Central Administrative Tribunal - Delhi
Jagdish Prasad vs Govt. Of Nct Of Delhi on 5 May, 2014
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH O.A. No.4521/2011 Order Reserved on: 16.04.2014 Order Pronounced on: 05.05.2014 Honble Mr. Sudhir Kumar, Member (A) Honble Mr. A.K. Bhardwaj, Member (J) Jagdish Prasad S/o Late Shri Chiranjee Lal Sharma R/o 442, Police Colony Idgah Road, Sadar Bazar, Delhi-6. -Applicant (By Advocate: Shri Anil Singal) Versus 1. Govt. of NCT of Delhi Through Commissioner of Police PHQ, IP Estate, New Delhi. 2. Addl. Commissioner of Police Traffic, PHQ, IP Estate, New Delhi. 3. DCP (Traffic/NDR) Through Commissioner of Police PHQ, IP Estate, New Delhi. -Respondents (By Advocate: Mrs. Sumedha Sharma) O R D E R Per Mr. Sudhir Kumar, Member (A):
The applicant of this OA is an Assistant Sub-Inspector (Executive) in Delhi Police. He was attached to the Parliament Traffic Circle in November 2006 and he went to Tis Hazari Court for evidence on 09.11.2006 and came back at about 4 P.M. He was thereafter detailed for duty at Kasturba Gandhi Marg along with Constable Vinod Kumar. After some time PRG Traffic Team conducted a surveillance in the area of Parliament Traffic Circle, and Constable Vinod Kumar attached to the applicant was found to have involved himself in malpractice like demanding and accepting the money from the owner of Motor Cycle No.DL-7SAE2736, without prosecuting him for the traffic offence. There was no allegation by the Motorcyclist concerned that the applicant had also taken any money from him. However, on 07.12.2006 he was served with a Show Cause Notice dated 06.12.2006, which read as follows:-
SHOW CAUSE NOTICE It is alleged that on 9.11.2006, the PRG Team Traffic was conducted a surveillance in the area of Parliament Traffic Circle and Const. Vinod Kumar No.3116/T who was detailed for duty at Ferozshah Road and Kasturba Gandhi Marg crossing with ZO/ASI Jagdish Pd. No.2422/T found involved in malpractice like demanding accepting the money from owner of M/Cicle No. DL-7S AE2736 without getting it prosecuted.
The above success of PRG in exposing the indulgence of traffic staff in malpractices shows lack of supervision and failure on the part of ZO/ASI Jadgish Prasad No. 2422/T being ZO to check the activities of his subordinates.
ZO/ASI Jagdish Prasad No.2422/T, is therefore called upon to show cause as to why his conduct should not be censured for the above lapse. His reply to the notice, if any, should reach this office within 15 days from the date of receipt of the notice failing which it will be presumed that he has noting to say in this defence and the matter will be decided on merits, ex-parte.
(Emphasis supplied).
2. The applicant thereafter submitted his detailed reply to the said Show Cause Notice dated 18.12.2006 (Annexure A-4) submitting that he had been posted in the Traffic Circle only about 10 days prior to the incident, and soon after he had returned from evidence duty before the Court, he was informed by the PRG staff Team that the said Constable Vinod Kumar attached with him had taken money from the driver of the Motor Cycle No. DL-7SAE2736. He submitted that neither had the Constable concerned stopped the said Motor Cycle in his presence, nor he took money in his presence, and that this fact was confirmed by the PRG staff from the concerned Motor Cyclist himself also immediately. He had, therefore, prayed that the Show Cause Notice issued to him be filed.
3. However, after considering the reply of the applicant, the concerned Disciplinary Authority passed the order of punishment dated 29.05.2007 (Annexure A-2), submitting that the plea taken by the applicant was not found satisfactory, and the proposed punishment of Censure was thereby confirmed upon the applicant. He was permitted to file an appeal within 30 days of the date of receipt of a copy of that order, but which he did, through his two pages Petition dated 09.04.2011, nearly four years after the order of Censure had been passed against him on 29.05.2007. However, the respondents did not reject his appeal representation on the ground of delay, and the applicant was given a hearing in the Orderly Room on 05.07.2011, apart from consideration of his written submissions. Since the Appellate Authority did not find any reason to interfere with the order of punishment passed by the Disciplinary Authority, his appeal was, therefore, rejected through order dated 07.07.2011.
4. The applicant thereafter approached this Tribunal by filing the present OA on 16.12.2011. When the case came up for admission before a Coordinate Bench, chaired by the then Honble Chairman, CAT, the Bench recorded the facts of the case leading to the imposition of proposed punishment in the first two paragraphs, till the details about the orders of dismissal of his appeal. However, in Paragraphs 3,4 & 5 of its order, the Bench chaired by the then Honble Chairman, CAT recorded as follows:-
3. In the present OA, the obvious prayer of the applicant is to quash the impugned order, vide which he was inflicted punishment of censure. It is urged by Mr. Anil Singal, learned counsel representing the applicant, that in an equity that has been held against Constable Vinod Kumar, the applicant has been made a witness and, therefore, it would be, at the most, a case of non-supervision and not that the applicant indulged himself into the mal-practices.
4. While issuing notice to the respondents, we will issue notice to the applicant as well, as to why, if the finding as returned by the authorities, that the applicant has himself indulged in illegal activities, the punishment should not be enhanced.
5. Issue notice to the respondents returnable on 14.02.2012.
(Emphasis supplied).
5. Even though the Bench had ordered for issuance of notice to the applicant as well, as to why the punishment should not be enhanced, since the order had been passed in the presence of the learned counsel for the applicant, no such notice was issued to the applicant by the Registry thereafter. However, the observations and orders as recorded by the Bench remained, and the applicant filed an MA No.1160/2012, seeking directions for providing certain information as was considered necessary by him to submit his reply to the notice issued vide orders dictated in the Court on 03.01.2012.
6. A further submission was made by the counsel for the applicant that since notice of enhancement of his punishment had been issued to the applicant by the Tribunal, rather than by the Administrative Authority under the applicable Rules, it will be proper if the matter be placed before a Bench in which the then Member Honble Dr. Ramesh Chandra Panda, who had been party to the order dated 03.01.2012 as a Member, which prayer was allowed. Thereafter, on 23.07.2012, the MA No.1160/2012 was considered and the following findings were recorded:-
The perusal of the cause list dated 20.7.2012 shows that this MA No.1160/2012 was adjourned for 23.7.2012. On account of that no order-sheet was drawn.MA No.1160/2012
Heard the arguments of Mr. Anil Singal, learned counsel for applicant, and Mrs. Sumedha Sharma, learned counsel for respondents. Firstly, Memo of Parties as mentioned in this application is the applicant Vs. Central Administrative Tribunal though Principal Registrar;
whereas in the array of Parties of the OA, the CAT through Principal Registrar is not mentioned as one of the parties. Secondly, the tone and tenor of this application shows as if the order dated 3.1.2012, which was passed by this Tribunal on judicial side, is being challenged before this Tribunal itself by seeking an answer from Principal Registrar as to under what provision of law, such order was passed by the Tribunal (on judicial side).
Thus, application appears to be misconceived and therefore, it is rejected.
At this stage, the learned counsel for the applicant says that in the absence of any favourable order on the above application, the applicant is feeling handicapped in giving any response to the aforesaid notice as to why punishment should not be enhanced against him. On the request of learned counsel for applicant, his above statement put on record.
As the pleadings of the OA are complete, let it be listed for hearing on 27.8.2012.
-sd- -sd-
(Dr. Ramesh Chandra Panda) (Alok Kumar Singh)
Member (A) Acting Chairman
(Emphasis supplied).
7. Later on, numerous adjournments were taken on the request of the learned counsel for the applicant, and on joint request of both sides, till the case finally came up for hearing before us on 16.04.2014.
8. Learned counsel for the applicant put forth his submissions and arguments that even though the MA No.1160/2012 had been rejected by the above cited orders, the applicant was aggrieved by a coordinate Bench of the Tribunal having passed an order on 03.01.2012 issuing notice to the applicant as to why punishment should not be enhanced. He submitted that while sitting in judicial review, this Tribunal could not have taken such a stand, and issued notice to the applicant to show cause as to why the punishment should not be enhanced. He pointed out that in case of any punishment other than Censure to be imposed under the Delhi Police (Punishment & Appeal) Rules, 1980, a procedure other than mere issuance of a Show Cause Notice has to be followed, as prescribed under Rules 11 to 16 of those Rules, and enhanced punishment cannot be imposed under the said Rules upon the applicant without following the proper procedure of a detailed disciplinary enquiry, which the official respondents have not resorted to at all. His submission was that in such a situation, in the absence of the proper procedure having been followed for an enhanced punishment being even contemplated against the applicant, while sitting in judicial review, this Tribunal could not have ordered for issuance of notice to the applicant as to why the punishment should not be enhanced. His further submission and argument was that this Tribunal is neither the disciplinary nor the Appellate Authority of the applicant, and was, therefore, not in a position to even contemplate imposition of a different penalty than that contemplated and imposed by the designated Disciplinary and Appellate Authorities of the applicant.
9. His further argument was that mere lack of supervision and failure to supervise his subordinate could not have formed a basis for enhanced punishment being levied upon the applicant, in view of the orders passed by another Coordinate Bench of this Tribunal in OA No. 2362/2005 Khilari Ram Meena vs. Govt. of NCT of Delhi on 17.08.2006, in which in Para-15 to 18, the following conclusions have been arrived at by that Coordinate Bench, which has since been upheld even by way of dismissal of an SLP filed against the order, after it was upheld by the Honble High Court:-
15. If one has regard to the above, the only ground to establish the charge against the applicant is that PW6 Inspector Parminder Singh has clarified that the word supervisory officer was used in his report for the ZO who was his immediate supervisory officer and there is no written complaint against the TI. This is the only ground to establish this part of charge. As the Disciplinary Authority has proved lack of supervision against the applicant, the Inquiry Officer has dittoed it, which cannot be expected from Inquiry Officer as per his legal role. Inquiry Officer has to be independent in recording evidence and should come to the conclusion not on the basis of findings of the Disciplinary Authority but on the basis of the material brought on record. Inquiry Officers role is well defined in Rule 16(10) of the Rules where it is provided that while recording findings along with reasons Inquiry Officer has to be satisfied that the charge against a person is proved.
16. Applying the test of common reasonable prudent man as held by the Apex Court in Kuldeep Singhs case (supra), we are of the considered view that on the reasoning recorded by Inquiry Officer one cannot come to the conclusion that the applicant lacks in any manner as Supervisory Officer as the alleged misconduct committed by the subordinate staff was not within the knowledge of the applicant and he had already taken necessary steps to regularly brief his subordinates not to indulge in illegal activities. A supervisory officer cannot be a party to the misdeeds of his subordinate, which are not in furtherance of discharge of official duties. An individual act which amounts to an illegal action of the subordinate when not in the knowledge of the supervisory officer and is committed behind his back without any iota of common intention or the supervisory officer being hand in gloves with the subordinates cannot be treated to have committed a misconduct of lack of supervision. The above misconduct shall have to be established if there is a direct omission to perform duty by the immediate superior officer. If on the basis of that one happens to be a supervisory officer as per the hierarchy, the same analogy would extend mutatis mutandis upto the Commissioner of Police, who would also be held responsible for lack of supervision over his subordinates and this cannot be countenanced being illogical and irrational. If it is so then the reasoning to arrive at the misconduct of applicant is also baseless and is irrational.
17. Accordingly, we find that the present is a case of no misconduct and no evidence as well. Findings recorded by the Inquiry Officer are not in conformity with Rule 16(ix) of the Rules (ibid) and are also based on surmises, conjuctures and suspicion, cannot stand scrutiny of law.
18. For the forgoing reasons, the O.A. is allowed. Impugned orders are set aside. Applicant is entitled to all consequential benefits. No costs.
10. His submission was that if mere lack of supervision and failure to supervise the subordinate could form the basis for imposing a major penalty, the concept and aspect of lack of supervision cannot stop at the level of the applicant alone, and should travel right up to the level of Commissioner of Police, Delhi. Therefore, he assailed the judicial orders as passed by the Coordinate Bench on 03.01.2012 as having been without jurisdiction, and beyond the pale of the authority of this Tribunal. He further relied upon the judgment of another Coordinate Bench of this Tribunal in the case of ASI Rama Shankar and Ors. vs. Govt. of NCT of Delhi & Ors. in OA No. 4092/2010 dated 10.05.2011, a copy of which had been filed by him as Annexure A-6 to the OA itself, in which Para- 7 & 8 of the judgment, it has been held that the Disciplinary and Appellate Authorities are the final fact finding authorities with discretion to impose appropriate punishment in order to maintain discipline, which discretion of the executive authorities should not be interfered with, and that they must be allowed considerable discretion to arrive at their own conclusions, and take such action with regard to imposition of punishment as is considered necessary to deal with such cases, and their decisions cannot be considered unreasonable, as any interference with their decisions, and the penalty imposed, could have serious repercussions in the matter of maintenance of efficiency in the Police Force. He, therefore, pleaded on this ground also that the order as passed by the Coordinate Bench on 03.01.2012 was against the settled principles of law.
11. He further argued that unless a positive finding was given in favour of the applicant by withdrawing the notice issued to him on 03.01.2012, the applicant was seriously handicapped in making his submissions before this Tribunal, as the Tribunal had decided to travel far beyond the bounds of its Authority under judicial review, and has sought to exercise and invoke powers which can only be exercised by the Disciplinary and Appellate Authorities of the applicant.
12. The learned counsel submitted that while he was prepared to meet the arguments advanced by the official respondents in their counter reply filed on 06.03.2012, and pressed his rejoinder filed thereto on 13.04.2012, he was handicapped in meeting any liability for enhancement of the applicants punishment, as had been sought to be imposed upon the applicant by the Bench through its order dated 03.01.2012.
13. Learned counsel for the respondents on the other hand argued her case strictly within the bounds of contents of the applicants OA, and the Show Cause Notice issued to the applicant through Annexure A-1 dated 06.12.2006, and stoutly defended the orders of the Disciplinary Authority passed on 29.05.2007 through Annexure A-2, and the orders passed by the Appellate Authority on 07.07.2011 through Annexure A-3, and submitted that the penalty of Censure presently imposed upon the applicant was imposed as per proper procedure, and was commensurate with the disciplinary authorities appreciation of the aspect of lack of supervision, and failure on the part of the applicant in supervising his subordinate, in the context of which such punishment of Censure had been levied upon the applicant. She also clarified that no disciplinary proceedings for any enhanced penalty being imposed upon the applicant had been initiated by the respondent authorities, before or after the Tribunals orders dated 03.01.2012.
14. We are bound by the orders of coordinate Benches, as per the law well settled in this regard. We have also given our anxious consideration to the legal arguments and submissions put forward by the learned counsel for the applicant against the judicial orders dated 03.01.2012, and against the orders of rejection of his MA No.1160/2012 on 23.07.2012
15. MA No.1160/2012 was rightly rejected by the Coordinate Bench on 23.07.2012 since the memo of Parties as mentioned in the MA was different than the array of parties in the OA, and the tone and tenor of that MA showed as if the order dated 03.01.2012, which was passed by this Tribunal on the judicial side, was being challenged before this Tribunal itself, by seeking an answer from the Principal Registrar as to under what provision of law such order was passed by the Tribunal on judicial side. The MA was, therefore, considered to be misconceived, and it was rightly rejected, as the Principal Registrar has nothing to do with the orders passed by the various Benches of the Tribunal in the performance of the judicial functions of this Tribunal.
16. In regard to the order passed by the Coordinate Bench on 03.01.2012, in Para-4 it had been ordered by that Bench that while issuing notice to the respondents, the Tribunal had put the applicant also on notice as well, as to why the punishment imposed upon him should not be enhanced. It is seen that even though the judicial order regarding such notice having been issued to the applicant had been passed more than two years back, the further proceedings as per law had not been followed up against the same. Since the order for notice issued to the applicant had been passed on the judicial side by the Bench on 03.01.2012, in the presence of the applicants counsel, no separate notice was ever required to be issued to the applicant. Since no such separate notice had been issued the applicant has also not had any occasion to file his reply thereto, and, he has taken no initiative on his own to defend his case against any such possible enhancement of his punishment.
17. Even though the learned counsel for the applicant had vehemently argued that the coordinate Bench of this Tribunal could not have issued such an order in the absence of proper procedure for consideration of enhanced penalty being levied upon the applicant having been followed in terms of the Delhi Police (Punishment & Appeal) Rules, 1980, we find that under the provisions of the Administrative Tribunals Act, 1985, the powers of judicial review of this Tribunal are co-terminus with the powers of writ jurisdiction of the Honble High Courts under Article 226 of the Constitution of India. The powers conferred upon the High Courts to issue writs of certain kinds under Article 226 (1) are very vast. It can issue directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and ceritiorari, or any of them for the enforcement of any of the rights conferred by Part III of the Constitution, and for any other purpose. If the Coordinate Bench had on 03.01.2012 come to the conclusion that directions or orders could be issued for enhancement of punishment of the applicant, in view of the categorical admission of the guilt of the applicant by the learned counsel for the applicant, as recorded in Para-3 of the order that day as reproduced above, such a direction or order could be included in the definition of serving any other purpose, which purpose would be to punish the guilty of an offence, which he is more or less admitting through his counsel.
18. It was held in the case of State of Orissa v. Madangopal Rungta, (1952) SCR 28 (33): AIR 1952 SC 12, and in Fertilizer Corporation Kamgar Union vs. Union of India, AIR 1981 SC 344: (1981) 1 SCC 658 that the words for any other purpose at the end of Article 226 make the jurisdiction of the High Court to issue writs more extensive than that even of the Honble Supreme Court, inasmuch as these words for any other purpose are absent from Article 32, and the Supreme Court may have had the power for issuing writs for any other purpose only if such power had been conferred by the framers of the Constitution to be included under Articles 32 (2) and 139. Therefore, it was held by the Honble Apex Court that Article 226 confers upon the High Courts even more vast powers to issue writs of any kind for for any other purpose also.
19. Such for any other purpose can certainly include enhancement of punishment of an employee, when the acceptance of guilt is accompanied, which acceptance of guilt had not been made earlier before the Disciplinary and Appellate Authorities, and the findings under the powers of this Tribunal parallel to Article 226 can, therefore, extend to enhancement of punishment also, to serve such any other purpose in the interest of maintenance of discipline in a disciplined force like the Delhi Police.
20. As regards the contention and arguments of the learned counsel for the applicant that in exercise of powers of judicial review, the Coordinate Bench could not have on 03.01.2012 exercised its discretion to decide to issue notice to the applicant as well, as to why, if the finding as arrived at by the authorities is that the applicant has himself indulged in illegal activities, the punishment should not be enhanced, we may note certain decisions of the Honble Apex Court in this context. As long back as in 1960, in the case of Dwarka Nath vs. Income-Tax officer, Special Circle, D Ward, Kanpur and Another: AIR 1966 SC 81, the Honble Apex Court had held as follows:-
This article is couched in comprehensive phraseology and it ex facie confers a wide power on the High Court to reach injustice wherever it is found. The Constitution designedly used a wide language in describing the nature of the power, the purpose for which and the person or authority against whom it can be exercised. It can issue writs in the nature of prerogative writs as understood in England; but the scope of those writs also is widened by the use of the expression "nature", for the said expression does not equate the writs that can be issued in India with those in England, but only draws an analogy from them. That apart, High Courts can also issue directions orders or writs other than the prerogative writs. It enables the High Courts to mould the reliefs to meet the peculiar and complicated requirements of this country. Any attempt to equate the scope of the power of the High Court under Art. 226 of the Constitution with that of the English Courts to issue prerogative writs is to introduce the unnecessary procedural restrictions grown over the years in a comparatively small country like England with a unitary form of Government to a vast country like India functioning under a federal structure. Such a construction defeats the purpose of the article itself.. (Emphasis supplied)
21. Thereafter in the year 1961 in the case of P.J. Irani vs. State of Madras and Another AIR 1961 SC 1731, it was held as follows:-
14..We do not consider that immunity from interference by the Courts could be sought for orders which are plainly ultra vires merely because they were passed bona fide in the sense of being without indirect motive. Particularly so when the power of the High Court under Art. 226 of the Constitution is not limited to the issue of writs falling under particular groupings, such as the certiorari, mandamus, etc., as these writs have been understood in England, but the power is general to issue any direction to the authorities, viz., for enforcement of fundamental rights as well for other purposes.
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21. The further point urged regarding the learned Judges of the High Court having erroneously constituted themselves into a Court of appeal need not detain us long. The short answer to it is that the learned Judges had not done so. The submission ignores the distinction between findings on facts which the Court in proceedings under Art. 226 must, save in very exceptional cases, accept as correct and the relevance of those facts for considering whether their establishment satisfied the grounds necessary for the exercise of the power vested in Government under S. 13 of the Act. For instance in the case on hand, no fact found by the Government or stated by them as the reason or reasons which induced them to grant the exemption were even challenged before the High Court, the only contention urged by the second respondent which was accepted by the High Court, being that these facts were irrelevant for justifying the order.
(Emphasis supplied).
22. Thereafter in the year 1979 in the case of State of Kerala vs. Kumari T.P. Roshana and Others AIR 1979 SC 765 Honble Mr. Justice V.R. Krishna Iyer laid down the law as follows:-
12. An incisive study of the exercise of the writ power in India may reveal that it limits its actions by quashing or nullifying orders proceeding on a violation of law, but stops short of a reconstruction whereby a valid scheme may replace a void project. This is symptomatic of an obsolescent aspect of the judicial process, its remedial shortcomings in practice and the need to innovate the means, to widen the base and to organise the reliefs so that the Court actualises social justice even as it inhibits injustice.
13. This community perspective of the justice system explains why the Court has resorted to certain unusual directions and has shaped the ultimate complex of orders in these proceedings in a self-acting package. Chronic social disability cannot be amenable to instant administrative surgery and law shall not bury its head, ostrich fashion, in the sands of fiction and assume equality where the opposite is the reality.
14. The rule of law runs close to the rule of life and where social life, as between one part of the State and another, is the victim of die-hard disparties, the constitutional mandate of equal justice under the law responds to it pragmatically and permits classification geared to eventual equalisation.
15. The writ of this Court binds the parties on record who must abide by the directions issued necessitated by the exigency of the situation and the need to do justice.
16. The court system belongs to the people and must promote constructive justice; and all institutions, including the Governments and Universities, likewise belong to the people. This commitment is the whet-stone for doing justice in the wider context of social good.
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33. Here comes the play of processual realism in moulding the relief in the given milieu. The rule of law should not petrify life or be inflexibly mulish. It is tempered by experience, mellowed by principled compromise, informed by the anxiety to avoid injustice and softens the blow within the marginal limits of legality. That is the karuna of the law.
34. Nor is law unimaginative, especially in the writ jurisdiction where responsible justice is the goal. The court cannot adopt a rigid attitude of negativity and sit back after striking down the scheme of Government, leaving it to the helpless Government caught in a crisis to make-do as best as it may, or throwing the situation open to agitational chaos to find a solution by demonstrations in the streets and worse. We are, therefore, unable to stop with merely declaring that the scheme of admission accepted by Government is ultra vires and granting the relief to the petitioner of admission to medical college. The need for controlling its repercussions calls for judicial response. After all, law is not a brooding omnipresence in the sky but an operational art in society.
35 to 37.xxxxxxxxxxxxx(Not reproduced here) 38We need hardly say that the writ of this Court binds the parties on record and all the three bodies are before us and must abide by the directions we issue necessitated by the exigency of the situation and the need to do justice.
39. After all, the Court system belongs to the people and must promote constructive justice; and all institutions, including the Governments and Universities, likewise belong to the people. This commitment is the whetstone for doing justice in the wider context of social good
40. Had we left the judgment of the High Court in the conventional form of merely quashing the formula of admission the remedy would have aggravated the malady - confusion, agitation, paralysis. The root of the grievance and the fruit of the wit are not individual but collective and while the 'adversary system' makes the judge a mere umpire, traditionally speaking, the community orientation of the judicial function, so desirable in the Third World remedial jurisprudence, transforms the court's power into affirmative structuring of redress so as to make it personally meaningful and socially relevant. Frustration of invalidity is part of the judicial duty; fulfillment of legality is complementary (Emphasis supplied).
23. In the case of State of U.P. and Another vs. Johri Mal: AIR 2004 SC 3800=(2004) 4 SCC 714 while discussing the aspect of judicial review, the Honble Apex Court had laid down the law as follows:-
28. The scope and extent of power of the judicial review of the High Court contained in Article 226 of the Constitution of India would vary from case to case, the nature of the order, the relevant statute as also the other relevant factors including the nature of power exercised by the public authorities, namely, whether the power is statutory, quasi judicial or administrative. The power of judicial review is not intended to assume a supervisory role or done the robes of om-nipresent. The power is not intended either to review governance under the rule of law nor do the Courts step into the areas exclu-sively reserved by the supreme lex to the other organs of the State. Decisions and actions which do not have adjudicative dis-position may not strictly fall for considera-tion before a judicial review Court. The lim-ited scope of judicial review succinctly put are :
(i) Courts, while exercising the power of judicial review, do not sit in appeal over the decisions of administrative bodies.
(ii) A petition for a judicial review would lie only on certain well-defined grounds.
(iii) An order passed by an administra-tive authority exercising discretion vested in it, cannot be interfered in judicial review unless it is shown that exercise of discre-tion itself is perverse or illegal.
(iv) A mere wrong decision without any-thing more is not enough to attract the power of judicial review; the supervisory jurisdic-tion conferred on a Court is limited to see-ing that Tribunal functions within the lim-its of its authority and that its decisions do not occasions miscarriage of justice.
(v) The Courts cannot be called upon to undertake the Government duties and func-tions. The Court shall not ordinarily interfere with a policy decision of the State. So-cial and economic belief of a Judge should not be invoked as a substitute for the judg-ment of the legislative bodies. (See Ira Munn v. State of Ellinois, 1876 (94) US (Supreme Reports) 113).
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30. It is well-settled that while exercis-ing the power of judicial review the Court is more Concerned with the decision making process than the merit of the decision itself. In doing so, it is often argued by the de-fender of an impugned decision that the Court is not competent to exercise its power when there are serious disputed questions of facts; when the decision of the Tribunal or the decision of the fact finding body or the arbitrator is given finality by the statute which governs a given situation or which, by nature of the activity the decision mak-er's opinion on facts is final. But while ex-amining and scrutinizing the decision mak-ing process it becomes inevitable to also appreciate the facts of a given case as oth-erwise the decision cannot be tested under the grounds of illegality, irrationality or pro-cedural impropriety. How far the Court of judicial review can reappreciate the findings of facts depends on the ground of judicial review. For example, if a decision is chal-lenged as irrational, it would be well-nigh impossible to record a finding whether a decision is rational or irrational without first evaluating the facts of the case and coming to a plausible conclusion and then testing the decision of the authority on the touch-stone of the tests laid down by the Court with special reference to a given case. This position is well settled in Indian Adminis-trative Law. Therefore, to a limited extent of scrutinizing the decision making process, it is always open to the Court to review the evaluation of facts by the decision maker.
(Emphasis supplied).
24. In the case of Chairman, All India Railway Rec. Board & Anr. vs. K. Shyam Kumar & Ors. (2010) 6 SCC 614, the Honble Apex Court allowed the Courts (& Tribunals) to enter into the realm of facts also, on the newly adopted doctrine of proportionality, which is slowly replacing the touchstone of Wednesbury Principles, and held as follows:-
Wednesbury and Proportionality -
36. Wednesbury applies to a decision which is so reprehensible in its defiance of logic or of accepted moral or ethical standards that no sensible person who had applied his mind to the issue to be decided could have arrived at it. Proportionality as a legal test is capable of being more precise and fastidious than a reasonableness test as well as requiring a more intrusive review of a decision made by a public authority which requires the courts to `assess the balance or equation' struck by the decision maker. Proportionality test in some jurisdictions is also described as the "least injurious means" or "minimal impairment" test so as to safeguard fundamental rights of citizens and to ensure a fair balance between individual rights and public interest. Suffice to say that there has been an overlapping of all these tests in its content and structure, it is difficult to compartmentalize or lay down a straight jacket formula and to say that Wednesbury has met with its death knell is too tall a statement. Let us, however, recognize the fact that the current trend seems to favour proportionality test but Wednesbury has not met with its judicial burial and a state burial, with full honours is surely not to happen in the near future.
37. Proportionality, requires the Court to judge whether action taken was really needed as well as whether it was within the range of courses of action which could reasonably be followed. Proportionality is more concerned with the aims and intention of the decision-maker and whether the decision- maker has achieved more or less the correct balance or equilibrium. Courts entrusted with the task of judicial review has to examine whether decision taken by the authority is proportionate, i.e. well balanced and harmonious, to this extent court may indulge in a merit review and if the court finds that the decision is proportionate, it seldom interferes with the decision taken and if it finds that the decision is disproportionate i.e. if the court feels that it is not well balanced or harmonious and does not stand to reason it may tend to interfere.
38. Leyland and Anthony on Textbook on Administrative Law (5th edn. OUP, 2005) at p.331 has amply put as follows:
"Proportionality works on the assumption that administrative action ought not to go beyond what is necessary to achieve its desired results (in every day terms, that you should not use a sledgehammer to crack a nut) and in contrast to irrationality is often understood to bring the courts much closer to reviewing the merits of a decision".
39. Courts have to develop an indefeasible and principled approach to proportionality till that is done there will always be an overlapping between the traditional grounds of review and the principle of proportionality and the cases would continue to be decided in the same manner whichever principle is adopted. Proportionality as the word indicates has reference to variables or comparison, it enables the Court to apply the principle with various degrees of intensity and offers a potentially deeper inquiry into the reasons, projected by the decision maker.
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45. We are of the view that the decision maker can always rely upon subsequent materials to support the decision already taken when larger public interest is involved. This Court in Madhyamic Shiksha Mandal, M.P. v. Abhilash Shiksha Prasar Samiti and Others, (1998) 9 SCC 236 found no irregularity in placing reliance on a subsequent report to sustain the cancellation of the examination conducted where there were serious allegations of mass copying. The principle laid down in Mohinder Singh Gill's case is not applicable where larger public interest is involved and in such situations, additional grounds can be looked into to examine the validity of an order. Finding recorded by the High Court that the report of the CBI cannot be looked into to examine the validity of order dated 04.06.2004, cannot be sustained.
(Emphasis supplied).
25. Therefore, the vehement arguments, and the contention of the learned counsel for the applicant that such an order, as was passed by the Coordinate Bench in Para-4 on 03.01.2012 could not have been passed at all is rejected outright, and it is reiterated that when the Coordinate Bench had noted the admission of guilt on the part of the applicant by his counsel in Para-3 of its order of that date, it was not necessary for the Bench, in exercise of the powers parallel to the powers of the Honble High Courts under Article 226, to necessarily direct for the full departmental enquiry proceedings to be conducted by the departmental authorities for imposition of any enhanced penalty, as was felt necessary by the Bench that date.
26. However, in Union of India & Another vs. Bilash Chand Jain & Another (2009) 16 SCC 601, the Honble Apex Court had held as follows:-
6. A perusal of the judgment of the learned Single Judge shows that the learned Single Judge has, while allowing the writ petition, directed the Ministry of External Affairs, Union of India to give consent under Section 86(3), C.P.C for executing the decree. That judgment has been upheld by the Division Bench of the High Court.
7. We are of the considered opinion that even if the High Court was of the view that the order of the Central Government dated 23.03.1992 refusing to give consent to execute the decree was arbitrary or illegal, at most what the High Court could have done was that it could have remanded the matter to the Ministry of External Affairs, Union of India to reconsider the matter in accordance with law instead of itself directing the Central Government to give consent under Section 86(3), C.P.C.
8. It may be mentioned that there is a distinction between 'judicial review' and the 'appellate jurisdiction'. The High Court in a writ petition when examining an administrative order is not exercising the appellate power but exercising the power of judicial review which is much narrower than the appellate power. Such judicial review can only be exercised on Wednesbury principles.
9. It is well settled by a series of decisions of this Court that the High Court cannot itself perform the functions of a statutory authority. Thus in G. Veerappa Pillai vs. Raman and Raman Ltd. & Ors. AIR 1952 SC 192 it was held that the High Court under Article 226 of the Constitution of India cannot direct the Regional Transport Authority to grant bus permits as the grant of the permit is entirely within the discretion of the Regional Transport Authority. Of course, if the Regional Transport Authority rejects the application for grant-of permits arbitrarily or illegally the High Court can set aside the order of the Regional Transport Authority and direct the Regional Transport Authority to pass a fresh order in accordance with law, but the High Court cannot itself order grant of permits, in that case it will be taking over the function of the Regional Transport Authority.
10. In Muni Suvrat Swami Jain S.M.P. Sangh vs. Arun Nathuram Gaikwad & Ors. AIR 2007 SC 38, this Court held that the power under Section 351 of the Mumbai Municipal Corporation Act to order demolition of unauthorized constructions has to be exercised only by the Municipal Commissioner, and it cannot be exercised by the High Court. In State of Madhya Pradesh vs. Srikant Chaphekar (1992) 4 SCC 689, this Court held that the Madhya Pradesh Administrative Tribunal cannot substitute itself for the Departmental Promotion Committee in deciding the matter of promotion. The Tribunal could have only directed that the matter be reconsidered by the Department Promotion Committee in accordance with the law if it was of the view that the Department Promotion Committee had not decided the matter regarding promotion legally, but the Tribunal could not have itself decided the matter.
11. In State of U. P. & Anr. vs. Raja Ram Jaiswal & Anr. (1985) 3 SCC 130, this Court held that the High Court cannot issue a mandamus directing a statutory Licensing Authority to grant a licence.
12. In U.P. State Road Transport Corporation & Anr. vs. Mohd. Ismail & Ors. (1991) 3 SCC 239, this Court held that the Court cannot dictate the decision of the Statutory Authority, and cannot direct the Statutory Authority to exercise its discretion in a particular manner not expressly required by law. The Court can only command the Statutory Authority to perform its duty by exercising its duty in accordance with law.
(Emphasis supplied).
27. Also, while deciding the case in Pradeep Kumar vs. Union of India and Others [2005] 12 SCC 219, the Honble Apex Court had held as follows:-
3. According to the appellant, similar punishment was inflicted on the other two employees. Being aggrieved, all three employees filed separate writ petitions before the High Court. The writ petitions of the other two employees were merely dismissed as withdrawn. As far as the appellant was concerned, the High Court not only dismissed the writ petition but also directed the punishing authority to reconsider the punishment imposed in view of the observations of the High Court and held that the maximum penalty of dismissal from service ought to have been accorded. There was a further direction that the action taken against the appellant should be intimated to the Court as soon as possible.
4. Irrespective of the crime/offence with which the appellant may have been charged, it was not open to the High Court to have issued such a direction. The scope of judicial review did not p1ow the High Court to have interfered with the punishment imposed by the disciplinary authorities on the appellant. Besides, a writ petitioner cannot be put in a worse position by coming to court. The directions of the High Court are not sustainable and must be set aside. We are told by the learned counsel for the appellant that the respondent authority pursuant to the directions issued by the High Court initiated proceedings against the appellant for the purpose of imposing the penalty of dismissal from service. We have held that the direction of the High Court was wholly outside its jurisdiction. The appeals are thus allowed and the High Court's directions are set aside. The disciplinary enquiry initiated on the basis of the High Court's order is consequently also quashed. However, the writ petitions will stand dismissed. There is no order as to costs.
(Emphasis supplied).
28. In view of this, while holding on the one hand that if the appreciation of facts on the part of the Disciplinary and Appellate Authorities concerned was erroneous, as held in the State of U.P. and Another vs. Johri Mal (supra) and several other cases and in Nobel Resources Ltd. vs. State of Orissa, (2006) 10 SCC 236, to a limited extent, while scrutinizing the decision making process, it is always open to the Court to review even an evaluation of the facts by the decision maker authorities, which had been sought to be done by the Coordinate Bench while passing its order on 03.01.2012, we also have to go by the ratio and the spirit of the Honble Apex Court judgments in Bilash Chand Jain (supra) and Pradeep Kumar (supra).
29. In this case the Tribunal has not, thereafter, followed up the earlier judicial orders passed on 03.01.2012, issuing such a notice to the applicant, and has not pressed so far for implementation of the judicial orders passed in Para-4 of the order dated 03.01.2012 for more than two years since that date. That, combined with the fact that the official respondents themselves appear to be quite content that the procedure that they had followed for imposition of a minor penalty of Censure upon the applicant, which penalty had been confirmed up to the appellate stage, and, thereafter, a further period of more than two years has passed without giving effect to the judicial orders passed on 03.01.2012, and because the applicant has not availed of an opportunity to reply to the notice after its being issued on 03.01.2012, in an act of benevolence, even though we find nothing wrong and against the law in the orders of the Coordinate Bench passed on 03.01.2012, because of the delay thereafter in the Tribunal itself in not pressing ahead for implementation of those orders, we deem it appropriate to now not press with the legal consequences of the issuance of such a notice upon the applicant, as was directed by the Coordinate Bench on 03.01.2012. The passage of time, and the omission of not pursuing the consequential technical requirements, and the observations and the ratio laid down by the Honble Apex Court in Bilash Chand Jain (supra) and Pradeep Kumar (supra), thus, come to the rescue of the applicant.
30. In so far as the other contents of his OA are concerned, the aspect of guilt of the applicant not having supervised his subordinate properly had been admitted before the Bench by the learned counsel for the applicant on 03.01.2012 itself, as recorded in Para-3 of the order dictated that date. Also, the respondents have fully complied with all procedural aspects in imposing the penalty of Censure upon the applicant, and have even considered his appeal, even though it was delayed by nearly 4 years, and have not rejected it on the ground of delay, but have considered all his contentions. The Appellate Authority has given him an oral hearing also in the Orderly Room before upholding the order of punishment as passed by the Disciplinary Authority.
31. Therefore, we refuse to interfere with the orders regarding the settled and admitted quantum of guilt, which has been held to be proved by the Respondent-Disciplinary and Appellate Authorities also, and the OA, therefore, fails, but there shall be no order as to costs.
(A.K. Bhardwaj) (Sudhir Kumar) Member (J) Member (A) cc.