TMI Blog2014 (1) TMI 13X X X X Extracts X X X X X X X X Extracts X X X X ..... s have been apprehended or not. Ordinarily, informers and Government servants up to the level of Group ‘A’ Superintendents/Assistant Collectors of Customs and Central Excise/Assistant Directors will be eligible for reward depending on the contribution made by them as a team as well as individually with regard to the collection of intelligence, surveillance, effecting of seizure etc. Due credit should be given to the staff employed on investigation. Government servant posted on the vital point to perform his duty is expected to do with utmost zeal and valor. He is also expected to be vigilant and take all necessary steps for preventing the crime or in apprehending the criminals. It is only in extraordinary circumstances and events that the ex gratia payment of reward is contemplated when the Government servant fall under any of those set out parameters. Mere recommendation also does not give the petitioner any right to receive the reward. The petitioner also has not been able to satisfy this Court as to how the Committee has disregarded the relevant material or has considered the irrelevant details or has done any procedural lapse necessitating any interference. This Court cho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 also sought permission of DSP to carry out search and seizure of smuggled goods and on having received such permission over the telephone, he proceeded with other police staff including PSI and searched sea coast as well as deep sea continuously for 36 hours. He hired a boat and near village Beh of Jamkhambhaliya taluka, raiding party traced the gold in a bag marked as Basmati rice. Approximately 3,400 tolas of gold (340 kgs) thus was seized under the seizure panchnama in presence of Panchas. 4.1 This case was later on handled by Customs Department and complaint was also filed by the authorities and panchama was drawn on 11-11-1989. 5. It is the say of the petitioner that to provide incentive to the officers and to prevent anti-national and unlawful activities like smuggling etc. Government of India, Ministry of Finance has laid down the policy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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 on 25th June, 2003 at 11.00 a.m., through the responsible officers. Today, we are pointed out by the learned Standing Counsel for the Department, the minutes under which the decision to give rewards was taken, and admittedly, in this minutes, the name of the petitioner does not figure. The learned Standing Counsel has very fairly stated that from the minutes and the record, it appears that the name of the petitioner Mr. D.M. Patel was not considered for the reward and that, therefore, the Committee will consider the name of the petitioner as per the policy in connection with the said seizure. We would have expected the respondents to have been very careful in filing of the affidavit-in-reply, because, in para-4 of the affidavit-in-reply of the respondent No. 2, there is a statement which reads : At the outset, I say and submit that the case of the petitioner has been conside ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (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 petition is not maintainable. It is also urged that those who were entitled to receive the reward have been already granted the same. It is also further contended that the then DSP, Jamnagar Mr. P.K. Jhala had forwarded the reward proposal on 8-2-1994 under which the amount of Rs. 20 lakh had been proposed for the purpose of reward to the present petitioner. Superintendent of Police, Jamnagar Mr. S.C. Verma, in his affidavit-in-reply (Annexure-I), has contended that the reward is being granted as per the policy laid down by the Government of India, Ministry of Finance. However, mere recommendation cannot result into grant of reward. It is also contended that the Police Sub-Inspector Mr. A.S. Jhala and Kanubhai Lalubhai Jhala were prosecuted for having framed up false information. Departmental Inquiry also was initiated against Mr. Jhala. This is not since a fundamental right, no writ can be issued. 10. Deputy Commissioner of Cus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Another v. K.S. Jagannathan and Another reported in (1986) 2 SCC 679. 4. LIC of India and Another v. Consumer Education Research Centre and Others reported in (1995) 5 SCC 482. 5. Union of India v. R. Padmanabhan reported in (2003) 7 SCC 270 = 2003 (156) E.L.T. 625 (S.C.). 6. Union of India v. C. Krishna Reddy reported in (2003) 12 SCC 627 = 2004 (163) E.L.T. 4 (S.C.). 12. Per contra, learned Counsel Dr. Amee Yagnik appearing for the respondent No. 5 has strongly objected to the entertaining of present petition. According to her, no right has accrued to the petitioner till the award is decided in terms of guidelines and policy. She further urged that only when there is legal right under the statute or a legal duty imposed by the statute, for enforcing such performance, the writ of mandamus can be granted. According to her, absence of any statutory duty imposed upon the officers or the committee to fulfil any legal right of the petitioner, no writ of mandamus can be sought a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... claims to be allowed the shilling paid to the undersized recruit. The Court has to consider and apply this regulation and, whatever its effect may be, that effect will be given to it by the Court exactly as effect will be given to a statute providing that murderers shall be hanged, or that last wills must have two witnesses. (John Chipman Gray on The Nature and Sources of the Law ). 11. We should not be understood as laying down any general proposition on this question. But we think that the order in question conferred upon the first respondent the right to have his pay fixed in the manner specified in the order and that was part of the conditions of his service. We see no reason why the Court should not enforce that right. Of course, in this matter, the respondent had the right to have his pay fixed in the manner specified in the order and that was the part of the condition of his service. Therefore, the Apex Court held that there is no reason why Court should not enforce such right. 15. In the case of M/s. Hochtief Gammon v. State of Orissa and Others (supra) Apex Court was considering the scope of judicial review of the administrative order. The Court also examined the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rinciple may be set out as follows. 13. The Executive have to reach their decisions by taking into account relevant considerations. They should not refuse to consider relevant matter nor should they take into account wholly irrelevant or extraneous consideration. They should not misdirect themselves on the point of law. Only such a decision will be lawful. The courts have power to see that the Executive acts lawfully. It is no answer to the exercise of that power to say that the Executive acted bona fide nor that they have bestowed painstaking consideration. They cannot avoid scrutiny by courts by failing to give reasons. If they give reasons and they are not good reasons, the court can direct them to reconsider the matter in the light of relevant matters, though the propriety, adequacy or satisfactory character of those reasons may not be open to judicial scrutiny. Even if the Executive considers it inexpedient to exercise their powers they should state their reasons and there must be material to show that they have considered all the relevant facts. 16. In the case of Comptroller and Auditor-General of India, Gian Prakash, New Delhi and Another v. K.S. Jagannathan and Anothe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d have issued a writ of mandamus giving such directions. Almost a hundred and thirty years ago. Martin, B., in Mayor of Rochester v. Regina 1858 E B and El 024, 1032, 1034 said : But, were there no authority upon the subject, we should be prepared upon principle to affirm the judgment of the Court of Queen s Bench. That Court has power, by the prerogative writ of mandamus, to amend all errors which tend to the oppression of the subject or other misgovernment, and ought to be used when the law has provided no specific remedy, and justice and good government require that there ought to be one for the execution of the common law or the provisions of a statute : Comyn s Digest, Mandamus (A) Instead of being astute to discover reasons for not applying this great constitutional remedy for error and misgovernment, we think it our duty to be vigilant to apply it in every case to which, by any reasonable construction, it can be made applicable. The principle enunciated in the above case was approved and followed in The King v. Revising Barrister for the Borough of Hanley (1912) 3 KB 518, 528-9, 531. In Hochtief Gammon s case (AIR 1975 S.C. 2226) this Court pointed out (at page 675) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ters into contractual relations with the individual. Article 14 would be applicable to the exercise of the power. The action of the State or its instrumentality can be checked under Article 14. Their action must be subject to rule of law. If the governmental action even in the matter of entering or not entering into contracts, fails to satisfy the test of reasonableness, the same would be unreasonable. Rule of reason and rule against arbitrariness and discrimination, rules of fair play, natural justice are part of the rule of law applicable in situation or action by State/instrumentality in dealing with citizens. Even though the rights of the citizens, therefore, are in the nature of contractual rights, the manner, the method and motive of a decision of entering or not entering into a contract, are subject to judicial review on the touchstone of relevance and reasonableness, fair play and natural justice, equality and non-discrimination. It is well settled that there can be malice in law . It was also further held that whatever be the act of the public authority in such monopoly or semi-monopoly, it must be subject to rule of law and must be supported by reasons and it should meet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation, whereas a careful scanning through may go to show that an informant is placed on a different pedestal than a Government servant. The rewards are also to be and can be up to 20% or as the case may be and not that invariably it must be as a rule 20% of the estimated market value. Reward is purely an ex gratia payment, subject to the Guidelines on the discretion of the competent authority, though it cannot arbitrarily be denied or refused at whim or fancy and it should specifically conform to and must be shown to fall or claimed within the four corners of the Scheme and not by any deviation or modulation of the Scheme, as the Courts think it should be and if it cannot come strictly within the four corners of it, such claim may have to be dealt with only under the residuary powers enabling the grant of reward. That apart, being ex gratia, no right accrues to any sum as such till it is determined and awarded and, in such cases, normally it should not only be in terms of the Guidelines and Policy, in force, as on the date of consideration and actual grant but has to be necessarily with reference to any indications contained in this regard in the Scheme itself. The line of decisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. Here also the Court considered the guidelines issued by the Government of India on 30-3-1985 regarding the policy, procedures and orders in respect of grant of rewards to informers and Government servants in case of seizures made and the evasion of duty etc. detected under the provision of Customs, Central Excises and Salt Act, Gold (Control) Act and Foreign Exchange Regulation Act and held thus :- 12. The scheme or the policy of the Government of India dated 30-3-1985 shows that the authority competent to grant the reward, while taking a decision regarding the entitlement of the person concerned has to keep many factors in his mind like specificity and accuracy of the information, the risk and trouble undertaken, the extent and nature of the help rendered by the informer, whether information gives clues of the persons involved in smuggling or their associates, the difficulty in securing the information, the risk involved for the Government servants in working out the case and whether a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... overnment which either fails to discharge statutory obligation or wrongfully exercises the public duties conferred upon it under the statute or even when such discretion is exercised mala fide or on irrelevant consideration or ignoring the relevant consideration, such writ can be exercised for compelling the performance of a lawful duty in a lawful manner. Therefore, the moot question that has arisen for consideration of this Court in this petition is as to whether there exists any legal right or statutory obligation which is enforceable and whether in the instant case, such exercise of powers is necessary when the petitioner is claiming violation of Article 14 of the Constitution of India at the hands of the Committee constituted under the policy laid down by the Government of India for grant of reward. 21. Instead of separately examining various clauses of this policy guidelines issued for the purpose of awarding reward money, it would be apt to reproduce relevant portion of the Notification of the dated 30-3-1985 laying down the guidelines from the judgment of Union of India v. R. Padmanabhan (supra) :- 6. The Government have reviewed the existing policy, procedure ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eward is purely an ex gratia payment which, subject to guidelines, may be granted on the absolute discretion of the authority competent to grant rewards and cannot be claimed by anyone as a matter of right. In determining the rewards which may be granted, the authority competent to grant reward will keep specificity and accuracy of the information, the risk and trouble undertaken, the extent and nature of the help rendered by the informer, whether information gives clues to persons involved in smuggling, or their association, etc.; the risk involved for the Government servants in working out the case, the difficulty in accruing the information, the extent to which the vigilance on the staff led to the seizures, special initiative, efforts and ingenuity displayed, etc. and whether, besides the seizure of contraband goods, the owners/organizers/financiers/racketeers as well as the carriers have been apprehended or not. 4.2 To Government servants, rewards may ordinarily be paid up to 10% of the estimated market value of the goods involved (half of the maximum rewards indicated in respect of gold, opium and other narcotic drugs, etc. in the Annex.). Rewards in excess of this limit, b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be sanctioned both to the informers and Government servants on adjudication of the case resulting in confiscation of the goods. If, however, the party concerned delays adjudication proceedings by contesting the imposition of penalty only but the confiscation of the goods, the final reward may be sanctioned even prior to the conclusion of the adjudication proceedings. 6.3 In all other cases, 25% of the expected final reward may be paid after adjudication resulting in confiscation and/or confirmation of the demand, infringement and the remaining 50% may be paid after the conclusion of the appeal/revision proceedings by the appropriate authorities (such as Tribunal, FERA Board, etc.) resulting in the upholding of confiscation, demand, fine, penalties, etc. imposed under the respective Acts. 7. To whom reward may be paid 7.1 Ordinarily, informers and Government servants (up to the level of Group A Superintendents/Assistant Collectors of Customs and Central Excise/Assistant Directors will be eligible for reward depending on the contribution made by them as a team as well as individually with regard to the collection of intelligence, surveillance, effecting of seizure etc. Due cr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to be arbitrary while following this guideline. Broad parameters to be kept in mind by the concerned Committee considering the cases of such reward are to examine thoroughly :- (i) Specificity and accuracy of the information. (ii) Risk and trouble undertaken. (iii) The extent and nature of help rendered by the informer. (iv) Whether the information leads to the clue of the person involved in the crime. (v) Risk involved and undertaken by the Government servants. (vi) Difficulty in securing such informations. (vii) Extent to which promptness of the staff led to the seizure. (viii) Special initiatives, efforts and ingenuity of the officers and staff. (ix) Over and above the seizure of contraband articles, whether others supporting such activities, like organizers, financiers, racketeers, carriers, etc., have been apprehended on account of such seizure or not. 24. These are the broad parameters available with the Committee, which needs to follow while processing the cases of reward. It speaks of advance reward and final reward. It categorizes reward into two stages (1) advance reward, and (2) final reward. Depending on the contribution of the in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e similarly circumstanced and had performed identical role, as has been done by the present petitioner, had been rewarded. 27. Earlier grievance of the petitioner was set right by this Court in a petition preferred by him earlier being Special Civil Application No. 6554 of 1997 vide order dated 19-6-2003 and pursuant to such directions. Committee also considered the case of the petitioner at length and denied the award on the ground that case does not fall under the said guidelines set out in the Government policy dated 30-3-1985 as also amended on 13-4-1989. The Reward Committee minutes held on 7-11-2003 notes the letter of the Ministry dated 20-6-2001 that the reward should not be granted as a matter of routine. It also further notes that Mr. D.M. Patel, the present petitioner, in whose respect the proposal had been sent, recommending his name for the reward, was not found to have performed any specific task in relation to the seizure in question and his case does not fall under any extraordinary or exemplary efforts. It would be apt to reproduce the relevant findings :- 6. As stated in Para regarding the role played by Shri D.M. Patel, in the first proposal his role is that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... consideration and that the grant or rejection is in reference to the indications set out in the policy itself. 29. We see no reason to interfere by way of writ of mandamus as there does not appear to be either the case of wrongful exercise of the discretion or any failure in such exercise. It also does not cull out from the record that exercise of powers by the Committee was either mala fide or in disregard to the relevant consideration. The petitioner has failed to establish that any discrimination on account of such decision with the Committee has given rise to any legally enforceable right which necessitates invocation of powers by way of writ of mandamus. 30. However, the Government servant posted on the vital point to perform his duty is expected to do with utmost zeal and valor. He is also expected to be vigilant and take all necessary steps for preventing the crime or in apprehending the criminals. It is only in extraordinary circumstances and events that the ex gratia payment of reward is contemplated when the Government servant fall under any of those set out parameters. Mere recommendation also does not give the petitioner any right to receive the reward. The petition ..... X X X X Extracts X X X X X X X X Extracts X X X X
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