Rajasthan High Court - Jaipur
Ram Kishan Palsania vs State on 5 March, 2019
Author: Inderjeet Singh
Bench: Inderjeet Singh
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Writs No. 1042/1999
Ram Kishan Palsania, son of Shri Madho Singh Palsania aged about 35
years, Resident of Dhani Patwariwali, Behind Police Station, Shahpura,
District Jaipur.
................Petitioner
VERSUS.
1. The Union of India, through Inspector General, Railway Protection
Security Force,New Delhi.
2. The Commanding Officer, 8th Batallion, Railway Protection Special
Force, at present posted at Chittranjan, Gorakhpur.
...........Respondents
For Petitioner(s) : Mr. Nitesh Rawat
For Respondent(s) : Mr. Shailesh Prakash Sharma
HON'BLE MR. JUSTICE INDERJEET SINGH
Order
05/03/2019
This writ petition has been filed by the petitioner with the
following prayer:-
"It is, therefore, prayed that this
Hon'ble Court may kindly be pleased to call
for the entire record relating to the case
and after examining the entire record may
kindly be pleased:
(i) to allow the writ petition and to
quash the proceedings against the
petitioner vide memorandum dated
24.5.95 and further to set aside the
punishment order dated
22/26.85.1997 passed by the
disciplinary authority against the
petitioner and direct the respondents
to reinstate the petitioner with all
consequential benefits.
(ii) by further appropriate order or
direction the respondents may also be
directed to reimburse the petitioner for
the medical expenses which he has
under-went for getting himself treated
since 1994 till date.
(iii) Any other appropriate writ, order
or direction which this Hon'ble Court
may deem just and proper in the facts
and circumstances of the case may
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kindly be passed in favour of the
petitioner.
(iv) that the cost of the writ petition
may kindly be ordered in favour of the
petitioner."
Brief facts of the case are that the petitioner was appointed
on the post of Constable in the Railway Protection Special Force in
the year 1989. The petitioner applied for and was granted leave
for the period from 13.04.1994 to 12.05.1994 by the respondent-
department, which was availed by him. However, according to
respondent-department, the petitioner overstayed and even after
expiry of the aforesaid sanctioned leave, the petitioner did not join
his duties back after 12.05.1994 and remained absent from duty
thereafter. Considering that to be indiscipline and misconduct, a
charge-sheet was issued to the petitioner by the department on
24.05.1995 (Annexure-7) under Rule 153 of the Railway
Protection Force Rules, 1987 for unlawful absence from duty
without submitting any sickness certificate in support of leave.
Vide order dated 24.05.1995 (Annexure-8), Enquiry Officer was
appointed and the petitioner was instructed to attend the enquiry,
failure to do so will lead the ex-parte proceedings against the
petitioner. The charge levelled against the petitioner regarding
unauthorised absence from duty was found proved by the Enquiry
Officer. The Enquiry Officer submitted its report to the disciplinary
authority. The petitioner was served with a copy of the enquiry
report vide letter dated 07.03.1996 (Annex-9) asking him to
submit his objections/reply/representation. Again vide
letter/notice dated 01.08.1996 (Annexure-10) , the petitioner was
informed about the departmental enquiry and was asked to
resume his duties. However, the petitioner failed to join his duties.
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Thereafter, the disciplinary authority after considering the enquiry
report submitted by the Enquiry Officer took a decision against the
petitioner of removal from service. Hence, the present writ
petition has been filed by the petitioner challenging the order of
removal from service dated 22/26-5-1997.
Counsel for the petitioner submitted that during the
sanctioned leave, the petitioner suddenly fell ill and admitted to
various government as well as private hospitals and the petitioner
submitted all the documents relating to his treatment including
medical certificates of sickness before the department but the
same were not considered by the department. Counsel further
submits that since he was not well, therefore, could not attend
and participate in the disciplinary proceedings.
In support of the contentions, counsel for the petitioner
relied upon the judgment passed by the Supreme Court in the matter of Krushnakant B. Parmar Vs. Union of India & Anr.
Reported in (2012) 3 SCC 178.
Counsel for the respondent submitted that the petitioner was given ample opportunity to participate in the disciplinary proceedings but he did not submit any reply to the charge-sheet and failed to appear before the Enquiry Officer and the disciplinary authority as well. Counsel further submits that when the petitioner appeared for his check up in the railway hospital, where the doctors declared him fit but he failed to join his duties. Counsel further submits that admittedly the petitioner failed to submit any reply to the charge-sheet as well as to the show cause notice issued by the disciplinary authority, therefore, the petitioner is not entitled for any relief from this court under its discretionary jurisdiction under Article 226 of the Constitution of India.
(Downloaded on 30/06/2019 at 12:16:58 AM)(4 of 14) [CW-1042/1999] In support of the contention, counsel relied upon the judgment passed by the Hon'ble Supreme Court in the matter of Union of India & Ors. Vs. Dwarka Prasad Tiwari (2006) 10 SCC 386 wherein para 10 to 16 has held as under:-
"10. 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.
11. Lord Greene said in 1948 in the famous Wednesbury case 1948 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 of Civil Service Union v. Minister for the Civil Service (1983) (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".
12. In Om Kumar and Ors. v. Union of India this Court observed, inter-alia, as follows:
"27.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 Luxembourg and the European Court of Human Rights at Strasbourg have applied the principle (Downloaded on 30/06/2019 at 12:16:58 AM) (5 of 14) [CW-1042/1999] 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.
28. 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.
37. 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 Spycatcher case Attorney General v. Guardian Newspapers Ltd. (No. 2) (1990) (at (Downloaded on 30/06/2019 at 12:16:58 AM) (6 of 14) [CW-1042/1999] 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. Lord Keith treated freedom of expression as part of common law. Recently, in R. v. Secy. Of State for Home Deptt., exp. Simms the right of a prisoner to grant an interview to a journalist was upheld 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 R. v. Lord Saville exp. (All ER (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.
38. 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. 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 (Downloaded on 30/06/2019 at 12:16:58 AM) (7 of 14) [CW-1042/1999] 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 organizations' 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. 750-51).
39. In a 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. 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 (Downloaded on 30/06/2019 at 12:16:58 AM) (8 of 14) [CW-1042/1999] 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.'
67. But where an administrative action is challenged as "arbitrary"
under Article 14 on the basis of Royappa (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 (SCC 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 (SCC at p.691), Supreme Court Employees' Welfare Assn. V. Union of India (SCC at p.241) and U.P. Financial Corpn. v. Gem Cap(India) (P) Ltd. (SCC at p.307) while judging whether the administrative action is 'arbitrary' under Article 14 (i.e. otherwise then being discriminatory), this Court has confined itself to a Wednesbury review always.
69. 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 (Downloaded on 30/06/2019 at 12:16:58 AM) (9 of 14) [CW-1042/1999] the order of punishment is questioned under Article 14.
71. 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.
13. In B.C. Chaturvedi case it was observed: (SCC p.762, para 18) "18. 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 (Downloaded on 30/06/2019 at 12:16:58 AM) (10 of 14) [CW-1042/1999] imposed, or to shorten the litigation, it may itself, in exceptional and rare cases, impose appropriate punishment with cogent reasons in support thereof."
14. In Union of India and Anr. v. G. Ganayutham, this Court summed up the position relating to proportionality in paragraphs 31 and 32, which read as follows:
"31. The current position of proportionality in administrative law in England and India can be summarised 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 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 Bugdacay, Brind and Smith as long as the Convention is not incorporated into English law, the English courts merely exercise a secondary (Downloaded on 30/06/2019 at 12:16:58 AM) (11 of 14) [CW-1042/1999] 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.
32. 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 (Downloaded on 30/06/2019 at 12:16:58 AM) (12 of 14) [CW-1042/1999] 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.
15. 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 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.
16. To put it 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."
Counsel further relied upon the judgment passed by the Hon'ble Supreme Court in the matter of Union of India & Ors. Vs. Datta Linga Toshatwad (2005) 13 SCC 709 wherein para 8 has held as under:-
"8.The present case is not a case of a constable merely overstaying his leave by 12 days. The respondent took leave from 16-6-1997 and never reported for duty thereafter. Instead he filed a writ petition (Downloaded on 30/06/2019 at 12:16:58 AM) (13 of 14) [CW-1042/1999] before the High Court in which the impugned order has been passed. Member of the uniform forces cannot absent themselves on frivolous pleas, having regard to the nature of the duties enjoyed on these forces. Such indiscipline, if it goes unpunished, will greatly affect the discipline of the forces. In such forces desertion is a serious matter. Cases of this nature, in whatever manner described , are cases of desertiojn particularly when there is apprehension of the member of the force being called upon to perform onerous duties in difficult terrains or an order of deputation which he finds inconvenient, is passed. We cannot take such matter lightly, particularly when it relates to uniformed forces of this country. A member of a uniformed force who overstyas his leave by a few days must be able to give a satisfactory explanation. However, a member of the force who goes on leave and never reports for duties thereafter, cannot be said to be one merely overstaying his leave. He must be treated as a deserter. He appears on the scene for the first time when he files a writ petition before the High Court, rather than reporting to his Commanding Officer. We are satisfied that in cases of this nature, dismissal from the force is a justified disciplinary action and cannot be descruibed as disproportionate to the misconduct alleged."
Heard counsel for the parties and perused the record.
The writ petition filed by the petitioner deserves to be dismissed for the reasons; firstly, admittedly the department sanctioned the leave to the petitioner from 03.04.1994 to 12.05.1994 and thereafter, the petitioner remained absent from duty from 12.05.1994 to 24.05.1995 for about one year; secondly, despite being declared fit by the Railway Hospital, the petitioner failed to join his duties and remained absent from duty till passing of the final order of termination; thirdly, the decision taken by the disciplinary authority regarding termination of the services of the (Downloaded on 30/06/2019 at 12:16:58 AM) (14 of 14) [CW-1042/1999] petitioner is a well-reasoned and considered decision as the charges levelled against the petitioner was found proved by the Enquiry Officer. Lastly, the petitioner was a member of disciplinary forces, therefore, in my considered view, there is no scope for interference with the quantum of punishment awarded by the disciplinary authority. In view of the judgment passed by the Hon'ble Supreme Court in the matter of Union of India Vs. Datta Linga Toshatwad (supra).
In that view of the matter, the writ petition filed by the petitioner stands dismissed.
(INDERJEET SINGH),J Jyoti/5 (Downloaded on 30/06/2019 at 12:16:58 AM) Powered by TCPDF (www.tcpdf.org)