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Service matter = Doctrine of proportionality in punishment= Deputy Commissioner, KVS & Ors. ….Appellants Vs. J.Hussain ….Respondent – published in judis.nic.in/supremecourt/filename=40856

Service matter =  Doctrine of proportionality in punishment –  Enter office forcibly in intoxication mood – removed from service – correct –

 

English: The supreme court of india. Taken abo...

English: The supreme court of india. Taken about 170 m from the main building outside the perimeter wall (Photo credit: Wikipedia)

 

the High Court has found the penalty of removal from  service  to

 

be disproportionate to the nature and gravity of his misconduct.  Thus, –

 

 

 

invoking the doctrine  of  proportionality,  the  High  Court  has  directed

 

reinstatement of the respondent into  service  with  continuity  of  service

 

only for the purpose of pensionary benefits.  It is, further, directed  that

 

the respondent would not be entitled to two annual  increments  without  any

 

cumulative effect and no back wages for  the  intervening  period  shall  be

 

admissible to him.  According to the  High  Court,  the  aforesaid  penalty,

 

instead of removal, would  meet  the  ends  of  justice.   It  is  in  these

 

circumstances, the appellant-school has approached  this  Court  questioning

 

the reasoning and rationale of  the  direction  given  by  the  High  Court.

 

whether the penalty of removal from  service  inflicted

 

upon the respondent herein by the appellant-school offends the principle  of proportionality i.e. whether the penalty is disproportionate to the  gravity of the misconduct to the extent that it shocks the conscience of  the  Court and is to be treated so arbitrary so as to term it as  violative  of  Artice14 of the Constitution?

 

 

 

   “A person, when dismissed from service, is put to a  great

 

           hardship but that would not mean that a grave  misconduct  should

 

           go unpunished. Although the doctrine of  proportionality  may  be

 

           applicable in such matter, but a  punishment  of  dismissal  from

 

           service for such a misconduct cannot be said to  be  unheard  of.

 

           Maintenance of discipline of an institution is equally important.

 

           Keeping the aforementioned principles in view, we may hereinafter

 

           notice a few recent decisions of this Court.”

 

 

 

 

 

 

 

 

 

12.   In the present case,  it  cannot  be  imputed  that  the  departmental

 

authorities   while  imposing  the  punishment  acted  in  a  manner   which

 

manifests lack of reasonableness or fairness.  

 

For all these reasons, we find the reasoning  of  the  High  Court  as

 

unacceptable.  We, accordingly allow this appeal, set aside the –

 

 

 

judgment of the High Court and restore the decision of the Tribunal  thereby

 

upholding the punishment of removal of  the  respondent  from  service.   No

 

costs.

 

[REPORTABLE]

 

IN THE SUPREME COURT OF INDIA

 

CIVIL APPELLATE JURISDICTION

 

CIVIL APPEAL NO. 8948/2013
(arising out of the SLP (Civil) No. 18271 of 2006)

 

Deputy Commissioner, KVS & Ors. ….Appellants

 

 

 

Vs.

 

J.Hussain ….Respondent

 

 

 

J U D G M E N T

 

A.K.SIKRI,J.

 

1. Leave granted.

 

2. The respondent herein was served with a charge memo dated 2/3rd
August 2000 under the provisions of Rule 14 of the Central Civil Services
(CCA) Rules, 1965 and Rule 20 of the Central Civil Services (Conduct) Rules
1964. Primary allegation against him was that he had forcibly entered into
the office of Principal of Kendriya Vidayala Sangthan, Tura in the State of
Meghalaya, where he was posted and working as Upper Division Clerk. It was
on 24.5.2000 at around 11.30 a.m. The respondent was in a fully drunken
state. –

 

The respondent in his reply admitted the incident, namely he entered the
office of the Principal in that condition. However, according to him, he
did not enter the office of the Principal forcibly. The respondent also
offered his unconditional apology for consumption of alcohol and requested
the Disciplinary Authority to take a sympathetic view of the matter and
pardon him. The Disciplinary Authority went through the reply. Since the
respondent had admitted the charge, it was felt that in view thereof, no
regular enquiry was needed and on the basis of admission, the orders dated
31st August 2000 were passed, imposing the penalty of ‘removal’ from the
service for the said misconduct. Departmental Appeal filed by the
respondent was also dismissed by the Appellate Authority. The respondent
knocked the Judicial Forum challenging both the orders passed by
Disciplinary as well as Appellate Authority. He first approached the
Central Administrative Tribunal. The Tribunal, however, dismissed his
petition. Against the order of the Tribunal, the respondent filed Writ
Petition. This time he succeeded in his effort inasmuch as by the impugned
judgment, the High Court has found the penalty of removal from service to
be disproportionate to the nature and gravity of his misconduct. Thus, –

 

invoking the doctrine of proportionality, the High Court has directed
reinstatement of the respondent into service with continuity of service
only for the purpose of pensionary benefits. It is, further, directed that
the respondent would not be entitled to two annual increments without any
cumulative effect and no back wages for the intervening period shall be
admissible to him. According to the High Court, the aforesaid penalty,
instead of removal, would meet the ends of justice. It is in these
circumstances, the appellant-school has approached this Court questioning
the reasoning and rationale of the direction given by the High Court.

 
3. In the aforesaid backdrop, the only question to be examined in these
proceedings is as to whether the penalty of removal from service inflicted
upon the respondent herein by the appellant-school offends the principle of
proportionality i.e. whether the penalty is disproportionate to the gravity
of the misconduct to the extent that it shocks the conscience of the Court
and is to be treated so arbitrary so as to term it as violative of Artice
14 of the Constitution?

 

 

4. The parties are not at cudgels in so far as facts are concerned and
in such a scenario we have to examine the nature of misconduct imputed to
the respondent in the charge memorandum and then apply the principle of
proportionality thereto. The sole article of charge was that the
respondent, on 24th May 2000 in duty hours, entered forcibly in the
Principal’s office in duty hours at 11.30 a.m. in fully drunken alcohol
state. The statement of imputation of the said misconduct/misbehavior
annexed with the charge sheet as Annexure II reads as under:

 

 

 

“That the said Md. J.Hussain, while functioning as UDC reported at
Kendriya Vidalaya, Tura on 24th May 2000 in duty hours and
entered forcibly in the Principal’s Office at around 11.30 a.m.
in fully drunken alcohol state. He was beyond the control. It
was complaint to the police beat office Araimile, New Tura, by
the Principal vide her letter dated 24.5.2000. The Police
Authority escorted Md.J.Hussain to the Tura Civil hospital for
Medical examination under Ref.No.Araimile B.H./GDE No.316 dated
24.5.2000 as mentioned by in-Charge Araimile B.H., Tura letter
dated 28.5.2000. The consumption of alcohol by Md.J.Hussain was
confirmed by the Senior Medical & Health Officer, Tura Civil
Hospital, vide his certificate TCH Ref. No.E.2806/2000 dated
24.5.2000.

 

 

Thus Md.J.Hussain, UDC, has committed a serious misconduct and
violated rule 3(1) (i) (ii) & (iii) of CCS (Conduct) Rules 1964
as extended to the employees of Kendriya Vidalaya Sangathan.”

 

 

 

5. As pointed out above in his reply, the respondent accepted the
charge, though he insisted that it was not a case of forcibly entry. It
would also pertinent to add that immediately after the incident police was
called and respondent was medically examined as well. The medical
examination confirmed that the respondent was under the influence of
liquor.

 

6. When the charge proved, as happened in the instance case, it is the
disciplinary authority with whom lies the discretion to decide as to what
kind of punishment is to be imposed. Of course, this discretion has to be
examined objectively keeping in mind the nature and gravity of charge. The
Disciplinary Authority is to decide a particular penalty specified in the
relevant Rules. Host of factors go into the decision making while
exercising such a discretion which include, apart from the nature and
gravity of misconduct, past conduct, nature of duties assigned to the –

 

delinquent, responsibility of duties assigned to the delinquent, previous
penalty, if any, and the discipline required to be maintained in department
or establishment where he works, as well as extenuating circumstances, if
any exist. The order of the Appellate Authority while having a re-look of
the case would, obviously, examine as to whether the punishment imposed by
the Disciplinary Authority is reasonable or not. If the Appellate
Authority is of the opinion that the case warrants lesser penalty, it can
reduce the penalty so imposed by the Disciplinary Authority. Such a power
which vests with the Appellate Authority departmentally is ordinarily not
available to the Court or a Tribunal. The Court while undertaking judicial
review of the matter is not supposed to substitute its own opinion on
reappraisal of facts.(See: Union Territory of Dadra & Nagar Haveli vs.
Gulabhia M.Lad (2010) 5 SCC 775) In exercise of power of judicial review,
however, the Court can interfere with the punishment imposed when it is
found to be totally irrational or is outrageous in defiance of logic. This
limited scope of judicial review is permissible and interference is
available only when punishment is shockingly disproportionate, suggesting
lack of good faith. Otherwise, merely –

 

because in the opinion of the Court lesser punishment would have been more
appropriate, cannot be a ground to interfere with the discretion of the
departmental authorities.

 

7. When the punishment is found to be outrageously disproportionate to
the nature of charge, principle of proportionality comes into play. It is,
however, to be borne in mind that this principle would be attracted, which
is in tune with doctrine of Wednesbury Rule of reasonableness, only when in
the facts and circumstances of the case, penalty imposed is so
disproportionate to the nature of charge that it shocks the conscience of
the Court and the Court is forced to believe that it is totally
unreasonable and arbitrary. This principle of proportionality was
propounded by Lord Diplock in Council of Civil Service Unions vs. Minister
for Civil Service in the following words:

 

 

 

“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
of 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”. This 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.”

 

 

 

8. Imprimatur to the aforesaid principle was accorded by this Court as
well, in Ranjit Thakur vs. Union of India (1987) 4 SCC 611. Speaking for
the Court, Justice Venkatachaliah (as he then was) emphasizing that “all
powers have legal limits” invokes the aforesaid doctrine in the following
words:

 

“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 recognized grounds of judicial
review.”

 

 

 

9. To be fair to the High Court, we may mention that it was conscious of
the narrowed scope of the doctrine of proportionality as a tool of judicial
review and has stated so while giving lucid description of this principle
in the impugned judgment. However, we are of the view that it is the
application of this principle on the facts of this case where the High
Court has committed an error while holding that the punishment was shocking
and arbitrary. Moreover, while interfering therewith, the High Court has
itself prescribed the punishment which, according to it, “would meet the
ends of justice”, little realizing that the Court cannot act a disciplinary
authority and impose a particular penalty. Even in those cases where it is
found that the punishment is disproportionate to the nature of charge, the
Court can only refer the matter back to the Disciplinary Authority to take
appropriate view by imposing lesser punishment, rather than directing
itself the exact nature of penalty in a given case.

 

10. Here in the given case, we find that the High Court has totally
downplayed the seriousness of misconduct. It was a case where the –

 

respondent employee had gone to the place of work in a fully drunken state.
Going to the place of work under the influence of alcohol during working
hours (it was 11.30 a.m.) would itself be a serious act of misconduct.
What compounds the gravity of delinquency is that the place of work is not
any commercial establishment but a school i.e. temple of learning. The
High Court has glossed over and trivialized the aforesaid aspect by simply
stating that the respondent was not a “habitual drunkard” and it is not the
case of the management that he used to come to the school in a drunken
state “regularly or quite often”. Even a singular act of this nature would
have serious implications. There is another pertinent aspect also which
cannot be lost sight of. The respondent had barged into the office of the
Principal. As per the respondent’s explanation, he had gone to the market
and his friends offered him drinks which he consumed. It was a new
experience for him. Therefore, he felt drowsiness immediately after
consumption of alcohol and while returning home, he remembered that he had
left some articles in the school premises and therefore he had gone to
school premises to pick up those left out articles belonging to him. If
the respondent was feeling drowsiness as –

 

claimed by him where was the occasion for him to go to the school in that
condition? Moreover, if he had left some articles in the school premises
and had visited the school only to pick up those articles, what prompted
him to enter the office of the Principal? There is no explanation of this
behavior on the part of the respondent in his reply. It would, obviously,
be a case of forcible entry as it is no where pleaded that the Principal
asked him to come to his room or he had gone to the room of the Principal
with his permission or for any specific purpose.

 

11. Thus, in our view entering the school premises in working hours i.e.
11.30 a.m. in an inebriated condition and thereafter forcibly entering into
the Principal’s room would constitute a serious misconduct. Penalty of
removal for such a misconduct cannot be treated as disproportionate. It
does not seem to be unreasonable and does not shock the conscience of the
Court. Though it does not appear to be excessive either, but even if it
were to be so, merely because the Court feels that penalty should have been
lighter than the one imposed, by itself is not a ground to interfere with
the discretion of the disciplinary authorities. The –

 

penalty should not only be excessive but disproportionate as well, that too
the extent that it shocks the conscience of the Court and the Court is
forced to find it as totally unreasonable and arbitrary thereby offending
the provision of Article 14 of the Constitution. It is stated at the cost
of the repetition that discretion lies with the disciplinary/appellate
authority to impose a particular penalty keeping in view the nature and
gravity of charge. Once, it is found that the penalty is not shockingly
disproportionate, merely because in the opinion of the Court lesser
punishment could have been more justified, cannot be a reason to interfere
with the said penalty. The High Court has also mentioned in the impugned
order that the respondent is a married man with family consisting of number
of dependents and is suffering hardship because of the said “economic
capital punishment”. However, such mitigating circumstances are to be
looked into by the departmental authorities. It was not even pleaded
before them and is an after effect of the penalty. In all cases dealing
with the penalty of removal, dismissal or compulsory retirements, hardship
would result. That would not mean that in a given case punishment of
removal can be discarded by the Court. That cannot a ground for the Court
to interdict with the penalty. –

 

This is specifically held by this Court in H.G.E.Trust & Anr. vs. State of
Karnataka & Ors. (2006) 1 SCC 430 in the following words:

 

“A person, when dismissed from service, is put to a great
hardship but that would not mean that a grave misconduct should
go unpunished. Although the doctrine of proportionality may be
applicable in such matter, but a punishment of dismissal from
service for such a misconduct cannot be said to be unheard of.
Maintenance of discipline of an institution is equally important.
Keeping the aforementioned principles in view, we may hereinafter
notice a few recent decisions of this Court.”

 

 

 
12. In the present case, it cannot be imputed that the departmental
authorities while imposing the punishment acted in a manner which
manifests lack of reasonableness or fairness. In Karnataka Bank Ltd. Vs.
A.L.Mohan Rao (2006) 1 SCC 63, charge against the delinquent employee was
that he had colluded with one of the Branch Managers and enabled grant of
fictitious loan. The High Court interfered with the punishment of
dismissal and ordered reinstatement on sympathetic ground even when he
found misconduct was proved. This Court reversed the judgment of the High
Court. Repeatedly this Court has emphasized the courts –

 

should not be guided by misplaced sympathy or continuity ground, as a
factor in judicial review while examining the quantum of punishment.

 

13. We would like to refer the case of the Ex-Constable Ramvir Singh vs.
Union of India & Ors. (2009) 3 SCC 97as well. The appellant in that case
was working as a Constable in the Border Security Force. Penalty of
removal from service was imposed upon him on account of his failure to
return to place of duty despite instructions given to him and refusal to
take food in protest when he was punished and refusal to do pack drill
while undergoing rigorous imprisonment. This Court held that the
punishment imposed upon him was not disproportionate. In Charanjit Lamba
vs. Commanding Officer (2010) 11 SCC 314 where the appellant who was
holding the rank of Major in the Indian Army had exhibited dishonesty in
making a false claim of transport charges of household luggage. It was
held that the penalty of dismissal was not disproportionate.

 

14. For all these reasons, we find the reasoning of the High Court as
unacceptable. We, accordingly allow this appeal, set aside the –

 

judgment of the High Court and restore the decision of the Tribunal thereby
upholding the punishment of removal of the respondent from service. No
costs.

 

 

 

……..……………………………….J.
(Sudhansu Jyoti Mukhopadhaya)

 

 

 

………………………………………J.
(A.K.Sikri)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 
New Delhi,
October 4, 2013

 

 

 

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