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TMI Blog2024 (9) TMI 24X X X X Extracts X X X X X X X X Extracts X X X X ..... nce notice, respondents entered appearance through counsel. 1.3 As reflected from order dated 16.07.2016 impugned before us, learned counsel for petitioner at the outset had submitted before the learned Tribunal that she intended to address only as regards quantum of punishment and had further requested for taking a compassionate view since the petitioner had already superannuated and was seriously ill. 1.4 Before us also, learned counsel for petitioner confined his address to the quantum of punishment, raising no challenge to the legality of the departmental proceedings. 1.5 We heard learned counsel for both sides. 2. The circumstances relevant for present purposes, as pleaded by the petitioner are as follows. 2.1 In the year 1976, petitioner was appointed as Income Tax Officer, Group A in Junior Time Scale after he successfully qualified the All India Civil Services Examination. Over a period of time, petitioner earned promotions and became Deputy Commissioner of Income Tax, posted at Bombay. 2.2 On account of his ill health and medical treatment at AIIMS, New Delhi, the petitioner was transferred to Delhi at his request on compassionate grounds as Officer on Special Duty t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the same was not used by the political parties. The said Romesh Sharma had on 31.12.1997 voluntarily disclosed his assets worth Rs. 51,00,000/- under the Voluntary Disclosure Scheme, though the said assets did not belong to him. 2.8 Being a patient of acute angina and depression, the petitioner was finding it difficult to work so he submitted leave application on 12.10.1998, which leave was sanctioned and was extended later. 2.9 By way of order dated 19.06.2000, petitioner was again suspended from service in contemplation of departmental enquiry on the allegations of misconduct unbecoming of a government servant. Memo of Charge dated 25.07.2000 was served on the petitioner, alleging that while posted as Additional Commissioner of Income Tax he remained unauthorisedly absent from duty during the period from 09.11.1998 till the date of suspension (19.06.2000) and performed other acts of insubordination related thereto, reflecting lack of devotion to duty; and further alleging that he gave statements to the press and electronic media irresponsibly without authority and recklessly on sensitive issues even on matters of government policies, constituting acts of indiscipline unacce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rned counsel for petitioner took us through above records and contended that punishment of dismissal from service imposed on the petitioner is highly disproportionate to the charged misconduct of mere unauthorised absence from duty. Learned counsel for petitioner contended that prior to the commencement of period of the alleged unauthorised absence, the petitioner was admittedly on sanctioned medical leave on account of various illnesses, so lenient view ought to be taken. It was argued that even during the period from 09.11.1998 to 19.06.2000, the petitioner remained confined to bed due to ill health, so absence from duty during that period cannot be treated to be wilful. Learned counsel for petitioner referred to the judgment in the case of Indu Bhushan Dwivedi vs. State of Jharkhand & Anr., (2010) 7 SCR 465 in support of his contention that while imposing punishment, the disciplinary authority ought to have taken into consideration the past service record of the petitioner, which was not done so the dismissal order was not sustainable. 4. On the other hand, learned counsel for respondents supported the impugned orders as well as the punishment order and contended that the prese ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1998. However, on the expiry of the said leave, Shri Gupta neither reported for duty nor applied for any extension of leave. After this, a letter dated December 1, 1998 which was posted on 12.1.1999, as the post mark of the Vasant Kunj Post Office indicates, was received from Shri Gupta. This was addressed to CIT, Delhi-IX. Vide this letter, Shri Gupta sought the extension of leave till February 14, 1999. In this letter, Shri Gupta also stated that he had earlier furnished a letter seeking extension of leave upto December 4, 1998 on account of backache for which he was advised rest. On enquiry, it was found that no such letter ever reached the office of CIT, Delhi-IX, as mentioned in CIT's report dated 15.6.1999. Further, the medical certificate and leave application in the prescribed proforma were also never sent by Shri Gupta to the office of CIT, Delhi-IX, though he had mentioned in his letter dated 1.12.1998 that he would be sending the same shortly. The CIT, Delhi-IX has stated in his report that no leave was sanctioned to Shri V.B. Gupta after 6.11.1998 (7.11.98 and 8.11.98 having been suffixed). The absence of Shri V.B. Gupta since 9.11.98 is therefore totally unauthori ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elhi-IX has also reported that inspite of his specific direction to Shri V.B. Gupta to hand over charge along with a handing over note. Shri Gupta left the office on 16th October, 1998 without doing the needful. Shri Ravi Mathur was accordingly directed to assume charge. The reply by Shri V.B. Gupta is unfitting, unduly slanderous and uncalled for. 1.6 In view of the above, it is clear that Shri Gupta has not been granted any leave subsequent to 8th November, 1998. It was also reported by senior DR (Admn.), ITAT, Delhi vide his letter no. 350 dated 14.6.99, Shri V.B. Gupta who was posted as Sr. DR, ITAT by CCIT's order dated 13.10.98 had not joined nor given any intimation. 1.7 Accordingly, a further show-cause notice regarding his unauthorised absence and non reporting for duties was issued by the CCIT on 2nd July, 1999, but no reply was received from Sh. V.B. Gupta. Thus, his absence beyond 8.11.1998 remains both unauthorised and wilful displaying contravention of Rules 3(l)(ii) and 3(l)(iii) of the CCS(Conduct) Rules. 1964. 1.8 Further, under Rule 25 of CCS (Leave) Rules, 1972 wilful absence from duty after the expiry of leave renders a Government servant liable to dis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted to entice the electorate. 2.2 In an interview on Zee TV in 'News Break', Shri Gupta had made statements about corruption related transfers in government and payment of huge dowry to government servants in view of their 'potential' to earn money illegally. He cited his frequent transfers in the past as a punishment for good work done by him. 2.3 The excerpts of interview given by Shri V.B. Gupta on DD (Metro) in 'Aaj Tak' show that he had criticised the Chief Minister of Delhi for allegedly trying to get him transferred and for her alleged links with tax evaders. 2.4 Shri Gupta appeared on "Zee News" channel (Prime Time News) and put forth his views regarding links of film industry with criminal mafia. On an issue of attack on film star Shri Rajesh Roshan he said that the entire film industry was being funded by criminal mafia who make major contributions to the film industry for running the same. He officially said that we (the department) conducted a survey which unearthed Rs.10000 crores invested by the mafia in the industry out of which only 100 crores were declared by the film producers in their income-tax returns. He is further reported to have said that kidnapping, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , and against the accepted norms of behaviour and service rules. 4. In this context, it may be stated that Shri V.B. Gupta had earlier been suspended (6.6.90 to 21.10.94) and disciplinary proceedings for major penalty were initiated vide Memorandum dated 3.7.90 on somewhat similar charges. The inquiry Officer had held two of the three articles of charge as proved and the UPSC, when consulted, advised levy of penalty of reduction of pay by 3 stages for a period of 3 years with the directions that the charged officer will not earn increments during the period of penalty. On that occasion, keeping in view all the facts and circumstances of the case, penalty of 'Censure' was finally imposed under Rule 15 of the CCS (CCA) Rules, 1965 vide order dated 11/15.11.1994. However, Shri Gupta has not learnt lesson from his past mistakes and the misconduct of the officer appears to have only increased with the passage of time. Shri Gupta has again been placed under suspension vide Ministry's order dated 19.6.2000 for his grave lapses discussed herein above." 8. To reiterate, the petitioner has opted not to dispute that during the period from 09.11.1998 to 19.06.2000 he remained unauthoris ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt or whether the action was not bona fide. The court would also consider whether the decision was absurd or perverse. The court would not however go into the correctness of the choice made by the administrator amongst the various alternatives open to him. Nor could the court substitute its decision to that of the administrator. This is the Wednesbury [(1948) 1 KB 223 : (1947) 2 All ER 680] test. (2) The court would not interfere with the administrator's decision unless it was illegal or suffered from procedural impropriety or was irrational in the sense that it was in outrageous defiance of logic or moral standards. 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 : (1984) 3 All ER 935] principles. (3)(a) As per Bugdaycay [R. v. Ministry of Defence, ex p Smith, (1996) 1 All ER 257] , Brind [(1991) 1 AC 696 : (1991) 1 All ER 720] and Smith [Cunliffe v. Commonwealth, [(1994) 68 Aust LJ 791] (at 827, 839) (also 799, 810, 821), Australian Capital Tel. Co. v. Commonwealth, 1992 CL p. 106 (at 157) (Aus), R. v. Oake, 1987 Law Reports of Commonwealth 477 (at 500) (Can ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y exercising power of judicial review. One of such modes of exercising power, known to law is the "doctrine of proportionality". 18. "Proportionality" is a principle where the court is concerned with the process, method or manner in which the decision-maker has ordered his priorities, reached a conclusion or arrived at a decision. The very essence of decision-making consists in the attribution of relative importance to the factors and considerations in the case. The doctrine of proportionality thus steps in focus true nature of exercise - the elaboration of a rule of permissible priorities. 19. de Smith states that "proportionality" involves "balancing test" and "necessity test". Whereas the former (balancing test) permits scrutiny of excessive onerous penalties or infringement of rights or interests and a manifest imbalance of relevant considerations, the latter (necessity test) requires infringement of human rights to the least restrictive alternative. [Judicial Review of Administrative Action (1995), pp. 601-05, para 13.085; see also Wade & Forsyth: Administrative Law (2005), p. 366.] 20. In Halsbury's Laws of England (4th Edn.), Reissue, Vol. 1(1), pp. 144-45, para 78 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en prior to CCSU [1985 AC 374 : (1984) 3 WLR 1174 : (1984) 3 All ER 935 (HL)], this Court has held that if punishment imposed on an employee by an employer is grossly excessive, disproportionately high or unduly harsh, it cannot claim immunity from judicial scrutiny, and it is always open to a court to interfere with such penalty in appropriate cases." (emphasis supplied) 9.4 In the case of Chairman cum Managing Director, Coal India Limited & Anr. vs. Mukul Kumar Choudhuri & Ors., (2009) 15 SCC 620, the Hon'ble Supreme Court recapitulated the legal position and held thus: "19 [Ed.: Para 19 corrected vide Official Corrigendum No. F.3/Ed.B.J./9/2010 dated 11-1-2010.]. The doctrine of proportionality is, thus, well-recognised 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 excess to the allegations cannot claim immunity and remains open for interference under limi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... servants, discipline has to be maintained in the industrial sector also. The availability of appeal etc. to public servants does not make a real difference, as the appellate/revisional authority is known to have taken a different view on the question of sentence only rarely. I would, therefore, think that but for the self-imposed limitation while exercising power under Article 226 of the Constitution, there is no inherent reason to disallow application of judicial mind to the question of proportionality of punishment/penalty. But then, while seized with this question as a writ court interference is permissible only when the punishment/penalty is shockingly disproportionate." (emphasis supplied) 9.6 In the case of Jai Bhagwan vs. Commissioner of Police, (2013) 11 SCC 187, the Hon'ble Supreme Court held thus: "10. What is the appropriate quantum of punishment to be awarded to a delinquent is a matter that primarily rests in the discretion of the disciplinary authority. An authority sitting in appeal over any such order of punishment is by all means entitled to examine the issue regarding the quantum of punishment as much as it is entitled to examine whether the charges have been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r, if the punishment imposed by the disciplinary authority or the appellate authority shocks the conscience of the court, then the court would appropriately mould the relief either by directing the disciplinary/appropriate authority to reconsider the penalty imposed or to shorten the litigation it may make an exception in rare cases and impose appropriate punishment with cogent reasons in support thereof. It is also clear from the abovenoted judgments of this Court, if the punishment imposed by the disciplinary authority is totally disproportionate to the misconduct proved against the delinquent officer, then the court would interfere in such a case." (emphasis supplied) 9.7 In the case of Union of India & Ors. vs. Constable Sunil Kumar, (2023) 3 SCC 622, the Hon'ble Supreme Court elaborated on the scope of judicial review in such cases and held thus: "11. Even otherwise, the Division Bench of the High Court has materially erred in interfering with the order of penalty of dismissal passed on proved charges and misconduct of indiscipline and insubordination and giving threats to the superior of dire consequences on the ground that the same is disproportionate to the gravity of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for much prolonged period from 09.11.1998 to 19.06.2000. 11.1 Even according to his own pleadings, the petitioner availed leave for a fairly long period, till 06.11.1998 with next two days being suffixes and admittedly he could not cope up with work pressure. If he was ill, nothing prevented him from seeking further leave. Rather, in response to letter dated 04.02.1999 of the respondents, calling him upon to explain his unauthorised absence and for a failure to hand over charge, the petitioner stated that on 16.02.1999 he had been advised medical rest for backache and that he had applied for medical leave for the period from 20.10.1998 and had sought extension thereof till 14.02.1999. It would also be significant to note that the petitioner in the said letter, seeking extension of medical leave till 14.02.1999, ante-dated the letter to 01.12.1998, and dispatched the same on 12.01.1999 as reflected from the postal record of PO, Vasant Kunj. The petitioner also claimed in the said letter that he had sought extension of leave up to 04.12.1998 by way of earlier letter. But no such earlier letter had ever reached the respondents. Not only this, neither the medical certificate nor the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re corruption related transfers in the government and payment of huge dowry to government servants owing to their potential to earn money illegally; that the Chief Minister of Delhi was siding with the tax evaders; that there was nexus between the film industry and criminal mafia which led to attack on film star Rajesh Roshan; that Income Tax Department had unearthed Rs. 10,000 crores invested by mafia in the film industry, out of which only Rs. 100 crores was declared by the film producers in their income tax returns; that kidnappings, extortions and murders were being committed with the knowledge of Government of India and Maharashtra Government; that one Secretary was caught in a hotel room with the keep of mafia king Dawood Ibrahim and the Home Secretary had approached Dawood to harm the actress Manisha Koirala to benefit some other heroine and tape recorded conversations was available with CBI; that in Jain Hawala case, the CBI had deliberately not taken appropriate action and had not placed full facts before the Supreme Court; that the CBI deliberately concealed from Supreme Court statements of the politicians whereby they had accepted on oath under the Income Tax Act having ..... 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