PETITIONER: UNION OF INDIA & ANOTHER Vs. RESPONDENT: G. GANAYUTHAM DATE OF JUDGMENT: 27/08/1997 BENCH: SUJATA V. MANOHAR, M. JAGANNADHA RAO ACT: HEADNOTE: JUDGMENT:
J U D G M E N T
M. JAGANNADHA RAO,J.
This is an appeal by the Union of India and the
Collector of Central Excise against the judgment of the
Central Administrative Tribunal in Tr. A.No.660 of 1986
dated 5.12.1986 allowing the petition filed by the
respondent.
The respondent was working as Superintendent of Central
Excise. While so, on 14.11.1977, was served with a memo of
eight charges and an inquiry was conducted. The Inquiry
Officer submitted a report dated 17.5.1978 stating hat
charge No.4 was not proved, charge NO.8 was partly proved,
and other charges were held proved. The respondent retired
from service on 31.5.1978. A show cause notice dated
18.3.1982 was issue under Rule 9 of the Central Civil
Services (pension) Rules, 1972 (hereinafter called the
‘Rules’) proposing withdrawal of full pension and gratuity
admissible to the respondent on the ground that the
Government suffered substantial loss of revenue due to the
misconduct of the respondent. The respondent submitted an
explanation. The Union Public Service Commission was
consulted and the Commission felt that charges 4 and 6 were
not proved but concurred with the findings of the Inquiry
Officer on other charges. based on the Commission’s advice,
a penalty of withholding 50% of the pension and 50^ of
gratuity was awarded to the respondent by orders dated
8.5.1984. Questioning the same, a writ petition was filed
by the respondent in the High Court of Madras which was
later transferred to the Tribunal. After hearing the
respective counsel for the parties, the Tribunal held by
judgment dated 5.12.1986 that under Rule 9 of the Rules the
competent authority could not withdraw any art of the
gratuity inasmuch as the said provision referred merely to
withholding of pension and not gratuity. It held that the
definition of ‘pension’ in rule 3(1)(o) which included
gratuity was not applicable for purposes of Rule 9. So far
as the penalty of withholding 50% of the pension was
concerned, it held that the punishment awarded was ‘too
severe’, that the lapses were procedural, there was no
collusion between the respondent and any party, that the
officer had otherwise done excellent work and, therefore, it
was a fit case where the withholding of pension of 50% had
to be restricted for a period of 10 years instead of on a
permanent basis.
Aggrieved by the said decision of the Tribunal, the
Union of India and the Collector, Central Excise have
preferred this appeal. During the pendency of this appeal,
the respondent died and his legal representatives have been
bought on record.
It was contended by the learned counsel for the
appellants that the Tribunal was wrong in law in holding
that the power to withhold ‘pension’ as specified in rule 9
did not include the power to withhold the whole or part of
the gratuity. It was argued that under Rule 3(1)(o)), the
word ‘pension’ is defined to include the ‘gratuity’ except
when the term ‘pension’ is used in contradistinction to
gratuity and that in Rule 9 there is no question of the word
‘pension’ being used in contradistinction gratuity. This
point, according to the appellant’s counsel is covered by
the judgment of this Court in Jarnail Singh vs. Secretary,
Ministry of Home Affairs [1993 (1) SCC 47] in favour of the
appellant and against the respondent. It was also contended
that the Tribunal ought not to have gone into the question
as to whether the punishment of withholding 50% of the
pension and gratuity was commensurate with the gravity of
the misconduct proved and that this amounted to going into
the ‘proportionality’ of the punishment which was not
permissible in law. The charges proved showed that the
conduct of the respondent related to loss of revenue to the
government and that the competent authority had taken a
‘reasonable’ decision as to quantum of punishment weighing
all the relevant factors and the decision of the said
authority could not be said to be one which no reasonable
person could have reasonably taken. In any event, there was
also no finding by the Tribunal that the punishment imposed
was ‘shockingly’ disproportionate to the gravity of charges.
In Ranjit Thakur Vs. Union of India [1987 (4) SCC 611],
though the principle of ‘proportionality’ was referred to,
still it was only after arriving at a finding that the
punishment was ‘shockingly’ disproportionate that this Court
interfered with the punishment and that too under Article
136 of the Constitution of India.
Learned counsel for the respondent could not place
before us any other decision to persuade us to take a view
different from the view taken in Jarnail Singh’s case
(supra). So far as the punishment was concerned, the argued
that the Tribunal felt that the punishment was far severe
having regard to the charges proved and it was, in those
circumstances, permissible for the Tribunal to interfere
with the quantum of punishment. Learned counsel relied upon
the decision of this Court in State of Maharashtra vs.
M.H.Mazumdar [1988 (2) SCC 52] where, on facts, it was held
that withdrawing 50% of the pension permanently was harsh
and the matter was remanded by this Court to the Government
for fresh consideration of the quantum of punishment.
The following points arise for consideration.
(1) Whether while interpreting Rule 9 of the Central Civil
Services (Pension) Rules, 1972 in regard to withdrawal of
whole or part of pension, it is permissible to apply the
definition of ‘pension’ in rule 3 and hold that under Rule 9
death-cum-gratuity could also be withdrawn wholly r in part?
(2) Whether it is permissible for the Court or Tribunal to
interfere with the quantum of punishment imposed by the
competent authority on the ground that it was too severe and
hence ‘disproportionate’ to the gravity of the charges
proved?
Point No.1: Rule 9 of the Rule refers to the power of
the President to withhold or withdraw pension, whether
permanently or for a specified period, and to the ordering
of recovery from the pension, of the whole or part of any
pecuniary loss caused to the government, in any departmental
or Judicial proceedings, if the pensioner is found guilty of
grave misconduct of negligence during the period of his
service, including service rendered upon re-employment after
retirement. The proviso requires that the Union Public
Service Commission be consulted before any final orders are
passed. Rule 3 of the Rules defines ‘pension’ as including
‘gratuity’ except when the term pension is used in
contradistinction to gratuity. In Jarnail Singh vs.
Secretary, Ministry of Home Affairs [1993 (1) SCC 47] it was
held that ‘the term ‘pension’ used in Rule 9(1) must be
construed to include gratuity since the said word, in the
context, was not used in constradistinction to gratuity’.
It was further hold that the amendment made in Rule 9(1) by
the Central Civil Services (Pension) Third Amendment Rules,
1991 which substituted the words ‘pension or gratuity, or
both’ in the body of Rule 9 was clarificatory and was
intended to remove the doubt created by certain decisions of
the Court rendered in 1990. It was also held that in an
earlier decision in D.V.Kapoor vs. union of India [1990 (4)
SCC 314] which took a contrary view, Rule 3(1)(o) was not
brought to the notice of the Court. As to Jesuratnam vs.
Union of India, [1990 supp.SCC 640] it was said that there
was no discussion in that case.
We may also state that subsequently, in State of U.P.
vs. UP University Colleges Pensioners’ association [1994 (2)
SCC 729], the decision in Jarnail Singh’s case was
distinguished as the latter was based on rule 3. In yet
another case in Sita Ram Yadava vs. union of India [1995
Suppl. (4) SCC 618], special leave was initially granted
because of a contention based on D.V.kapoor’s case that
gratuity could not be withdrawn, wholly or partly, under
rule 9. But at the time when the matter was disposed of, it
was said that inasmuch as the gratuity had already been
released in full to the employee, it was not necessary to go
into the question whether gratuity could be withheld under
the Pension Rules.
We are of the view that the last two decision, namely,
State of UP vs. UP University Colleges Pensioners’
Association [1994 (2) SCC 729] and Sita Ram yadava vs. Union
of India [1995 Suppl. (4) SCC 618] do not, for the reasons
stated above, affect the ratio of the case in Jarnail Singh
vs. Secretary, Ministry of Home Affairs [1993 (1) SCC 47].
Therefore, the Tribunal was wrong in thinking that under
rule 9, 50% of the gratuity could not be withheld. We
accordingly set aside the finding of the Tribunal on this
point.
Point 2; The point is whether judicial review powers
in administrative law permit the High Courts or the
Administrative Tribunals to apply the principle of
‘proportionality?
Before we refer to the rulings of this Court on the
question of ‘proportionality’ in the administrative law
sphere, we shall refer to the leading cases in England on
the question of judicial review of administrative action.
The Wednesbury Case (1948):
This case is treated as laying down various basic
principle relating to judicial review of administrative or
statutory discretion. Before summarising the substance of
the Principles laid down there we shall refer to the passage
from the judgment of Lord Greene in Associated Provincial
Picture Houses Ltd. vs. Wednesbury Corporation [9148 (1)
K.B. 223(p.229)]. It reads as follows;
“It is true that discretion must be
exercised reasonably. Now that
does that mean? Lawyers familiar
with the phraseology used in
relation to exercise of statutory
discretions often use the words
‘unreasonable’ in a rather
comprehensive sense. It has
frequently been used and is
frequently been used and is
frequently used as a general
description of the things that must
not be done. For instance, a
person entrusted with a discretion
must, so to speak, direct himself
properly in law. He must call his
own attention to the matters which
he is bound to consider. He must
exclude from his consideration
matters which are irrelevant to
what he has to consider. If he
does not obey those rules, he may
truly be said, and often is said,
to be acting ‘unreasonably’.Similarly, there may be something
so absurd that no sensible person
could even dream that it lay within
the powers of the authority…. In
another, it is taking into
consideration extraneous matters.
It is unreasonable that it might
almost be described as being done
in bad faith; and in fact, all
these things run into one another”
Lord Greene also observed (p.230):
“…it must be proved to be
unreasonable in the sense that the
Court considers it to be a decision
that no reasonable body can come
to. it is not what the Court
considers unreasonable…The effect
of the legislation is not to set up
the Court as an arbiter of he
correctness of one view over
another”Therefore, to arrive at a decision on ‘reasonableness’
the Court has to find out if the administrator has left out
relevant factors or taken into account irrelevant factors.
The decision of the administrator must have been within the
four corners of the law, and not one which no sensible
person could have reasonably arrived at, having regard to
the above principles, and must have been a bonafide one.
The decision could be one of many choices open to the
authority but it was for that authority to decide upon the
choice and not for the Court to substitute its view.The CCSU Case(1985) and the expectation of future
adoption of proportionality:-The principles of judicial review of administrative
action wee further summarised in 1985 by Lord Diplock in
CCSU vs. Minister for Civil Services [1985 (1) AC 374] as
illegality, procedural impropriety and irrationality. He
said more grounds could in future become available,
including the doctrine of proportionality which was a
principle followed by certain other members of the European
Economic community. Lord Diplock’ observed in that case 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 future of the
principle of ‘proportionality’,
which is recognised in the
administrative law of several of
our fellow members of the European
Economic Community……”.
Lord Diplock explained ‘irrationality’ as follows:
“By irrationality, I mean what can
now be succintly be referred to as
‘Wednesbury unreasonabless’… It
applies to a decision which is so
outrageous in its defiance of logic
or of accepted moral standards that
no sensible person who had applied
his mind to the question to be
decided could have arrived at”In other words, to characterise a decision of the
administrator as ‘irrational’ the Court has to hold, on
material, that it is a decision ‘so outrageous’ as to be in
total defiance of logic or moral standards. Adoption of
‘proportionality’ into administrative law was left for the
future.Ranjit Thakur vs. Union of India (1987) refers to
‘proportionality’:The first decision of this Court in administrative law
which referred to ‘proportionality’ is the one in Ranjit
Thakur vs. Union of India [1987 (4) SCC 611]. In that case
the appellant was found guilty in Court Martial proceedings
and a punishment of dismissal from service and sentence of
imprisonment was imposed as permitted by the Army Act.
While quashing the said punishment on the ground of its
being ‘strikingly disproportionate’, this Court observed:“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
vindictive or unduly harsh. 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 proportioality, 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”.It is clear that Ranjit Thakur treated
‘proportionality’ as part of judicial review in
administrative law. But it will also be noticed that while
observing that ‘proportionality’ was an aspect of judicial
review, the Court still referred to the CCSU description of
irrationality – namely, that it should be in outrageous in
defiance of logic if it was to be treated as irrational,
Ranjit Thakur was followed in Ex.Naik Sardar Singh vs. union
of India [1991 (3) SCC 213, again a case under the Army Act.What it proportionality?
In R vs. Goldstein [1983 (1) WLR 151 (157)], Lord
Diplock said: “This would indeed be using a sledge-hammer
to crack a nut”. Sir John Laws (Judge of the Q.B. Division)
has described ‘proportionality’ as a principle here the
Court is
“Concerned with the way in which
the decision-maker has ordered his
priortities; the very essence of
decision making consists surely, in
the attribution of relative
importance to the factors in the
case, and here is my point: This is
precisely what proportionality is
about”He further says:
“What is therefore needed is a
preparendness to hold that a
decision which overrides a
fundamental right without
sufficient objective justification
will, as a matter of law
necessarily be disproportionate to
the aims in view… The deployment
of proportionality sets in focus
the true nature of the exercise;the elaboration of a rule about
permissible priorities”.Desmith, Woolf and Jowell, (Judicial Review of
Administrative Action (1995 5th ed., para 13.085 pp.601-605)
point out that ‘proportionality’ used in human rights
context involves a balancing test and the necessity test.
The ‘balancing test’ means scrutiny of excessive onerous
penalties or infringements of rights or interests and a
manifest imbalance of relevant considerations. The
‘necessity test’ means that infringement of human rights in
question must be by the least restrictive alternative.
(Ranjit Thakur is quoted
(1) ‘Is the High Court the Guardian of Fundamental
Constitutional Rights?(1993 P.L.. 59). in f.n.p.601).
Brind (HL)(1991) – administrative law – proportionality
– debatable in India in cases not involving fundamental
freedoms: Tata Cellular (SC) (1994) and McDowell (SC)
(1996):From 1985, we proceed to the next decision rendered in
1991 by the House of Lords in. R. v. Secretary for Home
Dept. Ex.p. Brind [1991 (1) AC 6961. That decision stated
that even by 1991. proportionality had not still become
part of the Administrative law in England. This was because
the European Convention of Human Rights and Fundamental
Freedoms had not been expressly incorporated into English
law as yet (See Lord Bridge (p.748); Lord Roskill (p.750);
Lord Templeman (p.751) and Lord Ackner (p.763). It is
sufficient to refer to what Lord Ackner stated:“Unless and until Parliament
incorporates the Convention into
democratic law, a course which it
is well known has a strong body of
support, there appears to me to be
at present no basis upon which
proportionality doctrine applied by
the European Courts can be followed
by the Courts in the Country”.Two decisions of this Court referred to Brind (1991)
and appear to us to have struck a slightly different note
than the one stated in Ranjit Thakur in regard to the
question whether proportionality is part of our
administrative law.In Tata Cellular vs. union of India [1994 (6) SCC 651].
It was observed by this Court after referring to Brind that
the principles available in administrative law were
basically illegality, irrationality (Wednesbury
unreasonableness) and procedural impropriety. However, it
was possible that more grounds could be added in future, –
like proportionality. This Court observed (p.677-678):“those are only the broad grounds
but it does not rule out addition
of future grounds in course of
time. As a matter of fact, in R.
vs. Secretary of State for the Home
dept. Ex.p. Bring, Lord Diplock
refers to one development, namely,
the possible recognition of the
principle of proportionality”Then in 1996 came the decision in State of A.P. vs.
mcDowell & Co. [1996 (3) SCC 709] where the Court after
referring to Brind and the speeches of Lords Lowry and
Ackner, observed that the applicability of the principle of
‘proportionality’ in administrative law is still ‘debatable’
and has not yet been ‘fully and finally settled’. This
Court observed that there were only three grounds as stated
in CCSU:“…In this connection, it should
be remembered that even in the case
of administrative action, the scope
of judicial review is limited to
three grounds viz (i)
unreasonableness, which can be more
accurately called irrationality,(ii) illegality and (iii)
procedural impropriety (see Council
of Civil Service union vs. Minister
of Civil Service, which decision
has been accepted by this Court as
well).”Adverting to proportionality it was observed that the
applicability thereof in administrative law is debatable and
not dully and finally settled in administrative law. This
Court observed:“The applicability of doctrine of
proportionality even in
administrative law sphere is yet a
debatable issue, (See the opinion
of Lords Lowry and Ackner in R vs.
Secretary of State for Home Dept.
Ex p. Brind AC p.766-67 and 762).It would be rather odd if an
enactment were to be struck down by
applying the said principle when
its applicability even in
administrative law sphere is not
fully and finally settled”From Tata Cellular and McDowell it is fairly clear that
a view has been expressed – somewhat different from Ranjit
Thakur – that it is still debatable whether proportionality
is part of our administrative law. The scope of its
applicability in the context of fundamental freedoms was not
discussed or gone into.Statute law in India: proportionality applies;
Mcdowell however makes it clear that so far as the
validity of a statute is concerned, the same can be judged
by applying the principle of proportionality for finding our
whether the restrictions imposed by the statute are
permissible and within the bounds prescribed by our
Constitution. McDowell referred to this exception as
follows;“It is one thing to say that a
restriction imposed upon a
fundamental right can be struck
down if it is disproportionate,
excessive or unreasonable and quite
another thing to say that the Court
can strike down enactment if it
thinks it unreasonable, unnecessary
or unwarranted.’
That a statute can be struck down if the restrictions
imposed by it are disproportionate or excessive having
regard to the purpose of the statute and that the Court can
go into the question whether there is a proper balancing of
the fundamental right and the restriction imposed, is well
settled. (See Chintaman vs. State of M.P. [1950 SCR 759];State of Madras vs. V.G.Row [1952 SCR 597]; India Express
Newspapers vs. Union of India [1985 (1) SCC 641 & 691) etc.
(The principle of ‘proportionality’ is applied in Australia
and Canada also, to test the validity of statutes).Of course, as already stated, the Court in McDowell had
no occasion to consider whether the existence of a written
Constitution with a chapter on Fundamental freedoms made any
difference between the English administrative law and our
administrative law. We have already referred to the
observation in Brind, particularly those of Lord Ackner, s
to why ‘proportionality’ has not become part of the
administrative law in England, namely, the absence of the
incorporation of the European Human Rights Convention.With proportionality, Court is primary judge of
administrative action – Without it, Court’s role is
secondary: Brind and Smith;This, in our view, is the most important aspect. it is
here that Brind (1991) explains the different
(2) Cunliffe vs. Commonwealth [(1994)68.Aust.L.J.791](at 827, 839) (also 799. 810, 821)
Australian Capital Tel.Co, vs. Commonwealth [1992 CL
p.106(at 157)(Aus.)
R.Vs.Big M Drug Mart Ltd. [1985 (1) SCR 295 (can)
consequences of the application of ‘proportionality’ on the
one hand and Wednesbury and CCSU tests on the other. This
vital difference was further explained in clearer language
by the Court of Appeal in 1996.As stated in Brind and as set out earlier, if the
European Human Rights Convention (which, as stated earlier
contains several provisions similar to part III of our
Constitution) was incorporated, then the Courts in England
would be able to apply the principle of ‘proportionality,
Brind points out that in that event, the Courts in England
would (like the Human Rights Court at Strasbourg) become the
primary judges of the validity of administrative action or
of discretionary powers exercised under statute. If, on the
other hand, the Human Rights Convention was not incorporated
and the principle of proportionality was not available.
English Courts would be left with Wednesbury and CCSU tests.
Then the Court’s role would only be a secondary one while
the primary role would remain with the administrator. What
did this mean? It meant that in its secondary role, the
English Courts would only consider whether the administrator
had reasonably come to his primary decision on the material
before him. This distinction between the primary and
secondary roles was explained by Lord Bridge in Brind
(p.749) as follows:“The primary judgment as to whether
the particular competing public
interest justifies the particular
restriction imposed falls to be
made by the Secretary of State to
whom Parliament has entrusted the
discretion. But we are entitled to
exercise a secondary judgment by
asking wether a reasonable
secretary of State, on the material
before him, could reasonably make
the primary judgment.In a recent case 1996, in R vs. Ministry of Defence,
ex.p. Smith [1996 (1) AllE.R.257] in the Court of Appeal,
Lord Bingham M.R. explained (p.264-265) the position of the
Court in the absence of the Convention and of
proportionality, as follows:-“The appellant’s right as human
beings is very much in issue. It
is now accepted that this issue is
justiciable. This does not of
course mean that the Court is
thrust into the position of the
primary decision maker.’
Focusing on this point more clearly, Henry L.J. (p.272)
explained in the same case as follows;“If the convention were part of our
law, then as Simon Brown L.J. said
in the Divisional Court, the
primary judgment on this issue
would be for the judges, But
parliament has not given us the
primary jurisdiction on this issue.
Our present constitutional role was
correctly identified by Simon Brown
L.j. as exercising a secondary or
reviewing judgment, as it is, in
relation to the Convention, the
only primary judicial role lies
with the European Court of Human
Rights at Strasbourg.’
The Court of Appeal agreed with the observations of
Simon Brown, L.J. in the Divisional Court.
We are of the view that even in our country, – in cases
not involving fundamental freedoms, – the role of our
Courts/Tribunals in administrative law is purely Secondary
and while applying Wednesbury and CCSU principles to test
the validity of executive action or administrative action
taken in exercise of statutory powers, the Courts and
Tribunals in our country can only go into the matter, as a
secondary reviewing Court to find out if the executive of
the administrator in their primary roles have arrived at a
reasonable decision on the material before them in the light
of Wednesbury and CCSU tests. The choice of the options
available is for the authority the Court/Tribunal cannot
substitute its view as to what is reasonable.
Fundamental rights – Proportionality – administrative
law – question left open.
The question arises whether our Courts while dealing
with executive or administrative action or discretion
exercised under statutory powers where fundamental freedoms
are involved could apply ‘proportionality’ and take up a
primary role. In England it has been accepted that the
English Court could apply ‘proportionality’ if the
Convention were incorporated into English law. But, so for
as our Courts are concerned, we do not propose to decide the
question in the present case inasmuch as it is not contended
before us that any fundamental freedom is affected. As and
when an executive act or administrative action taken in
excess of statutory powers, is alleged to offend fundamental
freedoms, it will then be for this Court to decide whether
the principle of proporionality applies in administrative
law sphere in our country and whether the Courts will take
up a primary role. Whether the primary role will be
confined to Article 19.21 etc. and not to Article 14 will
also have to be decided.
Before parting with this aspect, we may state that in
England in R vs. Secretary of State Exp. Bugdaycay [1987 (1)
AC 514] and in Brind as well as Smith it has been, of
course, laid down that at the moment, in the absence of the
convention and proportionality, English Courts will apply a
‘strict scrutiny’ test to the administrative action rather
than the Wednesbury and CCSU tests, whenever liberty and
freedom of expression etc, which are treated as part of
Common Law are involved. The Courts would consider whether
the restrictions imposed by the administrator are necessary
for protecting some ‘competing public interest’. This would
no doubt amount to lowering the ‘threshold of Wednesbury’.
Margin of appreciation and judicial restraint;
We may also state that even if the Courts in England by
virtue of incorporation of the Convention should become the
primary Judges of the validity of administrative decisions,
still they would exercise great judicial restraint in
matters concerning governmental policies, national security,
or taxation, finance and economy of the country and similar
such matters of grave public policy. This restraint on the
part of the judiciary is described in administrative law as
giving a greater margin of appreciation to the administrator
in certain areas. See Brind, (lord Templeman, (p.751),
Ackner (p.762) and Lord Lowry (p.766). Similar principles
have been laid down by this court while testing the validity
of legislative measures in the context of Art, 19(2) to (6).
The Courts would give a ‘reasonable margin’ to the
legislature (Manoharlal vs. State of Punjab [1961 (2) SCR
343]} in several situations.
Summing up:
The current position of proportionality in
administrative law in England and India can be summarised as
follows;-
(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 bonafide. 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 nor
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 judgment in the manner he had 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 ‘proportionality’ and
assume a primary role, is left open, to be decided in an
appropriate case where such action is alleged to offend
fundamental freedoms. It will be then necessary to decide
whether the Courts will have a primary role only if the
freedoms under Article 19, 21 etc. are involve and not for
Article 14.
Punishment in disciplinary matters: Wednesbury & CCSU
tests:
Finally, we come to the present case. It is not
contended before us that any fundamental freedom is
affected. We need not therefore go into the question of
‘proportionality’. There is no contention that the
punishment imposed is illegal or vitiated by procedural
impropriety. As to ‘irrationality’, there is no finding by
the Tribunal that the decision is one which no sensible
person who weighed the pros and cons could have arrived at
nor is there a finding, based on material, that the
punishment is in ‘outrageous’ defiance of logic. Neither
Wednesbury nor CCSU tests are satisfied. We have still to
explain ‘Ranjit Thakur’.
In Ranjit Thakur, this Court interfered with the
punishment only after coming to he conclusion that the
punishment was in outrageous defiance of logic and was
shocking. It was also described as perverse and irrational.
In other words, this Court felt that, on facts, Wednesbury
and CCSU tests were satisfied. In another case, in B.C.
Chaturvedi vs. Union of India [1995 (6) SCC 749], a three
Judge Bench said the same thing as follows;
“The High Court/Tribunal, while
exercising the power of judicial
review, cannot normally substitute
its own conclusions on penalty and
impose some other penalty. If the
punishment imposed by the
disciplinary authority or the
appellate authority shocks the
conscience of the High
Court/Tribunal it would
appropriately would the relief,
either by directing the
disciplinary authority/appellate
authority to reconsider the penalty
imposed, or to shorten the
litigation, it ma itself, in
exceptional and rare case, impose
appropriate punishment with cogent
reasons in support thereof”
Similar view was taken in India Oil Corporation vs.
Ashok Kumar Arora [1997 (3) SCC 72], that the Court will not
intervene unless the punishment is wholly disproportionate.
In such a situation, unless the Court/Tribunal opines
in its secondary role, that the administrator was, on the
material before him, irrational according to Wednesbury or
CCSU norms, the punishment cannot be quashed. Even then the
matter has to be remitted back to the appropriate authority
for reconsideration. It is only in very rare cases as
pointed out in B.C.Chaturvedi’s case that the Court might, –
to shorten litigation – think of substituting its own view
as to the quantum of punishment in the place of the
punishment awarded by the competent authority. (In
B.C.Chaturvedi and other cases referred to therein it has
however been made clear that the power of this Court under
Article 136 is different). For the reasons given above, the
case cited for the respondent, namely, State of Maharashtra
vs. M.H.Mazumdar cannot be of any help.
For the aforesaid reasons, we set aside the order of
the Tribunal which has interfered with the quantum of
punishment and which has also substituted its own view of
the punishment. The punishment awarded by the departmental
authorities is restored. In the circumstances, there will
be no order as to costs.
