{"id":76620,"date":"1997-08-27T00:00:00","date_gmt":"1997-08-26T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/union-of-india-another-vs-g-ganayutham-on-27-august-1997"},"modified":"2017-07-04T18:02:43","modified_gmt":"2017-07-04T12:32:43","slug":"union-of-india-another-vs-g-ganayutham-on-27-august-1997","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/union-of-india-another-vs-g-ganayutham-on-27-august-1997","title":{"rendered":"Union Of India & Another vs G. Ganayutham on 27 August, 1997"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Union Of India & Another vs G. Ganayutham on 27 August, 1997<\/div>\n
Author: M J Rao<\/div>\n
Bench: Sujata V. Manohar, M. Jagannadha Rao<\/div>\n
           PETITIONER:\nUNION OF INDIA & ANOTHER\n\n\tVs.\n\nRESPONDENT:\nG. GANAYUTHAM\n\nDATE OF JUDGMENT:\t27\/08\/1997\n\nBENCH:\nSUJATA V. MANOHAR, M. JAGANNADHA RAO\n\n\n\n\nACT:\n\n\n\nHEADNOTE:\n\n\n\nJUDGMENT:\n<\/pre>\n
\t\t      J U D G M E N T
\nM. JAGANNADHA RAO,J.\n<\/p>\n
     This is  an appeal\t by  the  Union\t of  India  and\t the
\nCollector of  Central Excise  against the  judgment  of\t the
\nCentral Administrative\tTribunal in  Tr.  A.No.660  of\t1986
\ndated  5.12.1986   allowing  the   petition  filed   by\t the
\nrespondent.\n<\/p>\n
     The respondent was working as Superintendent of Central
\nExcise.\t  While so, on 14.11.1977, was served with a memo of
\neight charges  and an  inquiry was  conducted.\t The Inquiry
\nOfficer submitted  a  report  dated  17.5.1978\tstating\t hat
\ncharge No.4  was not  proved, charge NO.8 was partly proved,
\nand other  charges were held proved.  The respondent retired
\nfrom service  on 31.5.1978.    A  show\tcause  notice  dated
\n18.3.1982 was  issue under  Rule  9  of\t the  Central  Civil
\nServices  (pension)  Rules,  1972  (hereinafter\t called\t the
\n‘Rules’) proposing  withdrawal of  full pension and gratuity
\nadmissible  to\t the  respondent  on  the  ground  that\t the
\nGovernment suffered  substantial loss  of revenue due to the
\nmisconduct of  the respondent.\t The respondent submitted an
\nexplanation.\tThe  Union  Public  Service  Commission\t was
\nconsulted and  the Commission felt that charges 4 and 6 were
\nnot proved  but concurred  with the  findings of the Inquiry
\nOfficer on other charges.  based on the Commission’s advice,
\na penalty  of withholding  50% of  the pension\tand  50^  of
\ngratuity was  awarded to  the  respondent  by  orders  dated
\n8.5.1984.   Questioning the  same, a writ petition was filed
\nby the\trespondent in  the High\t Court of  Madras which\t was
\nlater  transferred   to\t the  Tribunal.\t After\thearing\t the
\nrespective counsel  for the  parties, the  Tribunal  held by
\njudgment dated\t5.12.1986 that under Rule 9 of the Rules the
\ncompetent authority  could  not\t withdraw  any\tart  of\t the
\ngratuity inasmuch  as the  said provision referred merely to
\nwithholding of\tpension and  not gratuity.  It held that the
\ndefinition of  ‘pension’  in  rule  3(1)(o)  which  included
\ngratuity was  not applicable for purposes of Rule 9.  So far
\nas the\tpenalty\t of  withholding  50%  of  the\tpension\t was
\nconcerned, it  held that  the punishment  awarded  was\t‘too
\nsevere’, that  the lapses  were\t procedural,  there  was  no
\ncollusion between  the respondent  and any  party, that\t the
\nofficer had otherwise done excellent work and, therefore, it
\nwas a  fit case\t where the withholding of pension of 50% had
\nto be  restricted for  a period\t of 10 years instead of on a
\npermanent basis.\n<\/p>\n
     Aggrieved by  the said  decision of  the Tribunal,\t the
\nUnion of  India\t and  the  Collector,  Central\tExcise\thave
\npreferred this\tappeal. During\tthe pendency of this appeal,
\nthe respondent\tdied and his legal representatives have been
\nbought on record.\n<\/p>\n
     It\t was  contended\t by  the  learned  counsel  for\t the
\nappellants that\t the Tribunal  was wrong  in law  in holding
\nthat the  power to withhold ‘pension’ as specified in rule 9
\ndid not\t include the  power to withhold the whole or part of
\nthe gratuity.\tIt  was argued that under Rule 3(1)(o)), the
\nword ‘pension’\tis defined  to include the ‘gratuity’ except
\nwhen the  term ‘pension’  is used  in  contradistinction  to
\ngratuity and that in Rule 9 there is no question of the word
\n‘pension’ being\t used in  contradistinction gratuity.\tThis
\npoint, according  to the  appellant’s counsel  is covered by
\nthe judgment  of this  Court in Jarnail Singh vs. Secretary,
\nMinistry of  Home Affairs<\/a> [1993 (1) SCC 47] in favour of the
\nappellant and against the respondent.  It was also contended
\nthat the  Tribunal ought  not to have gone into the question
\nas to  whether the  punishment of  withholding\t50%  of\t the
\npension and  gratuity was  commensurate with  the gravity of
\nthe misconduct\tproved and  that this amounted to going into
\nthe  ‘proportionality’\tof  the\t punishment  which  was\t not
\npermissible in\tlaw.   The charges  proved showed  that\t the
\nconduct of  the respondent related to loss of revenue to the
\ngovernment and\tthat the  competent authority  had  taken  a
\n‘reasonable’ decision  as to  quantum of punishment weighing
\nall the\t relevant factors  and\tthe  decision  of  the\tsaid
\nauthority could\t not be\t said to  be one which no reasonable
\nperson could have reasonably taken.  In any event, there was
\nalso no\t finding by the Tribunal that the punishment imposed
\nwas ‘shockingly’ disproportionate to the gravity of charges.
\nIn Ranjit  Thakur Vs.  Union of\t India [1987  (4) SCC  611],
\nthough the  principle of  ‘proportionality’ was referred to,
\nstill it  was only  after arriving  at a  finding  that\t the
\npunishment was ‘shockingly’ disproportionate that this Court
\ninterfered with\t the punishment\t and that  too under Article
\n136 of the Constitution of India.\n<\/p>\n
     Learned counsel  for the  respondent  could  not  place
\nbefore us  any other  decision to persuade us to take a view
\ndifferent from\tthe  view  taken  in  Jarnail  Singh’s\tcase
\n(supra). So  far as the punishment was concerned, the argued
\nthat the  Tribunal felt\t that the  punishment was far severe
\nhaving regard  to the  charges proved  and it  was, in those
\ncircumstances, permissible  for the  Tribunal  to  interfere
\nwith the quantum of punishment.\t Learned counsel relied upon
\nthe decision  of this  Court in\t State\tof  Maharashtra\t vs.
\nM.H.Mazumdar<\/a> [1988  (2) SCC 52] where, on facts, it was held
\nthat withdrawing  50% of  the pension  permanently was harsh
\nand the\t matter was remanded by this Court to the Government
\nfor fresh consideration of the quantum of punishment.\n<\/p>\n
     The following points arise for consideration.
\n(1)  Whether while  interpreting Rule 9 of the Central Civil
\nServices (Pension)  Rules, 1972\t in regard  to withdrawal of
\nwhole or  part of  pension, it\tis permissible\tto apply the
\ndefinition of ‘pension’ in rule 3 and hold that under Rule 9
\ndeath-cum-gratuity could also be withdrawn wholly r in part?
\n(2)  Whether it\t is permissible for the Court or Tribunal to
\ninterfere with\tthe quantum  of punishment  imposed  by\t the
\ncompetent authority on the ground that it was too severe and
\nhence ‘disproportionate’  to  the  gravity  of\tthe  charges
\nproved?\n<\/p>\n
     Point No.1:  Rule 9  of the Rule refers to the power of
\nthe President  to  withhold  or\t withdraw  pension,  whether
\npermanently or\tfor a  specified period, and to the ordering
\nof recovery  from the  pension, of  the whole or part of any
\npecuniary loss caused to the government, in any departmental
\nor Judicial proceedings, if the pensioner is found guilty of
\ngrave misconduct  of negligence\t during the  period  of\t his
\nservice, including service rendered upon re-employment after
\nretirement.   The proviso  requires that  the  Union  Public
\nService Commission  be consulted before any final orders are
\npassed.\t  Rule 3 of the Rules defines ‘pension’ as including
\n‘gratuity’  except   when  the\t term  pension\tis  used  in
\ncontradistinction  to\tgratuity.    In\t Jarnail  Singh\t vs.
\nSecretary, Ministry of Home Affairs<\/a> [1993 (1) SCC 47] it was
\nheld that  ‘the term  ‘pension’ used  in Rule  9(1) must  be
\nconstrued to  include gratuity\tsince the  said word, in the
\ncontext, was  not used\tin constradistinction  to gratuity’.
\nIt was\tfurther hold that the amendment made in Rule 9(1) by
\nthe Central  Civil Services (Pension) Third Amendment Rules,
\n1991 which  substituted the  words ‘pension  or gratuity, or
\nboth’ in  the body  of Rule  9\twas  clarificatory  and\t was
\nintended to remove the doubt created by certain decisions of
\nthe Court  rendered in\t1990.\tIt was\talso held that in an
\nearlier decision  in D.V.Kapoor vs. union of India [1990 (4)
\nSCC 314]  which took  a contrary  view, Rule 3(1)(o) was not
\nbrought to  the notice\tof the\tCourt.\tAs to Jesuratnam vs.
\nUnion of  India,<\/a> [1990\tsupp.SCC 640] it was said that there
\nwas no discussion in that case.\n<\/p>\n
     We may  also state\t that subsequently, in State of U.P.
\nvs. UP University Colleges Pensioners’ association [1994 (2)
\nSCC  729],   the  decision   in\t Jarnail  Singh’s  case\t was
\ndistinguished as  the latter  was based\t on rule  3.  In yet
\nanother case  in Sita  Ram Yadava  vs. union  of India [1995
\nSuppl. (4)  SCC 618],  special leave  was initially  granted
\nbecause of  a contention  based on  D.V.kapoor’s  case\tthat
\ngratuity could\tnot be\twithdrawn, wholly  or partly,  under
\nrule 9.\t But at the time when the matter was disposed of, it
\nwas said  that inasmuch\t as the\t gratuity had  already\tbeen
\nreleased in full to the employee, it was not necessary to go
\ninto the  question whether  gratuity could be withheld under
\nthe Pension Rules.\n<\/p>\n
     We are  of the view that the last two decision, namely,
\nState  of   UP\tvs.   UP  University   Colleges\t Pensioners’
\nAssociation [1994 (2) SCC 729] and Sita Ram yadava vs. Union
\nof India  [1995 Suppl.\t(4) SCC 618] do not, for the reasons
\nstated above,  affect the ratio of the case in Jarnail Singh
\nvs. Secretary,\tMinistry of  Home Affairs<\/a> [1993 (1) SCC 47].
\nTherefore, the\tTribunal was  wrong in\tthinking that  under
\nrule 9,\t 50% of\t the gratuity  could not  be withheld.\t  We
\naccordingly set\t aside the  finding of\tthe Tribunal on this
\npoint.\n<\/p>\n
     Point 2;\tThe  point is whether judicial review powers
\nin  administrative   law  permit  the  High  Courts  or\t the
\nAdministrative\tTribunals   to\tapply\tthe   principle\t  of
\n‘proportionality?\n<\/p>\n
     Before we\trefer to  the rulings  of this\tCourt on the
\nquestion of  ‘proportionality’\tin  the\t administrative\t law
\nsphere, we  shall refer\t to the\t leading cases in England on
\nthe question of judicial review of administrative action.\n<\/p>\n
     The Wednesbury Case (1948):\n<\/p>\n
     This case\tis treated  as\tlaying\tdown  various  basic
\nprinciple relating  to judicial\t review of administrative or
\nstatutory discretion.\tBefore\tsummarising the substance of
\nthe Principles laid down there we shall refer to the passage
\nfrom the  judgment of  Lord Greene  in Associated Provincial
\nPicture Houses\tLtd. vs.  Wednesbury Corporation  [9148\t (1)
\nK.B. 223(p.229)].  It reads as follows;\n<\/p>\n
     “It is true that discretion must be
\n     exercised\treasonably.    Now  that
\n     does that\tmean?\tLawyers familiar
\n     with  the\t phraseology   used   in
\n     relation to  exercise of  statutory
\n     discretions  often\t use  the  words
\n     ‘unreasonable’    in    a\t  rather
\n     comprehensive  sense.\tIt   has
\n     frequently\t  been\t used\tand   is
\n     frequently\t been\tused  and     is
\n     frequently\t used\tas   a\t general
\n     description of the things that must
\n     not  be  done.    For  instance,  a
\n     person entrusted  with a discretion
\n     must, so  to speak,  direct himself
\n     properly in  law.\tHe must call his
\n     own attention  to the matters which
\n     he is  bound to  consider.\t He must
\n     exclude  from   his   consideration
\n     matters  which  are  irrelevant  to
\n     what he  has to  consider.\t  If  he
\n     does not  obey those  rules, he may
\n     truly be  said, and  often is said,
\n     to\t  be\tacting\t ‘unreasonably’.<\/p>\n
     Similarly, there  may be  something
\n     so absurd\tthat no\t sensible person
\n     could even dream that it lay within
\n     the powers\t of the authority…. In
\n     another,\tit    is   taking   into
\n     consideration  extraneous\tmatters.
\n     It is  unreasonable that  it  might
\n     almost be\tdescribed as  being done
\n     in bad  faith;  and  in  fact,  all
\n     these things run into one another”
\n     Lord Greene also observed (p.230):
\n     “…it  must   be\tproved\t to   be
\n     unreasonable in  the sense that the
\n     Court considers it to be a decision
\n     that no  reasonable body  can  come
\n     to.   it  is  not\twhat  the  Court
\n     considers unreasonable…The effect
\n     of the legislation is not to set up
\n     the  Court\t as  an\t arbiter  of  he
\n     correctness  of   one   view   over
\n     another”<\/p><\/blockquote>\n
     Therefore, to  arrive at a decision on ‘reasonableness’
\nthe Court  has to find out if the administrator has left out
\nrelevant factors  or taken  into account irrelevant factors.
\nThe decision  of the administrator must have been within the
\nfour corners  of the  law, and\tnot one\t which\tno  sensible
\nperson could  have reasonably  arrived at,  having regard to
\nthe above  principles, and  must have  been a  bonafide one.
\nThe decision  could be\tone of\tmany  choices  open  to\t the
\nauthority but  it was  for that authority to decide upon the
\nchoice and not for the Court to substitute its view.\n<\/p>\n
     The CCSU  Case(1985)  and\tthe  expectation  of  future
\nadoption of proportionality:-\n<\/p>\n
     The principles  of judicial  review  of  administrative
\naction wee  further summarised\tin 1985\t by Lord  Diplock in
\nCCSU vs.  Minister for\tCivil Services\t[1985 (1) AC 374] as
\nillegality, procedural\timpropriety and\t irrationality.\t  He
\nsaid  more   grounds  could   in  future  become  available,
\nincluding  the\tdoctrine  of  proportionality  which  was  a
\nprinciple followed  by certain other members of the European
\nEconomic community.   Lord Diplock’ observed in that case as
\nfollows:\n<\/p>\n
     “…Judicial review  has  I  think,
\n     developed to  a  stage  today  when
\n     without reiterating any analysis of
\n     the steps\tby which the development
\n     has    come    about,    one    can
\n     conveniently classify  under  three
\n     heads  the\t  grounds   upon   which
\n     administrative action is subject to
\n     control by\t Judicial review.    The
\n     first   ground    I   would    call
\n     ‘illegality’,\tthe\t  second
\n     ‘irrationality’   and   the   third
\n     ‘procedural impropriety’.\t That is
\n     not to say that further development
\n     on a  case by case basis may not in
\n     course of\ttime add  future of  the
\n     principle\t of   ‘proportionality’,
\n     which   is\t   recognised\tin   the
\n     administrative law\t of  several  of
\n     our fellow\t members of the European
\n     Economic Community……”.
\n     Lord Diplock explained ‘irrationality’ as follows:
\n     “By irrationality,\t I mean what can
\n     now be  succintly be referred to as
\n     ‘Wednesbury  unreasonabless’…  It
\n     applies to\t a decision  which is so
\n     outrageous in its defiance of logic
\n     or of accepted moral standards that
\n     no sensible  person who had applied
\n     his mind  to  the\tquestion  to  be
\n     decided could have arrived at”<\/p><\/blockquote>\n
     In other  words, to  characterise\ta  decision  of\t the
\nadministrator as  ‘irrational’ the  Court has  to  hold,  on
\nmaterial, that\tit is a decision ‘so outrageous’ as to be in
\ntotal defiance\tof logic  or moral  standards.\t Adoption of
\n‘proportionality’ into\tadministrative law  was left for the
\nfuture.\n<\/p>\n
     Ranjit Thakur  vs. Union  of  India<\/a>  (1987)  refers  to
\n‘proportionality’:\n<\/p>\n
     The first\tdecision of this Court in administrative law
\nwhich referred\tto ‘proportionality’  is the  one in  Ranjit
\nThakur vs.  Union of India<\/a> [1987 (4) SCC 611].\tIn that case
\nthe appellant  was found guilty in Court Martial proceedings
\nand a  punishment of  dismissal from service and sentence of
\nimprisonment was  imposed as  permitted\t by  the  Army\tAct.
\nWhile quashing\tthe said  punishment on\t the ground  of\t its
\nbeing ‘strikingly disproportionate’, this Court observed:\n<\/p>\n
     “The question  of\tthe  choice  and
\n     quantum of punishment is within the
\n     jurisdiction and  discretion of the
\n     court martial.   But  the\tsentence
\n     has to  suit the  offence\tand  the
\n     offender.\t   It  should\tnot   be
\n     vindictive or  unduly  harsh.    It
\n     should not\t be so\tdisproportionate
\n     to the  offence  as  to  shock  the
\n     conscience and  amount in itself to
\n     conclusive evidence  of bias.   The
\n     doctrine of proportioality, as part
\n     of the  concept of judicial review,
\n     would ensure that even on an aspect
\n     which  is,\t otherwise,  within  the
\n     exclusive province\t of  the  Court-
\n     Martial, if  the  decision\t of  the
\n     Court even\t as to\tsentence  is  an
\n     outrageous defiance  of logic, then
\n     the sentence  would not  be  immune
\n     from correction,  Irrationality and
\n     perversity are  recognised\t grounds
\n     of judicial review”.<\/p><\/blockquote>\n
     It\t  is\tclear\t that\t Ranjit\t   Thakur    treated
\n‘proportionality’   as\t  part\t of   judicial\t review\t  in
\nadministrative law.   But it will also be noticed that while
\nobserving that\t‘proportionality’ was  an aspect of judicial
\nreview, the  Court still referred to the CCSU description of
\nirrationality –\t namely, that  it should be in outrageous in
\ndefiance of  logic if  it was  to be  treated as irrational,
\nRanjit Thakur was followed in Ex.Naik Sardar Singh vs. union
\nof India [1991 (3) SCC 213, again a case under the Army Act.\n<\/p>\n
     What it proportionality?\n<\/p>\n
     In R  vs. Goldstein  [1983 (1)  WLR  151  (157)],\tLord
\nDiplock said:\t“This  would indeed be using a sledge-hammer
\nto crack a nut”.  Sir John Laws (Judge of the Q.B. Division)
\nhas described  ‘proportionality’ as  a\tprinciple  here\t the
\nCourt is
\n     “Concerned with  the way  in  which
\n     the decision-maker\t has ordered his
\n     priortities; the  very  essence  of
\n     decision making consists surely, in
\n     the   attribution\t  of\trelative
\n     importance to  the factors\t in  the
\n     case, and here is my point: This is
\n     precisely what  proportionality  is
\n     about”\n<\/p>\n
     He further says:<\/p>\n
     “What  is\ttherefore  needed  is  a
\n     preparendness  to\t hold\tthat   a
\n     decision\t which\t  overrides    a
\n     fundamental      right\t without
\n     sufficient objective  justification
\n     will,   as\t   a   matter\tof   law
\n     necessarily be  disproportionate to
\n     the aims  in view… The deployment
\n     of proportionality\t sets  in  focus
\n     the true  nature of  the  exercise;\n<\/p>\n
     the elaboration  of  a  rule  about
\n     permissible priorities”.\n<\/p>\n
     Desmith,  Woolf   and  Jowell,   (Judicial\t Review\t  of
\nAdministrative Action (1995 5th ed., para 13.085 pp.601-605)
\npoint  out  that  ‘proportionality’  used  in  human  rights
\ncontext involves  a balancing  test and\t the necessity test.
\nThe ‘balancing\ttest’ means  scrutiny of  excessive  onerous
\npenalties or  infringements of\trights or  interests  and  a
\nmanifest  imbalance   of  relevant   considerations.\t The
\n‘necessity test’  means that infringement of human rights in
\nquestion must  be  by  the  least  restrictive\talternative.
\n(Ranjit Thakur is quoted
\n     (1) ‘Is  the High\tCourt the  Guardian  of\t Fundamental
\nConstitutional Rights?\n<\/p>\n
(1993 P.L.. 59). in f.n.p.601).\n<\/p>\n
     Brind (HL)(1991) – administrative law – proportionality\n<\/p>\n
– debatable  in India  in cases\t not  involving\t fundamental
\nfreedoms:  Tata\t Cellular  (SC)\t (1994)\t and  McDowell\t(SC)
\n(1996):\n<\/p>\n
     From 1985,\t we proceed to the next decision rendered in
\n1991 by\t the House  of Lords  in. R.  v. Secretary  for Home
\nDept. Ex.p.  Brind [1991  (1) AC 6961.\tThat decision stated
\nthat even  by 1991.   proportionality  had not\tstill become
\npart of the Administrative law in England.  This was because
\nthe European  Convention of  Human  Rights  and\t Fundamental
\nFreedoms had  not been\texpressly incorporated\tinto English
\nlaw as\tyet (See  Lord Bridge (p.748); Lord Roskill (p.750);
\nLord Templeman\t(p.751) and  Lord Ackner  (p.763).    It  is
\nsufficient to refer to what Lord Ackner stated:\n<\/p>\n
     “Unless   and    until   Parliament
\n     incorporates  the\tConvention  into
\n     democratic law,  a course\twhich it
\n     is well  known has a strong body of
\n     support, there  appears to me to be
\n     at\t present  no  basis  upon  which
\n     proportionality doctrine applied by
\n     the European Courts can be followed
\n     by the Courts in the Country”.\n<\/p>\n
     Two decisions  of this  Court referred  to Brind (1991)
\nand appear  to us  to have  struck a slightly different note
\nthan the  one stated  in Ranjit\t Thakur\t in  regard  to\t the
\nquestion   whether    proportionality\tis   part   of\t our
\nadministrative law.\n<\/p>\n
     In Tata Cellular vs. union of India [1994 (6) SCC 651].
\nIt was\tobserved by this Court after referring to Brind that
\nthe  principles\t  available  in\t  administrative  law\twere
\nbasically     illegality,      irrationality\t (Wednesbury
\nunreasonableness) and  procedural impropriety.\t However, it
\nwas possible  that more grounds could be added in future,  –
\nlike proportionality.  This Court observed (p.677-678):\n<\/p>\n
     “those are\t only the  broad grounds
\n     but it  does not  rule out addition
\n     of\t future\t grounds  in  course  of
\n     time.   As a  matter of fact, in R.
\n     vs. Secretary of State for the Home
\n     dept.  Ex.p.  Bring,  Lord\t Diplock
\n     refers to\tone development, namely,
\n     the  possible  recognition\t of  the
\n     principle of proportionality”<\/p><\/blockquote>\n
     Then in  1996 came\t the decision  in State of  A.P. vs.
\nmcDowell &  Co. [1996  (3) SCC\t709] where  the Court  after
\nreferring to  Brind and\t the speeches  of  Lords  Lowry\t and
\nAckner, observed  that the applicability of the principle of
\n‘proportionality’ in administrative law is still ‘debatable’
\nand has\t not yet  been ‘fully  and finally  settled’.\tThis
\nCourt observed\tthat there were only three grounds as stated
\nin CCSU:\n<\/p>\n
     “…In this  connection, it  should
\n     be remembered that even in the case
\n     of administrative action, the scope
\n     of judicial  review is  limited  to
\n     three     grounds\t    viz\t     (i)
\n     unreasonableness, which can be more
\n     accurately\t called\t  irrationality,\n<\/p><\/blockquote>\n
     (ii)    illegality\t    and\t   (iii)
\n     procedural impropriety (see Council
\n     of Civil Service union vs. Minister
\n     of Civil  Service,\t which\tdecision
\n     has been  accepted by this Court as
\n     well).”<\/p><\/blockquote>\n
     Adverting to  proportionality it  was observed that the
\napplicability thereof in administrative law is debatable and
\nnot dully  and finally\tsettled in administrative law.\tThis
\nCourt observed:\n<\/p>\n
     “The applicability\t of doctrine  of
\n     proportionality\t   even\t      in
\n     administrative law\t sphere is yet a
\n     debatable issue,  (See the\t opinion
\n     of Lords  Lowry and Ackner in R vs.
\n     Secretary of  State for  Home Dept.
\n     Ex p.  Brind AC  p.766-67 and 762).<\/p><\/blockquote>\n
     It\t would\t be  rather  odd  if  an
\n     enactment were to be struck down by
\n     applying the  said\t principle  when
\n     its    applicability     even    in
\n     administrative law\t sphere\t is  not
\n     fully and finally settled”<\/p><\/blockquote>\n
     From Tata Cellular and McDowell it is fairly clear that
\na view\thas been  expressed – somewhat different from Ranjit
\nThakur –  that it is still debatable whether proportionality
\nis part\t of our\t administrative\t law.\t The  scope  of\t its
\napplicability in the context of fundamental freedoms was not
\ndiscussed or gone into.\n<\/p>\n
     Statute law in India: proportionality applies;
\n     Mcdowell however  makes it\t clear that  so far  as\t the
\nvalidity of  a statute\tis concerned, the same can be judged
\nby applying the principle of proportionality for finding our
\nwhether\t the   restrictions  imposed   by  the\tstatute\t are
\npermissible  and   within  the\t bounds\t prescribed  by\t our
\nConstitution.\t McDowell  referred  to\t this  exception  as
\nfollows;\n<\/p>\n
     “It is  one thing\tto  say\t that  a
\n     restriction    imposed    upon    a
\n     fundamental  right\t can  be  struck
\n     down  if  it  is  disproportionate,
\n     excessive or unreasonable and quite
\n     another thing to say that the Court
\n     can strike\t down  enactment  if  it
\n     thinks it unreasonable, unnecessary
\n     or unwarranted.’
\n     That a  statute can  be struck down if the restrictions
\nimposed by  it\tare  disproportionate  or  excessive  having
\nregard to  the purpose of the statute and that the Court can
\ngo into\t the question whether there is a proper balancing of
\nthe fundamental\t right and  the restriction imposed, is well
\nsettled.   (See Chintaman  vs. State of M.P. [1950 SCR 759];\n<\/p><\/blockquote>\n
State of  Madras vs.  V.G.Row<\/a> [1952  SCR 597]; India Express
\nNewspapers vs.\tUnion of India<\/a> [1985 (1) SCC 641 & 691) etc.
\n(The principle\tof ‘proportionality’ is applied in Australia
\nand Canada also, to test the validity of statutes).\n<\/p>\n
     Of course, as already stated, the Court in McDowell had
\nno occasion  to consider  whether the existence of a written
\nConstitution with a chapter on Fundamental freedoms made any
\ndifference between  the English\t administrative law  and our
\nadministrative\tlaw.\tWe  have  already  referred  to\t the
\nobservation in\tBrind, particularly  those of Lord Ackner, s
\nto  why\t  ‘proportionality’  has  not  become  part  of\t the
\nadministrative law  in England,\t namely, the  absence of the
\nincorporation of the European Human Rights Convention.\n<\/p>\n
     With  proportionality,   Court  is\t  primary  judge  of
\nadministrative\taction\t –  Without   it,  Court’s  role  is
\nsecondary: Brind and Smith;\n<\/p>\n
     This, in our view, is the most important aspect.  it is
\nhere that Brind (1991) explains the different
\n     (2)     Cunliffe\t   vs.\t   Commonwealth\t     [(1994)\n<\/p>\n
68.Aust.L.J.791](at  827,   839)  (also\t  799.\t 810,\t821)
\nAustralian  Capital   Tel.Co,  vs.   Commonwealth  [1992  CL
\np.106(at 157)(Aus.)
\nR.Vs.Big  M   Drug  Mart   Ltd.\t [1985\t(1)  SCR  295  (can)
\nconsequences of\t the application of ‘proportionality’ on the
\none hand  and Wednesbury  and CCSU tests on the other.\tThis
\nvital difference  was further  explained in clearer language
\nby the Court of Appeal in 1996.\n<\/p>\n
     As stated\tin Brind  and as  set out  earlier,  if\t the
\nEuropean Human\tRights Convention  (which, as stated earlier
\ncontains several  provisions similar  to  part\tIII  of\t our
\nConstitution) was  incorporated, then  the Courts in England
\nwould be  able to  apply the  principle of ‘proportionality,
\nBrind points  out that\tin that event, the Courts in England
\nwould (like the Human Rights Court at Strasbourg) become the
\nprimary judges\tof the\tvalidity of administrative action or
\nof discretionary powers exercised under statute.  If, on the
\nother hand, the Human Rights Convention was not incorporated
\nand the\t principle of  proportionality\twas  not  available.
\nEnglish Courts would be left with Wednesbury and CCSU tests.
\nThen the  Court’s role\twould only  be a secondary one while
\nthe primary  role would remain with the administrator.\tWhat
\ndid this  mean?\t  It meant  that in  its secondary role, the
\nEnglish Courts would only consider whether the administrator
\nhad reasonably\tcome to his primary decision on the material
\nbefore him.    This  distinction  between  the\tprimary\t and
\nsecondary roles\t was  explained\t by  Lord  Bridge  in  Brind
\n(p.749) as follows:\n<\/p>\n
     “The primary judgment as to whether
\n     the  particular   competing  public
\n     interest justifies\t the  particular
\n     restriction  imposed  falls  to  be
\n     made by  the Secretary  of State to
\n     whom Parliament  has entrusted  the
\n     discretion.  But we are entitled to
\n     exercise a\t secondary  judgment  by
\n     asking    wether\t a    reasonable
\n     secretary of State, on the material
\n     before him,  could reasonably  make
\n     the primary judgment.<\/p><\/blockquote>\n
     In a  recent case\t1996, in  R vs. Ministry of Defence,
\nex.p. Smith  [1996 (1)\tAllE.R.257] in\tthe Court of Appeal,
\nLord Bingham  M.R. explained (p.264-265) the position of the
\nCourt  in   the\t  absence   of\t the   Convention   and\t  of
\nproportionality, as follows:-\n<\/p>\n
     “The  appellant’s\tright  as  human
\n     beings is\tvery much  in issue.  It
\n     is now  accepted that this issue is
\n     justiciable.    This  does\t not  of
\n     course  mean   that  the  Court  is
\n     thrust into  the  position\t of  the
\n     primary decision maker.’
\n     Focusing on this point more clearly, Henry L.J. (p.272)
\nexplained in the same case as follows;\n<\/p><\/blockquote>\n
     “If the convention were part of our
\n     law, then\tas Simon Brown L.J. said
\n     in\t the   Divisional   Court,   the
\n     primary  judgment\t on  this  issue
\n     would  be\tfor  the  judges,    But
\n     parliament has  not  given\t us  the
\n     primary jurisdiction on this issue.<\/p><\/blockquote>\n<\/blockquote>\n
     Our present constitutional role was
\n     correctly identified by Simon Brown
\n     L.j. as  exercising a  secondary or
\n     reviewing judgment,  as it\t is,  in
\n     relation  to  the\tConvention,  the
\n     only  primary  judicial  role  lies
\n     with the  European Court  of  Human
\n     Rights at Strasbourg.’
\n     The Court\tof Appeal  agreed with\tthe observations  of
\nSimon Brown, L.J. in the Divisional Court.<\/p><\/blockquote>\n
     We are of the view that even in our country, – in cases
\nnot involving  fundamental  freedoms,  –  the  role  of\t our
\nCourts\/Tribunals in  administrative law\t is purely Secondary
\nand while  applying Wednesbury\tand CCSU  principles to test
\nthe validity  of executive  action or  administrative action
\ntaken in  exercise  of\tstatutory  powers,  the\t Courts\t and
\nTribunals in  our country  can only go into the matter, as a
\nsecondary reviewing  Court to  find out\t if the executive of
\nthe administrator  in their  primary roles have arrived at a
\nreasonable decision on the material before them in the light
\nof Wednesbury  and CCSU\t tests.\t  The choice  of the options
\navailable is  for the  authority the  Court\/Tribunal  cannot
\nsubstitute its view as to what is reasonable.\n<\/p>\n
     Fundamental rights\t – Proportionality  – administrative
\nlaw – question left open.\n<\/p>\n
     The question  arises whether  our Courts  while dealing
\nwith  executive\t  or  administrative  action  or  discretion
\nexercised under\t statutory powers where fundamental freedoms
\nare involved  could apply  ‘proportionality’ and  take up  a
\nprimary role.\tIn  England it\thas been  accepted that\t the
\nEnglish\t Court\t could\tapply\t‘proportionality’   if\t the
\nConvention were\t incorporated into English law.\t But, so for
\nas our Courts are concerned, we do not propose to decide the
\nquestion in the present case inasmuch as it is not contended
\nbefore us  that any fundamental freedom is affected.  As and
\nwhen an\t executive act\tor administrative  action  taken  in
\nexcess of statutory powers, is alleged to offend fundamental
\nfreedoms, it  will then\t be for this Court to decide whether
\nthe principle  of proporionality  applies in  administrative
\nlaw sphere  in our  country and whether the Courts will take
\nup a  primary role.    Whether\tthe  primary  role  will  be
\nconfined to  Article 19.21  etc. and  not to Article 14 will
\nalso have to be decided.\n<\/p>\n
     Before parting  with this\taspect, we may state that in
\nEngland in R vs. Secretary of State Exp. Bugdaycay [1987 (1)
\nAC 514]\t and in\t Brind as  well as  Smith it  has  been,  of
\ncourse, laid  down that at the moment, in the absence of the
\nconvention and proportionality, English Courts will apply a
\n‘strict scrutiny’  test to  the administrative action rather
\nthan the  Wednesbury and  CCSU tests,  whenever liberty\t and
\nfreedom of  expression etc,  which are\ttreated as  part  of
\nCommon Law  are involved.  The Courts would consider whether
\nthe restrictions  imposed by the administrator are necessary
\nfor protecting some ‘competing public interest’.  This would
\nno doubt amount to lowering the ‘threshold of Wednesbury’.\n<\/p>\n
     Margin of appreciation and judicial restraint;
\n     We may also state that even if the Courts in England by
\nvirtue of  incorporation of the Convention should become the
\nprimary Judges\tof the validity of administrative decisions,
\nstill  they  would  exercise  great  judicial  restraint  in
\nmatters concerning governmental policies, national security,
\nor taxation,  finance and economy of the country and similar
\nsuch matters  of grave public policy.  This restraint on the
\npart of\t the judiciary is described in administrative law as
\ngiving a greater margin of appreciation to the administrator
\nin certain  areas.   See Brind,\t (lord\tTempleman,  (p.751),
\nAckner (p.762)\tand Lord  Lowry (p.766).  Similar principles
\nhave been laid down by this court while testing the validity
\nof legislative measures in the context of Art, 19(2) to (6).
\nThe  Courts   would  give   a  ‘reasonable  margin’  to\t the
\nlegislature (Manoharlal\t vs. State  of Punjab  [1961 (2) SCR
\n343]} in several situations.\n<\/p>\n
     Summing up:\n<\/p>\n
     The   current    position\t of    proportionality\t  in
\nadministrative law in England and India can be summarised as
\nfollows;-\n<\/p>\n
(1)  To judge  the validity  of any  administrative order or
\nstatutory discretion,  normally the Wednesbury test is to be
\napplied to  find out if the decision was illegal or suffered
\nfrom procedural\t improprieties or  was one which no sensible
\ndecision-maker could,  on the material before him and within
\nthe framework  of the law, have arrived at.  The Court would
\nconsider whether  relevant matters  had not  been taken into
\naccount or  whether irrelevant\tmatters had  been taken into
\naccount or  whether the\t action was not bonafide.  The Court
\nwould also  consider whether  the  decision  was  absurd  or
\nperverse.     The  Court  would\t not  however  go  into\t the
\ncorrectness of\tthe choice made by the administrator amongst
\nthe various  alternatives open\tto him.\t Nor could the Court
\nsubstitute its\tdecision to that of the administrator.\tThis
\nis the Wednesbury test.\n<\/p>\n
(2)  The Court\twould not interfere with the administrator’s
\ndecision unless\t it was\t illegal or suffered from procedural
\nimpropriety or\twas irrational\tin the\tsense that it was in
\noutrageous defiance  of\t logic\tor  moral  standards.\t The
\npossibility of\tother tests, including proportionality being
\nbrought into  English Administrative  Law in  future is\t nor
\nruled out.  These are the CCSU principles.
\n(3)(a)\t  As per  Bugdaycay, Brind and Smith, as long as the
\nConvention is not incorporated into English Law, the English
\nCourts merely  exercise a  secondary judgment to find out if
\nthe decision  maker could  have, on the material before him,
\narrived at the primary judgment in the manner he had done.
\n(3)(b)\t  If  the  Convention  is  incorporated\t in  England
\nmaking available  the principle of proportionality, then the
\nEnglish Courts\twill render primary judgment on the validity
\nof the administrative action and find out if the restriction
\nis disproportionate or excessive or is not based upon a fair
\nbalancing of  the fundamental  freedom and  the need for the
\nrestriction thereupon.\n<\/p>\n
(4)(a)\t  The position\tin our\tcountry,  in  administrative
\nlaw,  where   no  fundamental\tfreedoms  as  aforesaid\t are
\ninvolved, is  that the\tCourts\/Tribunals will  only  play  a
\nsecondary  role\t  while\t  the\tprimary\t  judgment   as\t  to
\nreasonableness\t will\tremain\t with\tthe   executive\t  or
\nadministrative authority.   The\t secondary judgment  of\t the
\nCourt is  to be\t based on  Wednesbury and CCSU principles as
\nstated by  Lord Greene and Lord Diplock respectively to find
\nif the\texecutive or administrative authority has reasonably
\narrived at his decision as the primary authority.
\n(4)(b)\t  Whether in the case of administrative or executive
\naction affecting  fundamental freedoms,\t the Courts  in\t our
\ncountry will  apply the\t principle of  ‘proportionality’ and
\nassume a  primary role,\t is left  open, to  be decided in an
\nappropriate case  where such  action is\t alleged  to  offend
\nfundamental freedoms.\tIt  will be then necessary to decide
\nwhether the  Courts will  have a  primary role\tonly if\t the
\nfreedoms under\tArticle 19,  21 etc. are involve and not for
\nArticle 14.\n<\/p>\n
     Punishment in  disciplinary matters:  Wednesbury & CCSU
\ntests:\n<\/p>\n
     Finally, we  come to  the present\tcase.\t It  is\t not
\ncontended  before   us\tthat   any  fundamental\t freedom  is
\naffected.   We need  not therefore  go into  the question of
\n‘proportionality’.     There  is   no  contention  that\t the
\npunishment imposed  is illegal\tor  vitiated  by  procedural
\nimpropriety.   As to ‘irrationality’, there is no finding by
\nthe Tribunal  that the\tdecision is  one which\tno  sensible
\nperson who  weighed the\t pros and cons could have arrived at
\nnor  is\t there\ta  finding,  based  on\tmaterial,  that\t the
\npunishment is  in ‘outrageous’\tdefiance of  logic.  Neither
\nWednesbury nor\tCCSU tests  are satisfied.  We have still to
\nexplain ‘Ranjit Thakur’.\n<\/p>\n
     In\t Ranjit\t Thakur,  this\tCourt  interfered  with\t the
\npunishment only\t after coming  to  he  conclusion  that\t the
\npunishment was\tin outrageous  defiance\t of  logic  and\t was
\nshocking.  It was also described as perverse and irrational.
\nIn other  words, this  Court felt that, on facts, Wednesbury
\nand CCSU  tests were  satisfied.   In another  case, in B.C.
\nChaturvedi vs.\tUnion of  India<\/a> [1995  (6) SCC 749], a three
\nJudge Bench said the same thing as follows;\n<\/p>\n
     “The  High\t  Court\/Tribunal,  while
\n     exercising the  power  of\tjudicial
\n     review, cannot  normally substitute
\n     its own  conclusions on penalty and
\n     impose some  other penalty.  If the
\n     punishment\t   imposed     by    the
\n     disciplinary   authority\tor   the
\n     appellate\tauthority   shocks   the
\n     conscience\t    of\t    the\t    High
\n     Court\/Tribunal\t  it\t   would
\n     appropriately  would   the\t relief,
\n     either\tby     directing     the
\n     disciplinary    authority\/appellate
\n     authority to reconsider the penalty
\n     imposed,\tor    to   shorten   the
\n     litigation,  it   ma   itself,   in
\n     exceptional and  rare case,  impose
\n     appropriate punishment  with cogent
\n     reasons in support thereof”<\/p><\/blockquote>\n
     Similar view  was taken  in India\tOil Corporation\t vs.
\nAshok Kumar Arora<\/a> [1997 (3) SCC 72], that the Court will not
\nintervene unless the punishment is wholly disproportionate.\n<\/p>\n
     In such  a situation,  unless the Court\/Tribunal opines
\nin its\tsecondary role,\t that the  administrator was, on the
\nmaterial before\t him, irrational  according to Wednesbury or
\nCCSU norms, the punishment cannot be quashed.  Even then the
\nmatter has  to be remitted back to the appropriate authority
\nfor reconsideration.   It  is only  in very  rare  cases  as
\npointed out in B.C.Chaturvedi’s case that the Court might, –
\nto shorten  litigation –  think of substituting its own view
\nas to  the  quantum  of\t punishment  in\t the  place  of\t the
\npunishment  awarded   by  the\tcompetent  authority.\t (In
\nB.C.Chaturvedi and  other cases\t referred to  therein it has
\nhowever been  made clear  that the power of this Court under
\nArticle 136  is different). For the reasons given above, the
\ncase cited  for the respondent, namely, State of Maharashtra
\nvs. M.H.Mazumdar<\/a> cannot be of any help.\n<\/p>\n
     For the  aforesaid reasons,  we set  aside the order of
\nthe Tribunal  which  has  interfered  with  the\t quantum  of
\npunishment and\twhich has  also substituted  its own view of
\nthe punishment.\t  The punishment awarded by the departmental
\nauthorities is\trestored.   In the circumstances, there will
\nbe no order as to costs.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Union Of India & Another vs G. Ganayutham on 27 August, 1997 Author: M J Rao Bench: Sujata V. Manohar, M. Jagannadha Rao 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 […]<\/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-76620","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nUnion Of India & Another vs G. 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