Allahabad High Court
Raj Kishore Yadav vs U.P. Public Service Tribunal And Ors. on 21 November, 2003
Equivalent citations: 2004(1)AWC384, (2004)2UPLBEC1461
JUDGMENT R.K. Dash, J.
1. The petitioner was a Junior Engineer in the State's Irrigation Department and in the year 1975 was posted at Banda. In the construction work of a main canal and sub-canal in the year 1978-79 certain irregularities were noticed for which a preliminary enquiry was conducted and thereupon charge-sheet was laid against the petitioner. On his filing explanation, enquiry was held and he, on being found guilty, was dismissed from service. It transpires from the copy of the dismissal order, Annexure-7 that petitioner while discharging duties as engineer committed certain mistakes in the measurement of earth work and other works as a result excess payment was made to the contractor. Initially he was put under suspension, but since there was delay in conclusion of the enquiry, he was reinstated. The first enquiry officer was changed and the second enquiry officer on conclusion of enquiry, found him guilty of some charges. Consequently, the Chief Engineer by order dated 23.7.1984, Annexure-7, dismissed him from service. The petitioner preferred an appeal challenging the order of dismissal, but was unsuccessful. He then moved the U.P. Public Service Tribunal. Upon hearing, the Tribunal, by judgment and order dated 11.10.1995 dismissed the petition, challenging which he has filed the present writ petition seeking for quashing of the said order and commanding the respondents to treat him as continuing in service and to pay him all back wages with all consequential service benefits.
2. On being noticed, respondents have filed return traversing the assertions made in the writ petition.
3. The main thrust of submission of the learned counsel for the petitioner was two fold ; namely, that copy of the enquiry report was not supplied to the petitioner before taking the decision dismissing him from service, as a consequence he was denied of the opportunity to reply to the said report ; and secondly, that the punishment imposed upon him is disproportionate to the charge, inasmuch as the mistakes committed by him as indicated in the charge-sheet were not grave and serious and since no one is infallible and such mistakes are bound to occur in one's service career, minor punishment as provided in the service rules, should have been awarded. It was further contended that petitioner had unblemished career and had earned no adverse remark throughout the service period and it being not the case of respondent that excess measurement was done by him to earn pecuniary gain from the contractor, punishment of dismissal from service which affects his right to life as well as his family members should not have been imposed. In that view of the matter, urged the learned counsel for the petitioner, punishment being quite disproportionate to the charge should be set at naught and since more than twenty years have passed in the meantime, instead of remanding the matter to the authority concerned, the Court should substitute appropriate punishment by reversing the order of dismissal and reinstate the petitioner in service.
4. Learned standing counsel on the other hand urged that there has been sharp deterioration in the character and morals of the public servants who hold office of trust. Corruption in every sphere of life like cancer, a dreaded disease has seriously affected the socio-economic development of the country. The petitioner being a public servant betrayed the trust and resorted to corruption. Charges levelled against him being serious in nature and the same having been established, concerned authority cannot be faulted with for awarding punishment dismissing him from service. He would further contend that in view of the settled position of law that this Court has limited scope of interference in the administrative action of the State in exercise of extraordinary writ jurisdiction under Article 226 of the Constitution, findings recorded by the inquiry officer and consequent order of punishment, should not be disturbed.
5. It is not disputed or denied that copy of the inquiry report holding the petitioner guilty of certain charges was not supplied to him to have his say either with regard to the correctness of the findings and ultimate conclusion recorded by the inquiry officer or quantum of punishment that could be awarded by the disciplinary authority. The grievance of the petitioner is that non-supply of copy of the inquiry report before imposing punishment on him is denial of opportunity to satisfy the authority that the findings recorded by the inquiry officer are wrong and incorrect and even if those are accepted in entirety, would at best amount to negligence of duty for which imposition of minor punishment would have been just and proper.
6. Learned counsel appearing for the petitioner could not place the relevant Service Rules to show as to if it is imperative for the disciplinary authority to supply copy of the inquiry report to the charged employee before its acceptance. There are however, certain judicial pronouncements on this aspect. Reference may be made to the celebrated judgment in the case of Union of India and Ors. v. Mohd. Ramzan Khan, (1991) 1 SCC 588, where the Court has, held that whenever the inquiry officer is other than the disciplinary authority and the report of the inquiry officer holds the employee guilty of all or any of the charges, the delinquent employee is entitled to get a copy of the report to enable him to make a representation to the disciplinary authority against it and non-furnishing of the report amounts to violation of the rules of natural justice. The law laid down in the aforesaid case has been reiterated and followed in a five Judges Bench decision in the case of Managing Director, E.C.I.L., Hyderabad and Ors. v. B. Karunakar and Ors., (1993) 4 SCC 727. In paragraph 26 of the judgment, the Court has held that "it is negation of the tenets of justice and a denial of fair opportunity to the employee to consider the findings recorded by a third party like the inquiry officer without giving the employee an opportunity to reply to it". In paragraph 29 of the judgment the Court has further held that "when the enquiry officer is not the disciplinary authority, the delinquent employee has a right to receive a copy of the inquiry officer's report before the disciplinary authority arrives at its conclusions with regard to the guilt or innocence of the employee with regard to the charges levelled against him. That right is a part of the employee's right to defend himself against the charges levelled against him. A denial of the inquiry officer's report before the disciplinary authority takes its decision on the charges, is a denial of reasonable opportunity to the employee to prove his innocence and is a breach of the principles of natural justice." In view of the dictum laid down by the Apex Court in Ramzan Khan (supra) and B. Karanakar (supra), we would have quashed the punishment inflicted upon the petitioner and remitted the matter to concerned authority to take a fresh decision after supplying him copy of the inquiry report to have his say against it, but since it has been ruled that the law laid down in the aforesaid decisions shall have prospective application and punishment which is already imposed shall not be open to challenge on the ground of violation of the rules of natural justice, we are not inclined to accept the petitioner's contention and upset the punishment in view of the fact that order of the disciplinary authority awarding punishment was passed prior to the judgment rendered in those two cases.
7. Now we shall lake up the second issue as to whether punishment imposed upon the petitioner is shockingly disproportionate to the charge. The question regarding scope and ambit of power of the Court to interfere in the administrative action of the State attracted the attention of the Apex Court in several cases and in order to avoid proliferation, we would like to refer a few of them in the later part of the judgment.
8. 'Judicial review' is not an appeal from a decision but a review in the manner in which the decision was made. 'Judicial review' is a great weapon in the hands of the Judges, but the Judges must observe the constitutional limit while exercising this beneficial power. Lord Keith in Lonrho plc. v. Secretary for Trade and Industry, (1989) 2 All ER 609, said--"Judicial review is a protection and not a weapon". 'Judicial review' of the administrative action can be made on three grounds, namely, (i) illegality ; (ii) irrationality, and (iii) procedural impropriety, [See Council for Civil Services Union v. Minister of Civil Service, 1984 (3) All ER 935--in short "CCSU case"). In the said case, Lord Diplock observed that more grounds could in future become available particularly, the principle of 'proportion'. Explaining 'irrationality', he observed-- "By 'irrationality' I mean what can by now be succinctly referred to as Wednesbury unreasonableness. It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it." In Wednesbury case (Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation, 1947 (2) All ER 680 Lord Greene observed--"..........it must be proved to be unreasonable in the sense that the Court considers it to be a decision that no reasonable body can come to...............". On the Court's power of review in the administrative action, observation of Lord Denning is apposite. "If the decision making-body comes to its decision on no evidence or comes to an unreasonable finding--so unreasonable that a reasonable person would not have come to it--then again the Courts will interfere." In the oft-quoted decision in Tata Cellular v. Union of India. (1994) 6 SCC 651, the Court making an in-depth study with regard to the scope of judicial review of administrative action, observed--"The judicial power of review is exercised to rein in any unbridled executive functioning. The restraint has two contemporary manifestations. One is the ambit of judicial intervention; the other covers the scope of the Court's ability to quash an administrative decision on its merits. These restraints bear the hallmarks of judicial control over administrative action."
9. Besides the circumstances under which 'judicial review' in administrative action can be made as enumerated above, 'proportionality' has been added as another ground of review by the Apex Court in Ranjit Thakur v. Union of India. (1987) 4 SCC 611. The Court while quashing the punishment on account of it being 'shockingly disproportionate' observed thus :
"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. Ironically and perversity are recognised grounds of judicial review."
10. No doubt the Court accepted the 'doctrine of proportionality' for review of administrative action, yet it referred to CCSU description of 'irrationality' that it should be outrageous defiance of logic if it was to be treated as irrational.
11. A three Judges Bench in the case of B.C. Chaturvedi v. Union of India. (1995) 6 SCC 749, in the same line held :
"...................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."
12. The Apex Court in Union of India and Anr. v. C. Ganayutham, (1997) 7 SCC 463, summed up the current position of 'proportionality' in administrative law in England and India as follows :
"31. (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, Brind and Smith as long as the Convention is not incorporated into English law, the English courts merely exercise a secondary judgment to fine out if the decision-maker could have, on the material before him, arrive at the primary judgment in the manner he has done.
(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.
(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 and 21 etc. are involved and not for Article 14."
13. The view expressed in V. C. Chaturvedi (supra), has been reiterated in the case of Chairman and Managing Director, UCo Bank and Ors. v. P. C. Kakkar, JT 2003 (2) SC 78. The Court in paragraph 12 of the judgment held :
"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."
14. On a comprehensive study of principles of law and the judicial pronouncements referred to above, we would hold that by applying the description of 'irrationality' as decided in CCSU case and the 'proportionality' of punishment as laid down in Ranjit Thakur, B. C. Chaturvedi and P. C. Kakkar (supra), this Court has power to decide whether punishment of dismissal from service imposed upon the petitioner is shockingly disproportionate to the charge. As it transpires from the copy of the charge-sheet, the petitioner while working as an engineer in the irrigation department committed certain mistakes in the measurement and other works as a result, excess payment was made to the contractor and thus in the opinion of the disciplinary authority, such act amounted to corruption. Neither it was specifically indicated in the charge-sheet nor any finding was recorded by the inquiry officer that the petitioner in order to have monetary gain had intentionally shown excess measurement in the official record to benefit the contractor. Copy of the dismissal order, Annexure-7 would reveal that the disciplinary authority having reproduced the different charges observed the same to have been established in the inquiry and then jumped to the conclusion doubting petitioner's honesty and integrity. He did not hold that the irregularity in the measurement was done with intention to show undue favour to the contractor. He also did not assign any reason as to why it was thought proper to impose major punishment of dismissal from service. On scrutiny of the charge-sheet, findings recorded by the inquiry officer and the consequent order of the disciplinary authority, we are of the opinion that the acts complained of were sheer mistakes or errors on the part of the petitioner and for that no motive could be attributed to him. In this world, one is yet to born infallible. In other words, error is a part of human nature. Even Judges and the professionals having worked for long years with devotion sometimes commit mistakes. It is because of that in justice delivery system, we have different stairs and mistakes committed by one court is corrected by higher court. So, when to err is human and the petitioner is not an exception to it, why should he be imposed with such harsh punishment for his committing certain mistakes/errors which are unintentional? At the most, it can be said that the acts complained of were error of judgment which happened due to lack of proper care. For such acts, he would have been imposed with minor punishment as provided in the Service Rules. In our opinion, therefore, the punishment of dismissal of service inflicted upon him is shoekingly disproportionate to the charge which has affected his right to life and lives of his family members as enshrined in Article 21 of the Constitution. If a sole bread earner loses his job, it makes his life and the lives of all the family members miserable. Financial hardship restrains him to provide education to his children and proper medical care to his old and ailing parents. Unable to bear the agony, a person of weak mind may end his life. So, while awarding punishment, the disciplinary authority should be very cautious and exercises power with restraint. By saying so, it may not be construed that we have held that in no circumstance a public servant can be dismissed from the service even if, he is corrupt, dishonest and has plundered the public exchequer.
15. In view of our findings as aforesaid, we would have directed the disciplinary authority to take a fresh decision on the question of penalty. But since in the meantime more than twenty three years have passed from the date of framing charge, it being a rare and exceptional case, we mould the punishment by way of stoppage of two increments with cumulative effect. The writ petition is thus allowed. The impugned order of dismissal from service awarded to the petitioner is quashed. His two annual increments with cumulative effect be stopped. He shall, be deemed to be continuing in service and be given all pecuniary and consequential service benefits which he is entitled to under the relevant Service Rules.
16. In the circumstances, there shall be no order as to costs.