TMI Blog2000 (11) TMI 1215X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 29.11.94, this Court requested Justice O. Chinnappa Reddy (former Judge of this Court), to investigate into the conduct of the officials of the DDA including its ex-officio chairman at the relevant time, in handing over the possession of the suit land in M/s. Skipper Construction Pvt. Ltd. before receiving the auction amount in full and also in conniving at the construction thereon as well as at the advertisements given by it for bookings in the building in question. The learned Judge was also requested to look into the legality and propriety of the order dated 4.10.98 passed by the then ex-officio Chairman of the DDA and the directions given by the Central Government under Section 41 of the Delhi Development Act. Report of Justice Chinnappa Reddy and orders thereon: Justice Reddy submitted his report on 7.7.95. Thereafter, this Court accepted the Report and passed an Order of 29.11.95, directing the Department of Personnel to initiate disciplinary proceedings against five officers (i) Sri V.S. Ailawadi IAS (retired), (ii) Sri K.S. Baidwan, IAS (iii) Sri Virendra Nath IAS, (iv) Sri R.S. Sethi IAS and (v) Sri Om Kumar IAS. This Court, in its order, stated that s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mar : 'Censure' (Minor penalty) (2) Sri Virendra Nath : (Major penalty)-Reduction to the pay of ₹ 7,500 in the existing grade for a period of two years with further directions that he will not earn increment during this period and that on the expiry of the said period the reduction will have the effect of postponing his further increments. As and when new pay scales are notified this pay will be refixed with regard to the penalty imposed in the revised pay scale with all the above stipulations. (3) Sri K.S. Baidwan : (Major Penalty)-His pay was to be reduced by one stage from ₹ 7600 to ₹ 7500 in the time scale of pay of ₹ 7300-100-7600 for 2 years with immediate effect and he would not earn increments of pay during the said period of 2 years with immediate effect, and on expiry thereof, the reduction in pay will have effect of postponing future increments of his pay; in the event of the time-scale being revised, the refixation was to be subject to the above stipulations. (4) Sri R.S. Sethi : (Major Penalty)-His pay be reduced by one stage from ₹ 7100 to ₹ 6900 in the time-scale of ₹ 5900-6700 for 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... antees in time and had not granted extensions to Skipper Construction Company, all this litigation could have been easily avoided. Show Cause Notice by this Court proposing to refer the matter to the Vigilance Commission by re-opening the quantum of punishment. This court felt that the officers of the DDA who dealt with these matters at the relevant time were solely responsible for the misery of hundreds of claimants who had put in their life's earnings in the Skipper Construction Company, and that these depositors were virtually taken for a ride. This Court directed that disciplinary action be initiated and thereafter, proceedings were initiated and punishments, as above stated, were imposed. Thereafter, this Court felt that prima facie the punishments imposed on these officers were not proportionate to the gravity of misconduct and that the punishments needed to be upgraded. An order was, therefore, passed on 4.5.2000 to re-open the punishments imposed and to refer them for reconsideration by the Vigilance Commissioner. Before taking further action, this Court issued notice to the five officers to show cause, why the question relating to the quantum of punishments shoul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... charge against him nullifies itself since the same emanated slightly from the note dated 31.5.1982 recorded by Mr. Virendra Nath. For convenience sake, the note is reproduced hereinbelow : On 28.5.82 the V.C. had desired that before issuing orders 1 shall get in touch with Secretary to L.G. Accordingly, on 29th I got in touch with the Secretary to L.G. and he asked me to wait till Monday. Since there are no further instructions from Secy, to L.G. further action may be taken as proposed. Sd/- (Virendra Nath) Commission (Lands) 31.5.82 Mr. Tulsi contended rather strongly that there was existing no evidence against him except for the alleged telephonic instructions appearing in the Note Mr. Tulsi contended that in terms of Rules II and HI of AIS Conduct Rules, there was existing an obligation to have a note confirmed in the event there was any involvement of any other officer and it was on this basis the Union Public Service Commission in its advice dated 28th February, 1987 categorically held that though Virendra Nath had recorded a note on 31.5.1982 regarding instruction received on telephone resulting in obtaining stay order by M/s. Skipper, no action was tak ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ile dealing with the memorial . We do not want to express any opinion one way or the other on the merits inasmuch as the memorial of Sri Baidwan is pending before the Competent Authority. We are of the view that in the case of Sri Baidwan. First his memorial be disposed of by the Competent Authority within six weeks from today. In case it goes in his favour, of course, the matter would end there. But, in case it goes against him either wholly or in part, it will be for him to move the appropriate forum, namely, the Central Administrative Tribunal. In the above circumstances, we are of the view that it is not necessary for this Court to refer his case to the Vigilance Commissioner. Shri Om Kumar and Shri Virendra Nalh: That leaves the cases of Sri Om Kumar, who was awarded a minor punishment (as directed in the order of this Court dated 29.11.95) and of Sri Virendra Nath, who was awarded a major punishment. Submissions of counsel and Legal Issues emanating therefrom: It was argued at great length by learned senior counsel Sri K. Parasaran and Dr. Rajeev Dhawan that the question as to the quantum of punishment to be imposed was for the competent authority and that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er of the following-viz. Illegality, procedural irregularity and irrationality. He, however, opined that 'proportionality' was a 'future possibility.' (b) Proportionality: 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 Justice at Luxembourg and the European Court of Human Rights at Strasbourg have applied the principle while judging the validity of administrative action. But even long before that, the Indian Supreme Court had applied the principle of 'proportionality' to legislative action since 1950, as stated in detail below. By 'proportionality', we mean the question whether, while regulating exercise of fundamental rights, the appropriate or least restrictive choice of measures has been made by the legislature or the administrator so as to achieve the object of the legislation or the purpose of the administrative order, as the case may be. Under the principle, the Court will see that the legislature and the administrative authority 'maintain a proper balance between the adverse effects which the legislation or the adminis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ces. The burden of proof to show that the restriction was reasonable lay on the State. 'Reasonable restrictions' under Article 19(2) to (6) could be imposed on these freedoms only by legislation and Courts had occasion throughout to consider the proportionality of the restrictions. In numerous judgments of this court, the extent to which 'reasonable restrictions' could be imposed was considered. In Chintaman Rao v. State of U.P., [1950] SCR 759, Mahajan J, (as he then was) observed that 'reasonable restrictions' which the State could impose on the fundamental rights 'should not be arbitrary or of an excessive nature, beyond what is required for achieving the objects of the legislation.' 'Reasonable' implied intelligent care and deliberations, that is, the choice of a course which reason dictated. Legislation which arbitrarily or excessively invaded the right could not be said to contain the quality of reasonableness unless it struck a proper balance between the rights guaranteed and the control permissible under Article 19(2) to (6). Otherwise, it must be held to be wanting in that quality. Patanjali Sastri CJ in State of Madras v. V.S. Row, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hey must not be arbitrary, unfair or based on irrational considerations. In short, they must be rationally connected to the objective. Secondly, the means, must not only be rationally connected to the objective in the first sense, but should impair as little as possible the right to freedom in question. Thirdly, there must be 'proportionality' between the effects of the measures and the objective. See also Ross v. Brunswick School Dishut, No. 15 [1996] 1 SCR 825 at 872 referring to proportionality. English Courts had no occasion to apply this principle to legislation. Aggrieved parties had to go to the European Court at Strasbourg for a declaration. In USA, in City of Boerne v. Flares. [1997] 521 U.S. 507, the principle of proportionality has been applied to legislation by stating that there must be congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end . Thus, the principle that legislation relating to restrictions on fundamental freedoms could be tested on the anvil of 'proportionality' has never been doubted in India. This is called 'primary' review by the Courts of the validity of legislatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... crutiny' or 'proportionality' and primary review came to be explained in R v. Secretary of State for the Home Department, ex. P. Brind, (1991) 1 A.C. 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 organisations which were prescribed under legislation concerning the prevention of terrorism. The extent of prohibition was linked with the direct statement made by the members of the organisations. It did not however, for example, preclude the broadcasting by such persons through the medium of a film, provided there was a 'voice-over' account, paraphrasing that they said. The applicant's claim was based directly on the European Convention of Human Rights. Lord Bridge noticed that the Convention rights were not still expressly engrafted into English Law but stated that freedom of expression was.basic to the Common Law and that, even in the absence of the Convention, English Courts could go into the question (See p. 748-749). ........ Whether the Secretary of State, in the exercise of his discretion could reasonabl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... answers a pressing social need and whether the restriction on human rights involved can be shown disproportionate to its benefits, then clearly the primary judgment (subject only to a limited' margin of appreciation') would be for us and not for others; the constitutional balance could shift. Adverting to the position (in 1996) i.e.-before the Convention was adopted-Simon Brown LJ Stated that the Courts had then only to play a secondary role and apply Wednesbury rules. The learned Judge said: In exercising merely secondary Judgment, this Court is bound, even though acting in a human rights context, to act with some reticence. On appeal, the above principles were affirmed in the same case in R v. Ministry of Defence Exp. Smith, (1996) 1 All ER. 257 CA. In the Court of Appeal, Lord Bingham M.R. said the Court, in the absence of the Convention was not thrown into the position of the decision maker. Henry LJ (p- 272) stated as follows: If the Convention were part of our law, then as Simon Brown LJ said in the Divisional Court, the primary judgment on this issue would be for the judges. But Parliament has both given us the primary jurisdiction on this issue. Our ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpatibility. While doing so, the English Court, can now apply strict scrutiny or proportionality to legislative and administrative action. The principle is now treated as Central to English Law (See Human Rights Law and Practice by Lord Lester of Herne Hill, Q.C. David Pannick Q.C., (1999) Para 3.16). The more the threshold of Wednesbury irrationality is lowered when fundamental human rights are on play, the easier it will become to establish judicial review as an effective remedy with Article 13 of the 1998 Act (See, ibid, Supplement August, 2000) (Para 4.13.12). The Privy Council, in a case arising under the Constitution of the Republic of Trinidad and Tobago had occasion to deal with life and liberty and validity of certain instructions imposed by Government prescribing time limits for convicts of death sentence to submit representations to international bodies (as per Conventions ratified by the State). The privy Council held that the instructions were violative of 'porportionality' and due process. (See Thomas v. Baptists) (2000) 2 AC I at 20 (Per Lord Millet for majority). Recently, Lord Irvine of Lairg, the Lord Chancellor has explained the position of 'prop ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inciple. Reconsidering the objections to proportionality by Garreth Wong 2000 Public Law 92) (vi) The recent case in UK in ITF (1999): While the English Courts were settling down to the principle of 'strict scrutiny' or 'proportionality' for review of administrative action touching fundamental freedoms, leaving Wednesbury principles to apply to other non-convention cases, a new approach has recently been made in a case decided by the House of Lords in R v. Chief Constable of Sussesc. ex.p. International Trader's Ferry Ltd., (1999) 1 All E.R.129. In that case, the decision of the police not to provide the required help to the ITF for transport of goods across the English Channel by securing adequate police force to remove the activitist protesters from the scene,- was upheld. It was stated that the chief Police Constable had properly balanced the right to protest and the right to free movement of goods, by taking into consideration, the lack of finances and the number of policeman available and the risk of injury to protesters etc. (see a country view of our Supreme Court recently in Navinchandra N. Majithia v. Stale of Meghalaya and Ors.. JT [2000] Suppl. 1 S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ses whether a wrong choice is made by the administrator for imposing restriction or whether the administrator has not properly balanced the fundamental right and the need for the restriction or whether he has imposed the least of the restrictions or the reasonable quantum of restriction etc. In such cases, the administrative action in our country, in our view, has to be tested on the principle of 'proportionality', just as it is done in the case of the main legislation. This, in fact, is being done by our Courts. Administrative action in India affecting fundamental freedoms has always been tested on the anvil of 'proportionality' in the last fifty years even though it has not been expressly stated that the principle that is applied is the 'proportionality' principle. For example, a condition in a licence issued to a cinema house to exhibit, at every show, a certain minimum length of 'approved films' was questioned. The restriction was held reasonable [see R.M. Seshadri v. Dist. Magistrate Tanjore and Anr., AIR (1954) SC 747. Union of India v. Motion Picture Association, [1999] 6 SCC 150 also related, inter alia, to validity of licensing conditions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le 14, were examining whether the classification was discriminatory, in the sense whether the criteria for differentiation were intelligible and whether there was a rational relation between the classification and the object sought to be achieved by the classification . It is not necessary to give citation of cases decided by this court where administrative action was struck down as being discriminative. There are numerous. (ii) Arbitrariness test under Article 14: But, in E.P. Royappa v. State of Tamil Nadu, [1974] 4 SCC 31, Bhagwati, J. laid down another test for purposes of Article 14. It was stated that if the administrative action was 'arbitrary', it could be struck down under Article 14. This principle is now uniformly followed in all Courts more rigorously than the one based on classification. Arbitrary action by the administrator is described as one that is irrational and not based on sound reason. It is also described as one that is unreasonable. (b) If, under Article 14, administrative action is to be struck down as discriminative, proportionality applies and it is primary review. If it is held arbitrary, Wednesbury applies and it is secondary review: We ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... #39;intermediate scrutiny' and 'strict scrutiny' have been laid down. In cases of affirmative action, the US Courts have hitherto been applying the intermediate scrutiny test'. See the discussion in Indira Sawhney v. Union of India. [1992] Supp. 3 SCC at 217, at PP.634-685 by Jeevan Reddy, J. But recently, however, in 1995, the US Supreme Court has shifted, in matters of affirmative action, from the 'intermediate scrutiny' test to the 'strict scrutiny' test. See Adarand Constructors Inc. v. Pena, (1995) 75 US 200 referred to by the Constitution Bench recently in Ajit Singh (II) v. State of Punjab, [1999] 7 SCC 209, at P. 232. It is clear from the above discussion that in India where administrative action is challenged under Article 14 as being discriminatory, equals are treated unequally or unequals are treated equally, the question is for the Constitutional Courts as primary reviewing Courts to consider correctness of the level of discrimination applied and whether it is excessive and whether it has a nexus with the objective intended to be achieved by the administrator. Here the Court deals with the merits of the balancing action of the administ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to 'proportionality' in the quantum of punishment but the Court observed that the punishment was 'shockingly' disproportionate to the misconduct proved. In B.C. Chaturvedi v. Union of India, [1995] 6 SCC 749, this Court stated that the court will not interfere unless the punishment awards was one which shocked the conscience of the Court. Even then, the Court would remit the matter back to the authority and would not normally substitute one punishment for the other. However, in rare situations, the Court could award an alternative penalty. It was also so stated in Ganayutham. Thus, from the above principles and decided cases, it must be held that where an administrative decision relating to punishment in disciplinary cases is questioned as 'arbitrary' under Article 14, the Court is confined to Wednesbury principles as a secondary reviewing authority. The court will not apply proportionality as a primary reviewing Court because no issue of fundamental freedoms nor of discrimination under Article 14 applies in such a context. The Court while reviewing punishment and if it is satisfied that Wednesbury principles are violated, it has normally to remit the ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ernment...... Learned senior counsel Sri K. Parasaran, therefore, argued on the basis of Wednesbury rules as explained in Ganayutham that it is now not open to this Court to say that the punishment of 'censure' awarded was not the proper one and that Sri Om Kumar deserved some other minor punishment of a higher degree. That would amount to assuming a primary role. According to learned counsel, it could not be said that the punishment of censure awarded could be described as shocking the conscience of the Court, Counsel also submitted that in hindsight one might now say that when Skipper Company defaulted, Sri Om Kumar who was the senior most officer in DDA ought to have cancelled the bid and encashed the bank guarantee rather than give extensions of time on the pretext that the plans were not made ready by DDA. After giving our anxious consideration to the above submissions and the facts and the legal principles above referred to, we have finally come to the conclusion that it will be difficult for us to say that among the permissible minor punishment, the choice of the punishment of 'censure' was violative of the Wednesbury rules. No relevant fact was omit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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