Reportable IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS.5762-5763 OF 2009 (Arising out of SLP(C) Nos. 776-777/2009)

Chairman cum Managing Director, Coal India Limited & Anr.      …Appellants

Versus   Mukul Kumar Choudhuri & Ors. …Respondents

JUDGEMENT

R.M. Lodha, J.

Leave granted.

2. These  two appeals  by  special  leave  are  directed  

against  the  judgment  passed by  the  Division  Bench of  High  

Court  of  Judicature  at  Calcutta  on  September  22,  2008  

whereby the Division Bench affirmed the order  of  the Single  

Judge passed on July 26, 2007 insofar as reinstatement of the  

Respondent No. 1 was concerned but modified the order of the  

Single Judge by awarding him back wages.

3. Mukul Kumar Choudhuri, Respondent No. 1,  joined  

his  service  with  the  Eastern  Coalfields  in  1992  as  System  

Officer. In 1996, he was transferred to North-Eastern Coalfields,  

Assam.  On  September  16,  1998,  the  Respondent  No.  1  

proceeded  on  sanctioned  leave  upto  September  29,  1998.  

However, after expiry of his sanctioned leave, he did not report  

to duty and despite reminders remained absent for six months  

without any authorization.

4. On March 18, 1999, the Director-in-Charge, North-

Eastern  Coalfields  initiated  disciplinary  enquiry  against  the  

Respondent No. 1 under Rule 29 of the Coal India Executives  

Conduct Discipline and Appeal Rules, 1978 (for short, ‘Conduct  

Rules,  1978’)  for  misconduct  on  his  part  by  –(i)  absenting  

himself without leave; (ii)  Overstaying  the sanctioned leave for  

more than four consecutive days; and (iii) Desertion of job and  

failure to maintain integrity and devotion to duty.  

5. On May 31, 1999, the Respondent No. 1 sent letter  

of resignation. His resignation was, however, not accepted by  

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the  Management  and,  accordingly,  he  joined  his  duty  on  

September 10, 1999.  

6. In the enquiry proceedings, the Respondent No. 1  

appeared before the Inquiry Officer and admitted the charges  

leveled against him. The Inquiry Officer concluded the enquiry  

and  vide  his  report  dated  October  5,  1999  held  that  the  

delinquent  was  guilty  of  the  charges  as  mentioned  in  the  

charge-sheet.  

7. Upon receipt of the enquiry report, a second show  

cause  notice  dated  December  10,  1999  was  issued  to  the  

Respondent No. 1 indicating therein that in view of the findings  

recorded by the Inquiry Officer, termination of his services was  

proposed. The delinquent was asked to show cause as to why  

the punishment of termination of service be not awarded to him.  

A copy of the enquiry report was sent along with the second  

show cause notice.

8. The  Respondent  No.  1  responded  to  the  second  

show cause notice. He submitted that he sincerely wanted to  

leave the Company for  several  personal  problems but  these  

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were aggravated by unsympathetic attitude of the Management  

in not accepting his resignation. He submitted that he deserved  

no  punishment  and  that  his  explanation  be  considered  

favourably.  

9. By an Office Order dated November 29, 2000, the  

Respondent No. 1 was removed from service with immediate  

effect.  The  Respondent  No.  1  pursued  the  departmental  

remedy but without any success. He also approached Calcutta  

High  Court  on  more  than  one  occasion  raising  grievance  of  

non-consideration of  the departmental  appeal  and the review  

application  before  Reviewing  Authority  and  the  departmental  

authorities not passing the reasoned order. It is not necessary  

to refer to these proceedings in details. Suffice it to say that as  

directed by the High Court, he challenged the order of removal  

before the Board of Directors which came to be dismissed on  

August 17, 2006. Then, he again approached the High Court by  

filing writ petition being Writ Petition No. 1334 of 2006.

10. The Single Judge of the High Court by his judgment  

delivered on July 26, 2007 allowed the writ petition, set aside  

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the  impugned  orders  and  directed  the  reinstatement  of  

Respondent No. 1. The Single Judge, however, did not award  

back wages to the Respondent No. 1 but declared that he be  

treated  to  be  in  continuous  service  without  any  break  and  

without affecting his seniority.  

11. The order  of  the Single Judge was challenged in  

separate  appeals  by both  parties  before  the Division Bench.  

The appeal preferred by the present appellants was dismissed  

while  the  appeal  preferred  by  the  Respondent  No.  1  was  

allowed and it was held that he was entitled to back wages for  

the period on and from the year 2000 until reinstatement.

12. We  heard  Mr.  Gopal  Subramanium,  learned  

Solicitor General and the Respondent No. 1 in-person.  

13. Inter  alia,  the  misconduct  alleged  against  the  

Respondent  No.  1  was  unauthorized  absence  from duty  for  

more  than  six  months.  The delinquent  admitted  the  charges  

before the Inquiry Officer. He stated :  

“I  admit  the  charges.  However,  I  desire  to  state  reasons for my absence and is given below:

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i) I did not have any intention nor desire of disobeying  order  of  higher  authority  or  violate  any  of  the  Company’s rule and regulations and.

ii) The  reason  is  purely  personal  which  cannot  be  produced by any evidence to prove and is beyond my  control.”    

14. The admission on the part of delinquent before the  

Inquiry  Officer  leaves  no  manner  of  doubt  that  the  charges  

against the delinquent stood fully proved. He was given second  

show  cause  notice  and  a  copy  of  the  enquiry  report  was  

annexed thereto. He sent his written response to the second  

show cause on July 15, 2000.  

15. Office Order dated November 29, 2000 reads thus :

“Coal India Ltd. 10, Netaji Subash Road, Calcutta – 700001

Ref. No. CIL/C-5A(iii)/740 Dated : 29.11.2000

ORDER

WHEREAS a Memorandum No. NEC/ EE/DIC/99/10/  621  dated  18.03.99  was  issued  to  Sri  M.K.  Choudhury,  Manager  (Systems),  North  Eastern  Coalfields  for  unauthorized absence from duty w.e.f. 30.09.1998, and

WHEREAS the written explanation submitted by Shri  Choudhury  vide  dated  31.05.99  having  been  found  not  satisfactory,  a  departmental  enquiry  was  ordered  and  conducted  wherein  Shri  Choudhury  fully  participated.  The  Inquiring Authority submitted his report wherein the charge  of  unauthorized  absence  w.e.f.  30.09.98  against  Sri  M.K.  Choudhury, was proved beyond doubt. A showcause Notice  

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along with the copy of the enquiry report was also sent to  him for making representation thereon, and;

WHEREAS  the,  Chairman-cum-Mg.  Director,  Coal  India Limited, after careful consideration of the memorandum  dated  18.03.1999  report  of  the  Inquiring  Authority  dated  05.10.99  enquiry  proceedings,  representation  dated  15.07.2000 of Shri M.K. Choudhury and other documents on  record  has  come  to  the  conclusion  that  the  Charge  of  unauthorized  absence  w.e.f.  30.09.98  against  Shri  M.K.  Chowdhury,  Manager  (Systems),  NEC  has  been  proved  beyond doubt.

NOW THEREFORE, the Chairman-cum-Mg. Director,  Coal India Limited as Disciplinary Authority, considering the  gravity of the offence has imposed the penalty of “removal  from service” on Sri  M.K. Choudhury,  Manager (Systems),  North Eastern Coalfields with immediate effect. Accordingly,  Sri  Choudhury  is  hereby  removed  from  service  with  immediate effect.

This issues with the approval of Competent Authority.

  (N.K. Sharma)           Director (Technical)”

16. It  is  apparent  therefrom  that  it  is  the  

disciplinary authority who took the decision of imposition  

of  penalty  of  removal.  The issuance of  the order  is  by  

Director Technical only. There is no procedural illegality  

or irregularity in the disciplinary proceedings. The charge  

of  unauthorized  absence  for  more  than  six  months  is  

admitted by the delinquent and clearly established.  

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17. In the case of  State of Andhra Pradesh and  

Others v. Chitra Venkata Rao1, this Court considered the  

scope  of  judicial  review  in  dealing  with  departmental  

enquiries and held:

“21. The scope of Article 226 in dealing with departmental  inquiries has come up before this Court.  Two propositions  were laid  down by this  Court  in  State of  A.P.  v.  S.  Sree  Rama Rao (AIR 1963 SC 1723). First, there is no warrant for  the view that in considering whether a public officer is guilty  of  misconduct  charged  against  him,  the  rule  followed  in  criminal  trials  that an  offence  is  not  established  unless  proved  by  evidence  beyond  reasonable  doubt  to  the  satisfaction of the Court must be applied. If that rule be not  applied by a domestic tribunal of inquiry the High Court in a  petition  under  Article  226  of  the  Constitution  is  not  competent to declare the order of the authorities holding a  departmental enquiry invalid. The High Court is not a court of  appeal under Article 226 over the decision of the authorities  holding a departmental enquiry against a public servant. The  Court is concerned to determine whether the enquiry is held  by an authority competent in that behalf and according to the  procedure prescribed in that behalf, and whether the rules of  natural justice are not violated. Second, where there is some  evidence which the authority entrusted with the duty to hold  the  enquiry  has  accepted  and  which  evidence  may  reasonably support the conclusion that the delinquent officer  is guilty of the charge, it is not the function of the High Court  to  review  the  evidence  and  to  arrive  at  an  independent  finding on the evidence. The High Court may interfere where  the  departmental  authorities  have  held  the  proceedings  against  the  delinquent  in  a  manner  inconsistent  with  the  rules of natural  justice or in violation of the statutory rules  prescribing  the  mode  of  enquiry  or  where  the  authorities  have disabled themselves from reaching a fair decision by  some  considerations  extraneous  to  the  evidence  and  the  merits of the case or by allowing themselves to be influenced  by irrelevant considerations or where the conclusion on the  very face of it is so wholly arbitrary and capricious that no  reasonable  person  could  ever  have  arrived  at  that  

1 (1975) 2SCC 557

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conclusion. The departmental authorities are, if the enquiry  is  otherwise properly  held,  the sole judges of  facts and if  there is some legal evidence on which their findings can be  based, the adequacy or reliability of that evidence is not a  matter which can be permitted to be canvassed before the  High Court in a proceeding for a writ under Article 226.

22. …….

23.  The jurisdiction to issue a writ of certiorari under Article  226 is a supervisory jurisdiction. The Court exercises it not  as an appellate  court.  The findings of  fact  reached by an  inferior  court  or  tribunal  as a result  of  the appreciation  of  evidence  are  not  reopened  or  questioned  in  writ  proceedings. An error of law which is apparent on the face of  the record can be corrected by a writ, but not an error of fact,  however grave it may appear to be. In regard to a finding of  fact recorded by a tribunal, a writ can be issued if it is shown  that  in  recording  the  said  finding,  the  tribunal  had  erroneously  refused  to  admit  admissible  and  material  evidence,  or  had  erroneously  admitted  inadmissible  evidence which has influenced the impugned finding. Again  if a finding of fact is based on no evidence, that would be  regarded as an error of law which can be corrected by a writ  of certiorari. A finding of fact recorded by the Tribunal cannot  be challenged on the ground that the relevant and material  evidence  adduced  before  the  Tribunal  is  insufficient  or  inadequate to sustain a finding. The adequacy or sufficiency  of evidence led on a point and the inference of fact to be  drawn  from  the  said  finding  are  within  the  exclusive  jurisdiction  of  the  Tribunal.  See  Syed  Yakoob v.  K.S.  Radhakrishnan (AIR 1964 SC 477).

24. The High Court in the present case assessed the entire  evidence and came to its own conclusion. The High Court  was not  justified to  do so.  Apart  from the aspect  that  the  High Court does not correct a finding of fact on the ground  that the evidence is not sufficient or adequate, the evidence  in the present case which was considered by the Tribunal  cannot  be  scanned  by  the  High  Court  to  justify  the  conclusion that there is no evidence which would justify the  finding of the Tribunal that the respondent did not make the  journey. The Tribunal gave reasons for its conclusions. It is  not  possible for  the High Court  to say that  no reasonable  person could have arrived at these conclusions.  The High  Court reviewed the evidence, reassessed the evidence and  

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then rejected the evidence as no evidence. That is precisely  what the High Court in exercising jurisdiction to issue a writ  of certiorari should not do.”

18. It has been time and again said that it is not open to  

the High Court to examine the findings recorded by the Inquiry  

Officer as a Court of Appeal and reach its own conclusions and  

that power of judicial review is not directed against the decision  

but is confined to the decision making process. In a case such  

as the present one where the delinquent admitted the charges,  

no scope is left to differ with the conclusions arrived at by the  

Inquiry Officer about the proof of charges. In the absence of  

any  procedural  illegality  or  irregularity  in  conduct  of  the  

departmental enquiry, it has to be held that the charges against  

the delinquent stood proved and warranted no interference.

19. The Single Judge of the High Court in paragraphs  

43 and 44 of the judgment observed thus:  

“43. This Court is of the view that the so-called order dated  29.11.2000 is a mere communication WITHOUT ACTUALLY  serving  the  original  Order  of  the  Disciplinary  Authority.  Merely transmitting the decision of the Disciplinary Authority  was  not  sufficient  since  this  was  a  matter  involving  the  punishment  of  removal  from  service  entailing  civil  consequences.  

44. We are dealing with a case of removal from service  for an alleged absence of 6(six) months. This Court is of the  

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view that the Respondents were bound to adhere to a fair  and transparent procedure by firstly serving the actual order  of the Disciplinary Authority upon the petitioner and then, by  giving reasons as to why they chose not to agree with what  the Petitioner  wanted to  say qua his absence when,  after  admitting the absence, he gave reasons as to why he had  remained  absent.  They  were  also  obliged  to  strictly  obey  with the Orders of this, court. In that view of the matter, the  argument  of  Mr.  Aloke  Banerjee  to  the  effect  that  the  Respondents  were  not  required  to  give  reasons,  are  not  acceptable to this Court. Consequently the Judgments cited  by him namely AIR 1987 SC 2043 and the other Judgments  such as 2001 (2) CHN 632 and 1991(2) SCC 716 are held to  be not applicable because in this case, it was the desire and  Order of the Hon’ble Division Bench that the Respondents  should deal with the matter in accordance with law. In the  opinion of this Court,  “in accordance with law” means and  includes observing the principles of natural justice and giving  reasons  because  the  Respondents  were  supposed  to  be  dealing with his pleas relating to his explanations which were  so very very crucial  to his case.  Consequently and in the  facts and circumstances of this case, none of the Judgments  cited by Mr. Banerjee can be said to have any Application.”  

20. In  what  we  have  already  discussed,  we  find  it  

difficult to accept the view of the Single Judge.

21. The Division Bench like the Single Bench fell  into  

grave  error  in  not  adequately  adverting  to  the  fact  that  the  

charges  were  admitted  by  the  delinquent  unequivocally  and  

unambiguously and, therefore, misconduct of the Respondent  

No.  1  was  clearly  established.  We are,  therefore,  unable  to  

persuade ourselves to concur with the view of the High Court.

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22. The question, however, remains : is the punishment  

of  removal  grossly  disproportionate  to  the  proved  charge  of  

unauthorized absence for more than six months?

23. In order to answer the aforesaid question, it would  

be  appropriate  to  refer  to  a  few  of  decisions  of  this  Court  

wherein  doctrine  of  proportionality  has  been  considered.  In  

Union  of  India  and  Another  v. G.  Ganayutham2,  this  Court  

elaborately considered the proportionality in the administrative  

law  in  England  as  well  as  in  our  own  country.  The  court  

considered some important English decisions, viz.,  Associated  

Provincial  Picture  Houses  Ltd.  v.  Wednesbury  Corporation3,  

Council of Civil Service Unions v. Minister for Civil Service4, R.  

v. Goldstein5 and R. v. Secretary for Home Dept. ex. p. Brind6  

and few decisions of this Court, viz.,  Ranjit Thakur v. Union of   

India7,  State  of  Maharashtra  v.  M.H.  Mazumdar8,  Ex-Naik  

Sardar  Singh  v.  Union  of  India9,  Tata  Cellular  v. Union  of  

2 (1997) 7SCC463 3 (1947) 2All ER 680 4 (1984) 3 All ER 935 5 (1983) 1 All ER 434 6 (1991) 1 All ER 720 7 (1987) 4 SCC 611 8 (1988) 2 SCC 52 9 (1991) 3 SCC 213

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India10,  State  of  A.P.  v. McDowell  &  Co.11 and  summed  up  

position of proportionality in administrative law in England and  

India thus :

“(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 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 principles.

(3)(a) As per Bugdaycay (1987 AC 514), Brind and Smith 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  

10 (1994) 6 SCC 651 11 (1996) 3 SCC 709

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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.”

24. Dealing  with  the  question  of  proportionality  with  

regard to punishment in disciplinary matters, the court said :  

“32. 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”.

33. In Ranjit Thakur this Court interfered with the punishment  only after coming to the conclusion that the punishment was  in  outrageous defiance of  logic  and was shocking.  It  was  also  described  as  perverse and irrational.  In  other  words,  

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this Court felt that, on facts, Wednesbury and CCSU tests  were satisfied. In another case, in B.C. Chaturvedi v. Union  of India [(1995) 6 SCC 749]  a three-Judge Bench said the  same thing as follows: (SCC p. 762, para 18)

“18.  ...  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 authority/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.”

Similar view was taken in  Indian Oil  Corpn. Ltd. v.  Ashok  Kumar  Arora [(1997)  3  SCC  72] that  the  Court  will  not  intervene unless the punishment is wholly disproportionate.

34. In such a situation, unless the court/tribunal opines in its  secondary role, that the administrator was, on the material  before  him,  irrational  according  to  Wednesbury or  CCSU  norms, the punishment cannot be quashed. Even then, the  matter has to be remitted back to the appropriate authority  for reconsideration. It is only in very rare cases as pointed  out  in  B.C.  Chaturvedi  case that  the  Court  might  —  to  shorten litigation — think of substituting its own view as to  the quantum of punishment in the place of the punishment  awarded by the competent authority. (In B.C. Chaturvedi and  other cases referred to therein it  has however been made  clear  that  the  power  of  this  Court  under  Article  136  is  different.)  For the reasons given above, the case cited for  the  respondent,  namely,  State  of  Maharashtra v.  M.H.  Mazumdar cannot be of any help.”

25. Again,  in  the  case  of  Coimbatore  District  Central   

Cooperative Bank v.  Coimbatore District  Central  Cooperative  

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Bank Employees Assn. and Another 12 this court considered the  

doctrine of proportionality and it was held :

“17. So far as the doctrine of proportionality is concerned,  there is no gainsaying that  the said doctrine has not  only  arrived in our legal system but has come to stay. With the  rapid  growth  of  administrative  law  and  the  need  and  necessity to control possible abuse of discretionary powers  by various administrative authorities, certain principles have  been evolved by courts. If an action taken by any authority is  contrary  to  law,  improper,  irrational  or  otherwise  unreasonable, a court of law can interfere with such action  by exercising power of judicial review. One of such modes of  exercising  power,  known  to  law  is  the  “doctrine  of  proportionality”. 18. “Proportionality”  is  a  principle  where  the  court  is  concerned with the process, method or manner in which the  decision-maker  has  ordered  his  priorities,  reached  a  conclusion  or  arrived  at  a  decision.  The  very  essence  of  decision-making  consists  in  the  attribution  of  relative  importance  to  the  factors  and  considerations  in  the  case.  The doctrine of proportionality thus steps in focus true nature  of  exercise—the  elaboration  of  a  rule  of  permissible  priorities. 19. de Smith states that “proportionality” involves “balancing  test”  and  “necessity  test”.  Whereas  the  former  (balancing  test)  permits  scrutiny  of  excessive  onerous  penalties  or  infringement of rights or interests and a manifest imbalance  of relevant considerations, the latter (necessity test) requires  infringement  of  human  rights  to  the  least  restrictive  alternative. [Judicial Review of Administrative Action (1995),  pp.  601-05,  para  13.085;  see  also  Wade  &  Forsyth:  Administrative Law (2005), p. 366.] 20. In Halsbury’s Laws of England (4th Edn.), Reissue, Vol.  1(1), pp. 144-45, para 78, it is stated:

“The court will quash exercise of discretionary  powers  in  which  there  is  no  reasonable  relationship  between  the  objective  which  is  sought to be achieved and the means used to  that  end,  or  where  punishments  imposed  by  administrative  bodies  or  inferior  courts  are  wholly  out  of  proportion  to  the  relevant  misconduct.  The principle of  proportionality is  

12 (2007) 4 SCC 669

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well established in European law, and will be  applied by English courts where European law  is  enforceable  in  the  domestic  courts.  The  principle of proportionality is still at a stage of  development  in  English  law;  lack  of  proportionality  is  not  usually  treated  as  a  separate ground for review in English law, but  is  regarded  as  one  indication  of  manifest  unreasonableness.”

21. The doctrine has its genesis in the field of administrative  law. The Government and its departments, in administering  the  affairs  of  the  country,  are  expected  to  honour  their  statements of policy or intention and treat the citizens with  full personal consideration without abuse of discretion. There  can be no “pick and choose”,  selective applicability of the  government  norms  or  unfairness,  arbitrariness  or  unreasonableness.  It  is  not  permissible  to  use  a  “sledgehammer to crack a nut”. As has been said many a  time; “where paring knife suffices, battle axe is precluded”.

22. In  the  celebrated  decision  of  Council  of  Civil  Service  Union v.  Minister for Civil Service(1985 AC 374 : (1984) 3  WLR  1174  :  (1984)  3  All  ER  935  (HL)  Lord  Diplock  proclaimed: (All ER p. 950h-j)

“Judicial review has I think developed to  a  stage  today  when,  without  reiterating  any  analysis of the steps by which the development  has come about, one can conveniently classify  under  three  heads  the  grounds  on  which  administrative  action  is  subject  to  control  by  judicial  review.  The  first  ground  I  would  call  ‘illegality’, the second ‘irrationality’ and the third  ‘procedural impropriety’. That is not to say that  further  development  on a case-by-case basis  may not in course of time add further grounds.  I  have  in  mind  particularly  the  possible  adoption  in  the  future  of  the  principle  of   ‘proportionality’….” (emphasis supplied)

23. CCSU has been reiterated by English courts in several  subsequent cases. We do not think it necessary to refer to  all those cases.

24. So far as our legal system is concerned, the doctrine is  

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well settled. Even prior to CCSU, this Court has held that if  punishment  imposed  on  an  employee  by  an  employer  is  grossly excessive, disproportionately high or unduly harsh, it  cannot claim immunity from judicial scrutiny, and it is always  open to a court to interfere with such penalty in appropriate  cases.

25. In Hind Construction & Engg. Co. Ltd. v. Workmen (AIR  1965 SC 917),  some workers  remained absent  from duty  treating  a particular  day as holiday.  They were dismissed  from service.  The Industrial  Tribunal  set  aside  the  action.  This Court held that the absence could have been treated as  leave without pay. The workmen might have been warned  and fined. (But)

“It  is  impossible  to  think  that  any  other  reasonable employer would have imposed the  extreme punishment of dismissal on its entire   permanent staff in this manner.” (AIR p. 919,  para 7) (emphasis supplied)

The Court  concluded that the punishment imposed on the  workmen was  

“not only severe and out of proportion to the  fault,  but  one  which,  in  our  judgment,  no  reasonable  employer  would  have  imposed”.  (AIR pp. 919-20, para 7) (emphasis  supplied)

26. In  Federation  of  Indian  Chambers  of  Commerce  and  Industry v.  Workmen  [(1972)  1  SCC  40],  the  allegation  against the employee of the Federation was that he issued  legal  notices  to  the  Federation  and  to  the  International  Chamber  of  Commerce  which  brought  discredit  to  the  Federation—the  employer.  Domestic  inquiry  was  held  against the employee and his services were terminated. The  punishment  was  held  to  be  disproportionate  to  the  misconduct  alleged  and  established.  This  Court  observed  that: (SCC p. 62, para 34)

“[T]he Federation had made a mountain out of  a mole hill  and made a trivial matter into one  involving loss of its prestige and reputation.”

27. In  Ranjit Thakur referred to earlier, an army officer did  not obey the lawful command of his superior officer by not  

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eating food offered to him. Court-martial proceedings were  initiated  and  a  sentence  of  rigorous  imprisonment  of  one  year was imposed. He was also dismissed from service, with  added  disqualification  that  he  would  be  unfit  for  future  employment.  

28. Applying  the  doctrine  of  proportionality  and  following  CCSU,  Venkatachaliah,  J.  (as  His  Lordship  then  was)  observed: (SCC p. 620, para 25)

“The  question  of  the  choice  and  quantum  of  punishment  is  within  the  jurisdiction  and  discretion  of  the  court  martial. But the sentence has to suit the  offence and the offender.  It  should not  be vindictive or unduly harsh. It should  not be so disproportionate to the offence  as to shock the conscience and amount  in itself  to conclusive evidence of bias.  The doctrine of  proportionality,  as part   of the concept of judicial review, would  ensure that even on an aspect which is,   otherwise, within the exclusive province  of the court martial, if the decision of the  court  even  as  to  sentence  is  an  outrageous  defiance  of  logic,  then  the  sentence  would  not  be  immune  from  correction.  Irrationality  and  perversity   are  recognised  grounds  of  judicial   review.” (emphasis supplied)

26. The  doctrine  of  proportionality  is,  thus,  well  

recognized concept of judicial review in our jurisprudence. What  

is otherwise within the discretionary domain and sole power of  

the decision maker to quantify punishment once the charge of  

misconduct  stands  proved,  such  discretionary  power  is  

exposed to judicial intervention if exercised in a manner which  

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is out of proportion to the fault. Award of punishment which is  

grossly in access to the allegations cannot claim immunity and  

remains  open for  interference  under  limited  scope of  judicial  

review. One of the tests to be applied while dealing with the  

question  of  quantum  of  punishment  would  be  :  would  any  

reasonable  employer  have  imposed  such  punishment  in  like  

circumstances? Obviously, a reasonable employer is expected  

to take into consideration measure, magnitude and degree of  

misconduct and all  other relevant circumstances and exclude  

irrelevant matters before imposing punishment. In a case like  

the present one where the misconduct of the delinquent was  

unauthorized absence from duty for six months but upon being  

charged of  such misconduct,  he  fairly  admitted  his  guilt  and  

explained the reasons for his absence by stating that he did not  

have any intention nor desired to disobey the order of higher  

authority  or  violate  any  of  the  Company’s  Rules  and  

Regulations but the reason was purely personal and beyond his  

control and, as a matter of fact, he sent his resignation which  

was not accepted, the order of removal cannot be held to be  

justified, since in our judgment, no reasonable employer would  

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have  imposed  extreme  punishment  of  removal  in  like  

circumstances.  The punishment  is  not  only unduly  harsh but  

grossly in excess to the allegations. Ordinarily, we would have  

sent  the  matter  back  to  the  appropriate  authority  for  

reconsideration on the question of punishment but in the facts  

and circumstances of the present case, this exercise may not  

be proper. In our view, the demand of justice would be met if  

the  Respondent  No.  1  is  denied  back  wages  for  the  entire  

period  by  way  of  punishment  for  the  proved  misconduct  of  

unauthorized absence for six months.

27. Consequently,  both  these  appeals  are  allowed in  

part. The appellants shall reinstate Respondent No. 1 forthwith  

but he will not be entitled to any back wages from the date of  

his  removal  until  reinstatement.  Parties  will  bear  their  own  

costs.

……………………J      (P. Sathasivam)

…….……………..J         (R. M. Lodha)

New Delhi August 24, 2009.

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