Gujarat High Court
S V Panchal vs State Of Gujarat & 2 on 1 April, 2016
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/SCA/1146/2010 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 1146 of 2010
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S V PANCHAL....Petitioner(s)
Versus
STATE OF GUJARAT & 2....Respondent(s)
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Appearance:
MR SHALIN MEHTA, SR.ADVOCATE with MR MAULIK R SHAH, ADVOCATE
for the Petitioner(s) No. 1
MR UTKARSH SHARMA, AGP for the Respondent(s) No. 1
RULE SERVED for the Respondent(s) No. 1 - 3
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 01/04/2016
ORAL ORDER
By this writ-application under Article 226 of the Constitution of India, the petitioner, a compulsorily retired employee, has prayed for the following reliefs :
"A) Your Lordships be pleased to admit and allow this petition;
B) Your Lordships be pleased to issue a writ of mandamus or any other appropriate writ, order or direction against the respondents quashing and setting aide the reply dated 27th November 2007 read with reply dated 11th December, 2008 (Annexure - ) being evasive and not containing appropriate reasoned orders as directed by the Hon'ble High Court in oral order dated 26.4.2007 passed in Special Civil Application No.11229 of 2007 and consequently for quashing and setting aside the order dated 10.6.2007 compulsory retiring the petitioner which is issued illegally in view of the grounds listed in para-13.1 to 13.16 of the memo of petition and in the interest of Justice.
C) pending hearing and final disposal of this petition, Your Lordships be pleased to issue necessary direction to the respondents to consider and take a decision to reinstate the petitioner on the post of Jr.Clerk on the basis of judgment and order passed by this Hon'ble High Court on 9.11.1992 in Page 1 of 17 HC-NIC Page 1 of 17 Created On Thu Apr 07 00:48:40 IST 2016 C/SCA/1146/2010 ORDER Special Civil Application No.49 of 1991 filed by Smt.Jejurkar Versus Director, National Cadet Corps (NCC) Gujarat State and another as reported in 1993(7) SLR 746 which is referred in para - 13.12 of memo of petition.
D) Your Lordships be pleased to grant any other and additional relief as deemed fit and proper in the facts and circumstances of the present case.
E) Cost of this petition be granted."
The facts of this case may be summarised as under :
The petitioner was appointed as a Junior Clerk under the respondent no.1 on 21st December 1981. He was posted at Palanpur in the district of Banaskantha. Later on, he was promoted and was given the senior scale. He was also allowed to cross the efficiency bar. A departmental inquiry was conducted on certain charges of corruption. The Inquiry Officer exonerated the petitioner, but the findings recorded by the Inquiry Officer were not accepted by the disciplinary authority. Ultimately, the petitioner was found to be guilty and was reverted as Junior Clerk for five years. He was transferred to Porbandar. He joined his duties at Porbandar on 7th January 2005.
It appears that thereafter he proceeded on leave on the ground that his mother aged 80 years was seriously ill at Ahmedabad. It is the case of the petitioner that he had requested for leave for the period between 11th April 2005 and 30th April 2005 and from 1st May 2005 to 14th June 2005. The leave was not sanctioned. Ultimately, it was decided that the petitioner be proceeded departmentally for remaining absent for a period of more than 400 days. A show-cause notice was issued in that regard. The petitioner replied to the said show- cause notice, stating that on account of his mother's sickness he was not able to attend the office and had to remain absent.Page 2 of 17
HC-NIC Page 2 of 17 Created On Thu Apr 07 00:48:40 IST 2016 C/SCA/1146/2010 ORDER The Inquiry Officer, by his report dated 10th April 2006, held the charges to have been established. Ultimately, the disciplinary authority passed the order of compulsory retirement by way of punishment. Hence, this petition.
Mr.Shalin Mehta, the learned senior counsel appearing for the petitioner, submitted that he has only one argument to canvass. He submitted that it is true that his client remained absent from duty for a long time, but such unauthorized absence before it is termed as a misconduct, should be found to be willful or due to compelling circumstances. He submitted that if the reason is compelling circumstances beyond the control of his client and if it was not possible for his client to report or perform duty, then his client could not be said to be guilty of failure of devotion to duty.
In support of his submission, he has relied on the decision of the Supreme Court in the case of Krushnakant B.Parmar v. Union of India and another, Judgement Today 2012(2) SC 352.
Mr.Mehta further submitted that his client had also applied for voluntary retirement having put in 24 years of service. He submitted that the application was rejected on the ground that it was not in a proper format and, therefore, his client preferred a fresh application in a proper format with all the necessary details, but the same was not considered by the authorities.
Mr.Mehta submitted that the penalty of compulsory retirement could be termed as very harsh. He submitted that even today the petitioner is ready to seek voluntary retirement with effect from the date he had applied for the first time.Page 3 of 17
HC-NIC Page 3 of 17 Created On Thu Apr 07 00:48:40 IST 2016 C/SCA/1146/2010 ORDER Mr.Mehta also placed reliance on a Division Bench decision of this Court in the case of Yogesh M.Vyas v. Registrar and another, Special Civil Application No.21899 of 2005 decided on 14th November 2008.
In such circumstances referred to above, Mr.Mehta prays that the order of compulsory retirement be quashed and appropriate relief be granted to the petitioner.
On the other hand, the writ-application has been vehemently opposed by Mr.Utkarsh Sharma, the learned AGP appearing for the respondents - State. He submitted that no error, not to speak of any error of law, could be said to have been committed in passing the impugned order of compulsory retirement. Mr.Sharma submitted that after a full-fledged departmental inquiry the authorities concerned reached to the conclusion that no good explanation could be offered by the petitioner for remaining absent on duty for a long period of more than 400 days. He submitted that no evidence worth the name could be adduced by him to show that his mother was ailing and there was none to take care of her except the petitioner himself.
Mr.Sharma relied on the following averments made in the affidavit-in-reply filed on behalf of the respondent no.1 duly affirmed by the Assistant Director (Employment), Employment and Training, Gandhinagar :
"5. With reference to Para - 3, I say and submit that petitioner's service record is not clean, on the contrary once from 08/03/2003 to 06/01/2005 he was suspended due to misconduct and abuse of power to his position. It is further submitted he was also reverted from Senior Clerk to Junior Clerk for being not working diligently and sincerely. This reversion order has been continued by this Hon'ble High Court by SCA No.22494/2006 & LPA No.641/2007 by order dt 15/02/2007. The petitioner while working in District Page 4 of 17 HC-NIC Page 4 of 17 Created On Thu Apr 07 00:48:40 IST 2016 C/SCA/1146/2010 ORDER Employment Office, Mehsana, one criminal complaint, Cr.-I-167/2004 was filed against him, therefore contention raised by the petitioner is not true.
6. It is Further submitted that petitioner has continuously remained absent from his duty during 07/01/2005 to 30/10/2005. He remained absent almost 293 days and from 01/11/2005 to 19/06/2006, he remained absent for 184 days. Therefore total period of absenteeism is 477 days. This absenteeism was without prior permission from head of the office, therefore as there is breach of rule 3(1)(2) and 3(1)(3) of Gujarat State Civil Service (Conduct) 1971, notice was issued and after giving him ample opportunity during departmental inquiry the order which has been passed by authority is just proper and legal.
7. The order of compulsory retirement has been passed after affording him ample opportunity and consonance with the rules of Gujarat State Service Rules l97l (disciple & appeal) which is just and legal.
8. It is further submitted that petitioner has remained absent on the ground of sickness of his mother, but he has never produced any medical certificate at relevant time on the contrary when show cause notice issued on 25/07/2005, that time petitioner produced medical certificate of private doctor after 7 months. Therefore after considering all the evidence, document, report of inquiry officer, the order passed by authority is proper."
He has also relied on one additional reply, wherein it has been stated as under :
"11. It is denied that the petitioner is having clean service record but the true fact is that the petitioner was also given a punishment by order dated 20-12-2004 for showing dishonesty, misbehavior and for cheating with the unemployed candidates by giving them hope of giving job and duped many unemployed candidates. A copy of the order dated 20-12-2004 is annexed herewith and marked as Annexure-R-VII.
12. It is further submitted that when the petitioner was at Mehsana he has again duped unemployed candidates for Rs.1,80,000/- and for that an FIR was also registered at Mehsana Police Station being FIR No.1-167/04. Thus, looking to the facts of the case and the conduct of the petitioner, the respondent authority has thought it fit and proper to compulsory retire the petitioner considering the rule-6 of the Gujarat Civil Service Rule (Disciplinary and Appeal), 1971.
13. It is respectfully submitted that the petitioner has already preferred one Special Civil Application No.11229 of 2007 but, the petitioner has also preferred appeal being No.59/07 before the Gujarat Civil Service Tribunal for the same relief, the petitioner has withdrawn the appeal No.59/07 by order dated 08-10-2007, it was withdrawn and as per the direction given by order dated 26-04-2007 and considering the representation of the petitioner dated 08-06-2007 and the written statement dated 18-05-2006, the case of the petitioner was not required to be considered and therefore, the respondent authority has passed an order dated 27-11-2007 and the order of compulsory retiring the petitioner dated 10-07-2006 is confirmed.Page 5 of 17
HC-NIC Page 5 of 17 Created On Thu Apr 07 00:48:40 IST 2016 C/SCA/1146/2010 ORDER Moreover, against the application dated 01-08-2008 which is submitted after the period of 1 year and 4 months after the punishment, the respondent authority has given detailed reply by communication dated 11- 12-2008.
14. It is respectfully submitted that conduct of his dishonesty and that the petitioner was found duping the unemployed candidates by offering them job and was found involved, after the departmental inquiry the petitioner was degraded from his scale and again the said punishment order the petitioner has preferred the Special Civil Application No.22494 of 2006 and the Hon'ble Court has passed the order dated 15-02-2007 and confirmed the order passed by the respondent authority which was carried into appeal by the petitioner in Letters Patent Appeal No. 641 of 2007 and the Division Bench has also confirmed the order passed by the respondent authority dated 18-07-2007. Thus, as the service record of the petitioner is not clean and the petitioner was in habit of duping unemployed candidates by giving them offers of job and taking money from them, the order passed by the respondent authority is lega1, proper and valid."
Mr.Sharma submitted that there being no merit in this writ-application, the same be rejected.
Having heard the learned counsel appearing for the parties and having considered the materials on record, the only question that falls for my consideration is, whether the authority concerned committed any error in passing the impugned order of compulsory retirement from service.
It appears that the service record of the petitioner is not clean. The problem cropped up in 2004 when the First Information Report came to be lodged against him at the Mehsana Police Station, bearing CR-No.I-167 of 2004 for the criminal breach of trust and cheating.
It appears that while posted at Mehsana, he fraudulently obtained Rs.1,80,000=00 from the complainant on the pretext of offering him employment. Many other such unemployed persons were duped by him. As observed by me earlier, a departmental inquiry in that regard was initiated and he was Page 6 of 17 HC-NIC Page 6 of 17 Created On Thu Apr 07 00:48:40 IST 2016 C/SCA/1146/2010 ORDER ordered to be reverted to the post of Junior Clerk for five years. He, thereafter, proceeded on a long leave on the ground that his mother was ailing. At this stage, let me look into the decision of the Supreme Court on which strong reliance has been placed by Mr.Mehta, the learned counsel appearing for the petitioner.
In the case before the Supreme Court, the appellant was proceeded departmentally on the charge of remaining unauthorizedly absent. The charge against the appellant was that he had failed to maintain integrity and devotion to duty and thereby had committed the breach of rule 3(1)(ii) and 3(1)
(iii) of the Central Civil Services (Conduct) Rules, 1964. The Supreme Court, in the facts of the case, held as under :
"16. The question whether `unauthorised absence from duty' amounts to failure of devotion to duty or behaviour unbecoming of a Government servant cannot be decided without deciding the question whether absence is willful or because of compelling circumstances.
17. If the absence is the result of compelling circumstances under which it was not possible to report or perform duty, such absence can not be held to be willful.
18. Absence from duty without any application or prior permission may amount to unauthorised absence, but it does not always mean willful. There may be different eventualities due to which an employee may abstain from duty, including compelling circumstances beyond his control like illness, accident, hospitalisation, etc., but in such case the employee cannot be held guilty of failure of devotion to duty or behaviour unbecoming of a Government servant.
19. In a Departmental proceeding, if allegation of unauthorised absence from duty is made, the disciplinary authority is required to prove that the absence is willful, in absence of such finding, the absence will not amount to misconduct.
20. In the present case the Inquiry Officer on appreciation of evidence though held that the appellant was unauthorisedly absent from duty but failed to hold the absence is willful; the disciplinary authority as also the Appellate Authority, failed to appreciate the same and wrongly held the appellant guilty.Page 7 of 17
HC-NIC Page 7 of 17 Created On Thu Apr 07 00:48:40 IST 2016 C/SCA/1146/2010 ORDER
21. The question relating to jurisdiction of the Court in judicial review in a Departmental proceeding fell for consideration before this Court in M.B.Bijlani vs. Union of India and others reported in (2006) 5 SCC 88 wherein this Court held:
"It is true that the jurisdiction of the court in judicial review is limited. Disciplinary proceedings, however, being quasi- criminal in nature, there should be some evidence to prove the charge. Although the charges in a departmental proceeding are not required to be proved like a criminal trial i.e. beyond all reasonable doubt, we cannot lose sight of the fact that the enquiry officer performs a quasi-judicial function, who upon analysing the documents must arrive at a conclusion that there had been a preponderance of probability to prove the charges on the basis of materials on record. While doing so, he cannot take into consideration any irrelevant fact. He cannot refuse to consider the relevant facts. He cannot shift the burden of proof. He cannot reject the relevant testimony of the witnesses only on the basis of surmises and conjectures. He cannot enquire into the allegations with which the delinquent officer had not been charged with."
22. In the present case, the disciplinary authority failed to prove that the absence from duty was willful, no such finding has been given by the Inquiry Officer or the Appellate Authority. Though the appellant had taken a specific defence that he was prevented from attending duty by Shri P.Venkateswarlu, DCIO, Palanpur who prevented him to sign the attendance register and also brought on record 11 defence exhibits in support of his defence that he was prevented to sign the attendance register, this includes his letter dated 3rd October, 1995 addressed to Shri K.P.Jain, JD, SIB, Ahmedabad, receipts from STD/PCO office of Telephone calls dated 29th September, 1995, etc. but such defence and evidence were ignored and on the basis of irrelevant fact and surmises the Inquiry Officer held the appellant guilty.
23. Mr.P.Venkateswarlu, DCIO, Palanpur, who was the complainant and against whom appellant alleged bias refused to appear before the Inquiry Officer in spite of service of summons. Two other witnesses, Shri Jivrani and Shri L.N.Thakkar made no statement against the appellant, and one of them stated that he had no knowledge about absence of the appellant. Ignoring the aforesaid evidence, on the basis of surmises and conjectures, the Inquiry Officer held the charge proved."
Thus, what is discernible from the decision of the Supreme Court is that absence from duty without any application or prior permission may amount to unauthorized absence but if the absence is the result of compelling circumstances under which it was not possible to report or perform duty, then such absence cannot be held to be willful. The Supreme Court has taken the view that in a departmental Page 8 of 17 HC-NIC Page 8 of 17 Created On Thu Apr 07 00:48:40 IST 2016 C/SCA/1146/2010 ORDER proceeding if allegation of unauthorized absence from duty is made, the disciplinary authority is obliged to prove that the absence was willful, and in the absence of such finding, it will not amount to misconduct.
In the case in hand, although it has been very strenuously submitted that leave applications were filed, yet the excuse of mother's ailment does not inspire any confidence. The petitioner is a married man.
Mr.Mehta fairly submitted that the petitioner's wife could also have looked after the ailing mother, but being an illiterate lady, it was not possible. This explanation also is very unpalatable.
Mr.Mehta further submitted that his client has a younger brother who is mentally retarded and has to be kept in chains. There is nothing in this regard also on record except a mere bald assertion.
It appears that one application for leave without pay was filed on 2nd February 2005 for the period between 2nd February 2005 and 2nd March 2005. Second application was filed on 23rd February 2005 for the period between 3rd March 2005 and 31st March 2005. The third application was filed on 11th April 2005 for the period between 1st April 2005 and 30th April 2005. From 1st May 2005, there was no report of leave filed by the petitioner. This is evident from the show-cause notice dated 25th July 2005 (Annexure-RI, page 182).
The only evidence as regards the ailment of the mother is Page 9 of 17 HC-NIC Page 9 of 17 Created On Thu Apr 07 00:48:40 IST 2016 C/SCA/1146/2010 ORDER in the form of one medical certificate dated 10th August 2005 issued by one Dr.Pravin A.Dave, wherein it has been stated that the mother is suffering from constipation, arthritis and urinary problem. In the certificate, it has been stated that she was bedridden and required an attendant considering her age related problems.
In my view, whether the unauthorized absence could be termed as willful or due to compelling circumstances, is a question of fact and such question has to be decided having regard to the materials on record.
When the Inquiry Officer, in his report, has not believed the explanation offered by the petitioner and when the same was also not accepted by the disciplinary authority, then there is no reason for this Court, in exercise of its extraordinary jurisdiction under Article 226 of the Constitution of India, to take a different view.
In Lalit Popli vs. Canara Bank, (2006) 2 SCC 255, para 16 to 19, while considering the nature of proof required in a departmental enquiry on the scope of judicial review of the High Court under Article 226, the Supreme Court held as follows:
"16. It is fairly well settled that the approach and objective in criminal proceedings and the disciplinary proceedings are altogether distinct and different. In the disciplinary proceedings the preliminary question is whether the employee is guilty of such conduct as would merit action against him, whereas in criminal proceedings the question is whether the offences registered against him are established and if established what sentence should be imposed upon him. The standard of proof, the mode of enquiry and the rules governing the enquiry and trial are conceptually different. (see State of Rajasthan v. B.K. Meena). In case of disciplinary enquiry the technical rules of evidence have no application. The doctrine of proof beyond doubt has no application. Preponderance of probabilities and some material on record are necessary to arrive at the conclusion whether or not the delinquent has committed misconduct.Page 10 of 17
HC-NIC Page 10 of 17 Created On Thu Apr 07 00:48:40 IST 2016 C/SCA/1146/2010 ORDER
17. While exercising jurisdiction under Article 226 of the Constitution the High Court does not act as an Appellate Authority. Its jurisdiction is circumscribed by limits of judicial review to correct errors of law or procedural errors leading to manifest injustice or violation of principles of natural justice. Judicial review is not akin to adjudication of the case on merits as an Appellate Authority.
18. In B.C. Chaturvedi v. Union of India the scope of judicial review was indicated by stating that review by the court is of decision-making process and where the findings of the disciplinary authority are based on some evidence, the court or the tribunal cannot re-appreciate the evidence and substitute its own finding.
19. As observed in R.S. Saini v. State of Punjab in paras 16 and 17 the scope of interference is rather limited and has to be exercised within the circumscribed limits.
(2) In B.C. Chaturvedi v. Union of India, it was observed at SCC 762, para 18 as under:-
"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 imposed, or to shorten the litigation, it may itself, in exceptional and rare cases, impose appropriate punishment with cogent reasons in support thereof."
(3) In Ajit Kumar Nag v. G.M. (PJ), Indian Oil Corpn. Ltd. (three-Judge Bench), Thakker, J. speaking for the Bench held as under:- (SCC 776, para 11) "11. As far as acquittal of the appellant by a criminal court is concerned, in our opinion, the said order does not preclude the Corporation from taking an action if it is otherwise permissible. In our judgment, the law is fairly well settled. Acquittal by a criminal court would not debar an employer from exercising power in accordance with the Rules and Regulations in force. The two proceedings, criminal and departmental, are entirely different. They operate in different fields and have different objectives. Whereas the object of the criminal trial is to inflict appropriate punishment on the offender, the purpose of enquiry proceedings is to deal with the delinquent departmentally and to impose penalty in accordance with the service rules. In a criminal trial, incriminating statement made by the accused in certain circumstances or before certain officers is totally inadmissible in evidence. Such strict rules of evidence and procedure would not apply to departmental proceedings. The degree of proof which is necessary to order a conviction is different from the degree of proof necessary to record the commission of delinquency. The rule relating to appreciation of evidence in the two proceedings is also not similar. In criminal law, burden of proof is on the prosecution and unless the prosecution is able to prove the guilt of Page 11 of 17 HC-NIC Page 11 of 17 Created On Thu Apr 07 00:48:40 IST 2016 C/SCA/1146/2010 ORDER the accused beyond reasonable doubt, he cannot be convicted by a court of law. In a departmental enquiry, on the other hand, penalty can be imposed on the delinquent officer on a finding recorded on the basis of preponderance of probability. Acquittal of the appellant by a judicial Magistrate, therefore, does not ipso facto absolve him from the liability under the disciplinary jurisdiction of the Corporation, we are, therefore, unable to uphold the contention of the appellant that since he was acquitted by a criminal court, the impugned order dismissing him from service deserves to be quashed and set aside."
In the state of Bikaner and Jaipur, [(2011) 4 SCC 584], the Supreme Court made the following observations in paragraph No.7:-
"7. It is now well settled that the courts will not act as an appellate court and reassess the evidence led in the domestic enquiry, nor interfere on the ground that another view is possible on the material on record. If the enquiry has been fairly and properly held and the findings are based on evidence, the question of adequacy of the evidence or the reliable nature of the evidence will not be grounds for interfering with the findings in departmental enquiries. Therefore, courts will not interfere with findings of fact recorded in departmental enquiries, except where such findings are based on no evidence or where they are clearly perverse. The test to find out perversity is to see whether a tribunal acting reasonably could have arrived at such conclusion or findings, on the material on record. The courts will however interfere with the findings in disciplinary matters, if principles of natural justice or statutory regulations have been violated or if the order is found to be arbitrary, capricious, mala fide or based on extraneous considerations. (Vide B.C. Chaturvedi v. Union of India, Union of India v. G.Ganayutham, Bank of India v. Degala Suryanarayana and High Court of Judicature at Bombay. V. Shashikant S. Patil.)"
The Division Bench of this High Court has, in an unreported decision rendered in the matter of J.H.Joshi vs. State of Gujarat, (Special Civil Application No.5691/2002, decided on 10th May 2005), observed as under:
"The doctrine of proportionality and Wednesbury rule evolved in England in Council of Civil Services Union Vs. Minister for Civil Services (1983) 1 AC 768 and Associated Provincial Picture Houses Limited Vs. Wednesbury Corporation - 1948 2 All ER 680 have been applied by the Courts in India in various decisions. In Union of India Vs. C.G. Ganayutham - AIR 1997 SC 3387, the Supreme Court considered the ambit and scope of the doctrine of proportionality and Wednesbury rule in the light of various judicial pronouncements and laid down the following propositions:
"(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 Page 12 of 17 HC-NIC Page 12 of 17 Created On Thu Apr 07 00:48:40 IST 2016 C/SCA/1146/2010 ORDER 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 bonafide.
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 European Human Rights Convention (Contention) is not incorporated into English Law, the English Courts merely exercise a secondary judgement 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 judgement 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 are involved, is that the Courts/Tribunals will only play a secondary role while the primary judgement as to reasonableness will remain with the executive or administrative authority. The secondary judgement of the Court is to be based on Wednesbury the 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."
In Apparel Export Promotion Council vs. A.K.Chopra, (1999) 1 SCC 759, the Supreme Court reiterated the otherwise well settled principles of law on the scope of judicial review of disciplinary action taken by the employer and laid down the following propositions:-
Page 13 of 17HC-NIC Page 13 of 17 Created On Thu Apr 07 00:48:40 IST 2016 C/SCA/1146/2010 ORDER "It is a settled position that in departmental proceedings, the disciplinary authority is the sole judge of facts and in case an appeal is presented to the appellate authority, the appellate authority has also the power/and jurisdiction to reappreciate the evidence and come to its own conclusion, on facts, being the sole fact-finding authorities. Once findings of fact, based on appreciation of evidence are recorded, the High Court in writ jurisdiction may not normally interfere with those factual findings unless it finds that the recorded findings were based either on no evidence or that the findings were wholly perverse and/or legally untenable. The adequacy or inadequacy of the evidence is not permitted to be canvassed before the High Court. Since the High Court does not sit as an appellate authority over the factual findings recorded during departmental proceedings, while exercising the power of judicial review, the High Court cannot, normally speaking, substitute its own conclusion, with regard to the guilt of the delinquent, for that of the departmental authorities. Even in so far as imposition of penalty or punishment is concerned, unless the punishment or penalty imposed by the disciplinary or the departmental appellate authority, is either impermissible or such that it shocks the conscience of the High Court, it should not normally substitute its own opinion and impose some other punishment or penalty.
Further, it is a well-settled principle that even though judicial review of administrative action must remain flexible and its dimension not closed, yet the court, in exercise of the power of judicial review, is not concerned with the correctness of the findings of fact on the basis of which the orders are made so long as those findings are reasonably supported by evidence and have been arrived at through proceedings which cannot be faulted with for procedural illegalities or irregularities which vitiate the process by which the decision was arrived at. Judicial review, is directed not against the decision, but is confined to the examination of the decision-making process.
Judicial review, not being an appeal from a decision, but a review of the manner in which the decision was arrived at, the court, while exercising the power of judicial review, must remain conscious of the fact that if the decision has been arrived at by the administrative authority after following the principles established by law and the rules of natural justice and the individual has received a fair treatment to meet the case against him, the court cannot substitute its judgement for that of the administrative authority on a matter which fell squarely within the sphere of jurisdiction of that authority."
In Om Kumar vs. Union of India, AIR 2000 SC 3689, the Supreme Court traced the history of the principle of proportionality, referred to the propositions culled out in Ganayutham's case (supra), notice the decision of the House of Lords in R. vs. Chief Constable of Sussesc ex.p. International Trader's Ferry Ltd., (1999) 1 All ER 129, wherein the principles of Wednesbury and proportionality were almost Page 14 of 17 HC-NIC Page 14 of 17 Created On Thu Apr 07 00:48:40 IST 2016 C/SCA/1146/2010 ORDER equated and held that where the decision of an administrative authority is attacked being arbitrary, the principle of secondary review will have to be kept in mind. Paragraphs 28, 29 66 to 71 of this judgement which theortises the law on the subject are reproduced 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."
"29. The above principle of proportionality has been applied by the European Court to protect the rights guaranteed under the European Convention for the Protection of Human Rights and Fundamental Freedoms, 1950 and in particular, for considering whether restrictions imposed were restrictions which were 'necessary' - within Arts. 8 to 11 of the said Convention (corresponding to our Art. 19(1) and to find out whether the restrictions imposed on fundamental freedoms were more excessive than required. (Handyside V. UK (1976) 1 EHR p.737) Articles 2 and 5 of the Convention contain provisions similar to Art. 21 of our Constitution relating to life and liberty. The European Court has applied the principle of proportionality also to questions of discrimination under Art. 14 of the Convention (corresponding to Art. 14 of our Constitution). (See European Administrative Law by J.Schwaze, 1992. Pp.677-866)."
"66. It is clear from the above discussion that in India where administrative action is challenged under Art. 14 as being discriminatory, equals are treated unequally or unequals are treated equally, the question is for the constitutional Courts as primary reviewing Courts to consider correctness of the level of discrimination applied and whether it is excessive and whether it has a nexus with the objective intended to be achieved by the Administrator. Here the Court deals with the merits of the balancing action of the Administrator and is, in essence, applying 'proportionality' and is a primary reviewing authority."
"67. But where, an administrative action is challenged as 'arbitrary' under Art. 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 in to 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 Page 15 of 17 HC-NIC Page 15 of 17 Created On Thu Apr 07 00:48:40 IST 2016 C/SCA/1146/2010 ORDER at p.111 : (AIR 1991 SC 1153 at 1165), Venkatachaliah, J. (as he then was) pointed out that 'reasonableness' of the Administrator under Art. 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. 679-680: (1994 AIR SCW 3344 and at Pp. 3369-70: AIR 1996 SC 11); Indian Express Newspapers Vs. Union of India (1985) 1 SCC 641 at p.691 : (AIR 1986 SC 515 at Pp.542-43): Supreme Court Employees' Welfare Association V. Union of India (1989) 4 SCC 187 at p.241 : (AIR 1990 SC 334 at p.368: 1990 Lab IC 324 at p.358) and U.P. Financial Corporation V. GEM CAP (India) Pvt.Ltd. (1993) 2 SCC 299, at p.307:
(1993 SC 1435 at p.1439), while judging whether the administrative action is 'arbitrary' under Art. 14 (i.e. otherwise than being discriminatory), this Court has confined itself to a Wednesbury review always."
"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 Art.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 Art.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 rate cases where there has been long delay in the time taken by the disciplinary proceedings and in the time taken in the Courts, and (in) such extreme or rate cases can the Court substitute its own view as to the quantum of punishment."
In view of the law discussed aforesaid and the other materials on record, I am of the view that no case is made out for interference in exercise of my extraordinary jurisdiction under Article 226 of the Constitution of India.
Before I conclude, I may only say so far as the issue of voluntary retirement is concerned that the same pales into insignificance at this stage. The other side has seriously disputed the receipt of any fresh application from the petitioner in the format as asked for.
In any view of the matter, since I am not interfering with the order of compulsory retirement, there is no question of now looking into the plea of voluntary retirement. The Division Bench judgment of this Court in the case of Yogesh M.Vyas Page 16 of 17 HC-NIC Page 16 of 17 Created On Thu Apr 07 00:48:40 IST 2016 C/SCA/1146/2010 ORDER (supra) would also not help the petitioner as the facts were altogether different.
For the foregoing reasons, this petition fails and is hereby rejected.
(J.B.PARDIWALA, J.) MOIN Page 17 of 17 HC-NIC Page 17 of 17 Created On Thu Apr 07 00:48:40 IST 2016