of M.P. and Others Vs. Hazarilal  Insc
179 (12 February 2008)
Sinha & Harjit Singh Bedi
APPEAL NO. 6498 OF 2005 S.B. SINHA, J.
Respondent was a Peon appointed in a Middle School. He is said to have
assaulted one Ram Singh on 5th October, 1989.
He was prosecuted for commission of the said offence and was convicted by a
Court of Magistrate by a judgment dated 22nd July, 1992 under Section 323 read with Section
34 of the Indian Penal Code and sentenced to undergo one month's simple
imprisonment. On an appeal preferred by him, the sentence was reduced to a fine
of Rs.500/- only. A revision thereagainst was filed by the respondent herein
before the High Court.
show cause notice was issued to the respondent as to why disciplinary action
shall not be taken against him in view of the judgment of conviction passed
against him in the said criminal case. By an order dated 25th November, 1993
his services were terminated by the Deputy Director, Vidisha. An appeal thereagainst
was preferred by the respondent in terms of Madhya Pradesh State Services Act.
However, no order was passed therein.
revision was filed by him before the Deputy Director, Public Education.
the pendency of the said revision application, his criminal revision petition
filed before the High Court was dismissed. The prayer of the respondent that he
be reinstated in service was rejected in terms of the order dated 11th January, 1994 passed by the Deputy Director,
Public Education, Vidisha.
Respondent thereafter filed an Original Application before the State
Administrative Tribunal, Gwalior. The Tribunal by an order dated
25th November, 2002 allowed the said application holding :- "However, the
applicant succeeds on the ground that the punishment of removal from service is
grossly excessive because the punishment was only under section 323 IPC and the
High Court has clarified that the punishment does not involve any moral
turpitude every power vested in a public authority has to be exercised fairly,
justly and reasonably. Respondents should have applied their mind to the
penalty which should be appropriately be imposed in the circumstances of the
case. Please see Shankar Das seem to have been done."
petition filed thereagainst by the appellants before the High Court has been
dismissed by reason of the impugned judgment.
Siddhartha Dave, learned counsel appearing on behalf of he appellants,
submitted that the High Court committed a manifest error in passing the
impugned judgment in so far as it failed to take into consideration that the
Tribunal or the High Court could not have interfered with the quantum of
case in hand appears to be a gross one. This Court is unable to appreciate the
attitude on the part of the appellant herein which ex-facie appears to be
wholly unreasonable. Respondent had not committed any misconduct within the
meaning of the provisions of the Service Rules. He was involved in a matter for
causing simple injury to another person. He was not even sent to prison. Only a
sum of Rs.500/- was imposed upon him as fine.
Rule 19 of M.P. Civil Services (Classification, Control and Appeal) Rules,
1966, which provides for special procedure in certain cases, to which reliance
has been placed by the appellants does not appear to be applicable in the
instant case. The said Rule reads thus :- "19. Special procedure in
anything contained in Rule 14 to Rule 18
any penalty is imposed on a Government servant on the ground of conduct which
has led to his conviction on a criminal charge, or
where the disciplinary authority is satisfied for reasons to be recorded by it
in writing that it is not reasonable practicable to hold an inquiry in the
manner provided in these rules, or
the Governor is satisfied that in the interest of the security of the State, it
is not expedient to hold any inquiry in the manner provided in these rules, the
disciplinary authority may consider the circumstances of the case and make such
orders thereon as it deems fit.
that the Commission shall be consulted where such consultation is necessary,
before any orders are made in any case under this rule."
reason of the said provision, thus, "the disciplinary authority has been
empowered to consider the circumstances of the case where any penalty is
imposed on a Government servant on the ground of conduct which has led to his
conviction on a criminal charge", but the same would not mean that
irrespective of the nature of the case in which he was involved or the
punishment which has been imposed upon him, an order of dismissal must be
passed. Such a construction, in our opinion, is not warranted.
authority which is conferred with a statutory discretionary power is bound to
take into consideration all the attending facts and circumstances of the case
before imposing an order of punishment. While exercising such power, the
disciplinary authority must act reasonably and fairly. Respondent occupied the
lowest rank of the cadre. He was merely a contingency peon.
of his service in the department would not bring a bad name to the State. He
was not convicted for any act involving moral turpitude. He was not punished
for any heinous offence.
Tribunal, in our opinion, rightly placed reliance upon the decision of this
Court in Shankar Das vs. Union of India : (1985) 2 SCC 358 wherein this Court
commended the judgment of a Magistrate of Delhi as he had let off the appellant
therein under Section 12 of the Probation of Offenders Act stating :-
"Misfortune dogged the accused for about a year.and it seems that it was
under the force of adverse circumstances that he held back the money in
Dass is a middle-aged man and it is obvious that it was under compelling
circumstances that he could not deposit the money in question in time. He is
not a previous convict. Having regard to the circumstances of the case, I am of
the opinion that he should be dealt with under the Probation of Offenders Act,
Despite the said observation Shankar Das was dismissed from service.
Court held:- "7. It is to be lamented that despite these observations of
the learned Magistrate, the Government chose to dismiss the appellant in a
huff, without applying its mind to the penalty which could appropriately be
imposed upon him insofar as his service career was concerned. Clause (a) of the
second proviso to Article 311(2) of the Constitution confers on the Government
the power to dismiss a person from service "on the ground of conduct which
has led to his conviction on a criminal charge".
that power, like every other power, has to be exercised fairly, justly and
reasonably. Surely, the Constitution does not contemplate that a government
servant who is convicted for parking his scooter in a no- parking area should
be dismissed from service. He may, perhaps, not be entitled to be heard on the
question of penalty since clause (a) of the second proviso to Article 311(2)
makes the provisions of that article inapplicable when a penalty is to be
imposed on a government servant on the ground of conduct which has led to his
conviction on a criminal charge. But the right to impose a penalty carries with
it the duty to act justly. Considering the facts of this case, there can be no two
opinions that the penalty of dismissal from service imposed upon the appellant
express similar dis-satisfaction in this case.
Furthermore the legal parameters of judicial review has undergone a change. Wednesbury
principle of unreasonableness has been replaced by the doctrine of
proportionality. [See : Indian Airlines Ltd. vs. Prabha D. Kumari : (2006) 11
SCC 67 ; State of U.P. vs. Sheo Shanker Lal Srivastava :
(2006) 3 SCC 276 and M.P. Gangadharan and another vs. State of Kerala and others : AIR 2006 SC 2360.]
this stage we may also notice the application of the Doctrine by the United
Kingdom House of Lords in Seal (FC) (Appellant) vs. Chief Constable of South
Wales Police (Respondent) :  4 All ER 177; Huang (FC) (Respondent) v.
Secretary of State for the Home Department (Appellant) and Kashmiri (FC)
(Appellant) vs. Secretary of State for the Home Department (Respondent)
(Conjoined Appeals) :  4 All ER 15;
Tweed (Appellant) vs. Parades Commission
for Northern Ireland (Respondents) (Northern Ireland)  2 All ER 273; Belfast City
Council (Appellants) vs. Miss Behavin' Limited (Respondents) (Northern Ireland)  3 All ER 1007 and R (on the
application of Countryside Alliance and others and others) vs. Her Majesty's
Attorney General and another  3 WLR 922.
is interesting to note that distinguishing between the traditional grounds of
judicial review and the doctrine of proportionality, Lord Carswell in Tweed (Supra) after referring to previous decisions and
starting point is that there is an overlap between the traditional grounds of
review and the approach of proportionality. Most cases would be decided in the
same way whichever approach is adopted. But the intensity of review is somewhat
greater under the proportionality approach. Making due allowance for important
structural differences between various convention rights, which I do not
propose to discuss, a few generalisations are perhaps permissible. I would mention
three concrete differences without suggesting that my statement is exhaustive.
First, the doctrine of proportionality may require the reviewing court to
assess the balance which the decision maker has struck, not merely whether it
is within the range of rational or reasonable decisions.
the proportionality test may go further than the traditional grounds of review
inasmuch as it may require attention to be directed to the relative weight
accorded to interests and considerations. Thirdly, even the heightened scrutiny
test developed in R v Ministry of Defence, Ex p Smith  QB 517, 554 is not
necessarily appropriate to the protection of human rights."
Applying the said principle also, in our opinion, no interference with the
impugned judgment is called for.
Reliance has been placed by the learned counsel on Coimbatore District Central
Cooperative Bank vs. Coimbatore Distarict Central Cooperative Bank Employees
Association and another: (2007) 4 SCC 669 wherein also this Court accepted the
applicability of the doctrine of proportionality. Therein this Court has quoted
with approval the decision of this Court in Ranjit Thakur vs. Union of India
and others : (1987) 4 SCC 611 as also M.P. Gangadharan and another vs. State of
Kerala and others : (2006) 6 SCC 162,
which had applied the doctrine of proportionality.
For the reasons aforementioned there is no merit in this appeal which is
dismissed with costs. Counsel fee is quantified at Rs.25,000/-.