IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. [CASE NUMBER] Date of Decision: July 12, 2011 [ENTITY] and others Petitioners Versus Central Administrative Tribunal, Chandigarh Bench, Chandigarh and others Respondents CORAM: HON'BLE MR MR. JUSTICE [ENTITY] HON'BLE MR MR. JUSTICE GURDEV SINGH Present: Mr. [ENTITY], Advocate, for the petitioners. Mr. [ENTITY], Advocate, for respondent No. 2. 1. To be referred to the Reporters or not? 2. Whether the judgment should be reported in the Digest? [ENTITY], [ENTITY], J.
1. The Chandigarh Administration and its officers have filed the instant petition under [SECTION] of the [ACT] challenging final judgment dated 16.11.2010 as well as observations made by the Judicial Member of the Tribunal in the order dated 31.3.2010 rendered by the Chandigarh Bench of the Central Administrative Tribunal (for brevity, 'the Tribunal') allowing [CASE NUMBER][CASE NUMBER][CASE NUMBER] filed by the applicant-respondent No. 2.
2. Brief facts of the case are that the applicant-respondent No. 2 joined service as a Clerk in 1988 in the Chandigarh Administration. In 1994, she was promoted as Senior Clerk. In pursuance of notification dated 20.5.1996 (A-6), the services of the applicant-respondent No. 2 were transferred to the Municipal Corporation, Chandigarh. On 2.3.2005, she was served with a charge sheet, inter alia, with the allegation that on 7.9.1999 she received the payment of `67,309[CASE NUMBER]- as water charges of Haryana Raj Bhawan against receipt bearing GR No. 31711[CASE NUMBER]75 but failed to deposit the said amount with the cashier, which amounts to grave misconduct of embezzling Government money.
3. A regular departmental inquiry was held against the applicant-respondent No. 2 wherein all the charges levelled stood proved and the Enquiry Officer found her guilty in his report dated 16.5.2006 (A-3). After supply of the inquiry report, submission of reply thereto as also affording an opportunity of personal hearing, the Chief Engineer, Union Territory, Chandigarh-punishing authority passed an order dated 20.10.2006, inflicting the punishment of dismissal from service upon the applicant-respondent No. 2 (A-4). She then preferred statutory appeal, which was dismissed by the Appellate Authority vide order dated 18.10.2007 (A-5). Thereafter she filed [CASE NUMBER][CASE NUMBER][CASE NUMBER] before the Tribunal challenging the charge-sheet, inquiry report and orders dated 20.10.2006 and 18.10.2007. On 31.3.2010 the Tribunal passed an order. However, there was difference of opinion amongst the Member (Administrative) and Member (Judicial) of the Tribunal. The Member (Administrative) reached the conclusion that there is no legal ambiguity in the impugned orders dismissing the applicant- respondent No. 2 from service. However, the Member (Judicial) took a contrary view that the impugned orders are liable to be quashed. Eventually, after the orders passed by the Chairman of the Tribunal, the matter was referred to third Member, who concurred with the view taken by the Member (Judicial). In this manner, the orders dated 20.10.2006 (A-4) and 18.10.2007(A-5) have been quashed.
4. Having heard learned counsel for the parties and perusing the paper book we are of the considered view that the instant petition deserves acceptance. The applicant-respondent No. 2 has not been able to point out any material irregularity in holding of the departmental inquiry against her. It is well settled that the Courts are not a Court of Appeal over and above the Inquiry Officer, Disciplinary Authority or the Appellate[CASE NUMBER]Revisional Authority. As a concept of law the Courts cannot re-appreciate evidence to reach a conclusion different than the one recorded by the Inquiry Officer merely because another view is possible. In that regard reliance may be placed on the observations made by Hon'ble the Supreme Court in the case of State Bank of India v. Ramesh Dinkar Punde Punde (2006) 7 SCC 212.
212 The applicant-
respondent No. 2 has not been able to point out either any violation of the principles of natural justice nor any statutory rules warranting a conclusion that either she has not been treated fairly or her rights have been prejudiced. Once the findings of fact are well based and the procedural requirements contemplated by the Rules have been complied with then the quantum of punishment cannot be interfered with. It is equally well settled that if the Inquiry Officer, Punishing Authority or the Appellate Authority has proceeded on the basis of wholly irrelevant material or wholly irrelevant consideration or in violation of principles of natural justice only then the Courts are empowered to interfere with the quantum of punishment. In that regard reliance may be placed on the Division Bench judgment of this Court rendered in the case of [ENTITY] v. State of Haryana Haryana, na, 2007 (1) RSJ 45.
45 In that case a Division Bench of this Court (of which one of us, [ENTITY], J. was a member) has considered the application of Wednesbury Principles by referring to para 242 of a [ACT] Bench judgment of Hon'ble the Supreme Court in the case of [ENTITY] (VI) v.
India (2006) (2) SCC 1.
[ENTITY] 1 The aforesaid para 242 reads as under:-
"242. The Wednesbury principle is often misunderstood to mean that any administrative decision which is regarded by the Court to be unreasonable must be struck down. The correct understanding of the Wednesbury principle is that a decision will be said to be unreasonable in the Wednesbury sense if (i) it is based on wholly irrelevant material or wholly irrelevant consideration, (ii) it has ignored a very relevant material which it should have taken into consideration, or (iii) it is so absurd that no sensible person could ever have reached it." (Emphasis added)
5. Hon'ble the Supreme Court has also referred the "Wednesbury Principles" in the case of Om Kumar v. [ENTITY], India, (2001) 2 SCC 386.
386 The views of Lord [ENTITY] in the case of [PRECEDENT] have been relied upon by Hon'ble the Supreme Court in para No. 26 and the conclusion has been recorded in para 71. The aforementioned paras read as under:-
" 26. Lord [ENTITY] said in 1948 in the Wednesbury case, [PRECEDENT], that when a statute gave discretion to an administrator to take a decision, the scope of judicial review would remain limited. He said that interference was not permissible unless one or the other of the following conditions was satisfied, namely the order was contrary to law, or relevant factors were not considered, or irrelevant factors were considered; or the decision was one which no reasonable person could have taken. These principles were consistently followed in the UK and in India to judge the validity of administrative action. It is equally well known that in 1983, Lord [ENTITY] in [PRECEDENT], (called the GCHQ case) summarised the principles of judicial review of administrative action as based upon one or other of the following viz., illegality, procedural irregularity and irrationality. He, however, opined that "proportionality"
was a "future possibility".
XXX XXX XXX XXX XXX XXX XXX XXX XXX
71. Thus, from the above principles and decided cases, it must be held that where an administrative decision relating to punishment in disciplinary cases is questioned as "arbitrary" under [SECTION], the court is confined to Wednesbury principles as a secondary reviewing authority. The court will not apply proportionality as a primary reviewing court because no issue of fundamental freedoms nor of discrimination under [SECTION] applies in such a context. The court while reviewing punishment and if it is satisfied that Wednesbury principles are violated, it has normally to remit the matter to the administrator for a fresh decision as to the quantum of punishment. Only in rare cases where there has been long delay in the time taken by the disciplinary proceedings and in the time taken in the courts, and such extreme or rare cases can the court substitute its own view as to the quantum of punishment."
6. A [ACT] Bench had another opportunity to succinctly state these principles in the case of [ENTITY] (VI) (supra).
(supra) In para 242, their Lordships' have issued the guidelines for correct understanding of Wednesbury Principles, which have already been extracted above.
7. When the principles laid down in the aforementioned judgments are applied to the facts of the present case, we find that the Wednesbury principles, as per the guidelines given in [ENTITY]'s case (supra) would not be attracted because principles of natural justice have been religiously complied with. Therefore, the impugned orders passed by the punishing and appellate authorities would not require any intervention.
8. It is also apposite to notice here that in the case of [PRECEDENT], after noticing the observation made in the earlier judgments rendered in the cases of [ENTITY] v. [ENTITY], India, (1995) 6 Commissioner of Police v. Syed Hussain, SCC 749 and [PRECEDENT] in para 9 of the judgment it has been specifically observed that it is for the disciplinary authority or the administrative authority to decide the quantum of punishment in a case of misconduct and the role of the Court is only secondary. In [ENTITY]'s case (supra) it has been held that the High Court[CASE NUMBER]Tribunal, while exercising the power of judicial review, cannot normally substitute its own conclusion on penalty and impose some other penalty. If the punishment imposed by the disciplinary authority or the appellate authority shocks the conscience of the High Court[CASE NUMBER]Tribunal, it would appropriately mould the relief, either directing the disciplinary[CASE NUMBER]appellate authority to reconsider the penalty imposed, or to shorten the litigation, it may itself, in exceptional and rare cases, impose appropriate punishment with cogent reasons in support thereof. When the above principle is applied to the present case we find no ground which may shock the conscience of even a common man. The charges levelled against the applicant-respondent No. 2 are serious in nature and stood proved. She has been found guilty of embezzling of Government funds. Therefore, we have no hesitation to reject the view taken by the Tribunal in its final order dated 16.11.2010.
9. As a sequel to the above discussion, instant petition succeeds. The order passed by the Tribunal is set aside and the orders dated 20.10.2006 and 18.10.2007 (A-4 and A-5) passed by the punishing and appellate authority respectively are upheld.
([ENTITY]) JUDGE ([ENTITY]) July 12 12, 2011 JUDGE [ENTITY]