Vs. A.P.S.R.T.C. & Ors  Insc 466 (5 September 2005)
Pasayat & H.K. Sema Arijit Pasayat, J.
in this appeal is to the legality of the judgment rendered by a Full Bench of
the Andhra Pradesh High Court holding that the order of termination passed in
the departmental proceedings against the appellant was justified.
factual background is essentially as follows:
appellant was working as a Conductor in the organization of the Andhra Pradesh
State Road Transport Corporation. Charges were made against him which related
to not issuing tickets at the boarding point itself to the passengers who were
in the bus, failure to collect fare and issue tickets to persons who were
alighting at a particular destination and not properly maintaining records of
tickets and fare. Explanation of the appellant was considered and was found to
be not satisfactory and disciplinary proceedings were initiated. The Enquiry
Officer found him guilty of the charges levelled and after giving him opportunity
of hearing as regards the quantum of punishment, order of removal from service
correctness of the said order, writ petition was filed. Learned Single Judge
before whom the matter was placed held that there was some divergence of view
in the judgments of learned Single Judges and, therefore, referred the matter
to a larger Bench. The reference was as regards the effect of acquittal in the
criminal case and smallness of the amount involved. The High Court by the
impugned judgment held that the acquittal of the case was really of no
consequence and small amount of discrepancy was equally inconsequential.
support of the appeal learned counsel for the appellant submitted that the High
Court should have considered the question of quantum of punishment by applying
the principles of Section 11-A of Industrial Disputes Act, 1947 (in short the
'Act'). It was further submitted there were minor lapses and smallness of the
amount has not been considered in the proper perspective and order of
termination of service should not have been passed. Learned counsel for the
respondent-Corporation supported the order of the Tribunal and judgment of the
High Court. In Karnataka State Road Transport Corporation v. B.S. Hullikatti
(JT 2001 (2) SC 72), it was held that misconduct in such cases where the bus
conductor either had not issued tickets to a large number of passengers or had
issued tickets of lower denomination, punishment of removal is proper. It is
the responsibility of the conductors to collect correct fare charges from the
passengers and deposit the same with the Corporation. They act in fiduciary
capacity and it would be a case of gross misconduct if they do not collect any
fare or the correct amount of fare. A conductor holds a post of trust. A person
guilty of breach of trust should be imposed punishment of removal from service.
The factual position shows that the appellant's conduct in collecting fare at
the designated place and not collecting fare from persons who had already travelled
were in violation of various Regulations contained in The Andhra Pradesh State
Road Transport Corporation Employees (Conduct) Regulations, 1963 (in short
'Regulations'). In the Karnataka State Road Transport case (supra) 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
was finally held that the order of dismissal should not have been set aside.
The view was reiterated by a three Judge Bench in Regional Manager, RSRTC v. Ghanshyam
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.
principle was reiterated in Regional Manager, U.P.S.R.T.C. Etawha and Ors. v. Hoti
Lal and Anr. (JT 2003 (2) SC 27) 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.
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:
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.
"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 case may be.
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 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.
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.
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.
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 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).
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".
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).
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
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:
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.
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.
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.
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 Thus, from the above principles and decided cases, it must be held
that where an administrative decision relating to punishment in disciplinary
cases is questioned as "arbitrary" under Article 14, the court is
confined to Wednesbury principles as a secondary reviewing authority. The court
will not apply proportionality as a primary reviewing court because no issue of
fundamental freedoms nor of discrimination under Article 14 applies in such a
context. The court while reviewing punishment and if it is satisfied that Wednesbury
principles are violated, it has normally to remit the matter to the
administrator for a fresh decision as to the quantum of punishment. Only in
rare cases where there has been long delay in the time taken by the
disciplinary proceedings and in the time taken in the courts, and such extreme
or rare cases can the court substitute its own view as to the quantum of
punishment." In B.C. Chaturvedi v. Union of India and Ors. (1995  SCC
749) it was observed:
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  SCC 463), this Court summed up the position relating to
proportionality in paragraphs 31 and 32, which read as follows:
current position of proportionality in administrative law in England and India
can be summarized as follows:
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.
is the Wednesbury (1948 1 KB 223) test.
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.
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.
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 0out if the
decision-maker could have, on the material before him, arrived at the primary
judgment in the manner he has done.
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.
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.
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.
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.
we come to the present case.
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  SCC 611)".
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.
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.
above background the High Court's judgment does not suffer from any infirmity.
The appeal is dismissed without any order as to costs.