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2011 DIGILAW 1435 (PAT)

State of Bihar v. Ratan Kumar Singh

2011-07-13

S.K.KATRIAR, VIKASH JAIN

body2011
JUDGMENT S.K. Katriar. J.-The State of Bihar has preferred this appeal under Clause 10 of the Letters Patent of the High Court of Judicature at Patna, and is aggrieved by the order dated 22.12.2009, passed by a learned Single Judge of this Court, whereby CW.J.C. No. 15857 of 2009 (Ratan Kumar Singh VS. The State of Bihar and Others), has been allowed, and the order of punishment against the writ petitioner (the respondent herein), has been set aside. 2. A brief statement of facts essential for the disposal of this appeal may be indicated. The respondent herein (the writ petitioner) is a Junior Engineer in the services of the Bihar Government. A departmental proceeding had been initiated against him for acts of omission and commission with respect to discharge of his duties. After following the detailed procedure, the punishment of censure, and stoppage of promotion for the ensuing five years, was passed against him. He was denied salary except subsistence allowance for the period of suspension. His departmental appeal was dismissed on the ground of delay leading to C.W.J.C. No.9218 of 2009, in this Court. 2.1. The same was allowed by a learned Single Judge of this Court by order dated 4.8.2009, wherein it was observed that the learned appellate authority should not have dismissed the appeal on the ground of limitation, and ought to have considered the same on merits. Consequently the order of the learned appellate authority was set aside, and the matter was remitted to him for a fresh decision in accordance with law. The remand order was carried out, the appeal preferred by the respondent herein (writ petitioner) was rejected by order dated 30.10.2009, and impugned in the present Writ proceeding. 2.2. The learned Single Judge has set aside the order of the appellate authority, and has also declined permission to remit the matter to the learned appellate authority because such a course would be tantamount to abuse of the process of the court on the part of the State Government. The order of the learned appellate authority alongwith the order of punishment has been set aside. 3. While assailing the validity of the order of the learned Single Judge, the learned Government Counsel submits that the impugned order passed by the learned appellate authority is not bereft of reasons. The order of the learned appellate authority alongwith the order of punishment has been set aside. 3. While assailing the validity of the order of the learned Single Judge, the learned Government Counsel submits that the impugned order passed by the learned appellate authority is not bereft of reasons. In any view of the matter, the learned Single Judge ought to have given a fresh opportunity by remitting the matter to the appellate authority for disposal in accordance with law. 4. Learned counsel for the respondent has supported the order of the learned Single Judge. 5. We have perused the materials on record and considered the submissions of the learned counsel for the parties. It appears to us that, in the previous round of litigation, the learned appellate authority.had dismissed the departmental appeal preferred by the respondent herein solely on the ground of delay. This approach was disapproved by this Court on the earlier occasion when it had allowed C.W.J.C. No. 9218 of 2009. The writ petition was allowed with the observations that the learned appellate authority ought to have disposed of the matter on merits and in accordance with law, instead of dismissing the same In Limine on the ground of delay. The learned Single Judge had also noticed the controversy between the •parties as to who is the appropriate appellate authority. It appears from the tenor of the order that the learned appellate authority had to decide the question as to who is the appropriate appellate authority. The remand order has been carried out and the Deputy Secretary of the Bihar Government, in the Department of Water Resources, has dismissed the appeal by his order dated 30.10.2009, and impugned In the writ proceeding. 6. It appears to us on a perusal of the impugned order that it only gives a narration of the factual position without examining the matter on merits at all. We, therefore, entirely agree with the order of the learned Single Judge that, in spite of a clear directions of this Court on the previous occasion to dispose of the memorandum of appeal after assigning reasons and in accordance with law, the learned appellate authority has on the present occasion acted in defiance of the clear directions of this Court. A departmental appeal, which is a quasi-judicial function, has got to be disposed of after assigning reasons and in accordance with law. A departmental appeal, which is a quasi-judicial function, has got to be disposed of after assigning reasons and in accordance with law. This does not need any specific direction of this Court, notwithstanding which this Court had taken care to record clear direction which has been completely overlooked by the learned appellate authority. He has also made a grave error of disposing of the appeal without examining the question whether or not he is the competent authority to dispose of the appeal which was a clear direction of this Court on the previous occasion. This assumes importance in the background of the position, as we have been informed by the learned Government Counsel for the appellants, that Engineer-in-Chief is the disciplinary authority. In such a situation, has the Deputy Secretary the authority to sit in appeal over the order of the Engineer-in-Chief. Suppose for the sake of argument that the Engineer-in-Chief were not the disciplinary authority, it was yet imperative for the Deputy Secretary to examine and decide whether or not he is the prescribed authority vested with the appellate powers, and does not need a direction of the Court. We have no manner of doubt that the learned authority who passed the appellate order dated 30.10.2009, has acted with a grave sense of irresponsibility and in clear defiance of clear directions of this Court, which in any case do not require directions of this Court. Those are well established principles of law go without saying, and have to be observed in any event. 7. The duty to assign reasons in discharge of quasi-judicial functions has been the subject matter of a large number of decisions of the Supreme Court. It has been observed as follows in the judgment of the Supreme Court in the case of Siemens Engineering and Manufacturing Co. of India Ltd. vs. The Union of India and Another [ AIR 1976 SC 1785 : (1976)2 SCC 981 ]:- "6...It is now settled law that where an authority makes an order in exercise of a quasi-judicial function, it must record its reasons in support of the order it makes. Every quasi-judicial order must be supported by reasons. That has been laid down by a long line of decisions of this Court ending with N.M. Desai vs. Testeels Ltd. (CA No. 245 of 1970, dec. on December 17, 1975). Every quasi-judicial order must be supported by reasons. That has been laid down by a long line of decisions of this Court ending with N.M. Desai vs. Testeels Ltd. (CA No. 245 of 1970, dec. on December 17, 1975). But, unfortunately, the Assistant Collector did not choose to give any reasons in support of the order made by him confirming the demand for differential duty. This was in plain disregard of the requirement of law. The Collector in revision did give some sort of reason but it was hardly satisfactory. He did not deal in his order with the arguments advanced by the appellants in their representation dated December 8, 1961 which were repeated in the subsequent representation dated, June 4, 1965. It is not suggested that the Collector should have made an elaborate order discussing the arguments of the appellants in the manner of a court of law. But the order of the Collector could have been a little more explicit and articulate so as to lend assurance that the case of the appellants had been properly considered by him. If courts of law are to be replaced by administrative authorities and tribunals, as indeed, in some kinds of cases with the proliferation of Administrative Law, they may have to be so replaced, it is essential that administrative authorities and tribunals should accord fair and proper hearing to the persons sought to be affected by their orders and give sufficiently clear and explicit reasons in support of the orders made by them. Then alone administrative authorities and tribunals exercising quasi-judicial function will be able to justify their existence and carry credibility with the people by inspiring confidence in the adjudicatory process. The rule requiring reasons to be given in support of an order is, like the principle of audi alteram partem, a basic principle of natural justice which must inform every quasi-judicial process and this rule must be observed in its proper spirit and mere pretence of compliance with it would not satisfy the requirement of law. The Government of India also failed to give any reasons in support of its order rejecting the revision application." 8. To this has to be added the judgment of the Supreme Court in the case of The Manager, Government Branch Press and Anr. vs. D.B. Belliappa [ AIR 1979 SC 429 : (1979)1 SCC 477 ]. The Government of India also failed to give any reasons in support of its order rejecting the revision application." 8. To this has to be added the judgment of the Supreme Court in the case of The Manager, Government Branch Press and Anr. vs. D.B. Belliappa [ AIR 1979 SC 429 : (1979)1 SCC 477 ]. The relevant portion of paragraph 24 of the judgment is reproduced hereinbelow:- "24.The giving of reasons", as Lord Denning\'Put it in Breen vs. Amalgamated Engineering Union [(1971)1 All. E.R. 114], "is one of the fundamentals of good administration", and, to recall the words of this Court in Khudiram Das vs. State of West Bengal [ (1975)2 SCC 81 : 1975 SCC (Cri.) 435: (1975)2 SCR 832 , 845], in a Government of laws "there is nothing like unfettered discretion immune from judicial reviewability". The executive, no less than the judiciary, is under a general duty to act fairly. Indeed, fairness founded on reason is the essence of the guarantee epitomized in Articles 14 and 16(1 )." Law is thus well-established by authoritative pronouncements of the Supreme Court that every authority exercising quasijudicial functions is bound in law to assign reasons while disposing of such a matter. 9. In view of the narration of facts, it is evident that the prayer of the appellants before us is an effort to draw unlimited draughts on the existing legal system. While moving the Privy Council Appeal Act, 1874.. Lord Hobhouse, the then Law Member in the Government of India, had observed that the responsibility of the legislature is over the moment a well defined system is put in place. No one in this country has the liberty to make unlimited draughts on the system. This is equally applicable to the Government. 10. The following portion of the book by Fali S. Nariman, entitled "India's legal system: Can it be saved", deals with the speech of Lord Hobhouse as follows:- "More than one hundred years ago, a law member in the Government of India (Hobhouse) recorded in a minute dated 5 September, 1872 (on the Bill leading to the Privy Council Appeal Act, 1874) the following observations:- In considering what limit should be assigned to the power of appealing, our leading maxim is, that it is the interest of the commonwealth to have and end of law suits. No man has a right to unlimited draughts on the time and money of the public in order to get his private affairs settled as he wishes. The State's duty is discharged when it has provided such a reasonable amount of attention and skill and honesty as will satisfy reasonable men that their causes have been decided, erroneously or otherwise, on the merits, and according to the best ability of the Judge, and so will prevent them from feeling that resentment of sheer injustice which drives people to take the law into their hands and to wage private war Upon this principle all laws place soma limits to litigation. And so have we placed limits to the power of appealing. Pithily put, and elegantly phrased. The portion about no man having a right to unlimited draughts on the time and money of the public in order to get his private affairs settled as he wished was quoted by Justice Gajendragadkar (who later became Chief Justice of India) in one of the early reports of the Law Commission of India, but despite what was so wisely said by Mr. Hobhouse and again by Chief Justice Gajendragad,kar, our laws continue to provide (by way of appeals; reviews and revisions) unlimited draughts on the time and money of the public in order to get private affairs ultimately settled. For instance, we have now abolished second appeals, and yet lawyers go on arguing endlessly about the maintainability of intra-court appeals under special laws." 11. I am reminded of the. twofold conclusions of a research work in law that the Government, governmental agencies, the instrumentalities of the Government, and its functionaries, are parties to at least 70% of the litigations in this country. The second conclusion is• that, on account of their inefficiency, inaction, corruption, and the like, they are passing on their own decision-making to courts. This has to be read in the background of the observations of Bibek Debroy in his book entitled 'In the Dock: Absurdities of Indian Law', that the pending litigations in this country without any addition thereto, will take 324 years for disposal. These observations were made two decades ago, and the situation has further deteriorated. A learned Judge of the Andhra Pradesh High Court has recently observed that it will now take 350 years or so to dispose of the pending cases. These observations were made two decades ago, and the situation has further deteriorated. A learned Judge of the Andhra Pradesh High Court has recently observed that it will now take 350 years or so to dispose of the pending cases. The present appeal at the instance of the State of Bihar is entirely covered by the aforesaid observations. We have no manner of doubt that the present appeal is a gross abuse of the process of the Court attributable to the State Government, generating unwanted and clearly avoidable litigations. 12. Learned counsel for the appellant prays that one more opportunity may be allowed to dispose of the appeal. We are of the view that, in the circumstances of the case, the learned Single Judge has declined to remit the matter to the learned appellate authority to reconsider the matter. On the earlier occasion, the learned appellate authority was in error in dismissing the appeal on the ground of delay, without consideration on merits. The High Court on the earlier occasion had set aside the order of the appellate authority, and gave fresh opportunity with clear guidance and direction to dispose of the appeal on merits and in accordance with law. The guidance stated therein goes without saying. The High Court had remitted the matter with the observations as a matter of abundant precaution, and the appeal was disposed of overlooking the same. It is not possible to give advantage to the State Government for their repeated lapses. How much of premium can, be put on the nf3gligence of the State Government. Furthermore, the occurrence is of the year 1987-89. 13. We do not find any merit in this appeal. It is accordingly dismissed. 14. Let a copy of this judgment be handed over to Mr. Lalit Kishore, learned Additional Advocate General No.1. to be forwarded to the Chief Secretary of this State who, in his turn, shall place it before the Chief Minister of the State to check unwanted flow of litigations to this . Court, at the instance of the State Government and its functionaries. 14.1. Forward copy of this order to the Law Secretary and Legal Remembrancer for the needful. Vikash Jain, J..:-t agree.