1. The petitioner was working as Sahayak Vasil Baki Navis, in the Collectorate of District Baghpat. A charge-sheet was drawn up against the petitioner on 20.10.2006 wherein charges were laid out against him. In substance the charges laid out against the petitioner alleged that the petitioner had forged signatures of the Tehsildar Baghpat in some orders. He was also responsible for loss of official records. The petitioner tendered his defence in the departmental enquiry. The petitioner squarely contested the aforesaid charges. In the course of the enquiry proceeding the petitioner specifically prayed for calling for a report of a handwriting expert to examine the issue of alleged forgery of signatures.
2. A show cause notice was issued to the petitioner on 11.7.2007. The petitioner tendered his reply to the show cause notice and refuted the charges against him. He also highlighted the violation of principles of natural justice in the conduct of the enquiry which had prejudiced his defence.
3. The disciplinary authority terminated the services of the petitioner by the order dated 28.12.2007.
4. The petitioner took the order of termination in appeal before the competent authority under the Rules. The appellate authority by order dated 21.4.2008 rejected the appeal of the petitioner.
5. The petitioner is aggrieved by the order of termination dated 28.12.2007 and the order passed by the appellate authority dated 21.04.2008. The petitioner has assailed both the orders in the instant writ petition.
6. The submission of the learned counsel for the petitioner Sri C. K. Parekh assisted by Sri Deepak Singh, learned counsel is that the appellate authority has not considered the grounds raised in the memo of appeal. The order reflects non application of mind.
7. Heard learned counsel for the parties.
8. A perusal of the memo of appeal as well as additional memo of appeal shows that various germane issues were raised by the petitioner in his defence. The petitioner had raised these issues from the very inception of the disciplinary proceedings against him. The stand of the petitioner is consistent and was taken in the first instance before the disciplinary authority and subsequently before the appellate authority.
9. By way of exemplar is the ground raised by the petitioner in regard to non furnishing of the documentary evidences mentioned in the charge-sheet and proposed to be relied upon in support of the charges against the petitioner. Failure to call for a handwriting expert report to examine the issue of forgery of signatures was among the other grounds of challenge in the appeal. These are some of the many grounds raised in the memo of appeal which go to the root of the disciplinary proceedings. These issues were required to be verified and independently examined by the appellate authority. The appellate authority is under an obligation of law to return independent findings by a reasoned and speaking orders on all the issues of fact and law raised by the petitioner which are germane to his defence. The appellate authority has failed to discharge its obligation imposed by law. A perusal of the order passed by the appellate authority on 21.4.2008 shows absolute non consideration of the issues raised by the petitioner in his defence and non application of mind to the grounds raised in the appeal. The so called findings and the conclusion of the appellate authority are extracted hereunder:-
"Jh ujs'k pUnz oekZ }kjk nk;j dh xbZ vihy ds lkFk tkap vk[;k dk esjs }kjk Hkyh HkkWafr voyksdu fd;k x;kA tkap vf/kdkjh }kjk Jh ujs'k pUnz oekZ ds fo:) 38 vkjksi yxk;s x;s gSa] ftlesa vkjksi la[;k &35] 36 o 36 ¼rhu vkjksi½ dks NksM+dj vU; lHkh iw.kZ :i ls fl) ik;s x;s gSA bl izdkj ftykf/kdkjh] ckxir }kjk fn;k x;k n.M mfpr izrhr gksrk gSA vr% vihy fujLr dh tkrh gSA""
10. The scope and the power of the appellate authority as claimed the attention of the courts. The courts have consistently held that the appellate authority is the last trier of facts and the final departmental authority on law. The appellate authority is required to pass a reasoned and speaking order addressing the grounds raised in the memo of appeal. The statutory obligation of the appellate authority is cast by rule 12 of the U.P. Government Servant (Discipline and Appeal) Rules 1999 -
"12. Consideration of Appeals. - The appellate authority shall pass such orders as mentioned in clauses (a) to (d) of Rule 13 of these rules, in the appeal as he thinks proper after considering-
(a) Whether the facts on which the order was based have been established;
(b) Whether the facts established afford sufficient ground for taking action; and
(c) Whether the penalty is excessive, adequate or inadequate;"
11. A society can be governed by the rule of law only when all individuals have respect for law and all institutions are committed to dispense justice. The constitutional vision enshrined in the Preamble of providing justice for all, is possible only if all institutions of governance, the judicial and the executive alike inform their actions with the command of law and a sense of justice. This tenet is true of public authorities acting in the capacity of employers. Only a just employer can ensure an efficient employee. If the courts were to be the sole instrument for administering justice the process of courts will be over burdened. The circuits will be overloaded. The courts will not be able to cope with the rising numbers of claims and explosion of the docket. In such situations the citizens will not get justice on demand.
12. The constitutional objective of justice for all can be realised if all institutions of governance and not just the courts are structured to dispense justice. All institutions of administration including public authorities acting as employers in their capacities as employers need to possess autonomous justice delivery systems.
13. In our constitutional scheme, the courts have the final word but not the sole monopoly in dispensing justice. Finality of judicial pronouncement does not mean monopoly of courts in dispensing justice to the exclusion of other institutions. All institutions of governance have to play their part in dispensation of justice to uphold the rule of law.
14. In this backdrop, the credibility of the justice delivery system in any institution will depend upon the fairness of its process and the autonomy of its functioning while dispensing justice. The departmental appellate authority is one such instrumentality within an institution which is charged with the duty to administer justice. The process of administration of justice will not serve any purpose if it does not inspire faith. Faith among the people will be generated by the credibility of the appellate authority. The credibility of the departmental appellate authority would depend on the procedural fairness which informs the decision making and functional autonomy which defines the existence of such authority. Demands of procedural propriety and fairness require that the decision making process of an appellate authority should be consistent with principles of natural justice. The concept of quasi judicial authorities evolved by the courts is quite close or near analogous to the functioning of departmental appellate authority.
15. In the light of above discussion, the functions and the obligations of a departmental appellate authority can be distilled. The appellate authority is under an obligation to strictly conform to the principles of natural justice and procedural propriety. The appellate authority is under an obligation of law to consider a return findings on the grounds raised in the memo of appeal. The appellate authority has to address all germane issues raised before it. In case the appellate authority does not discharge this obligation, the decision rendered by it will be vitiated in law. Such decision cannot stand. The appellate authority after due application of mind should return findings which are supported by reasons.
16. Failure of the appellate authority on any of the aforesaid actions would render the statutory right of appeal of an employee illusion. The credibility of the departmental appeal remedy would be dented and the faith in the justice delivery system created in the institution shall be eroded. These consequences will weaken the rule of law and diminish the resolve and the capacity of the institution to uphold the rule of law.
17. The need for all institutions of governance to be alert to their obligation to law was emphasized by the Division Bench of this court in Dr. Muktakar Singh Vs. State of U.P. and others reported at 2018 (2) ADJ 699 (DB). The Honb'le Court held thus :-
"35. When fundamental rights are in issue, arbitrary action and callous inaction stand on the same footing. Both will invite judicial censure and interdict in equal measure.
36. While the Courts have the final word, it is not the duty of the Courts alone, but an obligation of all institutions of governance to cherish and to protect, to exalt and to uphold the fundamental rights of citizens."
18. The first principles of good administration require that the employer should have the will to check indiscipline, but also the power to redress grievances and the sense to dispense justice. Law has to empower the employer to accomplish these tasks. Take one away and you shake the foundations of good administration. The denial of justice is a failure of the rule of law.
19. The obligation of an appellate authority to apply its mind and to the issues raised in the appeal and support its decision by reasons was an issue before the Hon'ble Supreme Court. The Hon'ble Supreme Court defined the role of an appellate authority created under the Service Regulations/Service Rules in Chairman, Disciplinary Authority, Rani Lakshmi Bai Kshetriya Gramin Bank Vs. Jagdish Sharan Varshney and others, reported at AIR 2009 SC 3276 by holding thus :-
"8. In our opinion, an order of affirmation need not contain as elaborate reasons as an order of reversal, but that does not mean that the order of affirmation need not contain any reasons whatsoever. In fact, the said decision in Prabhu Dayal Grover's case (supra) has itself stated that the appellate order should disclose application of mind. Whether there was an application of mind or not can only be disclosed by some reasons, at least in brief, mentioned in the order of the appellate authority. Hence, we cannot accept the proposition that an order of affirmation need not contain any reasons at all. That order must contain some reasons, at least in brief, so that one can know whether the appellate authority has applied its mind while affirming the order of the disciplinary authority. The view we are taking was also taken by this Court in Divisional Forest Officer Vs Madhusudan Rao (2008) IILLJ 671 SC, and in Madhya Pradesh Industries Ltd. Vs Union of India [1966] 1SCR 466 siemens Engineering & Manufacturing Co. Ltd Vs Union of India AIR 1976 SC 1785, etc.
9. In the present case, since the appellate authority's order does not contain any reasons, it does not show any application of mind.
10. The purpose of disclosure of reasons, as held by a Constitution Bench of this Court in the case of S.N. Mukherjee Vs Union of India reported in 1990 Cri LJ 2148 is that people must have confidence in the judicial or quasi-judicial authorities. Unless reasons are disclosed, how can a person know whether the authority has applied its mind or not? Also, giving of reasons minimizes chances of arbitrariness. Hence, it is an essential requirement of the rule of law that some reasons, at least in brief, must be disclosed in a judicial or quasi-judicial order, even if it is an order of affirmation.
11.No doubt, in S.N. Mukherjee's case (supra), it has been observed (vide para 36) that:
...The appellate or revisional authority, if it affirms such an order, need not give separate reasons if the appellate or revisional authority agrees with the reasons contained in the order under challenge.
12. The above observation, in our opinion, really means that the order of affirmance need not contain an elaborate reasoning as contained in the order of the original authority, but it cannot be understood to mean that even brief reasons need not be given in an order of affirmance. To take a contrary view would mean that appellate authorities can simply dismiss appeals by one line orders stating that they agree with the view of the lower authority."
20. The appellate authority in the instant has failed to discharge its statutory obligations. The order dated 21.4.2008 passed by the respondent no.1 is based on non application of mind. The order dated 21.4.2008 is arbitrary and illegal. The order dated 21.4.2008 passed by the respondent no.1 is quashed.
21. A mandamus is issued to the respondents authorities commanding them to consider the appeal afresh and return a reasoned findings on the grounds raised by the petitioner in the memo of appeal and in the additional memo of appeal after independent application of mind and consideration of the materials in the record. This exercise shall be completed within a period of four months from the date of furnishing a certified copy of this order along-with a fresh copy of memo of appeal as well as additional memo of appeal.
22. The writ petition is allowed.
Order Date :- 18.9.2018 Pramod