{"id":18926,"date":"2005-09-05T00:00:00","date_gmt":"2005-09-04T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/v-ramana-vs-a-p-s-r-t-c-ors-on-5-september-2005"},"modified":"2017-01-06T18:44:11","modified_gmt":"2017-01-06T13:14:11","slug":"v-ramana-vs-a-p-s-r-t-c-ors-on-5-september-2005","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/v-ramana-vs-a-p-s-r-t-c-ors-on-5-september-2005","title":{"rendered":"V. Ramana vs A.P.S.R.T.C. & Ors on 5 September, 2005"},"content":{"rendered":"
Supreme Court of India<\/div>\n
V. Ramana vs A.P.S.R.T.C. & Ors on 5 September, 2005<\/div>\n
Author: A Pasayat<\/div>\n
Bench: Arijit Pasayat, H.K. Sema<\/div>\n
           CASE NO.:\nAppeal (civil)  9904 of 2003\n\nPETITIONER:\nV. Ramana \t\t\t\t\t\t\t\t\n\nRESPONDENT:\nA.P.S.R.T.C. & Ors.\t\t\t\t\t\t\n\nDATE OF JUDGMENT: 05\/09\/2005\n\nBENCH:\nARIJIT PASAYAT & H.K. SEMA\n\nJUDGMENT:\n<\/pre>\n
J U D G M E N T<\/p>\n
ARIJIT PASAYAT, J.\n<\/p>\n
\tChallenge in this appeal is to the legality of the
\njudgment rendered by a Full Bench of the Andhra Pradesh High
\nCourt holding that the order of termination passed in the
\ndepartmental proceedings against the appellant was
\njustified.\n<\/p>\n
\tThe factual background is essentially as follows:\n<\/p>\n
\tThe appellant was working as a Conductor in the
\norganization of the Andhra Pradesh State Road Transport
\nCorporation. Charges were made against him which related to
\nnot issuing tickets at the boarding point itself to the
\npassengers who were in the bus, failure to collect fare and
\nissue tickets to persons who were alighting at a particular
\ndestination and not properly maintaining records of tickets
\nand fare. Explanation of the appellant was considered and
\nwas found to be not satisfactory and disciplinary
\nproceedings were initiated.  The Enquiry Officer found him
\nguilty of the charges levelled and after giving him
\nopportunity of hearing as regards the quantum of punishment,
\norder of removal from service was passed.\n<\/p>\n
\tQuestioning correctness of the said order, writ
\npetition was filed. Learned Single Judge before whom the
\nmatter was placed held that there was some divergence of
\nview in the judgments of learned Single Judges and,
\ntherefore, referred the matter to a larger Bench.  The
\nreference was as regards the effect of acquittal in the
\ncriminal case and smallness of the amount involved.  The
\nHigh Court by the impugned judgment held that the acquittal
\nof the case was really of no consequence and small amount of
\ndiscrepancy was equally inconsequential.\n<\/p>\n
\tIn support of the appeal learned counsel for the
\nappellant submitted that the High Court should have
\nconsidered the question of quantum of punishment by applying
\nthe principles of Section 11-A of Industrial Disputes Act,
\n1947 (in short the ‘Act’).  It was further submitted there
\nwere minor lapses and smallness of the amount has not been
\nconsidered in the proper perspective and order of
\ntermination of service should not have been passed. Learned
\ncounsel for the respondent-Corporation supported the order
\nof the Tribunal and judgment of the High Court.  In
\nKarnataka State Road Transport Corporation v. B.S.
\nHullikatti (JT<\/a> 2001 (2) SC 72), it was held that misconduct
\nin such cases where the bus conductor either had not issued
\ntickets to a large number of passengers or had issued
\ntickets of lower denomination, punishment of removal is
\nproper. It is the responsibility of the conductors to
\ncollect correct fare charges from the passengers and deposit
\nthe same with the Corporation.  They act in fiduciary
\ncapacity and it would be a case of gross misconduct if they
\ndo not collect any fare or the correct amount of fare. A
\nconductor holds a post of trust.  A person guilty of breach
\nof trust should be imposed punishment of removal from
\nservice.  The factual position shows that the appellant’s
\nconduct in collecting fare at the designated place and not
\ncollecting fare from persons who had already travelled were
\nin violation of various Regulations contained in The Andhra
\nPradesh State Road Transport Corporation Employees (Conduct)
\nRegulations, 1963 (in short ‘Regulations’). In the Karnataka
\nState Road Transport case (supra) it was held that it is
\nmisplaced sympathy by Courts in awarding lesser punishments
\nwhere on checking it is found that the Bus Conductors have
\neither not issued tickets to a large number of passengers,
\nthough they should have, or have issued tickets of a lower
\ndenomination knowing fully well the correct fare to be
\ncharged. It was finally held that the order of dismissal
\nshould not have been set aside. The view was reiterated by a
\nthree Judge Bench in Regional Manager, RSRTC v. Ghanshyam
\nSharma<\/a> (2002 (1) LLJ 234), where it was additionally
\nobserved that the proved acts amount either to a case of
\ndishonesty or of gross negligence, and Bus Conductors who by
\ntheir actions or inactions cause financial loss to the
\nCorporations are not fit to be retained in service.\n<\/p>\n
\tThe principle was reiterated in Regional Manager,
\nU.P.S.R.T.C. Etawha and Ors. v. Hoti Lal and Anr. (JT<\/a> 2003
\n(2) SC 27)     <\/p>\n
The scope of interference with quantum of punishment
\nhas been the subject-matter of various decisions of this
\nCourt.  Such interference cannot be a routine matter.\n<\/p>\n
Lord Greene said in 1948 in the famous Wednesbury case
\n(1948 (1) KB 223) that when a statute gave discretion to an
\nadministrator to take a decision, the scope of judicial
\nreview would remain limited.  He said that interference was
\nnot permissible unless one or the other of the following
\nconditions was satisfied, namely the order was contrary to
\nlaw, or relevant factors were not considered, or irrelevant
\nfactors were considered; or the decision was one which no
\nreasonable person could have taken.  These principles were
\nconsistently followed in the UK and in India to judge the
\nvalidity of administrative action.  It is equally well known
\nthat in 1983, Lord Diplock in Council for Civil Services
\nUnion v. Minister of Civil Service [(1983) 1 AC 768] (called
\nthe CCSU case) summarized the principles of judicial review
\nof administrative action as based upon one or other of the
\nfollowing viz., illegality, procedural irregularity and
\nirrationality.  He, however, opined that “proportionality”
\nwas a “future possibility”.\n<\/p>\n
\tIn Om Kumar and Ors. v. Union of India<\/a> (2001 (2) SCC\n<\/p>\n
386), this Court observed, inter alia, as follows:\n<\/p>\n
\t“The principle originated in Prussia in
\nthe nineteenth century and has since been
\nadopted in Germany, France and other European
\ncountries.  The European Court of Justice at
\nLuxembourg and the European Court of Human
\nRights at Strasbourg have applied the
\nprinciple while judging the validity of
\nadministrative action.  But even long before
\nthat, the Indian Supreme Court has applied
\nthe principle of “proportionality” to
\nlegislative action since 1950, as stated in
\ndetail below.\n<\/p>\n
\tBy “proportionality”, we mean the
\nquestion whether, while regulating exercise
\nof fundamental rights, the appropriate or
\nleast-restrictive choice of measures has been
\nmade by the legislature or the administrator
\nso as to achieve the object of the
\nlegislation or the purpose of the
\nadministrative order, as the case may be.
\nUnder the principle, the court will see that
\nthe legislature and the administrative
\nauthority “maintain a proper balance between
\nthe adverse effects which the legislation or
\nthe administrative order may have on the
\nrights, liberties or interests of persons
\nkeeping in mind the purpose which they were
\nintended to serve”.  The legislature and the
\nadministrative authority are, however, given
\nan area of discretion or a range of choices
\nbut as to whether the choice made infringes
\nthe rights excessively or not is for the
\ncourt. That is what is meant by
\nproportionality.\n<\/p>\n
xxx\t\txxx\t\txxx\t\txxx\t\txxx<\/p>\n
\tThe development of the principle of
\n“strict scrutiny” or “proportionality” in
\nadministrative law in England is, however,
\nrecent. Administrative action was
\ntraditionally being tested on Wednesbury
\ngrounds.  But in the last few years,
\nadministrative action affecting the freedom
\nof expression or liberty has been declared
\ninvalid in several cases applying the
\nprinciple of “strict scrutiny”.  In the
\ncase of these freedoms, Wednesbury principles
\nare no longer applied.  The courts in England
\ncould not expressly apply proportionality in
\nthe absence of the convention but tried to
\nsafeguard the rights zealously by treating
\nthe said rights as basic to the common law
\nand the courts then applied the strict
\nscrutiny test.  In the Spycatcher case
\nAttorney General v. Guardian Newspapers Ltd.
\n(No.2) (1990) 1 AC 109 (at pp. 283-284), Lord
\nGoff stated that there was no inconsistency
\nbetween the convention and the common law.
\nIn Derbyshire County Council v. Times
\nNewspapers Ltd. (1993) AC 534, Lord Keith
\ntreated freedom of expression as part of
\ncommon law.  Recently, in R. v. Secy. Of
\nState for Home Deptt., ex p. Simms (1999) 3
\nAll ER 400 (HL), the right of a prisoner to
\ngrant an interview to a journalist was upheld
\ntreating the right as part of the common law.
\nLord Hobhouse held that the policy of the
\nadministrator was disproportionate.  The need
\nfor a more intense and anxious judicial
\nscrutiny in administrative decisions which
\nengage fundamental human rights was re-
\nemphasised in in R. v. Lord Saville ex p
\n(1999) 4 All ER 860 (CA), at pp.870,872) . In
\nall these cases, the English Courts applied
\nthe “strict scrutiny” test rather than
\ndescribe the test as one of
\n“proportionality”.  But, in any event, in
\nrespect of these rights “Wednesbury” rule
\nhas ceased to apply.\n<\/p>\n
\tHowever, the principle of “strict
\nscrutiny” or “proportionality” and primary
\nreview came to be explained in R. v. Secy. of
\nState for the Home Deptt. ex p Brind (1991) 1
\nAC 696.  That case related to directions
\ngiven by the Home Secretary under the
\nBroadcasting Act, 1981 requiring BBC and IBA
\nto refrain from broadcasting certain matters
\nthrough persons who represented organizations
\nwhich were proscribed under legislation
\nconcerning the prevention of terrorism.  The
\nextent of prohibition was linked with the
\ndirect statement made by the members of the
\norganizations.  It did not however, for
\nexample, preclude the broadcasting by such
\npersons through the medium of a film,
\nprovided there was a “voice-over” account,
\nparaphrasing what they said.  The applicant’s
\nclaim was based directly on the European
\nConvention of Human Rights. Lord Bridge
\nnoticed that the Convention rights were not
\nstill expressly engrafted into English law
\nbut stated that freedom of expression was
\nbasic to the Common law and that, even in the
\nabsence of the Convention, English Courts
\ncould go into the question (see p. 748-49).\n<\/p>\n
“…..whether the Secretary of State,
\nin the exercise of his discretion, could
\nreasonably impose the restriction he has
\nimposed on the broadcasting
\norganisations”\n<\/p>\n
and that the courts were<\/p>\n
“not perfectly entitled to start from
\nthe premise that any restriction of the
\nright to freedom of expression requires
\nto be justified and nothing less than an
\nimportant public interest will be
\nsufficient to justify it”.\n<\/p>\n
Lord Templeman also said in the above case
\nthat the courts could go into the question
\nwhether a reasonable minister could
\nreasonably have concluded that the
\ninterference with this freedom was
\njustifiable.  He said that “in terms of the
\nConvention” any such interference must be
\nboth necessary and proportionate (ibid pp.
\n750-51).\n<\/p>\n
\tIn the famous passage, the seeds of the
\nprinciple of primary and secondary review by
\ncourts were planted in the administrative law
\nby Lord Bridge in the Brind case (1991) 1 AC\n<\/p>\n
696.  Where Convention rights were in
\nquestion the courts could exercise a right of
\nprimary review.  However, the courts would
\nexercise a right of secondary review based
\nonly on Wednesbury principles in cases not
\naffecting the rights under the Convention.
\nAdverting to cases where fundamental freedoms
\nwere not invoked and where administrative
\naction was questioned, it was said that the
\ncourts were then confined only to a secondary
\nreview while the primary decision would be
\nwith the administrator. Lord Bridge explained
\nthe primary and secondary review as follows:\n<\/p>\n
\t“The primary judgment as to
\nwhether the particular competing public
\ninterest justifying the particular
\nrestriction imposed falls to be made by
\nthe Secretary of State to whom
\nParliament has entrusted the discretion.
\nBut, we are entitled to exercise a
\nsecondary judgment by asking whether a
\nreasonable Secretary of State, on the
\nmaterial before him, could reasonably
\nmake the primary judgment.”\n<\/p>\n
\tBut where an administrative action is
\nchallenged as “arbitrary” under Article 14
\non the basis of Royappa (1974) 4 SCC 3 (as
\nin cases where punishments in disciplinary
\ncases are challenged), the question will be
\nwhether the administrative order is
\n“rational” or “reasonable” and the test
\nthen is the Wednesbury test.  The courts
\nwould then be confined only to a secondary
\nrole and will only have to see whether the
\nadministrator has done well in his primary
\nrole, whether he has acted illegally or has
\nomitted relevant factors from consideration
\nor has taken irrelevant factors into
\nconsideration or whether his view is one
\nwhich no reasonable person could have taken.
\nIf his action does not satisfy these rules,
\nit is to be treated as arbitrary. In G.B.
\nMahajan v. Jalgaon Municipal Council<\/a> (1991)
\n3 SCC 91 at p. 111 Venkatachaliah, J. (as he
\nthen was) pointed out that
\n“reasonableness” of the administrator
\nunder Article 14 in the context of
\nadministrative law has to be judged from the
\nstand point of Wednesbury rules. In Tata
\nCellular v. Union of India<\/a> (1994) 6 SCC 651
\nat pp. 679-80), Indian Express Newspapers
\nBombay (P) Ltd. v. Union of India<\/a> (1985) 1
\nSCC 641 at p.691), Supreme Court Employees’
\nWelfare Assn. V. Union of India<\/a> (1989) 4 SCC
\n187 at p. 241) and U.P. Financial Corpn. V.
\nGem Cap (India) (P) Ltd.<\/a> (1993) 2 SCC 299 at
\np. 307) while judging whether the
\nadministrative action is “arbitrary” under
\nArticle 14 (i.e. otherwise then being
\ndiscriminatory), this Court has confined
\nitself to a Wednesbury review always.\n<\/p>\n
\tThe principles explained in the last
\npreceding paragraph in respect of Article 14
\nare now to be applied here where the question
\nof “arbitrariness” of the order of
\npunishment is questioned under Article 14.\n<\/p>\n
xxx\t\txxx\t\txxx\t\txxx\t\txxx<\/p>\n
\tThus, from the above principles and
\ndecided cases, it must be held that where an
\nadministrative decision relating to
\npunishment in disciplinary cases is
\nquestioned as “arbitrary” under Article 14,
\nthe court is confined to Wednesbury
\nprinciples as a secondary reviewing
\nauthority.  The court will not apply
\nproportionality as a primary reviewing court
\nbecause no issue of fundamental freedoms nor
\nof discrimination under Article 14 applies in
\nsuch a context.  The court while reviewing
\npunishment and if it is satisfied that
\nWednesbury principles are violated, it has
\nnormally to remit the matter to the
\nadministrator for a fresh decision as to the
\nquantum of punishment.  Only in rare cases
\nwhere there has been long delay in the time
\ntaken by the disciplinary proceedings and in
\nthe time taken in the courts, and such
\nextreme or rare cases can the court
\nsubstitute its own view as to the quantum of
\npunishment.”\n<\/p>\n
In B.C. Chaturvedi v. Union of India and Ors.<\/a> (1995 [6]
\nSCC 749) it was observed:\n<\/p>\n
“A review of the above legal position
\nwould establish that the disciplinary
\nauthority, and on appeal the appellate
\nauthority, being fact-finding authorities
\nhave exclusive power to consider the evidence
\nwith a view to maintain discipline.  They are
\ninvested with the discretion to impose
\nappropriate punishment keeping in view the
\nmagnitude or gravity of the misconduct.  The
\nHigh Court\/Tribunal, while exercising the
\npower of judicial review, cannot normally
\nsubstitute its own conclusion on penalty and
\nimpose some other penalty. If the punishment
\nimposed by the disciplinary authority or the
\nappellate authority shocks the conscience of
\nthe High Court\/Tribunal, it would
\nappropriately mould the relief, either
\ndirecting the disciplinary\/appellate
\nauthority to reconsider the penalty imposed,
\nor to shorten the litigation, it may itself,
\nin exceptional and rare cases, impose
\nappropriate punishment with cogent reasons in
\nsupport thereof.”\n<\/p>\n
In Union of India and Anr. v. G. Ganayutham<\/a> (1997 [7]
\nSCC 463), this Court summed up the position relating to
\nproportionality in paragraphs 31 and 32, which read as
\nfollows:\n<\/p>\n
“The current position of
\nproportionality in administrative law in
\nEngland and India can be summarized as
\nfollows:\n<\/p>\n
(1) To judge the validity of any
\nadministrative order or statutory
\ndiscretion, normally the Wednesbury test
\nis to be applied to find out if the
\ndecision was illegal or suffered from
\nprocedural improprieties or was one
\nwhich no sensible decision-maker could,
\non the material before him and within
\nthe framework of the law, have arrived
\nat.  The court would consider whether
\nrelevant matters had not been taken into
\naccount or whether irrelevant matters
\nhad been taken into account or whether
\nthe action was not bona fide.  The court
\nwould also consider whether the decision
\nwas absurd or perverse. The court would
\nnot however go into the correctness of
\nthe choice made by the administrator
\namongst the various alternatives open to
\nhim.  Nor could the court substitute its
\ndecision to that of the administrator.
\nThis is the Wednesbury (1948 1 KB 223)
\ntest.\n<\/p>\n
(2) The court would not interfere
\nwith the administrator’s decision unless
\nit was illegal or suffered from
\nprocedural impropriety or was irrational
\n in the sense that it was in outrageous
\ndefiance of logic or moral standards.
\nThe possibility of other tests,
\nincluding proportionality being brought
\ninto English administrative law in
\nfuture is not ruled out.  These are the
\nCCSU (1985 AC 374) principles.\n<\/p>\n
(3)(a) As per Bugdaycay (1987 AC\n<\/p>\n
514), Brind (1991 (1) AC 696) and Smith
\n(1996 (1) All ER 257) as long as the
\nConvention is not incorporated into
\nEnglish law, the English courts merely
\nexercise a secondary judgment to find
\n0out if the decision-maker could have,
\non the material before him, arrived at
\nthe primary judgment in the manner he
\nhas done.\n<\/p>\n
(3)(b) If the Convention is
\nincorporated in England making available
\nthe principle of proportionality, then
\nthe English courts will render primary
\njudgment on the validity of the
\nadministrative action and find out if
\nthe restriction is disproportionate or
\nexcessive or is not based upon a fair
\nbalancing of the fundamental freedom and
\nthe need for the restriction thereupon.\n<\/p>\n
(4)(a) The position in our country,
\nin administrative law, where no
\nfundamental freedoms as aforesaid are
\ninvolved, is that the courts\/tribunals
\nwill only play a secondary role while
\nthe primary judgment as to
\nreasonableness will remain with the
\nexecutive or administrative authority.
\nThe secondary judgment of the court is
\nto be based on Wednesbury and CCSU
\nprinciples as stated by Lord Greene and
\nLord Diplock respectively to find if the
\nexecutive or administrative authority
\nhas reasonably arrived at his decision
\nas the primary authority.\n<\/p>\n
(4)(b) Whether in the case of
\nadministrative or executive action
\naffecting fundamental freedoms, the
\ncourts in our country will apply the
\nprinciple of “proportionality” and
\nassume a primary role, is left open, to
\nbe decided in an appropriate case where
\nsuch action is alleged to offend
\nfundamental freedoms. It will be then
\nnecessary to decide whether the courts
\nwill have a primary role only if the
\nfreedoms under Articles 19, 21 etc. are
\ninvolved and not for Article 14.\n<\/p>\n
\tFinally, we come to the present case.
\nIt is not contended before us that any
\nfundamental freedom is affected.  We need not
\ntherefore go into the question of
\n“proportionality”.  There is no contention
\nthat the punishment imposed is illegal or
\nvitiated by procedural impropriety.  As to
\n“irrationality”, there is no finding by the
\nTribunal that the decision is one which no
\nsensible person who weighed the pros and cons
\ncould have arrived at nor is there a finding,
\nbased on material, that the punishment is in
\n“outrageous” defiance of logic. Neither
\nWednesbury nor CCSU tests are satisfied.  We
\nhave still to explain “Ranjit Thakur (1987
\n[4] SCC 611)”.\n<\/p>\n
The common thread running through in all these
\ndecisions is that the Court should not interfere with the
\nadministrator’s decision unless it was illogical or suffers
\nfrom procedural impropriety or was shocking to the
\nconscience of the Court, in the sense that it was in
\ndefiance of logic or moral standards.  In view of what has
\nbeen stated in the Wednesbury’s case (supra) the Court would
\nnot go into the correctness of the choice made by the
\nadministrator open to him and the Court should not
\nsubstitute its decision to that of the administrator. The
\nscope of judicial review is limited to the deficiency in
\ndecision-making process and not the decision.\n<\/p>\n
\tTo put differently unless the punishment imposed by the
\nDisciplinary Authority or the Appellate Authority shocks the
\nconscience of the Court\/Tribunal, there is no scope for
\ninterference.  Further to shorten litigations it may, in
\nexceptional and rare cases, impose appropriate punishment by
\nrecording cogent reasons in support thereof.  In a normal
\ncourse if the punishment imposed is shockingly
\ndisproportionate it would be appropriate to direct the
\nDisciplinary Authority or the Appellate Authority to
\nreconsider the penalty imposed.\n<\/p>\n
\tIn the above background the High Court’s judgment does
\nnot suffer from any infirmity. The appeal is dismissed
\nwithout any order as to costs.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India V. Ramana vs A.P.S.R.T.C. & Ors on 5 September, 2005 Author: A Pasayat Bench: Arijit Pasayat, H.K. Sema CASE NO.: Appeal (civil) 9904 of 2003 PETITIONER: V. Ramana RESPONDENT: A.P.S.R.T.C. & Ors. DATE OF JUDGMENT: 05\/09\/2005 BENCH: ARIJIT PASAYAT & H.K. SEMA JUDGMENT: J U D G M E N T […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-18926","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nV. 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