Full Judgment Text
Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS.5762-5763 OF 2009
(Arising out of SLP(C) Nos. 776-777/2009)
Chairman cum Managing Director,
Coal India Limited & Anr. …Appellants
Versus
Mukul Kumar Choudhuri & Ors. …Respondents
JUDGEMENT
R.M. Lodha, J.
Leave granted.
2. These two appeals by special leave are directed
against the judgment passed by the Division Bench of High
Court of Judicature at Calcutta on September 22, 2008
whereby the Division Bench affirmed the order of the Single
Judge passed on July 26, 2007 insofar as reinstatement of the
Respondent No. 1 was concerned but modified the order of the
Single Judge by awarding him back wages.
3. Mukul Kumar Choudhuri, Respondent No. 1, joined
his service with the Eastern Coalfields in 1992 as System
Officer. In 1996, he was transferred to North-Eastern Coalfields,
Assam. On September 16, 1998, the Respondent No. 1
proceeded on sanctioned leave upto September 29, 1998.
However, after expiry of his sanctioned leave, he did not report
to duty and despite reminders remained absent for six months
without any authorization.
4. On March 18, 1999, the Director-in-Charge, North-
Eastern Coalfields initiated disciplinary enquiry against the
Respondent No. 1 under Rule 29 of the Coal India Executives
Conduct Discipline and Appeal Rules, 1978 (for short, ‘Conduct
Rules, 1978’) for misconduct on his part by –(i) absenting
himself without leave; (ii) Overstaying the sanctioned leave for
more than four consecutive days; and (iii) Desertion of job and
failure to maintain integrity and devotion to duty.
5. On May 31, 1999, the Respondent No. 1 sent letter
of resignation. His resignation was, however, not accepted by
2
the Management and, accordingly, he joined his duty on
September 10, 1999.
6. In the enquiry proceedings, the Respondent No. 1
appeared before the Inquiry Officer and admitted the charges
leveled against him. The Inquiry Officer concluded the enquiry
and vide his report dated October 5, 1999 held that the
delinquent was guilty of the charges as mentioned in the
charge-sheet.
7. Upon receipt of the enquiry report, a second show
cause notice dated December 10, 1999 was issued to the
Respondent No. 1 indicating therein that in view of the findings
recorded by the Inquiry Officer, termination of his services was
proposed. The delinquent was asked to show cause as to why
the punishment of termination of service be not awarded to him.
A copy of the enquiry report was sent along with the second
show cause notice.
8. The Respondent No. 1 responded to the second
show cause notice. He submitted that he sincerely wanted to
leave the Company for several personal problems but these
3
were aggravated by unsympathetic attitude of the Management
in not accepting his resignation. He submitted that he deserved
no punishment and that his explanation be considered
favourably.
9. By an Office Order dated November 29, 2000, the
Respondent No. 1 was removed from service with immediate
effect. The Respondent No. 1 pursued the departmental
remedy but without any success. He also approached Calcutta
High Court on more than one occasion raising grievance of
non-consideration of the departmental appeal and the review
application before Reviewing Authority and the departmental
authorities not passing the reasoned order. It is not necessary
to refer to these proceedings in details. Suffice it to say that as
directed by the High Court, he challenged the order of removal
before the Board of Directors which came to be dismissed on
August 17, 2006. Then, he again approached the High Court by
filing writ petition being Writ Petition No. 1334 of 2006.
10. The Single Judge of the High Court by his judgment
delivered on July 26, 2007 allowed the writ petition, set aside
4
the impugned orders and directed the reinstatement of
Respondent No. 1. The Single Judge, however, did not award
back wages to the Respondent No. 1 but declared that he be
treated to be in continuous service without any break and
without affecting his seniority.
11. The order of the Single Judge was challenged in
separate appeals by both parties before the Division Bench.
The appeal preferred by the present appellants was dismissed
while the appeal preferred by the Respondent No. 1 was
allowed and it was held that he was entitled to back wages for
the period on and from the year 2000 until reinstatement.
12. We heard Mr. Gopal Subramanium, learned
Solicitor General and the Respondent No. 1 in-person.
13. Inter alia, the misconduct alleged against the
Respondent No. 1 was unauthorized absence from duty for
more than six months. The delinquent admitted the charges
before the Inquiry Officer. He stated :
“I admit the charges. However, I desire to state
reasons for my absence and is given below:
5
i) I did not have any intention nor desire of disobeying
order of higher authority or violate any of the
Company’s rule and regulations and.
ii) The reason is purely personal which cannot be
produced by any evidence to prove and is beyond my
control.”
14. The admission on the part of delinquent before the
Inquiry Officer leaves no manner of doubt that the charges
against the delinquent stood fully proved. He was given second
show cause notice and a copy of the enquiry report was
annexed thereto. He sent his written response to the second
show cause on July 15, 2000.
15. Office Order dated November 29, 2000 reads thus :
“Coal India Ltd.
10, Netaji Subash Road,
Calcutta – 700001
Ref. No. CIL/C-5A(iii)/740 Dated : 29.11.2000
ORDER
WHEREAS a Memorandum No. NEC/ EE/DIC/99/10/
621 dated 18.03.99 was issued to Sri M.K. Choudhury,
Manager (Systems), North Eastern Coalfields for
unauthorized absence from duty w.e.f. 30.09.1998, and
WHEREAS the written explanation submitted by Shri
Choudhury vide dated 31.05.99 having been found not
satisfactory, a departmental enquiry was ordered and
conducted wherein Shri Choudhury fully participated. The
Inquiring Authority submitted his report wherein the charge
of unauthorized absence w.e.f. 30.09.98 against Sri M.K.
Choudhury, was proved beyond doubt. A showcause Notice
6
along with the copy of the enquiry report was also sent to
him for making representation thereon, and;
WHEREAS the, Chairman-cum-Mg. Director, Coal
India Limited, after careful consideration of the memorandum
dated 18.03.1999 report of the Inquiring Authority dated
05.10.99 enquiry proceedings, representation dated
15.07.2000 of Shri M.K. Choudhury and other documents on
record has come to the conclusion that the Charge of
unauthorized absence w.e.f. 30.09.98 against Shri M.K.
Chowdhury, Manager (Systems), NEC has been proved
beyond doubt.
NOW THEREFORE, the Chairman-cum-Mg. Director,
Coal India Limited as Disciplinary Authority, considering the
gravity of the offence has imposed the penalty of “removal
from service” on Sri M.K. Choudhury, Manager (Systems),
North Eastern Coalfields with immediate effect. Accordingly,
Sri Choudhury is hereby removed from service with
immediate effect.
This issues with the approval of Competent Authority.
(N.K. Sharma)
Director (Technical)”
16. It is apparent therefrom that it is the
disciplinary authority who took the decision of imposition
of penalty of removal. The issuance of the order is by
Director Technical only. There is no procedural illegality
or irregularity in the disciplinary proceedings. The charge
of unauthorized absence for more than six months is
admitted by the delinquent and clearly established.
7
17. In the case of State of Andhra Pradesh and
1
Others v. Chitra Venkata Rao , this Court considered the
scope of judicial review in dealing with departmental
enquiries and held:
“21. The scope of Article 226 in dealing with departmental
inquiries has come up before this Court. Two propositions
were laid down by this Court in State of A.P. v. S. Sree
Rama Rao (AIR 1963 SC 1723). First, there is no warrant for
the view that in considering whether a public officer is guilty
of misconduct charged against him, the rule followed in
criminal trials that an offence is not established unless
proved by evidence beyond reasonable doubt to the
satisfaction of the Court must be applied. If that rule be not
applied by a domestic tribunal of inquiry the High Court in a
petition under Article 226 of the Constitution is not
competent to declare the order of the authorities holding a
departmental enquiry invalid. The High Court is not a court of
appeal under Article 226 over the decision of the authorities
holding a departmental enquiry against a public servant. The
Court is concerned to determine whether the enquiry is held
by an authority competent in that behalf and according to the
procedure prescribed in that behalf, and whether the rules of
natural justice are not violated. Second, where there is some
evidence which the authority entrusted with the duty to hold
the enquiry has accepted and which evidence may
reasonably support the conclusion that the delinquent officer
is guilty of the charge, it is not the function of the High Court
to review the evidence and to arrive at an independent
finding on the evidence. The High Court may interfere where
the departmental authorities have held the proceedings
against the delinquent in a manner inconsistent with the
rules of natural justice or in violation of the statutory rules
prescribing the mode of enquiry or where the authorities
have disabled themselves from reaching a fair decision by
some considerations extraneous to the evidence and the
merits of the case or by allowing themselves to be influenced
by irrelevant considerations or where the conclusion on the
very face of it is so wholly arbitrary and capricious that no
reasonable person could ever have arrived at that
1
(1975) 2SCC 557
8
conclusion. The departmental authorities are, if the enquiry
is otherwise properly held, the sole judges of facts and if
there is some legal evidence on which their findings can be
based, the adequacy or reliability of that evidence is not a
matter which can be permitted to be canvassed before the
High Court in a proceeding for a writ under Article 226.
22. …….
23. The jurisdiction to issue a writ of certiorari under Article
226 is a supervisory jurisdiction. The Court exercises it not
as an appellate court. The findings of fact reached by an
inferior court or tribunal as a result of the appreciation of
evidence are not reopened or questioned in writ
proceedings. An error of law which is apparent on the face of
the record can be corrected by a writ, but not an error of fact,
however grave it may appear to be. In regard to a finding of
fact recorded by a tribunal, a writ can be issued if it is shown
that in recording the said finding, the tribunal had
erroneously refused to admit admissible and material
evidence, or had erroneously admitted inadmissible
evidence which has influenced the impugned finding. Again
if a finding of fact is based on no evidence, that would be
regarded as an error of law which can be corrected by a writ
of certiorari. A finding of fact recorded by the Tribunal cannot
be challenged on the ground that the relevant and material
evidence adduced before the Tribunal is insufficient or
inadequate to sustain a finding. The adequacy or sufficiency
of evidence led on a point and the inference of fact to be
drawn from the said finding are within the exclusive
jurisdiction of the Tribunal. See Syed Yakoob v. K.S.
Radhakrishnan ( AIR 1964 SC 477).
24. The High Court in the present case assessed the entire
evidence and came to its own conclusion. The High Court
was not justified to do so. Apart from the aspect that the
High Court does not correct a finding of fact on the ground
that the evidence is not sufficient or adequate, the evidence
in the present case which was considered by the Tribunal
cannot be scanned by the High Court to justify the
conclusion that there is no evidence which would justify the
finding of the Tribunal that the respondent did not make the
journey. The Tribunal gave reasons for its conclusions. It is
not possible for the High Court to say that no reasonable
person could have arrived at these conclusions. The High
Court reviewed the evidence, reassessed the evidence and
9
then rejected the evidence as no evidence. That is precisely
what the High Court in exercising jurisdiction to issue a writ
of certiorari should not do.”
18. It has been time and again said that it is not open to
the High Court to examine the findings recorded by the Inquiry
Officer as a Court of Appeal and reach its own conclusions and
that power of judicial review is not directed against the decision
but is confined to the decision making process. In a case such
as the present one where the delinquent admitted the charges,
no scope is left to differ with the conclusions arrived at by the
Inquiry Officer about the proof of charges. In the absence of
any procedural illegality or irregularity in conduct of the
departmental enquiry, it has to be held that the charges against
the delinquent stood proved and warranted no interference.
19. The Single Judge of the High Court in paragraphs
43 and 44 of the judgment observed thus:
“43. This Court is of the view that the so-called order dated
29.11.2000 is a mere communication WITHOUT ACTUALLY
serving the original Order of the Disciplinary Authority.
Merely transmitting the decision of the Disciplinary Authority
was not sufficient since this was a matter involving the
punishment of removal from service entailing civil
consequences.
44. We are dealing with a case of removal from service
for an alleged absence of 6(six) months. This Court is of the
10
view that the Respondents were bound to adhere to a fair
and transparent procedure by firstly serving the actual order
of the Disciplinary Authority upon the petitioner and then, by
giving reasons as to why they chose not to agree with what
the Petitioner wanted to say qua his absence when, after
admitting the absence, he gave reasons as to why he had
remained absent. They were also obliged to strictly obey
with the Orders of this, court. In that view of the matter, the
argument of Mr. Aloke Banerjee to the effect that the
Respondents were not required to give reasons, are not
acceptable to this Court. Consequently the Judgments cited
by him namely AIR 1987 SC 2043 and the other Judgments
such as 2001 (2) CHN 632 and 1991(2) SCC 716 are held to
be not applicable because in this case, it was the desire and
Order of the Hon’ble Division Bench that the Respondents
should deal with the matter in accordance with law. In the
opinion of this Court, “in accordance with law” means and
includes observing the principles of natural justice and giving
reasons because the Respondents were supposed to be
dealing with his pleas relating to his explanations which were
so very very crucial to his case. Consequently and in the
facts and circumstances of this case, none of the Judgments
cited by Mr. Banerjee can be said to have any Application.”
20. In what we have already discussed, we find it
difficult to accept the view of the Single Judge.
21. The Division Bench like the Single Bench fell into
grave error in not adequately adverting to the fact that the
charges were admitted by the delinquent unequivocally and
unambiguously and, therefore, misconduct of the Respondent
No. 1 was clearly established. We are, therefore, unable to
persuade ourselves to concur with the view of the High Court.
11
22. The question, however, remains : is the punishment
of removal grossly disproportionate to the proved charge of
unauthorized absence for more than six months?
23. In order to answer the aforesaid question, it would
be appropriate to refer to a few of decisions of this Court
wherein doctrine of proportionality has been considered. In
2
Union of India and Another v. G. Ganayutham , this Court
elaborately considered the proportionality in the administrative
law in England as well as in our own country. The court
considered some important English decisions, viz., Associated
3
Provincial Picture Houses Ltd. v. Wednesbury Corporation ,
4
Council of Civil Service Unions v. Minister for Civil Service , R.
5 6
v. Goldstein and R. v. Secretary for Home Dept. ex. p. Brind
and few decisions of this Court, viz., Ranjit Thakur v. Union of
7 8
India , State of Maharashtra v. M.H. Mazumdar , Ex-Naik
9
Sardar Singh v. Union of India , Tata Cellular v. Union of
2
(1997) 7SCC463
3
(1947) 2All ER 680
4
(1984) 3 All ER 935
5
(1983) 1 All ER 434
6
(1991) 1 All ER 720
7
(1987) 4 SCC 611
8
(1988) 2 SCC 52
9
(1991) 3 SCC 213
12
10 11
India , State of A.P. v. McDowell & Co. and summed up
position of proportionality in administrative law in England and
India thus :
“( 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 test.
( 2 ) The court would not interfere with the administrator’s
decision unless it was illegal or suffered from procedural
impropriety or was irrational — in the sense that it was in
outrageous defiance of logic or moral standards. The
possibility of other tests, including proportionality being
brought into English administrative law in future is not ruled
out. These are the CCSU principles.
( 3 )( a ) As per Bugdaycay ( 1987 AC 514) , Brind and Smith 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
10
(1994) 6 SCC 651
11
(1996) 3 SCC 709
13
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.”
24. Dealing with the question of proportionality with
regard to punishment in disciplinary matters, the court said :
“32. 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 ”.
33. 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,
14
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 authority/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.
34. 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 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 cannot be of any help.”
25. Again, in the case of Coimbatore District Central
Cooperative Bank v. Coimbatore District Central Cooperative
15
12
Bank Employees Assn. and Another this court considered the
doctrine of proportionality and it was held :
“17. So far as the doctrine of proportionality is concerned,
there is no gainsaying that the said doctrine has not only
arrived in our legal system but has come to stay. With the
rapid growth of administrative law and the need and
necessity to control possible abuse of discretionary powers
by various administrative authorities, certain principles have
been evolved by courts. If an action taken by any authority is
contrary to law, improper, irrational or otherwise
unreasonable, a court of law can interfere with such action
by exercising power of judicial review. One of such modes of
exercising power, known to law is the “doctrine of
proportionality”.
18. “Proportionality” is a principle where the court is
concerned with the process, method or manner in which the
decision-maker has ordered his priorities, reached a
conclusion or arrived at a decision. The very essence of
decision-making consists in the attribution of relative
importance to the factors and considerations in the case.
The doctrine of proportionality thus steps in focus true nature
of exercise—the elaboration of a rule of permissible
priorities.
19. de Smith states that “proportionality” involves “balancing
test” and “necessity test”. Whereas the former (balancing
test) permits scrutiny of excessive onerous penalties or
infringement of rights or interests and a manifest imbalance
of relevant considerations, the latter (necessity test) requires
infringement of human rights to the least restrictive
alternative. [ Judicial Review of Administrative Action (1995),
pp. 601-05, para 13.085; see also Wade & Forsyth:
Administrative Law (2005), p. 366.]
20. In Halsbury’s Laws of England (4th Edn.), Reissue, Vol.
1(1), pp. 144-45, para 78, it is stated:
“The court will quash exercise of discretionary
powers in which there is no reasonable
relationship between the objective which is
sought to be achieved and the means used to
that end, or where punishments imposed by
administrative bodies or inferior courts are
wholly out of proportion to the relevant
misconduct. The principle of proportionality is
12
(2007) 4 SCC 669
16
well established in European law, and will be
applied by English courts where European law
is enforceable in the domestic courts. The
principle of proportionality is still at a stage of
development in English law; lack of
proportionality is not usually treated as a
separate ground for review in English law, but
is regarded as one indication of manifest
unreasonableness.”
21. The doctrine has its genesis in the field of administrative
law. The Government and its departments, in administering
the affairs of the country, are expected to honour their
statements of policy or intention and treat the citizens with
full personal consideration without abuse of discretion. There
can be no “pick and choose”, selective applicability of the
government norms or unfairness, arbitrariness or
unreasonableness. It is not permissible to use a
“sledgehammer to crack a nut”. As has been said many a
time; “where paring knife suffices, battle axe is precluded”.
22. In the celebrated decision of Council of Civil Service
Union v. Minister for Civil Service( 1985 AC 374 : (1984) 3
WLR 1174 : (1984) 3 All ER 935 (HL) Lord Diplock
proclaimed: (All ER p. 950 h - j )
“Judicial review has I think developed to
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 on which
administrative action is subject to control by
judicial review. The first ground I 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 ’….” (emphasis supplied)
23. CCSU has been reiterated by English courts in several
subsequent cases. We do not think it necessary to refer to
all those cases.
24. So far as our legal system is concerned, the doctrine is
17
well settled. Even prior to CCSU , this Court has held that if
punishment imposed on an employee by an employer is
grossly excessive, disproportionately high or unduly harsh, it
cannot claim immunity from judicial scrutiny, and it is always
open to a court to interfere with such penalty in appropriate
cases.
25. In Hind Construction & Engg. Co. Ltd. v. Workmen (AIR
1965 SC 917) , some workers remained absent from duty
treating a particular day as holiday. They were dismissed
from service. The Industrial Tribunal set aside the action.
This Court held that the absence could have been treated as
leave without pay. The workmen might have been warned
and fined. (But)
“ It is impossible to think that any other
reasonable employer would have imposed the
extreme punishment of dismissal on its entire
permanent staff in this manner .” (AIR p. 919,
para 7) (emphasis supplied)
The Court concluded that the punishment imposed on the
workmen was
“ not only severe and out of proportion to the
fault, but one which, in our judgment, no
reasonable employer would have imposed ”.
(AIR pp. 919-20, para 7) (emphasis
supplied)
26. In Federation of Indian Chambers of Commerce and
Industry v. Workmen [(1972) 1 SCC 40] , the allegation
against the employee of the Federation was that he issued
legal notices to the Federation and to the International
Chamber of Commerce which brought discredit to the
Federation—the employer. Domestic inquiry was held
against the employee and his services were terminated. The
punishment was held to be disproportionate to the
misconduct alleged and established. This Court observed
that: (SCC p. 62, para 34)
“[T]he Federation had made a mountain out of
a mole hill and made a trivial matter into one
involving loss of its prestige and reputation.”
27. In Ranjit Thakur referred to earlier, an army officer did
not obey the lawful command of his superior officer by not
18
eating food offered to him. Court-martial proceedings were
initiated and a sentence of rigorous imprisonment of one
year was imposed. He was also dismissed from service, with
added disqualification that he would be unfit for future
employment.
28. Applying the doctrine of proportionality and following
CCSU , Venkatachaliah, J. (as His Lordship then was)
observed: (SCC p. 620, para 25)
“The question of the choice and
quantum of punishment is within the
jurisdiction and discretion of the court
martial. But the sentence has to suit the
offence and the offender. It should not
be 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 logic, then the
sentence would not be immune from
correction. Irrationality and perversity
are recognised grounds of judicial
review .” (emphasis supplied)
26. The doctrine of proportionality is, thus, well
recognized concept of judicial review in our jurisprudence. What
is otherwise within the discretionary domain and sole power of
the decision maker to quantify punishment once the charge of
misconduct stands proved, such discretionary power is
exposed to judicial intervention if exercised in a manner which
19
is out of proportion to the fault. Award of punishment which is
grossly in access to the allegations cannot claim immunity and
remains open for interference under limited scope of judicial
review. One of the tests to be applied while dealing with the
question of quantum of punishment would be : would any
reasonable employer have imposed such punishment in like
circumstances? Obviously, a reasonable employer is expected
to take into consideration measure, magnitude and degree of
misconduct and all other relevant circumstances and exclude
irrelevant matters before imposing punishment. In a case like
the present one where the misconduct of the delinquent was
unauthorized absence from duty for six months but upon being
charged of such misconduct, he fairly admitted his guilt and
explained the reasons for his absence by stating that he did not
have any intention nor desired to disobey the order of higher
authority or violate any of the Company’s Rules and
Regulations but the reason was purely personal and beyond his
control and, as a matter of fact, he sent his resignation which
was not accepted, the order of removal cannot be held to be
justified, since in our judgment, no reasonable employer would
20
have imposed extreme punishment of removal in like
circumstances. The punishment is not only unduly harsh but
grossly in excess to the allegations. Ordinarily, we would have
sent the matter back to the appropriate authority for
reconsideration on the question of punishment but in the facts
and circumstances of the present case, this exercise may not
be proper. In our view, the demand of justice would be met if
the Respondent No. 1 is denied back wages for the entire
period by way of punishment for the proved misconduct of
unauthorized absence for six months.
27. Consequently, both these appeals are allowed in
part. The appellants shall reinstate Respondent No. 1 forthwith
but he will not be entitled to any back wages from the date of
his removal until reinstatement. Parties will bear their own
costs.
……………………J
(P. Sathasivam)
…….……………..J
(R. M. Lodha)
New Delhi
August 24, 2009.
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