Ram Baran Singh vs State of U.P.

Hon''ble Anil Kumar, J.—Heard Sri Akhilesh Pandey, learned counsel for the petitioner, Sri R.K. Verma, learned State Counsel for the opposite parties and perused the record.

The facts, in brief, of the present case are that the petitioner Sri Ram Baran( now deceased) was appointed as Junior Clerk on 5.4.1973 in the department known as Nideshak, Vikas Anveshan Avam Prayog Vibhag, Rajaya Niyojan Sansthan, U.P. Lucknow (herein after referred as ''Department''). Subsequently, he was promoted to the post of Senior Clerk. While working in the said capacity placed under suspension by order dated 20.11.1990 (Annexure no.1) passed by opposite party no.2.Aggrieved by the same, petitioner filed a writ petition no. 185 (S/S) of 1990 before this Court in which an interim order was granted on 8.5.1991 and in pursuance to the same, allowed to work and discharge his duties on the post of Lekha Lipik/ Senior Clerk.

By order dated 20.3.1991 the competent authority appointed one Sri Daya Shanker Misra Deputy Development Commissioner as Inquiry Officer and the chargesheet dated 16.7.1991 has been served to the petitioner by opposite party no.2 in which two charges were levelled against him. However, in the meantime, the enquiry officer appointed in the matter, who was to retire on 30.11.1991 after attaining the age of superannuation, so Sri Chandra Prakash Pandey Deputy Director Prashasan Evem Jansampark was appointed as Inquiry Officer by order dated 15.11.1991 by the competent authority.

Further, by letter dated 31.7.1991 petitioner sought fifteen days'' time for submitting his reply to the chargesheet. Again time was sought by the petitioner in this regard vide letter dated 1.8.1991. Lastly, submitted his reply to the chargesheet on 23.8.1991( Annexure no.3).

By letter dated 24.1.1992 (Annexure no. CA-3) the enquiry officer fixed the date for holding enquiry and asked the petitioner to produce the name of witness in support of his case. After receiving the said letter, petitioner wrote a letter requesting therein that date fixed for the enquiry proceedings may be changed. Accordingly, date of enquriy proceedings was changed but the petitioner did not appear on the changed date as a result of which enquiry officer has fixed other dates for conducting the inquiry, informing the petitioner, but he deliberately and willfully did not appear before the enquiry officer on the dates fixed for the purpose of holding domestic enquiry as such the enquiry officer conducted the enquiry proceedings on the basis of material available on record and found that the charges which were levelled against the petitioner are established and proved and on 6.3.1992 submitted enquiry report. Thereafter, a show cause notice dated 26.9.1992 has been issued by opposite party no.2 alongwith enquiry report to the petitioner to submit his reply, submitted by him on 12.10.1992.Thereafter personal hearing has been given to the petitioner by the disciplinary authority on 7.5.1993 after hearing him and considering the facts and circumstances of the case, material on record the impugned order dated 31.12.1993( Annexure no.7) has been passed by which he has been dismissed from services.

Aggrieved by the said fact, present writ petition has been filed by the petitioner. During the pendency of present writ petition, he died on 27.9.2004 so substituted by his legal heirs Smt. Vidya Singh, Km. Seema Singh and Atul Kumar Singh as petitioners nos. 1/1 to 1/3 in the writ petition.

Learned counsel for the petitioner while assailing the impugned order submits that the petitioner was not at all guilty of the charges levelled against him vide chargesheet dated 16.7.1991 as the petitioner was working on the post of Lekha Lipik and it was not his duty to examine the signature. The said duty was of Sri K.K. Dwivedi D.D.O. And Sri R.P. Saxena as such the impugned order passed by opposite party no.2 thereby dismissing him from service is an action totally arbitrary in nature.

Learned counsel for the petitioner further submits that in the same incident Sri R.P. Saxena, who was responsible for the irregularities, his services were terminated. Aggrieved by the said fact, Sri R.P. Saxena for redressal of his grievance approached the U.P. Public Services Tribunal by filing claim petition no. 86 of 1995 ( Rajendra Prakash Saxena (deceased petitioner) through his legal heirs Vs. State of U.P. and and another ), allowed vide judgement and order dated 19.11.2009 with the following directions.:-

The claim petition is allowed. The impugned order dated 31.12.1993 is set aside. The petitioner has died. The opposite parties are directed to pay the retirral benefits of the original petitioner treating him continuous in service including his G.P.F., gratuity and other consequential service benefit as per rules and his legal heirs except back wages from the date of dismissal till the date of his death. The petitioner shall also be eligible for salary for the period 1.2.1993 to 3.1.1994. The compliance of the judgment and order shall be made within a period of three months from the date of production of certified copy of this order. There is no order as to costs.

Accordingly, it is submitted by learned counsel for the petitioner that the impugned order of dismissal is in violation of principles of natural justice because no adequate opportunity of hearing has been provided to him during the domestic enquiry, hence enquiry proceedings as well as dismissal order are contrary to law, liable to be set aside. In support of his arguments, learned counsel for the petitioner placed reliance on the judgment of Hon''ble the Apex Court in the case of Ramesh Prasad Singh Vs. State of Bihar and Others, and requests that the impugned order of dismissal passed by opposite party no.2 may be set-aside and the writ petition may be allowed with consequential benefits to the legal heirs of the deceased- petitioner.

Sri Rajesh Kumar Verma, learned State Counsel submits that by order dated 20.11.1990 petitioner has been placed under suspension to which he submitted his reply to the enquiry officer Sri Chandra Prakash, who was appointed vide order dated 15.11.1991 ( Annexur CA-2). On 24.1.1992( Annexure CA-3) enquiry officer issued letter to the petitioner fixing the date, time and place for holding the enquiry and to give the name of the witnesses in his defence. Thereafter the petitioner made a request to the enquiry officer vide his application dated 24.1.1992 ( Annexure No. CA-5) to change the date of the enquiry accordingly next date fixed 29.1.1992.

On 10.2.1992 the petitioner gave an undertaking that he did not want to make any cross examination in the matter thereafter the enquiry officer send letters dated 21.2.1992 and 3.3.1992 fixing date for enquiry proceedings and hearing but the petitioner did not appear before the enquiry officer on the dates fixed. Thus, he deliberately and intentionally did not avail the opportunity of hearing during the course of enquiry proceedings and was himself responsible for the said act. However, the enquiry officer conducted a detailed enquiry in accordance with principle of natural justice against the petitioner in which the charges levelled are found proved and after receiving the same, punishing authority issued the show cause notice alongwith enquiry report, to which petitioner submitted his reply and after giving personal hearing. the dismissal order has been passed which is a speaking and reasoned order. Hence, present writ petition is liable to be dismissed.

I have heard learned counsel for the petitioner and gone through the record.

In the instant case,after placing the petitioner under suspension, a chargesheet has been issued to which he submitted his reply. Thereafter domestic enquiry was initiated against him and during the course of enquiry, ample opportunity has been given to the petitioner to prove his case, but without any rhyme and reason he did not avail the said opportunity and and did not appear before the enquiry officer. After submitting reply to the chargesheet as such enquiry officer conducted enquiry proceedings on the basis of material on record, submited enquiry report to the punishing authority.

Accordingly, a show cause notice issued to the petitioner to which he submitted his reply, and thereafter personal hearing was also given to the petitioner by the punishing authority before passing the order of dismissal, so I do not find any irregularities or infirmity in the matter in question and the impugned order of dismissal dated 31.12.1993 passed by the punishing authority/ opposite party no.2 which is well reasoned and speaking order, as the punishing authority has given the reasons while passing the impugned order.

It is settled law that the reasons substitute subjectivity by objectivity. The emphasis on recording reasons is that if the decision reveals the ''inscrutable face of the sphinx'', it can be its silence, render it virtually impossible for the Courts to perform their appellate function or exercise the power of judicial review in adjudging the validity of the decision. Right to reason is an indispensable part of a sound judicial system, reasons at least sufficient to indicate an application of mind to the later before Court. Another rationale is that the affected party can know why the decision has gone against him. One of the salutary requirements of natural justice is spelling out reasons for the order made. In other words, speaking out. The inscrutable face of the sphinx'' is ordinarily incongruous with a judicial or quasi-judicial performance.

Further, if the said principles is applied in the present case and the order of removal from services are tested on the said scale, the submission made by the learned counsel for the petitioner will definitely fail in the test. As in the present case, the orders of dismissal passed by the punishing authority is reasoned one indicating the reasons on the basis of which the same have been passed, accordingly the submission which has been made by the learned counsel for the petitioners in this regard is wholly misconceived and rejected.

Moreover, this Court while exercising power of judicial review under Article 226 of the Constitution of India does not exercise appellate powers. It is not intended to take away from administrative authorities the powers and discretion properly vested in them by law and to substitute courts as the bodies making the decisions. Judicial review is a protection and not a weapon.

In the case of Council of Civil Service Unions (CCSU) V. Minister 11 for the Civil Service (1984) 3 ALL ER 935, Lord Diplock has observed the scope of judicial review in the following words:-

Judicial Review as I think developed to a stage today when, without reiterating any analysis of the steps by which the development has come about, one can conveniently classify under three heads the grounds on which administrative action is subject to control by judicial review. The first ground I would call ''illegality'' the second ''irrationality'' and the third ''procedural impropriety.

Moreover, judicial review has certain inherent limitation. It is suited more for adjudication of disputes than for performing administrative functions. It is for the executive to administer the law and the function of the judiciary is to ensure that the Government carries out its duty in accordance with the provisions of the rules and statute.

In the case of Chief Constable of the North Wales Police V. Evans, (1982) 3 ALL ER 141, it was observed by Lord Hailsham as under:-

Purpose of judicial review is to ensure that individual receives fair treatment and not to ensure that the authority, after according fair treatment reaches on a matter which it is authorized by law to decide with its conclusion which is corrected in the eyes of the Court.

In the same case, Lord Brightman observed that:-

Judicial review as the words imply is not an appeal from a decision but a review of the manner in which a decision was made," and held, that "it would be an error to think that the Court sits in judgment not only on the correctness of the decision making process but also on the correctness of the decision itself.

The aforesaid observations made by the Lord Hailsham and Lord Brightman were quoted with approval by their Lordships of Supreme Court in State of Uttar Pradesh and Others Vs. Maharaja Dharmander Prasad Singh and Others, , and while upholding that the judicial review is directed not against the decision, but is confined to the examination of the decision making process, it was held by the Supreme Court as under:-

When the issue raised in judicial review is whether a 12 decision is vitiated by taking into account irrelevant, or neglecting to take into account, relevant factors or is so manifestly unreasonable that no reasonable authority entrusted with the power in question could reasonable have made such a decision, the judicial review of the decision making process includes examination, as a matter of law, of the relevance of the factors.

In the case of Tata Cellular Vs. Union of India, the Supreme Court stated that:-

Judicial review is concerned with reviewing not the merits of the decision in support of which the application for judicial review is made but the decision making process itself," and enumerated some broad grounds upon which an administrative action is subject to control by judicial review and classified them under the heading of ''illegality'', ''irrationality'' and ''procedural impropriety.'' In their supervisory jurisdiction as distinguished form the appellate one, the Courts do not themselves embark upon rehearing of the matter but nevertheless courts will, if called upon, act in a supervisory capacity and see that the decision making-body acts fairly. If the decision making body is influenced by considerations which ought not to influence or fails to take into account the matters which ought to have been taken into account the Courts will interfere. If the decision making body comes to its decision on no evidence or comes to a finding so unreasonable that a reasonable man could not have come to it then again the Courts will interfere.

Further if the decision making body goes outside its power or misconstrues the extent of its power, then too the Courts can interfere, and if the decision making body acts in a bad faith or with ulterior object which it is not authorized by law, its decision will be set aside in supervisory jurisdiction. A decision of a public authority will be liable to be quashed or otherwise dealt with by appropriate order in judicial review proceedings, where the Courts concludes that the decision is such that no authority properly directing itself on the relevant law and fact acting reasonably could have reached it.

Thus the decision by the appropriate authority to grant or not to grant a particular relief to a person is not open to Judicial review by the High Court under Article 226 of the Constitution of India but the power of judicial review is circumscribed to scrutiny of the decision making process only and is to be exercised in the light of the principles laid down above and applying the said principles to the facts of the present case, I do not find any irregularity, infirmity in the impugned order.

In view of the above said fact, I am of the opinion that the petitioner cannot derive any benefit from the judgment of the State of U.P. Public Service Tribunal, Lucknow dated 19.11.2009 passed in Claim Petition No. 86 of 1995 ( Rajendra Prasad Saxena (deceased petitioner) through his legal heirs Vs. State of U.P. and and another ), allowed vide judgement and order dated 19.11.2009. Further the judgments of Hon''ble the Supreme Court cited on behalf of the petitioner is not applicable in the facts and circumstances of the case, so he cannot also derive any benefit from the same in his favour.

For the foregoing reasons. I find no illegality or infirmity in the impugned order dated 31.12.1993 ( Annexure no.7 to the writ petition) passed by opposite party no.2, Nideshak, Vikas Anbenshan Evam Prayog Vibhag, Rajkiya Niyojan Sansthan, U.P. Kalakakar Bhawan, Lucknow. Accordingly, the writ petition is dismissed.

No order as to costs.