Himachal Pradesh High Court
Nageen Chand vs H.P. State Consumer Dispute Redressal ... on 14 August, 2023
Author: Satyen Vaidya
Bench: Satyen Vaidya
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWPOA No. : 864 of 2019 Reserved on : 04.08.2023 .
Decided on : 14.08.2023
Nageen Chand.
....Petitioner.
Versus
H.P. State Consumer Dispute Redressal Commission.
of ...Respondent Coram rt The Hon'ble Mr. Justice Satyen Vaidya, Judge. Whether approved for reporting? 1 For the petitioner : Mr. Nishant Khidtta, Advocate.
For the respondent : Mr. Pushpender Jaswal, Additional Advocate General.
Satyen Vaidya, Judge By way of instant petition, petitioner has prayed for following substantive reliefs:-
i. That entire acts of omission and commission of the respondent starting from issuance of charge sheet dated 30.09.2009, Enquiry Proceedings, order dated 3.5.2012 and order dated 26.09.2014 may be held illegal, void abinitio and be quashed and set aside and 1 Whether reporters of the local papers may be allowed to see the judgment?::: Downloaded on - 14/08/2023 20:36:43 :::CIS 2
the petitioner may be held entitled for all the service benefits with all consequential benefits.
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ii. That the petitioner may be given all service benefits from the period of compulsory retirement till 26.09.2014 with all consequential benefits such as continuity in service, salary, pensionary benefits etc. of
2. Petitioner had joined the services of respondents as Peon on 29.05.1999. A disciplinary inquiry was held against the petitioner under Rule 14 rt of CCS (CCA) Rules, 1965. First charge against the petitioner was that during 2009, he had failed to maintain absolute devotion towards duty by disobeying the orders of the President, District Consumer Forum, Una. It was alleged that on the Circuit Tours of President, District Consumer Forum, Una, the petitioner had repeatedly disobeyed the orders to accompany him. The second charge against petitioner was that he had willfully remained absent from duty w.e.f 21.04.2009 to 18.05.2009 and thereafter from 18.06.2009 to 18.08.2009, in addition the petitioner had attempted to bring outside ::: Downloaded on - 14/08/2023 20:36:43 :::CIS 3 influence in respect of the matters pertaining to his service under the government.
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3. Both the charges were held proved against the petitioner by Inquiry Officer. The disciplinary authority accepted the inquiry report. After affording due opportunity of being heard to the petitioner, the of competent authority, vide order dated 03.05.2012, imposed major penalty of compulsory retirement from rt service upon the petitioner.
4. Petitioner assailed the order dated 03.05.2012 by way of CWP No. 3705 of 2012 before this Court. In the said petition, petitioner waived his right to challenge the findings of Inquiry Officer and its acceptance by the disciplinary authority and pressed the relief only against the order dated 03.05.2012, whereby the penalty of compulsory retirement was imposed against him. This Court, vide judgment dated 25.07.2014, proceeded to quash the order dated 03.05.2012 only on the ground that the said order was passed by taking into consideration the alleged misconduct of the petitioner pertaining to ::: Downloaded on - 14/08/2023 20:36:43 :::CIS 4 the year 2010, which was not even the subject matter of inquiry held against him. The matter was remitted .
back to the disciplinary authority to impose the penalty afresh. Thereafter, the impugned order dated 26.05.2014 came to be passed, whereby the penalty of compulsory retirement from service has again been of imposed upon the petitioner.
5. In above background, learned counsel for rt the petitioner has confined his challenge only to the legality of impugned order dated 26.05.2014.
6. I have heard learned counsel for the parties and have also gone through the record of the case carefully.
7. The scope of judicial review by the Courts while dealing with the validity of quantum of punishment imposed by the disciplinary authority is well defined. In Life Insurance Corporation of India Vs. S. Vasanthi, (2014) 9, SCC 315, the detailed enunciation on the subject has been made by Hon'ble Supreme Court as under:-
::: Downloaded on - 14/08/2023 20:36:43 :::CIS 5"10. The scope and power of judicial review of the courts while dealing with the validity of quantum of punishment imposed by the .
disciplinary authority is now well-settled.
In Kendriya Vidyalaya Sangthan v. J. Hussain (2013) 10 SCC 106 , the law on this subject, is recapitulated in the following manner "7. When the charge is proved, as happened in the instant case, it is the disciplinary authority of with whom lies the discretion to decide as to what kind of punishment is to be imposed. Of course, this discretion has to be examined rt objectively keeping in mind the nature and gravity of the charge. The disciplinary authority is to decide a particular penalty specified in the relevant Rules. A host of factors go into the decision making while exercising such a discretion which include, apart from the nature and gravity of misconduct, past conduct, nature of duties assigned to the delinquent, responsibility of duties assigned to the delinquent, previous penalty, if any, and the discipline required to be maintained in department or establishment where he works, as well as extenuating circumstances, if any exist.
8. The order of the appellate authority while having a relook at the case would, obviously, examine as to whether the punishment imposed by the disciplinary authority is reasonable or not. If the appellate authority is of the opinion that the case warrants lesser ::: Downloaded on - 14/08/2023 20:36:43 :::CIS 6 penalty, it can reduce the penalty so imposed by the disciplinary authority. Such a power which vests with the appellate authority .
departmentally is ordinarily not available to the court or a tribunal. The court while undertaking judicial review of the matter is not supposed to substitute its own opinion on reappraisal of facts. (See UT of Dadra & Nagar Haveli v. Gulabhia M. Lad (2010) 5 SCC 775 .
of In exercise of power of judicial review, however, the court can interfere with the punishment imposed when it is found to be rt totally irrational or is outrageous in defiance of logic. This limited scope of judicial review is permissible and interference is available only when the punishment is shockingly disproportionate, suggesting lack of good faith.
Otherwise, merely because in the opinion of the court lesser punishment would have been more appropriate, cannot be a ground to interfere with the discretion of the departmental authorities.
9. When the punishment is found to be outrageously disproportionate to the nature of charge, principle of proportionality comes into play. It is, however, to be borne in mind that this principle would be attracted, which is in tune with doctrine of Wednesbury [Associated Provincial Picture Houses Ltd. v. Wednesbury Corpn., (1948) 1 KB 223 : (1947) 2 All ER 680 (CA)] rule of reasonableness, only when in the facts and circumstances of the case, penalty ::: Downloaded on - 14/08/2023 20:36:43 :::CIS 7 imposed is so disproportionate to the nature of charge that it shocks the conscience of the court and the court is forced to believe that it is .
totally unreasonable and arbitrary. This principle of proportionality was propounded by Lord Diplock in Council of Civil Service Unions v. Minister for Civil Service [1985 AC 374 : (1984) 3 WLR 1174 : (1984) 3 All ER 935 (HL)] in the following words: (AC p. 410 D-E) of '... Judicial review has I think developed to a stage today when without reiterating any analysis of the steps by which the rt development has come about, one can conveniently classify under three heads of the grounds upon 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". This 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".'
10. An imprimatur to the aforesaid principle was accorded by this Court as well in Ranjit Thakur v. Union of India (1987) 4 SCC 611. Speaking for the Court, Venkatachaliah, J. (as he then was) emphasising that 'all powers have legal limits' invokes the aforesaid doctrine in the following words ::: Downloaded on - 14/08/2023 20:36:43 :::CIS 8 '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 of proportionality as part of the concept of judicial review, would ensure that even on an aspect which is, otherwise, within the rt 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.'"
11. We are of the opinion that the High Court transgressed its limits of judicial review by itself assuming the role of sitting as a departmental appellate authority, which is not permissible in law. The principles discussed above have been summed up and summarised as follows in Lucknow Kshetriya Gramin Bank v. Rajendra Singh (2013) 12 SCC 372 "19.1. When charge(s) of misconduct is proved in an enquiry the quantum of punishment to be imposed in a particular case is essentially the domain of the departmental authorities.
::: Downloaded on - 14/08/2023 20:36:43 :::CIS 919.2. The courts cannot assume the function of disciplinary/departmental authorities and to decide the quantum of .
punishment and nature of penalty to be awarded, as this function is exclusively within the jurisdiction of the competent authority.
19.3. Limited judicial review is available to interfere with the punishment imposed by the disciplinary authority, only in cases where of such penalty is found to be shocking to the conscience of the court.
19.4. Even in such a case
rt when the
punishment is set aside as shockingly
disproportionate to the nature of charges framed against the delinquent employee, the appropriate course of action is to remit the matter back to the disciplinary authority or the appellate authority with direction to pass appropriate order of penalty. The court by itself cannot mandate as to what should be the penalty in such a case.
19.5. The only exception to the principle stated in para 19.4 above, would be in those cases where the co-delinquent is awarded lesser punishment by the disciplinary authority even when the charges of misconduct were identical or the co-delinquent was foisted with more serious charges. This would be on the doctrine of equality when it is found that the employee concerned and the co- delinquent are equally placed. However, there has to be a complete parity between the two, ::: Downloaded on - 14/08/2023 20:36:43 :::CIS 10 not only in respect of nature of charge but subsequent conduct as well after the service of charge-sheet in the two cases. If the co-
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delinquent accepts the charges, indicating remorse with unqualified apology, lesser punishment to him would be justifiable."
8. In the case in hand, the charges of gross of misconduct, indiscipline, disobedience, insubordination and behavior unbecoming of government servant rt have been proved against petitioner. It has been proved that the petitioner had repeatedly disobeyed the orders of the President, District Consumer Forum, Una, to perform duties during the Circuit Courts of the Bench and further he had willfully remained absent for the period w.e.f.
21.04.2009 to 18.05.2009 and thereafter from 18.06.2009 to 18.08.2009. Keeping in the view the nature of duties of the petitioner more particularly when he was deputed with a bench of District Consumer forum for assistance even during its circuit tours, I do not find the punishment inflicted upon petitioner to be irrational or outrageous in defiance of ::: Downloaded on - 14/08/2023 20:36:43 :::CIS 11 logic. It also cannot be said to be outrageously disproportionate.
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9. Learned counsel for the petitioner tried to persuade the Court by relying upon the judgment passed by Hon'ble Supreme Court in Chairman-cum-
Managing Director Coal India Limited & Anr. Vs. of Mukul Kumar Choudhuri and Ors., (2009) 15 SCC 620, wherein Hon'ble Supreme Court by applying the rt doctrine of proportionality had held the punishment of removal from service, on the proof of misconduct of delinquent as willful absence from duty for six months, to be highly disproportionate and therefore, respondent No.1 in that case was ordered to be reinstated in service without entitlement to payment of back wages. Learned counsel for the petitioner has submitted that the petitioner can also be visited with a minor penalty by application of principle of proportionality. However, in my considered view, the petitioner cannot derive any benefit from the above noted judgment for the reason that the only charge proved in that case was of willful absence from duty, ::: Downloaded on - 14/08/2023 20:36:43 :::CIS 12 whereas in the instant case, more serious charge of indiscipline and insubordination by willfully not .
attending his duties during circuit courts has been proved against petitioner.
10. In view of above discussion, I do not find any merit in the petition and the same is, accordingly, of dismissed.
11. Pending miscellaneous application(s), if any.
rt shall stand disposed of.
(Satyen Vaidya)
14th August 2023 Judge
(sushma)
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