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CASE NO.: Appeal (civil)  3528 of 2006

PETITIONER: Union of India &  Anr.

RESPONDENT: K.G. Soni

DATE OF JUDGMENT: 17/08/2006

BENCH: ARIJIT PASAYAT & LOKESHWAR SINGH PANTA

JUDGMENT: J U D G M E N T (Arising out of SLP (C) No. 19946 of 2004)

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

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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. (1995 [6]  SCC 749) 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

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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  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

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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.  

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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  (2005 (10) SCC 84).

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.