Zila Panchayat Through Its Adhyaksh and Upper Mukhya Adhikari (Zila Parishad) Now Zila Panchayat Vs. State Public Services Tribunal and ors. - Court Judgment

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- land acquisition act, 1894 [c.a. no. 1/1894]. section 4; [sushil harkauli, s.k. singh & krishna murari, jj] acquisition of land held, court cannot issue a writ of mandamus directing the state authorities to acquire a particular land. land acquisition is not purely ministerial act to be performed by executive no direction in nature of mandamus whether interim or final can be issued by court under article 226 necessarily to acquire particular land in public interest. land acquisition is not a purely ministerial act to be performed by the executive and therefore, no mandamus can be issued by the court in exercise of its power under article 226 of the constitution, whether suo motu or otherwise, whether in public interest litigation or otherwise directing acquisition of land under the provisions of land acquisition act, 1894. it would, however, be open to the court in exercise of that power to invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time frame. however, the power of the court under article 226 must necessarily stop at that. thereafter, if the decision taken by the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the court to quash the decision and to require reconsideration. but no direction in the nature of mandamus whether interim or final can be issued by the court under article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose. section 4; compulsory acquisition of land powers of state government held, renewal of lease in favour of petitioners would not take away power of state government of compulsory acquisition of land. renewal of lease would at best be taken into consideration for determining quantum of compensation. - thus, the finding of the tribunal is founded both on erroneous assumption of fact as well as of law. as found herein above, the tribunal proceeded to deliver its verdict on an issue, which was a total non-issue in the disciplinary proceedings and failed to address itself to the findings of the inquiry officer, as accepted by the disciplinary authority in respect of other charges. as admission is the best piece of evidence that an opposite party can rely upon and though not conclusive, is decisive of the matter, unless successfully withdrawn or proved erroneous. , [1956]1scr451 ,the apex court held that admission made by a party is admissible and best evidence unless it is proved that it had been made under a mistaken belief.b.s. chauhan and shishir kumar, jj.1. the zila panchayat, aligarh has questioned the validity of the judgment and order dated 02.05.1997 of the u.p. public services tribunal, by which the claim petition of late ved prakash saxena, who is represented through his heirs and legal representatives, respondents no. 2 to 7, herein above, has been allowed on the ground that the enquiry against the delinquent employee stood vitiated on account of non-production of oral witnesses. the tribunal concluded that there was no evidence before the inquiry officer to come to the conclusion that the charges were proved against the petitioner and, therefore, the enquiry was in violation of article 311(2) of the constitution of india read with rule 55 of c.c.a. rules, 1930. accordingly the tribunal set aside the order of punishment and extended all benefits to the respondents no. 2 to 7, who are the heirs and legal representatives of late ved prakash saxena.2. the facts and circumstances giving rise to this case are that late ved prakash saxena was appointed as a clerk grade iii in 1952 in zila parishad, aligarh and was ultimately promoted to the post of licence/tax inspector on 11.6.1968.3. shri saxena, while serving on the said post, was found to have committed some misconduct, for which he was served with a charge sheet containing six charges in 1975. three of the charges were in respect of temporary embezzlement relating to non-deposit of certain amount within time after having collected it from the concerned person. the other charges related to (i) acceptance of illegal gratification (ii) non-verification of the tour diary and claiming the allowances etc; (iii) that he had earlier committed the same misconduct and was punished. the delinquent submitted his reply to the charge sheet.4. an enquiry was conducted by the inquiry officer who submitted his report to the chairman of the zila panchayat and the same was furnished to the delinquent employee along with a show cause notice to submit his reply. a copy of the inquiry officer's report has been appended as annexure-11 to the counter affidavit. the charge sheet has been appended as annexure-6 to the counter affidavit. a perusal of the charge sheet indicates that there were six charges in all but the inquiry officer has commented upon only five of the charges. it is further to be significantly noted that in respect of charge no. l, which was in respect of accepting a bribe of rs. 140/-, for which the employee was being criminally prosecuted, was not dealt with by the inquiry officer and he declined to submit any report in respect thereof in view of pendency of the criminal case. the employee submitted his explanation to the said show cause notice and the inquiry officer's report. where after the chairman, zila panchayat passed the order of punishment dismissing shri ved prakash saxena from the service. the dismissal order became subject matter of challenge before the tribunal and during the pendency of the claim petition, shri saxena died and was substituted by his heirs and legal representatives, who are the contesting respondents no. 2 to 7 herein.5. we have considered the rival submissions made by the learned counsel for the parties and perused the record.6. six charges had been framed against the petitioner. charge no. 1 related to acceptance of illegal gratification. the same has not been enquired into by the inquiry officer, in view of the pendency of the criminal case, on the said charge against him. charge no. 5 was only to the effect that earlier, vide impugned order 17.6.1974, the said employee had been punished for not depositing the collected amount in time and considering it to be a temporary embezzlement, punishment of withholding three annual grade increments without cumulative effect and depriving him from any amount other than the subsistence allowance, paid to him during suspension and making an adverse entry in his service book, had been imposed. the charge no. 6 which related to non-verification of the tour diary of the said employee was not dealt with by the inquiry officer at all.7. thus, it is evident from the aforesaid that the punishment has beer imposed only on the basis of charge nos. 2, 3 and 4, with the aid of charge no. 5. while recording the finding of fact, the inquiry officer held that it was not so serious. thus, it appears that the punishment has been imposed only o the basis of the findings on charge nos. 2 and 3 with the aid of charge nos. and 5. the said charge nos. 2 and 3 related to temporary embezzlement, as the amount collected by the said employee was not deposited within time and as the employee was found to have committed a similar misconduct earlier also and the punishment of dismissal from service was imposed.8. the tribunal has decided the case in absence of the counsel of the respondent-employee, as the counsel did not appear, under rule 15 of the u.p. state public services tribunal (procedure) rules, 1992, observing as under:-'from the facts mentioned above, it is clear that in this case inquiry has not been made according to rules. admittedly, in this case no witnesses were produced before the inquiry officer. the reason for the same given by the o.ps. is that petitioner has not submitted any reply and therefore, there was no need to produce oral witnesses. the inquiry was made for the charges of taking bribe by the petitioner. it is imposable to imagine that all the charges were based on documentary evidence. taking of bribe has nowhere been written in the documents or note. in this case, production of oral witnesses was a must and this was not done. no enquiry can be completed on the basis of charge-sheet, reply or documents alone.'9. no other finding has been recorded by the tribunal and the judgment is based only on the ground that no witnesses were examined in the inquiry and the findings remain mainly shifted to the issue of acceptance of illegal gratification, which was not dealt with by the inquiry officer. petition has been allowed with all consequential benefits.10. it is evident that the learned tribunal has laboured unnecessarily dealing with an issue, which has not been dealt with by the inquiry officer or the disciplinary authority, i.e. charge no. 1 relating to acceptance of illegal gratification. the tribunal has erroneously recorded a finding that the enquiry was made in respect of the charge of taking bribe by the employee, as is evident from a perusal of the inquiry officer's report and also indicated herein above, the issue was never enquired into either by the inquiry officer nor was it made the basis of dismissing the employee by the disciplinary authority. thus, the finding of the tribunal is founded both on erroneous assumption of fact as well as of law. when the inquiry officer did not find it fit to proceed with the charge of taking bribe, there was no occasion for him to have summoned any witnesses for oral examination. the finding of the tribunal, therefore, reflects complete non-application of mind. as found herein above, the tribunal proceeded to deliver its verdict on an issue, which was a total non-issue in the disciplinary proceedings and failed to address itself to the findings of the inquiry officer, as accepted by the disciplinary authority in respect of other charges. 11. in such a fact-situation the matter requires to be re-examined by this court, as the judgment of the tribunal is not based on the controversy involved in the case at all. charge nos. 2 and 3 related to the temporary embezzlement and considering the past conduct of the employee, wherein he has earlier been found guilty of the similar charges and punishment had been imposed of dismissal from service, cannot be held to be disproportionate to the delinquency.12. the only issue required to be considered by us is, as to whether the employee had been given a fair opportunity to defend himself, as it has been submitted by shri r.k. jain, learned senior counsel for the respondent that in spite of several representations/applications made by the employee, the copies of the documents which had been relied upon by the inquiry officer/disciplinary authority, had not been supplied to him. therefore, he had no opportunity to prepare his defence and the inquiry proceedings stood vitiated.13. the disciplinary authority in its order has recorded the finding of fact that the said employee was given opportunity to examine all the records and he was given full opportunity to defend himself and was given a personal hearing also.14. be that as it may, the employee while submitting his reply dated 14.11.1976 (annexure ca-12) to the inquiry report, admitted the misconduct as under:-'he could not deposit the amount in time for paucity of time but there was no intention to withhold the same. in the year 1974-75, the same kind of misconduct had been committed by another employee and the office did not proceed against him, therefore, no action should be taken against him.'15. when the petitioner himself has admitted the misconduct, the submissions made by shri jain become totally irrelevant. as admission is the best piece of evidence that an opposite party can rely upon and though not conclusive, is decisive of the matter, unless successfully withdrawn or proved erroneous. (vide narayan bhagwantrao gosavi balajiwale v. gopal vinayak gosavi and ors., : [1960]1scr773 ; basant singh v. janki singh, : [1967]1scr1 ; prem ex- serviceman co-op. tenant farming society ltd. v. state of haryana and ors., : air1974sc1121 ; general court martial and ors. v. col. aniltej singh dhaliwal, : 1998crilj1402 ; and ram bharose sharma v. mahant ram swaroop and ors., : (2001)9scc471 ). even if admission by a party is not conclusive proof of the matter admitted, it may in certain circumstances operate as an estoppel. (vide k.s. srinivasan v. union of india, : [1958]1scr1295 ).16. while considering a similar case in nagubai ammal and ors. v. b. shama rao and ors., : [1956]1scr451 , the apex court held that admission made by a party is admissible and best evidence unless it is proved that it had been made under a mistaken belief. while deciding the said case reliance has been placed upon the judgment in slatterie v. pooley, (1840)) 6 m & w 664, wherein it has been observed as under:-'what a party himself admits to be true, may reasonably be presumed to be so.'17. in view of the above, as the employee himself has admitted the misconduct, the submissions advanced in this respect are not worth acceptance and as the learned tribunal has not addressed himself to the real controversy, the said judgment cannot be sustained in the eyes of law.18. in view thereof, the judgment and order dated 2.5.1997 of the learned tribunal is set aside and the order dated 2.5.1977 of the disciplinary authority is restored. there shall be no order as to costs.