DOCTRINE OF PROPORTIONALITY CAN BE INVOKED ONLY UNDER CERTAIN CIRCUMSTANCES

[Mr. M. GOVINDARAJAN]

Imposing punishment on misconduct on the part of employee is common.   But the punishment imposed shall be proportionate to the offence committed. If an employee considers the punishment imposed on him is proportionate he may approach the Court for reduction of punishment. The issue to be discussed in this article is whether Court is having power to invoke the doctrine of proportionality in such cases with reference to decided case laws.

In ‘B.C. Chaturvedi V. Union of India and others’ 1995 (11) TMI 379 - SUPREME COURT = AIR 1996 SC 484, the Supreme Court held that the ‘power of complete justice’ has been invoked in some cases by the Supreme Court to alter the punishment/penalty where the one awarded has been regarded as disproportionate, but denied to the High Court.   No doubt, Article 142 of the Constitution has specifically conferred the power of doing complete justice on this Court, to achieve which result it may pass such decree or order as deemed necessary. It would be wrong to think that other courts are not to do complete justice between the parties.   If the power of modification of punishment/penalty were to be available to the Supreme Court only under Article 142, a very large percentage of litigants would be denied this small relief merely because they are not in a position to approach the Supreme Court, which may, inter alia, be because of the poverty of the concerned person. The Supreme Court further held that the framers of the Constitution permitted the High Courts to even strike down a Parliamentary enactment, on such a case being made out, and the Supreme Court has hesitated to concede the power of even substituting a punishment/penalty, on such case being made out.

In ‘State of Meghalaya and others V. Mecken Singh N. Mark’ 2008 (5) TMI 601 - SUPREME COURT = (2008) 7 SCC 580 the Supreme Court observed that while considering the question of proportionality of sentence imposed on a delinquent at the conclusion of departmental inquiry, the Court should also take into consideration, the mental set up of the delinquent, the type of duty to be performed by him and similar relevant circumstances which go into the decision making process.   If the charged employee holds the position of trust where honesty and integrity are inbuilt requirements of functioning it would not be proper to deal with matter leniently.   Misconduct in such cases has to be dealt with iron hands.

In ‘State of UP V. Sheo Shankar Lal Srivatsava’ 2006 (2) TMI 594 - SUPREME COURT = (2006) 3 SCC 276 the Supreme Court held that it is not well settled that the principles of law that the High Court or the Tribunal in exercise of its power of judicial review would not normally interefere with the quantum of punishment.   Doctrine of proportionality can be invoked only under certain situations.   It is now well settled that the High Court shall be very slow in interfering with the quantum of punishment, unless it is found to be shocking to one’s conscience.

In ‘Uttar Pradesh State Road Transport Corporation V. Nanhe Lal Kushwaha’ 2009 (8) TMI 882 = (2009) 8 SCC 772 the Supreme Court held that it is not only the amount involved but the mental set up, the type of duty performed and similar relevant circumstances which go into the decision making process while considering whether the punishment is proportionate or disproportionate.   Where the person deals with public money or is engaged in financial transactions or acts in a fiduciary capacity, the highest degree of integrity and trustworthiness is a must and unexceptionable.

In ‘S. Elhance V. State Bank of India, 2013 (3) TMI 291 - DELHI HIGH COURT = 2013-I-LLJ-544 (Del) irregularity has been found in claiming reimbursement of medical bills over a period of seven years and the total amount of medical bills is just about Rs.40,000/- the overlapping period is also of hardly ten days.   Initially there were 9 charges against the petitioner.   Charge No 1 to 5 and 9 were proved and charge No. 6 to 8 not proved.   The disciplinary authority imposed the punishment of removal from service, which was maintained by the appellate authority.

The petitioner, aggrieved against the order of appellate authority filed a writ petition before High Court.   The High Court held that 3^rd and 4^th charges alone have withstood the judicial scrutiny therefore, the quantum of punishment needs to be looked into afresh by the appellate authority. It is further held that the disciplinary authority as well as the appellate authority returning findings against the petitioner on the third and fourth charges being established calls for no interference by the Court.   However, since findings returned on the other charges are quashed and the petitioner requires to be heard afresh by the Appellate Authority on the quantum of the punishment. All the charges were set aside except charges No. 3 and 4.

Charge No. 3 reads as the petitioner has claimed reimbursement for himself and his family members in respect of concurrent treatment taken simultaneously for overlapping periods under more than one or all, the three disciplines of medicines of allopathic, homeopathy and ayurvedic which are contradictory to each other.   He has thus claimed reimbursement of fictitious bills prepared for overlapping period.

Charge No. 4 reads as the petitioner has taken reimbursement during the past 7 years in respect of 52 diseases, some which are incurable and has submitted number of bills for self and members of his family for substantial amount. When the petitioner was asked to appear before a Medical Board he submitted that he had no disease.   He thus claimed reimbursement in respect of bills most of which have been bogus.

The appellate authority as per the court order again considered the case of the petitioner. He held that in Charge No. 4 it is alleged that the appellant claimed reimbursement for 52 diseases, but refused to appear before the Medical Board saying that he had no disease which established his mala fide intention for claiming bills for non existing diseases and amounts to misusing the bank’s medical facilities with a view to make profit out of it.   This confirms the dishonest intention of the petitioner for wrongful enrichment which warrants the punishment of removal from service.   Accordingly, the punishment of removal from service has been maintained.

The petitioner again approached the High Court, before which he submitted the following:

• The petitioner neither submitted nor claimed the fake and bogus medical bills which is against the Conduct Rules;
• The intention of the High Court in its earlier order was that the Appellate Authority would consider the case of the petitioner on proportionality of the punishment but certainly less than the removal from service;
• The appellate authority was adamant to pass the same order by ignoring the direction passed by the Court;

 The respondent submitted the following before the High Court:

• There is nothing on record that the Appellate Authority was unfair or biased and the findings on the two charges, are not proper to award punishment of removal from service;
• The Appellate Authority gave opportunity of being heard and passed a well reasoned order;
• As per Rule 32 (1) of the SBI (Supervising Staff) Services Rules, every employee shall confirm to and abide by these Rules.  Rule 32(4) states that every employee shall discharge his duty with utmost integrity, honesty, devotion and diligence and do nothing which is unbecoming of the bank official.   Rule 48 says that the breach of any of the provision of these Rules shall be deemed to be constitute misconduct punishable under Rule 49;
• The petitioner claimed simultaneous treatment bills under Allopathic, Ayurvedic and Homeopathic medicines for his wife/children on nine or more occasions;
• The Doctor categorically stated that Ayurvedic medicines could not be taken simultaneously with Allopathic and Homeopathic treatment.   Therefore the petitioner is liable for lapse;
• Even if the bills were not held fictitious or bogus but has been held against the petitioner is that he has furnished false information and claimed bills which are not in conformity with and contrary to the Service Rules for which he was imposed the penalty of ‘removal from service’;
• Therefore the scope of judicial review is limited on the decision making process and not the decision.

The High Court held that the settled law is that the Courts should interfere only when the punishment/penalty awarded shocks the judicial conscience.   The decision of the administrator must have been within the four corners of the law and not one, which no sensible person could have reasonably arrived at, having regard to the above principles, and must have been a bona fide one..   The test is to see whether there is any infirmity in the decision making process and not in the decision itself.   If the charged employee held the position of trust where honesty and integrity are inbuilt requirement of functioning, it would not be proper to deal with the matter leniently.   The doctrine of proportionality can be invoked only under certain circumstances. In the present case the petitioner was working in a Nationalized Bank, where the required standard of integrity and honesty is very high.   Therefore, the petitioner was expected to act and discharge duties in accordance with the Rules and Regulations of the Bank.   Acting beyond one’s authority is by itself a breach of discipline and trust and misconduct.