While the Haryana government may act against IAS officer Ashok Khemka for publicly criticising its actions, there are doubts whether or not administrative action can be justified against the officer for exercising powers without jurisdiction in cancelling the mutation of 3.5-acre land in Gurgaon.
Service law experts say that since the order to set aside the mutation passed by Khemka was a quasi judicial, it can only be challenged or rectified in a court of law. Initiating administrative action on this ground may not be tenable, they said. "This will provide Khemka an opportunity to petition the high court on the ground that he can't be issued an article of charges for passing a quasi judicial order," an expert said.
The state government, legal experts feel, can't justify the action unless it is able to prove mala fide and mischievous interpretation of the law. "The government will have to prove that the officer as director general, consolidation of holdings, had differing standards on the same issue," an expert said.
While the government is now armed with a July 12 order of the Punjab and Haryana high court that held that orders passed by Khemka in a similar matter pertaining to Baad Gujjar village in Gurgaon under Section 42 of the Consolidation Act suffered from an error of jurisdiction and was against the principles of natural justice, the question is whether or not a departmental action against Khemka in the Shikohpur mutation matter can be justified on its basis.
The HC had quashed Khemka's orders of August 8, 2012, wherein without affording an opportunity of hearing other parties, the IAS officer had set aside the transfer of land of Baad Gujjar panchayat to private parties in the consolidation proceedings on the grounds that classification of land in terms of relative value was unreasonable and detrimental to the interests of panchayat.
Khemka's order of August 8 had a parallel in his October 15, 2012, order under Section 42 of the Consolidation Act whereby he ordered setting aside of mutation of 3.5 acre in Gurgaon's Shikohpur. In Shikohpur matter too, the IAS officer had passed the orders without issuing notice to the interested parties and granting them an opportunity to be heard. The HC in its July 12 order said the facts clearly indicated that the August 8, 2012, order pertaining to Baad-Gujjar was passed in contravention of the principles of natural justice.
"The petitioners and other right-holders were not heard when the order was passed. They were the affected party," the HC ruled. The three member committee too had concluded in its report that Khemka could not have passed the orders to set aside the mutation under Section 42 without affording an opportunity to hear the parties involved.
What is a quasi judicial action ?
An action taken and discretion exercised by public administrative agencies / bodies who are obliged to investigate or ascertain facts and draw conclusions from them as the foundation for official actions.
Quasi-judicial action by an administrative agency may be appealed to a court of law. With a few exceptions, a plaintiff generally must exhaust all remedies available through an agency before appealing the agency's decision in a case. One exception is that a person may appeal directly to a court of law and bypass the quasi-judicial activity of an administrative agency if the agency's remedies would be inadequate.
Source: Legal dictionary