TMI Blog2004 (12) TMI 687X X X X Extracts X X X X X X X X Extracts X X X X ..... 14.10.1992 alleging that he had withdrawn a sum of ₹ 25,000/- on 6.5.1992 for his personal use. The respondent-employee filed his explanation. Though not disputing the factum of withdrawal, plea was taken by him that during the relevant period condition of his wife had deteriorated and required immediate surgical interference. He had informed about withdrawal to the Head Office at Damoh. The explanation was not accepted, an enquiry officer was appointed who submitted his report on 20.7.1993 holding that the employee was guilty of the charges. The disciplinary authority concurred with the findings of the Enquiry Officer and after following the formalities i.e. issuance of show-cause notice, passed the order of removal. In appeal the said order of removal was maintained. Against the aforesaid order the employee preferred Writ Petition No. 2719 of 1995. Learned Single Judge held that the charges levelled have been duly brought home, but remitted the matter to the appellate authority for re-consideration with regard to the quantum of punishment. Pursuant to the direction, the matter was again considered by the Board and it was held that the order of removal did not require recons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... awn the money and repaid with 24% interest. There was no loss caused. Again the High Court observed that it hastened to add that it was not its view that unless there is any loss there cannot be any misconduct. Ultimately it was concluded that this was a fit case where the Board should be compassionate and gracious enough to reconsider employee's case to pass any other punishment other than dismissal, removal or termination. It was held that there was irregularity but not such an irregularity as to attract the punishment of removal. It was also indicated that even if lesser punishment is awarded the employee would not be entitled to any kind of back wages. In support of the appeal, learned counsel for the appellant submitted that the High Court's judgment is full of contradictions. Having accepted that there was practically no scope of interference with the quantum of punishment, yet on irrelevant considerations High Court directed that punishment of removal, termination or dismissal should not be passed. The scope for interference with quantum of punishment has been highlighted by this Court in many cases and this is a case where no interference was called for. It has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 administrative order may have on the rights, liberties or interests of persons keeping in mind the purpose which they were intended to serve . The legislature and the administrative authority are, however, given an area of discretion or a range of choices but as to whether the choice made infringes the rights excessively or not is for the court. That is what is meant by proportionality. xxx xxx xxx xxx xxx The development of the principle of strict scrutiny or proportionality in administrative law in England is, however, recent. Administrative action was traditionally being tested on Wednesbury grounds. But in the last few years, administrative action affecting the freedom of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 748-49). .....whether the Secretary of State, in the exercise of his discretion, could reasonably impose the restriction he has imposed on the broadcasting organisations and that the courts were not perfectly entitled to start from the premise that any restriction of the right to freedom of expression requires to be justified and nothing less than an important public interest will be sufficient to justify it . Lord Templeman also said in the above case that the courts could go into the question whether a reasonable minister could reasonably have concluded that the interference with this freedom was justifiable. He said that in terms of the Convention any such interference must be both necessary and proportionate (ibid pp. 750-51). In the famous passage, the seeds of the principle of primary and secondary review by courts were planted in the administrative law by Lord Bridge in the Brind case (1991) 1 AC 696. Where Convention rights were in question the courts could exe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elf to a Wednesbury review always. The principles explained in the last preceding paragraph in respect of Article 14 are now to be applied here where the question of arbitrariness of the order of punishment is questioned under Article 14. xxx xxx xxx xxx xxx 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 matter to the administrator for a fresh decision as to the quantum of punishment. Only in rare cases where there has been long delay in the time taken by the disciplinary proceedings and in the time taken in the courts, and such extreme or rare cases can the court substitute its own view as to the quantum of punishment. In B.C. C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dards. The possibility of other tests, including proportionality being brought into English administrative law in future is not ruled out. These are the CCSU (1985 AC 374) principles. (3)(a) As per Bugdaycay (1987 AC 514), Brind (1991 (1) AC 696) and Smith (1996 (1) All ER 257) as long as the Convention is not incorporated into English law, the English courts merely exercise a secondary judgment to find out if the decision-maker could have, on the material before him, arrived at the primary judgment in the manner he has done. (3)(b) If the Convention is incorporated in England making available the principle of proportionality, then the English courts will render primary judgment on the validity of the administrative 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eof. In a normal course if the punishment imposed is shockingly disproportionate it would be appropriate to direct the Disciplinary Authority or the Appellate Authority to reconsider the penalty imposed. In the case at hand the High Court did not record any reason as to how and why it found the punishment shockingly disproportionate. Even there is no discussion on this aspect. A Bank officer is required to exercise higher standards of honesty and integrity. He deals with money of the depositors and the customers. Every officer/employee of the Bank is required to take all possible steps to protect the interests of the Bank and to discharge his duties with utmost integrity, honesty, devotion and diligence and to do nothing which is unbecoming of a Bank officer. Good conduct and discipline are inseparable from the functioning of every officer/employee of the Bank. As was observed by this Court in Disciplinary Authority-cum-Regional Manager v. Nikunja Bihari Patnaik (1996 (9) SCC 69), it is no defence available to say that there was no loss or profit resulted in case, when the officer/employee acted without authority. The very discipline of an organization more particularly a Ban ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
