Devi Prasad Singh, J.@mdashHeard.
The present writ petition has been preferred under Article 226 of the Constitution of India against the impugned order of dismissal from service. Learned Counsel for the Petitioner has proceeded to assail the impugned order on two folds of arguments. Firstly ; the punishment awarded is dis-proportionate of misconduct committed by the Petitioner. Secondly ; the competent authority had not considered the evidence on record while arriving to the conclusion.
The brief facts of the case are as under:
Petitioner, while working on the post of Accountant in the U. P. Forest Corporation at Gonda was served a charge-sheet dated 26.8.2001 containing five charges.
(a) The first charge relates to loss to the tune of Rs. 8,95,094.80 paise to the Nigam ;
(b) Second charge relates to non-compliance of Account Manual as well as Circular issued by the Corporation ;
(c) The third charge relates to non-discharging of duties assigned to the Petitioner ;
(d) Fourth charge relates to lack of discharge of duties in accordance to Rules by failing to get the vouchers for payment to be passed by Sales Manager ; and (e) Fifth charge relates to deliberate unfair practice on the part of Petitioner resulting in loss of Rs. 79,523 to Van Nigam.
Petitioner had submitted response to the charge-sheet and denied the allegation. Thereafter Enquiry Officer had submitted his report after due enquiry. A copy of the enquiry report has been filed as Annexure-2 to the writ petition. Enquiry Officer had exonerated the Petitioner from charge No. 2 but found charge Nos. 1, 3, 4 and 5 partially proved. Copy of the enquiry report has been filed as Annexure-5 to the writ petition.
2. So far as the first charge is concerned, the Enquiry Officer had recorded a finding that total loss caused to the U. P. Van Nigam was Rs. 8,76,520.80 paise. However, a finding has been recorded that it was the duty of Assistant Accountant of the Depot to receive statement from Bank and take necessary steps. Because of inaction on the part of Assistant Accountant and being failing on his part to discharge duty the Nigam had suffered loss of Rs. 8,76,520.80 paise. While exonerating the Petitioner from direct involvement relating to loss caused to the Nigam the Enquiry Officer held that indirectly Petitioner may also be held responsible. It was his duty being superior officer to supervise his office. Manual provides that it shall be duty of Accountant to superintend the office. For the lack of superintendence on the part of Petitioner the subordinate Assistant Accountant had committed lapses while discharging duty. The other finding recorded by the Enquiry Officer is that Petitioner has not kept the record upto mark and get it audited. The sum and substance relating to allegation against the Petitioner of charge No. 1 is that being higher officer and incharge of the office it was duty of Accountant to keep the office up to mark by taking appropriate steps against the subordinates to check pilferage of Government fund.
3. So far as the second charge is concerned Petitioner has been exonerated by the Enquiry Officer, hence need not to be discussed. On third charge the Enquiry Officer had recorded a finding that though Petitioner may not be held responsible in violating the duty as per manual but on account of negligence or carelessness on his part in maintenance of account he may be held responsible of dereliction in duty.
4. With regard to 4th charge the Enquiry Officer held that Petitioner had not taken steps to get general vouchers passed by Regional Sales Manager of the Nigam. Accordingly, he is responsible for dereliction in duty on account of non-compliance to relevant rules and regulations while discharging duty on the post of Accountant.
5. With regard to fifth charge, it has been held by the Enquiry Officer that it was the duty of Petitioner to issue appropriate direction through Divisional Sales Manager to tone up the functioning of Divisional Assistant Accountant and depot Assistant Accountant. Because of lapses on his part during discharge of duties the Nigam had suffered loss to the tune of Rs. 79,523. The outcome of charge No. 5 seems to be is that being supervisory authority of the Account Section Petitioner had not discharged duties desirable as per rule or manual. He had not taken steps to get a thing enquire at relevant time. The Enquiry Officer had rejected the submission made by the Petitioner that he was not responsible in any manner. The responsibility shifted by the Petitioner exclusively on the Assistant Accountant has not been accepted by the Enquiry Officer keeping in view his duties of the post in question.
6. Now coming to the argument advanced by the Petitioner''s counsel that evidence has not been considered seems to be not sustainable. The Enquiry Officer had given a detailed finding which indicates that Petitioner has failed to discharge his duties while holding the post of Accountant. The illegalities or irregularities committed by the Assistant Accountant cannot be held to be self centered.
Whenever higher authority is granted power of superintendence over subordinates then it shall always be duty of such authorities to keep a watch over his subordinates to check them from doing any malpractices while discharging public duties, more so where the fund of public exchequer is involved.
The supervisory authority cannot shirk from its responsibility by saying that the embezzlement has been committed by the subordinates more so when like in the present case admittedly cheques and vouchers were processed through Petitioner.
7. While processing the cheques, bills and vouchers it was incumbent upon the Petitioner to keep an eye on the payment made on behalf of Nigam. It was duty of Petitioners while forwarding the cheques and vouchers or issuing cheque and signing bills, to verify the genuineness of amount which was released through cheques or the proposed bills or the vouchers of payment. Ordinarily without involvement of higher authorities no corrupt practices can prevail in any Government department bearing few exceptions, more so when a thing goes on for month or years to come. Things would have been different in case, in a short span of time some illegality or irregularities would have been committed by the Government employee. But in the present case payments were made for a long period through cheques, bills or vouchers cleared by higher authorities. Then such higher authorities may very well be held responsible for dereliction in duty.
8. The authorities who are incompetent and does not serve the public cause have got no right to hold the office. Failing in duty to keep a watch on subordinates and give a free hand to subordinates to indulge into corrupt practices is a sufficient ground to weed out such authorities from public employment, either through removal or dismissal in accordance to law or through compulsory retirement. Enquiry Officer has given a detail finding after considering entire facts and circumstance of the case and evidence on record.
9. It is settled law that power under Article 226 of the Constitution of India is to see the correctness of decision making process and not to evaluate or appreciate the evidence on record vide
10. In a case in R. v. Northumberland Compensation Appellate Tribunal, (1952) 1 All ER 122 Lord Morris stated:
It is plain that ''certiorari'' will not issue as the cloak of an appeal in disguise. It does not lie in order to bring up an order or decision for rehearing of the issue raised in the proceedings. It exists to correct error of law when revealed on the face of an order or decision or irregularity or absence of or excess of jurisdiction when shown.
11. The same principles have been applied in India. In
Such writs as are referred to in Article 226 are obviously intended to enable the High Court to issue them in grave cases where the subordinate Tribunal or bodies or officers act wholly without jurisdiction or in excess of it, or in violation of the principles of natural justice, or refuse to exercise a jurisdiction vested in them or there is an error apparent on the face of the record and such act, omissions, error, or excess has resulted in manifest injustice. However extensive the jurisdiction may be, it seems to us that it is not so wide or large as to enable the High Court to convert itself into a court of appeal and examine for itself the correctness of the decision impugned and decide what is the proper view to be taken or the order to be made.
12. In
In granting a writ of ''certiorari'' the superior court does not exercise the powers of an appellate Tribunal. It does not review or reweigh the evidence upon which the determination of the inferior Tribunal purports to be based. It demolishes the order which it considers to be without jurisdiction or palpably erroneous but does not substitute its own views for those of the inferior Tribunal.
13. In
The Court issuing a writ of certiorari acts in exercise of a supervisory and not appellate jurisdiction. One consequence of this is that the Court will not review findings of fact reached by the inferior Court or Tribunal, even if they be erroneous. This is on the principle that a Court which has jurisdiction over a subject-matter has jurisdiction to decide wrong as well as right, and when the Legislature does not choose to confer a right of appeal against that decision, it would be defeating its purpose and policy, if a superior Court were to rehear the case on the evidence and substitute its own finding in certiorari.
14. In
The common law writ, now called order of certiorari, which was also adopted by our constitution, is not meant to take the place of an appeal where the statute does not confer a right of appeal. Its purpose is only to determine, on an examination of the record, whether an inferior Tribunal has exceeded its jurisdiction or has not proceeded in accordance with the essential requirements of the law which it was meant to administer. Mere formal or technical errors, even though of law, will not be sufficient to attract this extraordinary jurisdiction.
15. In
In the exercise of certiorari jurisdiction the High Court proceeds on an assumption that a Court which has jurisdiction over a subject-matter has the jurisdiction to decide wrongly as well as rightly. The High Court would not, therefore, for the purpose of certiorari assign to itself the role of an appellate court and step into re-appreciating or evaluating the evidence and substitute its own finding in place of those arrived at by the inferior court.
16. In view of above, the first argument advanced by the learned Counsel for the Petitioner does not meet out the requirement necessary for interference under extraordinary jurisdiction of Article 226 of the Constitution of India.
17. Now coming to the second argument relating to quantum of punishment. The jurisdiction under Article 226 of the Constitution of India with regard to decision making process by the Government is ordinarily exercised in accordance to Wednesbury principle. Keeping in view the law settled by the Apex Court and in view of Wednesbury principle ordinarily the quantum of punishment may not be a subject matter of consideration by this Court under extraordinary remedy. The order passed by an Authority or Tribunal or body should be irrational suffer from substantial illegality or impropriety, is the condition precedent to exercise power under Articles 226/227 of the Constitution of India.
18. In a case in Associated Provincial Picture Houses Limited v. Wednesbury Corporation, (1947) 2 All ER 680. Lord Greener M. R., proceeded to hold as to what extent Court can interfere with an order passed by the Executive authorities to quote:
What, then is the power of the Courts? They can only interfere with an act of executive authority if it be shown that the authority has contravened the law. It is for those who assert that the local authority has contravened the law to establish that proposition. On the face of it, a condition of the kind imposed in this case is perfectly lawful. It is not to be assumed prima face that responsible bodies like the local authority in this case will exceed their powers, but the Court, whenever it is alleged that the local authority have contravened the law, must not substitute itself for that authority. It is only concerned with seeing whether or not the proposition is made good. When an executive discretion is entrusted by Parliament to a body such as the local authority in this case, what appears to be an exercise of that discretion can only be challenged in the Courts in a strictly limited class of case.
Again in the same case Lord Greener held as under:
...They have considered it and come to a decision upon it. It is true to say that, if a decision on a competent matter is so unreasonable that no reasonable authority could ever have come to it, then the Courts can interfere, that, I think, is quite right ; but to prove a case of that kind would require something overwhelming, and, in this case, the facts do not come anywhere near anything of that kind. I think Mr. Gallop in the end agreed that his proposition that the decision of the local authority can be upset if it is proved to be unreasonable, really meant that it must be proved to be unreasonable in the sense that the Court considers it to be a decision that no reasonable, a different thing altogether...the Court is entitled to investigate the action of the local authority with a view to seeing whether they have taken into account matters which they ought not to take into account or conversely, have refused to take into account, or neglected to take into account matters which they ought to take into account. Once that question is answered in favour of the local authority, it may be still possible to say that, although the local authority have kept within the four corner of the matters which they ought to consider, they have nevertheless come to the conclusion so unreasonable that no reasonable authority could ever have come to it. In such a case again. I think the Court can interfere. The power of the Court to interfere in each case is not as an appellate authority to override a decision of the local authority, but as a judicial authority which is concerned, and concerned only, to see whether the local authority have contravened the law by acting in excess of the powers which Parliament has confided in them.
19. In a case in Council of Civil Services Union and Ors. v. Minister for the Civil Services, (1984) 3 All ER 935, question involved was whether the Prime Minister of England was having power to pass an order without following the procedural application and also without consulting the person concerned while exercising power under Article 4 of the order in council. It was argued by the Respondents in the appeal that order in council was not issued by any power confirmed by Act of Parliament but it was issued by resonant by virtue of her prerogative of course on the advice of the Government of the day. Accordingly, it was submitted that instructions were not open to rule by Courts because it was an imagination of the prerogative. Accordingly it was submitted that prerogative power are discretionary power which may by exercised as the discretion of sovereign and secondly an instructions given in the exercise of delegated power confirmed by the sovereign under the prerogative enjoys the same immunity from review as if it were itself a direct exercise of prerogative powers. The court of appeal had dismissed the appeal only on technical ground on account of involvement of national security but otherwise allowed the appeal on the procedural ground that the Respondents had acted unfairly in failing to consult unions or staff before making her decision in accordance to relevant procedure. Lord Diplock in the said judgment had proceeded to hold as under:
40. For a decision to be susceptible to judicial review the decision maker must be empowered by public law (and not merely, as in arbitration, by agreement between private parties) to make decisions that, if validly made, will lead to administrative action or abstention from action by an authority endowed by law with executive powers, which have one or other of the consequences mentioned in the preceding paragraph. The ultimate source of the decision-making power is nearly always now-a-days a statute or subordinate legislation made under the statute, but in the absence of any statute regulating the subject-matter of the decision the source of the decision making power may still be the common law itself, i.e., that part of the common law that is given by lawyers the label of the prerogative. Where this is the source of decision making power, the power is confined to executive officers of the central as distinct from local Government and in constitutional practice is generally exercised by those holding ministerial rank.
43. Nevertheless, whatever label may be attached to them there have unquestionably survived into the present day a residue of miscellaneous fields of law in which the executive Government retains decision-making powers that are not dependent on any statutory authority but nevertheless have consequences on the private rights or legitimate expectations of other persons which would render the decision subject to judicial review if the power of the decision maker to make them were statutory in origin. From matters so relatively minor as the grant of pardons to condemned criminals, of honours to the good and great, of corporate personality to deserving bodies of persons, and of bounty from moneys made available to the executive Government by Parliament, they extend to matters so vital to the survival and welfare of the nation as the conduct of relations with foreign States and (what lies at the heart of the present case) the defence of the realm against potential enemies. Adopting the phraseology used in the Convention for the Protection of Human Rights and Fundamental Freedoms (Riome 4th November, 1950 ; The submission of the learned Counsel for the Petitioner is that 71 (1953) ; Cmd 8969), to which the United Kingdom is a party, it has not become usual in statutes to refer to the letter as ''national security''.
44. My Lord, I see no reason why simply because a decision-making power is derived from a common law and not a statutory source it should for that reason only be immune from judicial review. Judicial review has I think developed to a stage today when, without reiterating any analysis of the steps by which the development has come about, on 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''. That is not to say that further development on a case by case basis may not in course of time add further grounds. I have in mind particularly the possible adoption in the future of the principle of ''proportionality'' which is recognised in the administrative law of several of our fellow members of the European Economic Community ; but to dispose of the instant case the three already well-established heads that I have mentioned will suffice.
45. By ''illegality'' as a ground for judicial review I mean that the decision maker must understand correctly the law that regulates his decision making power and must give effect to it. Whether he has or not is par excellence a justiciable question to be decided, in the event of dispute, by those persons, the Judges, by whom the judicial power of the State is exercisable.
46. By ''irrationality'' I mean what can by now be succinctly referred to as ''Wednesbury unreasonableness'' (see Associated Provincial Picture Houses Ltd. v. Wednesbury Corp. (1947) 2 All ER 680: (1948) 1 KB 223). It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it. Whether a decision falls within this category is a question that Judges by their training and experience should be well equipped to answer, or else there would be something badly wrong with our judicial system. To justify the Court''s exercise of this role, resort I think is today no longer needed to Viscount Radcliffe''s ingenious explanation in Edwards (Inspector of Taxes) v. Bairstow (1955) 3 All ER 48: (1956) AC 14 of irrationality as a ground for a Court''s reversal of a decision by ascribing it to an inferred though unidentifiable mistake of law by the decision-maker. "Irrationality" by now can stand on its own feet as an accepted ground on which a decision may be attacked by judicial review.
47. I have described the third head as ''procedural impropriety'' rather than failure to observe basic rules of natural justice or failure to act with procedural fairness towards the person who will be affected by the decision. This is because susceptibility to judicial review under this head covers also failure by an Administrative Tribunal to observe procedural rules that are expressly laid down in the legislative instrument by which its jurisdiction is conferred, even where such failure does not involve any denial of natural justice. But the instant case is not concerned with the proceedings of an Administrative Tribunal at all.
49. As respects ''procedural property'', I see no reason why it should not be a ground for judicial review of a decision made under powers of which the ultimate source is the prerogative. Such, indeed, was one of the grounds that formed the subject-matter of judicial review in R. v. Criminal Injuries Compensation Board, ex p. Lain (1967) 2 All ER 770: (1967) 2 QB 864. Indeed, where the decision is one which does not alter rights or obligations enforceable in private law but only deprives a person of legitimate expectations, procedural impropriety'' will normally provide the only ground on which the decision is open to judicial review. But in any event what procedure will satisfy the public law requirement of procedural propriety depends on the subject-matter of the decision. The executive functions of the decision-maker (if the decision is not that of an Administrative Tribunal) and the particular circumstances in which the decision came to be made.
67. Dicey''s classic statement in Law of the Constitution (10th Edn., 1959), p. 424, that the prerogative is the residue of discretionary or arbitrary authority, which at any given time is legally left in the hands of the Crown'' has the weight behind it not only of the author''s own authority but also of the majority of this House in Burmah Oil Co. (Burma Trading) Ltd. v. Lord Advocate (1964) 2 All ER 348 : (1965) AC 75 Lord Reid. But as Lord Reid himself pointed out, this definition ''does not take us very far''. On the other hand the attempt by Lord Denning M.R. in Laker Airways Ltd. v. Dept. of Trade (1977) 2 All ER 182 : (1977) QB 643 at 705(obiter since the other members of the court of appeal did not take so broad a view) to assert that the prerogative ''if...exercised improperly or mistakenly'' was reviewable is, with great respect, far too wide. Lord Denning M.R., sought to support his view by a quotation from Blackstone''s Commentaries (1 B1 Com (15th Edn.) 252). But unfortunately and no doubt inadvertently he omitted the opening words of the paragraph:
in the exercise therefore of those prerogatives, which the law has given him, the king is irresistible and absolute, according to the forms of the constitution. And yet, if the consequence of that exertion be manifestly to the grievance or dishonour of the kingdom, the Parliament will call his advisers to a just and severe account.
In short the orthodox view was at that time that the remedy for abuse of the prerogative lay in the political and not in the judicial field.
My Lord, the right of the executive to do a lawful act affecting the rights of the citizen, whether adversely or beneficially, is founded on the giving to the executive of a power enabling it to do that act. The giving of such a power usually carries with it legal sanctions to enable that power if necessary to be enforced by the Courts. In most cases that power is derived from statute though in some cases, as indeed in the present case, it may still be derived from the prerogative. In yet other cases, set decisions show, the two powers may co-exist or the statutory power may be necessary implication have replaced the former prerogative power. If the executive in pursuance of the statutory power does an act affecting the rights of the citizens, it is beyond question that in principle the manner of the exercise of that power may today be situation which the oral instructions were themselves designed to avoid, namely the risk of industrial action by the staff at G.C.H.Q. caused or at least facilitated by a membership of Trade Unions, and damaging to National Security, G.C.H.Q. was, it was said, and is, highly vulnerable have revealed to those who have previously organised disruption that high degree of vulnerability.
20. Relying upon Wednesbury principle, Hon''ble Supreme Court in catena of judgment settled that ordinarily Court should not interfere with the quantum of punishment awarded by competent authority while exercising administrative power. The extraordinary jurisdiction may be exercised on the ground of disproportionate punishment only in case the decision taken by the authorities is illogical suffers from procedural impropriety or shocking the conscious of Court vide Om Kumar and Anr. v. Union of India 2001 (2) SCC 386 ;
The common thread running through in all these decisions is that the Court should not interfere with the administrator''s decision unless it was illogical or suffers from procedural impropriety or was shocking to the conscience of the Court, in the sense that it was in defiance of logic or moral standards. In view of what has been stated in Wednesbury case the Court would not go into the correctness of the choice made by the administrator open to him and the Court should not substitute its decision for that of the administrator. The scope of judicial review is limited to the deficiency in decision-making process and not the decision.
21. Moreover, as held in Wednesbury''s case and by Hon''ble Supreme Court, the power of judicial review means to ensure that the individual receives fair treatment and to ensure that the authority after according fair treatment reaches on a matter which it is authorized by law to decide for itself, a conclusion which is correct in the eyes of law. The case laws referred and discussed hereinabove postulates that this Court while exercising jurisdiction under Article 226 of the Constitution of India should normally look into the procedure adopted by authorities arriving to the conclusion for passing an order of punishment. On the question of quantum of punishment inference should be done only on limited ground and in rarest of rare cases where the punishment awarded to an employee is so disproportionate that it shake up the conscious to a person. The present case seems to be does not covered by the exception provided by Hon''ble Supreme Court for inference on the ground of quantum of punishment. Accordingly, the impugned order does not deserve for inference on the ground of quantum of punishment and it does not seems to be disproportionate to the misconduct committed by the Petitioner.
22. As discussed hereinabove, in case corrupt practices continue for a long period and Government officer failed to supervise his subordinates resulting in huge loss to the Government may create a ground for dismissal or removal from service, even if there is no direct evidence but the material on record and related circumstances create reasonable doubt relating to involvement of supervisory authority. The removal or dismissal of such authority like in the present case accountant on the basis of an enquiry report shall not suffer from any impropriety or illegality. Every officer who possesses supervisory power or having direct control over the subordinates may be held responsible for lapses on the part of subordinates, but that shall depend upon the facts and circumstances of a particular case and not as general law. In the present case all the payment made through cheque, bill or vouchers were cleared by Petitioner himself. While clearing the bills, cheques and vouchers under his own signature it was duty of Petitioner to see as to whether the payment was made to meet out the genuine demand. Admittedly under relevant Manual the power of superintendence was vested in Petitioner. Since the unfair practice conducted for sufficient long period Petitioner''s involvement cannot be ruled out. Accordingly dismissal of service on account of lapses on the part of Petitioner in discharging of duties resulting in huge loss to Corporation was not disproportionate to misconduct committed by the Petitioner.
23. The falling standard in our system resulting in loss to public exchequer and multiple problem faced by the citizen is because of non-accountable system of administration. Everyone who is incharge of a department at local, district or State level can very well be held responsible for administrative lapses misappropriation of fund keeping in view the facts and circumstances of a particular case. Accordingly, the impugned order does not seem to suffer from any impropriety or illegality. Writ petition is devoid of merit to the extent Petitioner has been awarded with the major penalty of dismissal from service. No other point has been raised by the Petitioner''s counsel while assailing the impugned order of dismissal.
24. From the impugned order it appears that Petitioner has been paid any subsistence allowance of the period of suspension. The impugned order has been passed after conclusion of enquiry and during the period of enquiry Petitioner was under suspension. Keeping in view the facts and circumstances it shall be appropriate that Petitioner may be paid salary including perks etc. up to date when impugned order of dismissal was passed.
25. In view of above, writ petition is dismissed to the extent it relates to imposition of major penalty is concerned. However, writ petition is allowed in part to the extent it relates to non-payment of full salary during the period of suspension. Respondents are directed to pay full salary to the Petitioner up to date when the impugned order of suspension was passed.
Subject to above, writ petition is dismissed. No order as to costs.
