9911796707
TMI Blog2014 (1) TMI 13X X X X Extracts X X X X X X X X Extracts X X X X ..... alleged false cases lodged against him by some interested persons, certain complaints were also made against present petitioner before Anti-Corruption Bureau and a chargesheet, eventually, was filed which resulted into his suspension on 3-8-1976. He challenged the same and during such suspension, he was reverted to the post of Police Sub-Inspector. However, later on, he was exonerated from all the charges and was reinstated on the reverted post of PSI. Challenge made to such reversion before this Court in Special Civil Application No. 1115 of 1980, which resulted into dismissal of such petition vide order dated 21-6-1991. 3.1 In February, 1984 however he was once again promoted as Police Inspector and the petitioner retired from service on 31-7-1996. 4. In the aforementioned background of his service record, the petitioner when was posted as Circle Police Inspector at Jamkhambhaliya, Jamnagar in the year 1988, having jurisdiction over four police stations. He received information about landing of smuggled gold on 9-10-1989. Such information was passed on to the then DSP, Mr. P.P. Pandey by a lightening call as direct dialing facility in those days was not available. He ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was found ineligible, the Court when called for the original record, it was noticed that his name was never considered, and therefore, his petition was allowed directing the respondents to consider the case of the present petitioner and decide afresh his case within a stipulated time period. 7.1 It would be profitable to reproduce the entire order of this Court passed on 25-6-2003 :- "#. The grievance of the petitioner is that though he was entitled for the reward as per the policy laid down for the purpose, in connection with the seizure of 3400 gold biscuits that took place on 10-10-1989, the petitioner has not been given the reward despite his leading the police party which had seized the biscuits. During the course of the final hearing of this petition, we found that it was absolutely necessary to see the entire record of the proceedings by which, the question of awarding the rewards in connection with the said seizure was considered and decided and, therefore, specific directions were given by our earlier order on 19-6-2003, directing the respondents to produce the entire record pertaining to the seizure and the rewards as per the policy, for perusal of this Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5, where he has asked to contact his advocate and to obtain necessary information from his advocate. According to the petitioner there is nothing that could be communicated through the advocate and eventually on realizing that his case has not been considered for the purpose of reward, he has moved this petition seeking following prayers :- "(A) Your Lordships may be pleased to issue a writ of Mandamus or writ in nature of Mandamus or any other appropriate Writ/s, Order/s and/or Direction/s directing the respondents to comply with the orders passed by this Hon'ble Court dated June 25, 2003 in Special Civil Application No. 6554 of 1997. (B) Pending admission, hearing and final disposal of this petition. Your Lordships may be pleased to direct the respondents to consider the case of the petitioner as per the order passed in Special Civil Application No. 6554 of 1997 dated June 25, 2003. (C) Grant such other and further relief/s which Your Lordship deems fit, just and proper may be granted in the interest of justice." 9. On issuance of notice to the respondents No. 1 to 3, affidavit-in-reply has been filed inter alia contending that petitio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on for the Committee to act in accordance with the guidelines, which is in force. He further urged that those members of the team, who have been granted award and were similarly situated and yet, when they have been given the rewards disregarding the case of the petitioner it is a denial not based on intelligent differentia and therefore, for such violation of Article 14 the Court may issue the writ of mandamus as requested for. He further urged that name of the petitioner when was recommended by his superiors and when there is no challenge to the order of this Court by the respondent before the higher forum, the respondents were duty bound to consider the case of the aggrieved person, who has been deprived of his right to be considered at par with other officers. 11.1 Learned counsel Mr. Bhatt has sought to rely upon following authorities in support of his submissions : 1. Union of India v. K.P. Joseph and Others reported in (1973) 1 SCC 194. 2. M/s. Hochtief Gammon v. State of Orissa and Others reported in (1975) 2 SCC 649. 3. Comptroller and Auditor-General of India, Gian Prakash, New Delhi and Anot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 366 at p. 377 = (AIR 1968 S.C. 718), this Court, in considering the nature of the Import Trade Policy said : "Granting that is executive in character, this Court has held that Courts have the power in appropriate cases to compel performance of the obligations imposed by the Schemes upon the departmental authorities." To say that an administrative order can never confer any right would be too wide a proposition. There are administrative orders which confer rights and impose duties. It is because an administrative order can abridge or take away rights that we have imported the principle of natural justice of audi alteram partem into this area. A very perceptive writer has written : "Let us take one of Mr. Harrison's instances, a regulation from the British War Office that no recruit shall be enlisted who is not five feet six inches high. Suppose a recruiting officer musters in a man who is five feet five inches only in height, and pays him the King's shilling; afterwards the officer is sued by the Government for being short in his accounts; among other items he claims to be allowed the shilling paid to the undersized recruit. The Court has to consider and apply this regulation a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hey no longer find the face of the Sphinx inscrutable. Needless to say that Courts in India, which function under a written Constitution which confers fundamental rights on citizens, have exercised, far greater powers than those exercised by Courts in England where there is no written constitution and there are no fundamental rights. Therefore the decisions of courts in England as regards powers of the Courts, "surveillance", as Lord Pearce calls it, or the control which the judiciary have over the Executive, as Lord Upiohn put it, indicate at least the minimum limit to which Courts in this country would be prepared to go in considering the validity of orders of the Government of its officers. In that sense the decision of the House of Lords in Padfield v. Minister of Agriculture Fisheries and Food (1968 AC 997) is a landmark in the history of the exercise by Courts of their power of surveillance. 11. xxx xxx xxx 12. The principles deducible from the decisions of this Court and the above decision of the House of Lords which, though not binding on us, appeals to us on principle may be set out as follows. 13. The Executive have to reach their d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arkanath v. Income-Tax Officer, Special Circle, Kanpur - 1965 (3) SCR 536, 540 ; (AIR 1966 S.C. 81 at P. 84) this Court pointed out that Article 226 is designedly couched in a wide language in order not to confine the power conferred by it only to the power to issue prerogative writs as understood in England, such wide language being used to enable the High Courts "to reach injustice wherever it is found" and "to mould the reliefs to meet the peculiar and complicated requirements of this country." In Hochtief Gammon v. State of Orissa, 1976 (1) SCR 667, 676 : (AIR 1975 S.C. 2226 at p. 2232) this Court held that the powers of the courts in England as regards the control which the Judiciary has over the Executive indicate the minimum limit to which the courts in this country would be prepared to go in considering the validity of orders passed by the Government or its officers. 19. Even had the Division Bench issued a writ of mandamus giving the directions which it did, if circumstances of the case justified such directions, the High Court would have been entitled in law to do so for even the courts in England could have issued a writ of mandamus giving such directions. Almost a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amus. In Halsbury's Laws of England, Fourth Edition, Volume I, paragraph 89, it is stated that the purpose of an order of mandamus "is to remedy defects of justice; and accordingly it will issue, to the end that justice may be done, in all cases where there is a specific legal right and no specific legal remedy for enforcing that right; and it may issue in cases where, although there is an alternative legal remedy, yet that mode of redress is less convenient beneficial and effectual." 17. In the case of LIC of India and another v. Consumer Education & Research Centre and Others, the Apex Court was scrutinizing the action of public authority and held that when executive powers are being exercised by the State, it enters into contractual relation with the individual and Article 14 would be applicable to the exercise of such powers and the action of the State or its instrumentality can be checked under Article 14. Their action must be subject to rule of law. The Apex Court held thus :- "25. In Mababir Auto Stores v. India Oil Corporation, AIR 1990 SC 1031, it was held that the State when acting in its executive power, enters into contractual relations with the individual. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ffectuate the purpose for public good and in general public interest and it must not take any irrelevant or irrational factors into consideration or arbitrary in its decision. Duty to act fairly is part of fair procedure envisages under Articles 14 and 21. Every activity of the public authority or those under public duty or obligation must be informed by reason and guided by the public interest." 18. In Union of India v. R. Padmanabhan (supra), it was a case of scheme of reward to informants and Government servants in case of seizure. Notification dated 30-3-1985 and amendment Notification dated 13-4-1989 were under consideration. The Court held that this being an ex gratia claim, no right accrues to claim any sum unless the same is determined and awarded. The Apex Court held thus :- "8. The decision of the Division Bench rendered in affirmance of the one rendered by the Single Bench suffer from a serious infirmity in not adverting properly to the basics and fundamentals of the Scheme for Rewards and in assuming to the contra that when an informer could be given liberally, the Government servant also, must be shown the same consideration, whereas a careful scanning thr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1989. That apart under the Scheme final reward is postulated only on adjudication of the case resulting in confiscation of the goods as found stated in Clause 6 of the Guidelines and that should, therefore, be crucial and relevant date for consideration of award and, therefore, the Guidelines, as are in force on that date, will be really applicable and would relevant. Consequently, the exclusion of the amendment, which was made in April, 1989, from consideration in this case, may not be proper, and the conclusion to the contrary by the High Court, cannot be sustained." (Emphasis supplied) 19. In the case of Union of India v. C. Krishna Reddy (supra), the Apex Court has held that writ of mandamus can be granted only where there is a statutory duty imposed upon the officer concerned and there is a failure on the part of that officer to discharge the statutory obligation. Chief function of writ is to compel performance of public duties prescribed by statute and keep subordinate tribunals, officers exercising public functions within th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le Judge nor the Division Bench adverted to this aspect of the matter. 13. It is well settled by a catena of decisions of this Court that a writ of mandamus can be granted only in a case where there is a statutory duty imposed upon the officer concerned and there is a failure on the part of that officer to discharge the statutory obligation. The chief function of the writ is to compel performance of public duties prescribed by statute and to keep subordinate Tribunals and officers exercising public functions within the limit of their jurisdiction. Therefore, in order that a mandamus may issue to compel the authorities to do something, it must be shown that there is a statute which imposes a legal duty and the aggrieved party has a legal right under the statute to enforce its performance. (See Bihar Eastern Gangetic Fishermen Cooperative Society Ltd. v. Sipahi Singh, AIR 1977 S.C. 2149 para 15, Lekhraj Satram Dass Lalvani v. Deputy Custodian-cum-Managing Officer, AIR 1966 SC 334 and Dr. Umakant Saran v. State of Bihar, AIR 1973 SC 964)." &em ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... % of the value of these items, as reckoned by the Government for the present) are shown in the Annex. These would be subject to periodical revision in the light of price fluctuations about which timely intimations should be sent to DCRI every quarter to enable him to recommend appropriate revision as and when warranted, to the Ministry. 3.2 xxx xxx xxx 3.2.1 Informers and Government servants will be eligible for reward up to 20% of the duty, if any, sought to be evaded plus 20% of the fine and penalty levied/imposed and realized, provided the amount does not exceed 20% of the market value of the goods involved. 3.3 Seizures made; evasion of duty and other infringement detected under the Central Excises and Salt Act. 3.3.1 xxx xxx xxx 3.4 Seizures under the Gold (Control) Act and cases of other violations detected under the Gold (Control) Act. 3.4.1 In case of seizures of gold bullion, the overall ceiling for rewards to informers and Government servants will be as indicated in Serial No. 1 of the Annex. 3.4.2 In other cases, whether of seizure of articles of gold/ornaments, or of detection of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ammunition, explosives; (c) opium and other narcotic drugs; (d) goods not declared which are seized in the Customs area or Customs waters; and (e) freely convertible foreign exchange in the form of currency notes. 5.2 In other ("Smuggling") cases of seizures of contraband goods, advance reward up to 25% of the expected final reward may be paid immediately after seizure, if the authority competent to sanction reward is satisfied that the goods seized are reasonably expected to be confiscated on adjudication and the order is likely to be sustained in appeal/revision proceedings. 5.3 In all other cases, whether of seizure or evasion/infringement detected on the basis of documents, 25% of the expected final reward may be paid after the issue of a show cause notice provided the authority competent to sanction reward is satisfied that there is reasonable chance of confiscability/infringement/evasion, as the case may be, being established in adjudication and sustained in appeal/revisionary proceedings. 5.4 In exceptional cases, the Heads of Departments may, having regard to the value of the seizur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... msp;xxx 8.1.3 All case of grant of reward to Government servants in excess of the limits specified above should be examined and approved by a Committee consisting of the following Amount of reward for constitution of the Committee government servants 1. Reward in excise of Rs. 10,000 but not exceeding Rs. 1 lakh 1. Head of Department, 2. Additional Collector, and 3. Senior most Deputy Collector/Dy. Collector - all the headquarters 2. Rewards in excess of Rs. 1 lakh and up to Rs. 5 lakhs 1. Head of Department, 2. Director, Preventive Operations, and 3. Additional Collector/Special Director in charge of the headquarters. 3. Reward in excess of Rs. 5 lakhs 1. Member concerned of CBEC or GCA as the case may be, 2. DGRI/Director, Enforcement/Director, Anti-Evasion as the case may be, and 3. the Head of Department concerned." 7. It is not in controversy that an amendment came to be issued vide P. No. R-130115/89.Ad.v. of the Department of Revenue in April, 1989 limiting the total reward to Rs. 1 lakh for seizure and to a total limit of Rs. 10 lakhs in one's career......" 22. This policy thus giv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ary limit for sanction of reward. 25. It appears that in the instant case, the smuggled goods worth Rs. 11.56 crores were seized by going into the deep sea. Admittedly, this seizure of gold of 34000 tolas (3400 biscuits) was after taking a considerable risk, and therefore, it appears that as per the order of the Government, following said guidelines laid down in the circular, some of the officers had already been granted the final awards. It also further appears that the name of the present petitioner had been recommended initially by the then Dy. S.P. Mr. P.P. Pandey vide his communication dated 11-10-1989. It appears that Mr. Pandey was DSP, Jamnagar at the relevant time, therefore, the subsequent communication in this respect addressing the DSP, Jamnagar on 17-11-2003 by the Joint Commissioner, Customs, Jamnagar does not have any valid basis. It is not being doubted that such communication by Mr. P.P. Pandey in the capacity of DSP had been addressed. He was never DIG, Jamnagar nor is such post-existing for the District : Jamnagar. It appears that on earlier occasion when he had recommended the name of the present petitioner vide his communication dated 12-10-1989, he had a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tively there is hardly and guarding by police after the seizure. 7. D.S.P., Jamnagar's recommendation does not indicate any risk undertaken by Shri Patel, nor there is any emphasis on any extraordinary/exemplary efforts on the part of the Govt. servant. From the role played by Shri D.M. Patel and as per Ministry of Finance instructions as stated in Para 5, it seems that the reward has been proposed for routine & normal nature of work performed by the Police Officer Shri D.M. Patel." 28. It can be noted from the said decision of the Committee that it has taken into consideration the parameters laid down for viewing the performance of informants and the Government servants. It also further can be noted that this Court is not to sit in appeal over the decision of the Committee. What is required is whether the case of the petitioner has been duly considered by the Committee and whether they had regarded the material available with them for such purposes as also not disregarded the vital and relevant parameters, as set out in the policy laid down by the Government and amended time and again. It is reiteratively laid down by Apex Court and various other Courts, time and again ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
