DOCTRINE OF PROPORTIONALITY

[Mr. M. GOVINDARAJAN]

                        In ‘Chairman-cum-Managing Director, Coal India Limited and another V. Mukul Kumar Choudhuri and others’ – AIR 2010 SC 75 the Supreme Court held that the doctrine of proportionality is well recognized concept of judicial review in our jurisprudence.   What is otherwise within the discretionary domain and sole power of the decision maker to quantify punishment once the charge of misconduct stands proved, such discretionary power is exposed to judicial intervention if exercised in a manner which is out of proportion to the fault.

                        In ‘District Central Co-operative Bank V. Coimbatore District Central Co-operative Bank Employees Association and another’ – (2007) 4 SC cases 669 the Supreme Court held that ‘proportionality’ is a principle where the court is concerned with the process, method or manner in which the decision maker has order his priorities, reached a conclusion or arrived at a decision.   The very essence of decision making consists in the attribution of relative importance to the factors and considerations in the case.   The doctrine of proportionality thus steps in focus true nature of exercise the elaboration of a rule of permissible priorities.

                        De Smith in his ‘Judicial Review of Administrative Action’ (1995); pp 601 – 605; para 13.085 stated that ‘proportionality’ involves ‘balancing test; and ‘necessity test’. Whereas the former permits scrutiny of excessive onerous penalties or infringement of rights or interests and a manifest imbalance of relevant considerations, the latter requires infringement of human rights to the least restrictive alternative.

                        In ‘Chairman & Managing Director, V.S.P. & others V. Goparaju Sri Prabakara Hari Babu’ – 2008 (2) GLH 146, the Supreme Court held that once it is found that all the procedural requirements have been complied with, the Court would not ordinarily interfere with the quantum  of punishment upon a delinquent employee.   The Superior Courts only in some cases may invoke the doctrine of proportionality.   If the decision of an employer is found to be within the legal parameters, the jurisdiction would ordinarily not be invoked when the misconduct stands proved.  The Supreme Court further held that in exercise of its jurisdiction under Article 226 of the Constitution of India also cannot, on the basis of sympathy or sentiment overturn a legal order.

                        In ‘B.C. Chaturvedi V. Union of India’- 1995 (6) SCC 749 the Supreme Court held that the High Court/Tribunal, while exercising the power of judicial review, cannot normally substitute its own conclusions 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 would the relief, either by directing the disciplinary authority/appellate authority to reconsider the penalty imposed, or to shorten the litigation, it may itself, in exceptional and rare case, impose the appropriate punishment with cogent reasons in support thereof.

                        In ‘Indian Oil Corporation V. Ashok Kumar Arora’ – 1997 (3) SCC 72 it was held that the court will not intervene unless the punishment wholly disproportionate.

                        The position of proportionately in administrative law in England and India has been summarized by the Supreme Court in ‘Union of India and another V. G. Ganayutham’ – (1997) 7 SC cases 463 as below:

• 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.   The 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 in to 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.  That is the Wednesbury 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 CCSI principles.
• As per Bugdacay, Brind and Smith, 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 had 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 administrative action and find out if the restriction is disproportionate or excessive or is not based upon a fair balancing of fundamental freedom and the need for the restriction there upon.
• The position in India, 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 is 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 India 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 whether the Courts will have a primary role only if the freedoms under Article 19, 21 etc., are involved and not for Article 14.

In ‘Ota Kandla Private Limited V. Union of India’ – 2011 (269) ELT 457 (Guj) the petitioner was engaged in the business as CHA since 1949.  In this case the CHA licence was revoked on the ground of the petitioner having committed breach of statutory regulations and the misconduct by misusing its licence.  The petitioner put forth the ‘doctrine of proportionality’ for setting aside the order of revoking licence and prayed for restoration of licence.  The Court held that once the decision of the Authorities that the petitioner committed violation of statutory regulations and the misconduct is found to be within the legal parameters, all the legal consequences as a result of such violation and the breach have to follow.  The case of the petitioner being the case of contravention of the regulations and misuse of licence as CHA, the Authorities have rightly revoked the licence of the petitioner.   The said decision having been arrived at by the Department after following the due process of law, it could not be said that the said decision was illegal, unreasonable and perverse or irrational.   Under the circumstances, it could also be not said that the punishment of revocation of licence was a harsh punishment or the punishment de hors the doctrine of proportionality.  The petitioner having failed to point out any perversity or unreasonableness on the part of the Authorities warranting judicial intervention, the High Court did not find any merits in the present petition.

                        Thus it is clear that the judicial review of administration action or proportionality of punishment is permissible only if the decision of the decision maker is found to be illegal, unreasonable, irrational or suffering from any procedural impropriety.  As per the Supreme Court Judgment the High Court in exercise of jurisdiction under Article 226 or 227 should not interfere with the legal orders of Administrative Authorities.