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CASE NO.: Appeal (civil)  9904 of 2003

PETITIONER: V. Ramana                                                                

RESPONDENT: A.P.S.R.T.C. & Ors.                                              

DATE OF JUDGMENT: 05/09/2005

BENCH: ARIJIT PASAYAT & H.K. SEMA

JUDGMENT: J U D G M E N T

ARIJIT PASAYAT, J.  

       Challenge in this appeal is to the legality of the  judgment rendered by a Full Bench of the Andhra Pradesh High  Court holding that the order of termination passed in the  departmental proceedings against the appellant was  justified.   

       The factual background is essentially as follows:

       The appellant was working as a Conductor in the  organization of the Andhra Pradesh State Road Transport  Corporation. Charges were made against him which related to  not issuing tickets at the boarding point itself to the  passengers who were in the bus, failure to collect fare and  issue tickets to persons who were alighting at a particular  destination and not properly maintaining records of tickets  and fare. Explanation of the appellant was considered and  was found to be not satisfactory and disciplinary  proceedings were initiated.  The Enquiry Officer found him  guilty of the charges levelled and after giving him  opportunity of hearing as regards the quantum of punishment,  order of removal from service was passed.

       Questioning correctness of the said order, writ  petition was filed. Learned Single Judge before whom the  matter was placed held that there was some divergence of  view in the judgments of learned Single Judges and,  therefore, referred the matter to a larger Bench.  The  reference was as regards the effect of acquittal in the  criminal case and smallness of the amount involved.  The  High Court by the impugned judgment held that the acquittal  of the case was really of no consequence and small amount of  discrepancy was equally inconsequential.   

       In support of the appeal learned counsel for the  appellant submitted that the High Court should have  considered the question of quantum of punishment by applying  the principles of Section 11-A of Industrial Disputes Act,  1947 (in short the ’Act’).  It was further submitted there  were minor lapses and smallness of the amount has not been  considered in the proper perspective and order of  termination of service should not have been passed. Learned  counsel for the respondent-Corporation supported the order  of the Tribunal and judgment of the High Court.  In  Karnataka State Road Transport Corporation v. B.S.  Hullikatti (JT 2001 (2) SC 72), it was held that misconduct

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in such cases where the bus conductor either had not issued  tickets to a large number of passengers or had issued  tickets of lower denomination, punishment of removal is  proper. It is the responsibility of the conductors to  collect correct fare charges from the passengers and deposit  the same with the Corporation.  They act in fiduciary  capacity and it would be a case of gross misconduct if they  do not collect any fare or the correct amount of fare. A  conductor holds a post of trust.  A person guilty of breach  of trust should be imposed punishment of removal from  service.  The factual position shows that the appellant’s  conduct in collecting fare at the designated place and not  collecting fare from persons who had already travelled were  in violation of various Regulations contained in The Andhra  Pradesh State Road Transport Corporation Employees (Conduct)  Regulations, 1963 (in short ’Regulations’). In the Karnataka  State Road Transport case (supra) it was held that it is  misplaced sympathy by Courts in awarding lesser punishments  where on checking it is found that the Bus Conductors have  either not issued tickets to a large number of passengers,  though they should have, or have issued tickets of a lower  denomination knowing fully well the correct fare to be  charged. It was finally held that the order of dismissal  should not have been set aside. The view was reiterated by a  three Judge Bench in Regional Manager, RSRTC v. Ghanshyam  Sharma (2002 (1) LLJ 234), where it was additionally  observed that the proved acts amount either to a case of  dishonesty or of gross negligence, and Bus Conductors who by  their actions or inactions cause financial loss to the  Corporations are not fit to be retained in service.   

       The principle was reiterated in Regional Manager,  U.P.S.R.T.C. Etawha and Ors. v. Hoti Lal and Anr. (JT 2003  (2) SC 27)      

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

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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 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

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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 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.

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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:

       "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

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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 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 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 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."

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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  Convention is not incorporated into  English law, the English courts merely  exercise a secondary judgment to find  0out 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

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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.

       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.  

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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.                              In the above background the High Court’s judgment does  not suffer from any infirmity. The appeal is dismissed  without any order as to costs.