Union of India & Ors Vs. Dwarka Prasad Tiwari  Insc 649 (12 October 2006)
Pasayat & Lokeshwar Singh Panta
out of SLP ) No. 23847 of 2005) With CA No. 4455 of 2006 (Arising out SLP(C)
No. 15725 of 2006) ARIJIT PASAYAT, J.
granted in both the Special Leave Petitions.
two appeals are directed against a common judgment of the Madhya Pradesh High
Court at Jabalpur allowing the writ petition filed by the respondentDwarka
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.
background facts in a nutshell are as follows:
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 Roada 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 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.
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.
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.
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
as noted above the punishment was set aside and direction for reinstatement
with certain other benefits was given.
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.
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.
charges against respondent-Dwarka Prasad were as follows:
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.
-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."
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
scope of interference with quantum of punishment has been the subject-matter of
various decisions of this Court.
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. 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 The development of the principle of "strict scrutiny" or
"proportionality" in administrative law in England is, however, recent.
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
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.
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. 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
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
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:
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.
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. 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)
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.
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
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.
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. 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.
"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
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 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).
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 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
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.