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CASE NO.: Appeal (civil)  6498 of 2005

PETITIONER: State of M.P. and others

RESPONDENT: Hazarilal

DATE OF JUDGMENT: 12/02/2008

BENCH: S.B. SINHA & HARJIT SINGH BEDI

JUDGMENT: J U D G M E N T

CIVIL APPEAL NO. 6498 OF 2005

S.B. SINHA, J.

1.      Respondent was a Peon appointed in a Middle School.  He is said to  have assaulted one Ram Singh on 5th October, 1989.  He was prosecuted for  commission of the said offence and was convicted by a Court of Magistrate  by a judgment dated 22nd July, 1992 under Section 323 read with Section 34  of the Indian Penal Code and sentenced to undergo one month’s simple  imprisonment. On an appeal preferred by him, the sentence was reduced to a  fine of Rs.500/- only.  A revision thereagainst was filed by the respondent  herein before the High Court.   2.      A show cause notice was issued to the respondent as to why  disciplinary action shall not be taken against him in view of the judgment of  conviction passed against him in the said criminal case.  By an order dated  25th November, 1993 his services were terminated by the Deputy Director,  Vidisha.  An appeal thereagainst was preferred by the respondent in terms of  Madhya Pradesh State Services Act.  However, no order was passed therein.  A revision was filed by him before the Deputy Director, Public Education.   During the pendency of the said revision application, his criminal revision  petition filed before the High Court was dismissed.  The prayer of the  respondent that he be reinstated in service was rejected in terms of the order  dated 11th January, 1994 passed by the Deputy Director, Public Education,  Vidisha.   3.      Respondent thereafter filed an Original Application before the State  Administrative Tribunal, Gwalior.  The Tribunal by an order dated 25th  November, 2002 allowed the said application holding :- "However, the applicant succeeds on the ground that the  punishment of removal from service is grossly excessive  because the punishment was only under section 323 IPC  and the High Court has clarified that the punishment does  not involve any moral turpitude every power vested in a  public authority has to be exercised fairly, justly and  reasonably.  Respondents should have applied their mind  to the penalty which should be appropriately be imposed  in the circumstances of the case.  Please see Shankar Das  Vs. Union of India (1985 2 SCC 358).  This does not  seem to have been done."

A writ petition filed thereagainst by the appellants before the High  Court has been dismissed by reason of the impugned judgment.   4.      Mr. Siddhartha Dave, learned counsel appearing on behalf of he  appellants, submitted that the High Court committed a manifest error in  passing the impugned judgment in so far as it failed to take into  consideration that the Tribunal or the High Court could not have interfered

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with the quantum of punishment.   

5.      The case in hand appears to be a gross one.  This Court is unable to  appreciate the attitude on the part of the appellant herein which ex-facie  appears to be wholly unreasonable.  Respondent had not committed any  misconduct within the meaning of the provisions of the Service Rules.  He  was involved in a matter for causing simple injury to another person.  He  was not even sent to prison.  Only a sum of Rs.500/- was imposed upon him  as fine.     6.      Rule 19 of M.P. Civil Services (Classification, Control and Appeal)  Rules, 1966, which provides for special procedure in certain cases, to which  reliance has been placed by the appellants does not appear to be applicable  in the instant case.  The said Rule reads thus :- "19.    Special procedure in certain cases. Notwithstanding anything contained in Rule 14 to Rule  18 (i)     where any penalty is imposed on a Government  servant on the ground of conduct which has led to  his conviction on a criminal charge, or (ii)    where the disciplinary authority is satisfied for  reasons to be recorded by it in writing that it is not  reasonable practicable to hold an inquiry in the  manner provided in these rules, or (iii)   where the Governor is satisfied that in the interest  of the security of the State, it is not expedient to  hold any inquiry in the manner provided in these  rules, the disciplinary authority may consider the  circumstances of the case and make such orders  thereon as it deems fit. Provided that the Commission shall be consulted  where such consultation is necessary, before any orders  are made in any case under this rule."

7.      By reason of the said provision, thus, "the disciplinary authority has  been empowered to consider the circumstances of the case where any  penalty is imposed on a Government servant on the ground of conduct which  has led to his conviction on a criminal charge", but the same would not mean  that irrespective of the nature of the case in which he was involved or the  punishment which has been imposed upon him, an order of dismissal must  be passed.  Such a construction, in our opinion, is not warranted.  

8.      An authority which is conferred with a statutory discretionary power  is bound to take into consideration all the attending facts and circumstances  of the case before imposing an order of punishment.  While exercising such  power, the disciplinary authority must act reasonably and fairly.  Respondent  occupied the lowest rank of the cadre.  He was merely a contingency peon.   Continuation of his service in the department would not bring a bad name to  the State.  He was not convicted for any act involving moral turpitude.   He  was not punished for any heinous offence.   

9.      The Tribunal, in our opinion, rightly placed reliance upon the decision  of this Court in Shankar Das   vs.  Union of India  : (1985) 2 SCC 358  wherein this Court commended the judgment of a Magistrate of Delhi as he  had let off the appellant therein under Section 12 of the Probation of  Offenders Act stating :-

"Misfortune dogged the accused for about a year\005.and it  seems that it was under the force of adverse  circumstances that he held back the money in question.   Shankar Dass is a middle-aged man and it is obvious that  it was under compelling circumstances that he could not  deposit the money in question in time.  He is not a  previous convict.  Having regard to the circumstances of  the case, I am of the opinion that he should be dealt with  under the Probation of Offenders Act, 1958."

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10.     Despite the said observation Shankar Das was dismissed from service.   This Court held :- "7. It is to be lamented that despite these observations of  the learned Magistrate, the Government chose to dismiss  the appellant in a huff, without applying its mind to the  penalty which could appropriately be imposed upon him  insofar as his service career was concerned. Clause ( a )  of the second proviso to Article 311(2) of the  Constitution confers on the Government the power to  dismiss a person from service "on the ground of conduct  which has led to his conviction on a criminal charge".  But, that power, like every other power, has to be  exercised fairly, justly and reasonably. Surely, the  Constitution does not contemplate that a government  servant who is convicted for parking his scooter in a no- parking area should be dismissed from service. He may,  perhaps, not be entitled to be heard on the question of  penalty since clause ( a ) of the second proviso to Article  311(2) makes the provisions of that article inapplicable  when a penalty is to be imposed on a government servant  on the ground of conduct which has led to his conviction  on a criminal charge. But the right to impose a penalty  carries with it the duty to act justly. Considering the facts  of this case, there can be no two opinions that the penalty  of dismissal from service imposed upon the appellant is  whimsical."   

11.     We express similar dis-satisfaction in this case.   12.     Furthermore the legal parameters of judicial review has undergone a  change.  Wednesbury principle of unreasonableness has been replaced by the  doctrine of proportionality.  [See : Indian Airlines Ltd.  vs.  Prabha D.  Kumari : (2006) 11 SCC 67 ; State of U.P.  vs.  Sheo Shanker Lal Srivastava  : (2006) 3 SCC 276 and M.P. Gangadharan and another  vs.  State of Kerala  and others : AIR 2006 SC 2360.]

13.     At this stage we may also notice the application of the Doctrine by the  United Kingdom House of Lords in Seal (FC) (Appellant)  vs. Chief  Constable of South Wales Police (Respondent) : [2007] 4 All ER 177;  Huang (FC) (Respondent) v. Secretary of State for the Home Department  (Appellant) and Kashmiri (FC) (Appellant) vs.  Secretary of State for the  Home Department (Respondent) (Conjoined Appeals) : [2007] 4 All ER 15;  Tweed (Appellant) vs. Parades Commission for Northern Ireland  (Respondents) (Northern Ireland) [2007] 2 All ER 273;  Belfast City Council  (Appellants) vs. Miss Behavin’ Limited (Respondents) (Northern Ireland)  [2007] 3 All ER 1007 and R (on the application of Countryside Alliance and  others and others) vs. Her Majesty’s Attorney General and another [2007] 3  WLR 922. 14.     It is interesting to note that distinguishing between the traditional  grounds of judicial review and the doctrine of proportionality, Lord Carswell  in Tweed (Supra) after referring to previous decisions and authorities,  observed:

"The starting point is that there is an overlap between the  traditional grounds of review and the approach of  proportionality. Most cases would be decided in the same  way whichever approach is adopted. But the intensity of  review is somewhat greater under the proportionality  approach. Making due allowance for important structural  differences between various convention rights, which I  do not propose to discuss, a few generalisations are  perhaps permissible. I would mention three concrete  differences without suggesting that my statement is  exhaustive. First, the doctrine of proportionality may  require the reviewing court to assess the balance which

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the decision maker has struck, not merely whether it is  within the range of rational or reasonable decisions.  Secondly, the proportionality test may go further than the  traditional grounds of review inasmuch as it may require  attention to be directed to the relative weight accorded to  interests and considerations. Thirdly, even the heightened  scrutiny test developed in R v Ministry of Defence, Ex p  Smith [1996] QB 517, 554 is not necessarily appropriate to  the protection of human rights."

15.     Applying the said principle also, in our opinion, no interference with  the impugned judgment is called for. 16.     Reliance has been placed by the learned counsel on Coimbatore  District Central Cooperative Bank vs. Coimbatore Distarict Central  Cooperative Bank Employees Association and another : (2007) 4 SCC 669  wherein also this Court accepted the applicability of the doctrine of  proportionality.  Therein this Court has quoted with approval the decision of  this Court in Ranjit Thakur vs. Union of India and others : (1987) 4 SCC 611  as also M.P. Gangadharan and another  vs.  State of Kerala and others :  (2006) 6 SCC 162, which had applied the doctrine of proportionality. 17.     For the reasons aforementioned there is no merit in this appeal which  is dismissed with costs.  Counsel fee is quantified at Rs.25,000/-.