Gandhinagar District Panchayat & vs Bahercharbhai Fatabhai Patel & on 12 April, 2016

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Gujarat High Court

Gandhinagar District Panchayat & vs Bahercharbhai Fatabhai Patel & on 12 April, 2016

HC-NIC Page 1 of 17 Created On Tue Apr 19 00:10:14 IST 2016 C/SCA/10232/2014 JUDGMENT 1 By this application under Article 227 of the Constitution of India, the petitioners have prayed for the following reliefs:

"11 A. Be pleased to admit the present Special Civil Application;

B. Be pleased to allow this Special Civil Application by way of passing appropriate orders, writ, mandamus or writ of certiorari or directions quashing and setting aside the order dated 2.12.13 passed by the Hon'ble Gujarat Civil Service Tribunal at Gandhinagar in Appeal No.41/12 quashing and setting aside the dismissal order passed by the petitioners against respnt. no.1 and imposing a penalty of stoppage of two increments with future effect annexed as AnnexureJ in the interest of justice.

C. Pending the admission, final hearing and disposal of the present Special Civil Application be pleased to stay the implementation, execution and operation of the order dated 2.12.13 passed by the Hon'ble Gujarat Civil Service Tribunal at Gandhinagar in Appeal No.41/12 quashing and setting aside the dismissal order passed by the petitioners against respndt. no.1 and imposing a penalty of stoppage of two increments with future effect annexed at AnnexureJ in the interest of justice.

D. Be pleased to call for the record of case bearing Appeal No.41/12 from Hon'ble Gujarat Civil Service Tribunal at Gandhinagar.

E. Be pleased to pass such other and further orders as the nature of the case may be required and the Honourable Court may deem thought fit to pass such order."

2 The facts of this case may be summarized as under:

2.1 The petitioner No.1 is a body duly constituted under the provisions of the Gujarat Panchayat Act, 1993. This petition is filed through the District Development Officer and Deputy District Development Officer respectively.

2.2 The respondent No.1 was an employee of the Gandhinagar District Panchayat and was serving in the cadre of the TalaticumMantri. The respondent No.1 joined the service of the Gandhinagar District Panchayat on 31st April, 1991. The respondent No.1 was posted at the Page 2 of 17 HC-NIC Page 2 of 17 Created On Tue Apr 19 00:10:14 IST 2016 C/SCA/10232/2014 JUDGMENT Karai Gram Panchayat as the TalaticumMantri and performed duties between 24th December, 1996 and 29th December, 2004. The District Collector, Gandhinagar, during her inspection of the Karai Gram Panchayat, on 21st September, 2004, noticed tampering with the revenue records. The District Collector noticed that the respondent No.1 had fradulently deleted/interpolated the phrase "new tenure". It was also noticed that the respondent No.1 had tampered with the village form No.7/12 unauthorizedly.

2.3 The District Collector, Mehsana addressed a detailed letter dated 14th June, 2005 to the District Development Officer to initiate an appropriate disciplinary action for the alleged gross misconduct on the part of the respondent No.1 in tampering with the revenue record.

2.4 A departmental chargesheet was issued to the respondent No.1 by the Deputy District Development Officer, Gandhinagar District Panchayat as a disciplinary authority. An Inquiry Officer was appointed and a regular department inquiry was conducted.

2.5 The Inquiry Officer, in his report dated 18th August, 2008, stated that the charges of tampering with the revenue record of the village Karai with regard to the survey Nos.86, 123, 138, 139, 141/1 and 142/2 were held to be established.

2.6 The disciplinary authority thereafter issued a show cause notice calling upon the respondent no.1 to show cause as regards punishment.

2.7 Thereafter, an order of dismissal from service came to be passed dated 6th September, 2011. An appeal was preferred before the appellate authority, and the appeal also came to be dismissed vide order dated Page 3 of 17 HC-NIC Page 3 of 17 Created On Tue Apr 19 00:10:14 IST 2016 C/SCA/10232/2014 JUDGMENT 13th February, 2012.

2.8 The respondent No.1, being dissatisfied with the orders passed by the authorities dismissing him from service, challenged the same before the Gujarat Civil Service Tribunal at Gandhinagar by filing an appeal No.41 of 2012. Vide order dated 2nd December, 2013, the Tribunal modified the order by quashing the order of dismissal from service and substituting the same with a penalty of stoppage of two increments with future effect.

2.9 Being dissatisfied, the Panchayat has come up with this petition.

3 Mr. Munshaw, the learned counsel appearing for the petitioners vehemently submitted that the Tribunal committed a serious error in modifying the order of penalty. He submitted that having regard to the serious nature of misconduct, the Tribunal should not have disturbed the order of dismissal.

4 Mr. Munshaw submitted that there was no good reason for the Tribunal to substitute the order of dismissal with that of withholding of two increments with future effect. He submitted that the reasonings assigned by the Tribunal are not tenable in law. He, therefore, prays that there being merit in this petition, the same be allowed and the impugned order be quashed.

5 On the other hand, this petition has been vehemently opposed by Mr. Gaurav Mehta, the learned counsel appearing for the respondent No.1. He submitted that no error, not to speak of any error of law could be said to have been committed by the Tribunal, warranting any interference by this Court in exercise of its supervisory jurisdiction under Article 227 of the Constitution of India.

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HC-NIC Page 4 of 17 Created On Tue Apr 19 00:10:14 IST 2016 C/SCA/10232/2014 JUDGMENT 6 Mr. Mehta submitted that what was proposed by the disciplinary authority by way of penalty was the withholding of the increments, but the Gujarat Panchayat Service Selection Board upon consultation advised to impose punishment of dismissal from service.

7 Mr. Mehta submitted that the disciplinary authority ought not to have accepted the advice of the Board mechanically, and if at all the disciplinary authority wanted to act in accordance with the advice, then a copy of the opinion of the Board should have been provided to the respondent No.1 so that he could have met with the same.

8 Mr. Mehta submitted that there being no merit in this petition, the same be rejected.

9 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 Tribunal committed any error in passing the impugned order.

10 Let me first look into the rules called "the Gujarat Panchayat Service (Discipline and Appeal) Rules, 1997".

11 Rule 6 provides for the penalties:

"6. Penalties - The following penalties may, for good and sufficient reasons, and is hereinafter provided to imposed on a member of the Panchayat Service, namely: (1) Withholding of increments or promotions.

(2) Recovery from pay of the whole or part of any pecuniary loss caused to the Panchayat by negligence or breach of orders.

Page 5 of 17

HC-NIC Page 5 of 17 Created On Tue Apr 19 00:10:14 IST 2016 C/SCA/10232/2014 JUDGMENT (2A) Censure (3) Reduction in rank including reduction to a lower post or timescale or to a lower stage in a timescale.

         (4)      Compulsory retirement.

         (5)      Removal from service not disqualifying for future employment.

         (6)     Dismissal from service which shall ordinarily be a disqualification  
         for future employment.

Explanation: The following shall not amount to a penalty within the meaning of this rule.

(i) Withholding of increments of a member of the panchayat Service for failure to pass a departmental or language examination in accordance with the rules or orders governing the service to which he belongs or the post which he for the time being holds or the terms governing his appointment.

(ii) Stoppage at the efficiency bar in the timescale of pay on the ground of his unfitness to cross the bar.

(iii) Non promotion of a member of the panchayat service, after consideration of his case to a post or grade to which he is eligble, on administrative grounds unconnected with his conduct.

(iv) Reversion of a member of panchayat service appointed on probation to another service grade or post, during or at the end of the period of probation to his permanent service, grade or post, in accordance with the terms of his appointment to the rules or under governing such probation.

(vi)(a) Termination of the services of a member of the panchayat service appointed on probation during or at the end of the period of probation in accordance with the terms of appointment or the rules and orders governing such probation.

(b) Termination of the service of a member of the Panchayat Service employed under and agreement in accordance with the terms of such agreement.

(vii) Compulsory retirement of a member or a panchayat services in accordance with the provisions relating to his superannuation or retirement in the panchayat service and not on ground of his conduct."





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HC-NIC                                     Page 6 of 17      Created On Tue Apr 19 00:10:14 IST 2016
                   C/SCA/10232/2014                                                  JUDGMENT




         12     Rule 8 provides the procedure for imposing penalties.

         13     Rule 8 (12)(a) provides that whenever it is necessary to consult

the Board in accordance with the Rules, the Disciplinary Authority shall forward the record of the inquiry for the purpose of consultation and after taking into consideration, the advice given by the Board shall determine what penalty should be imposed on the person charged.

14 In the entire rules, nowhere it is provided that the delinquent is entitled to a copy of the opinion or advice given by the Board to the Disciplinary Authority. Therefore, there is no question of providing the same to the respondent No.1, as argued by the learned counsel appearing for the respondent No.1.

15 I am at all not convinced with the reasonings assigned by the Tribunal. First, the Tribunal should not have disturbed the discretion, which is vested with the Disciplinary Authority including the Appellate Authority so far as the quantum of punishment is concerned. Despite there being thumping evidence on record regarding tampering with the revenue record, the Tribunal, in the impugned order, observed that the Government had not been put to any financial loss on account of the misconduct alleged to have been committed by the respondent No.1. An absolute extraneous consideration weighed with the Tribunal which resulted in a serious miscarriage of justice or if I may say so a mockery of justice. When the rule itself provides for the consultation with the Board and if the Board has expressed its opinion and has given an advice, then it is always open for the disciplinary authority to act on the same.

16 Let me assume for the moment that the disciplinary authority acted on the advice of the Board, that by itself, would not amount to Page 7 of 17 HC-NIC Page 7 of 17 Created On Tue Apr 19 00:10:14 IST 2016 C/SCA/10232/2014 JUDGMENT abdication of the power so far as the imposition of penalty is concerned.

17 I would like to remind the Tribunal of the position of law.

18 In the matter of Shriji Vidyalaya and another v. Patel Anil Kumar Lallubhai and another, reported in (1998) 9 SCC 561, observed in paras 3, 4 and 7 as under:

"3. The Tribunal while deciding the issue found that some of the charges were proved. However, it went further and reappreciated the evidence as if it was sitting in appeal and reversed the findings given on other charges. Ultimately, the Tribunal substituted the punishment of dismissal by reducing two increments for a period of one year. The High Court also declined to interfere with the order of the Tribunal. Under these circumstances, the present appeal has been filed by special leave.

4. Learned senior counsel appearing for the appellants submitted that the Tribunal exceeded its review jurisdiction and the power to award appropriate punishment vests normally with the management and the Tribunal cannot exercise that power. According to him the High Court failed to appreciate. He further contended that the Tribunal has no jurisdiction to reduce or award lesser punishment substituting its own punishment in the place of punishment given by the Disciplinary Authority.

7. This Court has consistently held that the tribunal/court normally cannot substitute its punishment in the place of punishment given by the disciplinary authority vide Union of India v. Parma Nanda, and B. C. Chaturvedi v. Union of India. Applying the said principle, we allow the appeal and set aside the order of the High Court which confirmed the order of the Tribunal. No costs."

19 In the matter of B.C.Chaturvedi v/s. Union of India and others, reported in (1995)6 SCC 749, the Supreme Court in paragraphs 12, 17 and 18 held as under:

"12. Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. Power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that Page 8 of 17 HC-NIC Page 8 of 17 Created On Tue Apr 19 00:10:14 IST 2016 C/SCA/10232/2014 JUDGMENT the conclusion which the authority reaches is necessarily correct in the eye of the Court. When an inquiry is conducted on charges of misconduct by a public servant, the Court/ Tribunal is concerned to determine whether the inquiry was held by a competent officer or whether rules of natural justice are complied with. Whether the findings or conclusions are based on some evidence, the authority entrusted with the power to hold inquiry has jurisdiction, power and authority to reach a finding of fact or conclusion. But that finding must be based on some evidence. Neither the technical rules of Evidence Act nor of proof of fact or evidence as defined therein, apply to disciplinary proceeding. When the authority accepts that evidence and conclusion receives support therefrom, the disciplinary authority is entitled to hold that the delinquent officer is guilty of the charge. The Court/Tribunal in its power of judicial review does not act as appellate authority to reappreciate the evidence and to arrive at its own independent findings on the evidence. The Court/Tribunal may interfere where the authority held the proceedings against the delinquent officer in a manner inconsistent with the rules of natural justice or in violation of statutory rules prescribing the mode of inquiry or whether the conclusion or finding reached by the disciplinary authority is based on no evidence. If the conclusion or finding be such as no reasonable person would have ever reached, the Court/Tribunal may interfere with the conclusion or the finding, and mould the relief so as to make it appropriate to the facts of each case.

17. The next question is whether the Tribunal was justified in interfering with the punishment imposed by the disciplinary authority. A Constitution Bench of this Court in State of Orissa v. Bidyabhushan Mohapatra held that having regard to the gravity of the established misconduct, the punishing authority had the power and jurisdiction to impose punishment. The penalty was not open to review by the High Court under Article 226. If the High Court reached a finding that there was some evidence to reach the conclusion, it became unassessable. The order of the Governor who had jurisdiction and unrestricted power to determine the appropriate punishment was final. The High Court had no jurisdiction to direct the Governor to review the penalty. It was further held that if the order was supported on any finding as to substantial misconduct for which punishment "can lawfully be imposed", it was not for the Court to consider whether that ground alone would have weighed with the authority in dismissing the public servant. The Court had no jurisdiction, if the findings prima facie made out a case of misconduct, to direct the Governor to reconsider the order of penalty. This view was reiterated in Union of India v. Sardar Bahadur. It is true that in Bhagat Ram v. State of Himachal Pradesh, a Bench of two Judge of this Court, while holding that the High Court did not function as a court of appeal, concluded that when the finding was utterly perverse, the High Court could always interfere with the same. In that case, the finding was that the appellant was to supervise felling of the trees which were not hammer marked. The Government had Page 9 of 17 HC-NIC Page 9 of 17 Created On Tue Apr 19 00:10:14 IST 2016 C/SCA/10232/2014 JUDGMENT recovered from the contractor the loss caused to it by illicit felling of trees. Under those circumstances, this Court held that the finding of guilt was perverse and unsupported by evidence. The ratio, therefore, is not an authority to conclude that in every case the Court/Tribunal is empowered to interfere with the punishment imposed by the disciplinary authority. In Rangaswami v. State of Tamil Nadu, a Bench of three Judges of this Court, while considering the power to interfere with the order of punishment, held that this Court, while exercising the jurisdiction under Article 136 of the Constitution, is empowered to alter or interfere with the penalty; and the Tribunal had no power to substitute its own discretion for that of the authority. It would be seen that this Court did not appear to have intended to lay down that in no case, the High Court/Tribunal has the power to alter the penalty imposed by the disciplinary or the appellate authority. The controversy was again canvassed in State Bank of India's case, where the Court elaborately reviewed the case law on the scope of judicial review and powers of the Tribunal in disciplinary matters and nature of punishment. On the facts in that case, since the appellate authority had not adverted to the relevant facts, it was remitted to the appellate authority to impose appropriate punishment.

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."

20 In the matter of Om Kumar and others v/s. Union of India, reported in (2001)2 SCC 386, the Supreme Court has explained the Wednesbury principle applicable on the subject of punishment and proportionality.

21 A Division Bench of this Court has, in an unreported decision rendered in the matter of J.H.Joshi v/s. State of Gujarat (Special Civil Page 10 of 17 HC-NIC Page 10 of 17 Created On Tue Apr 19 00:10:14 IST 2016 C/SCA/10232/2014 JUDGMENT 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 decisionmaker 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 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 definance 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 Page 11 of 17 HC-NIC Page 11 of 17 Created On Tue Apr 19 00:10:14 IST 2016 C/SCA/10232/2014 JUDGMENT 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."

22 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: "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 factfinding 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 Page 12 of 17 HC-NIC Page 12 of 17 Created On Tue Apr 19 00:10:14 IST 2016 C/SCA/10232/2014 JUDGMENT punishment or penalty.

Further, it is a wellsettled 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 decisionmaking 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."

23 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 Union of India v. C. G. Ganayutham's case [AIR 197 SC 3387], noticed 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 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 Page 13 of 17 HC-NIC Page 13 of 17 Created On Tue Apr 19 00:10:14 IST 2016 C/SCA/10232/2014 JUDGMENT 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.677866)."

"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 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 Page 14 of 17 HC-NIC Page 14 of 17 Created On Tue Apr 19 00:10:14 IST 2016 C/SCA/10232/2014 JUDGMENT to be treated as arbitrary. (In G.B. Mahajan V. Jalgaon Municipal Council (1991) 3 SCC 91 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. 679680: (1994 AIR SCW 3344 and at Pp. 336970: AIR 1996 SC 11); Indian Express Newspapers Vs. Union of India (1985) 1 SCC 641 at p.691 : (AIR 1986 SC 515 at Pp.54243): 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 because no issue of fundamental freedoms norof 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."

24 In Regional Manager U.P. SRTC V. Hoti Lal, (2003) 3 SCC 605, the Supreme Court outlined the mode to be adopted for determining whether the punishment imposed by the disciplinary authority is shockingly disproportionate and observed as under:

"The Court or tribunal while dealing with the quantum of punishment has to record reasons as to why it is felt that the punishment was not commensurate with the proved charges. The scope for interference is very limited and restricted to exceptional cases. In the impugned order of the High Court no reasons whatsoever have been indicated as to why Page 15 of 17 HC-NIC Page 15 of 17 Created On Tue Apr 19 00:10:14 IST 2016 C/SCA/10232/2014 JUDGMENT the punishment was considered disproportionate. Failure to give reasons amounts to denial of justice. A mere statement that it is disproportionate would not suffice. It is not only the amount involved but the mental setup, the type of duty performed and similar relevant circumstances which go in to the decisionmaking process while considering whether the punishment is proportionate or disproportionate. If the charged employee holds a position of trust where honesty and integrity are inbuilt requirements of functioning, it would not be proper to deal with the matter leniently. Misconduct in such cases has to be dealt with iron hands. Where the person deals with public money or is engaged in financial transactions or acts in a fiduciary capacity, the highest degree of integrity and trustworthiness is a must and unexceptional." (underlining is ours) 25 In Director General, RPF V. Ch. Sai Babu (2003) 4 SCC 331, the Supreme Court reiterated that the High Court should ordinarily not interfere with the discretion exercised by the disciplinary authority in the matter of imposition of punishment and observed:

"Normally, the punishment imposed by a disciplinary authority should not be disturbed by the High Court or a tribunal except in appropriate cases that too only after reaching a conclusion that the punishment imposed is grossly or shockingly disproportionate, after examining all the relevant factors including the nature of the charges proved, the past conduct, penalty imposed earlier, the nature of duties assigned having due regard to their sensitiveness, exactness expected and discipline required to be maintained, and the department/ establishment in which the delinquent person concerned works."

26 The above noted decisions give a clear idea of the limited scope of judicial review of the discretion exercised by the employer to impose a particular penalty on the delinquent employee. The Supreme Court as well as this Court has repeatedly emphasised that the Tribunal should not exercise appellate jurisdiction in such matters and substitute their opinion by the one formed by the disciplinary authority. It has also been held that the punishment imposed by the competent authority cannot be modified/substituted with a lesser penalty unless the Tribunal is satisfied Page 16 of 17 HC-NIC Page 16 of 17 Created On Tue Apr 19 00:10:14 IST 2016 C/SCA/10232/2014 JUDGMENT that the same is grossly or shockingly disproportionate or is so unreasonable that no person of reasonable prudence would have imposed such punishment in the facts and circumstances of the case.

27 I take notice of the fact that the impugned order passed by the Tribunal was stayed by this Court by an order dated 31st July, 2014 and the stay has continued till this date.

28 For the foregoing reasons, this petition succeeds and is hereby allowed. The impugned order passed by the Tribunal dated 2nd December, 2013, is hereby ordered to be quashed, and the orders passed by the disciplinary authority and affirmed by the appellate authority are hereby affirmed.

(J.B.PARDIWALA, J.) chandresh Page 17 of 17 HC-NIC Page 17 of 17 Created On Tue Apr 19 00:10:14 IST 2016

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