Allahabad High Court

Parmatma Sahai vs State Of U.P. & Others on 23 July, 2013

Bench: Sudhir Agarwal




HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 34
 

 
Case :- WRIT - A No. - 51209 of 2009
 

 
Petitioner :- Parmatma Sahai
 
Respondent :- State Of U.P. & Others
 
Counsel for Petitioner :- Miss Rashmi Tripathi,Anil Bhushan
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Sudhir Agarwal,J.

1. Heard Sri Aditya Bhushan, Advocate, holding brief of Sri Anil Bhushan, Advocate for the petitioner and learned Standing Counsel.

2. The writ petition is directed against orders dated 27.11.2008 passed by Finance Controller (Food and Civil Supplies), Government of U.P., Lucknow (Annexure 3 to the writ petition) and 25th February, 2010 (Annexure 5 to the writ petition) passed by Commissioner, Food and Civil Supplies Department, Lucknow.

3. The facts, in brief, given rise to the present dispute are as under:

4. The petitioner joined Food and Civil Supply Department of State of Uttar Pradesh as Marketing Inspector in 1963 and on attaining the age of superannuation, retired on 14.10.1997. One of the grievance of the petitioner is that more than a decade had passed, but, the amount of gratuity payable to the petitioner has not been paid at all. An order was passed on 14th October, 1997 by Regional Food Controller, Kanpur directing for recovery of Rs.29719=85 from the petitioner pursuant to an audit objection raised in the audit report of Controller and Accountant General. The petitioner assailed the aforesaid order in Writ Petition No.37892 of 1998, wherein, aforesaid order was stayed on 21st September, 1998. This Court, however, gave liberty to the respondents to pass a fresh order or to take action under Regulation 351A of Civil Services Regulation in accordance with law. The petitioner then approached respondents authorities for payment of his pension and commutation. The Finance Controller, Department of Food and Civil Supplies, U.P. Lucknow issued an order on 27th November, 2008 communicating sanction for payment of Rs.1,18,936/- towards gratuity. However, it further directed that payment shall be made after adjusting Rs.1,00,902=41 recoverable pursuant to Regional Food Controller's order dated 27th September, 2001 and to withhold Rs.17, 354/- provisionally. A sum of Rs.40/- was also directed to be recovered from other dues payable to the petitioner.

5. Grievance of the petitioner was that even sanctioned amount payable was not paid. The petitioner made a representation against order dated 27th November, 2008 before Additional Commissioner, Food and Civil Supplies, vide application dated 10.6.2009 wherein he raised his grievance and besides other, also said that before directing for recovery, no opportunity was afforded to the petitioner. It also said that there is no justification to withhold or not to pay Rs.1,18,396/- to the petitioner. No order thereupon was passed by the respondents and hence this writ petition.

6. During pendency, Commissioner, Food and Civil Supplies passed an order dated 25.2.2010 for recovery of Rs.17,534/- from the petitioner. It is said that in the context of recovery of Rs.17,534.09, a show cause notice dated 8.01.1999 was issued which was replied by petitioner and thereafter impugned order has been passed after more than 11 years and a bare perusal thereof would show that no reason has been assigned therein and it is wholly unreasoned, non speaking order.

7. Similarly, in respect to the recovery of Rs.1,00,902/-, it is contended that at no point of time petitioner was afforded an opportunity in this regard and he came to know about the aforesaid recovery only when he has been communicated the order dated 27th November, 2008 along with which a copy of the order dated 27th September, 2001 was enclosed.

8. This case is pending in the last almost four years but the respondents have chosen not to file any counter affidavit till date. It is in these circumstances, I find no option but to proceed to decide the matter finally.

9. So far as order dated 25th February, 2010, Annexure 5 to the writ petition, a copy whereof is available on record as enclosure to the amendment application, is concerned, it cannot be disputed that it does not contain any reason whatsoever. It only refers to factum of show cause notice issued to the petitioner and reply submitted by him and thereafter conclusion that petitioner's explanation is not satisfactory and a decision that recovery to be made. Apparently the impugned order dated 25.2.2010 is in utter violation of principle of natural justice being a non speaking order.

10. It is well known that "conclusions" and "reasons" are two different things and reasons must show mental exercise of authorities in arriving at a particular conclusion.

11. In Union of India Vs. Mohan Lal Kapoor (1973) 2 SCC 836, as under:

"Reasons are the links between the materials on which certain conclusions are based and the actual conclusions. They disclose how the mind is applied to the subject matter for a decision whether it is purely administrative or quasi-judicial. They should reveal a rational nexus between the facts considered and the conclusions reached."

12. Referring to the above case law, Apex Court in Gurdial Singh Fijji Vs. State of Panjab & Ors (1979) 2 SCC 368 in para 18 said:

"We may also indicate, since the High Court saw the file and discovered that the appellant was not brought on the Select List because he was "not found suitable otherwise", that regulation 5 which deals with the preparation of a list of suitable officers provides by Clause 7 that "if in the process of selection, review or revision it is proposed to supersede any member of the State Civil Service, the Committee shall record its reasons for the proposed supersession". While dealing with an identical provision in Clause 5 of regulation 5 of the same Regulations as they stood then, this Court observed in Union of India v. Mohan Lal Capoor and Ors. (1973)2 SCC 836 that "rubber-stamp" reasons given for the supersession of each officer to the effect that the record of the officer concerned was not such as to justify his appointment "at this stage in preference to those selected", do not amount to "reasons for the proposed supersession" within the meaning of Clause 5. "Reasons", according to Beg J. (with whom Mathew J. concurred) "are the links between the materials on which certain conclusions are based and the actual conclusions". The Court accordingly held that the mandatory provisions of regulation 5(5) were not complied with by the Selection Committee. That an officer was "not found suitable" is the conclusion and not a reason in support of the decision to supersede him. True, that it is not expected that the Selection Committee should give anything approaching the judgment of a Court, but it must at least state, as briefly as it may, why it came to the conclusion that the officer concerned was found to be not suitable for inclusion in the Select List. In the absence of any such reason, we are unable to agree with the High Court that the Selection Committee had another "reason" for not bringing the appellant on the Select List."

13. The Apex Court in the case of Uma Charan Vs. State of Madhya Pradesh & Anr. AIR 1981 SC 1915 said:

14. In Mc Dermott International Inc. Vs. Burn Standard Co. Ltd. & Ors. (2006) 11 SCC 181 Apex Court referring to Bachawat's Law of Arbitration and Conciliation, 4th Edn., pp. 855-56 in para 56 said:

"Reasons are the links between the materials on which certain conclusions are based and the actual conclusions..."

15. Recently the Apex Court in Kranti Associates Private Limited & Anr. Vs. Masood Ahmed Khan & Ors. (2010) 9 SCC 496 referring to the judgment in Mohan Lal Capoor (supra) in para 23 said:

"Such reasons must disclose how mind was applied to the subject-matter for a decision regardless of the fact whether such a decision is purely administrative or quasi-judicial. This Court held that the reasons in such context would mean the link between materials which are considered and the conclusions which are reached. Reasons must reveal a rational nexus between the two."

16. The Apex Court recently also in Competition Commission of India Vs. Steel Authority of India Ltd. & Anr. JT 2010 (10) SC 26 in para 68 referring to the judgment in the case of Gurdial Singh Fijji (supra) said:

"Reasons are the links between the materials on which certain conclusions are based and the actual conclusions. By practice adopted in all courts and by virtue of judge- made law, the concept of reasoned judgment has become an indispensable part of basic rule of law and in fact, is a mandatory requirement of the procedural law. Clarity of thoughts leads to clarity of vision and therefore, proper reasoning is foundation of a just and fair decision."

17. Testing the impugned order from the anvil of the exposition of law discussed above, I find that it is undefendable. There is nothing to show an application of mind on the part of the authority concerned vis-a-vis its discussion qua material on record so as to show links between the material and conclusions drawn. One cannot discern from the impugned order as to what prevailed in the mind of the authority concerned to draw a particular conclusion. Since the impugned appellate order cannot be said to be reasoned and speaking order, it cannot sustain.

18. Now so far as order dated 27th November, 2008 is concerned, this order by itself has not given effect to any recovery but has directed for giving effect to the order dated 27th September, 2001 passed by Regional Food Controller, Kanpur. The petitioner has not chosen to challenge the aforesaid order in the present writ petition. However, in this regard grievance of the petitioner that he has represented to the higher authority but no decision has taken, appears to be quite genuine and justified and facts of this case would justify a mandamus to the respondents to take a final decision in this matter.

19. In view of the above, the writ petition is allowed with the following directions:

(i) The order dated 25.2.2010 (Annexure 5 to the writ petition) passed by Commissioner, Food and Civil Supplies, U.P. Lucknow is hereby quashed.

(ii) However, this order shall not preclude the respondents from passing a fresh order in accordance with law.

(iii) The respondents competent authority is directed to decide petitioner's representation dated 10th June, 2009 (Annexure 4 to the writ petition) expeditiously and in any case within two months from the date of production of a certified copy of this order and communicate the same to the petitioner.

20. There shall be no order as to costs.

Order Date :- 23.7.2013