SUPREME COURT OF INDIA
Union of India and Another
Vs
K.G. Soni
Appeal (Civil) 3528 of 2006 (Arising Out of Slp (C) No. 19946 of 2004)
(Arijit Pasayat and L. S. Panta, JJ)
17.08.2006
ARIJIT PASAYAT, J.
Leave granted.
Challenge in this appeal is to the judgment rendered by a Division Bench of the
Madhya Pradesh High Court at Jabalpur holding that the punishment of compulsory
retirement imposed on the respondent was disproportionate to the alleged
misconduct. Therefore, the Appellate Authority was directed to consider the
matter afresh with regard to the quantum of punishment.
Background facts in a nutshell are as follows:
Respondent was a Store Attendant in the Bank Note Press, District Dewas (M.P).
A charge-sheet was issued against him on the foundation that though he had got
married with one Parvathibai in the year 1973, while filling up the attestation
form on 16.3.1974, he did not show her name as his wife. It was further alleged
that he got married for the second time in October, 1974 with one Ushabai. On
the basis of this non-disclosure, which, authorities considered to be a
misconduct, a disciplinary proceeding was initiated. It is to be noted that the
non-disclosure came to the notice of the authorities when Parvathibai made a
complaint about the second marriage. The enquiry was conducted under Central
Civil Services (Classification, Control and Appeal) Rules, 1965 (in short the
'Rules'). The Enquiry Officer recorded findings in favour of the respondent.
The Disciplinary Authority differed with the findings of the Inquiry Officer
and came to hold that second marriage had in fact been performed and
accordingly it issued show cause notice to the respondent and eventually came
to hold that the respondent was guilty of misconduct and imposed the punishment
of removal by order dated 2.4.1996.
The respondent being aggrieved preferred an appeal and the Appellate Authority
converted the punishment of removal into one of compulsory retirement. The said
order was passed on 15.4.1997.
Being aggrieved with the aforesaid order, the respondent approached the Central
Administrative Tribunal, Jabalpur Bench (in short the 'Tribunal') on
13.12.1998. The Tribunal came to hold that the application was barred by
limitation and accordingly declined to entertain the same. The Tribunal
recorded a finding that no application for condonation of delay has been filed.
Assailing order passed by the Tribunal a Writ application was filed. It was
submitted that the Tribunal had erroneously held that there was no application
for condonation of delay. This is not one of those cases where cognizance
cannot be taken by the Tribunal under Section 21(2) of the Administrative
Tribunal Act, 1985 (in short the 'Tribunal Act'). It was, therefore, submitted that
the Tribunal should have condoned the delay and dealt with the matter on
merits. It was further submitted that the quantum of punishment awarded did not
commensurate with the alleged misconduct.
The appellants took the stand that the punishment awarded was rather liberal
and no interference was called for.
The High Court was of the view that ordinarily it would have remanded the
matter to Tribunal for fresh consideration on merits but it was of the view
that this is a fit case where the matter should be remitted to the Appellate
Authority for reconsideration with regard to the quantum of punishment. The
only basis for coming to the conclusion that the complaint was made by the wife
about the alleged second marriage belatedly, and this is not such a misconduct
which warrants compulsory retirement before his superannuation.
In support of the appeal learned counsel for the appellants submitted that the
High Court has clearly lost sight of the scope for interference with the
quantum of punishment.
In response, learned counsel for the respondent supported the judgment.
It is to be noted that the Appellate Authority had noted as follows:-
"Although, after careful consideration of 22 years services rendered by
him in Bank Note Press, the undersigned as an Appellate Authority has cordially
considered the appeal using the powers conferred under Rule 27 of Central Civil
Service (Classification, Central and Appeal) Rule, 1965 that the penalty
imposed upon him the removal from services has been termed as cancelled and in
place of this, Sh. K.G. Soni, Ex.Sr. Attendant has been awarded a penalty of
Compulsory Retirement w.e.f. 02.04.1996. As a result of Compulsory Retirement,
Sh. K.G. Soni has entitled for payment of full pension, Gratuity etc. under
Rule Central Civil Services (Pension) Rule, 1972."
In B.C. Chaturvedi v. Union of India and Ors. it was observed:
"A review of the above legal position would establish that the
disciplinary authority, and on appeal the appellate authority, being
fact-finding authorities have exclusive power to consider the evidence with a
view to maintain discipline. They are invested with the discretion to impose
appropriate punishment keeping in view the magnitude or gravity of the
misconduct. The High Court/Tribunal, while exercising the power of judicial
review, cannot normally substitute its own conclusion on penalty and impose
some other penalty. If the punishment imposed by the disciplinary authority or
the appellate authority shocks the conscience of the High Court/Tribunal, it
would appropriately mould the relief, either directing the
disciplinary/appellate authority to reconsider the penalty imposed, or to
shorten the litigation, it may itself, in exceptional and rare cases, impose
appropriate punishment with cogent reasons in support thereof."
In Union of India and Anr. v. G. Ganayutham , this Court summed up the
position relating to proportionality in paragraphs 31 and 32, which read as
follows:
"The current position of proportionality in administrative law in
England and India can be summarized as follows:
(1) To judge the validity of any administrative order or statutory discretion,
normally the Wednesbury test is to be applied to find out if the decision was
illegal or suffered from procedural improprieties or was one which no sensible
decision-maker could, on the material before him and within the framework of
the law, have arrived at. The court would consider whether relevant matters had
not been taken into account or whether irrelevant matters had been taken into
account or whether the action was not bona fide. The court would also consider
whether the decision was absurd or perverse. The court would not however go
into the correctness of the choice made by the administrator amongst the
various alternatives open to him. Nor could the court substitute its decision
to that of the administrator. This is the Wednesbury 1947 Indlaw KBD 106 test.
(2) The court would not interfere with the administrator's decision unless it
was illegal or suffered from procedural impropriety or was irrational in the
sense that it was in outrageous defiance of logic or moral standards. The
possibility of other tests, including proportionality being brought into
English administrative law in future is not ruled out. These are the CCSU 1984 Indlaw HL 42 principles.
(3)(a) As per Bugdaycay 1995 Indlaw CA 74 and
Smith 1991 (1) AC 696, Brind 1987 Indlaw HL 12
as long as the Convention is not incorporated into English law, the English
courts merely exercise a secondary judgment to find out if the decision-maker
could have, on the material before him, arrived at the primary judgment in the
manner he has done.
(3)(b) If the Convention is incorporated in England making available the
principle of proportionality, then the English courts will render primary
judgment on the validity of the administrative action and find out if the
restriction is disproportionate or excessive or is not based upon a fair
balancing of the fundamental freedom and the need for the restriction
thereupon.
(4)(a) The position in our country, in administrative law, where no fundamental
freedoms as aforesaid are involved, is that the courts/tribunals will only play
a secondary role while the primary judgment as to reasonableness will remain
with the executive or administrative authority. The secondary judgment of the
court is to be based on Wednesbury and CCSU principles as stated by Lord Greene
and Lord Diplock respectively to find if the executive or administrative
authority has reasonably arrived at his decision as the primary authority.
(4)(b) Whether in the case of administrative or executive action affecting
fundamental freedoms, the courts in our country will apply the principle of
"proportionality" and assume a primary role, is left open, to be
decided in an appropriate case where such action is alleged to offend
fundamental freedoms. It will be then necessary to decide whether the courts
will have a primary role only if the freedoms under Articles 19, 21 etc. are
involved and not for Article 14."
The common thread running through in all these decisions is that the Court
should not interfere with the administrator's decision unless it was illogical
or suffers from procedural impropriety or was shocking to the conscience of the
Court, in the sense that it was in defiance of logic or moral standards. In
view of what has been stated in the Wednesbury's case (supra) the Court would
not go into the correctness of the choice made by the administrator open to him
and the Court should not substitute its decision to that of the administrator.
The scope of judicial review is limited to the deficiency in decision-making
process and not the decision.
To put differently, unless the punishment imposed by the Disciplinary Authority
or the Appellate Authority shocks the conscience of the Court/Tribunal, there
is no scope for interference. Further to shorten litigations it may, in
exceptional and rare cases, impose appropriate punishment by recording cogent
reasons in support thereof. In a normal course if the punishment imposed is shockingly
disproportionate, it would be appropriate to direct the Disciplinary Authority
or the Appellate Authority to reconsider the penalty imposed.
The above position was recently reiterated in Damoh Panna Sagar Rural Regional
Bank and Others v. Munna Lal Jain 1.
The High Court has not kept the correct position in view. It has not even
indicated as to why the punishment was considered disproportionate and why it
considered the misconduct to be not serious.
The impugned order of the High Court is set aside and that of the Appellate
Authority, the operative part of which has been quoted above, is restored.
The appeal is allowed without any order as to costs.