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Judgment
Hon''ble Anil Kumar, J.—Heard Shri R.K. Tripathi holding brief of Shri B.R. Tripathi, learned counsel for petitioner, learned Standing Counsel and perused the record.
By means of the present writ petition, the petitioner has challenged the orders dated 16.9.2008 (Annexure No. 1) and 30.7.2008 (Annexure No. 3) passed by opposite party No. 1 and opposite party No. 2 respectively.
Facts in brief of the present case are that the petitioner who was working as constable in U.P. Police posted at Kotwali, Bhinga, District-Shravasti was served with a show cause notice dated 26.6.2008 by the Superintendent of Police, Shravasti on the ground that when the petitioner was posted at Kotwali, Bhinga in the matter arising out of case crime No. 514 of 2007 u/s 147 and 302 I.P.C., he accepted illegal gratification of Rs. 1500/- from the complainant, namely Sri Pullu Ram Arya. After receiving the same the petitioner submitted his reply on 19.7.2008 ''inter alia'' denying the charges which were levelled against him, thereafter considering reply submitted by the petitioner, on 30.7.2008 the punishing authority/Superintendent of Police, Shravasti passed a punishment order to the effect of withholding the integrity of the petitioner for the year 2007.
Aggrieved by the said order, petitioner filed an appeal (Annexure No. 7) before the appellate authority/Deputy Inspector General of Police, Devi Patan Mandal, Gonda, dismissed by order dated 16.9.2008 hence the present writ petition has been filed.
Learned counsel for petitioner while assailing the impugned order submits that the petitioner is not guilty of accepting the illegal gratification of Rs. 1500/- from Sri Pullu Ram Aarya and in this regard he relies on the statement of Shri R.N. Yadav, Investigating Officer that he went to meet the complainant and his family and in response they said that they have not given money to the petitioner.
Accordingly, it is submitted by learned counsel for petitioner that the impugned order dated 30.7.2007 whereby withholding the integrity of the petitioner in character roll for the year 2007 as well as the appellate order are illegal and arbitrary in nature.
Learned counsel for the petitioner further submits that as per provisions provided under sub-rule (2) of Rule 14 of U.P. Police Officers of Subordinate Ranks (Punishment & Appeal) Rules, 1991 it is mandatory on the part of the punishing authority to furnish the enquiry report along with show cause notice and in the present case, the said mandatory provisions have not been followed so the impugned order which has been passed on the basis of the preliminary enquiry report dated 2.5.2007 is in action contrary to principles of natural justice and thus, the impugned order as well as the appellate order is liable to be set aside.
Shri Umesh Sharma, learned counsel for State submits that in the present case a show cause notice has been issued to the petitioner to which he has submitted his reply on 29.8.2007 to the punishing authority and after taking into consideration the reply submitted by the petitioner the punishing authority while passing the impugned order had given finding that it has been admitted by the petitioner that he along with Investigating Officer, Sri R.N. Yadav went to the house of Sri Pallu Ram Arya, the said officer confirmed the said fact during the preliminary enquiry accordingly in this regard a preliminary enquiry report has been submitted by Amrita Srivastava, Deputy Superintend of Police, Headquarter, Anti-Corruption Bureau, Lucknow, stating that it has been established and proved that the petitioner has taken a sum of Rs. 1500/- by way of illegal gratification and taking into account the said facts, the punishing authority passed the impugned order, upheld by the appellate authority hence submission made by learned counsel for petitioner is misconceived and the present writ petition is liable to be dismissed.
I have heard learned counsel for petitioner and gone through the records, in the instant case, on the basis of the document on record it is not disputed that the petitioner along with one Shri R.N. Yadav, Investigating Officer went to Village Dudhawaniya to investigate in case crime No. 514 of 2007 under Sections 147 and 302, in respect to said incident a show cause notice has been issued to the petitioner that he has accepted an illegal gratification of Rs. 1500/- from the complainant Shri Pallu Ram Aarya.
Further before issuing a show cause notice by the punishing authority a preliminary enquiry has been conducted by Smt. Amrita Srivastava, Deputy Superintendent of Police, Anti-Corruption Breau, Lucknow. On the basis of the said enquiry the said authority had came to the conclusion that the petitioner has accepted a illegal gratification of a sum of Rs. 1500/- from the complainant, Shri Pallu Ram Aarya thereafter punishing authority taking into consideration the reply submitted by the petitioner and other materials on record had came into conclusion that the petitioner has accepted a illegal gratification of a sum of Rs. 1500/- from the complainant, Shri Pallu Ram Aarya accordingly passed the impugned order dated 30.7.2008 withholding of integrity of the petitioner for the year 2007 with observation that the action in question on the part of the petitioner is nothing but amount to negligence and discharging his duties as police constable which demolishes the image of the police force thereafter the appeal filed by the petitioner dismissed by the appellate authority.
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 order of removal from services 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 passed by the punishing authority and appellate authority 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 this regard is wholly misconceived and rejected.
Further, this Court while exercising power of judicial review under Article 226 of the Constitution of India 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 Uttar Pradesh and Others Vs. Maharaja Dharmander Prasad Singh and Others, 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 Vs. Union of India, 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 the Courts can only interfere, 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.
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, I do not find any irregularity, infirmity in the impugned orders.
So far submission made by learned counsel for the petitioner that the impugned orders under challenge are arbitrary in nature as in the same incidence in which petitioner has been awarded the punishment of withholding of integrity in the character roll, also awarded the punishment of censure entry so the impugned orders are in contravention of principles of natural justice is not a tenable argument as it is the sole prerogative and domain of the punishing authority to impose the punishment on an employee taking into consideration the material documents and evidence on record and misconduct committed by him.
In the case of B.C. Chaturvedi Vs. Union of India and others, Hon''ble Supreme Court has held as under :-
A review of the above legal position would establish that the disciplinary authority, and on appeal the appellate authority, being fact finding authorities have exclusive power to consider the evidence with a view to maintain discipline. They are invested with the discretion to impose appropriate punishment. Keeping in view the magnitude or gravity of the misconduct. The High Court/Tribunal, while exercising the power of judicial review, cannot normally substitute its own conclusion on penalty and impose some other penalty. If the punishment imposed by the disciplinary authority or the appellate authority shocks the conscience of the High Court/Tribunal, it would appropriately mould the relief, either directing the disciplinary/appellate authority to reconsider the penalty imposed, or to shorten the litigation, it may itself, in exceptional and rare cases, impose appropriate punishment with cogent reasons in support thereof.
In the case of V. Rajarathinam Vs. State of Tamilnadu and another, 1997 SCC (L&S) 90, the Court has held as under :-
that if if all the relevant facts and circumstances and the evidence on record are taken into consideration and it is found that the evidence established misconduct against a public servant, the disciplinary authority is perfectly empowered to take appropriate decision as to the nature of the findings on the proof of guilt. Once there is a finding as regards the proof of misconduct, what should be the nature of the punishment to be 14 imposed is for the disciplinary authority to consider.
In the case of State of Karnataka and Others Vs. H. Nagaraj, Hon''ble Apex Court after relying earlier judgment in the case of Union of India Vs. Parma Nanda (1989) 2 SCC (L&S) 303 held as under:-
That it is appropriate to remember that the power to impose penalty on a delinquent officer is conferred on the competent authority either by an Act of legislature or rules made under the proviso to Article 309 of the Constitution. If there has been an enquiry consistent with the rules and in accordance with principles of natural justice what punishment would meet the ends of justice is a matter exclusively within the jurisdiction of the competent authority.
In the case of Union of India (UOI) and Another Vs. S.S. Ahluwalia, the Hon''ble Apex Court had held as under:-
... The scope of judicial review in the matter of imposition of penalty as a result of disciplinary proceedings is very limited. The court can interfere with the punishment only if it finds the same to be shockingly disproportionate to the charges found to be proved.
In the case of State of Meghalaya and Others Vs. Mecken Singh N. Marak, the Hon''ble Supreme Court had held as under :-
The legal position is fairly well settled that while exercising the power of judicial review, the High Court or a Tribunal cannot interfere with the discretion exercise by the disciplinary authority, and/or on appeal the appellate authority with regard to the imposition of punishment unless such discretion suffers from illegality or material procedural irregularity or that would shock the conscience of the court/tribunal. The exercise of discretion in imposition of punishment by the disciplinary authority or appellate authority is dependent on host of factors such as gratuity misconduct, past conduct, the nature of duties assigned to the delinquent, responsibility of the position that the delinquents holds, previous penalty,if any, and the discipline required to be maintained in the department or establishment he works. Ordinarily the court or a tribunal would not substitute its opinion on reappraisal of facts.
In the case of The Administrator, Union Territory of Dadra and Nagar Haveli Vs. Gulabhia M. Lad, , the Hon''ble Supreme Court has held as under :-
Para 14 : The legal position is fairly well settled that while exercising the power of judicial review, the High Court or a Tribunal cannot interfere with the discretion exercise by the disciplinary authority, and/or on appeal the appellate authority with regard to the imposition of punishment unless such discretion suffers from illegality or material procedural irregularity or that would shock the conscience of the Court/Tribunal.
Further, the submission made by learned counsel for petitioner that the impugned orders under challenge are in contravention to the provisions as provided under sub-rule (2) of Rule 14 of U.P. Police Officers of Subordinate Ranks (Punishment & Appeal) Rules, 1991 is wholly misconceived in view of the facts and circumstances of the case.
For the foregoing reasons, I do not find any illegality or infirmity in the impugned orders which are under challenge in the present writ petition,thus, it is lacks merit and dismissed.