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CASE NO.: Appeal (civil)  4454 of 2006

PETITIONER: Union of India & Ors

RESPONDENT: Dwarka Prasad Tiwari

DATE OF JUDGMENT: 12/10/2006

BENCH: ARIJIT PASAYAT & LOKESHWAR SINGH PANTA

JUDGMENT: J U D G M E N T

(Arising out of SLP ) No. 23847 of 2005) With CA No. 4455 of 2006 (Arising out SLP(C) No. 15725 of 2006)

ARIJIT PASAYAT, J.

       Leave granted in both the Special Leave Petitions.  

       These two appeals are directed against a common  judgment of the Madhya Pradesh High Court at Jabalpur  allowing the writ petition filed by the respondent\026Dwarka  Prasad who is the appellant in the appeal relating to SLP(C)  No. 15725 of 2006.  The writ petition was partially allowed by  a learned Single Judge of the High Court holding that the  punishment of dismissal from service imposed on respondent- Dwarka Prasad was too harsh and was required to be  substituted by an appropriate lesser punishment.  Accordingly  the order of dismissal was set aside and reinstatement with  continuity of service without any back wages was directed and  it was further directed that from the date of judgment the  respondent-Dwarka Prasad shall be entitled for full salary.   

       The background facts in a nutshell are as follows:

       Respondent-Dwarka Prasad was posted as a constable  with Central Reserve Police Force (in short the ’CRPF’) in F/74  Battalion, CRPF at Platoon Post, Jayanti Pura which was  accommodated in a building on Batala Amritsar Road\026a  sensitive and terrorist infested area.  He was on sentry duty  from 1000 hrs. to 1200 hrs. on 31.8.1989 on the roof of the  building.  He had been issued a 7.62 mm SLR and 40 rounds  of ammunition.  At about 1115 hrs, he fired one bullet without  orders and without any sufficient reason.  A Court of Inquiry  was conducted and it was established that he alone was  responsible for the firing in which he had sustained bullet  injury in his abdomen.  Accordingly a departmental inquiry in  terms of Rule 27 of the Central Reserve Police Force Rules,  1955 (in short the ’Rules’) was ordered alleging misconduct  and negligence/remissness in discharge of his duty in his  capacity as a member of the Force. The inquiry was conducted  and the respondent-Dwarka Prasad was given opportunity to  defend himself.  The inquiry officer found the respondent  guilty of charges framed against him.  After consideration of

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the representation made by respondent-Dwarka Prasad, the  Commandant dismissed him from the services with effect from  20.01.1990 under Rule 27(a)(i) of the Rules.          Against the order of dismissal respondent preferred an  appeal to the Deputy Inspector General of Police (in short the  ’DIGP’), CRPF.  During pendency of the appeal, a writ petition  was filed under Articles 226 and 227 of the Constitution of  India, 1950 (in short the ’Constitution’) which was numbered  as M.P. No. 2978 of 1990.  The High Court by its order dated  26.11.1990 dismissed the petition but direction was given for  disposal of the appeal pending before the DIGP, CRPF who  dismissed the appeal.  A revision petition before Additional  Director General (in short the ’ADG’), CRPF did not bring any  relief.  A review petition was filed before the Director General (in  short the ’DG’), CRPF who modified the punishment of  dismissal to one of removal considering the respondent- Dwarka Prasad’s young age and short length of service.   Against the said order a writ petition bearing number M.P. No.  2150 of 1992 was filed under Articles 226 and 227 of the  Constitution.  The High Court by the impugned judgment held  that the defence of the respondent-Dwarka Prasad was not  properly considered by any departmental authority and the  punishment awarded was shockingly disproportionate.   Accordingly as noted above the punishment was set aside and  direction for reinstatement with certain other benefits was  given. In support of the appeal, learned counsel for the Union of  India and its functionaries submitted that the High Court has  completely overlooked the fact that the respondent-Dwarka  Prasad was a member of a disciplined Force. He had  committed a serious misconduct and after taking into account  the relevant factors, the departmental authority initially  passed the order of dismissal, which by taking a  compassionate view the DG on review modified to that of  removal from service.  The High Court did not indicate even  any reason as to why it considered the punishment to be  disproportionate or considered to be shockingly  disproportionate. No reason was given to justify this  conclusion.  Mere reference to the decision of this Court in  B.C. Chaturvedi v. Union of India and Others (1995(6) SCC  749) without indicating as to how the view expressed in  paragraph 12 thereof had any application to the facts of the  case. It was, therefore, submitted that the order of the High  Court should be set aside and the order passed by the DG  should be restored.  In the appeal filed by Dwarka Prasad the  primary stand is that there was no misconduct involved and  therefore, the High Court should have found him innocent and  should have held that no punishment was warranted. The charges against respondent-Dwarka Prasad were as  follows:

"ARTICLE-I         That the said No. 830762299 Ct. Dwarka  Prasad Tiwari while functioning as sentry in F coy 76  Bn. CRPF at platoon post Jayantipura, on  31.01.1989 between 1000 hrs. to 1200 hrs he  committed an act of misconduct in his capacity as  member of the Force U/s. 11(1) of CRPF Act 1949 in  that he fired one round from his service weapon  (SLR) at his own without any permission from the  competent authority and without any sufficient  reason.

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ARTICLE -II                          That during the aforesaid period and while  functioning in the aforesaid office the said No.  8230762299 Ct. Dwarka Prasad Tiwari was guilty of  neglect of duty and remissness in his capacity as  member of the Force U/s. 1191) of CRPF Act, 1949  in that he fired one round from his weapon (SLR)  and sustaining bullet injury in his abdomen."

Learned counsel for the Union of India and its  functionary has referred to the statement made by  respondent-Dwarka Prasad admitting his guilt and giving  clean chit to one Hawaldar Mahavir Singh.  Contrary to that  statement, presently his stand is that it was the said  Hawaldar-Mahavir Singh who was responsible for the shooting  incident.

The scope of interference with quantum of punishment  has been the subject-matter of various decisions of this Court.   Such interference cannot be a routine matter.

Lord Greene said in 1948 in the famous Wednesbury  case (1948 (1) KB 223) that when a statute gave discretion to  an administrator to take a decision, the scope of judicial  review would remain limited.  He said that interference was  not permissible unless one or the other of the following  conditions was satisfied, namely the order was contrary to law,  or relevant factors were not considered, or irrelevant factors  were considered; or the decision was one which no reasonable  person could have taken.  These principles were consistently  followed in the UK and in India to judge the validity of  administrative action.  It is equally well known that in 1983,  Lord Diplock in Council for Civil Services Union v. Minister of  Civil Service [(1983) 1 AC 768] (called the CCSU case)  summarized the principles of judicial review of administrative  action as based upon one or other of the following viz.,  illegality, procedural irregularity and irrationality.  He,  however, opined that "proportionality" was a "future  possibility".

In Om Kumar and Ors. v. Union of India (2001 (2) SCC  386), this Court observed, inter-alia, as follows:   

       "The principle originated in Prussia in the  nineteenth century and has since been  adopted in Germany, France and other  European countries.  The European Court of  Justice at Luxembourg and the European  Court of Human Rights at Strasbourg have  applied the principle while judging the validity  of administrative action.  But even long before  that, the Indian Supreme Court has applied  the principle of "proportionality" to legislative  action since 1950, as stated in detail below.                    

       By "proportionality", we mean the  question whether, while regulating exercise of  fundamental rights, the appropriate or least- restrictive choice of measures has been made  by the legislature or the administrator so as to  achieve the object of the legislation or the  purpose of the administrative order, as the

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case may be.  Under the principle, the court  will see that the legislature and the  administrative authority "maintain a proper  balance between the adverse effects which the  legislation or the administrative order may  have on the rights, liberties or interests of  persons keeping in mind the purpose which  they were intended to serve".  The legislature  and the administrative authority are, however,  given an area of discretion or a range of  choices but as to whether the choice made  infringes the rights excessively or not is for the  court. That is what is meant by  proportionality.

xxx             xxx             xxx             xxx             xxx

                The development of the principle of "strict  scrutiny" or "proportionality" in administrative  law in England is, however, recent.  Administrative action was traditionally being  tested on Wednesbury grounds.  But in the  last few years, administrative action affecting  the freedom of expression or liberty has been  declared invalid in several cases applying the  principle of "strict scrutiny".  In the case of  these freedoms, Wednesbury principles are no  longer applied.  The courts in England could  not expressly apply proportionality in the  absence of the convention but tried to  safeguard the rights zealously by treating the  said rights as basic to the common law and the  courts then applied the strict scrutiny test.  In  the Spycatcher case Attorney General v.  Guardian Newspapers Ltd. (No.2) (1990) 1 AC  109 (at pp. 283-284), Lord Goff stated that  there was no inconsistency between the  convention and the common law.  In  Derbyshire County Council v. Times  Newspapers Ltd. (1993) AC 534, Lord Keith  treated freedom of expression as part of  common law.  Recently, in R. v. Secy. Of State  for Home Deptt., ex p. Simms (1999) 3 All ER  400 (HL), the right of a prisoner to grant an  interview to a journalist was upheld treating  the right as part of the common law.  Lord  Hobhouse held that the policy of the  administrator was disproportionate.  The need  for a more intense and anxious judicial  scrutiny in administrative decisions which  engage fundamental human rights was re- emphasised in in R. v. Lord Saville ex p (1999)  4 All ER 860 (CA), at pp.870,872) . In all these  cases, the English Courts applied the "strict  scrutiny" test rather than describe the test as  one of "proportionality".  But, in any event, in  respect of these rights "Wednesbury" rule has  ceased to apply.

       However, the principle of "strict scrutiny"  or "proportionality" and primary review came  to be explained in R. v. Secy. of State for the  Home Deptt. ex p Brind (1991) 1 AC 696.  That

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case related to directions given by the Home  Secretary under the Broadcasting Act, 1981  requiring BBC and IBA to refrain from  broadcasting certain matters through persons  who represented organizations which were  proscribed under legislation concerning the  prevention of terrorism.  The extent of  prohibition was linked with the direct  statement made by the members of the  organizations.  It did not however, for example,  preclude the broadcasting by such persons  through the medium of a film, provided there  was a "voice-over" account, paraphrasing what  they said.  The applicant’s claim was based  directly on the European Convention of  Human Rights. Lord Bridge noticed that the  Convention rights were not still expressly  engrafted into English law but stated that  freedom of expression was basic to the  Common law and that, even in the absence of  the Convention, English Courts could go into  the question (see p. 748-49).

".....whether the Secretary of State, in the  exercise of his discretion, could  reasonably impose the restriction he has  imposed on the broadcasting  organisations"

and that the courts were

"not perfectly entitled to start from the  premise that any restriction of the right  to freedom of expression requires to be  justified and nothing less than an  important public interest will be sufficient  to justify it".

Lord Templeman also said in the above case  that the courts could go into the question  whether a reasonable minister could  reasonably have concluded that the  interference with this freedom was justifiable.   He said that "in terms of the Convention" any  such interference must be both necessary and  proportionate (ibid pp. 750-51).

       In the famous passage, the seeds of the  principle of primary and secondary review by  courts were planted in the administrative law  by Lord Bridge in the Brind case (1991) 1 AC  696.  Where Convention rights were in  question the courts could exercise a right of  primary review.  However, the courts would  exercise a right of secondary review based only  on Wednesbury principles in cases not  affecting the rights under the Convention.   Adverting to cases where fundamental  freedoms were not invoked and where  administrative action was questioned, it was  said that the courts were then confined only to  a secondary review while the primary decision  would be with the administrator. Lord Bridge  explained the primary and secondary review as  follows:

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"The primary judgment as to whether the  particular competing public interest  justifying the particular restriction  imposed falls to be made by the Secretary  of State to whom Parliament has  entrusted the discretion.  But, we are  entitled to exercise a secondary judgment  by asking whether a reasonable Secretary  of State, on the material before him,  could reasonably make the primary  judgment."

       But where an administrative action is  challenged as "arbitrary" under Article 14 on  the basis of Royappa (1974) 4 SCC 3 (as in  cases where punishments in disciplinary  cases are challenged), the question will be  whether the administrative order is "rational"  or "reasonable" and the test then is the  Wednesbury test.  The courts would then be  confined only to a secondary role and will only  have to see whether the administrator has  done well in his primary role, whether he has  acted illegally or has omitted relevant factors  from consideration or has taken irrelevant  factors into consideration or whether his view  is one which no reasonable person could have  taken.  If his action does not satisfy these  rules, it is to be treated as arbitrary. In G.B.  Mahajan v. Jalgaon Municipal Council (1991)  3 SCC 91 at p. 111 Venkatachaliah, J. (as he  then was) pointed out that "reasonableness"  of the administrator under Article 14 in the  context of administrative law has to be judged  from the stand point of Wednesbury rules. In  Tata Cellular v. Union of India (1994) 6 SCC  651 at pp. 679-80), Indian Express  Newspapers Bombay (P) Ltd. v. Union of India  (1985) 1 SCC 641 at p.691), Supreme Court  Employees’ Welfare Assn. V. Union of India  (1989) 4 SCC 187 at p. 241) and U.P.  Financial Corpn. V. Gem Cap(India) (P) Ltd.  (1993) 2 SCC 299 at p. 307) while judging  whether the administrative action is  "arbitrary" under Article 14 (i.e. otherwise  then being discriminatory), this Court has  confined itself to a Wednesbury review  always.

       The principles explained in the last  preceding paragraph in respect of Article 14  are now to be applied here where the question  of "arbitrariness" of the order of punishment is  questioned under Article 14.

xxx             xxx             xxx             xxx             xxx

       Thus, from the above principles and  decided cases, it must be held that where an  administrative decision relating to punishment  in disciplinary cases is questioned as  "arbitrary" under Article 14, the court is  confined to Wednesbury principles as a

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secondary reviewing authority.  The court will  not apply proportionality as a primary  reviewing court because no issue of  fundamental freedoms nor of discrimination  under Article 14 applies in such a context.   The court while reviewing punishment and if it  is satisfied that Wednesbury principles are  violated, it has normally to remit the matter to  the administrator for a fresh decision as to the  quantum of punishment.  Only in rare cases  where there has been long delay in the time  taken by the disciplinary proceedings and in  the time taken in the courts, and such extreme  or rare cases can the court substitute its own  view as to the quantum of punishment."                                      

In B.C. Chaturvedi  case  (supra)  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 (1997 [7]  SCC 463), 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

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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 (1948 1 KB 223)  test.

(2) The court would not interfere  with the administrator’s decision unless  it was illegal or suffered from procedural  impropriety or was irrational \026 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 (1985  AC 374) principles.   (3)(a) As per Bugdaycay (1987 AC  514), Brind (1991 (1) AC 696) and Smith  (1996 (1) All ER 257) 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

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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.

       Finally, we come to the present case.  It is  not contended before us that any fundamental  freedom is affected.  We need not therefore go  into the question of "proportionality".  There is  no contention that the punishment imposed is  illegal or vitiated by procedural impropriety.   As to "irrationality", there is no finding by the  Tribunal that the decision is one which no  sensible person who weighed the pros and  cons could have arrived at nor is there a  finding, based on material, that the  punishment is in "outrageous" defiance of  logic. Neither Wednesbury nor CCSU tests are  satisfied.  We have still to explain "Ranjit  Thakur (1987 [4] SCC 611)".

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 Union of   India and Anr. v. K.G. Soni (2006 (6) Supreme 389) following  Damoh Panna Sagar Rural Regional Bank and Others v.  Munna Lal Jain (2005 (10) SCC 84).     The High Court, as rightly submitted by learned counsel  for Union of India, has not indicated any reason for coming to  the conclusion that the punishment was shockingly  disproportionate.  The High Court only stated that the defence  of respondent-Dwarka Prasad was not duly considered. If that  was really so, the High Court would have interfered on that

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ground but that has not been done.  The High Court’s order  therefore reflects non application of mind.  The impugned  order of the High Court is set aside.  The matter is remitted to  the High Court to re-hear the writ petition restricted to the  question of quantum of punishment. The appeal filed by  respondent-Dwarka Prasad is without merit in view of the fact  that his statement at different stages during the departmental  proceedings indicates that he has accepted that he himself  was responsible for the incident.  

In ultimate result the appeal filed by Union of India is  allowed to the extent indicated, while the appeal filed by  Dwarka Prasad is dismissed.  No costs.