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LPAST/334/2004 22/ 24 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS
PATENT APPEAL (STAMP) No. 334 of 2004
In
SPECIAL
CIVIL APPLICATION No. 8991 of 2002
======================================
S.P
BHATT
Versus
STATE
OF GUJARAT
======================================
Present:
Shri M.M. Parmar, for the
appellant.
Shri A.G. Desai, Assistant Government Pleader for the
respondent.
======================================
CORAM
:
HONOURABLE
MR.JUSTICE G.S. SINGHVI
and
HONOURABLE MR.JUSTICE P.B.MAJMUDAR
Date
: 07/09/2005
Per
: G.S. Singhvi, J.
This
appeal is directed against order dated 11.12.2003 vide which the
learned Single Judge dismissed Special Civil Application No. 8991 of
2002 filed by the appellant for quashing order dated 22.2.2002
passed by Gujarat Civil Services Tribunal [for short 'the Tribunal']
in Appeal No. 382 of 2000.
The
appellant was appointed as Clerk on 22.6.1981 in Roads and
Buildings Department of the Government of Gujarat. She availed 862
days leave without pay with effect from 1.5.1995 by citing different
reasons. At one time she gave out that she had conceived after 14
years of marriage and, therefore, it was not possible for her to
attend to the work. At another time she gave out that she was
required to look after the aged parents-in-law. On 4.6.1997, the
department instructed the appellant not to proceed on long leave off
and on. She was also told that her request for leave will not be
entertained in future. Notwithstanding this, the appellant again
applied for leave without pay for a period from 1.7.1997 to 31.7.1998
by citing personal and social reasons. Her request was turned down
by the department vide letter dated 7.10.1997 and she was instructed
to report for duty. Vide letter dated April 2, 1998, she was
instructed to appear before the Medical Board at Ahmedabad for
check-up but she did not comply with the said direction.
Consequently, a departmental enquiry was initiated against her under
the Gujarat Civil Services (Discipline and Appeal) Rules, 1971 (for
short 'the Rules') on the charges of remaining absent from duty and
disobeying the direction given by the department requiring her to
appear before the Medical Board. English translation (supplied by
the office of the High Court) of the relevant extract of charges
contained in memo dated 21.1.1999 reads as under:
?SSmt. S.P. Bhatt, a clerk on General Duty, has remained very much irregular regarding her presence in the office. She has availed in all 862 days Leave Without Pay on different reasons for the period from 01/05/95 to 08/08/97. The Road & Building Department has, vide it's Memo No. RJA-1293/55/F dated 04/06/97, instructed Smt. Bhatt not to proceed on long leave off and on and also informed Smt. Bhatt that if it is repeated, her leave will not be granted in future. Yet Smt. Bhatt applied for Leave Without Pay for a period from 01/09/97 to 31/07/98 for personal, social reasons and also for looking after her aged parents-in-law (father-in-law & mother-in-law). It was rejected vide the Department's Letter No. RJA-1293/55/F dated 07/10/97 and Smt. Bhatt was instructed to report for duty immediately. Thereafter, again vide Letter No. RJA-1293/55/F dated 12/11/97, she was instructed to report for duty within 3 days failing which they will have to take actions against her for initiating disciplinary proceedings which may be noted. The said letter was refused to the Department as her address is changed. Smt. Bhatt, vide application dated 25/11/97, requested to grant Leave Without Pay for a period from dt. 01/09/97 to 28/02/98 as she was sick and forwarded a medical certificate of Dr.(Mrs.) D.A.Ratani of Niki Maternity Home. She was advised to take rest from September '97 to April '98 i.e. till her delivery as mentioned in the medical certificate. In this connection, the Department had, vide it's letter no. RJA-1298/55/F dated 02/04/98, asked Smt. Bhatt to appear before the Medical Board, Ahmedabad for her medical check-up and then to forward an opinion of the Medical Board. In this connection Smt. Bhatt appears to have not followed up. Moreover, different reasons of leave are mentioned in the applications date 01/09/97 and 25/11/97 for the leaves starting from one & same date 01/09/97. Therefore, there has arisen a question that if Smt. Bhatt was advised to have complete bed-rest from September '97 to April '98 as mentioned in the certificate of Dr.(Mrs.) Ratani, why this reason is not mentioned in the application dated 01/09/97 ? Though she proceeded on leave from 01/09/97, the medical certificate is submitted on dt. 25/11/97. A question has also arisen that if she herself is not well, how would she look after her aged in-laws? Smt. Bhatt has, vide her application dated 30/03/98, requested to grant her maternity leave from dt. 01/03/98 to 13/07/98. Smt. Bhatt has stated in her application dated 25/05/98 that she had received the letter dated 02/04/98 of Road & Building Department late. Smt. Bhatt has undergone delivery, on 15/03/98, by caesarian. So there is no question of appearing before the Medical Board. Smt. Bhatt, vide the letter no. RJA-1298/55/F dated 11/08/98, was asked to report for duty immediately failing which her entire absence shall be treated as unauthorised and disciplinary proceedings shall be initiated against her for disregarding government instructions which may be noted. Smt. Bhatt, vide letter no. RJA-1298/55/F dated 05/09/98, was instructed to report for duty immediately failing which her entire absence shall be treated as unauthorised and disciplinary proceedings shall be initiated against her for disregarding government instructions which may be noted. Smt. Bhatt, vide letter no. RJA-1298/55/F dated 24/09/98, was instructed to show cause as to why the disciplinary proceedings should not be initiated against her for disregarding the department's letter no. RJA-1298/55/F dated 11/08/98 & 05/09/98 and also instructed to report for duty immediately failing which an ex-parte proceedings shall be initiated against her on assuming that she does not want to say anything. However, Smt. Bhatt has neither submitted any explanation nor reported for duty till today. Thus Smt. Bhatt has committed a breach of Rule 3(1)(3) of Gujarat Civil Services Rules(Conduct) Rules-1971, for which she is responsible.??
In
her reply dated 4.5.1999, the appellant denied the charges by making
the following assertions:
?S Over
and above Government employee, I, being a social human being,
perform many other duties. Over and above my personal duties and
responsibilities, I am absolutely dedicated to the Government
duties, therefore, I expect that liberal actions may be taken
against me.
In
fact, I have availed in all 862 days Leave Without Pay from dt.
01/05/95 to 08/08/97 on the ground of beyond control social &
family responsibilities as well as physical unfitness. I have
submitted details thereof in writing as well as made oral
submissions in person to the Government from time to time which shows
my devotion and feeling of dedication to the duties.
Inspite of the fact that I have been given particular
instructions vide letter dated 04/06/97 of the Road &
Building Department, I, vide my application dated 01/09/97,
have requested to grant Leave Without Pay because my aged
in-laws are living with us in our large family. As my
father-in-law has retired from the Police Department on
superannuation after enjoying a long and brilliant career, the
responsibility of maintaining him was shouldered upon me and my
husband. After retirement, health of both my father-in-law &
mother-in-law (in-laws) in my family members, was getting weak day
by day, so an additional responsibility to look after them was on
my shoulder. As my husband has been performing duty as the
Deputy Collector, G.A.S., Class-I, for administrative reasons,
he is transferred on liable posts in the different districts
of Gujarat from time to time. Therefore, in his absence,
naturally my responsibility to look after aged in-laws was
folded double. Which Government can understand. The
Government itself has accepted motto of joint family from time to
time. In these circumstances, if my case is considered positively,
there may not found any irregularity on my behalf.
I
have, vide an application dated 25/11/97, requested to grant
Leave Without Pay for the period from dt. 01/09/97 to 28/02/98 on
the reason of my ill-health. After the application was submitted, as
I have to undergo further medical check-up and treatment suddenly
on the same day, I have submitted necessary medical certificate of
Dr.(Mrs.) D.A. Ratani/Niki Maternity Home. As the government
has accepted medical and scientific truth under rules that
lady employee requires to have rest during the period of
delivery, the government too grants maternity leave to each lady
employee during her delivery period. Though I have been
informed vide this Department's Memo dated 02/04/98 to appear
before Medical Board for medical check-up and then to forward an
opinion of the Medical Board. In fact, this approach is inhuman and
against the policy established by the government. In this
connection, I have made submission to the government vide my
letter dated 25/05/98. In fact, it is comprehensive
question that after delivery period which special test and
check-up would be there as well as what expert opinion may the
Medical Board give after the period of delivery, because it is
an undisputed fact that I have undergone delivery. Being a lady
employees, it is not becoming that I state anything further
in this regards. Therefore, as an allegation this point is not
tenable, so it shall be rejected and I heartily request to show
courtesy towards me being a woman.
There
has been raised a question that if I have been advised to take
complete bed-rest from September '97 to April '98 as mentioned in
the certificate dated 01/09/97 of Dr.(Mrs.) Ratani, why this
reason is not mentioned in the application dated 01/09/97. Regarding
which my detailed, reply is already submitted herewith at above
point no. 5. Moreover, this question is not logical and
consistent. A question that how would have I looked after
personally my aged in-laws in the circumstances when
I myself was not well, is also absolutely improper and
against the living standards of an average Indian Woman,
because according to Indian Culture, in joint family, each member
of family performs one's personal moral duty at the time of
anyone's ill-health. It is very well known fact of our society
that a mother-in-law, though not well herself, looks after her
daughter-in-law pleasantly on her delivery. Further discussion,
in this regards, is not necessary. Thus, both these
questions, arisen by the government vide above memo, are
absolutely inhuman and against established living
standards of the family-life. Therefore, I, neither agree nor
accept the same.
The
government has, vide it's letter dated 11/08/98, instructed me
to report for duty. Thereafter, vide letter dated 05/09/98, I
was again instructed as above. The government has also
informed that my explanation was asked for vide letter dated
24/09/98,though I have not submitted any explanation and thereby I
have committed breach of Rule 3(1)(3) of the Gujarat State
Services (Conduct) Rules-1971.
In
fact, in view of what is stated above in my explanation, it has
not established anywhere that I have ever committed breach of
Rule - 3(1)(3) with malafied intention. Therefore, I do not become
responsible any how. Before this, I have performed my government
duties diligently for a long time. There has never arisen
disputable or admonishable incident during tenure of my
duties which may be seen from my government record. Even
though, in the circumstances beyond my control, as I have to
perform my social and family duties inevitably, as per rules I have
submitted applications with necessary documents to grant leave under
rules. Thus, it has never happened that I would have not informed
the government about the facts which shows my dedication to
the government. Moreover, there were no reasons for not
granting my submission and even if there would have any reason, the
government has not informed me about the same at the relevant time,
otherwise it is fact that I would have reported for my duties facing
even beyond control circumstances.
In
view of my above explanation, as the above alleged charges
against me are not established, I am not liable for any of the
punishment prescribed under rule-6 of the Rules - 1971. Therefore,
it is requested that the said fact too may be considered.
As
I have not committed any irregularities deliberately as per
the charges mentioned made in the government's letter dated
21/01/99, I again refuse the same emphatically and also request
to file aforesaid alleged charges against me showing humanity.??
Shri
Dhansukhlal Arjunbhai Dhumasia (retired Joint Secretary), who was
appointed as Enquiry Officer submitted report dated 1.12.1999 with
the finding that the charges levelled against the appellant have been
partly proved. A copy of the inquiry report was supplied to her, and
she was given opportunity to make representation. She submitted
representations dated 7.1.2000 and 28.2.2000 and reiterated that she
had to remain on leave for personal and social reasons and that she
never wanted to defy the orders of the superior officers. The
Disciplinary Authority did not accept her explanation and dismissed
her from service vide order dated 20.6.2002. The English translation
of that order shows that after making a mention of the charges
levelled against the appellant, the statement of defence submitted by
her, the report of the Enquiry Officer and submissions made by the
appellant, the disciplinary authority passed the order of punishment
without assigning any reason whatsoever for not accepting the points
raised by the appellant. This is clearly revealed from paragraphs 2
to 4 of the order of punishment, which are reproduced below:
?S2)
In connection with the above chargesheet, Smt. S.P. Bhatt has
submitted a statement of defence vide her letter dated 04/05/99.
After considering the same, for initiating departmental
inquiry under rules, Mr. D.A. Dumasia, Retired Joint
Secretary, was appointed as the Departmental Inquiry Officer
vide this Department's even number order dated 07/08/99 and he was
assigned further proceedings of the departmental inquiry.
3)
The Departmental Inquiry Officer has submitted an inquiry report vide
his letter dated 01/12/99. Wherein the charges levelled
against Smt. S.P. Bhatt were proved partly. Smt.S.P. Bhatt
was forwarded a copy of inquiry report of the Inquiry Officer and as
on informed to make submissions within 15 days, if any, Smt. S.P.
Bhatt has made further submissions vide her letter dated
07/01/2000 & 28/02/2000.
4) After careful consideration of the charges levelled against Smt. S.P. Bhatt, a clerk on general duty, Smt. S.P. Bhatt's say in connection with the same, the Inquiry Officer's inquiry report, further submissions by Smt. S.P. Bhatt, a clerk on general duty and entire facts, an order is passed "to dismiss" Smt. S.P. Bhatt with immediate effect under rule 6(8) of the Gujarat Civil Services(Discipline & Appeal) Rules-1971 for the irregularities committed by Smt. S.P. Bhatt.??
The
appellant challenged the order of dismissal by filing an appeal
before the Tribunal. She pleaded that the inquiry held against her
was vitiated due to violation of rules of natural justice and that
the punishment of dismissal from service was wholly unjustified,
arbitrary and unreasonable. The Tribunal rejected the appellant's
challenge to the procedure adopted by the Enquiry Officer and the
finding recorded by him but substituted the penalty of dismissal with
that of removal from service. The Tribunal was of the view that even
though the appellant may have remained away from duty because she
was pregnant and was expecting a child, there was no justification
for disobeying the orders of the superiors. The Tribunal held that
the appellant had not shown sincerity towards the Government job and
she had no business to dictate terms in the matter of her appearance
before the Medical Board. However, the Tribunal felt that the
punishment was unreasonable and directed that the order of dismissal
be treated as one of removal. Paragraph 23 of the English translation
of order dated 22.2.2002 passed by the Tribunal, which contains
discussion on this issue reads as under:
?SBut
all said and done the last point about penalty being too harsh is
appealing. You do not dismiss a person for absence. The appellant
is not the chip of deadwood and her serverance from service can be
achieved by removal, compulsory retirement or discharge or
termination. The Disciplinary Authority ? respondent has not given
thought on this point. She has put in 13 years of service. If she
applies for pension and if it is available to her the department or
government may decide graciously to do so, they may. With these
reasons we pass the following order.
ORDER
The
appeal is partly allowed. We modify the order that instead of
dismissal, she be removed from service. If she is entitled to any
benefits she be given the same.??
Feeling
dis-satisfied with the order of the Tribunal, the appellant filed
writ petition under Article 226 of the Constitution of India, which
was registered as Special Civil Application No. 8991 of 2002. The
learned Single Judge declined to entertain her plea for invalidation
of the Tribunal’s order and the order of punishment by observing
that the misconduct found proved against her was of a serious nature.
The learned Single Judge felt that the appellant’s absence from
service for a long period of 5 years was detrimental to the
administrative work of the Government, and, therefore, she did not
deserve any sympathy.
We
have heard learned counsel for the parties and carefully perused the
record. The scope of judicial review of the discretion exercised by
the employer in the matter of imposition of penalty on a delinquent
employee is very limited. The Court cannot sit in appeal over the
judgment of the employer and nullify the punishment simply because
it feels that a lesser punishment would meet the ends of justice or
merely because two views are possible of the nature of misconduct
found proved against the delinquent and the desirability of imposing
a particular penalty. The Court can interfere in such matters only
if it is convinced that the punishment imposed by the employer is
shockingly disproportionate or is wholly arbitrary or is one which no
reasonable person would have imposed in the circumstances of the
case. The principle of proportionality which was
invoked by the Supreme Court in Ranjit Thakore Vs. Union of India
(1987) 4 SCC 6611 and some other cases by relying on the decision in
Council for Civil Services Union Vs. Minister of Civil
Services 1983 1 AC p.76 was
extensively considered by the Supreme Court in Union of
India Vs. G. Ganayutham
(1997) 7 SCC 463 and Om Kumar Vs. Union of India
(2001) 2 SCC 386. In Ganayutham’s
case (supra), M. Jagannadha Rao, J. applied the ‘Wednesbury’
principle and the doctrine of ‘Proportionality’ and laid down the
following proposions:
(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 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 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 principles.
(3)
(a) As per Bugdaycay, Brind and Smith 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 judgement 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 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 ?Sproportionality?? 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.??
In
Om Kumar’s case (supra), the Supreme Court considered the
applicability of the doctrine of ‘Proportionality’ in the context of
Article 14 of the Constitution, referred to the judgements in Ranjit
Thakur Vs. Union of India (supra), B.C. Chaturvedi Vs. Union
of India (1995) 6 SCC and then observed:
?SIn
this context, we shall only refer to these cases. In Ranjit Thakur
V. Union of India this Court referred to ?Sproportionality?? in the
quantum of punishment but the Court observed that the punishment was
?Sshockingly?? disproportionate to the misconduct proved. In B.C.
Chaturvedi Vs. Union of India this Court stated that the court will
not interfere unless the punishment awarded was one which shocked the
conscience of the court. Even then, the court would remit the matter
back to the authority and would nor normally substitute one
punishment for the other. However, in rare situations, the court
could award an alternative penalty. It was also so stated in
Ganayutham.??
?SThus,
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 ?Sarbitrary?? 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
State Bank of India Vs. Samrendra Kishore Endow (1994) 2 SCC
537; State of Uttar Pradesh Vs. Ashok Kumar Singh (1996) 1 SCC
302; State of Uttar Pradesh Vs. Nandkishore Shukla (1996) 3
SCC 750; State of Punjab Vs. Baxi Singh (1997) 6 SCC 381;
Uttar Pradesh State Road Transport Corporation Vs. A.K. Parul
(1998) 9 SCC 416; Union of India Vs. J.R. Gheman (1999) 6 SCC
403; Secretary A.P. SWRE I Society Vs. J. Prathap (2002) 10
SCC 430; the Supreme Court has consistently held that in exercise of
jurisdiction under Article 226 of the Constitution of India, the High
Court will not interfere with the punishment imposed by the competent
authority merely because it feels that it is harsh or that a
different view could have been taken of the misconduct committed by
the employee. The Court can direct the competent authority to
reconsider the question of punishment only if it comes to a definite
conclusion that the same is shockingly disproportionate or is totally
arbitrary or there has been a non-consideration of the relevant
factors or where irrelevant considerations have weighed with the
competent authority for imposing the particular punishment.
In
the light of the guiding principles laid down by the Supreme Court in
Ganayutham’s case [supra] and Om Kumar vs. Union of India (supra),
we shall now consider whether the punishment of dismissal from
service imposed on the appellant can be termed as shockingly
disproportionate or wholly arbitrary so as to warrant judicial
intervention. While considering this issue, we are conscious of the
fact that the Tribunal did feel appalled by the magnitude of the
penalty imposed on the appellant but refrained from giving
substantive relief to her and felt satisfied by converting the
penalty of dismissal into that of removal, and the learned Single
Judge, by a rather brief order, refused to entertain the appellant’s
plea for further reduction in the quantum of punishment.
Rule
6 of the Rules enumerates the minor as well as major penalties which
can be imposed on a member of the State, Subordinate or Inferior
Services. It lays down that without prejudice to the provision of any
law for the time being in force, the penalties enumerated therein
may, for good and sufficient reasons, be imposed upon any member of
the State, Subordinate or Inferior Service. A careful reading of
this rule makes it clear that the competent authority can impose any
of the eight penalties on a delinquent employee provided there exist
good and sufficient reason for doing so. The penalties enumerated in
Rule 6 include censure, withholding of increments or promotion,
recovery from pay of the whole or part of any pecuniary loss caused
to government by negligence or breach of orders, reduction to a lower
stage in the time scale of pay for a specific period, reduction to a
lower time scale of pay, grade, post or service, compulsory
retirement, removal from service and dismissal from service. It is
thus evident that the disciplinary authority has large amount of
discretion in the matter of imposition of punishment. However, this
discretion has to be exercised objectively and the order made by the
disciplinary authority must be supported by good and sufficient
reasons.
The
expression ?Sgood and sufficient reasons?? appearing in rule 6 of
the Rules has not been defined, but on the basis of service
jurisprudence which has developed in our country during the last 55
years, it can be said that while imposing any particular penalty on a
delinquent employee, the competent authority is duty bound to take
into consideration the following factors:
a) the
nature of employment/service;
b) total
length of service of the employee [delinquent];
c) the
nature of misconduct and its gravity;
d) the
service record of the employee, and
e) the
impact of the misconduct on the establishment where the employee
is employed.
Ordinarily,
an employer will be justified in imposing extreme penalty of
dismissal, removal or compulsory retirement where the employee is
guilty of financial irregularities or moral turpitude or is found
guilty of gross disobedience of the lawful orders passed by the
competent authority, but if the delinquency does not relate to
mis-appropriation, embezzlement etc. or the act of the employee does
not violate the code of morality, the competent authority may impose
comparatively less severe penalty. Every violation of the conduct
rule may not warrant or justify imposition of major penalty. The
employer may, after taking into consideration the gravity and
magnitude of the misconduct, past record of the employee, his status
and the impact of misconduct on other members of service, may impose
a minor penalty.
In our opinion, the rigor of the penalty imposed always must be
commensurate with the degree of misconduct found proved and the
nature of service. In the case of disciplined forces, a misconduct
which may be treated as minor in relation to civil services may be
viewed with greater seriousness. As a matter of fact, Courts have
been extremely loath to exercise the power of judicial review in
matters involving the disciplined forces, but the same will not be
held true for civil services. What we wish to emphasis is that in
its zeal to maintain discipline the employer should not readily pass
an order which may result in depriving the employee and his family of
the only source of livelihood. We can take judicial notice of the
fact that misconduct like absence from duty or non-compliance of the
departmental instructions or rules by the employees belonging to
Class III and Class IV services do not vitally affect the others and
if the employees of these cadres are not found guilty of financial
misdemeanour or of a charge which can be treated as falling within
the dominion of moral turpitude, the employer may take a lenient view
particularly when the past record of the employee is not
blameworthy.
If the appellant’s case is viewed in the light of the above
discussion, it is not possible to sustain the order of dismissal
because while imposing the extreme penalty, the disciplinary
authority did not advert to the factors like length of her service
and past record, the nature of misconduct found proved, the
background in which the appellant had remained absent from duty, viz.
that she conceived after 14 years of marriage and that she was
required to look after her ailing father-in-law, and the fact that
she was holding a clerical job and her absence from duty could not
have materially hampered the work of the department. We are sure that
if the disciplinary authority had kept these factors in mind, then
the penalty of dismissal would not have been imposed ignoring the
fact that the appellant had proceeded on leave to avail the most
precious gift given by the Almighty God. The Tribunal was alive to
this defect in the order of punishment, but stopped short of giving
effective relief to the appellant. To the misfortune of the
appellant, after having made a beginning in the right direction, the
Tribunal faulted at the end of the post, and felt contended by
converting the penalty of dismissal into that of removal, which did
not give any tangible relief to the appellant.
Another
grave error committed by the Tribunal was that it failed to take
cognizance of the fact that the order of punishment passed by the
Government was devoid of reasons and did not satisfy the test of a
speaking order. A bare reading of the relevant extracts of order
dated 20.6.2000 shows that while imposing the extreme penalty of
dismissal from service, the disciplinary authority did not take into
account the fact that as on the date of the punishment the appellant
had completed 19 years service; that she had remained away from work
partially due to personal and social reasons and that her past record
were not blameworthy. In our view the failure of the disciplinary
authority to objectively consider these facts has introduced a
fatal defect in the order of punishment. The requirement of
recording of reasons by every quasi-judicial authority and even
administrative authority entrusted with the task of deciding lis
between the parties or of making an order which affects the rights of
other persons has been treated as an integral part of the rules of
natural justice. This principle has been laid down and reiterated in
various decisions of the Supreme Court including the following:
Harinagar
Sugar Mills Vs Shyam Sunder
AIR 1961 SC 1669, Bhagat Raja Vs. Union of India
AIR 1967 SC 1606, M/s. Mahavir Oil Industries Vs. State of
U.P AIR 1970 SC 1031,
Travancore Rayons Ltd. Vs. The Union of India and others
AIR 1971 SC 862, State of Punjab Vs. Bakhtawar Singh
AIR 1972 SC 2083, Ajanta Industries Vs. Union of India
AIR 1976 SC 434, The Siemens Engineering and Manufacturing
Co. of India Ltd. Vs. The Union of India and another
AIR 1976 SC 1785, S.N. Mukherjee Vs. Union of India
AIR 1990 SC 1984, Cyril Lasrado Vs. Juliana Maria Lasrado
(2004) 7 SCC 431, State of Orissa Vs. Dhaniram Luhar
(2004) 5 SCC 568, State of Rajasthan Vs. Sohan Lal
(2004) 5 SCC 573 and Mangalore Ganesh Beedi Works Vs. C.I.T
(2005) 2 SCC 329.
In
State of Punjab Vs. Bakhtawar Singh (supra),
the Supreme Court considered the legality of an order passed by the
State Government removing the respondent who was a member of the
Electricity Board. While quashing the order of the State Government,
the Supreme Court observed:
?S….
That apart, the order of the Minister removing him does not disclose
that he had applied his mind to the material on record. That order
does not show what charges against Shri Abrol have been established.
The order reads:
?SI
have gone through the charges and the explanation furnished by Shri
R.P. Abrol. From the material on the file, I am definitely of the
opinion that he is not a fit person to be retained as part-time
member of the Electricity Board. I, therefore, order that Shri Abrol
may be removed from membership under sub-clause (iv) of Cl. (e) of
sub-s. (1) of Section 10 of the Electricity Supply Act, 1948. C.M may
kindly see. After C.M has seen, immediate orders be issued.??
?S13.
This order cannot be said to be a speaking order. It is arbitrary to
the core. Such an order cannot be upheld. Hence it is not necessary
to go into the other contentions advanced on behalf of Shri Abrol.??
In
S.N.Mukherjee’s
case (supra) the Constitution Bench of the Supreme Court after a
detailed survey of English, American and Australian law on the
subject and making reference to various judgements of the Supreme
Court laid down the following propositions:
?SReasons,
when recorded by an administrative authority in an order passed by it
while exercising quasi-judicial functions, would no doubt facilitate
the exercise of its jurisdiction by the appellate or supervisory
authority. But the other considerations, referred to above, which
have also weighed with this Court in holding that an administrative
authority must record reasons for its decision are of no less
significance. These considerations show that the recording of reasons
by an administrative authority serves a salutary purpose, namely, it
excludes chances of arbitrariness and ensures a degree of fairness in
the process of decisions-making. The said purpose would apply equally
to all decisions and its application cannot be confined to decisions
which are subject to appeal, revision or judicial review. In our
opinion, therefore, the requirement that reasons be recorded should
govern the decisions of an administrative authority exercising
quasi-judicial functions irrespective of the fact whether the
decision is subject to appeal, revision or judicial review.??
?SThe
object underlying the rules of natural justice “is to prevent
miscarriage of justice” and secure “fair play in action.”
As pointed out earlier the requirement about recording of reasons for
its decision by an administrative authority exercising quasi-judicial
functions achieves this object by excluding chances of arbitrariness
and ensuring a degree of fairness in the process of decision-making.
Keeping in view the expanding horizon of the principles of natural
justice, we are of the opinion, that the requirement to record reason
can be regarded as one of the principles of natural justice which
govern exercise of power by administrative authorities. The rules of
natural justice are not embodied rules. The extent of their
application depends upon the particular statutory framework
whereunder jurisdiction has been conferred on the administrative
authority. With regard to the exercise of a particular power by an
administrative authority including exercise of judicial or
quasi-judicial functions the legislature, while conferring the said
power, may feel that it would not be in the larger public interest
that the reasons for the order passed by the administrative authority
be recorded in the order and be communicated to the aggrieved party
and it may dispense with such a requirement. It may do so by making
an express provision to that effect as those contained in the
Administrative Procedure Act, 1946 of U. S. A. and the Administrative
Decisions (Judicial Review) Act, 1977 of Australia whereby the orders
passed by certain specified authorities are excluded from the ambit
of the enactment. Such an exclusion can also arise by necessary
implication from the nature of the subject matter, the scheme and the
provisions of the enactment. The public interest underlying such a
provision would outweigh the salutary purpose served by the
requirement to record the reasons. The said requirement cannot,
therefore, be insisted upon in such a case.??
In
Cyril Lasrado Vs. Juliana Maria Lasrado
(supra) the Supreme Court reiterated the necessity of recording of
reasons in the following words:
?SReasons
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 sound judicial system,
reasons at least sufficient to indicate an application of mind to the
matter before court. Another rationale is that the affected party can
know why the decision has gone against him. One of the salutary
requirements of natural justice is spelling out reasons for the order
made, in other words, a speaking out. The ‘inscrutable face of the
sphinx’ is ordinarily incongruous with a judicial or quasi-judicial
performance.??
?SReasons
introduce clarify in an order. On plainest consideration of justice,
the High Court ought to have set forth its reasons, howsoever brief,
in its order indicative of an application of its mind, all the more
when its order is amenable to further avenue of challenge. The
absence of reasons has rendered the High Court’s judgement not
sustainable.??
In
State of Orissa Vs. Dhaniram Luhar
(supra) and State of Rajasthan Vs. Sohan Lal
(supra) the Supreme Court considered the question whether a petition
for leave to appeal filed under Section 378(3) of the Code of
Criminal Procedure could be dismissed by the High Court without
reasons and answered the same in the negative. In Sohanlal’s
case (supra), the Supreme Court laid down the following propositions:
?SThe
Hallmark of a judgment/order and exercise of judicial power by a
judicial forum is to disclose the reasons for its decision and giving
of reasons has been always insisted upon as one of the fundamentals
of sound administration justice delivery system, to make known that
there had been proper and due application of mind to the issue before
the Court and also as an essential requisite of principles of natural
justice.??
?SThe
giving of reasons for a decision is an essential attribute of
judicial and judicious disposal of a matter before courts, and which
is the only indication to know of the manner and quality of exercise
undertaken, as also the fact that the court concerned had really
applied its mind. All the more so, when refusal of leave to appeal
has the effect of foreclosing once and for all a scope for scrutiny
of the judgement of the trial court even at the instance and hands of
the first appellate court.??
?SThe
Supreme Court in Dhaniram Luhar case, (2004) 5 SCC 568, while
reiterating the view expressed in the earlier cases for the past two
decades emphasised the necessity, duty and obligation of the High
Court to record reasons in disposing of appeals arising under Section
378 Cr.P.C, 1973. The fact that the entertaining of an appeal at the
instance of the State against an order of acquittal for an effective
consideration of the same on merits is made subject to the
preliminary exercise of obtaining of leave to appeal from the High
Court, is no reason to consider it as an appeal of any inferior
quality or grade, when it has been specifically and statutorily
provided for, or sufficient to obviate and dispense with the obvious
necessity to record reasons. The need for recording reasons for the
conclusion arrived at by the High Court under Section 378 has nothing
to do with the fact that the appeal envisaged under Section 378 has
nothing to do with the fact that the appeal envisaged under Section
378 Cr.P.C is conditioned upon the seeking for an obtaining of leave
from the court.??
In
Mangalore Ganesh Beedi Works Vs. C.I.T
(supra) the Supreme Court held that even the appellate order passed
under Sections 260A and 260B of Income Tax Act, 1961 must satisfy the
requirement of a speaking order and observed:
?SIn
an order of affirmation, repetition of reasons elaborately may not be
necessary. But even then the arguments advanced and the points urged
have to be dealt with. Reasons for affirmation have to be indicated,
though in appropriate cases they may be briefly stated.??
?SRecording
of reasons is a part of fair procedure. Reasons are harbinger between
the mind of maker of the decision in the controversy and the decision
or conclusion arrived at. They substitute subjectivity with
objectivity. Therefore, the matter is remitted to the High Court to
consider the relevant points afresh.??
In
Ucharan Singh Vs. Healing Touch Hospital and ors.
AIR 2000 SC 3138 and Manorama Sachan Vs. Lucknow
Development Authority (2005)
9 SCC 425, the Supreme Court held that the Consumer Disputes
Redressal Forums and National Commission are required to record
reasons in support of their decisions.
In
Testeels Limited Vs. N.M. Desai Conciliation Officer and
another AIR 1970 (Gujarat) 1,
a Full Bench of this Court speaking through Shri P.N. Bhagwati, Chief
Justice (as His Lordship then was) made a lucid enunciation of law on
the subject and we can do no better than to extract some portions of
that judgement, which read as under:-
“There
are two strong and cogent reasons why we must insist that every
quasi-judicial order must disclose reasons in support of it. The
necessity of giving reasons flows as a necessary corollary from the
rule of law which constitutes one of the basic principles of our
constitutional set-up. Our Constitution posits a welfare State in
which every citizen must have justice social, economic and political
and in order to achieve the ideal of welfare State,the State has to
perform several functions involving acts of interferences with the
free and unrestricted exercise of private rights. The State is called
upon to regulate and control the social and economic life of the
citizen in order to establish socio-economic justice and remove the
existing imbalances in the socio-economic structure. The State has,
therefore, necessarily to entrust diverse functions to administrative
authorities which involve making of orders and decisions and
performance of acts affecting the rights of individual members of the
public. In exercise of some of these functions, the administrative
authorities are required to act judicially. Now what is involved in a
judicial process is well settled and as pointed out by Shah J, in
Jaswant Sugar Mill’s case, AIR 1963 SC 677 (supra),a quasi-judicial
decision involves the following three elements:
(1) It is in substance a determination upon investigation of a question by the application of objective standards to facts found in the light of pre-existing legal rules.
(2) It declares right or imposes upon parties obligations affecting their civil rights; and
(3)
The investigation is subject to certain procedural attributes
contemplating an opportunity of presenting its case to a party,
ascertainment of facts by means of material if a dispute be on
question of facts, and if the dispute be on question of law, on the
presentation of legal argument, and a decision resulting in the
disposal of the matter on findings based upon those questions of law
and fact.??
?SAnother reason of equal cogency which weighs with us in spelling out the necessity for giving reasons is based on the power of judicial review which is possessed by the High Court under Article 226 and the Supreme Court under Article 32. The High Court under Article 226 and the Supreme Court under Article 32 have the power to quash by certiorari a quasi-judicial order made by an administrative officer and this power of review exercisable by issue of certiorari can be effectively exercised only if the order is a speaking order and reasons are given in support of it. If no reasons are given, it would not be possible for the High Court or the Supreme Court exercising its power of judicial review to examine whether the administrative officer has made any error of law in making the order. It would be the easiest thing for an administrative officer to avoid judicial scrutiny and correction by omitting to give reasons in support of his order. The High Court and the Supreme Court would be powerless to interfere so as to keep the administrative officer within the limits of the law. The result would be that the power of judicial review would be stultified and no redress being available to the citizen, there would be insidious encouragement to arbitrariness and caprice. The power of judicial review is a necessary concomitant of the rule of law and if judicial review is to be made an effective instrument for maintenance of the rule of law, it is necessary that administrative officers discharging quasi-judicial functions must be required to give reasons in support of their orders so that they can be subject to judicial scrutiny and correction.”
The
order passed by the learned Single Judge shows that she was of the
view that the punishment imposed by the disciplinary authority was
not grave enough warranting intervention by the Court. It appears to
us that the counsel appearing for the appellant did not bring to the
notice of the learned Single Judge the fatal flaw with which the
order of the Disciplinary Authority suffered, viz. non-consideration
of the factors which have direct bearing on the quantum of punishment
and the fact that the order of punishment was non-speaking and was,
therefore, vitiated due to violation of the rules of natural justice.
In
view of the above, we may have ourselves substituted the penalty of
removal from service with a lesser penalty so as to enable the
appellant to reap the benefits of 13 years of past service, which is
not shown to be blameworthy. However keeping in view the limited
scope of jurisdiction under clause 15 of the Letters Patent, we
refrain from exercising our jurisdiction as if we are sitting in
appeal over the action of the disciplinary authority, and are of the
view that ends of justice would be met by remanding the matter to
Disciplinary Authority, with a direction to re-consider the issue of
punishment. In our opinion, penalty of stoppage of increments with or
without cumulative effect would be commensurate with the misconduct
found proved against the appellant.
In
the result, the appeal is allowed. The order of learned Single Judge
as well as the order of the Tribunal are set aside. The order of
punishment dated 20th June 2000 is quashed with a
direction that the Disciplinary Authority shall re-consider the issue
of punishment and pass appropriate order within two months from the
date of receipt of certified copy of this order.
We hope and trust that the Disciplinary Authority will adopt a human
approach, sympathetically consider the background in which the
appellant had remained absent and impose appropriate penalty.
It
is, however, made clear that the appellant shall not be entitled to
monetary benefits for the intervening period, i.e. between the date
of commencement of her absence from duty and the date of the order of
reinstatement which shall have to be passed by the competent
authority in pursuance of this order. The period of her absence from
duty including the period during which she will be deemed to have
remained out of employment on account of the order of dismissal shall
be regularised by granting extra-ordinary leave so that she may earn
future service benefits.
[G.S.SINGHVI]
JUDGE
[P.B.MAJMUDAR]
JUDGE
mathew/*Mohandas
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