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TMI Blog2004 (12) TMI 687X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. In the case at hand, the High Court's judgment is full of ifs and buts. There is no definite finding recorded that the punishment is suffering from any infirmity. No basis has been indicated to direct re-consideration of the quantum of punishment. It is to be noted that the respondent had miserably failed to prove bonafides. Though he took the stand that he had informed the head office about the withdrawal, no material was placed before any of the authorities to prove it. It is to be noted that on the basis of material on record, it was concluded that the withdrawal was on 6.5.1992 and not on 9.5.1992 as was claimed. The respondent-employee has withdrawn a sum of ₹ 20,000/- from the account of bank with the State Bank of India on 6.5.1992 and had withdrawn a further sum of ₹ 5,000/- from the cash. Above being the position the impugned judgment of the High Court cannot be maintained and the same is set aside. The Writ Petition filed by the respondent-employee, stands dismisse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ade in the earlier order dated 13.5.1998. Direction was given to the Board to re-consider the penalty of removal. The matter was again re-considered and the Board refused to interfere with the quantum of punishment. The said order was assailed in Writ Petition No. 5236 of 2000. Learned Single judge declined to interfere on the ground that the charges had been proved and the Board had passed a detailed order. Learned Single Judge further held that the factum of illness of the wife had not been proved as no documents had been filed. The matter was carried in a Letters Patent Appeal before the Division Bench. It was stand of the employee before the Division Bench that the money was withdrawn because of an emergency and he had some of money in his Provident Fund account. In any event, the money had been deposited in the bank with 24% interest which was much higher than the rate of interest that is payable on loan availed without security i.e. overdraft. In response, it was submitted by the learned counsel appearing for the employer, that there was no scope for interference with the quantum of punishment. The High Court observed that ordinarily the High Court should not interfere with t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt. In response, learned counsel for the respondent-employee submitted that the appeal was not maintainable and the appeal was really unnecessary one. Ordinarily this Court should not interfere in service matters by appreciating evidence. The respondent-employee had intimated the head office about the withdrawal which is bonafide and he had repaid the amount with 24% interest. The scope of interference with quantum of punishment has been the subject-matter of various decisions of this Court. Such interference cannot be a routine matter. Lord Greene said in 1948 in the famous Wednesbury case (1948 (1) KB 223) that when a statute gave discretion to an administrator to take a decision, the scope of judicial review would remain limited. He said that interference was not permissible unless one or the other of the following conditions was satisfied, namely the order was contrary to law, or relevant factors were not considered, or irrelevant factors were considered; or the decision was one which no reasonable person could have taken. These principles were consistently followed in the UK and in India to judge the validity of administrative action. It is equally well known that in 1983, Lor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... but tried to safeguard the rights zealously by treating the said rights as basic to the common law and the courts then applied the strict scrutiny test. In the Spycatcher case Attorney General v. Guardian Newspapers Ltd. (No.2) (1990) 1 AC 109 (at pp. 283-284), Lord Goff stated that there was no inconsistency between the convention and the common law. In Derbyshire County Council v. Times Newspapers Ltd. (1993) AC 534, Lord Keith treated freedom of expression as part of common law. Recently, in R. v. Secy. Of State for Home Deptt., ex p. Simms (1999) 3 All ER 400 (HL), the right of a prisoner to grant an interview to a journalist was upheld treating the right as part of the common law. Lord Hobhouse held that the policy of the administrator was disproportionate. The need for a more intense and anxious judicial scrutiny in administrative decisions which engage fundamental human rights was re-emphasised in in R. v. Lord Saville ex p (1999) 4 All ER 860 (CA), at pp.870,872) . In all these cases, the English Courts applied the strict scrutiny test rather than describe the test as one of proportionality . But, in any event, in respect of these rights Wednesbury rule has ceased to apply ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rts were then confined only to a secondary review while the primary decision would be with the administrator. Lord Bridge explained the primary and secondary review as follows: The primary judgment as to whether the particular competing public interest justifying the particular restriction imposed falls to be made by the Secretary of State to whom Parliament has entrusted the discretion. But, we are entitled to exercise a secondary judgment by asking whether a reasonable Secretary of State, on the material before him, could reasonably make the primary judgment. But where an administrative action is challenged as arbitrary under Article 14 on the basis of Royappa (1974) 4 SCC 3 (as in cases where punishments in disciplinary cases are challenged), the question will be whether the administrative order is rational or reasonable and the test then is the Wednesbury test. The courts would then be confined only to a secondary role and will only have to see whether the administrator has done well in his primary role, whether he has acted illegally or has omitted relevant factors from consideration or has taken irrelevant factors into consideration or whether his view is one which no reasona ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 [7] SCC 463), this Court summed up the position relating to proportionality in paragraphs 31 and 32, which read as follows: The current position of proportionality in administrative law in England and India can be summarized 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 materia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. Finally, we come to the present case. It is not contended before us that any fundamental freedom is affected. We need not therefore go into the question of proportionality . There is no contention that the punishment imposed is illegal or vitiated by procedural impropriety. As to irrationality , there is no finding by the Tribunal that the decision is one which no sensible person who weighed the 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 (1987 [4] SCC 611) . 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ust record reasons for coming to such a conclusion. Mere expression that the punishment is shockingly disproportionate would not meet the requirement of law. Even in respect of administrative orders Lord Denning M.R. in Breen v. Amalgamated Engineering Union (1971 (1) All E.R. 1148) observed The giving of reasons is one of the fundamentals of good administration . In Alexander Machinery (Dudley) Ltd. v. Crabtree (1974 LCR 120) it was observed: Failure to give reasons amounts to denial of justice . Reasons are live links between the mind of the decision taker to the controversy in question and the decision or conclusion arrived at . Reasons substitute subjectivity by objectivity. The emphasis on recording reasons is that if the decision reveals the inscrutable face of the sphinx , it can, by its silence, render it virtually impossible for the Courts to perform their appellate function or exercise the power of judicial review in adjudging the validity of the decision. Right to reason is an indispensable part of a sound judicial system. Another rationale is that the affected party can know why the decision has gone against him. One of the salutary requirements of natural justice is sp ..... X X X X Extracts X X X X X X X X Extracts X X X X
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