of the delinquent as Lekhpal or that such action is wholly outside that scope and purview of the duties assigned to him or that he was otherwise prohibited from doing the same.
7. On the other hand, Mrs. Srivastava had relied upon paragraphs A-155, A-155-A and A-156 of the Land Records Manual Part-1. Chapter-A VIII to show that neither such an action on the part of Lekhpal is prohibited nor it was outside the duties or jurisdiction conferred on him.
8. Paragraphs A-155, A-155-A and A-156 are quoted as under :
A-155. Changes in Khatauni.--(1) No changes will be made in the Khatauni except under the orders noted in columns 7. 8 or 9 thereof.
(2) At the time of preparing the new Khatauni the Lekhpal is authorised to make in his own initiative in the following cases only :
(a) division and union of fields under paragraphs A-63 and A-65 :
(b) changes in column 1, relating to serial numbers or entries regarding the year of testing by the Supervisor Kanungo under paragraphs A-130 and A-150 ;
(c) entry of minor's age and name of guardian under paragraph A-156;
(d) (***) (3) If the Lekhpal finds that any other entry in the Khatauni required correction and such correction merely consists in the removal of a clerical error, he shall enter it in the list of correction of clerical errors in the Khatauni in Form P-A 23 and hand it over on his next visit to the Tehsils to the Registrar Kanungo who shall submit it to the Tehsildar with his report for orders.
Form P-A-28 Form P-A-28 Sl.No.
Number of Khatauni-Khata Lekhpal's report Registrar Kanungo's report with reference to entries in previous Khataunis and mutation register Order Tehsil-dar or Nain-Tehsil-dar (1) (2) (3) (4) (5) (4) If the Lekhpal finds that a correction is required which falls under any of the changes or transactions referred to in items (1) to (14) of paragraph A-155-A ;
(1) or involves cancellation, alteration or modification of a mutation or other order, he shall write a separate report in respect of each entry as items (2) to (5) and (8) to (14) requiring correction and hand over on his next visit to the Tehsildar with his report. In case of item (1) he shall take action according to instructions in paragraph A-81-A.
(5) In respect of each report received by Registrar Kanungo from the Lekhpal, a separate case shall be started which shall proceed as it were a case for correction of Khatauni.
A-155-A. Authority empowered to pass orders.--(1) The following entries regarding change or transaction affecting the right or interests of tenureholders shall be made only under the order of authority mentioned against each item.
Entries of undisputed succession.
Supervisor Kanungo or Tehsildar (2) with registered leases.
transfers of land by bhumidhars.
Entries of surrender.
Entries in cases of abandonment.
Supervisor Kanungo (6) Entries of occupiers without TITLE IN PART I of the Khatauni.
Entries of occupiers without title in Part II of the Khatauni.
Entries of changes in land revenue Assistant Collector incharge of sub division (9) Numbering and recording of alluvial land added to the village and modification of entries regarding diluvian.
Entries respecting transfer of Khata class.
Entries regarding new tenureholders without registered leases.
Assistant Collector incharge of sub division (12) Entries disputed cases of transfers of land by Bhumidhars.
Disputed cases of succession.
Any other changes or transaction affecting rights or interests but not falling under items (1) to (3) above.
(2) Orders in respect of item No. (1) shall be communicated to the Lekhpal by the Supervisor Kanungo (Paragraph 433 while those in respect of (2) to (14) by the Registrar, Kanungo (Paragraph 265) .
A-156. Entry of age of minors.--In column 2 of the Khatauni the words "minor" shall be recorded after the name of every tenure-holder who has not attained the age of eighteen years followed by the number of years of his age in brackets, for example "Ram Lal, minor (10 year son of so and so". One year shall be added to the age in each subsequent Khatauni till the minor attains the age of eighteen years. In the following Khatauni the word "minor and the number of years and the name of guardian shall be omitted."
9. A perusal of the said provisions clearly indicates that under paragraph A-155 a Lekhpal is authorised, in his own initiative, to affect changes in respect of the matters mentioned in clauses (a), (b) and (c) respectively. The manner in which he has to proceed in respect of matters mentioned in clauses (a), (b) and (c) and in respect of other matters mentioned in sub-paragraphs (3), (4) and (5) have been so dealt with ; whereas paragraph A-155-A prescribed the authorities who are competent to pass orders in respect of the matters mentioned in clauses (1) to (14) of the said paragraph. Thus, it appears that these fourteen items of changes are wholly outside the scope and ambit of duties and jurisdiction of the Lekhpal, while paragraph A-156 prescribes the details of duties of Lekhpal with regard to the entry of age of minors.
10. In order to determine the two issues involved in the present case, it would be appropriate to find out as to whether the action charged in the second charge of the second charge-sheet comes within the purview of any action so prohibited by virtue of paragraph A-155-A of the Land Records Manual or not. A perusal of clauses (1) to (14) of paragraph A-155-A indicates that the changes effected in the record contemplated in the second charge of the second charge-sheet are not included in any of the said clauses. Therefore, it cannot be said that the note made by the delinquent is one of the prohibited action as contemplated in paragraph A-155-A and outside his jurisdiction. At the same time, as rightly pointed out by Mr. K.R. Singh, the note given by the delinquent also does not come within any of the clauses (a), (b) and (c) of sub-paragraph (2) of paragraph A-155-A of the Land Records Manual. !n case the action is not prohibited by reason of and is not permitted under paragraph A-155, in that event such action cannot be used to interdict the delinquent when there is nothing specific provided in the Land Records Manual, to prohibit such an action, particularly in view of the nature and character of the note given without affecting any change either in the holding or otherwise and without affecting the right, title and interest in respect of the said land of any person or in other words without affecting any change either in the holding or in the interest in respect of the said land. The change that has been effected, is recording of the status of the holder of the land. Smt. Laraiti was shown as daughter of Ram Chandra residing in village Gramo, which has been added by a note that she is the wife of Gangadin and is at present residing at Gandhra, which in nature and character, appears to be similar to a entry envisaged in clause (c) which contemplates an entry with regard to the status of a person as to whether he is minor or attaining majority. Though it may not be the same, but it has some similarity or nexus. Such kind of entry may be contemplated in clause (c). Inasmuch as in India as soon a girl is married, she is identified by the name of her husband and not by the name of her father. If she is not married, she is identified by her father. Such mode of identification is not only recognised in Indian social system, but also followed in administrative set up and legal proceedings. In the present case, it is not doubted or disputed that Smt. Laraiti was not married with Gangadin or that she was not residing at village Gandhra. Neither it has been contended that Smt. Laraiti wife of Gangadin resident of Gandhra is a person different from Smt. Laraiti daughter of Ram Chandra former resident of Gramo. It is also not contended that Smt. Laraiti is still unmarried or she was not married with Gangadin nor it is said that she is still living in Gramo and not residing in village Gandhra. On the other hand, if really she is married and residing at different place in order to identify her, it is necessary that a note should be appended with addition to the note already on the record that she is the daughter of Ram Chandra resident of Gramo to the extent that now she is the wife of Gangadin, if she is married, and at present residing at Gandhra. Such change or insertion in a note in no manner changes the nature of the land nor the character and status of the holding of the land. On the other hand, it purports to give a complete picture of the status of a person holding the land which is a normal consequence on account of subsequent event of marriage of the holder of the land.
11. Sub-paragraph (3) of paragraph A-155 empowered the Lekhpal to correct any clerical errors. The description of the lady as daughter of Ram Chandra resident of Gramo after her marriage could at best may be termed to be a clerical insertion of a correct present status. It has not changed the holding or the interest in respect of the land. Sub-paragraph (4) of paragraph A-155 requires the Lekhpal that if the corrections are thus referred to in items (1) to (14) of paragraph A-155A or involves cancellation, alteration or modification of a mutation or other order then he has-a right to give separate report in respect of each entry as items (2) to (5) and (8) to (14) requiring correction and hand over on his next visit to the Tehsil all such reports to the Registrar Kanungo who shall submit them to the Tehsildar with his report. In case of item (1) he shall take action according to the instructions in paragraph A-81A. Admittedly, the alleged correction does not fall within the ambit of any of the items (1) to (14). In absence of specific instructions in respect of such correction either in paragraph A-155 or A-155A amounting to prohibition on the part of the Lekhpal, it cannot be said that he had exceeded his limit, in absence of any specific provision in order to make the alleged action on the part of delinquent a misconduct, it is not possible to interpret paragraph A-155A, against the petitioner in the present case. In the absence of any specific provision, the benefit would be available to the delinquent and not to the employer. There having been a doubt that the Lekhpal had exceeded his jurisdiction, no punishment could be inflicted on him on the basis of doubtful situation as to whether he is guilty of the charges, particularly when there is nothing to show that there had been in reality a change in the record.
12. As discussed above, it appears that the enquiry report and the decision of the disciplinary authority on the basis thereof cannot be sustained on account of perversity as pointed out hereinbefore. Similarly the order of the learned Tribunal suffers from the same infirmities and is perverse as discussed above.
13. In the result the writ petition succeeds and is allowed. The order dated 27th of February, 1984 contained in Anoexure-11 to the writ petition and the order dated 5th of May, 1993 passed by the learned Tribunal in Claim Petition No. 118/1 of 1985 contained in Annexure-12 to the writ petition, are liable to be quashed and are hereby quashed. Let a writ of certiorari do hereby issued.