Abdul Jahid Khan vs Union Of India Through General ...
2018 Latest Caselaw 1479 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?A.F.R. 
 
Court No. - 7
 

 
Case :- SERVICE BENCH No. - 15515 of 2017
 

 
Petitioner :- Abdul Jahid Khan
 
Respondent :- Union Of India Through General Manager,North Eastern Railway
 
Counsel for Petitioner :- Shailendra Singh,Bhoj Raj Singh
 
Counsel for Respondent :- A.S.G.,Neerav Chitravanshi
 

 
Hon'ble Anil Kumar,J.

Hon'ble Mrs. Rekha Dikshit,J.

Heard Shri Bhoj Raj Singh, learned counsel for the petitioner and Shri Neerav Chitravanshi, learned counsel for the respondents.

By means of the present writ petition, the petitioner has challenged the judgement and order dated 17.02.2017 passed by the Central Administrative Tribunal, Lucknow Bench, Lucknow (in short 'the Tribunal) in Original Application No.332/00252/2015 wherein following reliefs were sought:

"(A) That the Hon'ble Tribunal may kindly be pleased to direct the authorities concerned to decide within the time fixed by the Hon'ble Tribunal, the representations of the petitioner contained in the Annexure no.5 and 6 with this petition.

(B) Hon'ble Tribunal may kindly be pleased to direct the authorities concerned to grant/sanction the voluntarily retirement to the petitioner with effect from the date on which his dependant son is absorbed in the Railways services in terms of circular letter dated 11.09.2010 referred in Annexure No.4 with the petition.

(C) To grant such other reliefs, in favour of the petitioner, which the Hon'ble Court may deem fit and proper to grant in the circumstances of the case in order to do justice and also to grant the cost of these proceedings."

The brief facts as taken by the petitioner in his Original Application are as under:

"The brief facts of this case are that the applicant was working as Trolley Man in North Eastern Railway, Nanpara. According to averment made in the original application the applicant joined service on 16.05.1985 against the post of Trolley Man in the time scale. He was confirmed on the post on 23.01.1998. The applicant completed his 22 years service and his age was about 55 years on 01.07.2010. In the year 2010, the applicant in pursuance of circular letter issued on 19.11.2010 applied for voluntary retirement under Liberalized Active Retirement Scheme for Guaranteed Employment for Safety Staff (LARSGESS)"

Further, it is not in dispute in the present case that for grant of benefit under the Liberalized Active Retirement Scheme for Guaranteed Employment for Safety Staff (LARSGESS), the minimum qualifying service required is 20 years and person should be in between 55 to 57 years of age. However, while considering the case of the petitioner for granting him benefit under the LARSGESS in the original application, the Tribunal has came to the conclusion that the petitioner/applicant had already crossed over the maximum age of 57 years on cutoff date. So the applicant is not eligible for consideration for granting the benefit under the scheme. As one of the criteria regarding age has not been fulfilled.

In addition to above stated facts, the Tribunal while dismissing the original application has also given finding, which is reproduced as under:

"10. So far as calculation of qualifying service is concerned the date of induction in the service on 16.05.1985 of the applicant, the grant of temporary status as on 1.1.1988 and then granting of time scale after regularization on 23.01.1998 are not denied. The Master circular No.54 contains at Sl. No.20 with regard to counting period of service of a casual labour for pensionary benefit reads as under:

"20. Counting of the period of service of Casual Labour for pensionary benefits;

Half of the period of service of a casual labour (other than casual labour employed on Projects) after attaining of temporary status on completion of 120 days continuous service if it is followed by absorption in service as regular railway employee, counts for pensionary benefits. With effect from 01.01.1981, the benefit has also been extended to Project Casual Labour.

(Letter Nos. (i) E(NG)II/78/CL/12 dated 14.10.1980, (ii) E(NG)II/85/CL/6 dated 28.1.1986 (iii) E(NG)II/85/CL/6 dated 19.05.1987"

11. Ld. Counsel for the applicant on the basis of commentary on Bahri's Railway Establishment Rules and Labour Laws stated that in this commentary the qualifying service has been explained as under:

"Qualifying service:

"Qualifying" service includes the period of permanent, temporary or officiating service without interruption by confirmation in the same or other post excluding leave without pay other than covered by medical certificate, apprentice/under-age service, suspension treated other than duty/strike period not treated as dies-non. Therefore, the qualifying is made up, total service less under-age service, apprentice service, leave without pay, strike, substitute service first 6 months, suspension period and candidate service on stipend plus weightage (due to medical unfitness for certain categories), and monthly rates services less half of this service."

12. When a government servant inducted in the service against vacancy after due process of law and observing the rule of recruitment even on temporary basis his appointment being regular will be counted for the purpose of qualifying service from the date of joining the service. Once an employee was inducted as stated above in the service his period spent as temporary government servant or as a permanent or in a officiating capacity shall be counted for the qualifying service but so far as the daily wager/casual labour is concerned they cannot claim that for qualifying service the starting point will be the date of induction as a casual labour. This situation continues till grant of temporary status after completing requite statutory days. He after getting temporary status cannot treated to be in continue service against any post unless his absorption against the available vacancy in accordance with seniority assigned to him in casual labour register is made. Therefore the casual labour after getting the temporary status unless absorbed in the railways service, he cannot say to be regularly appointed employee. However, the railway by aforesaid circular granted benefit of 50% of the period spent by employees after getting temporary status till his date of absorption, for counting his period as qualifying service. Thus, there is no illegality in counting the period of qualifying service by respondents in respect of the applicant."

After hearing the learned counsel for the parties and going through the record, we find that there is no illegality and infirmity in the judgement and order passed by the Tribunal. Admittedly, in the present case as per one of the criteria for granting benefit under the LARSGESS scheme is that the minimum qualifying service required is 20 years and person should be in between 55 to 57 years of age.

At the time of consideration of the petitioner's case under the LARSGESS scheme, he has crossed over the maximum age of 57 years on cutoff date and further so far as the qualifying service is concerned, the petitioner also does not come under said criteria so in these circumstances, the finding given by the Tribunal is perfectly valid while rejecting the petitioner's original application by order dated 17.02.2017 because this Court while exercising power of judicial review under Article 226 of the Constitution of India does not exercise appellate powers. It is not intended to take away from administrative authorities the powers and discretion properly vested in them by law and to substitute courts as the bodies making the decisions. Judicial review is a protection and not a weapon.

In the case of Council of Civil Service Unions (CCSU) V. Minister 11 for the Civil Service (1984) 3 ALL ER 935, Lord Diplock has observed the scope of judicial review in the following words:-

"Judicial Review as I think developed to a stage today when, without reiterating any analysis of the steps by which the development has come about, one 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".

Moreover, judicial review has certain inherent limitation. It is suited more for adjudication of disputes than for performing administrative functions. It is for the executive to administer the law and the function of the judiciary is to ensure that the Government carries out its duty in accordance with the provisions of the rules and statute.

In the case of Chief Constable of the North Wales Police V. Evans, (1982) 3 ALL ER 141, it was observed by Lord Hailsham as under:-

"Purpose of judicial review is to ensure that 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 with its conclusion which is corrected in the eyes of the Court."

In the same case, Lord Brightman observed that:-

"Judicial review as the words imply is not an appeal from a decision but a review of the manner in which a decision was made," and held, that "it would be an error to think that the Court sits in judgment not only on the correctness of the decision making process but also on the correctness of the decision itself."

The aforesaid observations made by the Lord Hailsham and Lord Brightman were quoted with approval by their Lordships of Supreme Court in State of U.P. V. Dharmendar Prasad Singh, AIR 1989 SC 997, and while upholding that the judicial review is directed not against the decision, but is confined to the examination of the decision making process, it was held by the Supreme Court as under:-

"When the issue raised in judicial review is whether a decision is vitiated by taking into account irrelevant, or neglecting to take into account, relevant factors or is so manifestly unreasonable that no reasonable authority entrusted with the power in question could reasonable have made such a decision, the judicial review of the decision making process includes examination, as a matter of law, of the relevance of the factors."

In the case of Tata Cellular V. Union of India (1994) 6 SCC 651 the Supreme Court stated that:-

"Judicial review is concerned with reviewing not the merits of the decision in support of which the application for judicial review is made but the decision making process itself," and enumerated some broad grounds upon which an administrative action is subject to control by judicial review and classified them under the heading of 'illegality', 'irrationality' and 'procedural impropriety.' In their supervisory jurisdiction as distinguished form the appellate one, the Courts do not themselves embark upon rehearing of the matter but nevertheless courts will, if called upon, act in a supervisory capacity and see that the decision making-body acts fairly. If the decision making body is influenced by considerations which ought not to influence or fails to take into account the matters which ought to have been taken into account the Courts will interfere. If the decision making body comes to its decision on no evidence or comes to a finding so unreasonable that a reasonable man could not have come to it then again the Courts will interfere.

Further if the decision making body goes outside its power or misconstrues the extent of its power, then too the Courts can interfere, and if the decision making body acts in a bad faith or with ulterior object which it is not authorized by law, its decision will be set aside in supervisory jurisdiction. A decision of a public authority will be liable to be quashed or otherwise dealt with by appropriate order in judicial review proceedings, where the Courts concludes that the decision is such that no authority properly directing itself on the relevant law and fact acting reasonably could have reached it."

Thus the decision by the appropriate authority to grant or not to grant a particular relief to a person is not open to Judicial review by the High Court under Article 226 of the Constitution of India but the power of judicial review is circumscribed to scrutiny of the decision making process only and is to be exercised in the light of the principles laid down above and applying the said principles to the facts of the present case, I do not find any irregularity, infirmity in the impugned order.

In the case of V. Rajarathinam Vs. State of Tamilnadu and another, 1997 SCC(L&S) 90, the Court has held as under :-

"that if if all the relevant facts and circumstances and the evidence on record are taken into consideration and it is found that the evidence established misconduct against a public servant, the disciplinary authority is perfectly empowered to take appropriate decision as to the nature of the findings on the proof of guilt. Once there is a finding as regards the proof of misconduct, what should be the nature of the punishment to be 14 imposed is for the disciplinary authority to consider."

In the case of State of Karnataka and others Vs. H.Nagaraj (1998) 9 SCC 671, Hon'ble Apex Court after relying earlier judgment in the case of Union of India Vs. Parma Nanda (1989) 2 SCC (L&S), 303 held as under :-

"That it is appropriate to remember that the power to impose penalty on a delinquent officer is conferred on the competent authority either by an Act of legislature or rules made under the proviso to Article 309 of the Constitution. If there has been an enquiry consistent with the rules and in accordance with principles of natural justice what punishment would meet the ends of justice is a matter exclusively within the jurisdiction of the competent authority."

In the case of Union of India Vs. S.S. Ahluwalia, (2007) 7 SCC 257 the Hon'ble Apex Court had held as under :-

"8.... The scope of judicial review in the matter of imposition of penalty as a result of disciplinary proceedings is very limited. The court can interfere with the punishment only if it finds the same to be shockingly disproportionate to the charges found to be proved."

In the case of State of Meghalaya Vs. Mecken Singh N. Marak, (2008) 7 SCC 580, the Hon'ble Supreme Court had held as under :-

"The legal position is fairly well settled that while exercising the power of judicial review, the High Court or a Tribunal cannot interfere with the discretion exercise by the disciplinary authority, and/or on appeal the appellate authority with regard to the imposition of punishment unless such discretion suffers from illegality or material procedural irregularity or that would shock the conscience of the court/tribunal. The exercise of discretion in imposition of punishment by the disciplinary authority or appellate authority is dependent on host of factors such as gratuity misconduct, past conduct, the nature of duties assigned to the delinquent, responsibility of the position that the delinquents holds, previous penalty,if any, and the discipline required to be maintained in the department or establishment he works. Ordinarily the court or a tribunal would not substitute its opinion on reappraisal of facts."

For the foregoing reasons, the present writ petition lacks merit and dismissed.

No order as to costs.

Order Date :- 11.7.2018

Anupam S/-

(Rekha Dikshit,J.)     (Anil Kumar,J.)