Gujarat High Court
Surat Municipal Corporation vs Mahendra Gopalbhai Vasawala Decd Thru. ... on 10 January, 2020
Author: Sonia Gokani
Bench: Sonia Gokani
C/SCA/10107/2019 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 10107 of 2019
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SURAT MUNICIPAL CORPORATION
Versus
MAHENDRA GOPALBHAI VASAWALA DECD THRU. HEIR RAMILABEN
MAHENDRABHAI VASAWALA
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Appearance:
MR CJ VIN(978) for the Petitioner(s) No. 1
MR UT MISHRA(3605) for the Respondent(s) No. 1
NOTICE SERVED(4) for the Respondent(s) No. 2
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CORAM: HONOURABLE MS JUSTICE SONIA GOKANI
Date : 10/01/2020
ORAL ORDER
1 Present petition is preferred under Articles 226 and 227 of the Constitution of India by Surat Municipal Corporation. The petitioner herein, is before this Court, seeking following reliefs: "12. Petitioner therefore prays that:
i) Your Lordships may be pleased to issue a writ of mandamus or any other writ order or direction in the form of Mandamus or any other appropriate writ declaring the award dated 30062017 passed vide Exhibit 31 by Presiding Officer, labour Court, Surat in Reference (I) no.386 of 2000 produced at Annexure'K' as illegal, arbitrary, without jurisdiction and contrary to law and evidence and hence be quashed and set aside.
ii) Your Lordships may be pleased to issue a Page 1 of 33 Downloaded on : Sun Jun 14 11:06:11 IST 2020 C/SCA/10107/2019 ORDER writ of Mandamus or any other writ order or direction in the form of Mandamus or any other appropriate writ pending admission and final disposal of this petition respondent No.1 herself or through her agent, servant or any other person in her else be prevented from implementing and enforcing the award dated 3062017 passed vide Exhibit 31 by Presiding officer, labour Court, Surat in Reference (T) No.386 of 2000 produced at Annexure 'K'.
iii) Costs of this petition be awarded to the present petitioner.
iv) Any other and/or further relief/s that this Hon'ble Court may deem fit looking to the facts and circumstances of the case be awarded to the petitioner."
2 Facts leading to the present petition are as follows: 2.1 Respondent No.1 since deceased was an employee of the petitioner Corporation, which is a statutory body constituted under the Bombay Provincial Municipal Corporation Act, 1949 (" the BPMC Act"). The deceased respondent was employed in the Corporation for discharging his duties as Junior Clerk. His last posting was in South Zone Office at Udhna. He served for 08 years with the Corporation.
2.2 It is the say of the petitioner that the respondent stopped coming for work and, Page 2 of 33 Downloaded on : Sun Jun 14 11:06:11 IST 2020 C/SCA/10107/2019 ORDER therefore, the petitioner, after some time, had issued a memo on 15.07.1996. He when chose not to respond to the same, show cause notice came to be issued on 19.09.1996, which too was not responded,nor did he joined the duty. 2.3 The petitioner Corporation, therefore, issued a chargesheet for prolonged absence without intimation and for not responding to the memo or show cause notice dated 18.11.1996 and to the chargesheet too, served upon the respondent, when was not responded, a personal hearing was granted to the respondent on 21.12.1996, vide a communication dated 15.12.1996. Due to his absence on the date fixed by the Corporation, his services came to be terminated, as having abandoned services by willful negligence, on 10.01.1997. This was served by him through the personal messenger and an endorsement in lieu of the receipt was obtained. Thus, both the orders of termination and the endorsement of its delivery, are forming part of the record. An application was preferred against the order of termination Page 3 of 33 Downloaded on : Sun Jun 14 11:06:11 IST 2020 C/SCA/10107/2019 ORDER before the Standing Committee by the applicant. The Standing Committee did not entertain the application of the respondent No.1, which was treated as an appeal under section 56(4) of the BPMC Act. After three years from the date of termination, the same had been challenged by way of application dated 22.05.2000 before the Assistant Labour Commissioner ("the ALC" for short). The ALC referred the dispute to the Labour Court No.1 for adjudication under section 10(1) of the Industrial Disputes Act, 1947 ("the I.D. Act"
for short) and the same was registered as Reference (LCS) No.386 of 2000 and tried as Reference (T) No.386 of 2000.
2.4 It is the say of the petitioner that the applicant employee died on 28.01.2001 and the proceedings are to be abated on the demise of the employee. However, the same continued and after 07 years of death of the employee, the application dated 06.02.2008 was tendered to the labour Court by the wife of the deceased employee intimating the Court of the Page 4 of 33 Downloaded on : Sun Jun 14 11:06:11 IST 2020 C/SCA/10107/2019 ORDER death of her husband and she also had expressed a desire to be impleaded as party, as the heir of the deceased. Not only the delay was condoned, she was permitted to be continued as party to the dispute in place of her husband. The issue would need adjudication.
2.5 The Charter of Demand came to be filed by the wife of the deceased employee on 29.08.2012. Her stage of evidence also was closed. She did not choose to appear for deposition as a witness on 17.04.2015, which was reopened on 30.04.2015. The Labour Court, Surat, after framing the issues, determined the dispute. The award dated 30.06.2017 came to be passed, whereby the Court partly allowed the reference in favour of the heirs of the deceased employee. She was granted all benefits from 10.01.1997 till his death i.e. on 28.01.2001 with 30% backwages and all other retiral benefits with cost of Rs.5000/. The petitioner, therefore, is before this Court seeking abovementioned reliefs.Page 5 of 33 Downloaded on : Sun Jun 14 11:06:11 IST 2020 C/SCA/10107/2019 ORDER
3 This Court has heard learned advocate Mr.C.J.Vin for the Corporation. He has fervently argued before this Court that the Labour Court has fairly appreciated that the deceased employee cannot be represented by the legal heirs and the reference could not have been permitted to continue. Relief sought for by the employee was of personal nature. Therefore, upon the death of the employee, the proceedings ought to have been abated. It is further his say that once the provision of appeal had been provided under section 56 of the BPMC Act and when the appeal was turned down, the order in appeal could have been examined under the judicial review. The power of reviewing the order of the appellate authority or the statutory organization, where no second appeal is provided, have been in the High Court. The Labour Court has no jurisdiction to decide the dispute raised after rights of statutory appeal were exhausted. It is also emphasized that the dispute raised by the employee would not survive after his death, since the dispute is not Page 6 of 33 Downloaded on : Sun Jun 14 11:06:11 IST 2020 C/SCA/10107/2019 ORDER personal. The cause of action would lie with the disputant. The dispute ought not to have been proved by the personal knowledge of the employee. The evidence, by way of deposition of the employee, can assist in deciding the issues raised. The wife, since, had no personal knowledge, she could not depose and her ignorance should not have been held bad by the Court in granting relief.
3.1 Mr. C.J. Vin, learned advocate for the petitioner, has sought to rely on the following authorities: 3.1.1 B.C. Chaturvedi vs. Union of India, 1995(6) SCC 749. 3.1.2 Ranjit Thakur vs. Union of India, 1987(4) SCC 611. 3.1.3 Om Kumar vs. Union of India, 2001(2) SCC 386. 3.1.4 Nirmala Jhala vs. State of Gujarat, 2004(3) GLH 708. 4 Mr. U.T.Mishra, learned advocate appearing
for the heirs of the deceased respondent has strenuously argued before this Court that there Page 7 of 33 Downloaded on : Sun Jun 14 11:06:11 IST 2020 C/SCA/10107/2019 ORDER ought not to have been any challenge to the Reference itself, which is not the case in the instant case.
4.1 He has also argued further that the Court has struck a balance by granting only 30% of the backwages. If the respondent had approached belatedly, there is sufficient explanation, which has been given.
4.2 He has also relied on the decision of the Apex Court in the case of Krushnakant B. Parmar vs. Union of Indian and another, (2012) 3 SCC 178.
4.2.1 Relevant paragraph is reproduced as under: "21. 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. Venkateshwarlu, DCIO, Palanpur who prevented him to sign the attendance register and also brought on record 11 defence exhibits ni support of his defence that he was prevented to sign the attendance register, this includes his letter dated 3101995 addressed to Shri K.P. Jain, JD,SIB, Ahmedabad, receipt from STC/PCO office of telephone calls dated 29 91995, etc. but such defence and evidence were ignored and on the basis of irrelevant Page 8 of 33 Downloaded on : Sun Jun 14 11:06:11 IST 2020 C/SCA/10107/2019 ORDER fact and surmises the inquiry officer held the appellant guilty."
4.3 According to learned advocate for the respondent, the disciplinary authority, since, had failed to prove that the absence from duty was willful and, as no such finding had been given by the inquiry officer or the appellate authority, the jurisdiction of the judicial review is also limited. The charge in the departmental proceedings though are not required to be proved like criminal trial, beyond all reasonable doubts, the fact remains that the inquiry officer performed a quasi judicial function. He could not have taken into consideration irrelevant facts and material. Learned advocate for the respondent, therefore, has urged this Court not to interfere.
5 At the outset, first issue, on hearing the learned advocates on both the sides that arose for consideration is, as to whether the reference ought to have been made in matters like this before the Labour Court. Page 9 of 33 Downloaded on : Sun Jun 14 11:06:11 IST 2020 C/SCA/10107/2019 ORDER 6 This Court notices from the list of events that in the year 1996, the employee had stopped coming to the office to perform his duties and that was without intimation. In about 11 days time, a memo had been issued to the deceased employee for continuous absence. Nearly after 02 months, show cause notice has been issued to the employee on account of his absence. 7 The chargesheet was issued on 18.11.1996 to the petitioner on account of his continuous absence and on not responding to the memo or the chargesheet, this had been delivered to him personally on 21.12.1996, he still failed to respond to the same and did not resume his duties. Therefore, an order of terminating his services on the ground of "abandoning service by willful negligence" was passed on 10.01.1997. 7.1 The petitioner made an application to the Standing Committee, which is construed as an appeal under section 56(4) of the BPMC Act and such an application was turned down and, therefore, he raised the dispute before the ALC, Surat. It was renumbered as Reference Page 10 of 33 Downloaded on : Sun Jun 14 11:06:11 IST 2020 C/SCA/10107/2019 ORDER (LCS)No.386 of 2000. It is to be noted that the person was alive when the dispute had been raised after his appeal was entertained by the authority concerned. Apt would be to refer to section 56(4) of the Gujarat Provisional Municipal Corporation Act, 1949, where under the heading of imposition of penalties of Municipal offices and servants, 56(4) provides for any officer or servant, municipal officer or servant who is reduced, removed or dismissed by any authority other than the Corporation may, within one month of the communication to him of the order of reduction, removal or dismissal, appeal to the authority immediately superior to the authority, which imposed the penalty and the appellate authority may, after obtaining the remarks of the authority, which imposed the penalty, either confirms the order passed or substitutes for it such order, as it considers just, including an order for the imposition of some lesser penalty, and effect shall forthwith be given to any order passed by the Page 11 of 33 Downloaded on : Sun Jun 14 11:06:11 IST 2020 C/SCA/10107/2019 ORDER appellate authority which shall be conclusive : Provided that for the purposes of this subsection, the Standing Committee shall be deemed to be the authority immediately superior to the Commissioner and the Corporation shall be deemed to be the authority immediately superior to the Standing Committee.
8 It is not in dispute that the deceased employee had been already served upon the outcome of the departmental proceedings, whereby the order of termination of his service came to be passed on the ground of abandoning service by willful negligence. The appeal, as stipulated under the law, had been preferred by him and when the same had been negatived, he raised the dispute before the Assistant Labour Commissioner. He raised the dispute on 22.05.2020. The ALC on 28.08.2000 had referred the dispute for adjudication to the Labour Court, Surat in Reference (LCS) No.386 of 2000. The question raised by the petitioner before the Court is two folds. Firstly, there could not Page 12 of 33 Downloaded on : Sun Jun 14 11:06:11 IST 2020 C/SCA/10107/2019 ORDER have been any reference to the Labour Court against the ALC, even if, he erroneously or mistakenly approached the authority concerned as it was still under consideration and Secondly, the reference where the employee had passed away Could not have been maintained and since his heirs are brought on record,it is the ground, which has been vociferously objected to. 9 This petition is being allowed partly for the reasons to follow hereafter: 9.1 It is to be noted that the dispute had been raised after three years. The exact date of denial of acceding to the request in the appeal is not coming on record, but the Labour Court has repeatedly referred to the three years of delay in raising the disputes and in making reference to the ALC. On the strength of raising of such disputes, therefore, even if it is accepted that the dispute was raised after three years and, as the reference was again late by three years, the question that needs to be answered is as to whether, after once the appeal came to be rejected under Page 13 of 33 Downloaded on : Sun Jun 14 11:06:11 IST 2020 C/SCA/10107/2019 ORDER section 56(4) of the BMPC Act, the employee ought to have come straight before this Court in absence of any second appeal provided under the law.
9.2 In the opinion of this Court, even if it is accepted that there was no provision of second appeal, the action of the statutory authority, which, in the instant case, is Standing Committee, the challenge would always lie before the Labour Court, as there were various disputed questions raised and it was an alternative forum available to the party. If he had approached this Court directly on the ground of disputed question of facts, the matter could have been relegated to the concerned authority, as many of the aspects needed adjudication at the end of the trial Court.
9.3 Corollary to this is the fact that the death of the employee had occurred during the pendency of the reference being Reference LCS No.386 of 2000. The Reference is made on 28.08.2000, whereas the death of the employee Page 14 of 33 Downloaded on : Sun Jun 14 11:06:11 IST 2020 C/SCA/10107/2019 ORDER was on 28.01.2001. It is almost after 04 to 05 months of the Reference, that the person has passed away. So long as the right to sue survives, impleadment of legal heirs in the proceedings could not be challenged by the petitioner authority. The heirs, were joined after 07 years of death of the employee on 28.08.2008. It is to be noted that the petitioner has, at no point of time, during the pendency of the Reference, challenged the impleadment of the heirs in August, 2008. The contention raised before the Labour Court was negatived. It is to be noted, at this stage, that when the employee had questioned the action of termination from service and in the event of his contention being failed, the consequential benefits would be in terms of reinstatement with continuity and other service benefits. Everything, which will be translated monetarily shall have to be given as benefit to the family of the deceased. The challenge in respect of the alleged illegality in the departmental proceedings, if upheld, Page 15 of 33 Downloaded on : Sun Jun 14 11:06:11 IST 2020 C/SCA/10107/2019 ORDER would naturally act as advantageous position for the employee and benefits, which are monetarily available to the employee, will naturally be available to the heirs. In the instant case, therefore, the contention, that the Reference could not have been continued on the demise of the employee, is not found sustainable.
9.4 This brings this Court to the aspect of merit, which has been held in favour of the employee, where the Court below has chosen not to uphold the version of the petitioner Corporation and in fact, has held that the employee was suffering from the mental illness. as he was under huge financial losses, which affected his physical and mental health and, therefore, had requested through the office bearers of the Union, which had not been permitted by the petitioner. He was, therefore, unable to defend himself in the departmental proceedings. Some of the papers of psychiatrist had been also produced before the Corporation, which has chosen not to Page 16 of 33 Downloaded on : Sun Jun 14 11:06:11 IST 2020 C/SCA/10107/2019 ORDER accept the same. The wife had also, in her crossexamination in the departmental proceedings, produced the papers of the treatment of psychiatrist, which had not been accepted, although, it has been insisted on the part of the petitioner Corporation that the departmental proceedings had been conducted, as required under the law. In absence of any reply to the memo, show cause notice and also to the chargesheet, the only recourse was to bring an end to his service. It is the consistent stand on the part of the petitioner Corporation that no papers of psychiatrist had been received. It was only an afterthought on the part of the wife. 9.5 According to the respondent's version, at the time of passing the final order of terminating the service of the respondent on 10.01.1997, the papers, which have been taken into consideration were of the Resolution No.144 of the General Assembly dated 12.08.1984, the powers delegated by the D.P order dated 16.04.1991 and the chargesheet Page 17 of 33 Downloaded on : Sun Jun 14 11:06:11 IST 2020 C/SCA/10107/2019 ORDER laid against the deceased employee on 08.11.1996. It is emphasized that there had been no report of the inquiry officer nor were any procedures followed and, therefore, the Court concerned had rightly held that the action on the part of the petitioner Corporation deserves interference. 9.6 On factual aspects, when the authority decides anything on the strength of the material produced before it, unless the Court finds patent illegality or notices the facts having been truncated leading to gross injustice or the trial Court having acted beyond its jurisdiction, ordinarily, no interference is desirable.
9.7 Moreover, the order of termination of the deceased employee speaks of only two documents, the resolution of General Assembly and the chargesheet laid against the respondent. On the basis of this, the trial Court has chosen to conclude against the petitioner Corporation. If this Court is in a position to arrive at a conclusion other than, Page 18 of 33 Downloaded on : Sun Jun 14 11:06:11 IST 2020 C/SCA/10107/2019 ORDER which has been arrived at by the trial Court, on the strength of the very material available before this Court, this Court is ordinarily not to interfere with the order of the trial Court unless it finds that the trial Court has not acted within its bounds.
9.8 Undoubtedly, there had been belated reference by three years after the death of the deceased employee. The wife of the employee had been impleaded as the party to the proceedings after 07 years and she raised the claim 04 years thereafter. The Court below has struck a balance on having found that the termination had come without aptly following the rules and the ideal course, ought to have been of relegating the parties to the disciplinary authority for it to decide the punishment to be accorded. However, in wake of the death of the employee and, as much time had elapsed, the trial Court, following the provision of labour Law which permits interference in the punishment and also various decisions of the Apex Court in this Page 19 of 33 Downloaded on : Sun Jun 14 11:06:11 IST 2020 C/SCA/10107/2019 ORDER regard has chosen to make change in the punishment.
9.9 Apt would it be to refer to section 11A, which is worthwhile to be reproduced as under: "11A.Powers of Labour Courts, Tribunals and National Tribunals to give appropriate relief in case of discharge or dismissal of workmen. Where an industrial dispute relating to the discharge or dismissal of a workman has been referred to a Labour Court, Tribunal or National Tribunal for adjudication and, in the course of the adjudication proceedings, the Labour Court, Tribunal or National Tribunal, as the case may be, is satisfied that the order of discharge or dismissal was not justified, it may, by its award, set aside the order of discharge or dismissal and direct reinstatement of the workman on such terms and conditions, if any, as it thinks fit, or give such other relief to the workman including the award of any lesser punishment in lieu of discharge or dismissal as the circumstances of the case may require: Provided that in any proceeding under this section the Labour Court, Tribunal or National Tribunal, as the case may be, shall rely only on the materials on record and shall not take any fresh evidence in relation to the matter.]"
10 This provision has been added with effect from 15.12.1971 giving the powers to the Labour Court, Tribunal and the National Tribunal to give appropriate relief in cases of discharge or dismissal of the workman. The Courts, time and Page 20 of 33 Downloaded on : Sun Jun 14 11:06:11 IST 2020 C/SCA/10107/2019 ORDER again, have held and observed that the power of interference with the quantum of punishment is extremely vital to be exercised cautiously where the relevant factors are not taken into consideration or in an appropriate case. 10.1 It will be necessary to refer to the decision of Sultan Sadik vs Sanjay Raj Subba And Ors, AIR 2003 SC 1377 where the Labour Court, Industrial Court or the National Tribunal as the case may be, are obliged to rely on the material on the record and not to take any fresh evidence in relation to the matter. If they are satisfied that the order of discharge or dismissal was not justified, it may set aside the order and order reinstatement on such terms and conditions, as it thinks fit or give such other relief including award of lesser punishment, as the circumstances of the case may require. 10.2 Although labour Court has wide and explicit statutory powers to interfere in the quantum of punishment even under Article 226 of the Constitution of India, such powers are Page 21 of 33 Downloaded on : Sun Jun 14 11:06:11 IST 2020 C/SCA/10107/2019 ORDER sparingly and exceptionally permitted. The Punjab National Bank and others vs. Kunj Behari Mishra, 1998(7) SCC 84, has decided the final outcome. In the decision rendered by the Apex Court in the case of B.C. Chaturvedi (supra) there were various questions with regard to the departmental proceedings raised before the Apex Court, the question that was also before the Court was whether the Tribunal was justified in interfering with the punishment imposed by the disciplinary authority and the Constitution Bench held that with regard to the gravity of misconduct, the punishing authority had power and jurisdiction to impose punishment. It was not open for the High Court to review the same under Article 226 of the Constitution of India. Once the Court rules that there was nothing to reach to the conclusion, it became unassailable. This Authority also directs the High Court not to exercise the powers of judicial review and observe a restraint in exercise of powers under Article 226 of the Constitution. The Page 22 of 33 Downloaded on : Sun Jun 14 11:06:11 IST 2020 C/SCA/10107/2019 ORDER High Court's view of recourse to appropriate punishment is also not permissible, because it does not have the powers, but the restraint is necessary. The Court also has referred to the amendment in section 11A of the Industrial Disputes Act, 1947, which confers the power even on a Labour Court or the Industrial Court because of the prevalence of unfair labour practice. The Court held that in any question of appropriate arrangement in service matters relating to the Government employees or employees of public Corporation, it would not be justified in giving much weight to the decision of the employer on the question of appropriate punishment in service matters. As strict office discipline is maintained by public servant, in industrial sector also the discipline has to be maintained. Thus, there is no inherent reason for disallowing. According to the Apex Court, the application of judicial mind to the question of proportionality of punishment while exercising the powers under Article 226 of the Page 23 of 33 Downloaded on : Sun Jun 14 11:06:11 IST 2020 C/SCA/10107/2019 ORDER Constitution of India, is the imposition of limitation while exercising such powers and the Court's interference is permissible only when the punishment and penalty is shocking. 10.3 In the case of Ranjit Thakur (supra), it was a matter of proceeding of the Court Martial, which was alleged to have been vitiated by noncompliance of the mandate. The Apex Court held in relation to the judicial review as under: "9. Judicial review generally speaking, is not directed against a decision, but is directed against the "decision making process". The question of the choice and quantum of punishment is within the jurisdiction and discretion of the CourtMartial. But the 523 sentence has to suit the offence and the offender. It should not be A 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 B logic, then the sentence would not be immune from correction. Irrationality and perversity are recognised grounds of judicial review. In Council of Civil Service Unions v. Minister for the Civil Service, [1984] 3 Weekly Law Reports 1174 (HL) Lord Deplock said:
"... Judicial Review has I think developed to Page 24 of 33 Downloaded on : Sun Jun 14 11:06:11 IST 2020 C/SCA/10107/2019 ORDER a stage today when without reiterating any analysis of the steps by which the development has come about, one can conveniently classify under three heads the grounds upon which administrative action is subject to control by judicial review. The first ground l would call 'illegality'. the second irrationality' and the third 'procedural impropriety'. That 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' which is recognised in the administrative law of several of our fellow members of the European Economic Community ............................ E In BhagatRam v. State of Himachal Pradesh, A.I.R. 1983 SC 454 this Court held:
"It is equally true that the penalty imposed must be commensurate with the gravity of the misconduct and that any penalty disproportionate to the gravity of the misconduct would be violative of Article 14 of the Constitution.
The point to note, and emphasise is that all powers have legal limits.
In the present case the punishment is so strikingly disproportionate as to call for and justify interference. It cannot be allowed to remain uncorrected in judicial review."
10.4 In the case of Om Kumar and others(supra), the Court has discussed the doctrine of proportionality at the time of imposing the punishment. Relevant paragraphs are reproduced as under: Page 25 of 33 Downloaded on : Sun Jun 14 11:06:11 IST 2020 C/SCA/10107/2019 ORDER "I (a) Wednesbury principle:
Lord Greene said in 1948 in the Wednesbury case 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 other of the following conditions were satisfiednamely 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 UK and in India to judge the validity of administrative action. It is equally well known that in 1983, Lord Diplock in Council for Civil Services Union v. Minister of Civil Services, (1983) 1 AC 768 (called the GCHQ case) summarised the principles of judicial review of administrative action as based upon one or other of the followingviz. Illegality, procedural irregularity and irrationality. He, however, opined that 'proportionality' was a 'future possibility.'
(b) Proportionality:
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 while judging the validity of administrative action. But even long before that, the Indian Supreme Court had applied the principle of 'proportionality' to legislative action since 1950, as stated in detail below."
xxx xxx xxx (I) From Wednesbury to strict scrutiny or proportionality:
The development of the principle of 'strict Scrutiny" or 'proportionality' in Page 26 of 33 Downloaded on : Sun Jun 14 11:06:11 IST 2020 C/SCA/10107/2019 ORDER Administrative Law in England is, however, recent. Administrative action was traditionally being tested on Wednesbury grounds. But in the last few years, administrative action affecting the freedom of expression or liberty has been declared invalid in several cases applying the principle of 'strict scrutiny'. In the case of these freedoms, Wednesbury principles are no longer applied. The Courts in England could not expressly apply proportionality in the absence of the Convention but tried to safeguard the rights zealously by treating the said rights as basic to the Common Law and the Courts then applied the strict scrutiny test. In the Scatcher Case Alt. General v. Guardian Newspapers Ltd., (No.2) (1990) 1 AC 109 (at pp. 283284), Lord Goff stated that there was no inconsistency between the Convention and the Common Law. In Derbyshire Country Council v. Times Newspapers Ltd., (1993) AC 534, Lord Keith treated freedom of expression as part of Common Law, Recently, in R v. Secretary of State for Home Department, Ex P. Simms, [1999] 3 All ER 400 (H.L.), 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 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 reemphasised in R v. Lord Saville Ex. pt., [1999] 4 All ER 860 870, 872 CCA. 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.
(ii) Brind and proportionality: Primary and Secondary review:
However, the principle of 'Strict Scrutiny' or 'proportionality' and primary review came Page 27 of 33 Downloaded on : Sun Jun 14 11:06:11 IST 2020 C/SCA/10107/2019 ORDER to be explained in R v. Secretary of State for the Home Department, ex. P. Brind, (1991) 1 A.C. 696. That case related to directions given by the Home Secretary under the Broadcasting Act, 1981 requiring BBC and IBA to refrain from broadcasting certain matters through persons who represented organisations which were prescribed under legislation concerning the prevention of terrorism. The extent of prohibition was linked with the direct statement made by the members of the organisations. It did not however, for example, preclude the broadcasting by such persons through the medium of a film, provided there was a 'voiceover' account, paraphrasing that they said. The applicant's claim was based directly on the European Convention of Human Rights. Lord Bridge noticed that the Convention rights were not still expressly engrafted into English Law but stated that freedom of expression was.basic to the Common Law and that, even in the absence of the Convention, English Courts could go into the question (See p. 748749).
"........ Whether the Secretary of State, in the exercise of his discretion could reasonably impose the restriction he has imposed on the broadcasting organisations"
and that the Courts were "not perfectly entitled to start from the premise that any restriction of the right to freedom of expression requires to be justified and nothing less than an important public interest will be sufficient to justify it." Lord Templeman also said in the above case that the Courts could go into the question whether a reasonable minister could reasonably have concluded that the interference with this freedom was justifiable. He said that 'in terms of the Convention' any such interference must be both necessary and proportionate"
xxx xxx xxx Proportionality and Punishments in Service Page 28 of 33 Downloaded on : Sun Jun 14 11:06:11 IST 2020 C/SCA/10107/2019 ORDER Law:
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 the order of punishment is questioned under Article 14.
70. In this context, we shall only refer to these cases. In Ranjit Thakur v. Union of India, [1987] 4 SCC 611, this Court referred to 'proportionality' in the quantum of punishment but the Court observed that the punishment was 'shockingly' disproportionate to the misconduct proved. In B.C. Chaturvedi v. Union of India, [1995] 6 SCC 749, this Court stated that the court will not interfere unless the punishment awards was one which shocked the conscience of the Court. Even then, the Court would remit the matter back to the authority and would not normally substitute one punishment for the other. However, in rare situations, the Court could award an alternative penalty. It was also so stated in Ganayutham.
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 Page 29 of 33 Downloaded on : Sun Jun 14 11:06:11 IST 2020 C/SCA/10107/2019 ORDER punishment."
10.5 In the case of Nirmala J. Jhala (supra), this Court was considering the power of judicial review under Article 226 to hold that judicial review is not an appeal from the decision, but review of the matter, in which the decision was made. It is meant that an individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the eye of the Court. The Court held that the disciplinary proceedings is not a criminal trial and the scope of proof is of probabilities and the High Court's decision to sit in appeal other than the decision of Apex Court or Tribunal, therefore, whether there are some relevant material, which the authority has accepted, in which they may support the conclusion that the office is guilty in the function of deciding in findings of the High Court which exercises judicial review, even if some of the findings is found irrelevant or extraneous. Page 30 of 33 Downloaded on : Sun Jun 14 11:06:11 IST 2020 C/SCA/10107/2019 ORDER 10.6 Relevant paragraphs of the decision are reproduced as under: "49. From the above decisions, following legal principles can be culled out:
(i) A disciplinary proceeding is not a criminal trial. The standard of proof required is that of preponderance of probability and not proof beyond reasonable doubt.
(ii) The High Court cannot sit in appeal over the decision of the domestic Tribunal.
Therefore, where there are some relevant materials, which the authority has accepted and which material may reasonably support the conclusion that the officer is guilty, it is not the function of the High Court exercising its jurisdiction under Art.226 of the Constitution of India to review the materials and to arrive at an independent finding on the materials.
(iii) If the inquiry is properly held, the question of adequacy or reliability of evidence cannot be gone into by the High Court. High Court cannot interfere with th penalty if the conclusion of the competent authority is based on evidence, even if some of it is found to be irrelevant or extraneous to the matter.
(iv) In case of disciplinary inquiry, technical rules of evidence have no application.
(v) The only consideration that Court has in its judicial review is to consider whether the conclusion is based on evidence and supports the findings or whether the conclusion is based on no evidence. To put it differently, the High Court can interfere if the findings are perverse and are not supported by evidence on record or the findings recorded at the domestic trial are such to which no reasonably prudent person would have ever reached." 10.7 Reference is also made of the decision of the Apex Court Krushnakant B. Parmar Page 31 of 33 Downloaded on : Sun Jun 14 11:06:11 IST 2020 C/SCA/10107/2019 ORDER (supra), at this stage where it was observed that there was a long lapse of period from the time the departmental proceedings had been conducted till the matter reached to the Apex Court. The Court deemed it appropriate to substitute the penalty. This of course,was considered to be an exceptional circumstance where the Court is expected to interfere. 11 As can be noted from the discussion above, the Labour Court has held against the petitioner for not having found the departmental proceedings having been proceeded with, as required under the law and has chosen to substitute the punishment. It is not the case where it has allowed the deceased employee, who was otherwise found to be absent without affecting his right to receive the monetary benefit, while granting all the benefits, it has given only 30% of the wages to the deceased. 12 The Court below, of course, has not regarded the three years of delay in making the reference, which is from 10.01.1997 to 22.05.2000. A balance would be struck, if the Page 32 of 33 Downloaded on : Sun Jun 14 11:06:11 IST 2020 C/SCA/10107/2019 ORDER period between 10.01.1997 to 22.05.2000 is treated as dies non and permit the rest of the award to continue.
13 Petition is, accordingly, disposed of.
(MS. SONIA GOKANI, J. ) SUDHIR Page 33 of 33 Downloaded on : Sun Jun 14 11:06:11 IST 2020