Reliance Communications Limited vs Union of India and Others

An order passed by this Court on 9th May, 2014, directed the competent authority to decide the petitioner''s application latest by 30th June, 2014 in accordance with law.

The matter was to appear on 20th June, 2014 for admission.

That the matter has not appeared on board thereafter does not mean that this Court''s direction is in anyway modified or diluted leave alone vacated or set aside. No endeavour has been made to seek an extension and for passing an order or taking a decision in terms of the order of this Court referred above. When this Court passes such orders and issues such directions it expects the competent authority to take a decision and which decision must be an order assigning reasons. It is trite that no order of the Government can be said to be such and partaking the nature of a binding direction unless it is made in accordance with the business Rules and duly communicated. No compliance is reported of this Court''s order till date, save and except an oral explanation that the understanding of the authorities was that they are required to release some amounts. That some amounts have been released or some concession extended, therefore the time was taken to comply is thus no explanation at all. Admittedly, there is no decision and in terms of this Court''s directions. We would invite the attention of all concerned to the authoritative pronouncement of the Hon''ble Supreme Court in the case of State of Bihar and others Vs. Subhash Singh, . The Supreme Court held as under :

"3. The Constitution of India is the supreme law of the land, having flown from ''''We, the people of India, i.e., Bharat, having solemnly resolved to constitute India into a sovereign, socialist, secular democratic Republic. The sovereign power is distributed among the Legislature, the Executive and the Judiciary with checks and balances but not in water-tight rigid mould. In our democracy governed by the rule of law, the Judiciary has expressly been entrusted with the power of judicial reviews as sentinel in qui vive. Basically judicial review of administrative actions as also of legislation is exercised against the action of the State. Since the State or public authorities act in exercise of their executive or legislative power, they are amenable to the judicial review. The State, therefore, is subject to etat de droit, i.e. the State is submitted to the law which implies that all actions of the State or its authorities and officials must be carried out subject to the Constitution and within the limits set by the law, i.e., constitutionalism. In other words, the State is to obey the law. The more the administrative action in our welfare State expands widely touching the individuals, the more is the scope of judicial review of State action, Judicial review of administrative action is, therefore, an essential part of rule of law. The judicial control on administrative action, thus, affords the Courts to determine not only the constitutionality of the law but also the procedural part of administrative action as a part of judicial review. The Constitution has devised permanent bureaucracy as part of the political executive. By operation of Art. 53 read with Arts. 73 and 74 as well as Art. 154 read with Arts. 163 and 166 , the business of the State is carried on in accordance with the rules of business issued by the President/the Governor, as the case may be, or the rules made for the subordinate officers in that behalf. The normal principle that the permanent bureaucracy is accountable to the political executive is subject to judicial review. The doctrine of ''''full faith and credit'''' applied to the acts done by the officers and presumptive evidence of regularity of official acts done or performed, is apposite in faithful discharge of duties to elongate public purpose and to be in accordance with the procedure prescribed. It is now settled legal position that the bureaucracy is also accountable for the acts done in accordance with the rules when judicial review is called to be exercised by the Courts. The hierarchical responsibility for the decision is their in-built discipline. But the Head of the Department/designated officer is ultimately responsible and accountable to the Court for the result of the action done or decision taken. Despite this, if there is any special circumstance absolving him of the accountability or if someone else is responsible for the action, he needs to bring them to the notice of the Court so that appropriate procedure is adopted and action taken. The controlling officer holds each of them responsible at the pain of disciplinary action. The object thereby is to ensure compliance of the rule of law.

The Constitutional Courts exercise their power of judicial review with constraint to ensure that the authorities on whom the power is entrusted under the rule of law or confided, is discharged truly, objectively, expeditiously for the purpose for which substantive acts/results are intended. The petitioner being a member of the permanent executive, is enjoined to comply with the orders of the Court passed in exercise of the judicial review. On an earlier occasion, while disposing of the writ petition, the High Court had directed the respondent to consider the case of the writ petitioner and to dispose it of with reasoned order within two months. Obviously, the High Court expected that the authorities would discharge their duties expeditiously as enjoined under the rules and as per the directions. Since they did not discharge the duty, necessarily, they were required to give explanation to the Court as to the circumstances in which they could not comply with the direction issued by the Court or if there was any unavoidable delay, they should have sought further time for compliance. Unfortunately, neither of the steps have been taken by the officer in that regard. Therefore, the High Court was constrained to impose the costs personally against him for non-compliance of the order.

It is true and we are alive to the fact that when the officer is to take steps as per the decision, some delay may occasion and generally the Courts would be reluctant to impose costs personally against the officers. But the officers are required to go to the Court, give the appropriate explanation and satisfy the Court that they were prevented by circumstances for non-compliance within the time specified by the Court. It is equally salutary to note that if the High Court feels it necessary to impose costs personally against the officers, the Court is required to enquire after giving notice and reasonable opportunity to the officer who could not be impleaded earlier or was not on record, to explain the reasons for non-compliance of the order or decision taken to file the proceedings. Take for instance, delay in filing of an appeal or revision. It is known fact that in transaction of the Government business, none would own personal responsibility and decisions are leisurely taken at various levels. It is not uncommon that delay would be deliberately caused to confer advantage to the opposite litigant; more so when stakes involved are high or persons are well connected/influential or due to obvious considerations. The Courts, therefore, do not adopt strict standard of proof of every day''s delay. The imposition of costs on officers for filing appeals causes public injustice and gives the manipulators an opportunity to compound the camouflage. Secondly, the imposition of costs personally against the officers will be counter-productive and officers would desist to pursue genuine cases of public benefit or importance or of far-reaching effect on public administration or exchequer deflecting course of justice. The Court before imposing costs personally against the officers should be circumspect and keep at the back of its mind the facts and circumstances in each case. Otherwise, public justice will suffer irremediably. Unfortunately, in this case the delay in compliance is of one year and five months and the officer has not explained. The High Court was constrained to impose personal costs against the officer. Under the circumstances, we do not think that it is a fit case of interference."

Faced with this difficulty, Mr. Jetly would seek an extension of four weeks today and much after 30th June, 2014 to take an appropriate decision and in accordance with law. He submits that as a last chance this time be granted.

We do not countenance such state of affairs and particularly from the Directorate of Foreign Trade, the Director General of Foreign Trade or the Joint Director of Foreign Trade having his office at Mumbai. In the circumstances, we grant the time prayed but on the condition that the respondents shall pay costs, quantified at Rs. 1 lakh within four weeks from today to the petitioner. We refrain from imposing personal costs. The respondent No. 1 -Union of India / Central Government is free to recover the costs from either the then Director General of Foreign Trade or the Joint Director then functioning for the lapses on their part in complying with the orders and directions of this Court and thereafter creating difficulties for the Union of India/ Central Government.

The Writ Petition is disposed off with the above directions.