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Saturday, October 5, 2013

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 -
 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  Artice14 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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