CWP No.3457 of 2008 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No.3457 of 2008 Date of decision : 18-2-2009 V.K. Jain ....Petitioner VERSUS National Hydroelectric Power Corporation Limited and Others ....Respondents CORAM:- HON'BLE MR. JUSTICE AJAI LAMBA Present: Mr. Adarsh Jain, Advocate, for the petitioner. Mr. I.P.S. Doabia, Advocate, for the respondents. AJAI LAMBA, J. (Oral) This Civil Writ Petition challenges order dated 8-5-2003 (Annexure P-8) whereby the penalty of withholding one increment without cumulative effect has been imposed on the petitioner who then was working as General Manager, TEESTA Project in East Sikkim. Prayer is also for quashing order dated 26-5-2005 (Annexure P-10) whereby the appellate authority has dismissed the appeal filed by the petitioner. Challenge is also to order dated 11-4-2007 (Annexure P-14) i.e. the order passed on review application of the petitioner. Short ground taken by the learned counsel for the CWP No.3457 of 2008 -2- petitioner is that though detailed grounds for appeal were taken, however, the appellate authority has not considered them. Speaking and reasoned order was required to be passed. Perusal of order Annexure P-10 shows that it is an order that does not assign any reason for dismissal of appeal. Learned counsel appearing for the respondents has not been able to show that the order passed by the appellate authority is reasoned order or speaking order in relevant context of the grounds of appeal. I have considered the issued. It seems that some furniture items were required to be purchased for the project. The petitioner appointed a purchase committee for purchase of furniture items. The furniture items were, however, purchased from Bareilly rather than Siliguri which is in close proximity to the project site. Essentially, on this ground vide Annexure P-6 of December 2002, statement of imputations of misconduct as framed by the authorities, was served upon the petitioner. The petitioner responded to the said memorandum vide Annexure P-7 dated 1-2-2003 . It has been projected on behalf of the petitioner before the Disciplinary Authority that the purchase committee was appointed after taking sanction from Finance Branch. The items purchased were at more reasonable rate as compared to the rates in Siliguri. The table of comparative rates has been given in the reply. It has further been projected that it is the purchase committee that had made the purchases and the committee was not influenced by any extraneous factor. The Disciplinary Authority was not satisfied with the CWP No.3457 of 2008 -3- explanation and therefore vide order dated 8-5-2003 (Annexure P-8) penalty of withholding one increment without cumulative effect was imposed on the petitioner. The petitioner carried an appeal vide grounds of appeal dated 3-6-2003 which have been placed on record as Annexure P-9. The petitioner clearly stated that earlier certain items of furniture had been purchased from Siliguri. Details of purchase of items of similar nature has been annexed as Annexure-I, and photocopies of purchase orders as Annexure-II, to the grounds of appeal. It has further been projected that in fact the action of the petitioner of getting the furniture items purchased from bareilly had saved the Corporation a sum of Rs.72,150/-. Even the details of transportation charges etc. had been given. The appellate authority without dealing with the grounds has merely stated in impugned order dated 26-5-2005 (Annexure P-10) that nothing new had been stated by the petitioner and there was no change in the stand of the petitioner. The petitioner filed a review. The same has been dismissed vide order dated 11-4- 2007 (Annexure P-14). The relevance of passing a speaking and reasoned order has been considered by Full Bench of this Court in Ram Niwas Bansal Vs. State Bank of Patiala and another, 1998(4) SLR 711. Para 11 of the judgment needs to be referred to exactly and is reproduced hereunder:- "The Supreme Court of India in the case of Maneka Gandhi v. Union of India, A.I.R. 1978 Supreme Court CWP No.3457 of 2008 -4- 597 defined the natural justice as a facet of fair play and defined it as "quintessence of the process of justice inspired and guided by fair play in action; while in another situation it can be described "as a distillate of due process of law". Thus, the expression natural justice has been always understood and given wider meaning to achieve the ends of justice rather than permit the principles of law or procedure or to decimate the spirit behind the principles of natural justice, which would ultimately hamper proper administration of justice. Whenever a delinquent officer prefers an appeal against any order imposing penalty upon him, and such an appeal is a statutory appeal, then such appeal must be heard and decided in consonance with the settled principles of natural justice. Various judgments of the Hon'ble Supreme Court of India and for that matter in other various legal systems over the world have accepted the application of principles of natural justice to domestic administrative tribunals and specially the authorities which are discharging quasi- judicial functions. Adherence to the principles of natural justice by the appellate authority would normally have to keep three ingredients in mind when an appeal is preferred before such authority:- (a) There should be proper application of mind and scrutiny of the records before it, by the appellate authority to enable it to record its satisfaction in terms of the rules. (b) It should pass a speaking order which would atleast prima-facie show that the authority concerned has applied its mind to the various contentions or points of determination raised before it. Further that it has particularly examined whether the penalty imposed is excessive and/or CWP No.3457 of 2008 -5- inadequate. (c) The scope of applicability of the maxim Audi Alteram Partem before the appellate authority depending upon the language of relevant regulation/rule." It can safely be concluded that the appellate authority is required to reappreciate the entire material to see whether the findings arrived at by the disciplinary authority are justified or not. The Courts are reluctant to interfere in the findings arrived at by the departmental authorities and punishment imposed thereupon, unless and until such findings are totally perverse or the punishment imposed is on the face of it so unreasonable and unfair that it pricks the judicial conscience of the Court. Judicial review of administrative action, such as that of the respondents, is very limited in so much as the decision itself, ordinarily, is not required to be interfered with. Only the decision making process is required to be seen as to whether it has been followed. Such limited scope of judicial review pre-supposses and imposes corresponding obligation upon the departmental authority to act with greater caution and care, with due regard and adherence to the principles of natural justice. It has to be emphasized that appellate authority must pass a reasoned order dealing with contentions raised by the appellant. Reasoned decisions will promote public confidence in administrative process. In the above context, reference may also be made to judgment of the Hon'ble Supreme Court of India rendered in Apparel Export Promotion Council Vs. A.K. Chopra, 1999(1) Service CWP No.3457 of 2008 -6- Cases Today 642. Para 15 of the judgment needs to be referred to exactly and is reproduced hereunder:- "The High Court appears to have over-looked the settled position that in departmental proceedings, the disciplinary Authority is the sole Judge of facts and in case an appeal is presented to the Appellate Authority, the Appellate Authority has also the power and jurisdiction to re-appreciate the evidence and come to its own conclusion, on facts, being the sole fact finding authorities. Once findings of fact, based on appreciation of evidence are recorded, the High Court in Writ Jurisdiction may not normally interfere with those factual findings unless it finds that the recorded findings were based either on no evidence or that the findings were wholly, perverse and/or legally untenable. The adequacy or inadequacy of the evidence is not permitted to be canvassed before the High Court. Since, the High Court does not sit as an Appellate Authority, over the factual findings recorded during departmental proceedings, while exercising the power of judicial review, the High Court cannot normally speaking substitute its own conclusion, with regard to the guilt of the delinquent, for that of the departmental authorities. Even insofar as imposition of penalty or punishment is concerned, unless the punishment or penalty imposed by the Disciplinary or the Departmental Appellate Authority, is either impermissible or such that it shocks the conscience of the High Court, it should not normally substitute its own opinion and impose some other punishment or penalty. Both the learned Single Judge and the Division Bench of the High Court, it appears, ignored the well-settled principles that even though Judicial Review of administrative action must remain flexible and its dimension not closed, yet the Court CWP No.3457 of 2008 -7- in exercise of the power of judicial review is not concerned with the correctness of the findings of fact on the basis of which the orders are made so long as those findings are reasonably supported by evidence and have been arrived at through proceedings which cannot be faulted with for procedural illegalities or irregularities which vitiate the process by which the decision was arrived at. Judicial Review, it must be remembered, is directed not against the decision, but is confined to the examination of the decision-making process. Lord Haltom in Chief Constable of the North Wales Police v. Evans, (1982) 3 All ER 141, observed: "The purpose of judicial review is to ensure that the 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 for itself, a conclusion which is correct in the eyes of the court." It is a principle of good administration that the appellate authority should assign reasons while dealing with appeal. I find that the petitioner is a General Manager and is reasonably high in hierarchy. The executive decision was taken by the petitioner which in his perception has saved money for the Corporation. The reasons assigned by the petitioner for acting in a particular manner are required to be assessed in its proper spirit and light. The grounds of appeal and the stand of the petitioner is required to be perused, examined and considered. After considering all the relevant facts and circumstances, a speaking and reasoned order is required to be passed. In view of the above, this appeal is allowed to the extent CWP No.3457 of 2008 -8- that order Annexures P-10 and P-14 are set aside. The appellate authority would reconsider the appeal and pass speaking and reasoned order in the light of what has been held above. It is made clear that the petitioner would be given further opportunity to supplement grounds of appeal and would be given a chance to be heard, in person. (AJAI LAMBA) 18-2-2009 JUDGE manju