TaxTMI 
TaxTMI 
2009 (8) TMI 1130
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....ed to North-Eastern Coalfields, Assam. On September 16, 1998, the Respondent No. 1 proceeded on sanctioned leave upto September 29, 1998. However, after expiry of his sanctioned leave, he did not report to duty and despite reminders remained absent for six months without any authorization. 4. On March 18, 1999, the Director-in-Charge, North-Eastern Coalfields initiated disciplinary enquiry against the Respondent No. 1 under Rule 29 of the Coal India Executives Conduct Discipline and Appeal Rules, 1978 (for short, `Conduct Rules, 1978') for misconduct on his part by - (i) absenting himself without leave; (ii) Overstaying the sanctioned leave for more than four consecutive days; and (iii) Desertion of job and failure to maintain integrity and devotion to duty. 5. On May 31, 1999, the Respondent No. 1 sent letter of resignation. His resignation was, however, not accepted by the Management and, accordingly, he joined his duty on September 10, 1999. 6. In the enquiry proceedings, the Respondent No. 1 appeared before the Inquiry Officer and admitted the charges leveled against him. The Inquiry Officer concluded the enquiry and vide his report dated October 5, 1999 held that ....
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....Gopal Subramanium, learned Solicitor General and the Respondent No. 1 in-person. 13. Inter alia, the misconduct alleged against the Respondent No. 1 was unauthorized absence from duty for more than six months. The delinquent admitted the charges before the Inquiry Officer. He stated : "I admit the charges. However, I desire to state reasons for my absence and is given below: i) I did not have any intention nor desire of disobeying order of higher authority or violate any of the Company's rule and regulations and. ii) The reason is purely personal which cannot be produced by any evidence to prove and is beyond my control." 14. The admission on the part of delinquent before the Inquiry Officer leaves no manner of doubt that the charges against the delinquent stood fully proved. He was given second show cause notice and a copy of the enquiry report was annexed thereto. He sent his written response to the second show cause on July 15, 2000. 15. Office Order dated November 29, 2000 reads thus : "Coal India Ltd. 10, Netaji Subash Road, Calcutta - 700001 Ref No. CIL/C-5A(iii)/740 Dated : 29.11.2000 ORDER WHEREAS a Memorandum No. NEC....
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....er a public officer is guilty of misconduct charged against him, the rule followed in criminal trials that an offence is not established unless proved by evidence beyond reasonable doubt to the satisfaction of the Court must be applied. If that rule be not applied by a domestic tribunal of inquiry the High Court in a petition under Article 226 of the Constitution is not competent to declare the order of the authorities holding a departmental enquiry invalid. The High Court is not a court of appeal under Article 226 over the decision of the authorities holding a departmental enquiry against a public servant. The Court is concerned to determine whether the enquiry is held by an authority competent in that behalf and according to the procedure prescribed in that behalf, and whether the rules of natural justice are not violated. Second, where there is some evidence which the authority entrusted with the duty to hold the enquiry has accepted and which evidence may reasonably support the conclusion that the delinquent officer is guilty of the charge, it is not the function of the High Court to review the evidence and to arrive at an independent finding on the evidence. The High Court may....
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....igh Court was not justified to do so. Apart from the aspect that the High Court does not correct a finding of fact on the ground that the evidence is not sufficient or adequate, the evidence in the present case which was considered by the Tribunal cannot be scanned by the High Court to justify the conclusion that there is no evidence which would justify the finding of the Tribunal that the respondent did not make the journey. The Tribunal gave reasons for its conclusions. It is not possible for the High Court to say that no reasonable person could have arrived at these conclusions. The High Court reviewed the evidence, reassessed the evidence and then rejected the evidence as no evidence. That is precisely what the High Court in exercising jurisdiction to issue a writ of certiorari should not do." 18. It has been time and again said that it is not open to the High Court to examine the findings recorded by the Inquiry Officer as a Court of Appeal and reach its own conclusions and that power of judicial review is not directed against the decision but is confined to the decision making process. In a case such as the present one where the delinquent admitted the charges, no scop....
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....rror in not adequately adverting to the fact that the charges were admitted by the delinquent unequivocally and unambiguously and, therefore, misconduct of the Respondent No. 1 was clearly established. We are, therefore, unable to persuade ourselves to concur with the view of the High Court. 22. The question, however, remains: is the punishment of removal grossly disproportionate to the proved charge of unauthorized absence for more than six months? 23. In order to answer the aforesaid question, it would be appropriate to refer to a few of decisions of this Court wherein doctrine of proportionality has been considered. In Union of India and Another v. G. Ganayutham (1997) 7SCC463), this Court elaborately considered the proportionality in the administrative law in England as well as in our own country. The court considered some important English decisions, viz., Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation (1947) 2All ER 680), Council of Civil Service Unions v. Minister for Civil Service (1984) 3 All ER 935), R.v. Goldstein (1983) 1 All ER 434) and R. v. Secretary for Home Dept. ex. p. Brind (1991) 1 All ER 720) and few decisions of this Court, viz., Ranjit ....
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....the courts/tribunals will only play a secondary role while the primary judgment as to reasonableness will remain with the executive or administrative authority. The secondary judgment of the court is to be based on Wednesbury and CCSU principles as stated by Lord Greene and Lord Diplock respectively to find if the executive or administrative authority has reasonably arrived at his decision as the primary authority. (4)(b) Whether in the case of administrative or executive action affecting fundamental freedoms, the courts in our country will apply the principle of "proportionality" and assume a primary role, is left open, to be decided in an appropriate case where such action is alleged to offend fundamental freedoms. It will be then necessary to decide whether the courts will have a primary role only if the freedoms under Articles 19, 21 etc. are involved and not for Article 14." 24. Dealing with the question of proportionality with regard to punishment in disciplinary matters, the court said : "32. 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....
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....the reasons given above, the case cited for the respondent, namely, State of Maharashtra v. M.H. Mazumdar cannot be of any help." 25. Again, in the case of Coimbatore District Central Cooperative Bank v. Coimbatore District Central Cooperative Bank Employees Assn. and Another this court considered the doctrine of proportionality and it was held : "17. So far as the doctrine of proportionality is concerned, there is no gainsaying that the said doctrine has not only arrived in our legal system but has come to stay. With the rapid growth of administrative law and the need and necessity to control possible abuse of discretionary powers by various administrative authorities, certain principles have been evolved by courts. If an action taken by any authority is contrary to law, improper, irrational or otherwise unreasonable, a court of law can interfere with such action by 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....
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....laimed: (All ER p. 950h-j) "Judicial review has I think developed to a stage today when, without reiterating any analysis of the steps by which the development has come about, one can conveniently classify under three heads the grounds on which administrative action is subject to control by judicial review. The first ground I would call `illegality', the second `irrationality' and the third `procedural impropriety'. That is not to say that further development on a case-by-case basis may not in course of time add further grounds. I have in mind particularly the possible adoption in the future of the principle of `proportionality'...." (emphasis supplied) 23. CCSU has been reiterated by English courts in several subsequent cases. We do not think it necessary to refer to all those cases. 24. So far as our legal system is concerned, the doctrine is well settled. Even prior to CCSU, 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. 25. In Hin....
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.... judicial review, would ensure that even on an aspect which is, otherwise, within the exclusive province of the court martial, if the decision of the court even as to sentence is an outrageous defiance of logic, then the sentence would not be immune from correction. Irrationality and perversity are recognised grounds of judicial review." (emphasis supplied) 26. The doctrine of proportionality is, thus, well recognized 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 access to the allegations cannot claim immunity and remains open for interference under limited scope of judicial review. One of the tests to be applied while dealing with the question of quantum of punishment would be : would any reasonable employer have imposed such punishment in like circumstances? Obviously, a reasonable employer is expected to take into consideration measure, magnitude and degree o....