BINDESHWARI PRASAD SRIVASTAVA Vs. STATE OF BIHAR

JUDGEMENT

(1.) The facts of this case show a distressing state of affairs. The writ petitioner was subjected to a disciplinary proceeding on the basis of a charge-sheet issued against him by the Finance Department of the State Government dated 30-3-1978 (Annexure-13). Thereafter followed a disciplinary proceeding and in the said disciplinary proceeding the Enquiry Officer submitted a report finding the petitioner guilty of the charges. The said report is dated 3-12-1979 (Annexure 22). The petitioner thereafter filed a detailed show cause after receipt of the enquiry report. Thereafter on 25-7-1981 (Annexure-25) the order of dismissal was passed against the petitioner. Against the said order of dismissal the petitioner preferred an appeal.

(2.) It is not in dispute that the petitioner has a statutory right of preferring an appeal. Thereafter the petitioner filed a writ petition before this Court which was numbered as C.W.J.C. No. 3618 of 1982 but the said writ petition was withdrawn as would appear from the order of the Division Bench of this Court dated 13-9-198? on the ground that the petitioner has a statutory remedy before the Tribunal constituted under Ordinance 192 of 1982. The petitioner's attempt to get the dismissal order quashed before the Tribunal failed as the majority members of the Tribunal held that there is nothing to interfere with the order of dismissal. The petitioner had in the meantime, however, filed a departmental appeal and the said departmental appeal was filed before initiating the proceeding before the Tribunal. After dismissal of the petitioner's case by the Bihar Administrative Tribunal, another writ petition was filed by the petitioner being C.W.J.C. No. 493 of 1984 before this Court challenging the order of the Tribunal and also challenging the non disposal of the appeal of the petitioner by the appellate authority. The said C.WJ.C. No. 493 of 1984 came up for final hearing before a learned Single Judge of this Court and the learned Single Judge by an order dated 30-11-1987 was pleased to hold that before the Court no appellate order was produced. The learned Judge also held that no appellate order was served upon the petitioner. In paragraph 9 of the said judgment, the learned Judge recorded "except stating that the petitioner's appeal was dismissed, the State has given no further material." The learned Judge also held, and I think quite rightly, that the petitioner's right to file statutory appeal was a matter of right for him and the petitioner is entitled to have his appeal disposed of in accordance with law and the rules of natural justice requires that the appellate authority, in such case, should pass an order with reasons stating why the contentions of the appellant are not accepted. The learned Judge also held that in deciding the appeal, the authorities are discharging quasi judicial functions. This Court is in respectful agreement with the aforesaid observations in the said judgment.

(3.) Learned Counsel for the State has, however, said that in this case the appellate authority, while hearing the appeal of the petitioner is not supposed to act in a quasi judicial capacity but is to act in an administrative capacity and in support of his said contention, learned Counsel has referred to a decision of the Supreme Court in the case of Dev Singh and others v. Registrar, Punjab and Haryana High Court and others reported in (1987) 3 S.C.C page 169. In the said decision in the case of Dev Singh (supra), the learned Judges of the Supreme Court came to the conclusion that in deciding an appeal under Rule X of the relevant rules, the High Court exercises only a supervisory administrative control and does not act as a Tribunal disposing of an appeal involving a lis between two rival parties nor is it arriving at a judicial decision. It is further said that in such a case it does not resolve any dispute or controversy between two adversaries. Therefore, in such context, Supreme Court held that, against an order passed by a High Court in appeal. Special Leave Petition under Article 136 of the Constitution will not be maintainable. The said observation will appear from paragraph 14 of the said judgment. The rule in the context of which the said observation has been made has been set out in paragraph 9 of the said judgment. Paragraph 9 shows the categories in of penalties which can be imposed. Paragraph 10 shows that against any such penalties, an appeal can be preferred before the District Judge under Rule X (1) in Chapter 18-A Said Rule X (3) further gives a right to appeal to the High Court and while construing the said rule, the learned Judges of the Supreme Court has also considered Rule X (4) which prohibits the persons from attending personally the High Court at the time of hearing of the appeal unless summoned to do so and the said Rule X (4) says that orders on petition shall be communicated to the appellant through the District Judge concerned. In considering those provisions in the aforesaid context, the Hon'ble Judges of the Supreme Court came to the conclusion that rules showing manner Of disposal of appeal by the High Court would make it abundantly clear that the appeal is not strictly a judicial proceeding involving a lis between the two adversaries and the decision thereon is not a judicial decision. In paragraph 16 of the said judgment it has been further stated that a close study of the rules makes it clear that the High Court exercises only a supervisory administrative control and does not act as a Tribunal disposing of an appeal involving a lis between two rival parties and arriving at a judicial decision. In paragraph 26 of the said judgment in Dev Singh (Supra), the learned Judges of the Supreme Court after considering various case laws on the subject came to the 'conclusion that when Judges in exercise of their administrative functions decide cases, it cannot be said that the decision arrived is either judicial or quasi-judicial. In that context the learned Judges of the Supreme Court came to the conclusion that against such a decision which has been passed by the Judges in their administrative capacity, an appeal under Article 136 of the Constitution does not lie.