Allahabad High Court
State Of U.P. Through Secy. {Now ... vs Radhey Shyam Dixit on 14 November, 2019
Bench: Anil Kumar, Saurabh Lavania
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
Court No. - 3
Case :- SERVICE SINGLE No. - 3198 of 1997
Petitioner :- State Of U.P. Through Secy. {Now Division}
Respondent :- Radhey Shyam Dixit
Counsel for Petitioner :- Standing Counsel
Counsel for Respondent :- C.S.C.,K.S.Bishat
Hon'ble Anil Kumar,J.
Hon'ble Saurabh Lavania,J.
Heard learned Counsel for the petitioner and learned Counsel for the respondent.
The present petition has been filed for the following main reliefs:-
"(i) to issue a writ, order or direction in the nature of Certiorari quashing the judgment and order dated 06.09.1996, passed by the State Public Services Tribunal, Lucknow, in Claim Petition No. 84/F/IV/92 (Radhey Shyam Dixit Vs. State of U.P. and Others) contained in Annexure No. 1 to the writ petition;
(ii) to issue a writ, order or direction in the nature of Mandamus declaring that the order contained in Annexures No. 7, 11, 18, and 27 to the claim petition, are valid and existing order;"
Brief facts of the case are that censure entry was awarded vide order dated 30.08.1998 to the claimant/respondent-Radhey Shayam Dixit, who was Sales Tax Officer in the Sales Tax Department, and aggrieved by the order dated 30.08.1989, the respondent/claimant preferred a representation before the Secretary, Institutional Finance Department, Civil Secretariat, U.P., Lucknow, and the said representation was rejected by the authority concerned vide order dated 31.5.1991. The claimant/respondent was also awarded another adverse entry the claimant-respondent vide order dated 25.7.1987 and against the said adverse entry respondent preferred a representation before the Secretary, Institutional Finance Department, Civil Secretariat, U.P., Lucknow, and the same was also rejected the State Government vide order dated 03.08.1990. The claimant/respondent was also awarded adverse entry vide order dated 16.12.1991 and against the said adverse entry claimant-respondent preferred a representation before the Secretary, Institutional Finance Department, Civil Secretariat, U.P., Lucknow, and the same was also rejected by the State Government vide its order dated 29.10.1994. Vide order dated 10.3.1989, selection grade in the scale of Rs. 1300-1900/- was granted to the persons junior to the claimant-respondent. Aggrieved by the censure entries/adverse entries and denial of selection grade of Rs. 1300-1900, the claimant-respondent preferred a Claim Petition No. 84/F/IV/92 (Radhey Shyam Dixit Vs. State of U.P. and Others). The main relief sought in the claim petition reads as under:-
"(i) That the censure entry dated 30th August, 1989 (Annexure-7) and the censure entry for the year 1985-86 (Anneuxre-11), together with adverse entry for the year 1990-91 (Annexure-18) be quashed being wholly arbitrary, illegal and violative of the guidelines laid down by Government and the Sales Tax Department in particular, with consequential benefit of grant of Selection Grade of Rs. 1300-1900, with effect from the same date from which it was sanctioned to his juniors (Annexure-16)."
The Tribunal after hearing the parties, on 06.09.1996 has allowed the claim petition of the respondent/claimant. The relevant portion of the order dated 06.09.1996 reads as under:-
"8. The first entry which has been challenged by the petitioner is annexure-7 dated 30.8.89. The entry annexure-7 shows that the petitioner was directed while conducting the enquiry against M/s India Film Lucknow that he should inspected the Bank record and also the record of government department, but the petitioner could not obtain the copies of the Bank Accounts nor the records from the government department. It is also alleged that an explanation was also called from the petitioner, which was not found satisfactory. The petitioner was issued a show cause notice before awarding the censure entry annexure-7. The petitioner alleged in para 14 of the claim petition that the information sought pertained to the year 1981-82. The petitioner had deputed one officer exclusively for collecting the information. The petitioner could not take-out the record of the bank and get the information sorted-out himself or through his subordinate. It was only the bank people, who could take-out the records and then, they could furnish the requisite information to the petitioner. The blame cannot, therefore, be put on the petitioner for the delay in the matter, that his successor also could not do anything. The contention of the petitioner appears to be correct. The petitioner had no control over the bank employees and also on other department. He could only make request before them for furnishing the requisite information and if the Bank Authorities and other department did not furnish the said information despite the efforts of the petitioner, the petitioner cannot be held responsible for the same. The representation of the petitioner was rejected by annexure-10 dated 31.5.1991. The petitioner has not challenged in the claim petition annexure-10. But since annexure-10 is the out come of annexure-7, so, in case annexure-7 is quashed, the order annexure-10 shall automatically become infructuous. The petitioner in para 15 of the claim petition alleged that he had also informed the Dy. Commissioner, Sales Tax (Executive), Lucknow Range, Lucknow about the fact that the bank was not co-operating on account of non-availability of the old records in the bank and that the Deputy Commissioner, Sales Tax (Executive), Lucknow could not do anything in the matter. This fact stood uncontroverted in the counter-affidavit. Under these circumstances, the petitioner cannot be held guilty, in case, he could not produce the records which were under the exclusive control of the Bank. The censure entry annexure-7 is, therefore, liable to be quashed.
9. By annexure-11 the petitioner was again censured. This entry was also awarded after calling an explanation from the petitioner, but no reasons have been assigned in it as to why the explanation of the petitioner was found unsatisfactory. The petitioner has been censured for reasons that a Muria Clerk was not deputed by the petitioner to the headquarters to co-operate in sorting out records despite the letters of the headquarters dated 25.02.87, 18.3.87 and 8.4.87. The petitioner in para 17 of the claim petition alleged that the seized records were written in Muria script and there was only one clerk knowing Muria script. The petitioner had deputed his head clerk to the headquarters for copying-out the aforesaid documents written in Muria script in Hindi. The petitioner also alleged that the copying work was to be done strictly in the presence of the Sales Tax Officer, Mobile Squad, Special Investigation Branch, Headquarters, Lucknow, under whose custody, the records were kept for security reasons. The Sales Tax Officer, Mobile Squad, Special Investigation Branch, Headquarters, Lucknow was not available. The Head Clerk who knew Muria language could do nothing at the headquarters. These facts have not been controverted by the opposite parties in the C.A. The Sales Tax Officer, Mobile Squad, Special Investigation Branch, Headquarters, Lucknow under whose personal custody the records were, should have been directed by the Headquarter to make available the files written in Muria script to the head clerk. The Headquarter should have directed the Sales Tax Officer, Mobile Squad, Special Investigation Branch, Lucknow not to leave the office without getting the work done. The petitioner could not direct the officer of his rank to be available at the headquarters. The head clerk who knew Muria script should have remained at the headquarters till the availability of the Sales Tax Officer, Mobile Squad. Thus, the petitioner has been awarded censure entry for an act for which he is not responsible.
10. By annexure-18, the petitioner was awarded an adverse entry for the period 8.5.90 to 31.3.91. The reporting officer had categorized the petitioner as bad. The reviewing and accepting authority had also categorized the petitioner as bad. The representation against the aforesaid adverse entry was rejected by annexure-27. Annexure-27 says that the representation of the petitioner has been rejected after due consideration. There is a government G.O. no. 36/1/197-Karmik-2 dated 9.11.87 which provides that information regarding the rejection of representation should be given alognwith reasons and that the order rejecting the representation should be a speaking order." It has been held in 1989 S.C.D. page 137, the State of U.P. and others Vs. Rajendra Kumar Srivastava by the Hon'ble Allahabad High Court (Lucknow Bench) that the order rejecting the representation by a non-speaking order and without indicating the application of mind to the contents of the representation would be illegal and deserves to be quashed. Thus, annexure-27 is a non-speaking order.
11. The petitioner has filed annexure R.A.-1 dated 6.5.94 which shows that the petitioner has been granted selection grade of Rs. 1300-1900/- w.e.f. the due date i.e. 26.6.88. It has been held in 1983 U.P. Service Cases page 34, Dr. Girish Behari Vs. State of U.P. and others by the Hon'ble Allahabad High Court that if an officer is promoted even though, on adhoc basis and officiating basis, the adverse entries proceeding such promotion cannot be considered again at the time of his subsequent promotion. This Doctrine is applicable to the crossing of the efficiency bar as well as selection grade and promotion and not only the compulsory retirement. The adverse entries lose their value after the petitioner's promotion to selection grade. On account of the granting of the selection grade with retrospective effect by order dated 6.5.94, the adverse entry for the year 1990-91 annexure-18 stand washed-out and has lost its sting. It is now a matter of past history only, which cannot be taken into consideration subsequently as held in the rulings quoted above. Annexure-27 is a non-speaking order and is therefore, illegal."
Challenging the order dated 06.09.1996, passed by the Tribunal the present petition has been filed by the petitioners.
Learned Counsel for the petitioner-State submitted that the Tribunal erred in law and facts by applying the Principles of law relating to promotion in present matter which relates censure and adverse entries and grant of selection grade. The Tribunal wrongly appreciated the facts of the case while passing the order dated 06.09.1996. The censure and adverse entries were rightly awarded and despite of the same Tribunal interfered in the same. The order dated 06.09.1996 passed by the Tribunal, is totally illegal and arbitrary. Prayer is to allow the writ petition.
Learned counsel for the claimant/respondent submitted that while allowing the claim petition the Tribunal, in relation to entries in the service record of the petitioner, which were challenged before the Tribunal, after appreciating the facts on record recorded findings in favour of claimant/respondent and thereafter interfered in the entries and Tribunal also considered the fact that the selection grade was allowed vide order dated 06.05.1994 w.e.f. order dated i.e. 26.06.1998. Further submitted that effect of grant of selection grade with w.e.f. due date is that the earlier adverse entires lost their impact. The order of Tribunal is fit and proper and is not liable to be interfered.
We have heard learned counsel for the parties and gone through the record.
We find from the record that observations/findings, quoted above, given by Tribunal in the judgment and order dated 06.09.1996, under challenged that the Tribunal recorded the findings after scrutinizing the facts of the case and the findings on facts are based on material available on record. The findings on facts given by the Tribunal cannot be said to be perverse.
The aforesaid is in view of the following reasons:-
(a) With regard to censure entry dated 30.08.1989, related to obtaining the copies of bank account i.e. Annexure no.7 to the claim petition, the Tribunal observed as under:-
"The petitioner had no control over the bank employees and also on other department. He could only make request before them for furnishing the requisite information and if the Bank Authorities and other department did not furnish the said information despite the efforts of the petitioner, the petitioner cannot be held responsible for the same. The representation of the petitioner was rejected by annexure-10 dated 31.5.1991. The petitioner has not challenged in the claim petition annexure-10. But since annexure-10 is the out come of annexure-7, so, in case annexure-7 is quashed, the order annexure-10 shall automatically become infructuous. The petitioner in para 15 of the claim petition alleged that he had also informed the Dy. Commissioner, Sales Tax (Executive), Lucknow Range, Lucknow about the fact that the bank was not co-operating on account of non-availability of the old records in the bank and that the Deputy Commissioner, Sales Tax (Executive), Lucknow could not do anything in the matter. This fact stood uncontroverted in the counter-affidavit. Under these circumstances, the petitioner cannot be held guilty, in case, he could not produce the records which were under the exclusive control of the Bank. The censure entry annexure-7 is, therefore, liable to be quashed."
(b) With regard to censure entry related to not deputing "Muria Clerk" to headquarter to cooperate in sorting out the record, the Tribunal observed as under:-
"The petitioner had deputed his head clerk to the headquarters for copying-out the aforesaid documents written in Muria script in Hindi. The petitioner also alleged that the copying work was to be done strictly in the presence of the Sales Tax Officer, Mobile Squad, Special Investigation Branch, Headquarters, Lucknow, under whose custody, the records were kept for security reasons. The Sales Tax Officer, Mobile Squad, Special Investigation Branch, Headquarters, Lucknow was not available. The Head Clerk who knew Muria language could do nothing at the headquarters. These facts have not been controverted by the opposite parties in the C.A. The Sales Tax Officer, Mobile Squad, Special Investigation Branch, Headquarters, Lucknow under whose personal custody the records were, should have been directed by the Headquarter to make available the files written in Muria script to the head clerk. The Headquarter should have directed the Sales Tax Officer, Mobile Squad, Special Investigation Branch, Lucknow not to leave the office without getting the work done. The petitioner could not direct the officer of his rank to be available at the headquarters. The head clerk who knew Muria script should have remained at the headquarters till the availability of the Sales Tax Officer, Mobile Squad. Thus, the petitioner has been awarded censure entry for an act for which he is not responsible."
(c) With regard to adverse entry for the period 08.05.1991 to 31.03.1991, the Tribunal observed as under:-
"There is a government G.O. no.36/1/197-Karmik-2 dated 9.11.87 which provides that information regarding the rejection of representation should be given alognwith reasons and that the order rejecting the representation should be a speaking order." It has been held in 1989 S.C.D. page 137, the State of U.P. and others Vs. Rajendra Kumar Srivastava by the Hon'ble Allahabad High Court (Lucknow Bench) that the order rejecting the representation by a non-speaking order and without indicating the application of mind to the contents of the representation would be illegal and deserves to be quashed. Thus, annexure-27 is a non-speaking order."
(d) The Tribunal after taking note of order dated 06.05.1994, whereby the selection grade was given w.e.f. due date to the claimant/respondent observed as under:-
"It has been held in 1983 U.P. Service Cases page 34, Dr. Girish Behari Vs. State of U.P. and others by the Hon'ble Allahabad High Court that if an officer is promoted even though, on adhoc basis and officiating basis, the adverse entries proceeding such promotion cannot be considered again at the time of his subsequent promotion. This Doctrine is applicable to the crossing of the efficiency bar as well as selection grade and promotion and not only the compulsory retirement. The adverse entries lose their value after the petitioner's promotion to selection grade. On account of the granting of the selection grade with retrospective effect by order dated 6.5.94, the adverse entry for the year 1990-91 annexure-18 stand washed-out and has lost its sting. It is now a matter of past history only, which cannot be taken into consideration subsequently as held in the rulings quoted above."
While exercising the power of judicial review under Article 226 of the Constitution of India, the Courts should take note of the settled principles.
It is settled that the scope of interference of the High Court to issue writ of Certiorari sitting under Article 226 of the Constitution of India is very limited as has been discussed by the Hon‟ble Supreme Court in the catena of decisions, few of them are being discussed. Reference in this regard may be made to the judgment rendered by Hon‟ble Supreme Court by its Full Bench in the case of Syed Yakoob Vrs. K. S. Radhakrishnan and others reported in AIR 1964 SC 477 wherein at paragraph-7 their Lordships have been pleased to hold as follows:-
"7.The question about the limits of the jurisdiction of High Courts in issuing a writ of certiorari under Art. 226 has been frequently considered by this Court and the true legal position in that behalf is no longer in doubt. A writ of certiorari can be issued for correcting errors of jurisdiction committed by inferior courts or tribunals; these are cases where orders are passed by inferior courts or tribunals without jurisdiction, or in excess of it, or as a result of failure to exercise jurisdictions. A writ can similarly be issued where in exercise of jurisdiction conferred on it, the Court or Tribunal acts illegally or improperly, as for instance, it decides a question without giving an opportunity to be heard to the party affected by the order, or where the procedure adopted in dealing with the dispute is opposed to principles of natural justice. There is, however, no doubt that the jurisdiction to issue a writ of certiorari is a supervisory jurisdiction and the Court exercising it is not entitled to act as an appellate Court. This limitation necessarily means that findings of fact reached by the inferior Court or Tribunal as a result of the appreciation of evidence cannot be reopened or questioned in writ proceedings. An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of tact, however grave it may appear to be. In regard to a finding of fact recorded by the Tribunal, a writ of certiorari can be issued if it is shown that in recording the said finding, the. Tribunal had erroneously refused to admit admissible and material evidence, or had erroneously admitted inadmissible evidence which has influenced the impugned finding. Similarly, if a finding of fact is based on no evidence, that would be regarded as an error of law which can be corrected by a writ of certiorari. In dealing with this category of cases, however, we must always bear in mind that a finding of fact recorded by the Tribunal cannot be challenged in proceedings for a writ of certiorari on the ground that the relevant and material evidence adduced before the Tribunal was' insufficient or inadequate to sustain the impugned finding. The adequacy or sufficiency of evidence led on a point and the inference of fact to be drawn from the said finding are within the exclusive jurisdiction of the Tribunal, and the said points cannot be agitated before a writ court. It is within these limits that the jurisdiction conferred on the High Courts under Art. 226 to issue a writ of certiorari can be legitimately exercised."
We have also perused the judgment rendered by the Hon'ble Apex Court in the case of Swaran Singh and another vrs. State of Punjab and others reported in (1976) 2 SCC 868, their Lordships discussing the power of writ court under Article 226 for issuance of writ of Certiorari has been pleased to hold at para-12 and 13, that certiorari jurisdiction can be exercised only for correcting errors of jurisdiction committed by inferior courts or tribunals. A writ of certiorari can be issued only in the exercise of supervisory jurisdiction which is different from Appellate jurisdiction. The writ jurisdiction can extends only to cases where orders are passed by inferior courts or tribunals in excess of their jurisdiction or as a result of their refusal to exercise jurisdiction vested in them or they act illegally or improperly in the exercise of their jurisdiction causing grave miscarriage of justice. In regard to finding of fact recorded by an inferior tribunal, a writ of certiorari can be issued only if in recording such a finding, the tribunal has acted on evident which is legally inadmissible or has refused to admit admissible evidence or if the finding is not supported by any evidence at all, because in such cases the error amounts to an error of law, a pure error of fact, however grave, cannot be corrected by a writ.
In another judgment rendered by the Hon‟ble Apex Court in the case of Heinz India Private Limited and another Vs. State of Uttar Pradesh and others reported in (2012) 5 SCC 443, their Lordships has been pleased to hold at para-66 and 67, which is being quoted herein below:-
"66. That the Court dealing with the exercise of power of judicial review does not substitute its judgment for that of the legislature or executive or their agents as to matters within the province of either, and that the court does not supplant "the feel of the expert" by its own review, is also fairly well settled by the decisions of this Court. In all such cases judicial examination is confined to finding out whether the findings of fact have a reasonable on evidence and whether such findings are consistent with the laws of the land.
67. In Dharangadhra Chemical Works Ltd. vrs. State of Saurashtra reported in AIR 1957 SC 264, this Court held that decision of a tribunal on a question of fact which it has jurisdiction to determine is not liable to be questioned in proceedings under Article 226 of the Constitution unless it is shown to be totally unsupported by any evidence.
In the case of Thansingh Nathmal reported in AIR 1964 SC 1419, the Hon‟ble Supreme Court has been pleased to hold that the High Court does not generally determine questions which require an elaborate examination of evidence to establish the right to enforce for which the writ is claimed."
Yet in another judgment rendered by the Hon‟ble Apex Court in the case of M/s.Pepsico India Holding Pvt. Ltd. Vrs. Krishna Kant Pandey, (2015) 4 SCC 270 wherein their Lordships while discussing the scope of Article 226 and 227 of the Constitution of India in the matter of showing interference with the finding of the Tribunal has been pleased to hold after placing reliance upon the judgment rendered in the case of Chandavarkar Sita Ratna Rao Vs. Ashalata S. Guram, (1986) 4 SCC 447 as follows:
"17. In case of finding of facts, the court should not interfere in exercise of its jurisdiction under Article 227 of the Constitution. Reference may be made to the observations of his Court in Bathutmal Raichand Oswal v. Laxmibai R. Tarta where this Court observed that the High Court could not in the guise of exercising its jurisdiction under Article 227 convert itself into a court of appeal when the legislature has not conferred a right of appeal. The High Court was not competent to correct errors of facts by examining the evidence and reappreciating. Speaking for the Court, Bhagwati, J. as the learned Chief Justice then was, observed at p. 1301 of the report as follows: (SCC p. 864, para 7) "The special civil application preferred by the appellant was admittedly an application under Article 227 and it is, therefore, material only to consider the scope and ambit of the jurisdiction of the High Court under that article. Did the High Court have jurisdiction in an application underArticle 227 to disturb the findings of fact reached by the District Court? It is well settled by the decision of this Court in Waryam Singh v. Amarnath that the power of superintendence conferred by Article 227 is, as pointed out by Harries, C.J., in Dalmia Jain Airways v. Sukumar Mukherjee to be exercised most sparingly and only in appropriate cases in order to keep the subordinate courts within the bounds of their authority and not for correcting mere errors. This statement of law was quoted with approval in the subsequent decision of this Court in Nagendra Nath Bose v. Commr. of Hills Division and it was pointed out by Sinha, J., as he then was, speaking on behalf of the court in that case:
It is thus, clear that the powers of judicial interference under Article 227 of the Constitution with orders of judicial or quasi-
judicial nature, are not greater than the power under Article 226 of the Constitution. UnderArticle 226 the power of interference may extend to quashing an impugned order on the ground of a mistake apparent on the face of the record. But under Article 227 of the Constitution, the power of interference is limited to seeing that the tribunal functions within the limits of its authority."
Thus, it is settled that if there is any perversity or error apparent on the face of record or the order is without jurisdiction, the High Court may interfere with in exercising of power conferred under Article 226 of the Constitution of India, but according to our considered view, no such ground is available in this writ petition, hence this Court cannot be said as an appellate court to reverse the fact finding given by the Tribunal, which is based upon cogent reasoning depending upon the relevant fact brought before it and also the impugned order is under limits of its authority. In view thereof, the impugned order dated 06.09.1996 passed by the Tribunal does not warrant any interference by this Court.
Taking into consideration the findings given by Tribunal and settled principles on the scope of judicial review, we are of the considered opinion that the present writ petition lacks merit and is liable to be dismissed.
Resultantly, the writ petition is dismissed being devoid of merits. No order as to costs.
(Saurabh Lavania,J.) (Anil Kumar,J.) Order Date :- 14.11.2019 Jyoti/-