RK Mittal v. Union of India

160-61, para 22) “22. In view of the aforementioned decisions of this Court, it is now well settled that the principles of natural justice were required to be complied with by the disciplinary authority. He was also required to apply his mind to the materials on record. The enquiry officer arrived at findings which were in favour of the appellant. Such findings were required (sic sought) to be overturned by the disciplinary authority. It is in that view of the matter, the power sought to be exercised by the disciplinary authority, although not as that of an appellate authority, but is akin thereto. The inquiry report was in favour of the appellant but the disciplinary authority proposed to differ with such conclusions and, thus, apart from complying with the principles of natural justice it was obligatory on his part, in the absence of any show cause filed by the appellant, to analyse the materials on record afresh. It was all the more necessary because even CBI, after a thorough investigation in the matter, did not find any case against the appellant and thus, filed a closure report. It is, therefore, not a case where the appellant was exonerated by a criminal court after a full-fledged trial by giving benefit of doubt. It was also not a case where the appellant could be held guilty in the disciplinary proceedings applying the standard of proof as preponderance of the probability as contrasted with the standard of proof in a criminal trial i.e. proof beyond all reasonable doubt. When a final form was filed in favour of the appellant, CBI even did not find a prima facie case against him. The disciplinary authority in the aforementioned peculiar situation was obligated to apply its mind on the materials brought on record by the parties in the light of the findings arrived at by the inquiry officer. It should not have relied only on the reasons disclosed by him in his show-cause notice which, it will bear repetition to state, was only tentative in nature. As the appellate authority in arriving at its finding, laid emphasis on the fact that the appellant has not filed any objection to the show-cause notice; ordinarily, this Court would not have exercised its power of judicial review in such a matter, but the case in hand appears to be an exceptional one as the appellant was exonerated by the inquiry officer. He filed a show cause but, albeit after some time the said cause was available with the disciplinary authority before he issued the order of dismissal. Even if he had prepared the order of dismissal, he could have considered the show cause as he did not leave his office by then. The expression ‘communication’ in respect of an order of dismissal or removal from service would mean that the same is served upon the delinquent officer. (See State of Punjab v. Amar Singh Harika [AIR 1966 SC 1313].)”

44. From the aforesaid decisions, it is clear that though supply of report of the inquiry officer is part and parcel of natural justice and must be furnished to the delinquent employee, failure to do so would not automatically result in quashing or setting aside of the order or the order being declared null and void. For that, the delinquent employee has to show “prejudice”. Unless he is able to show that non-supply of report of the inquiry officer has resulted in prejudice or miscarriage of justice, an order of punishment cannot be held to be vitiated. And whether prejudice had been caused to the delinquent employee depends upon the facts and circumstances of each case and no rule of universal application can be laid down.”

11. Recently, a Division Bench of this Court in B. Vasudeva Rao v. Union of India and Another, 2022 SCC OnLine Del 3808, relying on the judgment of the Supreme Court in B. Karunakar (supra) interfered in the order of punishment and remanded the matter back to the Appellate Authority to consider whether non-supply of inquiry report had caused prejudice to the Petitioner and pass a reasoned order with an observation that Petitioner had specifically pleaded that non-supply of the report had prejudiced his case on various grounds such as non-production of vital witness, non-adherence to procedures etc. and the Appellate Authority ought to have given reasons on the issue.

12. In the present case, Petitioner has urged by way of illustration that the IO has wrongly established Article-I of the charge memo that Petitioner had deviated from the procedure of furnishing the account details of the claimants/beneficiaries inasmuch as in all RCTs, the claimant is required to give legal heir/dependency certificate along with the claim petition and the compensation awarded is divided amongst all dependents as defined in Section 123 of the Indian Railways Act, 1989. Only the details of one claimant were given and neither the other beneficiaries of the deceased in a given case were impleaded nor any of their identity proofs or bank account details were furnished. Several other such issues have been highlighted in the petition which according to the Petitioner would have manifestly shown to the DA, if pointed out by the Petitioner that he was not guilty of the allegations levelled against him. But this important opportunity which is embedded in the principles of natural justice has been taken away from the Petitioner as he did not have the benefit of the inquiry report prior to the penalty order. This Court agrees with the contention that Petitioner has been prejudiced due to non-supply of the inquiry report for reasons spelt out in the writ petition and this issue does go to the root of the matter. Indisputably, the report was for the first time given to the Petitioner as an enclosure to the penalty order and in light of the prejudice prima facie shown by the Petitioner, the matter deserves to be remanded back to the DA for a reconsideration.

13. There is also merit in the contention that penalty order passed by the DA is a non-speaking order. A plain reading of the impugned order dated 11.07.2019 shows that the DA has merely referred to Section 8(2) of the 1987 Act, order of appointment of the IO, date of the inquiry report, Articles of Charge and simply come to a conclusion that the charges of misbehaviour established against the Petitioner are serious enough to warrant his removal from the office of Judicial Member in RCT. There is not an iota of reasoning in the entire order. The Supreme Court in S.N. Mukherjee v. Union of India, (1990) 4 SCC 594 emphasised on the importance of passing a reasoned order and I quote:

authority serves a salutary purpose, namely, it excludes chances of arbitrariness and ensures a degree of fairness in the process of decisionmaking. The said purpose would apply equally to all decisions and its application cannot be confined to decisions which are subject to appeal, revision or judicial review. In our opinion, therefore, the requirement that reasons be recorded should govern the decisions of an administrative authority exercising quasi-judicial functions irrespective of the fact whether the decision is subject to appeal, revision or judicial review. It may, however, be added that it is not required that the reasons should be as elaborate as in the decision of a court of law. The extent and nature of the reasons would depend on particular facts and circumstances. What is necessary is that the reasons are clear and explicit so as to indicate that the authority has given due consideration to the points in controversy. The need for recording of reasons is greater in a case where the order is passed at the original stage. The appellate or revisional authority, if it affirms such an order, need not give separate reasons if the appellate or revisional authority agrees with the reasons contained in the order under challenge.

37. Having considered the rationale for the requirement to record the reasons for the decision of an administrative authority exercising quasijudicial functions we may now examine the legal basis for imposing this obligation. While considering this aspect the Donoughmore Committee observed that it may well be argued that there is a third principle of natural justice, namely, that a party is entitled to know the reason for the decision, be it judicial or quasi-judicial. The Committee expressed the opinion that “there are some cases where the refusal to give grounds for a decision may be plainly unfair; and this may be so, even when the decision is final and no further proceedings are open to the disappointed party by way of appeal or otherwise” and that “where further proceedings are open to a disappointed party, it is contrary to natural justice that the silence of the Minister or the Ministerial Tribunal should deprive them of the opportunity”. (p. 80) Prof. H.W.R. Wade has also expressed the view that “natural justice may provide the best rubric for it, since the giving of reasons is required by the ordinary man's sense of justice”. (See Wade, Administrative Law, 6th edn. p. 548.) In Siemens Engineering Co. case [(1976) 2 SCC 981: 1976 Supp SCR 489] this Court has taken the same view when it observed that “the rule requiring reasons to be given in support of an order is, like the principles of audi alteram partem, a basic principle of natural justice which must inform every quasi-judicial process”. This decision proceeds on the basis that the two well known principles of natural justice, namely (i) that no man should be a judge in his own cause, and (ii) that no person should be judged without a hearing, are not exhaustive and that in addition to these two principles there may be rules which seek to ensure fairness in the process of decision-making and can be regarded as part of the principles of natural justice. This view is in consonance with the law laid down by this Court in A.K. Kraipak v. Union of India [(1969) 2 SCC 262: (1970) 1 SCR 457] wherein it has been held: (SCR pp. 468-69: SCC p. 272, para 20) “The concept of natural justice has undergone a great deal of change in recent years. In the past it was thought that it included just two rules namely: (i) no one shall be a judge in his own cause (nemo debet esse judex propria causa), and (ii) no decision shall be given against a party without affording him a reasonable hearing (audi alteram partem). Very soon thereafter a third rule was envisaged and that is that quasi-judicial enquiries must he held in good faith, without bias and not arbitrarily or unreasonably. But in the course of years many more subsidiary rules came to be added to the rules of natural justice.”

38. A similar trend is discernible in the decisions of English courts wherein it has been held that natural justice demands that the decision should be based on some evidence of probative value. (See: R. v. Deputy Industrial Injuries Commissioner ex p. Moore [(1965) 1 QB 456: (1965) 1 All ER 81]; Mahon v. Air New Zealand Ltd. [1984 AC 648: (1984) 3 All ER 201] )

39. The object underlying the rules of natural justice “is to prevent miscarriage of justice” and secure “fair play in action”. As pointed out earlier the requirement about recording of reasons for its decision by an administrative authority exercising quasi-judicial functions achieves this object by excluding chances of arbitrariness and ensuring a degree of fairness in the process of decision-making. Keeping in view the expanding horizon of the principles of natural justice, we are of the opinion, that the requirement to record reason can be regarded as one of the principles of natural justice which govern exercise of power by administrative authorities. The rules of natural justice are not embodied rules. The extent of their application depends upon the particular statutory framework whereunder jurisdiction has been conferred on the administrative authority. With regard to the exercise of a particular power by an administrative authority including exercise of judicial or quasi-judicial functions the legislature, while conferring the said power, may feel that it would not be in the larger public interest that the reasons for the order passed by the administrative authority be recorded in the order and be communicated to the aggrieved party and it may dispense with such a requirement. It may do so by making an express provision to that effect as those contained in the Administrative Procedure Act, 1946 of U.S.A. and the Administrative Decisions (Judicial Review) Act, 1977 of Australia whereby the orders passed by certain specified authorities are excluded from the ambit of the enactment. Such an exclusion can also arise by necessary implication from the nature of the subject matter, the scheme and the provisions of the enactment. The public interest underly-ing such a provision would outweigh the salutary purpose served by the requirement to record the reasons. The said requirement cannot, therefore, be insisted upon in such a case.

40. For the reasons aforesaid, it must be concluded that except in cases where the requirement has been dispensed with expressly or by necessary implication, an administrative authority exercising judicial or quasijudicial functions is required to record the reasons for its decision.”

14. Doctrine of proportionality is a recognised doctrine in service jurisprudence and in this context, I may allude to the judgment of the Supreme Court in Chairman-Cum-Managing Director, Coal India Limited and Another v. Mukul Kumar Choudhuri and Others, (2009) 15 SCC 620, where the Supreme Court held that one of the tests while dealing with question of quantum of punishment is whether any reasonable employer would have imposed such punishment in like circumstances taking into consideration the measure, magnitude and degree of misconduct as well as all other circumstances. Relevant paragraphs are as follows:-

intention nor desired to disobey the order of higher authority or violate any of the Company's rules and regulations but the reason was purely personal and beyond his control and, as a matter of fact, he sent his resignation which was not accepted, the order of removal cannot be held to be justified, since in our judgment, no reasonable employer would have imposed extreme punishment of removal in like circumstances. The punishment is not only unduly harsh but grossly in excess to the allegations.”

15. In Union of India and Another v. G. Ganayutham, (1997) 7 SCC 463, the Supreme Court elaborately considered the doctrine of proportionality both under the Administrative Law in England and in India and summed up the position of law as follows:-

Drug Mart Ltd., (1985) 1 SCR 295 (Can)] 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 has done. (3)(b) If the Convention is incorporated in England making available the principle of proportionality, then the English courts will render primary judgment on the validity of the administrative action and find out if the restriction is disproportionate or excessive or is not based upon a fair balancing of the fundamental freedom and the need for the restriction thereupon. (4)(a) The position in our country, in administrative law, where no fundamental freedoms as aforesaid are involved, is that the courts/tribunals will only play a secondary role while the primary judgment as to reasonableness will remain with the executive or administrative authority. The secondary judgment of the court is to be based on Wednesbury and CCSU principles as stated by Lord Greene and Lord Diplock respectively to find if the executive or administrative authority has reasonably arrived at his decision as the primary authority. (4)(b) Whether in the case of administrative or executive action affecting fundamental freedoms, the courts in our country will apply the principle of “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 Articles 19, 21 etc. are involved and not for Article

14. Punishment in disciplinary matters: Wednesbury and CCSU tests

32. 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 [(1987) 4 SCC 611:

33. In Ranjit Thakur [(1987) 4 SCC 611: 1987 SCC (L&S) 1: (1987) 5 ATC 113] this Court interfered with the punishment only after coming to the 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 v. Union of India [(1995) 6 SCC 749: 1996 SCC (L&S) 80: (1996) 32 ATC 44] a three-Judge Bench said the same thing as follows: (SCC p. 762, para 18)

Similar view was taken in Indian Oil Corpn. Ltd. v. Ashok Kumar Arora [(1997) 3 SCC 72: 1997 SCC (L&S) 636] that the Court will not intervene unless the punishment is wholly disproportionate.

34. 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 [(1948) 1 KB 223: (1947) 2 All ER 680] or CCSU [1985 AC 374: (1984) 3 All ER 935] 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 case [AIR 1961 SC 418: (1961) 2 SCR 343] 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 [AIR 1961 SC 418: (1961) 2 SCR 343] 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 v. M.H. Mazumdar [(1988) 2 SCC 52: 1988 SCC (L&S) 436: (1988) 6 ATC 876] cannot be of any help.”

16. In Coimbatore District Central Cooperative Bank v. Coimbatore District Central Cooperative Bank Employees Assn. and Another, (2007) 4 SCC 669, the Supreme Court held as under:- “Doctrine of proportionality

17. So far as the doctrine of proportionality is concerned, there is no gainsaying that the said doctrine has not only arrived in our legal system but has come to stay. With the rapid growth of administrative law and the need and necessity to control possible abuse of discretionary powers by various administrative authorities, certain principles have been evolved by courts. If an action taken by any authority is contrary to law, improper, irrational or otherwise unreasonable, a court of law can interfere with such action by exercising power of judicial review. One of such modes of exercising power, known to law is the “doctrine of proportionality”.

18. “Proportionality” is a principle where the court is concerned with the process, method or manner in which the decision-maker has ordered his priorities, reached a conclusion or arrived at a decision. The very essence of decision-making consists in the attribution of relative importance to the factors and considerations in the case. The doctrine of proportionality thus steps in focus true nature of exercise—the elaboration of a rule of permissible priorities.

19. de Smith states that “proportionality” involves “balancing test” and “necessity test”. Whereas the former (balancing test) permits scrutiny of excessive onerous penalties or infringement of rights or interests and a manifest imbalance of relevant considerations, the latter (necessity test) requires infringement of human rights to the least restrictive alternative. [Judicial Review of Administrative Action (1995), pp. 601-05, para 13.085; see also Wade & Forsyth: Administrative Law (2005), p. 366.]

20. In Halsbury's Laws of England (4th Edn.), Reissue, Vol. 1(1), pp. 144-45, para 78, it is stated: “The court will quash exercise of discretionary powers in which there is no reasonable relationship between the objective which is sought to be achieved and the means used to that end, or where punishments imposed by administrative bodies or inferior courts are wholly out of proportion to the relevant misconduct. The principle of proportionality is well established in European law, and will be applied by English courts where European law is enforceable in the domestic courts. The principle of proportionality is still at a stage of development in English law; lack of proportionality is not usually treated as a separate ground for review in English law, but is regarded as one indication of manifest unreasonableness.”

21. The doctrine has its genesis in the field of administrative law. The Government and its departments, in administering the affairs of the country, are expected to honour their statements of policy or intention and treat the citizens with full personal consideration without abuse of discretion. There can be no “pick and choose”, selective applicability of the government norms or unfairness, arbitrariness or unreasonableness. It is not permissible to use a “sledgehammer to crack a nut”. As has been said many a time; “where paring knife suffices, battle axe is precluded”.

22. In the celebrated decision of Council of Civil Service Union v. Minister for Civil Service [1985 AC 374: (1984) 3 WLR 1174: (1984) 3 All ER 935 (HL)] Lord Diplock proclaimed: (All ER p. 950h-j) “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 on which administrative action is subject to control by judicial review. The first ground I would call ‘illegality’, the second ‘irrationality’ and the third ‘procedural impropriety’. That is not to say that further development on a case-by-case basis may not in course of time add further grounds. I have in mind particularly the possible adoption in the future of the principle of ‘proportionality’….” (emphasis supplied)

23. CCSU [1985 AC 374: (1984) 3 WLR 1174: (1984) 3 All ER 935 (HL)] has been reiterated by English courts in several subsequent cases. We do not think it necessary to refer to all those cases.

24. So far as our legal system is concerned, the doctrine is well settled. Even prior to CCSU [1985 AC 374: (1984) 3 WLR 1174: (1984) 3 All ER 935 (HL)], this Court has held that if punishment imposed on an employee by an employer is grossly excessive, disproportionately high or unduly harsh, it cannot claim immunity from judicial scrutiny, and it is always open to a court to interfere with such penalty in appropriate cases.

25. In Hind Construction & Engg. Co. Ltd. v. Workmen [AIR 1965 SC 917: (1965) 2 SCR 85], some workers remained absent from duty treating a particular day as holiday. They were dismissed from service. The Industrial Tribunal set aside the action. This Court held that the absence could have been treated as leave without pay. The workmen might have been warned and fined. (But) “It is impossible to think that any other reasonable employer would have imposed the extreme punishment of dismissal on its entire permanent staff in this manner.” (AIR p. 919, para 7) The Court concluded that the punishment imposed on the workmen was “not only severe and out of proportion to the fault, but one which, in our judgment, no reasonable employer would have imposed”. (AIR pp. 919-20, para 7)

26. In Federation of Indian Chambers of Commerce and Industry v. Workmen [(1972) 1 SCC 40: AIR 1972 SC 763], the allegation against the employee of the Federation was that he issued legal notices to the Federation and to the International Chamber of Commerce which brought discredit to the Federation—the employer. Domestic inquiry was held against the employee and his services were terminated. The punishment was held to be disproportionate to the misconduct alleged and established. This Court observed that: (SCC p. 62, para 34) “[T]he Federation had made a mountain out of a mole hill and made a trivial matter into one involving loss of its prestige and reputation.”

27. In Ranjit Thakur [(1987) 4 SCC 611: 1988 SCC (L&S) 1] referred to earlier, an army officer did not obey the lawful command of his superior officer by not eating food offered to him. Court-martial proceedings were initiated and a sentence of rigorous imprisonment of one year was imposed. He was also dismissed from service, with added disqualification that he would be unfit for future employment.

28. Applying the doctrine of proportionality and following CCSU [1985 AC 374: (1984) 3 WLR 1174: (1984) 3 All ER 935 (HL)], Venkatachaliah, J. (as His Lordship then was) observed: (SCC p. 620, para 25) “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 proportionality, as part of the concept of judicial review, would ensure that even on an aspect which is, otherwise, within the exclusive province of the court martial, if the decision of the court even as to sentence is an outrageous defiance of logic, then the sentence would not be immune from correction. Irrationality and perversity are recognised grounds of judicial review.”

17. Mr. Raju has without prejudice to the other contentions urged that considering that Petitioner has served as a Judicial officer from 1982 till 2017 and had earned two promotions in the said tenure as an Additional District Judge and District Judge with no blemish as also his contribution as a Judicial Member in RCT where he has pronounced more than 2,500 orders/ judgments etc., the penalty of removal from service is highly disproportionate albeit this is strongly refuted by counsel for the Respondent.

18. Having considered all the 03 contentions holistically, I am of the view that the impugned order dated 11.07.2019 whereby penalty of removal from service was imposed on the Petitioner deserves to be set aside. However, keeping in view that the illegality has crept from the stage of non-supply of the inquiry report to the Petitioner, the matter is remanded back to the Disciplinary Authority to reconsider its decision to impose the penalty after calling upon the Petitioner to furnish his representation against the inquiry report.

19. Accordingly, this writ petition is disposed of permitting the Petitioner to make a representation against inquiry report to the Disciplinary Authority within a period of 05 weeks from the date of receipt of this order. On receipt of the representation, the DA shall take a decision afresh in light of the representation made as well as the evidence led during the inquiry proceedings and the inquiry report. The argument of proportionality of punishment raised by the Petitioner, without prejudice to his contentions that the charges are per se not proved and he is innocent, will also be examined by the DA without being influenced by the penalty order dated 11.07.2019.

20. The decision will be taken by the DA within a period of 06 weeks from the date of receipt of the representation and the same shall be communicated to the Petitioner within 01 week. It is made clear that this Court has not expressed any opinion on the merits of the case and it will be open to the DA to take a decision in accordance with law.

21. In view of the aforesaid, impugned order dated 11.07.2019 is set aside. Consequential reliefs of notional reinstatement etc. will depend on the outcome of the decision of the Disciplinary Authority.