1. This is a petition filed on behalf of one Ramiah, Assistant Health Officer, in Guntur, praying that a writ of certiorari or any other appropriate writ or direction be issued and to quash the order of the Government of Andhra dismissing him from service.
2 The petitioner was a second-class health officer working in the Health Department. While he was the Assistant District Health Officer at Guntur it is stated that he claimed and drawn false travelling allowance for certain journeys performed by him in August and September, 1951. This relates to charge against the petitioner which was subject-matter of Department Enquiry Proceedings No. 56 of 1952. Another charge was made against the petitioner which was the subject-matter of D.E. No. 5 of 1953 and this related to a charge of misappropriation of large quantities of paludrine tables and his having made fictitious entries in the distribution register while he was the Maharashtra Health Officer at Repalle. In E.E. No. 56 of 1952 the Disciplinary Proceedings Tribunal recommended that he should be compulsorily retired from service while in D.E. No. 5 of 1953 the recommendation was that he should be dismissed from service. The Government after considering both the recommendations passed orders on 4 November, 1954 dismissing him from service, when the petitioner was the Municipal Health Officer at Anantapur. It is this order that is sought to be quashed in these writ proceedings.
3. The learned counsel for the petitioner raised various grounds as to why this order could not stand and submitted that there was an error apparent on the face of the record in that there was no evidence to justify the conclusion arrived at by the tribunal. Besides, it was urged that there was a discrimination in the case of the petitioner in that he was asked to face an enquiry before the Disciplinary Tribunal a against his taking a trial before an ordinary criminal court and as such it violated the principles of Art. 14 of the Constitution. Yet another argument was what at the time when the evidence was recorded there were two members of the tribunal and it so happened that after the evidence was recorded one of them retired and a new member was grafted and the contention was that coming to a conclusion with the help of an officer who was not present when the evidence was recorded, amounted to a violation of the principles of natural justice. One other argument was that the case for the prosecution was conducted by the same person who had conduced the investigation. It was also argued that there was no consultation with the Public Services Commission as required by Art. 320(3)(c) of the Constitution. The last argument was that the tribunal failed to summon the documents and witnesses which the petitioner had called for and summoned. It would be desirable to take the submissions seriatim and dispose them of. The argument of the learned counsel that there was an error apparent on the face of the record, in our opinion, cannot be sustained. It is not as through there was no evidence on record on which the tribunal proceeded. On an appreciation of the evidence the tribunal came to the conclusion that the charge was brought home to the petitioner and under those circumstances the contention that there was no evidence is futile. With regard to the question as to what be regard to the error apparent on the face of the record to justify interference under Art. 226 of the Constitution it is necessary to refer to what the Supreme Court laid down in certain decided cases. In the case of Harivishnu Kamath v. Ahmed Ishack [1955 S.C. 233], following the earlier decision in Basappa v. Nagappa [1954 S.C. 440], their lordships observed that the error in order to justify interference under Art. 226 must be one which must be manifest on the face of the record and not merely an error. As the illustration of that they said that it might be regarded as an error where the decision is based on an ignorance and disregard of the clear provisions of law but not a mere wrong decision. This order cannot be impugned on the ground of there being an error apparent on the face of the record.
4. The next argument was that in sending the case of the petitioner to the tribunal, there was an unfettered discretion vested in the Government to single out a particular case and sent it to the tribunal and this was violative of Art. 14 of the Constitution. This objection also, is devoid of force. So, far as this argument is concerned, it has to be stated straightway that abuse of the power given by law sometimes occurs but the validity of the law cannot be contested because of such apprehension. Further the aggrieved party would have to establish that there has been a palpable abuse of power by the executive and that there has been a hostile discrimination. Unless these are established, it cannot be said that there was a discrimination as such. In the case of Kedarnath v. State of West Bengal [1953 S.C. 404] it was observed as follows :-'Whether an enactment providing for a special procedure for the trial of certain offences is for is not discriminatory and violative of Art. 14 must be determined in each case as it arises. A practical assessment of the operation of the law in the particular circumstances is necessary.'
5. We may also refer to another observation of the Supreme Court to say :
'A statute will not necessarily be condemned as discriminatory because it does not make the classification itself but as an effective way of carrying out its policy vests the authority to do it in certain officers or administrative bodies.'
6. Vide State of West Bengal v. Anwar Ali Sarkar [1952 S.C. 75]. This has been further made clear in the case of Matajog Dobey v. H. C. Babkey [1956 S.C.J. 110]. Suffice it to extract the following passage :
'The discretionary power is not necessarily a discriminatory power and that abuse of power is not easily to be assumed where the discretion is vested in the Government and not in any minor officer.'
7. The learned counsel's contention that after the evidence was recorded in the presence of two members, one of them retired and another was grafted on and, therefore, the judgment pronounced on the evidence on record by a person who had retired was of no avail and against natural justice is equally without force. This fact is not disputed by the Government. As regards this, we must point out that no such objection was taken before the tribunal. We may also observe that in so far as criminal proceedings are concerned, they would be ordered only if the accused wanted such fresh trial on ground that he had been prejudiced. Our attention was drawn to a decision of Supreme Court in the case of the United Commercial Bank Ltd. v. Their workmen [1951 - I L.L.J. 621]. An industrial tribunal was constituted by the Government of India in the Ministry of Labour, appointing Mr. K. C. Sen, Mr. S. P. Varma and Mr. Mazumdar as the members of the tribunal. Later on as Mr. Varma's services became unavailable, Mr. N. Chandrasekhara Ayyar was appointed a member of the tribunal. It so happened that after Mr. Chandrasekhara Ayyar was appointed member, his services were not available to the tribunal from 23 November, 1949 to 20 February, 1950. The jurisdiction of the tribunal to make the award was disputed on the ground that Mr. Chandrasekhara Ayyar's services were not available and, therefore the Government had to constitute a fresh tribunal and the tribunal had no jurisdiction to here anything when Mr. Chandrasekhara Ayyar was not taking part. Dealing with this objection their lordships of the Supreme Court held that unless all the three had heard the matter together they had no jurisdiction to make the award in terms of S. 15. The point of distinction between that case and the case before us is that the Act under which the industrial tribunal was constituted provided for a fixed quorum of three persons which meant that all proceedings should be held in the presence of the three members and, therefore, in the absence of any one of them, the tribunal would not have jurisdiction. Such is not the case with regard to the tribunal in the instant case. Therefore that decision cannot help the petitioner. The objection with regard to certain witnesses not being summoned and documents called for also must fail. It does appear from the proceedings before the tribunal that the petitioner did pray for the summoning of certain witnesses and his request was that they might be summoned as Court witnesses. His request was rejected. This was a matter of discretion to be exercised by the tribunal. It was up to the petitioner to have summoned the witnesses and, if they proved to be hostile, to crave leave of the tribunal to cross-examine them. We do not think that by the omission of the tribunal to call for those witnesses of the tribunal call for those witnesses there has been any failure of justice.
8. The argument that there was no consultation with the Public Service Commissions as required by art. 320 of the Constitution ceases to have any force after the decision of the Supreme Court in the case of the State of Uttar Pradesh v. Manbodhanlal [1958 II L.L.J. 273] where their lordships stated categorically that the provision in Art. 320(3)(c) of the Constitution is only directly and not mandatory. They laid down that the absence of consultation would not afford a partly a right to seek the relief of the High Court under the special powers under Art. 226 of the Constitution.
9. Having disposed of the legal arguments urged by the petitioner, we must say that this Court is not sitting in appeal over the decision of the tribunal, its powers under Art. 226 being restricted and confined to cases of excess of jurisdiction or want of jurisdiction or there being a palpable abuse of the process of the Court or an error apparent on the face of the record. None of theses things are to be found here. There has been a finding of fact on the evidence that the petitioner misappropriated 4, 000 tablets of paludrine. The tribunal also found on the evidence that the charge against him that he claimed second-class fare while he actually travelled in inter class is established. For all these reasons we are of opinion that the petitioner has not made out a case for the exercise of our jurisdiction under Art. 226 of the Constitution. The writ petition, therefore, fails and is dismissed with costs. Advocate's fee Rs. 100.