Hon'ble Anil Kumar,J.
( per Anil Kumar , J.) We have heard Sri O.P. Srivastava learned counsel appearing for the petitioner and Sri Alok Sinha, learned Additional Chief Standing Counsel for respondents.
By means of present writ petition , petitioner has challenged the orders dated 18.1.2002 ( Annexure no.1) and 7.1.2000 ( annexure no. 2) passed by opposite parties no. 1 and 2 respectively.
The facts, in brief , of the present case are that the petitioner was initially appointed a Clerk in the year 1958 in Tax and Registration Department, State of U.P. ( hereinafter referred as 'department') . Subsequently , promoted to class II in 1973 and Class-I in 1985 and retired after attaining the age of superannuation on 31.3.1993 as Dy. I.G. Registration.
Prior to his retirement while he was posted as Dy. I.G. Registration at Faizabad , serious irregularities were defected and a report against him was submitted by A.D.M. ( F&R) Faizabad on 8.2.1993. In view of the above said fact , a preliminary inquiry was conducted by Additional I.G. Registration of the department , who recommended for departmental proceedings against the petitioner and recovery of loss of Rs. 7,02,279.50/- cause to the Government.
On 31.3.1993 he was placed under suspension and departmental proceedings were initiated against him, I.G. Registration was appointed as Inquiry Officer who issued a charge-sheet in which 9 charges were leveled against him. Thereafter the petitioner submitted application dated 15.11.1994 informing that he will put up his defence within a week, but he did not. The petitioner was then called by Inquiry Officer vide letter dated 14.5.1996 to appear on 22.5.1996, then for 6.10.1996 by registered letter dated 11.9.1996 and again for 28.10.1996 vide letter dated 17.10.1996 but the petitioner neither appeared for personal hearing nor submitted any additional material in his defence. So after conducting the enquiry proceedings, the Inquiry Officer on 4.1.1997 submitted inquiry report, supplied to the petitioner with a show cause indicating proposed action by the punishing authority to which he submitted his reply and on 7.1.2000, respondent no. 2 passed the impugned order .
Aggrieved by the same, petitioner approached this Court by filing Writ Petition No. 740 (S/B) of 2000 ( Harihar Bholenath Misra Vs. State of U.P. and another), dismissed by order dated 20.10.2000 on the ground of alternative remedy. As such he approached the State Public Services Tribunal by filing Claim Petition no. 1646 of 2000 ( Harihar Bhole Nath Misra Vs. State of U.P. and another), dismissed by judgment and order dated 18.1.2002, hence the present writ petition.
Sri O.P. Srivastava, learned counsel for the petitioner while assailing the impugned order submits that in case where the major punishment proposed to be imposed, oral inquiry is must whether the employee requests it for or not and in the instant case neither any time date and place has been fixed nor any notice has been given to the petitioner for the purpose of holding oral inquiry by the inquiry officer, he conducted ex parte inquiry and submit inquiry report to the punishing authority so inquiry proceedings as well as punishing order passed on the basis of the same are arbitrary in nature and in contravention of principles of natural justice. In this regard he placed reliance on the judgment passed by this Court in the case Uma Shanker Yadav Vs. Registrar , Cooperative Societies , Lucknow and others 1993 (11) LCD 495 and Shubhash Chandra Sharma Vs. U.P. Co-Operative Spinning Mills and others (2001) 2 UPLBEC 1475.
He further submits that even if the petitioner had failed to submit the explanation to the charge-sheet it was incumbent upon the inquiry officer to fix a date for his appearance in the inquiry. It is only in a case when the government servant despite notice of the date fixed failed to appear that the inquiry officer can proceed with the inquiry ex parte. Even in such circumstances, it is incumbent on the inquiry officer to record the statement of witnesses mentioned in the charge-sheet as in order to establish the charges the department is required to produce the necessary evidence before the inquiry officer . This is so as to avoid the charge that the inquiry officer has acted as a prosecutor as well as a judge and an inquiry officer acting in a quasi- judicial authority is in the position of an independent adjudicator. He is not supposed to be a representative of the department/ disciplinary authority / Government. His function is to examine the evidence presented by the Department, even in the absence of delinquent official to see as to whether the unrebutted evidence is sufficient to hold that the charges are proved. In the present case , the aforesaid procedure has not been observed. Since no oral evidence has been examined the documents have not been proved, and could not have been taken into consideration to conclude that the charges have been proved against the respondents. In support of his arguments he placed reliance in the case of Roop Singh Negi Vs. Punjab National Bank and others (2009) 2 Supreme Court Cases, 570 Govind Lal Srivastava Vs. State of U.P. and others, 2005 (23) LCD 495 State of Uttar Pradesh and others Vs. Saroj Kumar Sinha ( 2010) 2 Supreme Court Cases, 772 Radhey Kant Khare Vs. U.P. Cooperative Sugar Factories Federation Ltd. 2003 (21) LCD 610. So the impugned orders under challenge in the present writ petition, liable to be set aside.
Sri Alok Sinha, learned Additional Chief Standing Counsel for the respondents, in rebuttal, submits that despite repeated opportunity given to the petitioner , he failed to submit reply to the charge-sheet or to appear before the inquiry officer during the inquiry proceedings and the inquiry officer on the basis of the material on record available before him as held that the charges were proved . The said action on the part of the inquiry officer cannot be said to be negation of the principal of natural justice. In support of his argument he placed reliance on the judgment of the Apex Court in the cases of Nagar Palika Nataur Vs. U.P. Public Services Tribunal (1998)2 SCC , 400, Indra Bhanu Gaur Vs. Committee of management of M.M. Degree College and others, 2003 AIR SCW 5959, N.K.Prasad Vs. Government of India and others, (2004) 6 SCC 299 and Debotash Pal Choudhary Vs. P.N.B. and others (2002) 8 SCC 68.
Sri Alok Sinha, learned State Counsel further submits that petitioner before the Tribunal has not taken the ground that inquiry officer had not conducted the inquiry proceedings as per procedure provided under law so there is no violation of principle of natural justice hence the said ground cannot be taken by the petitioner for the first time before this Court as per judgment passed by Hon'ble Supreme Court in the case of Ranvir Singh Vs. Union of India and others ( 2009) 3 SCC ,97 so the present writ petition filed by the petitioner liable to be dismissed.
We have heard learned counsel for the parties and perused the record..
In the instant case after placing the petitioner under suspension , charge-sheet has been issued to him . However, in spite of the repeated opportunity , petitioner neither submitted his reply nor appeared before the inquiry officer in the inquiry proceedings , so he conducted the same on the basis of material on record, submitted inquiry report to the punishing authority. Thereafter, the inquiry report supplied to the petitioner alongwith show cause and after considering the reply of the petitioner , the punishing authority passed the impugned order dated 7.1.2000, challenged before the State Public Services Tribunal by filing claim petition and in order to adjudicate and decide the same, Tribunal framed ten issues and the issue not 2 was to the effect that was reasonable opportunity of hearing has been given to the petitioner?
After considering the material on record, the Tribunal in the impugned judgment dated 18.1.2002 has given the finding that full opportunity of hearing was given to the petitioner in the matter in question thus, no procedural illegality or any violation of the principle of natural justice and dismissed the claim petition of the petitioner. Further, the impugned orders dated 18.1.2002 ( Annexure no.1) and 7.1.2000 ( Annexure no.2) passed by the respondents no. 1 and 2 respectively are well reasoned and speaking order .
It is settled law that the reasons substitute subjectivity by objectivity. The emphasis on recording reasons is that if the decision reveals the 'inscrutable face of the sphinx', it can be its silence, render it virtually impossible for the Courts to perform their appellate function or exercise the power of judicial review in adjudging the validity of the decision. Right to reason is an indispensable part of a sound judicial system, reasons at least sufficient to indicate an application of mind to the later before Court. Another rationale is that the affected party can know why the decision has gone against him. One of the salutary requirements of natural justice is spelling out reasons for the order made. In other words, speaking out. The inscrutable face of the sphinx' is ordinarily incongruous with a judicial or quasi-judicial performance.
Further, if the said principles is applied in the present case and the orders are tested on the said scale, the submission made by the learned counsel for the petitioner will definitely fail in the test. As in the present case, the orders are reasoned one indicating the reasons on the basis of which the same have been passed, accordingly the submission which has been made by the learned counsel for the petitioners in the instant matter is wholly misconceived and rejected.
Moreover, this Court while exercising power of judicial review under Article 226 of the Constitution of India this Court does not exercise appellate powers. It is not intended to take away from administrative authorities the powers and discretion properly vested in them by law and to substitute courts as the bodies making the decisions. Judicial review is a protection and not a weapon.
In the case of Council of Civil Service Unions (CCSU) V. Minister 11 for the Civil Service (1984) 3 ALL ER 935, Lord Diplock has observed the scope of judicial review in the following words:-
"Judicial Review as I think developed to a stage today when, without reiterating any analysis of the steps by which the development has come about, one can conveniently classify under three heads the grounds on which administrative action is subject to control by judicial review. The first ground I would call 'illegality' the second 'irrationality' and the third 'procedural impropriety".
Moreover, judicial review has certain inherent limitation. It is suited more for adjudication of disputes than for performing administrative functions. It is for the executive to administer the law and the function of the judiciary is to ensure that the Government carries out its duty in accordance with the provisions of the rules and statute.
In the case of Chief Constable of the North Wales Police V. Evans, (1982) 3 ALL ER 141, it was observed by Lord Hailsham as under:-
"Purpose of judicial review is to ensure that individual receives fair treatment and not to ensure that the authority, after according fair treatment reaches on a matter which it is authorized by law to decide with its conclusion which is corrected in the eyes of the Court."
In the same case, Lord Brightman observed that:-
"Judicial review as the words imply is not an appeal from a decision but a review of the manner in which a decision was made," and held, that "it would be an error to think that the Court sits in judgment not only on the correctness of the decision making process but also on the correctness of the decision itself."
The aforesaid observations made by the Lord Hailsham and Lord Brightman were quoted with approval by their Lordships of Supreme Court in State of U.P. V. Dharmendar Prasad Singh, AIR 1989 SC 997, and while upholding that the judicial review is directed not against the decision, but is confined to the examination of the decision making process, it was held by the Supreme Court as under:-
"When the issue raised in judicial review is whether a 12 decision is vitiated by taking into account irrelevant, or neglecting to take into account, relevant factors or is so manifestly unreasonable that no reasonable authority entrusted with the power in question could reasonable have made such a decision, the judicial review of the decision making process includes examination, as a matter of law, of the relevance of the factors."
In the case of Tata Cellular V. Union of India (1994) 6 SCC 651 the Supreme Court stated that:-
"Judicial review is concerned with reviewing not the merits of the decision in support of which the application for judicial review is made but the decision making process itself," and enumerated some broad grounds upon which an administrative action is subject to control by judicial review and classified them under the heading of 'illegality', 'irrationality' and 'procedural impropriety.' In their supervisory jurisdiction as distinguished form the appellate one, the Courts do not themselves embark upon rehearing of the matter but nevertheless courts will, if called upon, act in a supervisory capacity and see that the decision making-body acts fairly. If the decision making body is influenced by considerations which ought not to influence or fails to take into account the matters which ought to have been taken into account the Courts will interfere. If the decision making body comes to its decision on no evidence or comes to a finding so unreasonable that a reasonable man could not have come to it then again the Courts will interfere.
Further if the decision making body goes outside its power or misconstrues the extent of its power, then too the Courts can interfere, and if the decision making body acts in a bad faith or with ulterior object which it is not authorized by law, its decision will be set aside in supervisory jurisdiction. A decision of a public authority will be liable to be quashed or otherwise dealt with by appropriate order in judicial review proceedings, where the Courts concludes that the decision is such that no authority properly directing itself on the relevant law and fact acting reasonably could have reached it."
Recently, Hon'ble the Supreme Court in the case of Sanjay Kumar Singh Vs. Union of India and others JT 2011(13) SC 70 in para nos. 23 and 24 has held as under:-
"23.We may here refer to the decision of this Court in Managing Director, ECIl, Hyderabad and others Vs. B. Karunakar & others reported in [ JT 1993(6) SC 1 ) wherein this Court has held that unless and until it is shown that prejudice has been caused it cannot be said that the inquiry proceeding is vitiated or that there is any violation of principles of natural justice . To the same effect is the decision of this Court in the case of Union of India and others Vs. Aloki Kumar reported in 2010(5) SCC 349.
24.So far as the departmental proceedings are concerned, it is for the departmental authorities to conduct an inquiry in accordance with the prescribed Rules . The role of the Court in the matter of the departmental proceedings is very limited and the Court cannot substitute its own view or findings by replacing the findings arrived at by the authority on detailed appreciation of the evidence on record."
Thus the decision by the appropriate authority to grant or not to grant a particular relief to a person is not open to Judicial review by the High Court under Article 226 of the Constitution of India but the power of judicial review is circumscribed to scrutiny of the decision making process only and is to be exercised in the light of the principles laid down above and applying the said principles to the facts of the present case, we do not find any irregularity, infirmity in the impugned orders.
From the perusal of the record/ claim petition filed by the petitioner , it is clearly established that the petitioner has neither pleaded nor taken any ground that the inquiry officer has not conducted the inquiry proceedings accordingly , the impugned order vitiates cannot take the said ground for the first time before this Court in view of the judgment of Apex Court in the case of Ranvir Singh Vs. Union of India and others ( supra) even otherwise in view of the findings given by the Tribunal that the inquiry officer has conducted the inquiry proceedings in accordance with the principles of natural justice, the said arguments made on behalf of the petitioner is misconceived and the petitioner cannot derive any benefit from the said plea and the judgments cited in this regard in his favour in the instant case.
For the foregoing reasons, the writ petition lacks merit and is dismissed.
No order as to costs.
Order Date :- 15.12.2011 dk/