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TMI Blog2005 (9) TMI 697X X X X Extracts X X X X X X X X Extracts X X X X ..... satisfactory and disciplinary proceedings were initiated. The Enquiry Officer found him guilty of the charges leveled and after giving him opportunity of hearing as regards the quantum of punishment, order of removal from service was passed. 3. Questioning correctness of the said order, writ petition was filed. Learned Single Judge before whom the matter was placed held that there was some divergence of view in the judgments of learned Single Judges and, therefore, referred the matter to a larger Bench. The reference was as regards the effect of acquittal in the criminal case and smallness of the amount involved. The High Court by the impugned judgment held that the acquittal of the case was really of no consequence and small amount of discrepancy was equally inconsequential. 4. In support of the appeal learned counsel for the appellant submitted that the High Court should have considered the question of quantum of punishment by applying the principles of Section 11A of Industrial Disputes Act, 1947 (in short the 'Act'). It was further submitted there were minor lapses and smallness of the amount has not been considered in the proper perspective and order of termination ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... trator 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. 6. It is equally well, known that in 1933, Lord Diplock in Council for Civil Services Union v. Minister of Civil Service, (1983) 1 AC 768 (called the CCSU case) summarized the principles of judicial review of administrative action as based upon one or other of the following viz., illegality, procedural irregularity and irrationality. He, however, opined that "proportionality" was a "future possibility". 7. In Om Kumar and Ors. v. Union of India, 2000(7)SCALE524, this Court observed, inter alia, as follows: "The principle originated in Prussia in the nineteenth century and has since been adopted in Germany, France and other European countries. The European Court of Justi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 R. v. Lord Saville ex p, (1999) 4 All ER 860 (CA). 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. However, the principle of "strict scrutiny" or "proportionality" and primary review came to be explained in R. v. Secy. of State for the Home Deptt. ex p Brind (1991) 1 AC 696. That case related to directions given by the Home Secretary under the Broadcasting Act, 1981 requiring BBC and IBA to refrain from broadcasting certain matters through persons who represented organizations which were proscribed under legislation concerning the prevention of terrorism. The extent of prohibition was linked with the direct statemen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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)ILLJ172SC (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 reasonable person could have taken. If his action does not satisfy these rules, it is to be treated as arbitrary. In G.B. Mahajan v. Jalgaon Municipal Council AIR1991SC1153 Venkatachaliah, J. (as he then was) pointed out that "reasonableness" of the administrator under Article 14 in the context of administrative law has to be judged from the stand point of Wednesbury rules. In Tata Cellular v. Uni ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lief, 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." 9. In Union of India and Anr. v. G. Ganayutham (2000)IILLJ648SC, 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 material before him and within the frame work 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 into the correctness of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 1988CriLJ158 ". 10. 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 the Court, in the sense that it was in defiance of logic or moral standards. In view of what has been stated in the Wednesbury's case (supra) the Court would not go into the correctness of the choice made by the administrator open to him and the Court should not substitute its decision to that of the administra ..... X X X X Extracts X X X X X X X X Extracts X X X X
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