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PETITIONER: THE STATE OF BIHAR & ORS.

       Vs.

RESPONDENT: SUBHASH SINGH

DATE OF JUDGMENT:       03/02/1997

BENCH: K. RAMASWAMY, G.T. NANAVATI

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      Delay condoned.      This special leave petition arises from the order dated July  19,   1996  imposing   costs  personally  against  the respondent passed  by the Patna High Court in M.J.C. No 1488 of 1995.      The Constitution  of India  is the  supreme law  of the land, having  flown from  "We, the  people of  India,  i.e., Bharat, having  solemnly resolved to constitute India into a sovereign,  socialist,   secular  democratic  republic.  The sovereign power  is distributed  among the  Legislature, the Executive and the Judiciary with checks and balances but not in water  tight   rigid would.  In our democracy governed by the rule  of law, the Judiciary has expressly been entrusted with the  power of  judicial review as sentinal in qui vive. Basically judicial  review of administrative actions as also of legislation is exercised against the action of the State. Since the  State or  public authorities  act in  exercise of their executive  or legislative  power, they are amenable to the judicial  review. The  State, therefore,  is subject  to etat de  droit, i.e. the State is submitted to the law which implies that all actions of the State or its authorities and officials must  be carried  out subject  to the Constitution and   within    the   limits   set   by   the   law,   i.e., constitutionalism. In  other words, the State is to obey the law. The more the administrative action in our welfare State expands widely  touching the  individuals, the  more is  the scope of judicial review of State action. Judicial review of administrative action  is, therefore,  an essential  part of rule of  law, The judicial control on administrative action, thus,  affords   the  courts   to  determine  not  only  the constitutionality of the law but also the procedural part of administrative action  as a  part of  judicial  review.  The constitution has  devised permanent  bureaucracy as  part of the political  executive. By  operation of  Article 53  read with Articles  73 and  74 as  well as  Article 154 read with Articles 163  and 166,  the business of the State is carried on in  accordance with  the rules  of business issued by the President/the Governor,  as the  case may  be, or  the rules made for the subordinate officers in that behalf. The normal

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principle that  the permanent  bureaucracy is accountable to the political  executive is  subject to judicial review. The doctrine of "full faith and credit" applied to the acts done by the  officers and  presumptive evidence  of regularity of official acts  done or  performed, is  apposite in  faithful discharge of  duties to elongate public purpose and to be in accordance with  the procedure prescribed. It is now settled legal position  that the bureaucracy is also accountable for the acts  done in  accordance with  the rules  when judicial review  is  called  to  be  exercised  by  the  Courts.  The hierarchichal responsibility  for the  decision is their in- built discipline.  But the head of the Department/designated officer is  ultimately responsible  and accountable  to  the Court for  the result  of the action done or decision taken. Despite this, if there is any special circumstance absolving him of  the accountability or if someone else is responsible for the  action, he needs to bring them to the notice of the Court so  that appropriate  procedure is  adopted and action taken.  The   controlling  officer   holds  each   of   them responsible at  the pain  of disciplinary action. The object thereby is to ensure compliance of the rule of law.      The  constitutional  Courts  exercise  their  power  of judicial  review   with  constraint   to  ensure   that  the authorities on whom the power is entrusted under the rule of law  or   confide,  is   discharged   truely,   objectively, expeditiously  for   the  purpose   for  which   substantive acts/results are  intended. The petitioner being a member of the permanent  executive, is  enjoined to  comply  with  the orders of  the Court  passed in  exercise  of  the  judicial review. On  an earlier occasion, while disposing of the writ petition, the  High Court  had directed  the  respondent  to consider the  case of  the writ petitioner and to dispose it of with  reasoned order  within two  months. Obviously,  the high Court  expected that  the authorities  would  discharge their duties  expeditiously as  enjoined under the rules and as per  the directions.  Since they  did not  discharge  the duty, necessarily, they were required to give explanation to the Court  as to  the circumstances  in which they could not comply with  the direction  issued by  the Court or if there was any  unavoidable delay,  they should have sought further time for  compliance. Unfortunately,  neither of  the  steps have been  taken by  the officer  in that regard. Therefore, the  High   Court  was   constrained  to  impose  the  costs personally against him for non-compliance of the order.      It is  true and  we are alive to the fact that when the officer is  to take   steps  as per the decision, some delay may occasion  and generally the Courts would be reluctant to impose  costs  personally  against  the  officers.  But  the officers  are   required  to  go  to  the  Court,  give  the appropriate explanation and satisfy the Court that they were prevented by  circumstances for  non-compliance  within  the time specified  by the Court. It is equally salutary to note that if  the High  Court feels  it necessary to impose costs personally against  the officers,  the Court  is required to enquire after  giving notice  and reasonable  opportunity to the officer who could not be impleaded earlier or was not on record, to  explain the  reasons for  non-compliance of  the order or  decision taken  to file  the proceedings. Take for instance, delay  in filing  of an  appeal or revision. It is known fact  that in  transaction of the Government business, none would  own personal  responsibility and  decisions  are leisurely taken  at various  levels. It is not uncommon that delay would  be deliberately  caused to  confer advantage to the opposite litigant; more so when stakes involved are high or persons  are well connected/influential or due to obvious

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considerations. The  Courts, therefore,  do not adopt strict standard of  proof of  every day’s  delay. The imposition of costa on officers for filing appeals causes public injustice and gives  the manipulators  an opportunity  to compound the camouflage. Secondly,  the imposition  of  costs  personally against the officers will be counter productive and officers would desist  to pursue  genuine cases  of public benefit or importance   or   of   far   reaching   effect   on   public administration or  exchequer deflecting  course of  justice. The Court  before  imposing  costs  personally  against  the officers should  be circumspect  and keep at the back of its mind the  facts and  circumstances in  each case. Otherwise, public   justice will suffer irremediably. Unfortunately, in this case  the delay  in compliance  is of one year and five months and  the officer  has not   explained. The High Court was  constrained   to  impose  personal  costs  against  the officer. Under the circumstances, we do not think that it is a fit case for interference.      The special leave petition is accordingly dismissed.