JUDGMENT
Mohammed Sardar Ali Khan, J.
1. This Writ Appeal is out of the judgment delivered in Writ Petition No. 15477/84 dated 11th August, 1986, wherein a learned single judge dismissed the writ petition filed for quashing the proceedings of the 2nd respondent, i.e., the Board of Directors of the A.P. Road Transport Corporation represented by its Chairman as manifested in Resolution No. 124/1984 dated 7-8-1984 communicated to the petitioner in Reference No. A1/27 (22)/84-PD dated 29-8-1984 confirming the proceedings of the first respondent dated 8-11-1983 bearing Ref. No. Ea/138(4)/82-PD.
2. The facts of the case as emerging from a reading of the affidavit filed in support of the writ petition are as follows:-
The petitioner entered into the service of the first respondent-Corporation in the year 1965 as Probationary Assistant Mechanical Engineer. For his selection, he had qualified himself in a competitive examination. He holds the degree of B.E. (Mechanical) and has also acquired the Post-Graduate degree of M.Tech. in Plant Engineering and Management and M.B.A., after joining the service. He claims that he is fully qualified to hold the responsible post of Assistant Mechanical Engineer (Industrial Engineering) when disciplinary proceedings were initiated in April 1982. The petitioner had completed 18years of service, which according to him, has been of unblemished nature and he had received letters of appreciation and merit service from the higher authorities. He had also received an award of merit from His Excellency the Governor of Andhra Pradesh. By proceedings dated 12-4-1982, the petitioner was placed under suspension. A charge memo was communicated to him stating, inter alia, that he had associated himself with the Andhra Pradesh Productivity Council for conducting a training programme on “Office clerical efficiency” at Nirmal for Andhra Pradesh Girijan Co-operative Corporation from 16-12-1981 to 19-12-1981 in consideration of remuneration without sanction of competent authority. It is further stated in the charge memo that he remained absent from duty unauthorisedly on two days, 16th and 17th December 1981 and failed to obtain sanction for regularisation of such unauthorised absence. Further more, it is stated that he left headquarters without permission and drew wages for 16th and 17th December 1981, suppressing the fact of such unauthorised absence. The petitioner is also supposed to have collected a sum of Rs. 2,100/- from the Andhra Pradesh Girijan Co-operative Corporation and misappropriated the said amount representing himself as the representative of the Andhra Pradesh Productivity Council. The petitioner submitted his explanation dated 21-4-1982 denying all the charges. He also stated that he was placed under suspension without any preliminary enquiry which was initiated with a mala fide intention to damage his career. He denied receipt of any remuneration of Rs. 2,100/- and stated that he had merely designed the course schedule on the request of the Andhra Pradesh Productivity Council and the first respondent Corporation is an institutional member of the Andhra Pradesh Productivity Council. By virtue of the said association, he was entitled to render scientific expertise and service at the disposal of the Productivity Council. He also denied the charge of unauthorised absence on the said alleged dates and misappropriation.
3. The then Chief Mechanical Engineer (Production), Sri J. Radhakrishna Reddy was appointed as the enquiry officer to conduct an enquiry under Regulation 12 of the Andhra Pradesh State Road Transport Corporation Employees (Classification, Control and Appeal) Regulations, 1967. In support of the charge memo, the Corporation examined some witnesses, who also relied on certain documents, which according to the petitioner, are of impeachable authenticity. He submitted his own documents. Apart from himself, he examined three witnesses. A show cause notice proposing the penalty of dismissal from service dated 19-2-1983 was issued. He was asked to submit his objections. It seems the report of the Enquiry officer was not communicated to him along with the show cause notice. Later on, it was furnished to him without bearing any date or signature of the Enquiry Officer through a report dated 19-5-1983. On a perusal of the report, the appellant gave a reply dated 10-6-1983. He was held guilty of all the charges and a penalty of dismissal was imposed on him (vide proceedings No. Ea/138(4)/82-PDdated 18-11-1983. An appeal to the Board of Directors of the respondent-Corporation was filed by the appellant under Regulation 22 of the Corporation Regulations, which was disposed of by the 2nd respondent (vide resolution No. 124/1984 dated 7-8-1984. The appellant filed the writ petition against the orders of dismissal of his services, which was dismissed by the learned single judge. As a result of the order passed by the learned single judge, this writ appeal has been filed.
4. The appellant appellant assails the order of dismissal as being contrary to the relevant leave Regulations and the A.P.S.R.T.C. Conduct Regulations applicable to him. He also stated that the enquiry was designed to prevent his impending promotion to the next higher degree category, for which he had already appeared for selection before the Selection Committee of the Corporation. There are several other grounds, on the basis of. which, the enquiry conducted by the Enquiry Officer was assailed by the appellant as being contrary to the Regulations of the A.P. State Road Transport Corporation Employees (Classification, Control and Appeal) Regulations.
5. It may not be necessary to go into details of all the allegations levelled by the appellant against the respondent-Corporation, on the basis of which he has assailed the enquiry proceedings initiated against him. Suffice it to state that the sum and substance of the allegations levelled by the appellant has already been stated above. It is interesting to note that this is the case of a person who has been dismissed from service unceremoniously for his unauthorised absence on two days, i.e., 16th and 17th December 1981. In all he is supposed to have remained absent for four days from 16th to 19th December 1991. In so far as 18th and 19th December are concerned, there is no dispute about the fact that he had applied for sanctioned leave on the ground that he had to perform his late mother’s ceremony. Of course, it has been argued that this was a false pretext to conduct a course at Nirmal rather than to perform his mother’s ceremony. There is no evidence on record to show that the appellant had performed the ceremony of his late mother. May be he had left for Nirmal to conduct the course after performing the necessary rites in connection with his mother’s ceremony. In sum and substance, therefore, the question that arises for consideration is whether a person can be dismissed from service for remaining absent for two days while he was conducting a course for the Productivity Council in Nirmal Taluk, Adilabad district, away from Hyderabad. For this purpose, it would be necessary to delve deeper into the record and to see how this matter assumes such serious proportions resulting in the pathetic dismissal of the appellant from service.
6. A close scrutiny of the record reveals that by a letter No. CPW/Conf./ 1/82 dated 27th March 1983, the Chief Personnel Manager wrote to the Administrative Officer, Andhra Pradesh Productivity Council that there was reason to believe that Sri M. Ramamohan Rao, Assistant Engineer, A.P.S.R.T.C. was associated with a full-time course conducted by A.P.P.C. outside Hyderabad during the month of December 1981. The Chief Personnel Officer of the respondent-Corporation stated that it was necessary for the Productivity Council to inform him about the exact dates, the subjects taken by him and the remuneration, if any, paid to the appellant. As a result of the letter addressed to the Administrative Officer, a letter was sent by the Honorary Secretary of the A.P. Productivity Council dated 31st March 1982, which deserves to be reproduced herein so that all the aspects of the letter may be cleared for arriving at a just and fair conclusion in the matter.
Andhra Pradesh Productivity Council
10-1-200, Mahaveer Marg,
P.B.No. 21, Hyderabad – 500 004.
Phone: 33758
Grame: Procouncil
S. Rajagopala Reddi No. 123/82
Honorary Secretary 31st March, 1982.
Sr P.S. Ramamohan Rao, IPS,
Vice-Chairman & General Manager,
A.P. State Road Transport Corporation
Musheerabad P.O.
Hyderabad - 500 020.
Dear Sir,
The Andhra Pradesh Productivity Council, which is an autonomous body Registered under the Societies registration Act, has been conducting training programmes, consultancy and Post Graduate Diploma Courses. We take the services of academicians and also people working in Industry in conducting the training programmes. Recently we have conducted a Training Programme on ‘Office Clerical Efficiency’ at Nirmal for the Girijan Co-operative Corporation from 10-12-1981 to 19-12-1981. We have requested Mr. M. Ram Mohan Rao, Assistant Engineer working in your Corporation, to take the sessions, and he has accepted to do the programme at Nirmal on our behalf. It was specifically mentioned to him that the A.P. Productivity Council will pay towards his boarding, lodging, travel and honorarium charges for which he has accepted. Accordingly, he had been to Nirmal and conducted the programme on the said dates. A Xerox copy of the report sent by Mr. Rammohan Rao from Nirmal is enclosed for your kind information. He has given an impression to Girijan Co-operative Corporation authorities that he is a representative of the Council, which is not true. The payment towards the same has not been settled till date. We are surprised and terribly annoyed to receive a letter from the Girijan Co-operative Corporation stating that Mr. Rammohan Rao has collected a sum of Rs. 2,100/- at Nirmal and has given an acknowledgement to that effect. A copy of the letter received from the Girijan Co-operative Corporation is enclosed, for your information. We are surprised to note as to how a highly responsible officer of your Corporation can collect the amount on our behalf without our knowledge. We have been frequently persuading Mr. Rammohan Rao to render the accounts for the amount he has collected, and he had been promising to get the details, but till to-day we have not received any details. We have no other go except to report to you about what had happened. Besides the amount collected from the Girijan Co-operative Corporation, the A.P. Productivity Council has advanced him a sum of Rs. 1,000/- towards his travel, boarding, lodging etc. The Girijan Co-operative Corporation have settled all claims and wanted us to return back the amount of Rs. 2,100/- collected in excess from them, which Mr. Ramamohan Rao has taken. In this connection, we wish to add that Mr. Ramamohan Rao has been periodically taking up sessions in the training programme for the Post-Graduate Diploma courses for which the Council owes a sum of Rs. 900/- which has been kept pending want only to recover from him the amount of Rs. 3,100/- for which the details are yet to be received from Mr. Rammohan Rao.
I have expressed to you about the state of affairs of a responsible officer of your corporation, and request you to kindly intervene and help the Council in realising the amount from him.
I look forward to your early reply.
Thanking you, with kind regards,
Yours sincerely,
Sd/-xxxx
(S. Rajagopala Reddy).”
It would be necessary to point out here that the Andhra Pradesh Productivity Council is an autonomous body registered under the Societies Registration Act. It has been conducting training programmes, consultancy and Post-Graduate Diploma Courses and it takes the services of academicians and people working in industry in conducting the training programmes. They conducted courses for Office clerical efficiency at Nirmal for the Girijan Co-operative Corporation from 16-12-1981 to 19-12-1981. The Productivity Council requested Mr. M. Rama Mohan Rao, Assistant Engineer, the appellant before us, to take the sessions and to conduct the courses at Nirmal. It may be pointed out that the Productivity Council was fully aware of the fact that the appellant was working as an Assistant Engineer of the respondent-Corporation and in view of his qualifications, requested him to conduct the course at Nirmal. It was also mentioned to him that the A.P. Productivity Council would pay towards his boarding, lodging, travel and honorarium charges. Accordingly, the appellant went to Nirmal and conducted the course for the said dates. The object of stating this is to make it clear that it was not as if the appellant had accepted to conduct the course on the sly but had been requested by the Productivity Council to conduct the course, knowing full well that he is an employee of the respondent-Corporation. The Girijan Corporation wrote a letter to the Productivity Council that the appellant had taken a sum of Rs. 2,100/- at Nirmal and given an acknowledgement to that effect to cover his expenses for conducting the course. The Productivity Council also had advanced him a sum of Rs. 1,000/- towards his travelling, lodging charges etc. The appellant had been periodically conducting the course, for which the Productivity Council owed a sum of Rs. 900/- which was kept to recover from him the total advance amount of Rs. 3,100/-. It was on the basis of this letter that action was initiated against the appellant.
7. However, it may be mentioned here itself that by a letter dated 13th May 1982 addressed to the Vice-Chairman of the respondent-Corporation, the Honorary Secretary of the A.P. Productivity Council has stated thus:-
"Andhra Pradesh Productivity Council
S. Rajagopala Reddi No. 123/82
Honorary Secretary Dt.l3th May, 1982.
Sri P.S. Ramamohan Rao, I.P.S.,
Vice Chairman & General Manager,
A.P. State Road Transport Corporation, Musheerabad (PO)
Hyderabad - 500 020.
Dear Sir,
In continuation of my Lr. No. 123/82 dated 31-8-82 (marked confidential), I wish to inform you that Mr. M. Ram Mohan Rao, working as Asst. Engineer in your Corporation, has repaid the amount of Rs. 2,100/- through Demand Draft bearing No. NKM/ 336899/483 dt.15-4-82. Necessary receipt has been given to him in token of having received the amount. A copy of the letter received from him is enclosed for your information. We are sorry for the inconvenience caused to you in this regard, and I thank you very much for having intervened in getting back the amount due to the Council from him.
With regard to the advance of Rs. 1,000/- taken by Mr. M. Ram Mohan Rao, we have advised him to get all the particulars with regard to payment for boarding, lodging and travel for the programme at Nirmal and he has promised to get the particulars, and soon after the receipt of the particulars, we will settle his dues if any after adjusting the amount of Rs. 1,000/-.
Thanking you, with kind regards,
Yours sincerely,
Sd/-xxxx
(S. Rajagopala Reddi).”
It is evident from this letter that the appellant had re-paid the amount of Rs. 2,100/- through demand draft to the Productivity Council. It is also mentioned that the Productivity Council is sorry for causing inconvenience in this regard to all concerned and the matter is more or less treated as closed by the Productivity Council itself. In so far as the further sum of Rs. 1,000/- is concerned, the A.P. Productivity Council advised the appellant to give all the particulars with regard to the payment for boarding, lodging etc, to settle the matter by way of adjustments of the amounts due. It may be made clear that there is no charge of embezzlement or misappropriation of any funds of the respondent-Corporation in which he is working. The gravamen of the charge is that he had taken unauthorisedly from the A.P. Girijan Co-operative Corporation a sum of Rs. 2,100/- and a sum of Rs. 1,000/- from the A.P. Productivity Council for conducting the courses on the four days when he was absent. The amounts which have been taken by the appellant have been repaid and there is nothing outstanding from him now either to the A.P. Girijan Co-operative Corporation or the A.P. Productivity Council. By applying the process of elimination, therefore, it can be seen that the only charge which sustains against the appellant is that he remained absent on 16th and 17th December 1981. Hence the crux of the matter is whether the appellant can be inflicted with a major punishment like dismissal from service for remaining absent for two days unauthorisedly while conducting the courses for another registered body, viz., the A.P. Productivity Council. We would like to seek the answer to this question in the absolute terms of the Andhra Pradesh State Road Transport Corporation Employees (Conduct) Regulations, under which disciplinary proceedings can be taken against a person who has violated the conditions of service. Regulation 28 of the said Regulations provides that without prejudice to the generality of the foregoing Regulations, the acts mentioned therein shall be treated as mis-conduct. Under sub-regulation (x) of Regulation 28, it is stated that theft, fraud, dishonesty or misappropriation in connection with the business or the property of the Corporation shall constitute mis-conduct. Under sub-regulation (xv), any act involving moral turpitude which is punishable under the provisions of the Indian Penal Code shall constitute mis-conduct within the meaning of the said Regulations. It would be necessary to lay stress on the fact that the case of the appellant does not fall under Clause (x) which deals with the question of committing fraud, dishonesty or misappropriation in connection with the business or the property of the Corporation. The appellant has not been charged with any theft, fraud, dishonesty or misappropriation in connection with the property of the respondent-Corporation. It is only Clause (xv) for any act involving moral turpitude which is punishable under the provisions of the Indian Penal Code, which can be invoked against the appellant in this case. It would also be in the fitness of things to mention here that under the A.P.S.R.T.C. Employees (Classification, Control and Appeal) Regulations and particularly under Regulation 9 the circumstances under which penalties may be imposed have been described. Under the said Regulation, the penalty of dismissal can be imposed on an employee in the circumstances which have been enumerated therein. For instance, it is provided that on a conviction on a criminal charge or serious conduct or neglect of duty, an employee can be dismissed from service. In Clause 2 of Regulation 9, it is stated that ‘serious misconduct’ includes inter alia the following acts of misconduct:
“(i) Embezzlement
(ii) Fraud,
(iii) Forgery,
(iv) Cheating in his capacity as an employee
(v) Taking and offering of bribes.
(vi) Improper behaviour towards women passengers
(vii) Any other act involving moral turpitude which is punishable under the Indian Penal Code, 1860.”
It is significant to note that the wording used in Clause (vii) of Regulation 9 and Clause (xv) of Regulation 28 of the Conduct Regulations is one and the same. The appellant cannot by any stretch of imagination be supposed to have committed embezzlement, fraud or foregery and he accepted the amount of Rs. 2,100/- from the Girijan Co-operative Corporation after disclosing his identity that he is the person in-charge for conducting the course for the Productivity Council. It is no doubt true that he described himself as a person who is conducting the said course for the Productivity Council. But it is easy to see that he was in actual fact incharge of the course from 16th to 19th December 1981. It was found by the Productivity Council as well as the Girijan Corporation that though he was an employee of the respondent-Corporation, he was still incharge of the course which was scheduled to be held from 16th to 19th December 1981. It is also to be kept in mind that in so far as the accounts between the Girijan Co-operative Corporation, the Productivity Council and the appellant are concerned, they seem to have been settled to the satisfaction of the three parties between themselves as manifested from the letter dated 13th May 1982. Therefore, the only question that remains to be considered is whether the penalty of dismissal can be imposed on the appellant for committing an act involving moral turpitude which is punishable under the Indian Penal Code, 1860. It may be made clear here itself that in order to constitute an act as an act of moral turpitude, the Regulations of the respondent-Corporation themselves provide that it should be an act which should be held to be punishable under the Indian Penal Code, 1860. In other words, an element of criminality is to be seen in the act which is attributed to the appellant as an act or moral turpitude. In case there is no element of criminality present in such an act, or in other words there is no offence committed by him, then the act in question does not fall within the amplitude of an act involving moral turpitude which is punishable under the Indian Penal Code, 1860. Sri Harinath, learned Standing Counsel for the Respondent-Corporation submitted that misconduct or moral turpitude need not necessarily relate to an activity during the course of employment but they can relate to an activity outside the scope of employment. He further submits that the expressions ‘moral turpitude’ or ‘deliquency’ are to be given a wider construction to cover any act committed outside the course of employment as well.
8. There cannot be any serious quarrel with this general principle of moral turpitude. It may be assumed that an act committed outside the course of employment can also constitute an act of moral turpitude. But the question is whether such an act has been committed by the appellant in this case. In so far as the question of misappropriation of the funds is concerned, it is not borne out by the record nor has it been proved by adducing necessary documentary and oral evidence that the appellant has committed misappropriation of the funds of the Girijan Co-operative Corporation or the Productivity Corporation, much less can it be said that he has tampered with the funds of the respondent-Corporation. It is also to be seen that the moral turpitude prescribed by the Regulations themselves is an act committed by an employee which can be punishable under the provisions of the Indian Penal Code. In our considered opinion, the act to come within the purview of the term ‘moral tupitude’ under the Regulations will have to be of a rather higher nature in the sense that it must involve some criminal action committed by the employee to bring him within the sphere of moral turpitude committed under the Regulations punishable under the Indian Penal Code.
9. Another aspect of the matter which has to be considered is that under Regulation 17 of the Conduct Regulations, it is brought out as follows:-
“17. Private trade or employment:
(1) No employee shall engage in any commercial business or pursuit either on his own account or as agent for others, nor shall he be connected with the formation or management of a joint stock company.
(2) No employee shall undertake part-time work for a private or public body or a private person or accept any fee or remuneration therefore, without the sanction of the competent authority, which shall grant sanction only in exceptional cases when it is satisfied that the work can be undertaken without detriment to his official duties and responsibilities and subject to such conditions it may deem fit to impose. Provided that an employee may, without such sanction, undertake honorary work of a special or charitable nature or occasional work of a literary, artistic, scientific or cultural character, subject to the condition that his official duties do not thereby suffer, but he shall not undertake or shall discontinue such work, if so directed by the competent authority: Provided further that an employee may without such sanction accept any honorary office in “not more than four non-official associations” at any one time dealing with literary, scientific, artistic, charitable and social associations or a co-operative society as defined in the Andhra Pradesh (Telangana Area) Co-operative Societies Act, 1952 (Act XVI of 1952), or under any similar law in force and that such sanction shall not be necessary in case of ordinary membership of such association which does not call for any such responsibility as devolves on an office bearer.”
Under Clause (2) of Regulation, it is made clear that no employee shall undertake part-time work for a private or a public body or a private person or accept any fee or renumeration therefore, without the sanction of the competent authority. Under the proviso to Clause (2) of the said Regulation, it is provided that an employee may, without such sanction undertake honorary work of a special or charitable nature of occassional work of a literary, artistic, scientific or cultural character, subject to the condition that his official duties do not thereby suffer.
10. It has been argued on behalf of the appellant before us that when he accepted to conduct the course for four days in the A.P. Productivity Council for the benefit of the employees of the Girijan Co-operative Corporation, he was engaged in occasional work of a scientific or cultural character. In view of his high qualifications and expertise in the matter, he was requested by the A.P. Productivity Council, which was fully aware of the fact that he was an employee of the respondent-Corporation, to conduct the course. The appellant accepted the offer so made and conducted the course which was of a temporary nature for four days from 16th to 19th December 1981. In so far as 18th and 19th December are concerned, he has been granted/ sanctioned leave. Therefore, the net result is that he was unauthorisedly absent only on two days, i.e., 16th and 17th December 1981, for which the penalty of dismissal has been imposed on him. It may also be mentioned that it is the case of the appellant that for about six months prior to the running of the course at Nirmal, for the A.P. Productivity Council, he was not assigned any work whatsoever in the respondent-Corporation and was kept idle. It is not known why the Corporation chose to pay him the full salary when no work was extracted from him, which has resulted in the wastage of public funds. It is also not policy which can be in consonance with good and efficient management to keep a person away from work for such a long period of time which is bound to water down his efficiency. In that state of affairs, the appellant seems to have accepted the course on the four days at Nirmal. It is not as if he was away for doing something objectionable or was frittering a way while absenting himself from the duties of the Corporation. We have mentioned the provisions of Regulation 17 also in this connection to show that there is room for the argument that the appellant did not require the sanction of the respondent-Corporation while he was conducting an occasional course of a technical and scientific nature for the benefit of the employees of the Girijan Co-operative Corporation under the control of the A.P. Productivity Council.
11. The above discussion will reveal the fact beyond any doubt the penalty of dismissal cannot be imposed on the appellant under Regulation 9 of the A.P. State Road Transport Corporation Employees (Classification, Control and Appeal) Regulations as he has not committed any ‘serious misconduct’ or any act as envisaged under Clause (vii) of the note therein constituting moral turpitude which could be punishable under the Indian Penal Code, 1860. The imposition of penalty of dismissal against the appellant is not only vastly disproportionate to the wrong committed by him, but it shocks the judicial conscience of this Court that a person should Be punished in such a severe fashion for a wrong, which, at the most, will merit a minor punishment under the CCA Regulations.
12. The next question to be considered in this case is whether this Court, in exercise of its power of judicial review under Article 226 of the Constitution of India, while setting aside the order of dismissal, can pass an order imposing a minor penalty commensurate with the alleged wrong committed by the appellant. We have already made it clear that it is not as if no wrong has been committed by the appellant. Indeed, some other penalty as envisaged under Regulation 9(3) or the CCA Regulations can be imposed on the appellant for remaining absent unauthorisedly for two days and for conducting a course of the Productivity Council. As mentioned in Clause (3) of Regulation 9, ‘other penalties’ specified in Regulation 8, other than removal or dismissal as provided under that Regulation, could be imposed on a person who has committed misconduct of a minor nature. However, before coming to a positive conclusion about the imposition of any minor penalty under Regulation 8 of the CCA Regulations, it would be necessary to consider the arguments advanced by Sri K. Harinath, learned counsel for the respondent-Corporation, that this Court has no power to interfere in the quantum of punishment meted out to the appellant and cannot impose a minor penalty in place of major penalty of dismissal inflicted on him. We have to remind ourselves that we are exercising the jurisdiction under Article 226 of the Constitution of India, which is an equitable jurisdiction, which is also based upon fundamental principles of common law. The ultimate object of exercise of jurisdiction of any Court is to do justice between the parties. While it must be ensured that guilty must be punished, and perhaps sometimes punished severely, but at the same time, the theory of punishment or the doctrine of proportionality, as it has come to be known in the modern jurisprudence, should not be ignored to make the person suffer a major penalty for an apparent minor wrong that has been committed by him. We have already distinguished the case of the appellant in the field of moral turpitude stating that we have come to the firm conclusion that the act complained of against the appellant does not come within the amplitude of moral turpitude, which can be punishable under the Indian Penal Code. We have already given reasons for such a conclusion arrived at by us, while discussing the facts of the case.
13. The question, therefore, now raised by Sri Harinath is that this Court cannot alter the penalty to that of a minor penalty as envisaged under Regulation 8 of the CCA Regulations, because the Court is powerless to do so and does not have the jurisdiction to entertain such a plea. Fortunately, there are certain decisions of the Supreme Court as well as the Courts elsewhere, which throw abundant light on this aspect of the problem. In Bhagat Ram v. State of Himachal Pradesh, the Supreme Court observed that it should be abundantly clear to everyone that a court exercising jurisdiction under Article 226 of the Constitution of India is not sitting in appeal over the findings of disciplinary authority, but where the finding is utterly perverse, the Court can always interfere with the same. The Supreme Court made a reference to its earlier decision in Union of India v. H.C. Goel, and relied upon the dictum of Gajendragadkar J., which reads as follows:
“It still remains to be considered whether the respondent is not right when he contends that in the circumstances of this case, the conclusion of the Government is based on no evidence whatever. It is a conclusion which is perverse and, therefore, suffers from such an obvious and patent error on the face of the record that the High Court would be justified in quashing it. In dealing with writ petitions filed by the public servants who have been dismissed, or otherwise dealt with so as to attract Article 311(2), the High Court under Article 226 has jurisdiction to enquire whether the conclusion of the Government on which the impugned order of dismissal rests is not supported by any evidence at all. It is true that the order of dismissal which may be passed against a Government servant found guilty of misconduct, can be described as an administrative order; nevertheless, the proceedings held against such a public servant under the statutory rules to determine whether he is guilty of the charge framed against him are in the nature of quasi-judicial proceedings and there can be little doubt that a writ of certiorari, for instance, can be claimed by a public servant if he is able to satisfy the High Court that the ultimate conclusion of the Government in the said proceedings, which is the basis of his dismissal is based on no evidence.”
14. What is the rational of imposing a punishment of dismissal when an employee has absented himself for two days while he was engaged in conducting a course, albeit unauthorisedly in a different registered organisation, which functions under the control of the State Government. Is it not a perverse finding, that such action constitutes a serious misconduct meriting dismissal from service altogether, thus ruining the chances of the appellant for earning his bread for all times to come? In the above decision, the Supreme Court, in somewhat similar circumstances set aside the order of dismissal of the petitioner and directed reinstatement in service of the petitioner imposing with holding of two increments with future effect. It was also directed that he should be paid fifty per cent of the arrears of salary from the date of termination till the date of reinstatement and the period between the date of termination and the date of reinstatement shall be treated, for other purposes, as on duty. We feel that we can draw sustenance from the ratio decidendi of Bhagat Ram’s case (1 supra) which empowers this Court not only to set aside a punishment, which is vastly disproportionate to one which is called for in view of the circumstances of the case, but also to impose a minor penalty if the circumstances of the case so warrant.
15. The next decision, which has been relied upon by Sri Harinath, learned counsel for the Corporation, in Ranjit Thakur v. Union of India, This case arose out of the proceedings of the Summary Court-Martial imposing punishment on the delinquent officer. While dealing with the matter arising under Section 130 of the Army Act (46 of 1950), the Supreme Court observed:
“Judicial review generally speaking, is not directed against a decision, but is directed against the “decision making process”. The question of the choice and quantum of punishment is within the jurisdiction and discretion of the Court-Martial. But the sentence has to suit the offence and the offender. It should not be so disproportionate to the offence as to shock the conscience and amount in itself to conclusive evidence of bias. The doctrine of proportionality, as part of the concept of 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.”
16. The decision of the Supreme Court also refers to another decision in Council of Civil Service Unions v. Ministry for the Civil Service, 1984 (3) WLR 1174 (HL) = 1984 (3) All. E.R. 935 in which Lord Diplock observed as follows:
“…. 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 upon 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’ which is recognised in the administrative law of several of our fellow members of the European Economic Community…”
17. It may be seen from the observations of Lord Diplock that the irrationality of the quantum of punishment meted out to a delinquent officer has been linked up with the principle of ‘proportionality’, which is deemed to be a well recognised principle of administrative law of in England as well as the other European Economic countries. It is axiomatic that even an offender has a right not to be over-punished in the sense that he can be subjected to a sentence, which is only in consonance with the degree or the intensity of the crime committed by him. If a delinquent officer has committed a wrong, which is not of such a serious nature as to deprive him of his bread and butter for ever, then the only conclusion to be drawn from the imposition of penalty of dismissal is that such a decision arrived at by the authorities is thoroughly perverse and irrational. In such a situation, the Court-above all, a Court of Equity – cannot be expected to sit with folded hands and say that no doubt the punishment imposed on the delinquent officer is vastly disproportionate to the wrong committed by him, still we cannot impose a minor punishment on that person, because that would be a forbidden ground for the Court to tread upon.
18. Sri Raghuram, learned counsel appearing for the appellant, has brought to our notice yet another decision in Union of India v. Parma Nanda, and has in our opinion, successfully tried to analyse the said decision before us. As submitted by the learned counsel, there may be some strary observations in this case, which may indicate that the scaling down of the punishment by the High Court in such circumstances may fall under a nebulous area where the law is not very clear as to whether the Court is empowered to do so or not. But at the same time, the overall effect of the decision and the ratio decidendi of the case unmistakably point to the fact that in case where the punishment is vastly disproportionate to the wrong committed by a person, then the Court is expected to sit up and take notice of the same and correct the imbalance occurring between the alleged wrong and the penalty which is imposed on the person for having committed such a wrong. We want to deal with this case in a rather detailed fashion to see whether we are drawing a right conclusion from this decision of the Supreme Court. In this matter, the Supreme Court was dealing with the question arising under the Administrative Tribunals Act (13 of 1985).
19. It is stated that the Administrative Tribunal has jurisdiction, which is no more and no less than what the High Court initially had in matters of the nature covered by the Administrative Tribunals Act. This clearly shows that the decision applies not only to the concept of the jurisdiction existing qua the Administrative Tribunals, but also with that of the High Court exercisable under Article 226 of the Constitution of India. In the said decision, the Supreme Court observed that the High Court or the Tribunal does not have the jurisdiction to impose any punishment to meet the ends of justice, but it is the Supreme Court alone in exercise of equitable jurisdiction vested under Article 226 of the Constitution which has the power to scale down the punishment imposed upon the delinquent officer. It is this observation of the Supreme Court, which is relied upon very strongly by Sri Harinath, learned counsel for the Corporation, persuading this Court not to scale down the punishment of dismissal meted out to the appellant herein, because it is only in exercise of the plenary jurisdiction of the Supreme Court under Article 136 of the Constitution of India that this could be done. Nevertheless, we are bound to take note of the fact that immediately after the said observation made by the Supreme Court, it has been made clear as follows:
“We may, however, carve out one exception to this proposition. There may be cases where the penalty is imposed under Clause (a) of the second proviso to Article 311(2) of the Constitution. Where the person, without enquiry is dismissed, removed or reduced in rank solely on the basis of conviction by a criminal court, the Tribunal may examine the adequacy of the penalty imposed in the light of the conviction and sentence inflicted on the person. If the penalty impugned is apparently unreasonable or uncalled for, having regard to the nature of the criminal charge, the Tribunal may step in to render substantial justice. The Tribunal may remit the matter to the competent authority for reconsideration or by itself substitute one of the penalties provided under Clause (a).”
20. To the same effect is the observation of Madon J., in Union of India v. Tulsiram Patel, which reads as follows:
“Where a disciplinary authority comes to know that a government servant has been convicted on a criminal charge, it must consider whether his conduct which has led to his conviction was such as warrants the imposition of a penalty and, if so, what that penalty should be…. The disciplinary authority must, however, bear in mind that a conviction on a criminal charge does not automatically entail dismissal, removal or reduction in rank of the concerned government servant.”
The further observation of Madon J., is to the effect that if the Court finds that the penalty imposed 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, the Court shall strike down the impugned order. In Shankar Dass v. Union of India, , this is precisely what the Supreme Court did. The penalty of dismissal being of a vastly disproportionate nature, was set aside and the petitioner was ordered to be reinstated in service with full back wages. The Court has substituted a penalty which, in its opinion, was just and proper in the circumstances of the case.
21. We are of the opinion that if any doubt was to be entertained about the ratio of the decision in Parma Nanda’s case (5 supra), it should stand dispelled by the observations of the Supreme Court made in its two earlier decisions viz., Tulsiram Patel’s case (6 supra) and Shankar Dass case (7 supra), to which a reference has already been made in our judgment. It is extremely significant to note that in Parma Nanda’s case (5 supra), the Supreme Court ultimately held:
“…..theorder of the Tribunal imposing a lesser penalty on the respondent cannot, therefore, be sustained. He was found guilty of the charge framed against him. He was a party to the fraudulent act for self aggrandisement. He prepared bogus documents for withdrawal of salary in the name of Ashok Kumar who was not working in his Division. He has thus proved himself unbecoming and unworthy to hold any post. Any sympathy or charitable view on such officials will not be conducive to keep the streams of administration pure which is so vital for the success of our democracy.”
22. The above passage occurring in Parma Nanda’s case (5 supra) demonstrates the fact that it was on the basis of the facts existing in that particular case that the decision of the Tribunal imposing a lighter punishment was set aside by the Supreme Court. What would have happened if the petitioner was not guilty of such grave and serious wrongs that have been enumerated therein, like preparing bogus documents, withdrawal of salary in the name of another person and indulging in fraudulent act for self aggrandisement? The answer to such seemingly hypothetical question can only be that if the respondent-delinquent officer was not guilty of such acts, then the decision of the Tribunal imposing a lighter punishment would have deserved to be upheld by the Supreme Court with all its ramifications.
23. Sri Raghuram has very rightly brought to our notice the decision of a Division Bench of this Court in Writ Appeal No. 1821 of 1989 dated 14-2-1991, to which one of us (Mohammed Sardar Ali Khan, J.,) was a party, where the Court took the view after reviewing the entire case law on the subject that the theory of proportionality in matters of awarding punishment is a very relevant factor to be taken into consideration while upholding the decision of the disciplinary authority in matters of employment. Speaking for the Bench, M.N. Rao, J., observed:
“…. By merely labelling a lapse as substantial misdemeanour the disciplinary authority cannot impose the maximum punishment of removal or dismissal; such an exercise of power would be patently unreasonable and perverse.. A late comer to his office cannot be sacked; nor can a traffic offender be sentenced to death whatever be the facade of nomenclature assigned to the infraction.
Two conditions must be satisfied for a successful plea to exclude the jurisdiction of this Court under Article 226 in regard to interference with orders of punishment: (1) the lapse complained of is a substantial misdemeanour; and (2) the enquiry was conducted in accordance with principles of natural justice and the provisions of the disciplinary code. Both the conditions must be cumulatively satisfied.”
The Division Bench further went into the theory of proportionality in the light of the decided cases in India and elsewhere and applied it as a living and vibrant proposition of law, which has to be taken into consideration while dealing with matters of punishments meted out to the delinquent officers.
24. Sri Raghuram, learned counsel, has drawn our attention to an article “Proportionality: Neither Novel Nor Dangerous” written by M/s. Jeffrey Jowell and Anthony Lester Q.C., in the journal “New Direction in Judicial Review Administration (Current Legal Problems) and published by the Faculty of Laws of the University College, London. The authors have mentioned that proportionality, as a recognised general principle of law originated in Germany and has more recently been adopted in France and other member states of the European Economic Community. This court would venture to state that it is not only a recognised principle of law originated on the continent, but, of late, it has come to be recognised as a general principle of law recognised by all civilized nations in the world. Otherwise, the consequence of such a wayward action taken against the delinquent officer by imposing vastly disproportionate penalties on persons, who were guilty of committing minor wrongs, will lead to an imbalance in the judicial equilibrium, which has necessarily to be maintained under all systems of law. At the same time, it must be ensured that the officers who are authorised to impose such penalties may not get away with the feeling that whatever penalty is imposed by them will go unchecked at the hands of the Court before whom the matters may be brought. They should also bear in mind that their action is always subject to review by the competent courts and the courts would not hesitate in setting right the wrongs done by them in passing orders of this nature without applying their mind. The question of proportionality under the European Conventions and the matter, which has come to be recognised as a fundamental principle of jurisprudence by the European Community as well, has been discussed in the said article. In R. v. Barnsley M.B.C., exp. Hook, (1976) W.L.R. 1052 the Barnsley Corporation suspended a stallholder’s licence because he had been guilty of misconduct when he urinated in the street and used offensive language. The Court of Appeal struck down the suspension on the ground of the lack of a fair hearing. Lord Denning M.R however would also have intervened on the ground that “the punishment is altogether excessive and out of proportion to the occasion.” In R v. Secretary of State for the Home Department, exp. Benwell, (1984) 1 C.R. 723, Hodgson )., accepted that “in an extreme case an administrative or quasi-judicial penalty can be successfully attacked on the ground that it was so disproportionate to the offence as to be perverse.”
25. Therefore, in recent times, the severe penalties imposed by the local authorities have been interfered with by the courts of Law on the ground that they are oppressive and unfair and as such to restore the scales of justice, it is necessary that this should be done away with and replaced by a penalty of a proportionate nature. At the end of the article, it is stated that ‘the substance of proportionality is a fair and useful principle of justice by itself. Like the test laid down in Associated Provincial Picture Houses Ltd., v. Wednesbury Corporation, (1948) 1 K.B. 223 , proportionality is designed to guide the exercise of discretionary powers, and allows the Courts to interfere with the substance of official decisions as well as the procedures by which they are reached’. As a matter of conclusion, it is stated in the article that application of doctrine of ‘proportionality’ would affirm an important principle of justice by which all administrative action should be expected to be judged: that the decision-maker must exercise a proper sense of proportion in making a decision, and that individuals affected by decisions should not be required to bear a burden that is unnecessary or disproportionate to the ends being pursued.
26. Even otherwise, under Regulation 9(3)(a) of the CCA Regulations, the principle of ‘proportionality’ has been recognised in the sense that acts or omissions for which the employee is liable to be dismissed or removed from service, but in respect of which such a penalty is considered excessive in view of the attendant circumstances, a minor punishment may be inflicted. Hence, it can be concluded that the question of ‘proportionality’ of the punishment meted out to a person is a relevant circumstance of the case which has to be taken into consideration while awarding punishment. Mr. Harinath, learned counsel appearing for the respondent-Corporation further submitted that the past record of the appellant may be taken into consideration while awarding him a lesser punishment. We do not think that it would be proper for this court to look into the past record of the service at the stage of the writ appeal particularly when it has not been raised as a ground for justifying the order of dismissal in the writ petition.
27. In the light of the foregoing discussion, it is abundantly clear that this court has jurisdiction not merely to quash the penalty of dismissal imposed upon the Delinquent Officer in this case, but also to scale it down suitably, so that he may not go unpunished as such. In Sardar Singh v. Union of India, AIR 1992 S.C. 417, the Supreme Court observed relying upon the observations made by Lord Diplock in Council of Civil Service Unions v. Minister for the Civil Service (4 supra), to which a reference has already been made elsewhere in the judgment, that the penalty imposed must be commensurate with the gravity of the misconduct and that any penalty disproportionate to the gravity of the misconduct would be violative of Article 14 of the Constitution. The concept of equality before law enshrined in Article 14 is a sacrosanct principle of our jurisprudence. The Supreme Court has held that disproportionate penalty would be deemed to be in violation of Article 14 and, therefore, it is of the more reason that the Courts should interfere with the matter to see that the principle enshrined in Article 14 is not violated by any means. In the said case, the Supreme Court, dealing with the matter of Court-Martial, set aside the extreme penalty of dismissal and referred the matter back to the Court-Martial after indicating the relatively minor penalty to be imposed on the delinquent officer under Section 71 of the Army Act. This volume of jurisprudence, therefore, is enough to come to the conclusion that this Court can, not only quash the vastly disproportionate penalty of dismissal imposed on the appellant, but can also impose a minor penalty commensurate with the type of misconduct committed by him. In our view, it is obvious that the appellant has remained absent unauthorisedly for two days and conducted a course for the Productivity Council in those days while accepting the remuneration for his boarding and lodging in Nirmal taluk. That being the finding, in our view, the reasonable penalty that could be imposed on the appellant is that of withholding two annual increments in future, which would meet the ends of justice.
28. Having regard to the entire facts and circumstances of the matter, the appeal is partly allowed; the order dated 8-11-1983 of the 1st respondent dismissing the appellant from service and the order dated 7-8-1984 of the 2nd respondent confirming the order of the 1st respondent, are quashed and set aside and consequently the order of the learned single judge is set aside. We direct the respondents to reinstate the appellant in service within two weeks from the date of receipt of this order. We further direct, having regard to the circumstances, that the appellant shall be paid one half of arrears of salary from the date of termination till the date of reinstatement, which, in our opinion, is the reasonable compensation, which the appellant is entitled to. The arrears ordered above shall be paid within four weeks from today. The appellant shall also be entitled to all consequential benefits accruing consequent upon his reinstatement in service as if he was in service. The period between the date of termination and the date of reinstatement shall be treated for other purposes as ‘on duty’. In so far as the punishment that could be imposed, as we have already discussed above, the respondents could withhold two annual increments of the appellant in future.
29. No order as to costs.
30. Immediately after the judgment is pronounced, Sri Harinath made a oral application for leave to appeal to the Supreme Court. We do not see any question of law muchless a substantial question of law of general importance, which requires to be decided by the Supreme Court. Oral leave is, therefore, refused.
