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TMI Blog1997 (8) TMI 521X X X X Extracts X X X X X X X X Extracts X X X X ..... Civil Services (pension) Rules, 1972 (hereinafter called the 'Rules') proposing withdrawal of full pension and gratuity admissible to the respondent on the ground that the Government suffered substantial loss of revenue due to the misconduct of the respondent. The respondent submitted an explanation. The Union Public Service Commission was consulted and the Commission felt that charges 4 and 6 were not proved but concurred with the findings of the Inquiry Officer on other charges. based on the Commission's advice, a penalty of withholding 50% of the pension and 50% of gratuity was awarded to the respondent by orders dated 8.5.1984. Questioning the same, a writ petition was filed by the respondent in the High Court of Madras which was later transferred to the Tribunal. After hearing the respective counsel for the parties, the Tribunal held by judgment dated 5.12.1986 that under Rule 9 of the Rules the competent authority could not withdraw any art of the gratuity inasmuch as the said provision referred merely to withholding of pension and not gratuity. It held that the definition of 'pension' in rule 3(1)(o) which included gratuity was not applicable for purpose ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of 'proportionality' was referred to, still it was only after arriving at a finding that the punishment was 'shockingly' disproportionate that this Court interfered with the punishment and that too under Article 136 of the Constitution of India. 5. Learned counsel for the respondent could not place before us any other decision to persuade us to take a view different from the view taken in Jarnail Singh's case (supra). So far as the punishment was concerned, the argued that the Tribunal felt that the punishment was far severe having regard to the charges proved and it was, in those circumstances, permissible for the Tribunal to interfere with the quantum of punishment. Learned counsel relied upon the decision of this Court in State of Maharashtra vs. M.H. Mazumdar [1988 (2) SCC 52] where, on facts, it was held that withdrawing 50% of the pension permanently was harsh and the matter was remanded by this Court to the Government for fresh consideration of the quantum of punishment. 6. The following points arise for consideration. (1) Whether while interpreting Rule 9 of the Central Civil Services (Pension) Rules, 1972 in regard to withdrawal of whole or part of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d because of a contention based on D.V. Kapoor's case that gratuity could not be withdrawn, wholly or partly, under rule 9. But at the time when the matter was disposed of, it was said that inasmuch as the gratuity had already been released in full to the employee, it was not necessary to go into the question whether gratuity could be withheld under the Pension Rules. 8. We are of the view that the last two decision, namely, State of UP vs. UP University Colleges Pensioners' Association [1994 (2) SCC 729] and Sita Ram Yadava vs. Union of India [1995 Suppl. (4) SCC 618] do not, for the reasons stated above, affect the ratio of the case in Jarnail Singh vs. Secretary, Ministry of Home Affairs [1993 (1) SCC 47]. Therefore, the Tribunal was wrong in thinking that under rule 9, 50% of the gratuity could not be withheld. We accordingly set aside the finding of the Tribunal on this point. Point 2; The point is whether judicial review powers in administrative law permit the High Courts or the Administrative Tribunals to apply the principle of 'proportionality? 9. Before we refer to the rulings of this Court on the question of 'proportionality' in the administrative l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bonafide one. The decision could be one of many choices open to the authority but it was for that authority to decide upon the choice and not for the Court to substitute its view. The CCSU Case (1985) and the expectation of future adoption of proportionality:- 11. The principles of judicial review of administrative action wee further summarised in 1985 by Lord Diplock in CCSU vs. Minister for Civil Services [1985 (1) AC 374] as illegality, procedural impropriety and irrationality. He said more grounds could in future become available, including the doctrine of proportionality which was a principle followed by certain other members of the European Economic community. Lord Diplock' observed in that case as follows: "...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 the grounds upon 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'. That is not to say that further developmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... while observing that 'proportionality' was an aspect of judicial review, the Court still referred to the CCSU description of irrationality - namely, that it should be in outrageous in defiance of logic if it was to be treated as irrational, Ranjit Thakur was followed in Ex. Naik Sardar Singh vs. union of India [1991 (3) SCC 213, again a case under the Army Act. What it proportionality? 13. In R vs. Goldstein [1983 (1) WLR 151 (157)], Lord Diplock said: "This would indeed be using a sledge-hammer to crack a nut". Sir John Laws (Judge of the Q.B. Division) has described 'proportionality' as a principle here the Court is : Concerned with the way in which the decision-maker has ordered his priortities; the very essence of decision making consists surely, in the attribution of relative importance to the factors in the case, and here is my point: This is precisely what proportionality is about" He further says: "What is therefore needed is a preparendness to hold that a decision which overrides a fundamental right without sufficient objective justification will, as a matter of law necessarily be disproportionate to the aims in view... The deplo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d be added in future, - like proportionality. This Court observed (p.677-678): "Those are only the broad grounds but it does not rule out addition of future grounds in course of time. As a matter of fact, in R. vs. Secretary of State for the Home dept. Ex.p. Bring, Lord Diplock refers to one development, namely, the possible recognition of the principle of proportionality" 17. Then in 1996 came the decision in State of A.P. vs. McDowell & Co. [1996 (3) SCC 709] where the Court after referring to Brind and the speeches of Lords Lowry and Ackner, observed that the applicability of the principle of 'proportionality' in administrative law is still 'debatable' and has not yet been 'fully and finally settled'. This Court observed that there were only three grounds as stated in CCSU: "...In this connection, it should be remembered that even in the case of administrative action, the scope of judicial review is limited to three grounds viz (i) unreasonableness, which can be more accurately called irrationality, (ii) illegality and (iii) procedural impropriety (see Council of Civil Service union vs. Minister of Civil Service, which decision has bee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al freedoms made any difference between the English administrative law and our administrative law. We have already referred to the observation in Brind, particularly those of Lord Ackner, s to why 'proportionality' has not become part of the administrative law in England, namely, the absence of the incorporation of the European Human Rights Convention. With proportionality, Court is primary judge of administrative action - Without it, Court's role is secondary: Brind and Smith; 21. This, in our view, is the most important aspect. it is here that Brind (1991) explains the different (2) Cunliffe vs. Commonwealth [(1994) 68. Aust.L.J.791] (at 827, 839) (also 799. 810, 821) Australian Capital Tel.Co, vs. Commonwealth [1992 CL p.106(at 157)(Aus.) R. Vs. Big M Drug Mart Ltd. [1985 (1) SCR 295 (can) consequences of the application of 'proportionality' on the one hand and Wednesbury and CCSU tests on the other. This vital difference was further explained in clearer language by the Court of Appeal in 1996. 22. As stated in Brind and as set out earlier, if the European Human Rights Convention (which, as stated earlier contains several provisions similar to part III of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court of Human Rights at Strasbourg.' The Court of Appeal agreed with the observations of Simon Brown, L.J. in the Divisional Court. 24. We are of the view that even in our country, - in cases not involving fundamental freedoms, - the role of our Courts/Tribunals in administrative law is purely Secondary and while applying Wednesbury and CCSU principles to test the validity of executive action or administrative action taken in exercise of statutory powers, the Courts and Tribunals in our country can only go into the matter, as a secondary reviewing Court to find out if the executive of the administrator in their primary roles have arrived at a reasonable decision on the material before them in the light of Wednesbury and CCSU tests. The choice of the options available is for the authority the Court/Tribunal cannot substitute its view as to what is reasonable. Fundamental rights - Proportionality - administrative law - question left open. 25. The question arises whether our Courts while dealing with executive or administrative action or discretion exercised under statutory powers where fundamental freedoms are involved could apply 'proportionality' and take up a prim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... State of Punjab [1961 (2) SCR 343]} in several situations. Summing up: 28. The current position of proportionality in administrative law in England and India can be summarised as follows;- (1) 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 bonafide. 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. This is the Wednesbury test. (2) 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he pros and cons could have arrived at nor is there a finding, based on material, that the punishment is in 'outrageous' defiance of logic. Neither Wednesbury nor CCSU tests are satisfied. We have still to explain 'Ranjit Thakur'. 30. In Ranjit Thakur, this Court interfered with the punishment only after coming to he conclusion that the punishment was in outrageous defiance of logic and was shocking. It was also described as perverse and irrational. In other words, this Court felt that, on facts, Wednesbury and CCSU tests were satisfied. In another case, in B.C. Chaturvedi vs. Union of India [1995 (6) SCC 749], a three Judge Bench said the same thing as follows; "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 ma itself, in exceptional and rare ..... X X X X Extracts X X X X X X X X Extracts X X X X
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