Union Of India & Anr Vs. K.G. Soni
 Insc 495 (17
Pasayat & Lokeshwar Singh Panta
out of SLP (C) No. 19946 of 2004) ARIJIT PASAYAT, J.
in this appeal is to the judgment rendered by a Division Bench of the Madhya
Pradesh High Court at Jabalpur holding that the punishment of
compulsory retirement imposed on the respondent was disproportionate to the
alleged misconduct. Therefore, the Appellate Authority was directed to consider
the matter afresh with regard to the quantum of punishment.
facts in a nutshell are as follows:
was a Store Attendant in the Bank Note Press, District Dewas (M.P). A
charge-sheet was issued against him on the foundation that though he had got
married with one Parvathibai in the year 1973, while filling up the attestation
form on 16.3.1974, he did not show her name as his wife. It was further alleged
that he got married for the second time in October, 1974 with one Ushabai. On
the basis of this non-disclosure, which, authorities considered to be a
misconduct, a disciplinary proceeding was initiated. It is to be noted that the
non-disclosure came to the notice of the authorities when Parvathibai made a
complaint about the second marriage. The enquiry was conducted under Central
Civil Services (Classification, Control and Appeal) Rules, 1965 (in short the
'Rules'). The Enquiry Officer recorded findings in favour of the respondent.
The Disciplinary Authority differed with the findings of the Inquiry Officer and
came to hold that second marriage had in fact been performed and accordingly it
issued show cause notice to the respondent and eventually came to hold that the
respondent was guilty of misconduct and imposed the punishment of removal by
order dated 2.4.1996.
respondent being aggrieved preferred an appeal and the Appellate Authority
converted the punishment of removal into one of compulsory retirement. The said
order was passed on 15.4.1997.
aggrieved with the aforesaid order, the respondent approached the Central
Administrative Tribunal, Jabalpur Bench (in short the 'Tribunal') on
13.12.1998. The Tribunal came to hold that the application was barred by
limitation and accordingly declined to entertain the same. The Tribunal
recorded a finding that no application for condonation of delay has been filed.
order passed by the Tribunal a Writ application was filed. It was submitted
that the Tribunal had erroneously held that there was no application for condonation
is not one of those cases where cognizance cannot be taken by the Tribunal
under Section 21(2) of the Administrative Tribunal Act, 1985 (in short the
was, therefore, submitted that the Tribunal should have condoned the delay and
dealt with the matter on merits. It was further submitted that the quantum of
punishment awarded did not commensurate with the alleged misconduct.
appellants took the stand that the punishment awarded was rather liberal and no
interference was called for.
High Court was of the view that ordinarily it would have remanded the matter to
Tribunal for fresh consideration on merits but it was of the view that this is
a fit case where the matter should be remitted to the Appellate Authority for
reconsideration with regard to the quantum of punishment.
only basis for coming to the conclusion that the complaint was made by the wife
about the alleged second marriage belatedly, and this is not such a misconduct
which warrants compulsory retirement before his superannuation.
support of the appeal learned counsel for the appellants submitted that the
High Court has clearly lost sight of the scope for interference with the
quantum of punishment.
response, learned counsel for the respondent supported the judgment.
to be noted that the Appellate Authority had noted as follows:- "Although,
after careful consideration of 22 years services rendered by him in Bank Note
Press, the undersigned as an Appellate Authority has cordially considered the
appeal using the powers conferred under Rule 27 of Central Civil Service
(Classification, Central and Appeal) Rule, 1965 that the penalty imposed upon
him the removal from services has been termed as cancelled and in place of
this, Sh. K.G. Soni, Ex.Sr. Attendant has been awarded a penalty of Compulsory
Retirement w.e.f. 02.04.1996. As a result of Compulsory Retirement, Sh. K.G. Soni
has entitled for payment of full pension, Gratuity etc. under Rule Central
Civil Services (Pension) Rule, 1972." 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:
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.
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.
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
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."
The 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 Damoh Panna Sagar Rural Regional Bank
and Others v. Munna Lal Jain (2005 (10) SCC 84).
High Court has not kept the correct position in view.
not even indicated as to why the punishment was considered disproportionate and
why it considered the misconduct to be not serious.
impugned order of the High Court is set aside and that of the Appellate
Authority, the operative part of which has been quoted above, is restored.
appeal is allowed without any order as to costs.