TMI Blog2003 (2) TMI 510X X X X Extracts X X X X X X X X Extracts X X X X ..... Regulation 1976 (hereinafter referred to as 'the regulation'). The charges were found established in respect of charge nos. 1, 2, 3, 6, 7 and 8. On the basis of findings recorded by the Inquiry Officer and as endorsed by the Disciplinary Authority, order of dismissal was passed on 16.8.1988. Appeal preferred by the employee before the prescribed appellate authority did not bring any relief. Similar was the fate of the review application. Matter was carried in writ petition before the Allahabad High Court. As noticed by the High Court, there was no challenge to the findings recorded, and what was urged related to the quantum of punishment. One of the points highlighted to question the quantum of punishment was that in a similar situation, lesser punishment was imposed on one M.L. Keshwani though the allegations against him were of much serious nature. The High Court accepted the plea and, inter alia, directed as follows:- The Supreme Court has held in several cases that there should be no discrimination in the matter of punishment vide Sangram Singh Versus State of Punjab (1983 (4) SCC 225). On the facts of the case we are of the opinion that the punishment given t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, 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 . In Om Kumar and Ors. v. Union of India (20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nty 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. 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 re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tary 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 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 (1991) 3 SCC 91 at p. 111 Venkatachaliah, J. (as he then was) pointed out that reasonableness of the administrator under Article 14 in the context of administrativ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. vs. 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 material before him and within the framework 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 cons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y 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 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 administrat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aspects do not appear to have been kept in view by the High Court. It needs no emphasis that when a Court feels that the punishment is shockingly disproportionate, it must 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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