Full Judgment Text
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CASE NO.:
Appeal (civil) 5984 of 2000
PETITIONER:
Regional Manager, U.P.S.R.T.C, Etawah & Ors.
RESPONDENT:
Hoti Lal & Anr.
DATE OF JUDGMENT: 11/02/2003
BENCH:
SHIVARAJ V. PATIL & RIJIT PASAYAT
JUDGMENT:
J U D G M E N T
ARIJIT PASAYAT J.
In this appeal the only point raised by the U.P. State
Road Transport Corporation (hereinafter referred to as ’the
employer’) is whether the High Court was justified in
interfering with the quantum of punishment awarded to the
respondent no.1-Hoti Lal (hereinafter referred to as ’the
employee’).
The factual background in a nutshell is as follows:
The employee was appointed as a Conductor on 1.6.1976.
On 9.7.1988 he was on duty in Bus No.UGG-108. While
checking was done by the Assistant Regional Manager, it was
found that 16 persons were without ticket. Even after
realising fare from the passengers no ticket had been issued
up to the time of checking. When the inspecting officer
started checking, the employee hurriedly tried to issue
tickets. Old tickets were found in his possession with the
intent to use them again. Several tickets of various
denominations were also recovered. These according to the
authorities amounted to dereliction of duty, violation of
Employee’s Conduct Code and misappropriation of employer’s
money. The employee was placed under suspension on
23.7.1988. A charge-sheet containing, inter alia, aforesaid
allegations was served on 16.8.1988 and finally on 30.3.1991
the order of termination was passed. An appeal was filed
before the prescribed Appellate Authority which was
dismissed by order dated 23.6.1991. The order of termination
and the appellate order were questioned in a writ petition
No.4535(S/S) of 1991. The same was dismissed with the
conclusions that after full-fledged inquiry conducted by a
retired District Judge, the employee was found guilty of
misconduct and on consideration of materials the charges
were fully established. The matter was carried in appeal
before the Division Bench by the employee and by the
impugned judgment the Division Bench set aside the order of
termination leaving it open to the employer to award any
punishment, but not of removal or termination or compulsory
retirement. The conclusions of the Division Bench are,
inter alia, as follows:
xxx xxx xxx xxx
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"In the instant case the petitioner was
found to be carrying on ticketless passengers
and certain old and used tickets were
recovered from his possession but it was
asserted before the learned Hon’ble the
Single Judge that after issuing of the charge
sheet no oral enquiry proceeded and the
petitioner was punished. It was submitted
that the punishment is too severe and harsh
in proportion to the alleged misconduct in
which the State suffered only a loss of
Rs.16/-.
Considering the facts and circumstances
of the case, we are of the view that the
punishment awarded to the petitioner is not
commensurate with the gravity of the charge,
hence the writ petition deserves to be
allowed."
Xxx xxx xxx xxx
In support of the appeal learned counsel for the
employer submitted that the High Court exceeded its
jurisdiction in interfering with the quantum of punishment.
Both learned Single Judge and the Division Bench found that
the charges were proved after an elaborate and fair inquiry.
The allegations were of very serious nature and even without
indicating any reason as to why the punishment was not held
to be proper, the directions have been given for imposing
lesser penalty. If the three penalties which have been
directed to be not excluded are kept out only minor
penalties can be imposed.
Learned counsel for the respondents on the other hand
submitted that in the employer’s own case in case of another
conductor, almost under identical circumstances a similar
direction was upheld. Reliance was placed on U.P. State Road
Transport Corpn. And Ors. vs. Mahesh Kumar Mishra and Ors.
[2000 (3) SCC 450].
The scope of interference with the punishment awarded
has been dealt with by this Court in several cases. A
reference to applicable observations in some of these cases
would suffice.
In B.C. Chaturvedi vs. Union of India and Ors. (1995
[6] SCC 749) it was held as follows:
"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 (AIR 1963 SC 779) 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
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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 as reiterated in Union of India v.
Sardar Bahadur (1972 [4] SCC 618). It is true
that in Bhagat Ram v. State of H.P. (1983 [2]
SCC 442) a Bench of two Judges 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 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 T.N. (1989 Supp[1] SCC
686) 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 (1994 [2] SCC 537) 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.
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
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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. vs. G. Ganayutham (1997 [7]
SCC 463) it was held as follows:
"The current position of
proportionality in administrative law in
England 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
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
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
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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
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
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[4] SCC 611)".
In Ranjit Thakur this Court interfered
with the punishment only after coming to the
conclusion that the punishment was in
outrageous defiance of logic and was
shocking. It was also described as perverse
and irrational. In other words, this Court
felt that, on facts, Wednesbury and CCSU
tests were satisfied. In another case, in
B.C. Chaturvedi v. Union of India (1995 [6]
SCC 749) a three-Judge Bench said the same
thing as follows: (SCC p. 762, para 18)
"18......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."
Similar view was taken in Indian Oil Corpn.
Ltd. v. Ashok Kumar Arora (1997 [3] SCC 72)
that the Court will not intervene unless the
punishment is wholly disproportionate.
In such a situation, unless the
court/tribunal opines in its secondary role,
that the administrator was, on the material
before him, irrational according to
Wednesbury or CCSU norms, the punishment
cannot be quashed. Even then, the matter has
to be remitted back to the appropriate
authority for reconsideration. It is only in
very rare cases as pointed out in B.C.
Chaturvedi’s case that the Court might to
shorten litigation think of substituting
its own view as to the quantum of punishment
in the place of the punishment awarded by the
competent authority. (In B.C. Chaturvedi and
other cases referred to therein it has
however been made clear that the power of
this Court under Article 136 is different.)
For the reasons given above, the case cited
for the respondent, namely, State of
Maharashtra v. M.H. Mazumdar (1988 [2] SCC
52) cannot be of any help."
In Om Kumar and Ors. vs. Union of India (2001 [2] SCC
386) it was observed as follows:
"Thus, from the above principles and
decided cases, it must be held that where an
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administrative decision relating to
punishment in disciplinary cases is
questioned as "arbitrary" under Article 14,
the court is confined to Wednesbury
principles as a secondary reviewing
authority. The court will not apply
proportionality as a primary reviewing court
because no issue of fundamental freedoms nor
of discrimination under Article 14 applies in
such a context. The court while reviewing
punishment and if it is satisfied that
Wednesbury principles are violated, it has
normally to remit the matter to the
administrator for a fresh decision as to the
quantum of punishment. Only in rare cases
where there has been long delay in the time
taken by the disciplinary proceedings and in
the time taken in the courts, and such
extreme or rare cases can the court
substitute its own view as to the quantum of
punishment."
The decision in U.P. State Road Transport Corporation’s
case (supra) was really in a different factual background
making it distinguishable from the facts of the present
case, and has no application. In Karnataka State Road
Transport Corporation v. B.S. Hullikatti (2001(2)SCC 574) it
was held that it is misplaced sympathy by Courts in awarding
lesser punishments where on checking it is found that the
Bus Conductors have either not issued tickets to a large
number of passengers, though they should have, or have
issued tickets of a lower denomination knowing fully well
the correct fare to be charged. It is the responsibility of
the Bus Conductors to collect the correct fare from the
passengers and deposit the same with the Corporation. They
act in a fiduciary capacity and it would be a case of gross
misconduct if knowingly they do not collect any fare or the
correct amount of fare. It was finally held that the order
of dismissal should not have been set aside. The view was
re-iterated by a three Judge Bench in Regional Manager,
RSRTC v. Ghanashyam Sharma (2002 (1) LLJ 234), where it was
additionally observed that the proved acts amount either to
a case of dishonesty or of gross negligence, and Bus
Conductors who by their actions or inactions cause financial
loss to the Corporations are not fit to be retained in
service.
It needs to be emphasized that the Court or Tribunal
while dealing with the quantum of punishment has to record
reasons as to why it is felt that the punishment does not
commensurate with the proved charges. As has been
highlighted in several cases to which reference has been
made above, the scope for interference is very limited and
restricted to exceptional cases in the indicated
circumstances. Unfortunately, in the present case as the
quoted extracts of the High Court’s order would go to show,
no reasons whatsoever have been indicated as to why the
punishment was considered disproportionate. Reasons are live
links between the mind of the decision taker to the
controversy in question and the decision or conclusion
arrived at. Failure to give reasons amounts to denial of
justice. (See Alexander Machinery Dudley Ltd. v. Crabtree
(1974 LCR 120) A mere statement that it is disproportionate
would not suffice. A party appearing before a Court, as to
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what it is that the Court is addressing its mind. It is not
only the amount involved but the mental set up, the type of
duty performed and similar relevant circumstances which go
into the decision-making 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, highest degree
of integrity and trust-worthiness is must and
unexceptionable. Judged in that background, conclusions of
the Division Bench of the High Court do not appear to be
proper. We set aside the same and restore order of learned
Single Judge upholding order of dismissal.
The appeal is allowed.