INTRODUCTION

Part III of the Constitution of India guarantees certain fundamental rights to all of its citizens, these rights include the right to freedom (as illustrated by article 19 ), the right to equality (as can be seen by articles 14 and 15 ), right against exploitation (as enumerated in articles 23 and 24 ), etc. These rights play a major role in helping preserve and promote the rights of the individuals, as well as promoting equality. But simply declaring these rights would not be able to ensure that they continue to exist through the trials and tribulations of political life, the makers of the Constitution realized that if these rights were to be truly made available to the people, it was crucial that it made these rights enforceable by the judiciary in order to prevent the laws from remaining mere paper laws. It is with this realization that a right without a remedy is nothing more than a meaningless formality that the right to constitutional remedies was brought about in India.
This right to constitutional remedy is talked about in article 32 of the Constitution, meaning it is a fundamental right in itself, making it a provision that is unique to the Constitution of India. Under this article, if a person believes that they have been deprived of any of their fundamental rights, they have the right to approach the supreme court in order to get the required legal remedies and get their rights enforced. Further, it gives the Supreme Court, or any other court empowered by parliament, the power to enforce these fundamental rights of the people through relevant instruments such as the issuance of writs. The right to Constitutional Remedies is something that has been described in Ram Singh V. State of Delhi as a privilege and duty of the court in order to ensure that the “rights intended to be fundamental are kept fundamental”, similar sentiments were echoed by the court in State Of Madras vs V.G. Row. It was also stated in Romesh Thappar V State of Madras that the protection of the liberties of the people lies at the very center of preserving a democratic way of life. The only exception to the right to constitutional remedies that exists is- in a situation where the President declares a national emergency under Article 352 of the Constitution then this right gets suspended for the people, this means that even if someone believes that their fundamental rights have been infringed, they will be unable to approach the Supreme Court to enforce the same.
Even though this exception has been widely criticized, the makers of the Constitution believed that it is a necessary evil because the interests of the individual cannot be allowed to interfere with, or harm, the interests of the state at large, and in pursuance of the same the right to constitutional remedy can be curtailed in such exceptional circumstances.
Article 32 can also be used by the courts to award adequate compensation, the court reasoned that by providing monetary compensation, any similar acts will be deterred in the future. The court used Article 32 to provide compensation in cases such as Rudul Shah V. Union of India and Bhim Singh V. State of Jammu and Kashmir and reiterated that if they are not allowed to do so under Article 32 then it would render the article useless in M.C Mehta.

WRITS

As we have already discussed, in order to be able to enforce the fundamental rights of the people, the courts have been armed with certain instruments. The most important one of them being the power to issue writs.
A writ refers to a written order by a court with relevant jurisdiction which the court uses to command a particular body to perform a specified act or abstain from performing an act. As we have already seen, the Supreme Court retains the right to issue writs under Article 32, but this power is not exclusive to the apex court. The High Courts of appropriate jurisdiction also have the power to issue writs as provided by Article 226 of the Indian Constitution, and this power is not to be conferred to the High Courts in derogation of Article 32.
With regards to the jurisdiction of the High Court to use Article 226 to issue writs, it had initially been laid down in the Khajoor Singh case as well as the Saka Venkata Rao case that the authority or government against whom the writ is to be issued need to be located within the territorial jurisdiction of the High Court. This position was altered by the 11th Amendment of 1961 which stated that any high court within whose jurisdiction the cause of action arose would be allowed to issue writs.
The power to issue writs is wider for the High Courts than it is for the Supreme Court, this can be seen from the fact that while the Supreme Court can only use its writ jurisdiction to enforce the fundamental rights of the people, the High Courts have been given the power to issue writs to uphold not only fundamental rights but other Constitutional as well as legal rights. An instance of the High Courts using their writ jurisdiction to enforce constitutional rights can be seen in the case of Narayan Prasad V. State of Chhattisgarh when two brothers were denied No Objection Certificates for the transfer of their property by the special tribunal. They approached the High Court to enforce their right as provided by Article 300-A of the Constitution, and this was upheld by the court who stated that they ought to be granted the same since it is a constitutional right that has been granted to them.

The writs are classified into five types; these are discussed below:

1. The Writ of Habeas Corpus: The literal translation of the writ is “to have the body”. This is used by the court to set free someone who, in the eyes of the court, has been wrongfully detained. It was held in Narayan V. Ishwarlal, that the question of whether the writ is civil or criminal would depend upon the procedures in which the detention was executed.

An important feature of the writ is that in the case of habeas corpus, the doctrine of locus standi has been relaxed. This doctrine states that only that person who has a direct connection to the case at hand shall be permitted to approach the court for relief. In the case of this writ, this doctrine was eased by the court in the case of Sheela Barse V. State of Maharashtra, this was done in court because if there is a situation where a detained person is unable to plead, any other party such as their family should be allowed to file a writ petition on their behalf.

In addition to this, even if someone who has been detained writes a letter to a judge, it can be used as sufficient grounds to file the writ, this was held in Sunil Batra V. Delhi Administration. Finally, the courts also have the power to take suo moto cognizance and file a writ themselves. While dealing with a habeas corpus petition, the courts may also look into the legality of the detention without having the person so detained, produced before them. This was seen in the case of Kanu Sanyal V. District Magistrate.

Once the writ is issued by the court, the person who has been wrongfully detained is produced before the court, and if the court finds that the detention was not justified then it orders their release. They can deem the detention to be illegal on grounds of due procedure established by law not being followed, or that the detention was not made in accordance with the law. In certain cases, the courts may even go so far as to award exemplary damages, such as was seen in the case of Bhim Singh.

This writ can, however, not be invoked in cases such as where the detention is a result of a judicial proceeding, the person has been put into restraint under a constitutionally valid law, or if it is deemed that the court does not have the appropriate territorial jurisdiction.

2. The Writ of Mandamus: Mandamus literally means, ‘we order’, this writ is a form of command by the courts to other bodies, which could be constitutional, statutory, or non-statutory, or by a higher court to a lower court, to perform a specific act, or stop them from performing a certain act which falls outside the scope of their powers, these acts need to be mandatory in nature and not discretionary.

It is important to remember that this writ cannot be filed against a private party who does not have a legal duty to perform the function, it can also not be used against the President, as held in the S.P Gupta case, or governors, as said in C.G Govindan V State of Gujrat. It can also not be brought against inferior officers who are bound by the directions provided by their seniors. It can however be filed against a private person if it can be shown that they acted in collusion with a public authority, this was laid down in the cases of The Praga Tools Corporation v. C.V. Imanual, and Sohanlal v. Union of India. The court has also stated that the rule of locus standi is to be followed while issuing this writ.

Courts can issue the writ in a situation where there exists some legal right of the petitioner that has been infringed due to the non-performance of a duty that a party, be it a public authority or a private party, was legally bound to perform but has not done so.

Some cases where this writ was used by the court include the case of Rashid Ahmad V. Municipal Board where the court held that even if an adequate alternative remedy is available, it cannot serve as a bar towards issuing the writ even if it might be taken into consideration by the court. Even in PUCL V. Union of India, the courts issued a continuing mandamus, which means that the state was required to appear before the court at regular intervals and show that they were taking necessary steps to provide the right to food under Article 21 of the constitution. Here the continuing mandamus was used by the court to continuously monitor the state for many years after the initial suit was brought in 2001.

3. The Writ of Certiorari: Certiorari means ‘to certify’. This writ is used by higher courts as a form of a command to a lower court or some lower quasi-judicial body to send the records of a proceeding that is pending before it to the higher court. This is usually done when it is believed that the lower court does not have the necessary jurisdiction as was seen in Rafiq Khan V. State of U.P where the Allahabad HC quashed an order by the sub-divisional magistrate who had modified the order by the Panchayati Adalat to convict the accused under the relevant sections of the IPC on the grounds that the magistrate lacked the required jurisdiction to be able to modify orders.

It is also used if the lower court violates the principle of natural justice while giving its judgment, or if there is an error of law made by the lower court that is apparent on the face of it, i.e., they have clearly disregarded certain statutory provisions, this was seen in the case T.C Basappa V. T. Nagappa. The writ cannot be issued if the decision by the lower court is made due to an error in facts, and it can only be filed against a lower court and not against a higher court or a court of equal standing, this was clarified in Surya Dev Rai V. Ram Chander Rai.

It is important to remember that the higher court only has an advisory jurisdiction while issuing this writ, and it cannot be used in the form of appellate jurisdiction. It also follows the doctrine of locus standi to a very stringent degree.

4. The Writ of Prohibition: This is also known as a stay order, under this writ used by a higher court to forbid a lower court from continuing proceedings or acting beyond their scope of powers. The main aim behind the writ is to prevent courts from acting outside their scope of jurisdiction, as was seen in East India Company Ltd. V. The Collector of Customs as well as the Bengal Immunity Co. Ltd case, and it is available while the proceedings are pending and before an order has been made.

4. The Writ of Quo Warranto: This writ is used to look into the legality of a claim made by a person or an authority to act in some public office, it seeks to check whether they are entitled to the position or not by examining the actions of the appointing authority. The basic idea behind having this writ is to prevent someone from holding a public office that they are not entitled to in order to prevent harm from coming to the public. This writ can be issued by anyone, the conditions for issuing the writ are that the office cannot be private and must be a public one (this was stated in Jamalpur Arya Samaj V. Dr. D. Ram ) which was created either by a Statute or by the Constitution. Further, it must be a permanent office and the writ has to be issued against a person who is currently holding the office or is someone who was disqualified from the office but refuses to vacate. This writ falls completely on the discretion of the courts.

CONSTITUTIONAL REMEDIES THROUGH PUBLIC INTEREST LITIGATION

A PIL refers to litigation that is undertaken in order to address grievances of the public and can be filed by anyone. A PIL is filed under Article 32 in the Supreme Court, Article 226 in the High Court, and Section 133 of the Code of Criminal Procedures in a magistrate. The courts can also initiate the process on the reception of a report, email, letter, etc. The PIL can be treated in the same way as a writ petition and once the court is satisfied that the letter is from the aggrieved party, it can initiate proceedings. It is a critical part of the Constitutional Remedies since it helps promote equality as well as protection of personal liberties of the people who might be unable to stand up for themselves. Furthermore, due to its inexpensive nature, it can be made available to more people and helps the courts in upholding the rights of the minorities and raising public awareness.
While the intention behind introducing PIL’s was to help make justice more accessible to all sections of society, it has also drawn criticism. Some of the criticism leveled towards PIL’s include the fact that the courts have misused PIL’s to overstep their bounds and breach the separation of powers by making policies on subjects such as pollution and sexual harassment. Further, due to the sheer volume of PIL’s that get filed due to their inexpensive nature, not only does it lead to an increase in the burden of the courts, oftentimes they spend time on frivolous PIL’s while ignoring more pressing concerns.
When it was seen that there was rampant abuse of PIL’s taking place, guidelines were laid down with regards to PIL’s in the State of Uttaranchal V. Balwant Singh where the court stated that any person who files a frivolous PIL ought to be fined up to Rs. 1 Lakh. It further said that the courts must verify the credentials of the petitioner before they take up a PIL, and they must ensure that the PIL contains a substantial question of interest to the public at large.

CONSTITUTIONAL REMEDIES AND RES JUDICATA

Res Judicata roughly translates into a matter that has been decided. The doctrine states that if a matter has already been decided by a court of competent jurisdiction, it is binding on the parties unless overturned via appeal or revision. The question thus arises, will an application under Article 32 be maintainable if a similar petition has been rejected by the High Court under Article 226. The rule is not only a mere technicality, it finds its roots in the promotion of public policy.
The court held in Daryao V. State of Uttar Pradesh that the doctrine of res judicata would remain a bar on the maintainability of a petition under Article 32 before the Supreme Court if the same has been decided by the High Court under Article 226. Further, it is important to note that in a situation where a writ petition is pending before a High Court, it cannot be filed before the Supreme Court, this was laid down in PN Kumar V. Municipal Corporation of Delhi, if such a situation were to arise then the party must only be allowed to move to the Supreme Court on appeal.

CONCLUSION

Articles 32 and 226 have played a monumental role in giving the courts the power to make justice more accessible to all sections of society. Through the regular judicial review, they have made the Constitution into a dynamic document that is better adjusted to modern times. Providing constitutional remedies to the people through the medium of PIL’s has vastly helped the disadvantaged raise their voice against the wrongs committed against them.
It is for these reasons that Article 32 has been deemed to be a cornerstone of our democracy by former CJI BP Gajendragadkar, M V Pylee noted that the first three sections of Article 32 help make the fundamental rights real, and this, in turn, makes them the “crowning part of the entire chapter”.
While these articles do equip the judiciary with great powers to be able to aid the public, it is critical that regular checks be maintained on the usage of this power by the courts, it has to be seen that the Judiciary work with a level of restraint and do not overstep their bounds. After all, with great power comes great responsibilities.

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SAKAL PAPERS LTD. VS. UNION OF INDIA 1962 SCR (3) 842

FACTS OF THE CASE:

A private news organization distributed papers, documented petitions against the state testing the newsprint strategy of the public authority which confined the number of pages a paper was qualified for print. The distributing organization tested the sacred legitimacy of the Newspaper (Price and Page) act,1956, which enabled the Central Government to manage the cost of the paper according to their pages and the allotment of room for publicizing matter.
It was likewise tested by the distributing organization that Daily Newspapers (Price and Page) Order, 1960, passed by the public authority under the Newspaper Act to set up such guideline, abuses the right to speak freely and articulation ensured under Article 19(1)(a) of the Indian Constitution.

CONTENTION BY STATE:

The guidance from the state contends that the object of the guideline was to forestall out of line rivalry and the ascent of restraining infrastructures inside the paper business. Because of the economies of scale, set up enormous papers were in a situation to keep costs at a level which the more up to date and more modest papers couldn’t contend, and subsequently would be not able to enter the market and if effectively present, would be compelled to exit by offering to one of the set-up papers.
It is likewise contended that, by opening up the market, the guidelines were intended to advance the right to speak freely and articulation. The state attempted to legitimize its activities by calling them to be sensible limitations on the business activities of the paper offices for the sake of public interest.
In any case, the Hon’ble Court dismissed every one of these conflicts and held that the Newspaper Act and Newspaper Order was illegal.

JUDGEMENT:

It was held by the Hon’ble Court that the Newspaper Act and Newspaper Order was illegal and the supplication of the applicants was maintained by the court. After appropriately deciding the current issue, an undisputed choice of the court held that the distribution of paper not just related to the right to speak freely of discourse and articulation yet, in addition, direct a business compliant with Article 19(1)(g), which basically suggested sensible limitations on the paper business.
An unexceptionable comment was made by Justice Mudholkar in the judgment that Article 19(1)(a) covered the substance as well as the volume of the paper. The effect of the guideline challenged is straightforwardly limit the dissemination and volume of the paper and along these lines, this was an away from of the encroachment of the privilege to the right to speak freely of discourse and articulation and won’t be saved by the special case made under Article 19(2). This is one of the milestones decisions set forth opportunity of the press in the statute in India, which strengthened that it is a violation of Article 19(1)(a) to limit the number of pages, costs, promotions, paper flow.
On account of Bennett Coleman & Co. vs. Union of India [AIR 1973 SC 106], it was emphasized by the dominant part that the right to speak freely and articulation isn’t just in the volume of the course yet additionally in the volume of the news.
A comment was made by Justice Ray in his judgment that opportunity of the press qualifies the papers for accomplishing any volume of dissemination and opportunity of the press is both subjective and quantitative, thus opportunity lies both available for use and in substance. Consequently, therefore, the court struck down the News Print Policy figured by the public authority in the year 1972-1973 as being a violation of Article 19(1)(a) as the arrangements referenced in the approach didn’t fall under any of the special cases referenced in Article 19(2).

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MUKESH KUMAR vs. STATE OF UTTARAKHAND 2020 SCC Online SC 148

RELEVANT FACTS:

The state of Uttarakhand was formed in the year 2001. On 05.09.2012 the State Government decided that all the public services in the State shall be filled up without providing any reservation to the reserved category (Scheduled Castes and Scheduled Tribes). Mr. Gyan Chand who was working as Assistant Commissioner and belonging to the Scheduled Caste community filed a writ petition in High Court of Uttarakhand for quashing the said order of State Government. The High Court relying on Indra Sawhney v. Union of India & Ors. and Jarnail Singh & Ors v. Lachhmi Narain Gupta & Ors. said that this order contrary to settled law and needs to struck down. Later an appeal was filed by Vinod Kumar and three others, belonging to Scheduled Caste working in PWD, filed a writ petition High Court to seeking a direction to State Government to prepare a separate list of eligible candidates according to the Public Service Commission Rules, 2003 and also to prepare a separate list for each category of eligible candidates of General, Scheduled Caste, Scheduled Tribes for promotion to the post of Assistant (civil) Engineer in PWD. A direction was given to State Government to form a department promotion Committee for promotion of posts of Assistant Engineer after providing reservation to Schedule Tribes and Schedule Castes. The High Court sought a direction to the State Government to implement reservation in promotion to only members of Schedule Caste and Schedule Tribes for upcoming vacancies. Later a review petition was filed by Respondent i.e., State Government of Uttarakhand, and the High Court issued a direction to State Government to collect quantifiable data regarding the inadequate representation of the Scheduled Tribes and Castes in Public Services which would enable the State Government to provide reservation or not providing reservation. Aggrieved by the impugned order of High Court the present S.L.P. was filed by the Respondent i.e., State of Government.

ISSUE:

• Whether the State Government is bound to make reservations in public posts.
• Whether the decision by the State Government not to provide reservations can be only on the basis of quantifiable data relating to the adequacy of representation of persons belonging to Scheduled Castes and Scheduled Tribes.

CONTENTIONS:

Appellant’s Contention:

The representative for State Government contended that the state is not duty-bound to provide reservation in promotion in public services. There is no need to collect quantifiable data after the state has decided to not provide reservations. They argued that there is no fundamental right to claim reservation in promotion. Article 16 (4) and Article 16 (4) (a) are merely enabling provisions. In Suresh Chand Gautam v. the State of UP, no direction can be given to State Government to collect quantifiable data based on which a decision to provide reservation in promotion should be taken, and also State is not bound to make reservations.

Respondent’s Contention:

The representative for reserved category employees submitted that State can’t refuse to collect quantifiable data regarding adequacy or inadequacy of representation of SC/ST in public services. Further, they argued that the state has a duty to provide reservation in promotion for the upliftment of members of Scheduled Tribes and Schedule Caste as provided in Article 16 (4) and Article 16 (4)
(A) of the Constitution of India. They argued that State can’t provide reservation only after when there is an adequate representation of SC/STs members in public services and for the same, a committee was formed by the Government of Uttarakhand. The Committee submitted its report which says that there is an inadequate representation of SC/STs members in government services. The representative contended that the state has a duty to provide reservation on the basis of the data collected by the committee.

JUDGEMENT:

The Judgement, in this case, came in the favor of appellants. The observation was that Article 16(4) and Article 16 (4) (a) are enabling provisions. The state is not bound to make reservations in the promotion of public services. It was said that even if the state government agrees to provide reservation in promotion in public posts then it has to show that there is an inadequate representation of SC/STs members in public services but if the state government has already been decided that it’s not going to provide reservation then no mandamus (to produce the quantifiable data) can be issued from this court.

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Pravin Kumar v. Union of India

Facts:

The appellant- Pravin Kumar approached the Supreme Court against the order of the Bombay High Court of quashing his writ petition. The appellant was deployed at the Crime and Intelligence Wing at Central Industrial Security Force, at the local Bharat Petroleum Corporation Limited (BPCL) in Mumbai. On 02-08-1999, Constable Ram Avtar Sharma (CW1) at around 6pm was noticed by Inspector Hiralal Chaudhary (PW1) carrying huge bundles of notes, Chaudhary searched the person of Sharma and recovered an amount of Rs. 10,780 from him, a record was made of the seizure in the General Diary kept at the north-gate of BPCL compound. Later it was found that a GD entry was made at the main gate at 6:05 pm, noting an amount of Rs. 9000 handed over by Constable K.K. Sharma (PW2) on behalf of another official as a personal loan, during investigation this entry was found to be false and was registered at the instance of the appellant who made calls to ASI Surjan Singh (PW5) who was in-charge of the GD. K.K. Sharma was pressurized by the appellant to falsely support his ‘loan theory’ by deposing that he had in fact delivered the cash to CW1. An FIR was registered with the Anti-Corruption Bureau of Investigation, and an enquiry was initiated against the appellant under Rule 34 of CISF Rules 1969, with Assistant Commandment P.B. Patil as the enquiry officer and by an order dated 31-05-1999 the appellant was suspended.

The enquiry officer submitted a self-speaking report on 17-09-1999, in which PW1 testified to search of CW1 and seizure of Rs. 10,780 from him, PW2 negated handing over the money to anyone and mentioned that he was threatened by the appellant into giving a false statement. PW5 testified that he received a call from the appellant intimidating him into registering a false GD entry with an earlier time to substantiate his loan transaction for protecting CW1. CW1 was examined by the enquiry officer who testified that on 02-08-1999, he received Rs. 10,000 on the appellant’s behalf from one D.K. Parmar-contracted by the BPCL for lifting garbage/waste. The notes were in his possession along with his personal cash of Rs. 780, when was caught by PW1, he also admitted to have falsely claimed to have received the money from PW2, he stated that the appellant illegally collected bribes through his subordinates from BPCL contractors at the rate of Rs. 20 per vehicle entering the BPCL compound and Rs. 5 per vehicle exiting, for facilitating the theft of ‘iron scrap’ and ‘brass’ smuggled out of the compound along with the garbage, however, CW1 later retracted his statement. The appellant was given opportunity to prove his evidence.

The enquiry officer held the appellant guilty on the charges of gross misconduct and indiscipline for ordering false GD entry, second, for becoming an extra constitutional authority for issuing unlawful orders to PW2 to give a false statement and thirdly, corruption for illegally collecting bribes. The report was placed before the disciplinary authority and the appellant was given a chance to respond to the same. The disciplinary authority found no contradictions in the witness testimonies and the charges against the appellant was found to be proved. They found the enquiry officer to have followed the procedure properly and impartially and also noted that no request was ever made to change the enquiry officer so no malice can be suggested. The disciplinary authority considering the evidence and serious nature of the appellant’s charges passed an order dated 20-11-1999, imposing an exemplary punishment of dismissal from service under Rule 29(a) read with Rule 31(a)- Schedule II of CISF Rules, 1969.

The appellant filed a departmental appeal before the Deputy Inspector General of CISF Western Zone; the appellate authority after considering the appellant’s contention and reappreciating the evidence-on-record, dismissed the appeal. The appellant than approached the Bombay High Court against the orders of the Disciplinary Authority and the Appellate Authority under Article-226 of the Indian Constitution. During this appeal, the appellant raised a new contention that Rule 34 (10)(ii)(b) of the CISF Rules, 1969 was not complied with, which specified serving of a second showcause notice and opportunity of hearing regarding the proposed penalty and submitted before the court that it was not his case that the penalty imposed against him was disproportionate if the charges against him were held to be proved. The court found that the CISF rule relied upon by the appellant was amended in 1981 to have no requirement for showcause notice at the stage of penalty. The court re-examined the evidence and facts of the case and found sufficient evidence against the appellant’s involvement in collecting bribes and fabricating official records and intimidating officers to give false statements. They found that the enquiry officer followed all procedures and complied with the principles of natural justice, also gave ample opportunity to the appellant to prove his side, the writ petition was dismissed on 05-05-2009. The appellant thus approached the Supreme Court. 

Issues:

• Whether the appellant was rightly charged for the offences and dismissed from service by the Disciplinary Authority, and whether the Appellate Authority and High Court was right in dismissing his appeal.
• Whether the dismissal of the appellant from service is disproportionate to the charges proved against him.
• Whether the Enquiry Officer took over the role of Judge as well as Prosecutor by asking question to the witness. 

Legal Provisions:

• Constitution of India, 1950, Articles 226, 32 and 136 – Judicial review.
• Central Industrial Security Force Rules, Rule 34 – Nature of Penalties- Major/Minor
• Central Industrial Security Force Act, 1968 Section 22 – Disciplinary proceedings
• Evidence Act, 1872, Section 165- Judge’s power to put questions or order production.

Appellant’s Contention:

The counsel for the appellant submitted that since CW1 had retracted his statement, there was no corroboration between the witnesses and the documents. They also questioned the enquiry officer’s conduct of asking questions to the witness, they called it unfair as he acted as both the judge and prosecutor. The appellant denied the charges against him and stated that false charges were levelled against him. They stated that since the CBI was not launching criminal proceedings against the appellant this charge should also be dropped. He prayed for leniency and stated that dismissal of service given his 21 years of remaining service was disproportionate. 

Respondent’s Contention:

The counsel for the respondent stated that no reliance was placed on CW1’s retracted statement. They stated that all the charges were proved against the appellant, the concurrent findings of the enquiry officer, disciplinary authority, appellate authority and the High Court left little scope for reappreciating evidence or re-adjudication. They referred to the case of Shashi Prasad v. CISF to put forth the argument that departmental enquiries are not out on the same pedestal as criminal proceedings, so acquittal in one would not affect the other due to different standard of proof. Further reliance was placed on the case of Govt. of Andhra Pradesh v. Mohd Narsulla Khan (2006) to claim that there cannot be re-appreciation of evidence and that the Constitutional Court should not act as appellate authority in disciplinary proceedings of government employees.  They also stated that given the delicate nature of employment in para-military forces and the breach of high trust reposed in him by the society, strict punishment of dismissal from service given to the appellant was justified. 

Observations of the Court:

The case was heard before the Supreme Court Bench of N.V. Ramana, S. Abdul Nazeer and Surya Kant, JJ. The court observed that the power of judicial review under Articles 226, 32 or 132 of the Constitution is different from the appellate power exercised by a departmental appellate authority. It stated that the court under Judicial review ensures fairness in treatment and evaluates the decision-making process and does not decide the merits of the case nor does it correct manifest errors of law. The court in appeals arising out of inquiries conducted on charges of misconduct by public servant is concerned with determining if the principles of natural justice were complied with and if the findings are based on some evidence. The court exercising powers of Judicial Review does not become an appellate authority and is limited to correcting procedural errors or violation of natural justice principles. The court observed that the Bombay High Court did not merely rely on the findings of the appellate authority rather re-examined evidence, conducted cross-examination and gave the appellant the chance to address arguments, raise objections and file appeal.

It also noted that the High Court adopted a liberal approach to Judicial Review and came at its own conclusion of guilt. The court also did not doubt that the appellate authority and disciplinary authority were thorough in their findings and it did not find any fault in the report of the enquiry officer. The court noted that the present case is not where there is no evidence or a different conclusion can be arrived at than the disciplinary authority. The court stated that the appellant’s contention that the enquiry officer by asking questions to the witness violated principles of natural justice as he became the judge as well as prosecutor, is misplaced. The court held that u/s-165 of the Indian Evidence Act, judges have the power to ask questions to any witness or party about any fact to obtain proper proof of the same. The court observed that the appellant did not mention any specific instance in his allegation, also no request was made to replace the enquiry officer which proves this objection was just an afterthought. The court noted that the CBI after investigation did not find sufficient evidence to launch criminal proceedings against the appellant but by a report dated 07-03-2000 recommended strict disciplinary action against the appellant and a few others.

The court noting the there is a deliberate difference in the standard of proof required for civil and criminal litigation taking into account the different stakes, power imbalance between the parties and social costs of erroneous decision. Thus, in a disciplinary proceeding the strict rules of evidence and procedure of criminal trial would not apply and the statements made before the enquiry officers can be relied upon in certain cases. The appellant’s contention that since the CBI did not file a criminal chargesheet against him, he should be absolved of the present proceeding, however the court held that the employer still retains his right to initiate disciplinary proceedings irrespective of the outcome of criminal proceeding, also the CBI had recommended strict disciplinary action to be taken against the appellant. On the appellant’s contention of the punishment being disproportionate to the charges proved against him, the court held that the disciplinary authority has wide discretionary powers to impose punishment for proved delinquency subject to certain rules and limitations. It was observed that imposing major penalty of dismissal, removal or reduction in rank would not be proper for trivial misdeeds but such punishment is needed in cases of grave offences such as corruption, misappropriation and gross indiscipline, etc.

Judgement:

The court held that given the charges of corruption, fabrication and intimidation being unanimously proved against the appellant the punishment of dismissal is not disproportionate. The court finding no merit in the present appeal dismissed it. 

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Federation Of Hotel And Restaurant Associations Of India Vs Union Of India

FACTS:

In this case, a writ petition was filed against various hotels and restaurants by the federation of hotel and restaurant associations of India- The petitioner. The concern of the petitioner was that, hotels and restaurants were charging higher price than the Maximum Retail Price (MRP) of Packaged drinking water and that this was against the law as according to the law, no commodity should be charged higher than the Maximum Retail Price. It was alleged that the hotels and restaurants charged higher than the MRP in the garb of providing service and ambience.

ISSUE:

Under section 57 of the Legal Metrology Act, 2009 and under section 366 (29A) (F) of the Constitution of India.

PETITIONER CONTENTION:

The petitioner citing Section 366 (29A) (F) of the Indian constitution:

 “ tax on the supply, by way of or as part of any service or in any other manner whatsoever, of goods, being food or any other article for human consumption or any drink (whether or not intoxicating), where such supply or service, is for cash, deferred payment or other valuable consideration, and such transfer, delivery or supply of any goods shall be deemed to be a sale of those goods by the person making the transfer, delivery or supply and a purchase of those goods by the person to whom such transfer, delivery or supply is made” 

Said that, according to this law no extra charges should be charged in the name of transfer or supply of goods. So the restaurants and hotels should not be allowed to charge higher amounts.

RESPONDENT CONTENTION:

The respondent contended that all the jurisdictional allegations made by the plaintiff is not valid as in context of the section as according to the section 57 of legal metrology act, that particular section has already been revoked and also emphasized on the concept of the possibility to divide the “service element”, which is the dominant element, from the “sale element”, it is clear that such specific contracts cannot be the subject-matter of sales tax legislation and there is not a particular definition on how to differentiate it. So, there is no curse of action that should be taken against the restaurant or hotels.

JUDGEMENT:

The single bench of Justice R.F Nariman gave the judgment that, charging higher prices of packaged drinking water than that of the MRP printed on the packaging, during the service of customers in hotels and restaurants does not violate any of the provisions as the customer does not only come to the hotel or restaurant to buy the bottled water but also for other things which includes the service and ambience of the particular hotel or restaurant and the customer is aware of these things, thus no action can be taken against the respondents. Thus, the wit petition was dismissed by the Supreme Court.

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