TMI Blog1992 (4) TMI 251X X X X Extracts X X X X X X X X Extracts X X X X ..... iry where the High Court be of the view that the punishment is shockingly disproportionate, viewed in the background of the gravity of the charges. This view was taken in the aforesaid two O. J. Cs. relying on the decisions of the Supreme Court in Bhagatram v. State of Himachal Pradesh, AIR 1983 SC 454 and Shankar Das v. Union of India, AIR 1985 SC 772. 3. When the aforesaid decisions were cited before another Bench of this Court in Y. Venkatrao v. South-Eastern Railway, (1991) 71 Cut LT 512, that Bench took the view that the opinion expressed in the aforesaid two O. J. Cs. runs counter to the decision of the Supreme Court expressed in Union of India v. Parma Nanda, AIR 1989 SC 1185, in which case both the aforesaid decisions of the Supreme Court were noted, whereafter in paragraph 28, it was observed that what was stated in Bhagatram's case was no authority for the proposition that the High Court has jurisdiction to impose any punishment to meet the ends of justice. As to Shankar Dass's case, the same was regarded as an exception to the proposition. The Venkatrao Bench then referred to the Constitution Bench decision of the Supreme Court in State of Orissa v. Bidya Bhus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat Article 14 is the Constitutional guardian of the principles of natural justice. (See paragraph 72). Then, while dealing with Clause (a) of the second proviso, the Bench observed as below in paragraph 127 :- A Government servant who is aggrieved by the penalty imposed can agitate in appeal, revision or review, as the case may be, that the penalty was too severe and excessive and not warranted by the facts and circumstances of the case................. If he fails in all the departmental remedies and still wants to pursue the matter, he can invoke the court's power of judicial review subject to the court permitting it. If the court finds that he was not in fact the person convicted, it will strike down the impunged order and order him to be reinstated in service. Where the court finds that the penalty imposed by the impugned order is arbitrary or grossly excessive or out of all proportion to the offence committed or not warranted by the facts and circumstances of the case or the requirements of that particular government service, the court will also strike down the impugned order. Thus in Shankar Dass v. Union of India, (1985) 2 SCC 356 : AIR 1985 SC 772 this Court set a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that in paragraph 29 of Parma Nanda (AIR 1989 SC 1185), the observations made in paragraph 127 of Tulsiram Patel's case (AIR 1985 SC 1416), which finds place at pages 1477-78, which we have noted above, were quoted. The learned counsel further submits that in Parma Nanda's case as the apex Court had clearly held, despite what was observed in paragraph 127 of Tulsiram Patel's case, that the High Court has no power or jurisdiction to substitute punishment which the Supreme Court has under Article 136, and having further held that the view taken in Bidya Bhusan's case holds the field (despite Tulsiram Patel's case) this Court has no option but to accept what was stated in Parma Nanda's case on this aspect of the matter. It would be apposite to say that in paragraph 25 of that case, the Supreme Court had clearly stated that if there be any doubt regarding the competency of a High Court to review the merits of the penalty despite what was stated in Bidya Bhusan's case (AIR 1963 SC 779), the view taken in which was repeatedly affirmed and reiterated in the cases noted in that paragraph, the same must vanish on reading the remarks of Mathew, J. in the case of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... AIR 1983 SC 454) disproportionate sentence violates. Article 14 of the Constitution, let us first see what is meant by the aforesaid expression. In this connection, we may first refer to the Constitution Bench decision of seven Judges in A.R. Antulay v. R.S. Naik, (1988) 2 SCC 602 : (AIR 1988 SC 1531), in paragraph 42 of which it was stated that per incuriam are those decisions given in ignorance or forgetfulness of some inconsistent statutory provision or of some authority binding on the court concerned, so that in such cases some part of the decision or some step of the reasoning on which it is based is found on that account to be demonstratively wrong. 11. The expression per incuriam was explained in paragraph 11 of Municipal Corporation of Delhi v. Gurnam Kaur, (1989) 1 SCC 101: (AIR 1989 SC 38), by stating that a decision should be treated as given per incuriam when it is given in ignorance in terms of a statute, or of a rule having the force of a statute. 12. In paragraph 40 of Punjab Land Development and Reclamation Corporation Ltd. v. Presiding Officer, Labour Court, (1990) 3 SCC 682, it was stated that the latin expression in question means through inadvertence . ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat judgment which appears to them to state the law accurately. In the five-Judge Bench decision in Gobindnaik v. West Patent Press Co. Ltd., AIR 1980 Kant 92, the majority opined that the later of the two decisions has to be followed. The minority, however, took the view that in such a case, the High Court would consider which of the two conflicting decisions it would follow in the interest of administration of justice, and it should follow that which is better in point of law rather than in point of time. A Full Bench of the Delhi High Court in Management of M/s. Patiala Iron Works v. Union of India, 1975 Lab IC 1265, stated in this regard that where it is not possible to reconcile the observations made in the two decisions, the courts are at liberty to consider which of the two views is supported by the provisions of the Constitution. We do not propose to burden this judgment with the decisions of the Supreme Court on this point and we deem that for the purpose at hand it would be enough if we refer to what has been stated at page 2245 of Seervai's Constitutional Law of India, 3rd Edn. Vol. II (1984) where the author has stated in paragraph 25.106 that judgments of the Supre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nister of Agriculture desired him to say that the courts should decide the case on merits, is not correct, inasmuch as mention about that letter was made in the last paragraph of the judgment just to put this fact on record, which cannot be said to be the basis of the view taken by that Court. 18. Because of all that has been stated above, it has to be held, on the basis of state of law as prevailing today, that this Court has no jurisdiciton to set aside the punishment awarded by the disciplinary authority even if it be of the view that the punishment awarded is arbitrary or grossly excessive or out of all proportion to the offence committed in those cases where the punishment had been imposed pursuant to a full-fledged enquiry; and so it cannot substitute any other punishment in its place, which, in its opinion, be just and proper in the circumstances of the case. 19. The reference is answered accordingly. 20. Before parting, we have, however, one observation to make. The same relates to the power of the High Court to pass such order as it deems fit and proper to do complete justice , about which also there were some submissions from the bar. We are expressing our view ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gation may get prolonged, because it may be that in a particular case the only relief which can justly be granted to the petitioner relates to awarding of proper punishment for the charges established, and on the same being done, the parties may not agitate the matter before the Supreme Court. Further, if this jurisdiction is confined to the Supreme Court alone, its workload would get increased, which would not be conducive on the face of already heavy pendency at that level. Finally, the decision relating to proper punishment is not such a difficult task which High Court cannot perform to the satisfaction of all concerned. It may be stated that the Constitution makers had reposed so much confidence in the High Courts that they had conferred power on them to even decide the constitutionality of a Central enactment. We may also say that social justice, which is a throbbing component of the Direct Principles embodied in Part IV of the Constitution would require a liberal approach in this regard. Rendering of full justice to the millions is the perennial and emphatic need of modern India. We would close this part of the judgment by stating that the Supreme Court itself has stated in s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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