Date Of Decision :14.12.2022 vs The Divisional Commissioner & ...
2022 Latest Caselaw 10829 HP

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

CMPMO No. 365 of 2022 Reserved on: 5.12.2022

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Date of decision :14.12.2022.

    Surya Prakash                                          ...Petitioner.
                                   Versus





    The Divisional Commissioner & another                          ...Respondents

    Coram:

The Hon'ble Mr. Justice Satyen Vaidya, Judge.

    Whether approved for reporting?1
    For the petitioner             :       Mr. S.M. Goel & Mr. Vipul Sharda,
                      r                    Advocates.

    For the respondent             :       Mr. Desh Raj Thakur, Addl. A.G.
                                           with Mr. Narender Thakur, Dy.
                                           A.G.



    Satyen Vaidya, Judge:

Aggrieved against the order dated 11.7.2022, passed

by Divisional Commissioner, Kangra Division at Dharmshala,

(for short "the Commissioner") in Service Appeal No. 49 of 2022,

the petitioner has approached this Court by invoking

supervisory jurisdiction of this Court under Article 227 of the

Constitution of India.

2. The facts are not disputed. Petitioner faced inquiry

under Rule 14 of CCS (CCA) Rules, 1965 (for short the "Rules").

Whether reporters of Local Papers may be allowed to see the judgment?

The Inquiry Officer held the charges proved against him. The

Disciplinary Authority i.e. the Deputy Commissioner, Una

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imposed major penalty upon the petitioner under Rule 11 (vi) of

the Rules. The post of petitioner has been ordered to be

reduced from Kanungo to Patwari for a period of three years

with immediate effect, vide order dated 10.3.2022 with further

directions as under:-

"i) His pay will be reduced by stage from Rs. r 20280 (Basic pay 16080+4200) to Rs. 18560 (Basic Pay 15360+3200) as per HPCS (RP)

Rules 2009 for 03 years with effect from 10.3.2022 to 09.03.2025 with cumulative effect.

ii) He will not earn annual increments during the

period of reduction.

iii) He will regain his original seniority in the higher

post which has been assigned to him (as Kanungo) on expiry of above period."

3. Aggrieved against the order dated 10.3.2022, passed

by Disciplinary Authority, petitioner has approached the

Appellate Authority i.e. The Commissioner by filing an appeal

under Rule 23 of the Rules. Along with appeal, petitioner also

preferred an application for staying the implementation of

impugned order dated 10.3.2022, passed by Deputy

Commissioner, Una. The appeal filed by petitioner is still

pending before the Commissioner.

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4. On 22.3.2022, Commissioner passed the following

orders in the appeal as well as the application for interim relief,

filed by the petitioner: -

"Whereas applicant/appellant Surya Prakash along with Counsel Sh. R.C. Seth has filed appeal against

the order No. 1298-1301/DRO/SK dated 10th March, 2022 passed by the Deputy Commissioner Una. The appellant along with the main appeal has also filed

application for staying the implementation of order

under appeal.

I have heard the counsel for the applicant at length.

I am convinced with the arguments advances by the counsel therefore, the impugned order dated

10th March 2022 passed by the Deputy Commissioner

Una is stayed till further orders.

                      Copy       of   order    be    sent       to    the      Deputy
                Commissioner, Una."

5. Another subsequent order came to be passed by the

Commissioner in the service appeal of petitioner on 11.7.2022

to the following effect:-

"Whereas Sh. Surya Prakash, applicant has filed service appeal in this office on 24.03.2022 against the order No. 1298- 1301/DRO/SK dated 10.03.2022

passed by the Deputy Commissioner Una, which is pending in this office. He had also filed APPLICATION u/s 41 Rule 5 CP17C for staying the implementation

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of order No. 1298-1301/ DRO/ SK dated 10.03.2022

passed by the Deputy Commissioner, Una.

Whereas this office vide order dated

22.03.2022 stayed the above order passed by the Deputy Commissioner Una till further orders. Meanwhile the deputy Commissioner Una vide letter

No. 2582 dated 26.05.2022 has submitted an application under Section 151 CPC for vacation of stay order dated 22.03.2022. In his application

Deputy Commissioner has stated that Surya Prakash

(the then Patwari) entered the Mutation No. 724 on basis of application submitted by only 9 persons out

of 193 persons without any signature / consent of all the co-sharers and as such he has violated Section 135 of the H.P. Land Revenue Act & procedure laid

down under the Chapter 14 of H.P. Land Records

Manual. He has further submitted that the charges leveled against appellant sh. Surya Prakash were

proved in the inquiry report submitted by the Inquiry Officer-cum- Additional Deputy Commissioner, Una and the act of the said official has been found to be in complete violation of CCS (Conduct) Rules, 1964), which is sufficient reason for vacation of stay order. The Deputy Commissioner, Una has also informed that action vide order dated 10.03.2022 has been taken after giving the official due opportunity of being heard and the official in question has been given

punishment after following due procedure as laid down in CCS (CCA) Rules, 1964.

I, have gone through the contents of the

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application submitted by Deputy Commissioner Una

and have considered the facts elaborated by him. Considering the facts placed by Deputy

Commissioner Una I am of the view that this is a fit case to review the stay order in office dated 22.03.2022 is allowed. Stay order granted by this

office in service appeal No. SA/49/2022 is withdrawn and stay stands vacated. However, the appeal of Sh. Surya Prakash is being considered

separately on merit as per provision of CCS (CCA)

Rules. Copy of this order be sent to Sh. Surya Prakash and Deputy Commissioner, Una for

information and necessary action."

6. The grievance of petitioner is against aforesaid order

dated 11.7.2022 on the ground that the impugned order suffers

from illegality in as much as, the petitioner was not heard

before passing such orders. It is further the case of petitioner

that the Deputy Commissioner, Una being Disciplinary

Authority had no locus-standi to approach the Appellate

Authority i.e. the Commissioner for vacation/modification of

order dated 2.3.2022.

7. I have heard learned counsel for the parties and

have also gone through the records carefully.

8. Article 227 of the Constitution of India vests this

Court with powers of superintendence over all Courts and

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Tribunals throughout the territories in relation to which, this

Court can exercise jurisdiction. Before touching the merits of

impugned order, it will be necessary to adjudicate whether this

Court in exercise of aforesaid powers can rule upon the merits of an

order, passed by an Appellate Authority vested with powers to hear

service appeal under Rule 23 of the Rules?

9. To ascertain as to whether an authority qualifies to

be a Tribunal within the meaning of the term under Article 227

of the Constitution of India, it will be necessary to explore the

nature and extent of power exercisable by such authority

authority by it. If the authority exercises quasi-judicial powers,

it may qualify the test to be termed as Tribunal depending upon

facts of each particular case.

10. The petitioner, undoubtedly, is holding the civil post

under the State Government. Thus, he has protection of

Articles 309 and 311 of the Constitution. Clause-2 of Article

311 specifically prohibits the dismissal, removal or reduction in

rank of a member holding a civil post except after an inquiry. It

is further provided a proviso that where it is proposed after

such inquiry, to impose upon him any penalty, such penalty

may be imposed on the basis of the evidence adduced during

such inquiry. Article 309 of the Constitution empowers the

State to make rules relating to the recruitment and the

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conditions of service of its employees.

11. The rules have been framed by the Central

Government in pursuance to Articles 309 and 311 of the

Constitution of India. State Government has adopted these

rules in their applicability to its employees.

12. The procedure for inquiry contemplated under

Article 311 of the Constitution is prescribed in Rule 14 of the

Rules. The inquiry against the petitioner was also held under

the aforesaid rules. The Disciplinary Authority has taken

action on the inquiry report under Rule 15 of the Rules and has

imposed major penalty as prescribed under Rule 11 (vi) of the

Rules.

13. Under Rule 23 (ii), of the Rules the order passed by

Disciplinary Authority i.e. Deputy Commissioner, Una in this

case is appealable. The Appellate Authority is the

Commissioner. Rule 27 of the Rules provides for procedure for

consideration of appeals filed under Rule 23. Sub-rule (3) of

Rule 27 specifically provides as under: -

"(3) In an appeal against any other order specified in rule 23, the appellate authority shall consider all the circumstances of the case and make such orders as it may deem just and equitable".

Thus, the Appellate Authority has been vested with a discretion to consider all circumstances and thereafter to pass such orders as may be deemed "just and equitable".

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14. The vestment of above discretion cannot be said to

be absolute. The objectivity should form the foundation of such

discretion. The above stated power, thus, entrusts the

Appellate Authority with quasi-judicial function and in this view

of the matter, adherence to the basic principles of judicial

procedure and principle of natural justice become inherently

vested.

15. A Constitution Bench of Hon'ble Supreme Court in

the case of Harinagar Sugar Mills Ltd. vs. Shyam Sunder

Jhunjhunwala &others reported in AIR 1961 SC 1669

while discussing the proposition relating to the judicial

functions of Government has observed as under:-

"The function that the Central Government performs under the Act and the Rules is to hear an appeal

against the action of the Directors. For that purpose, a memorandum of appeal setting out the grounds has to be filed, and the Company, on notice, is required to make representations, if any, and so also the other side, and both sides are allowed to tender evidence to support their representations. The Central Government by its order then directs that the shares be registered or need not be registered. The Central Government is also empowered to include in its

orders, directions as to payment of costs or otherwise. The function of the Central Government is curial and not executive. There is provision for a

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hearing and a decision on evidence, and that is

indubitably a curial function.

36. Now, in its functions Government often reaches

decisions, but all decisions of Government cannot be regarded as those of a tribunal. Resolutions of Government may affect rights of parties, and yet,

they may not be in the exercise of judicial power. Resolutions of Government may be amenable to writs under Arts. 32 and 226 in appropriate cases, but

may not be subject to a direct appeal under Art.

136 as the decisions of a tribunal. The position, however, changes when Government embarks upon

curial functions, and proceeds to exercise judicial power and decide disputes. In these circumstances, it is legitimate to regard the officer who deals with

the matter and even Government itself as a tribunal. The officer who decides, may even be anonymous; but the

decision is one of a tribunal, whether expressed in his name or in the name of' the Central Government. The

word "tribunal" is a word of wide import, and the words "Court" and "tribunal" embrace within them the exercise of judicial power in all its forms. The decision of Government thus falls within the powers of this Court under Art. 136."

16. It has thus been observed that if the Government

embarks upon curial functions and proceeds to exercise judicial

powers and decide disputes, in such circumstances, it is

legitimate to refer the officer who deals with the matter as a

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"Tribunal". Hon'ble Supreme Court observed that the

proceedings before the Tribunal are required to comply with

rules in the interest of justice. They may not be bound by

direction and technicality of rules of evidence but their

decisions must be consistent with the principles of law.

Noticeably, the term "Tribunal" referred to in aforesaid

observations of Supreme Court, were indicative to Article 136 of

the Constitution.

17. Reference can also be gainfully made to the

Constitutional Bench of the Hon'ble Supreme Court in the

matter of Associated Cement Companies Ltd. vs. P.N.

Sharma & another reported in AIR 1965, SC 1595, in which

the then Hon'ble Chief Justice speaking for the Bench observed

as under:-

"25. It would thus be seen that in dealing with the question as to whether respondent No. 2, while it exercises its appellate power under Rule 6(6), is a tribunal under Art. 136(1), we must enquire whether respondent No. 2 has been clothed with the State's inherent judicial power to deal with disputes between parties and determine them on the merits fairly and objectively. That is the test which has been

consistently applied by this Court in considering the question about the status of anybody or authority as a tribunal under Art. 136(1). Before we proceed to

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apply this test to respondent No. 2's status under R.

6(6), we think it is necessary to advert to one aspect of the matter which sometimes creates some

confusion.

26. We have referred to the three essential

attributes of a sovereign State and indicated that one of these attributes is the legislative power and legislative function of the State, and we have also

seen that in determining the status of an authority

dealing with disputes, we have to enquire whether the power conferred on the said authority or body can be said to be judicial power conferred on it by the

State by means of a statute or statutory rule. The use of the expression "judicial power" in this context

proceeds on the well-recognised concept of political science that along with legislative and executive

powers, judicial power vests in a sovereign State. In countries where rigid separation of powers has been

effected by written Constitutions, the position is very different. Take, for instance, the Australian Constitution. Section 71 of the Commonwealth of Australia Constitution Act (63 & 64 Viet. Chapter 12) provides that the judicial power of the Commonwealth shall be vested in a Federal Supreme Court, to be called the High Court of Australia, and in such other federal courts as the Parliament creates,

and in such other courts as it invests with federal jurisdiction. The High Court shall consist of a Chief Justice, and so many other Justices, not less than

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two, as the Parliament prescribes. It is clear that the

scheme of sections 71 to 80 which form part of Chapter III of the said Constitution, is that the judicial

power of the State can be conferred only on courts recognised by the provisions of the said Chapter. In other words, it is not competent to the Legislature in

Australia to confer judicial power properly so-called on anybody or authority other than or apart from the courts recognised by Ch. 111; and so, the use of the

expression "judicial power" or its conferment in regard

to tribunals which are not courts properly so-called, would under the Australian Constitution be wholly

inappropriate. If any tribunals other than courts are established and power is given to them to <teal with and decide special disputes between the parties, the

power which such tribunals would exercise cannot be

described as judi- cial power, but would have to be called quasi-judicial power.

33. The question which we have to decide in the present appeal is whether the State Government is a tribunal when it exercises its authority under R. 6(5) or R. 6(6), No rules have been made prescribing the procedure which the State Government should follow in dealing with appeals under these two sub-rules, and there is no statutory provision conferring on the State Government any specific powers which are

usually associated with the trial in courts and which are intended to help the court in reaching its decisions. The requirements of procedure which is

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followed in courts and the possession of subsidiary

powers which are given to courts to try the cases before them, are described as trappings of the courts,

and so, it may be conceded that these trappings are not shown to exist in the case of the State Government which hears appeals under R. 6(5) and

R. 6(6). But as we already stated, the consideration about the presence of all or some of the trappings of a court is really not decisive. The presence of some of

the trappings may assist the determination of the

question as to whether the power exercised by the authority which possesses the said trappings, is the

judicial power of the State or not. The main and the basic test however, is whether the adjudicating power which a particular authority is empowered to

exercise, has been conferred on it by a statute and

can be described as a part of the State's inherent power exercised in discharging its judicial function.

Applying this test, there can be no doubt that the power which the State Government exercises under R. 6(5) and R. 6(6) is a part of the State's judicial power. It has been conferred on the State Government by a statutory Rule and it can be exercised in respect of disputes between the management and its Welfare Officers. There is, in that sense, a lis; there is affirmation by one party and denial by another and the dispute necessarily involves the rights and

obligations of the parties to it. The order which the State Government ultimately passes is described as its decision and it is made final and binding. Besides,

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it is an order passed on appeal. Having regard to

these distinctive features of the power conferred on the State Government by R. 6(5) and R. 6(6), we feel

no hesitation in holding that it is a Tribunal within the meaning of Art. 136(1)".

Concurring with the judgment Hon'ble Justice R. S.

Bachawat added and held as under: -

"43. The limitations as also the full amplitude of the

meaning of the word "tribunal" are thus to be found

on a consideration of Art. 136 in all its parts, with such aid as may be derived from other Articles of the Constitution. The context of Art. 136 and the

constitutional background impose the limitation that the tribunal must be an adjudicating authority vested

with the judicial power of the State. Barring this

limitation, the word must receive a wide and liberal construction. The basic principle of Art. 136 is that if a litigant feels that injustice has been done by a

Court or any other body charged with the administration of justice, there is one superior Court he may always approach and which, in its discretion, may give him special leave to appeal so that justice may be done. The plenitude of the residuary appellate power under Art. 136 embraces within its scope all adjudicating authorities vested with the

judicial power of the State, whether or not such authorities have the trappings of a Court.

44. An authority other than a Court may be vested

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by statute with judicial power in widely different

circumstances, which it would be impossible and indeed inadvisable to attempt to define exhaustively.

The proper thing is to examine each case as it arises, and to ascertain whether the powers vested in the authority can be truly described as judicial functions

or judicial powers of the State. For the purpose of this case, it is sufficient to say that any outside authority empowered by the State to determine conclusively the

rights of two or more contending parties with regard

to any matter in controversy between them satisfies the test of an authority vested with the judicial

powers of the State and may be regarded as a tribunal within the meaning of Art.136. Such a power of adjudication implies that the authority must act

judicially and must determine the dispute by

ascertainment of the relevant facts on the materials before it and by application of the relevant law to

those facts. This test of a tribunal is not meant to be exhaustive, and it may be that other bodies not satisfying this test are also tribunals. In order to be a tribunal, it is essential that the power of adjudication must be derived from a statute or a statutory rule. An authority or body deriving its power of adjudication from an agreement of the parties, such as a private arbitrator or a tribunal acting under S. 10A of the Industrial Disputes Act, 1947, does not satisfy the

test of a tribunal within Art. 136. It matters little that such a body or authority is vested with the trappings of a Court. The Arbitration Act, 1940 vests an

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arbitrator with some of the trappings of a Court, so

also the Industrial Disputes Act, 1947 vests an authority acting under S. 10-A of the Act with many

of such trappings, and yet, such bodies and authorities are not tribunals."

18. Thus, it becomes clear that the basic test to qualify

as "Tribunal" is that it should be a body vested with judicial

powers of the State. It has also been categorically held that the

word Tribunal mentioned in Article 227 of the Constitution has

the same meaning as in Article 136. In this view of the matter,

the Commissioner while vested with power to hear service

appeal under the rules embarks upon judicial powers of the

state and by implication performs quasi-judicial functions.

Needless to say that the jurisdiction to discharge quasi-judicial

functions inherently carries with it strict adherence to basic

principles of judicial procedure.

19. Reverting to the facts of the case, perusal of

impugned order clearly reveals that neither the petitioner was

informed about the application, moved by the Deputy

Commissioner, Una for vacation of interim stay order dated

22.3.2022, nor was he afforded any opportunity of being heard.

Further, it is evident from the impugned order that the

Commissioner had applied his mind to the merits of the case.

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In these circumstances, it was incumbent upon the

Commissioner to have afforded the petitioner an opportunity of

being heard. The consequence of impugned order is that the

penalty imposed on petitioner has come into effect without

adjudication of the appeal of petitioner on merits. Adoption of

such approach in exercise of quasi-judicial functions cannot be

countenanced and need deprecation.

20. Another contention of petitioner that the

Disciplinary Authority i.e. Deputy Commissioner, Una had no

locus-standi to pray for vacation of stay is also not without

substance. The decision of Disciplinary Authority itself was

before the Appellate Authority for adjudication. Article 311 of

the Constitution and Rule 15 of the Rules specifically provides

that the penalty can be imposed by the Disciplinary Authority

on the basis of evidence available in inquiry, meaning thereby

that imposition of penalty by Disciplinary Authority would not

be a mechanical process. The merit of the factors taken into

consideration by the Disciplinary Authority while imposing the

penalty were still under adjudication. The Disciplinary

Authority having performed its duties had no role to make

submissions to convince the Appellate Authority about the

merits of his decision. The manner, in which impugned

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proceedings have been conducted, clearly smears of biasness.

20. This Court's power under Article 227 is there to

meet the interest of justice. Hon'ble Supreme Court in the

matter of Ramesh Chandra Sankla& others vs Vikram

Cement & others 2008 (14) SCC 58 has held as under:-

"90 Now, it is well settled that jurisdiction of High Courts under Articles 226 and 227 is discretionary

and equitable. Before more than half a century, the

High Court of Allahabad in the leading case of Jodhey v. State, (AIR 1952 All 788 observed);

"10. ....There are no limits, fetters or restrictions

placed on this power of superintendence in this clause and the purpose of this Article seems to

be to make the High Court the custodian of all justice within the territorial limits of its

jurisdiction and to arm it with a weapon that could be wielded for the purpose of seeing that

justice is meted out fairly and properly by the bodies mentioned therein."

(emphasis supplied)

91. The power of superintendence under Article 227 of the Constitution conferred on every High Court over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction is very wide and discretionary in nature. It can be exercised

ex debito justitiae, i.e. to meet the ends of justice. It is equitable in nature. While exercising supervisory jurisdiction, a High Court not only acts as a court of

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law but also as a court of equity. It is, therefore,

power and also the duty of the Court to ensure that power of superintendence must `advance the ends of

justice and uproot injustice."

21. In light of above discussion, impugned order dated

11.7.2022, passed by Divisional Commissioner, Kangra

Division at Dharmshala, (for short "the Commissioner") in

Service Appeal No. 49 of 2022 (Annexure P-5) is quashed and

set aside. It is also deemed expedient in the interest of justice

to direct the Appellate Authority to decide the service appeal of

petitioner expeditiously and in any case not later than

31.1.2023. Pending applications, if any, also stand disposed

of.

                                                    (Satyen Vaidya)
    14th December, 2022                                  Judge
          (kck)