TMI Blog2009 (8) TMI 1130X X X X Extracts X X X X X X X X Extracts X X X X ..... uly 26, 2007 insofar as reinstatement of the Respondent No. 1 was concerned but modified the order of the Single Judge by awarding him back wages. 3. Mukul Kumar Choudhuri, Respondent No. 1, joined his service with the Eastern Coalfields in 1992 as System Officer. In 1996, he was transferred to North-Eastern Coalfields, Assam. On September 16, 1998, the Respondent No. 1 proceeded on sanctioned leave upto September 29, 1998. However, after expiry of his sanctioned leave, he did not report to duty and despite reminders remained absent for six months without any authorization. 4. On March 18, 1999, the Director-in-Charge, North-Eastern Coalfields initiated disciplinary enquiry against the Respondent No. 1 under Rule 29 of the Coal India Executives Conduct Discipline and Appeal Rules, 1978 (for short, `Conduct Rules, 1978') for misconduct on his part by (i) absenting himself without leave; (ii) Overstaying the sanctioned leave for more than four consecutive days; and (iii) Desertion of job and failure to maintain integrity and devotion to duty. 5. On May 31, 1999, the Respondent No. 1 sent letter of resignation. His resignation was, however, not accepted by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in separate appeals by both parties before the Division Bench. The appeal preferred by the present appellants was dismissed while the appeal preferred by the Respondent No. 1 was allowed and it was held that he was entitled to back wages for the period on and from the year 2000 until reinstatement. 12. We heard Mr. Gopal Subramanium, learned Solicitor General and the Respondent No. 1 in-person. 13. Inter alia, the misconduct alleged against the Respondent No. 1 was unauthorized absence from duty for more than six months. The delinquent admitted the charges before the Inquiry Officer. He stated : I admit the charges. However, I desire to state reasons for my absence and is given below: i) I did not have any intention nor desire of disobeying order of higher authority or violate any of the Company's rule and regulations and. ii) The reason is purely personal which cannot be produced by any evidence to prove and is beyond my control. 14. The admission on the part of delinquent before the Inquiry Officer leaves no manner of doubt that the charges against the delinquent stood fully proved. He was given second show cause notice and a copy of the enquiry report ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... artmental enquiries and held: 21. The scope of Article 226 in dealing with departmental inquiries has come up before this Court. Two propositions were laid down by this Court in State of A.P. v. S. Sree Rama Rao (AIR 1963 SC 1723). First, there is no warrant for the view that in considering whether a public officer is guilty of misconduct charged against him, the rule followed in criminal trials that an offence is not established unless proved by evidence beyond reasonable doubt to the satisfaction of the Court must be applied. If that rule be not applied by a domestic tribunal of inquiry the High Court in a petition under Article 226 of the Constitution is not competent to declare the order of the authorities holding a departmental enquiry invalid. The High Court is not a court of appeal under Article 226 over the decision of the authorities holding a departmental enquiry against a public servant. The Court is concerned to determine whether the enquiry is held by an authority competent in that behalf and according to the procedure prescribed in that behalf, and whether the rules of natural justice are not violated. Second, where there is some evidence which the authority en ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of evidence led on a point and the inference of fact to be drawn from the said finding are within the exclusive jurisdiction of the Tribunal. See Syed Yakoob v. K.S. Radhakrishnan (AIR 1964 SC 477). 24. The High Court in the present case assessed the entire evidence and came to its own conclusion. The High Court was not justified to do so. Apart from the aspect that the High Court does not correct a finding of fact on the ground that the evidence is not sufficient or adequate, the evidence in the present case which was considered by the Tribunal cannot be scanned by the High Court to justify the conclusion that there is no evidence which would justify the finding of the Tribunal that the respondent did not make the journey. The Tribunal gave reasons for its conclusions. It is not possible for the High Court to say that no reasonable person could have arrived at these conclusions. The High Court reviewed the evidence, reassessed the evidence and then rejected the evidence as no evidence. That is precisely what the High Court in exercising jurisdiction to issue a writ of certiorari should not do. 18. It has been time and again said that it is not open to the High Court to exa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quently and in the facts and circumstances of this case, none of the Judgments cited by Mr. Banerjee can be said to have any Application. 20. In what we have already discussed, we find it difficult to accept the view of the Single Judge. 21. The Division Bench like the Single Bench fell into grave error in not adequately adverting to the fact that the charges were admitted by the delinquent unequivocally and unambiguously and, therefore, misconduct of the Respondent No. 1 was clearly established. We are, therefore, unable to persuade ourselves to concur with the view of the High Court. 22. The question, however, remains : is the punishment of removal grossly disproportionate to the proved charge of unauthorized absence for more than six months? 23. In order to answer the aforesaid question, it would be appropriate to refer to a few of decisions of this Court wherein doctrine of proportionality has been considered. In Union of India and Another v. G. Ganayutham(1997) 7SCC463), this Court elaborately considered the proportionality in the administrative law in England as well as in our own country. The court considered some important English decisions, viz., Associated Pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e action and find out if the restriction is disproportionate or excessive or is not based upon a fair balancing of the fundamental freedom and the need for the restriction thereupon. (4)(a) The position in our country, 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 of the court is to be 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. (4)(b) Whether in the case of administrative or executive action affecting fundamental freedoms, the courts in our country 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... might -- to shorten litigation -- think of substituting its own view as to the quantum of punishment in the place of the punishment awarded by the competent authority. (In B.C. Chaturvedi and other cases referred to therein it has however been made clear that the power of this Court under Article 136 is different.) For the reasons given above, the case cited for the respondent, namely, State of Maharashtra v. M.H. Mazumdar cannot be of any help. 25. Again, in the case of Coimbatore District Central Cooperative Bank v. Coimbatore District Central Cooperative Bank Employees Assn. and Another this court considered the doctrine of proportionality and it was held : 17. So far as the doctrine of proportionality is concerned, there is no gainsaying that the said doctrine has not only arrived in our legal system but has come to stay. With the rapid growth of administrative law and the need and necessity to control possible abuse of discretionary powers by various administrative authorities, certain principles have been evolved by courts. If an action taken by any authority is contrary to law, improper, irrational or otherwise unreasonable, a court of law can interfere with such ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ess. It is not permissible to use a sledgehammer to crack a nut . As has been said many a time; where paring knife suffices, battle axe is precluded . 22. In the celebrated decision of Council of Civil Service Union v. Minister for Civil Service(1985 AC 374 : (1984) 3 WLR 1174 : (1984) 3 All ER 935 (HL) Lord Diplock proclaimed: (All ER p. 950h-j) 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 on 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 development on a case-by-case basis may not in course of time add further grounds. I have in mind particularly the possible adoption in the future of the principle of `proportionality'.... (emphasis supplied) 23. CCSU has been reiterated by English courts in several subsequent cases. We do not think it necessary to refer to all those cases. 24. So far as our legal system is concerned, the doctri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the court martial. But the sentence has to suit the offence and the offender. It should not be vindictive or unduly harsh. It should not be so disproportionate to the offence as to shock the conscience and amount in itself to conclusive evidence of bias. The doctrine of proportionality, as part of the concept of judicial review, would ensure that even on an aspect which is, otherwise, within the exclusive province of the court martial, if the decision of the court even as to sentence is an outrageous defiance of logic, then the sentence would not be immune from correction. Irrationality and perversity are recognised grounds of judicial review. (emphasis supplied) 26. The doctrine of proportionality is, thus, 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. Award of punishment which is grossly in access to the allegations cannot claim immunity and remains open for interference under ..... X X X X Extracts X X X X X X X X Extracts X X X X
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