Full Judgment Text
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CASE NO.:
Appeal (civil) 4454 of 2006
PETITIONER:
Union of India & Ors
RESPONDENT:
Dwarka Prasad Tiwari
DATE OF JUDGMENT: 12/10/2006
BENCH:
ARIJIT PASAYAT & LOKESHWAR SINGH PANTA
JUDGMENT:
J U D G M E N T
(Arising out of SLP ) No. 23847 of 2005)
With
CA No. 4455 of 2006
(Arising out SLP(C) No. 15725 of 2006)
ARIJIT PASAYAT, J.
Leave granted in both the Special Leave Petitions.
These two appeals are directed against a common
judgment of the Madhya Pradesh High Court at Jabalpur
allowing the writ petition filed by the respondent\026Dwarka
Prasad who is the appellant in the appeal relating to SLP(C)
No. 15725 of 2006. The writ petition was partially allowed by
a learned Single Judge of the High Court holding that the
punishment of dismissal from service imposed on respondent-
Dwarka Prasad was too harsh and was required to be
substituted by an appropriate lesser punishment. Accordingly
the order of dismissal was set aside and reinstatement with
continuity of service without any back wages was directed and
it was further directed that from the date of judgment the
respondent-Dwarka Prasad shall be entitled for full salary.
The background facts in a nutshell are as follows:
Respondent-Dwarka Prasad was posted as a constable
with Central Reserve Police Force (in short the ’CRPF’) in F/74
Battalion, CRPF at Platoon Post, Jayanti Pura which was
accommodated in a building on Batala Amritsar Road\026a
sensitive and terrorist infested area. He was on sentry duty
from 1000 hrs. to 1200 hrs. on 31.8.1989 on the roof of the
building. He had been issued a 7.62 mm SLR and 40 rounds
of ammunition. At about 1115 hrs, he fired one bullet without
orders and without any sufficient reason. A Court of Inquiry
was conducted and it was established that he alone was
responsible for the firing in which he had sustained bullet
injury in his abdomen. Accordingly a departmental inquiry in
terms of Rule 27 of the Central Reserve Police Force Rules,
1955 (in short the ’Rules’) was ordered alleging misconduct
and negligence/remissness in discharge of his duty in his
capacity as a member of the Force. The inquiry was conducted
and the respondent-Dwarka Prasad was given opportunity to
defend himself. The inquiry officer found the respondent
guilty of charges framed against him. After consideration of
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the representation made by respondent-Dwarka Prasad, the
Commandant dismissed him from the services with effect from
20.01.1990 under Rule 27(a)(i) of the Rules.
Against the order of dismissal respondent preferred an
appeal to the Deputy Inspector General of Police (in short the
’DIGP’), CRPF. During pendency of the appeal, a writ petition
was filed under Articles 226 and 227 of the Constitution of
India, 1950 (in short the ’Constitution’) which was numbered
as M.P. No. 2978 of 1990. The High Court by its order dated
26.11.1990 dismissed the petition but direction was given for
disposal of the appeal pending before the DIGP, CRPF who
dismissed the appeal. A revision petition before Additional
Director General (in short the ’ADG’), CRPF did not bring any
relief.
A review petition was filed before the Director General (in
short the ’DG’), CRPF who modified the punishment of
dismissal to one of removal considering the respondent-
Dwarka Prasad’s young age and short length of service.
Against the said order a writ petition bearing number M.P. No.
2150 of 1992 was filed under Articles 226 and 227 of the
Constitution. The High Court by the impugned judgment held
that the defence of the respondent-Dwarka Prasad was not
properly considered by any departmental authority and the
punishment awarded was shockingly disproportionate.
Accordingly as noted above the punishment was set aside and
direction for reinstatement with certain other benefits was
given.
In support of the appeal, learned counsel for the Union of
India and its functionaries submitted that the High Court has
completely overlooked the fact that the respondent-Dwarka
Prasad was a member of a disciplined Force. He had
committed a serious misconduct and after taking into account
the relevant factors, the departmental authority initially
passed the order of dismissal, which by taking a
compassionate view the DG on review modified to that of
removal from service. The High Court did not indicate even
any reason as to why it considered the punishment to be
disproportionate or considered to be shockingly
disproportionate. No reason was given to justify this
conclusion. Mere reference to the decision of this Court in
B.C. Chaturvedi v. Union of India and Others (1995(6) SCC
749) without indicating as to how the view expressed in
paragraph 12 thereof had any application to the facts of the
case.
It was, therefore, submitted that the order of the High
Court should be set aside and the order passed by the DG
should be restored. In the appeal filed by Dwarka Prasad the
primary stand is that there was no misconduct involved and
therefore, the High Court should have found him innocent and
should have held that no punishment was warranted.
The charges against respondent-Dwarka Prasad were as
follows:
"ARTICLE-I
That the said No. 830762299 Ct. Dwarka
Prasad Tiwari while functioning as sentry in F coy 76
Bn. CRPF at platoon post Jayantipura, on
31.01.1989 between 1000 hrs. to 1200 hrs he
committed an act of misconduct in his capacity as
member of the Force U/s. 11(1) of CRPF Act 1949 in
that he fired one round from his service weapon
(SLR) at his own without any permission from the
competent authority and without any sufficient
reason.
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ARTICLE -II
That during the aforesaid period and while
functioning in the aforesaid office the said No.
8230762299 Ct. Dwarka Prasad Tiwari was guilty of
neglect of duty and remissness in his capacity as
member of the Force U/s. 1191) of CRPF Act, 1949
in that he fired one round from his weapon (SLR)
and sustaining bullet injury in his abdomen."
Learned counsel for the Union of India and its
functionary has referred to the statement made by
respondent-Dwarka Prasad admitting his guilt and giving
clean chit to one Hawaldar Mahavir Singh. Contrary to that
statement, presently his stand is that it was the said
Hawaldar-Mahavir Singh who was responsible for the shooting
incident.
The scope of interference with quantum of punishment
has been the subject-matter of various decisions of this Court.
Such interference cannot be a routine matter.
Lord Greene said in 1948 in the famous Wednesbury
case (1948 (1) KB 223) that when a statute gave discretion to
an administrator to take a decision, the scope of judicial
review would remain limited. He said that interference was
not permissible unless one or the other of the following
conditions was satisfied, namely the order was contrary to law,
or relevant factors were not considered, or irrelevant factors
were considered; or the decision was one which no reasonable
person could have taken. These principles were consistently
followed in the UK and in India to judge the validity of
administrative action. It is equally well known that in 1983,
Lord Diplock in Council for Civil Services Union v. Minister of
Civil Service [(1983) 1 AC 768] (called the CCSU case)
summarized the principles of judicial review of administrative
action as based upon one or other of the following viz.,
illegality, procedural irregularity and irrationality. He,
however, opined that "proportionality" was a "future
possibility".
In Om Kumar and Ors. v. Union of India (2001 (2) SCC
386), this Court observed, inter-alia, as follows:
"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 has applied
the principle of "proportionality" to legislative
action since 1950, as stated in detail below.
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
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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.
xxx xxx xxx xxx xxx
The development of the principle of "strict
scrutiny" or "proportionality" in administrative
law in England is, however, recent.
Administrative action was traditionally being
tested on Wednesbury grounds. But in the
last few years, administrative action affecting
the freedom of expression or liberty has been
declared invalid in several cases applying the
principle of "strict scrutiny". In the case of
these freedoms, Wednesbury principles are no
longer applied. The courts in England could
not expressly apply proportionality in the
absence of the convention but tried to
safeguard the rights zealously by treating the
said rights as basic to the common law and the
courts then applied the strict scrutiny test. In
the Spycatcher case Attorney General v.
Guardian Newspapers Ltd. (No.2) (1990) 1 AC
109 (at pp. 283-284), Lord Goff stated that
there was no inconsistency between the
convention and the common law. In
Derbyshire County Council v. Times
Newspapers Ltd. (1993) AC 534, Lord Keith
treated freedom of expression as part of
common law. Recently, in R. v. Secy. Of State
for Home Deptt., ex p. Simms (1999) 3 All ER
400 (HL), the right of a prisoner to grant an
interview to a journalist was upheld treating
the right as part of the common law. Lord
Hobhouse held that the policy of the
administrator was disproportionate. The need
for a more intense and anxious judicial
scrutiny in administrative decisions which
engage fundamental human rights was re-
emphasised in in R. v. Lord Saville ex p (1999)
4 All ER 860 (CA), at pp.870,872) . In all these
cases, the English Courts applied the "strict
scrutiny" test rather than describe the test as
one of "proportionality". But, in any event, in
respect of these rights "Wednesbury" rule has
ceased to apply.
However, the principle of "strict scrutiny"
or "proportionality" and primary review came
to be explained in R. v. Secy. of State for the
Home Deptt. ex p Brind (1991) 1 AC 696. That
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case related to directions given by the Home
Secretary under the Broadcasting Act, 1981
requiring BBC and IBA to refrain from
broadcasting certain matters through persons
who represented organizations which were
proscribed under legislation concerning the
prevention of terrorism. The extent of
prohibition was linked with the direct
statement made by the members of the
organizations. It did not however, for example,
preclude the broadcasting by such persons
through the medium of a film, provided there
was a "voice-over" account, paraphrasing what
they said. The applicant’s claim was based
directly on the European Convention of
Human Rights. Lord Bridge noticed that the
Convention rights were not still expressly
engrafted into English law but stated that
freedom of expression was basic to the
Common law and that, even in the absence of
the Convention, English Courts could go into
the question (see p. 748-49).
".....whether the Secretary of State, in the
exercise of his discretion, could
reasonably impose the restriction he has
imposed on the broadcasting
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 (ibid pp. 750-51).
In the famous passage, the seeds of the
principle of primary and secondary review by
courts were planted in the administrative law
by Lord Bridge in the Brind case (1991) 1 AC
696. Where Convention rights were in
question the courts could exercise a right of
primary review. However, the courts would
exercise a right of secondary review based only
on Wednesbury principles in cases not
affecting the rights under the Convention.
Adverting to cases where fundamental
freedoms were not invoked and where
administrative action was questioned, it was
said that the courts were then confined only to
a secondary review while the primary decision
would be with the administrator. Lord Bridge
explained the primary and secondary review as
follows:
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"The primary judgment as to whether the
particular competing public interest
justifying the particular restriction
imposed falls to be made by the Secretary
of State to whom Parliament has
entrusted the discretion. But, we are
entitled to exercise a secondary judgment
by asking whether a reasonable Secretary
of State, on the material before him,
could reasonably make the primary
judgment."
But where an administrative action is
challenged as "arbitrary" under Article 14 on
the basis of Royappa (1974) 4 SCC 3 (as in
cases where punishments in disciplinary
cases are challenged), the question will be
whether the administrative order is "rational"
or "reasonable" and the test then is the
Wednesbury test. The courts would then be
confined only to a secondary role and will only
have to see whether the administrator has
done well in his primary role, whether he has
acted illegally or has omitted relevant factors
from consideration or has taken irrelevant
factors into consideration or whether his view
is one which no reasonable person could have
taken. If his action does not satisfy these
rules, it is to be treated as arbitrary. In G.B.
Mahajan v. Jalgaon Municipal Council (1991)
3 SCC 91 at p. 111 Venkatachaliah, J. (as he
then was) pointed out that "reasonableness"
of the administrator under Article 14 in the
context of administrative law has to be judged
from the stand point of Wednesbury rules. In
Tata Cellular v. Union of India (1994) 6 SCC
651 at pp. 679-80), Indian Express
Newspapers Bombay (P) Ltd. v. Union of India
(1985) 1 SCC 641 at p.691), Supreme Court
Employees’ Welfare Assn. V. Union of India
(1989) 4 SCC 187 at p. 241) and U.P.
Financial Corpn. V. Gem Cap(India) (P) Ltd.
(1993) 2 SCC 299 at p. 307) while judging
whether the administrative action is
"arbitrary" under Article 14 (i.e. otherwise
then being discriminatory), this Court has
confined itself to a Wednesbury review
always.
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.
xxx xxx xxx xxx xxx
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
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secondary reviewing authority. The court will
not apply proportionality as a primary
reviewing court because no issue of
fundamental freedoms nor of discrimination
under Article 14 applies in such a context.
The court while reviewing punishment and if it
is satisfied that Wednesbury principles are
violated, it has normally to remit the matter to
the administrator for a fresh decision as to the
quantum of punishment. Only in rare cases
where there has been long delay in the time
taken by the disciplinary proceedings and in
the time taken in the courts, and such extreme
or rare cases can the court substitute its own
view as to the quantum of punishment."
In B.C. Chaturvedi case (supra) it was observed:
"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."
In Union of India and Anr. v. G. Ganayutham (1997 [7]
SCC 463), this Court summed up the position relating to
proportionality in paragraphs 31 and 32, which read as
follows:
"The current position of proportionality in
administrative law in England and India can
be summarized as follows:
(1) To judge the validity of any
administrative order or statutory
discretion, normally the Wednesbury test
is to be applied to find out if the decision
was illegal or suffered from procedural
improprieties or was one which no
sensible decision-maker could, on the
material before him and within the
framework of the law, have arrived at.
The court would consider whether
relevant matters had not been taken into
account or whether irrelevant matters
had been taken into account or whether
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the action was not bona fide. The court
would also consider whether the decision
was absurd or perverse. The court would
not however go into the correctness of the
choice made by the administrator
amongst the various alternatives open to
him. Nor could the court substitute its
decision to that of the administrator.
This is the Wednesbury (1948 1 KB 223)
test.
(2) The court would not interfere
with the administrator’s decision unless
it was illegal or suffered from procedural
impropriety or was irrational \026 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 (1985
AC 374) principles.
(3)(a) As per Bugdaycay (1987 AC
514), Brind (1991 (1) AC 696) and Smith
(1996 (1) All ER 257) as long as the
Convention is not incorporated into
English law, the English courts merely
exercise a secondary judgment to find out
if the decision-maker could have, on the
material before him, arrived at the
primary judgment in the manner he has
done.
(3)(b) If the Convention is
incorporated in England making available
the principle of proportionality, then the
English courts will render primary
judgment on the validity of the
administrative action and find out if the
restriction is disproportionate or
excessive or is not based upon a fair
balancing of the fundamental freedom
and the need for the restriction
thereupon.
(4)(a) The position in our country, in
administrative law, where no
fundamental freedoms as aforesaid are
involved, is that the courts/tribunals will
only play a secondary role while the
primary judgment as to reasonableness
will remain with the executive or
administrative authority. The secondary
judgment of the court is to be based on
Wednesbury and CCSU principles as
stated by Lord Greene and Lord Diplock
respectively to find if the executive or
administrative authority has reasonably
arrived at his decision as the primary
authority.
(4)(b) Whether in the case of
administrative or executive action
affecting fundamental freedoms, the
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courts in our country will apply the
principle of "proportionality" and assume
a primary role, is left open, to be decided
in an appropriate case where such action
is alleged to offend fundamental
freedoms. It will be then necessary to
decide whether the courts will have a
primary role only if the freedoms under
Articles 19, 21 etc. are involved and not
for Article 14.
Finally, we come to the present case. It is
not contended before us that any fundamental
freedom is affected. We need not therefore go
into the question of "proportionality". There is
no contention that the punishment imposed is
illegal or vitiated by procedural impropriety.
As to "irrationality", there is no finding by the
Tribunal that the decision is one which no
sensible person who weighed the pros and
cons could have arrived at nor is there a
finding, based on material, that the
punishment is in "outrageous" defiance of
logic. Neither Wednesbury nor CCSU tests are
satisfied. We have still to explain "Ranjit
Thakur (1987 [4] SCC 611)".
The common thread running through in all these
decisions is that the Court should not interfere with the
administrator’s decision unless it was illogical or suffers from
procedural impropriety or was shocking to the conscience of
the Court, in the sense that it was in defiance of logic or moral
standards. In view of what has been stated in the
Wednesbury’s case (supra) the Court would not go into the
correctness of the choice made by the administrator open to
him and the Court should not substitute its decision to that
of the administrator. The scope of judicial review is limited to
the deficiency in decision-making process and not the
decision.
To put differently unless the punishment imposed by the
Disciplinary Authority or the Appellate Authority shocks the
conscience of the Court/Tribunal, there is no scope for
interference. Further to shorten litigations it may, in
exceptional and rare cases, impose appropriate punishment by
recording cogent reasons in support thereof. In a normal
course if the punishment imposed is shockingly
disproportionate it would be appropriate to direct the
Disciplinary Authority or the Appellate Authority to reconsider
the penalty imposed.
The above position was recently reiterated in Union of
India and Anr. v. K.G. Soni (2006 (6) Supreme 389) following
Damoh Panna Sagar Rural Regional Bank and Others v.
Munna Lal Jain (2005 (10) SCC 84).
The High Court, as rightly submitted by learned counsel
for Union of India, has not indicated any reason for coming to
the conclusion that the punishment was shockingly
disproportionate. The High Court only stated that the defence
of respondent-Dwarka Prasad was not duly considered. If that
was really so, the High Court would have interfered on that
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ground but that has not been done. The High Court’s order
therefore reflects non application of mind. The impugned
order of the High Court is set aside. The matter is remitted to
the High Court to re-hear the writ petition restricted to the
question of quantum of punishment. The appeal filed by
respondent-Dwarka Prasad is without merit in view of the fact
that his statement at different stages during the departmental
proceedings indicates that he has accepted that he himself
was responsible for the incident.
In ultimate result the appeal filed by Union of India is
allowed to the extent indicated, while the appeal filed by
Dwarka Prasad is dismissed. No costs.