Delhi High Court
Devi Dass vs Union Of India (Uoi) And Ors. on 16 March, 2002
Author: S.B. Sinha
Bench: S.B. Sinha, A.K. Sikri
JUDGMENT S.B. Sinha, C.J.
1. Interpretation of Rule 15 vis-a-vis Rule 29 of Delhi Police (Punishment and Appeal) Rules, 1980 ( hereinafter referred to as 'the Rules') arises for consideration in this writ petition, which is directed against a judgment and order dated 15.11.2000 passed by the Central Administrative Tribunal, Principal Bench, New Delhi (hereinafter referred to as 'the Tribunal') in O.A. No. 2430 of 1998.
2. Before adverting to the question raised in this writ petition, the basis fact of the matter may be noticed.
3. The petitioner was appointed in Delhi Police as a Constable. On the ground of commission of a misconduct leading to the escape of order under-trial prisoner, a first information report (for short, 'FIR') was lodged and the petitioner was also suspended. A departmental proceedings had also been initiated in relation to the said escape of the under-trial prisoner.
4. It is alleged that a preliminary enquiry had been conducted in terms of Rule 15 of the said Rules. In the departmental proceedings, however, he was found guilty. The disciplinary authority sent a copy of the said report to the petitioner herein for filing a representation in relation thereto, but he did not file any representation, whereupon by an order dated 19.08.1997, he was removed from service. An appeal preferred by the petitioner thereagainst was also dismissed.
5. Aggrieved by the said order, the petitioner filed an original application before the learned Tribunal. Before the learned Tribunal, a contention was raised that it was incumbent upon the disciplinary authority to make a preliminary enquiry in terms of Rule 15 of the said Rules. The learned Tribunal, however, held that no preliminary enquiry was required to be initiated having regard to the fact the matter was covered by Rule 29 of the Rules. In the alternative, it was held that even if a preliminary enquiry had been conducted, a report thereof was not required to be served upon the delinquent. It was held:-
"The Rule lays down that file of preliminary /searching enquiry report shall not form part of the formal departmental record. The Rule merely permits statements forming part of the preliminary/searching enquiry report to be brought on record and that too when witnesses are no longer available. The provision thereafter proceeds to lay down that there shall be no bar to the enquiry officer bringing on record any other documents form the file of the preliminary/searching enquiry report, if the enquiry officer considers it necessary. This he could do after supplying copies to the delinquent officer. In our view, aforesaid provision, nowhere refers to the report of the preliminary/searching enquiry to be brought on record. On the contrary, if at all, the same bars bringing on record of the said report in the formal disciplinary proceedings conducted y disciplinary authority. The reason is apparent and it is not for us to see. The disciplinary authority is expected to arrive at his own independent conclusion based on the evidence adduced before him without in any manner being influenced by the report of preliminary /searching enquiry. Even if we were to accede to the contention of Sh. Shanker Raju that the aforesaid provision mandates the requirement of bringing on record the report of the preliminary /searching enquiry and further furnishing a copy thereof to the delinquent, the same will not vitiate the orders impugned in the present OAs.
6. Mr. Arun Bhardwaj, the leaned counsel appearing on behalf of the petitioner inter alia submitted that the learned Tribunal committed a serious error in passing the impugned order in so far as it failed to take into consideration that when the officer who held preliminary enquiry, was examined, it was incumbent upon the respondents to serve a copy of the report upon the delinquent officer.
7. The learned counsel would contend that the learned Tribunal misread and misconstrued the provisions of Rule 15 vis-a-vis Rule 29 of the said Rules. He would urge that the disciplinary authority failed to take into consideration the fact that the duty of the petitioner was not such, which would lead to the conclusion that he had any hand in the matter of escape of the under-trial prisoner.
8. The learned counsel would contend that in absence of any material having been brought on record, the disciplinary authority could not have passed the impugned order of removal from service without assigning any reason whatsoever.
9. The learned counsel would submit that the order passed by the disciplinary authority, which is judicial in nature, was required to be supported by reasons and as the orders impugned before the learned Tribunal were non-speaking one, the learned Tribunal erred in not setting aside the same.
10. The fact that on 23.08.1996, the petitioner was detailed for Gaddi Guard duty along with others and that they were performing the duty at Dhakla and receiving the under-trial prisoners, who were being produced in Courts, is not disputed. The duty of the petitioner was to search/frisk the prisoners and only such under-trial prisoners were required to be produced as was directed by the Court. Only one under-trial was required to be produced at a time. However, several under-trial prisoners were produced at one time including those in relation whereto there was no order of the Court. In the aforementioned situation, an under-trial prisoner who was produced managed to make good his escape.
11. The charges against the petitioner herein were in the following terms:-
"I, Jai Chand ACP/E.O. III Bn. DAP charge you HC Shardha Nand No. 1559/ SD (2022) DAP), Const. Badri Narain No. 902/ED (2724/DAP) and Const. Devi Dass Nol. 1433/SD (2223/DAP) that on 23-8-96, you were detailed at Gaddi Guard duty at Patiala House Court, New Delhi. After bringing the UTPs from Tihar Jail at N.D. Lock-up, you were performing duty at Dakhla and receiving the UTPs, who have been produced in the courts. You HC Shardha Nand were receiving the UTPs and recording entry in the Dakhla Register. You Constables Devi Dass and Badri Narain were detailed for searching /frisking and Mulakat duty at Dakhla. UTP Mohd. Saleem S/o Abdul Gaffar r/o Village & Post Biratuy, District 24 Paragana, West Bengal came out of the Dakhla behind UTP Shashi Shekar, who was being taken by Const. Badri Narain to Mulakat Kaksha for Mulakat under the order of the court. UTP Zakir Husain was also taken out of for Mulakat with Shashi Shekhar without any order of the court for ulterior motive. Third UTP Mohd. Saleem also came out of the Dakhla behind UTPs Shashi Shekhar and Zakir Husain. This UTP slipped /escaped from the gate after walking a few steps behind these UTPs. You Head Constable Shardha Nand were expected to discharge your duties with utmost alertness and to keep vigil over your subordinate staff (Const. Badri Narain and Const. Devi Dass) and escapee UTP Mohd. Saleem, but you failed to do so and exhibited gravest indiscipline."
The above act on your part (HC Shardha Nand, No. 1559/SD, (2022/DAP), Const. Badri Narain No. 902/ED (2724/DAP) and Const. Devi Dass No. 1433/ SD (2223/DAP) amounts to gross negligence, dereliction of duty, misconduct and indiscipline as UTP Mohd. Saleem escaped from you lawful custody, which renders you liable for Departmental punishment under provisions of Delhi Police Act, 1978.
(JAI CHAND)/ E.O. ASSTT. COMMISSIONER OF POLICE:
III BN. DAP, CENTRAL JAIL, TIHAR, NEW DELHI."
12. It is not in dispute that an enquiry was conducted. According to the petitioner, a preliminary enquiry was necessary to be made in terms of Rule 15 of the said Rules. Further contention of the petitioner is a, the requirement of Sub-rule (3) of Rule 15 of the said Rules had not been complied with, the entire proceedings must be held to be vitiated in law.
13. It is not in dispute that a departmental enquiry was held in terms of an order dated 04.10.1996 on the aforementioned charges. From a perusal of the report of the Enquiry Officer, it appears that copies of the documents and list of PWs along with their evidences against the delinquent employees had been served on 26.11.1996. The contents of the summary of allegations had been explained to them in Hindi and t hey admitted to have understood the same.
14. In the disciplinary proceedings, Constable Sukhpal (PW1); Inspector Ramesh Pal Singh (PW2); Constable Mahender Singh (PW3); Head Constable Rajender Kumar (PW4); Sub-Inspector Bani Singh (PW5) and Assistant Sub-Inspector Om Parkash (PW6) had been examined . The Enquiry Officer discussed the evidences of all those witnesses including their cross-examination. So far as PW1 is concerned, he was no cross-examined by the petitioner. PW2 was, however, cross-examined on behalf of the petitioner and the answers to the question, put to the said witness in cross-examination had been considered in details by the Enquiry Officer. PW3 stated in his deposition that he had not received any mulakat application of the said under-trial prisoner Mohd. Saleem, who had escaped, and the cross-examination of PW3 had again been considered in details by the Enquiry Officer. PW4, who spoke about the escape of Mohd. Saleem had also been cross-examined on behalf of the petitioner. PW5, who recorded the FIR, was not cross-examined on behalf of the petitioner. The delinquent officers also examined 5 defense witnesses, whose depositions have also been taken note of by the Enquiry Officer in detail. He inter alia held:-
"PW-3 Const. Mohender Singh No. 7954/ DAP has stated in chief and cross examination that no application of mulakat of UTP Salim was received by him from the court. During his mulakat duty on 23.8.96 UTP Zakir Hussain was brought by Const. Badri Narain in the mulakat kaksha for mulakat without any order of court and he refused to record entry in the mulakat register. HC Rajinder Kumar No. 2119/ DAP in his cross examination has stated that Const. Badri Narain was detailed on mulakat duty and Const. Devi Dass was detailed on dakhla gate for searching and frisking duty and food duty. HC Shardha Nand was performing dakhla duty and receiving UTP being I/C gaddi guar. DW2 Inspr. Ramesh Pal in his corss examination has stated that all the three defaulters are responsible for escape.
I have carefully scrutinized the prosecution evidence. defense evidence and defense statement adduced so far in the DE proceedings and all relevant documents in the DE file. The charge framed against constables Badri Narain No. 2724/ DAP, Devi Dass No. 2223/DAP and HC shardha Nand No. 2022 /DAP stands proved. However, HC Shardha Nand was busy in receiving the UTPs as many UTPs reached on his seat at a time being lunch time and as it was raining out side. There is no intentional negligence on his part but he cannot be absolved of the responsibility of supervision to keep vigil on his subordinate stall and UTPs."
15. The disciplinary authority agreed with the aforementioned findings of the Enquiry Officer and held:-
"I have carefully gone through the findings of the E.O. as well as written representations submitted by the defaulters. For the sake of natural justice and fairness the defaulters HC. Shardha Nand, No. 2022/DAP and Ct. Badri Narain Meena, No. 2724/DAP were also heard in O.R. as they had requested for personal hearing in their written representations. The defaulter HC Shardha nand, No. 2022/DAP----failed to exercise proper supervisory control over the defaulters Ct.Badri Narain Meena, No. 2724/DAP and Ct. Devi Dass, No. 2223/DAP and the E.O. had rightly held him responsible for lack of supervision and control over the staff working under him. Therefore, I, Naresh Kumar DCP/III Bn. DAP, Delhi taking into consideration all facts, do hereby order that two future increments of HC Shardha Nand, No.2022/ DAP are stopped with immediate and cumulative effect.
So far as the case of defaulters Cts. are concerned they have exhibited gravest misconduct/ indiscipline, carelessness and negligence in the discharge of their official duties which resulted into escape of UTP Mohd. Salim from their lawful custody. Had anyone of them been bit alert the UTP may not have been able to escape. The defaulters Cts. were expected to exercise utmost alertness and vigil over the UTP but they compromised all this and thereby exhibited gravest misconduct/ indiscipline and the UTP who was facing trial in many cases was allowed to escape. The charge is fully proved. This is severe indiscipline and misconduct which renders them absolutely unfit for retention in a sensitive organization like Delhi Police, therefore, Cts. Badri Narain Meena, No. 2724/DAP and Devi Dass, No. 2223/DAP are hereby removed from service with immediate effect. The suspension on period of the defaulter Cts. mentioned above is hereby created as 'NOT SPENT ON DUTY' (DIES-NON) for all intents and purposes."
16. The appellate authority in his impugned order dated 15.11.2000 held as under:-
"I have gone through the appeal and the relevant records and heard the appellant in O.R. The appellant stated that he was on searching /frisking duty at Dakila on 23.8.96. As UTOs returned from the court, he searched and placed them in the Dakhila. Necessary entries were being made by HC Shardha Nand, No. 2022/DAP in Dakhila register. Ex. Const. Badri Narain who was on mulakat duty was responsible for escape of UTP Mohd. Salim from the lock-up for which he was neither responsible nor aware how the escape occurred. In view of this position, he requested to quash the orders of the disciplinary authority and re-instate him in service.
When UTP Mohd. Salim escaped from Patiala House Court Lock-up, the appellant was on searching /frisking and food duty at Dakhila Gate. The P.E. in his incident has revealed that the appellant and two other lower subordinates were responsible for this escape and, therefore, departmental enquiry was ordered. During the departmental enquiry, the appellant was proved guilty of the charge framed against him. The accused escaped while the appellant was receiving, searching and frisking the UTP. Escape of UTP Mohd. Salim occurred from the only gate of Dakhila where the appellant was on duty. Besides, UTP Zakir Hussain who had no court permission for mulaquat was to taken to Mulaquat room. Obviously he was not alert on duty and had no control on arrival and departure of UTPs. There was gross negligence and dereliction of duty on the part of the appellant, no doubt. Final order of the disciplinary authority, I see, had been rightly issued and there is no need of intervention. Hence the appeal is rejected.
17. The petitioner filed a representation before the Commissioner of Police and the said authority also gave an opportunity of personal hearing to the petitioner herein and in its order held:-
"I have examined the revision petitions and the connected papers. The petitions were also heard in person on 22.4.98 by the then C.P. Delhi. The petitioners Along with HCs Satya Prakash, No. 2104/DAP and Ram Prasad, No. 2010/DAP were proceeded against departmentally on the allegation that a searching enquiry was conducted under the provisions of Rule-29 of Delhi Police (Punishment & Appeal) Rules, 1980 by Sh. Ram Singh, ACP/ ADJ. to find out the facts and circumstances which had resulted in escape of an Under Trial Prisoner Jaggoo s/o Ram Sarai from Police custody from Medical Ward No. 10, Bed No. 27, 4th Floor, Deen Dayal Upadhaya Hospital, Delhi. The said UTP was an accused in case FIR No.72/96 Under Section 379/ 411 IPC P.S. New Delhi Railway Station, New Delhi and was admitted in the Hospital On 9.2.96 and the UTP escaped on 10.2.96. The finding submitted by Sh. Ram Singh, ACP into the said searching enquiry disclosed that the above said police personnel had been negligence in performance of their rules assigned to them which has resulted in escape of UTP Jaggoo s/o RamSarai, a vegabond Delhi from Police custody from D.D.U. Hospital on 10.2.96. The E.O. submitted his findings holding the delinquents guilty of the charge. Agreeing with the findings of the E.O. a copy of the findings was provided to the delinuetns to submit their written representations, if any. After considering the reply in response to the findings of the petitioners, the disciplinary authority imposed the punishment of removal from service upon the petitioners vide his order dated 30.3.97. The appeals preferred by the petitioners was considered and rejected by the Appellate Authority vide his order dt. 12.9.97.
An examination of the record of the Departmental proceedings shows that due procedure was followed by the disciplinary authority in awarding the punishment. As per requirement of rules, they were afforded reasonable opportunity and they availed the same. Escape of UTP was under the custody of the petitions (Constables Ravinder Singh No. 2296/DAP and Ram Singh, 2922/DAP) and supervisory control of HCs Satya Prakash, No. 2104/DAP and Ram Prasad, No. 2010/DAP. Due to act of indiscipline and misconduct on the part of the defaulters UTP has an access for escape. The E.O. submitted his finding on the basis of correspondence of evidence available on the D.E. file. The places set forth by the petitioners in their appeals have been discussed by the Appellate Authority in his final order, with full satisfaction. No infirmities were committed either by the E.O. or by the disciplinary authority. The charge framed against the said proved during the D.E. proceedings."
18. In the aforementioned backdrop, interpretation/applicability of Rule 15 vis-a-vis Rule 29 of the said Rules is required to be considered, which are as follows:-
"15.Preliminary enquiries.-
(1) A preliminary enquiry is a fact finding enquiry. Its purpose is (i) to establish the nature of default and identify of defaulter(s), (ii) to collect prosecution evidence, (iii) to judge quantum of default and (iv) to bring relevant documents on record to facilitate a regular departmental enquiry. In cases where specific information covering the above mentioned points exists a Preliminary Enquiry need not be held and Departmental enquiry may be ordered by the disciplinary authority straightaway. In all other cases a preliminary enquiry shall normally proceed a departmental enquiry.
(2) In cases in which a preliminary enquiry discloses the commission of cognizable offence by a police officer of subordinate rank in his official relations with the public, departmental enquiry shall be ordered after obtaining prior approval of he Additional Commissioner of Police concerned as to whether a criminal case should be registered and investigated or a departmental enquiry should be held.
(3) The suspected police officer may or may not be present at a preliminary enquiry but when present he shall not corss-examine the witness. The file of preliminary enquiry shall not form part of the formal departmental record, but statements therefore may be brought on record of the departmental proceedings when the witnesses are no longer available. There shall be no bar to the Enquiry Officer bringing on record any other documents form the file of the preliminary enquiry, if he considers it necessary after supplying copies to the accused officer. All statements recorded during the preliminary enquiry shall be signed by the person making them and attested by enquiry officer."
29. Suspension in cases of escape of prisoners from police custody.--
(1) If a prisoner escapes or is rescued from police custody, the police officer immediately responsible, shall forthwith be suspended from duty. A searching departmental enquiry shall at once be held by or under the orders of the Deputy Commissioner of Police. The object of this enquiry shall be the elucidation of all circumstances connected with the escape or rescue and the determination of issue whether the escape or rescue could have been prevented by the exercise of such vigilance and courage on the part of the Police Officer immediately responsible as might reasonably have been expected, and whether it was rendered possible or facilitated by any neglect or omission of duty on the part of any superior police officer.
(2) On the conclusion of enquiry, if the Deputy Commissioner of police fins that misconduct is attached to the Police officers or officer suspended, he shall reinstate them.
(3) If the enquiry establishes negligence or connivance in an escape, thereby creating a presumption that an offence under Section 221, 222 or 223 I.P.C. has been committed, the police officer concerned shall be prosecuted in a criminal court, unless the Additional Commissioner of Police on a reference by the Deputy Commissioner of Police decides, for reasons to be recorded in writing that the case shall be dealt with departmentally. If the enquiry establishes a breach of discipline or misconduct not amounting to an offence under any of the sections of the I.P.C. mentioned above, the case shall ordinarily be dealt with departmentally. The criminal prosecution under this rule of an upper subordinate shall not be undertaken without the sanction of the Additional Commissioner of Police.
Dismissal or removal from service shall normally follow a judicial conviction, for finding of guilt in a departmental enquiry for negligence resulting in the escape of a prisoner."
19. Rule 15 of the said Rules does not say that a preliminary enquiry is imperative. Sub-rule (3) of Rule 15 stipulates that the file of the preliminary enquiry shall not form part of the departmental records.
20. The Enquiry Officer may also bring on record any document from the file of the preliminary enquiry, after supplying copies thereof to the accused. the petitioner did not say that copies of the documents, which had been relied upon by the Enquiry Officer, had not been supplied. There is nothing on record to show that the report of the preliminary enquiry was formally brought on record in the departmental proceedings.
21. Rule 29 of the said Rules provides that in case of escape of a prisoner, the concerned police officer shall be forthwith suspended from duty and a departmental enquiry shall be held by order of the Deputy Commissioner of Police; the object whereof has been specified in the said Rule. Such an enquiry is necessary to arrive at a finding as to whether a criminal case under Sections 221, 222, 223 of the Indian Penal Code (in short, 'IPC') should be instituted or a departmental proceedings should be initiated.
22. An enquiry contemplated under Rule 29 of the Rules, therefore, is different from a preliminary enquiry contemplated under Rule 15 of the Rules aforementioned. Rule 29 of the Rules is a special provisions whereas Rule 15 of the Rules is a general provision.
23. In that view of the matter, where an enquiry has been conducted in a case involving escape of under-trial prisoner, the same must be held to have been done in terms of Rule 29 of the Rules having regard to the doctrine of generalla specilibus non derogent and if such an enquiry is held that recourse to Rule 15 of the Rules would not be necessary. Scope of such enquiries, in the opinion of this Court, is different. In an enquiry contemplated under Rule 29 of the Rules, there is no bar to bringing on record the report of the Enquiry Officer, who has made thorough investigation for the purpose of finding out the responsibility of the concerned officers so as to enable the competent authority to take a decision as to whether a departmental proceeding should be initiated or a criminal case should be instituted.
24. We, therefore, find no infirmity in the said order, particularly when the petitioner has not been able to show that any prejudice was caused to him.
25. From a perusal of the report of the Enquiry Officer, it appears that he had in mind all the relevant material facts while arriving at the conclusion as regards whether the charges of misconduct have been proved or not. He, as noticed hereinbefore, not only considered the statements made by the witnesses in their examination-in-chief, but also took note of the statements made by the witnesses in their cross-examination.
26. The fact that the under trial prisoner has escaped from the custody stood admitted and the fact that the petitioner and the other delinquent officers were do duty was also admitted. The question as to whether having regard to the nature of duties of the petitioner, he did not have any liability therefore had not specifically been raised before the learned Tribunal. Such a contention does not appear to have been raised even before the disciplinary authority.
27. In any event, the contentions raised by the petitioner had been considered by the disciplinary authority, appellate authority as also the revisional authority. Such contentions had also been considered by the learned Tribunal.
28. The purported misconstruction and misinterpretation of Rule 15 vis- a-vis Rule 29 of the said Rules by the learned Tribunal, in our opinion, having regard to the facts and circumstances of the case, as noticed hereinbefore, are not of much importance. The learned Tribunal might have erred in holding that dismissal or removal from service would normally follow a finding of guilt in the departmental enquiry, but keeping in view the provisions contained in Rule 29 of the Rules aforementioned and the matter relating to quantum of punishment having been considered by all the authorities, we are of the opinion that it is not a case where doctrine of proportionality could be invoked.
29. The Apex Court, in Om Kumar and Ors. v. Union of India, (2001) 2 SCC 386. has been if legislation imposes restrictions under Clauses (2) to (6) of Article 19 of the Constitution, the Court had to consider whether those restrictions were disproportionate of the situation. If the restrictions imposed are reasonable but Statute permitted administrative authorities to exercise discretion while imposing the restriction in individual cases, actions have been tested on the principle of proportionality, though not so expressly stated to be so.
30. In that case, it was also held:-
"69. The principles explained in the last preceding paragraph in respect of Article 14 are now to be applied here with the question of "arbitrariness" of the order of punishment is questioned under Article 14.
70. In this context, we shall only refer to these cases. In Ranjit Thakur v. Union of India, this Court referred to "proportionality" in the quantum of punishment but the Court observed that the punishment was "shockingly" disproportionate to the misconduct proved. In B.C. Chaturvedi v. Union of India, this Court stated that the court will not interfere unless the punishment awarded was one which shocked the conscience of the court. Even then, the court would remit the matter back to the authority and would normally substitute one punishment for the other. However, in rare situations, the court could award an alternate penalty. It was also so stated in Union of India v. Ganayutham, .
71. Thus, from the above principles and decided cases, it must be held that the where an administrative decision relating to punishment in disciplinary cases is questioned as "arbitrary" under Article 14, the court is confined to Wednewbury principles as a secondary reviewing authority. The court will not apply proportionate as a primary reviewing court because no issue of fundamental freedom nor of discrimination under Article 14 applies in such a context. The court while reviewing punishment and if it is satisfied that Wednewbury principles are violated, it has normally to remit the matter to the administrator for a fresh decision as to the quantum of punishment. Only in rate cases where there has been long delay in the time taken by the disciplinary proceedings and in the time taken in the courts, and such extreme or rate cases can the court substitute its own view as to the quantum of punishment."
31. The said decision has been followed in Commandant. IV Battalion, APSP Mamnoor Lines, Warangal and Anr. v. jabbar Hussain and Anr., 2001 (3) ALT 552, 2001 (3) ALT 552.
32. There cannot be any doubt whatsoever having regard to the decision of the Apex Court in Anil Kumar v. Presiding Officer and Ors., that the question as to whether however and to what extent reasons are required to be noted in writing would vary from case to case, but it is equally well settled that the principles of natural justice are to be flexibly applied.
33. Having regard to the admitted position, as regard the charges of misconduct vis-a-vis involvement of the petitioner, we are of the opinion that it was not a case where the evidence of each and every witness was required to be discussed in great details.
34. The power of this Court under Article 226 of the Constitution of India (in short, 'the Constitution') as regards judicial review of an order of the Administrative Tribunal is limited.
35. In A Ratnam and Ors. v. Government of Andhra Pradesh, Eduction Department, Hyderabad 2001 (6) ALT 661, it has been held thus:-
"49. The difference between "appeal" and "review" is well established. An appeal is continuation of the original proceedings and is concerned with the merits of the case and requires examination of the correctness of the findings of both fact and law. Judicial review, on the other hand is concerned with the validity of the order than the merits of the case. In Chief Constable of the North Wales Police v. Evans it was held that "judicial review is not an appeal from a decision but a review of the manner in which the decision was made and that the judicial review is concerned not with the decision but with the correctness of the decision making process. In R. Entry v. Entry Clearance Officer, Bombay ex.p. Amin, the House of Lords observed that judicial review is entirely different from an ordinary appeal and that it is concerned not with the merits of a decision but with the manner in which the decision was made. These principles have been quoted with approval in Tata Cellular v. Union of India.
50. Further, on the premise that any error of law materially affects the decision making process, it has been held that only error of law apparent on the face of the record is amenable to judicial review under Article 226/227 of the Constitution. When a decision of the Tribunal is challenged before this Court, this Court can issue any writ, declaration or direction. A writ of certiorari may be issued if the Tribunal failed to exercise jurisdiction properly or exceeds jurisdiction vested in it. A writ of mandamus may also be sought against the decision of the Tribunal if the Tribunal after adjudication declines to exercise proper discretion in discharging its functions. Equally a declaration can be sought when the Tribunal though exercised jurisdiction within its limits in accordance with the settled principles of law, but arrives at a finding which might be perverse on the face of it. (See Judicial Review : Law & Procedure by Richard Gordon; Sweet & Maxwell 1996).
51. It is also equally settled that a Court of judicial review would not ordinarily interfere with the finding of fats however grave they may be. This Court is only concerned with grave error of law which is apparent on the face of record. The error of law for instance may arise when a Tribunal wrongfully rejects admissible evidence or considers inadmissible evidence and records a finding. However, as observed by Constitution Bench of the Supreme Court in Syed Yakoob v. Radhakrishnan, "it is neither possible nor desirable to attempt either to define or to describe adequately all cases of errors which can be appropriately described as errors of law apparent on the face of the record and the same must depend on the facts and circumstances of each case and upon the nature and scope of the legal provisions which is alleged to have been misconstrued or contravened."
The principles of judicial review of decisions of the Tribunals noticed hereinabove were accepted by the Supreme Court in Syed Yakoob's case (30 supra). It is opposite to excerpt the following passage which is educative:
The question about the limits of the jurisdiction of High Courts in issuing a writ of certiorari under Article 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 is in excess of it, or as a result of failure to exercise jurisdiction. 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 wit 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 fact, however grave it may appear to be. In regard to a finding of fat 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.
52. The decision in Syed Yakoob's case was also followed in Jagdish Prasad v. Angoori Devi, .
In view of the binding authorities, the law is well settled that--
(i) The High Court is not an appellate authority over the decision of the Administrative Tribunals;
(ii) While exercising the power of judicial review, the High Court cannot be oblivious to the conceptual difference between appeal and review;
(iii) The petition for a judicial review would lie only on grounds of grave errors of law apparent on the face of the record and not on the ground of error of fact, however, grave it may appear;
(iv) When the Tribunal renders a decision after determining the facts, no application for judicial review could be maintainable only on the ground that the Tribunal committed an error of fact, however grave it may appear, unless it is shown that such a finding of the Tribunal is based on no evidence and the error of fact itself can be regarded as error of law in the sense that admissible evidence was rejected and inadmissible evidence was relied on;
(v) The orders passed by the Tribunal by exercising discretion which judicially vests in it cannot be interfered in judicial review unless it is shown that exercise of discretion itself is perverse or illegal in the sense the Tribunal did not follow an earlier decision of the Tribunal or binding authority of the High Court or the Supreme Court with reference to finding of facts and law;
(vi) When the Tribunal disposes of the original application by applying the binding precedents of the High Court as well as the Supreme court, it cannot be said that the Tribunal has committed any error of law apparent on the face of the record; in such cases the limited review before the High Court would be whether the binding principle has been appropriately applied or not; the Tribunal's decision which is rendered in ignorance of the statutory law including subordinate legislation as well as the law laid down by the Supreme Court must be held to suffer an error apparent on the face of the record and requires judicial review;
(vii) Whether or not an error is error of law apparent on the face of the record must always depend upon the facts and circumstances of each case and upon the nature and scope of legal provision which is alleged to have been misconstrued or contravened;
(vii) The three parameters of judicial review of administrative action-illegality, irrationality and procedural impropriety with necessary changes are equally applicable to cases of judicial review of the Tribunal's decision; and
(ix) A mere wrong decision without anything more is not enough to attract jurisdiction of High Court under Article 227; the supervisory jurisdiction conferred on High Court is limited to seeing that Tribunal functions within the limits of its authority and that its decisions do not occasion miscarriage of justice."
36. For the reasons aforementioned, we are of the opinion that no case has been made out for interference with the impugned order by this Court in exercise of its jurisdiction under Article 226 of the Constitution. There is no merit in this writ petition, which is accordingly dismissed. However, in the fats and circumstances of the case, there will be no order as to cost.