IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 6230 of 1990 For Approval and Signature: Hon'ble MR.JUSTICE J.R.VORA ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : NO 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the concerned : NO Magistrate/Magistrates,Judge/Judges,Tribunal/Tribunals? @ M.B. GANDHI, PRESIDENT Versus CHANDRAKANT RAMANLAL PANDYA -------------------------------------------------------------- Appearance: 1. Special Civil Application No. 6230 of 1990 MR ARUN H MEHTA for Petitioner No. 1 MR JD AJMERA for Respondent No. 1 RULE SERVED for Respondent No. 2 -------------------------------------------------------------- CORAM : MR.JUSTICE J.R.VORA Date of decision: 05/09/2002 ORAL JUDGEMENT #. The age old controversy crops up before this Court once again, whether punishment imposed in departmental proceeding on a delinquent is proportionate and whether the Tribunals / High Courts have power to or have jurisdiction to alter, modify, reduce such penalty and whether the Tribunals / High Courts enjoy such jurisdiction, then what is the nature of the said jurisdiction. The law as has been vehemently argued by learned Senior Counsel Mr.Arun H. Mehta is well settled by the decisions of the Apex Court as well as other High Courts. Principles of law in each case will have application to the facts of the given case and therefore, necessary facts of the case shall have to be looked into. #. The record reveals that the respondent No.1 herein - Chandrakant R. Pandya was appointed as Junior Clerk in the management of present petitioner - Nutan Kelavani Trust, Palanpur on 12th of July, 1979. He was promoted as Senior Clerk on 1st of April, 1984. #. The respondent No.1 herein faced chargesheet at the end of the management - petitioner on 26th May, 1987. The management petitioner appointed one Dhanjibhai as Inquiry Officer who conducted the departmental proceeding. After recording of the evidence, the inquiry officer vide his conclusion dated 4th of March, 1988 found the present respondent No.1 guilty in respect of almost 23 charges out of 25 allegations levelled against respondent No.1. Therefore, the management decided to dismiss the respondent No.1 and served him with show cause notice and came to the final conclusion to dismiss the respondent No.1. Since the provisions of Section 36[B] of the Gujarat Secondary Education Act requires that proposed action of the management must be approved in writing by the Officer authorised in this behalf by the Board and therefore, school management approached the District Education Officer for obtaining approval as per Section 36[1][b] of the said Act. Section 36[2] further provides that if proposed action is not approved by the authorised Officer and District Education Officer, in this case, within 45 days then the same shall be deemed to have been approved by the said Officer. The facts further go to show that though the District Education Officer by his order dated 6th June, 1988 did not accord approval of dismissal of respondent No.1 as proposed by the school management but since the order passed by DEO, an authorised officer, was beyond 45 days, the proposal to dismiss the respondent No.1, assumed deemed approval of District Education Officer. Respondent No.1 therefore with effect from 3rd June, 1988 came to be dismissed from service and being aggrieved and dissatisfied, filed an application being Application No.501 / 1988 before the Gujarat Secondary Education Tribunal at Ahmedabad. Vide his judgment and order dated 16th July, 1990, learned Education Tribunal came to the conclusion that the charges against the respondent No.1 therein were properly proved and the departmental inquiry was properly conducted. Learned Tribunal did not interfere so far as the finding of the inquiry officer was concerned in respect of the charges levelled against the respondent No.1. However, learned Education tribunal further came to the conclusion that charges levelled against the respondent No.1 were trifling in nature and thereafter relying on the decision of this Court in case of SATSANGI SHISHUVIHAR KELAVANI TRUST & ORS V. P.N. PATEL AND ORS. as reported in [18] 1977 GLR pg.615, learned Education Tribunal found that it was fit case where though the majority of the charges were proved, punishment of dismissal and termination would not be justified and hence, the tribunal directed reinstatement of respondent No.1 from the date of decision of the Education Tribunal and further directed that the respondent No.1 would not be entitled to wages from 3rd of June, 1988 till he would be reinstated, as in view of the Education Tribunal, this economic loss was sufficient punishment which would have deterrent effect on the respondent No.1 and the irregularity, negligence and unbecoming behaviour towards superior would not be repeated. #. Being aggrieved and dissatisfied with the above said judgment and order of the Education Tribunal, Management through its President has approached this Court by way of this petition under Article 227 of the Constitution of India. #. Learned Senior Counsel Mr.Arun H. Mehta on behalf of the petitioner and learned counsel Mr.J.D. Ajmera on behalf of the respondent No.1 were heard at marethon length. Respondent No.2 - District Education Officer, Palanpur, District : Banaskantha is not an effective party. #. While admitting this petition on 9th October, 1990, this Court was pleased to pass the following interim order. "Rule. Mr.Ajmera waives service of Rule. Interim relief only to the effect that it would be open to the petitioner to reinstate the respondent No.1 in service or to pay and continue to pay him his salary regularly without physically reinstating and without taking even work from him. The salary for August / September, 1990 to be paid before 17th October, 1990. .... " #. The above interim relief holds the field today. #. Learned Senior Counsel Mr.Mehta mainly argued that what are the powers of the Tribunal / High Court while dealing with proportion of punishment in departmental proceedings. Learned Senior Counsel Mr.Mehta contended that the tribunals / High Courts cannot substitute their own punishment in place of punishment awarded by the administrative authority in departmental proceedings. It was further argued that the Tribunals / High Courts do not enjoy or exercise primary power to review the proportion of punishment awarded by the competent authority. It was contended that it is established by various decisions of the Apex Court and it is settled law today that High Courts / Tribunals can only exercise the powers of secondary review, that too, after following Wednesbury principles of review and interference in proportion of punishment in departmental proceedings. It is argued that the primary jurisdiction to award punishment to a delinquent always remains with the competent authority who by law, might have been appointed to award punishments. Such punishment as awarded by this competent authority cannot be modified or altered by the High Court / Tribunal assuming the powers of primary review and substitute their own punishment in place of choice of punishment of competent authority. The case law relied on by learned Senior Counsel Mr.Mehta will be referred hereinafter. He further argued that against respondent No.1, charges like; not recording of time of joining duty, not to be found on place of work, negligence in duty, indulgence in unnecessary correspondence, addressing correspondence directly to superior without being routed through Head of the department, not remaining present on the auspecious day of independence, on which day, special programme was arranged, lapses in writing daily cash book, etc. are proved. It was argued that these charges are grave and serious in nature and if such an employees is allowed to continue in the administration, it would not be in the interest of the administration as well as it would affect smooth running of the administration. It is argued that it became very difficult to take work from respondent No.1 due to his above said behavior and hence, it was contended that punishment of dismissal was proportionate to the charges proved against the delinquent. As argued it was choice of the management being competent authority to award punishment to the delinquent and exercising the discretion in the best manner, management being competent authority in the above circumstances chose to award punishment of dismissal and the action of the management became final. It was argued that so far charges levelled against the delinquent are concerned, the same were held to be proved by the inquiry authority as well as before the Tribunal. Charges therefore, according to the learned counsel Mr.Mehta, finally stood proved and no further action against this, have been taken by the delinquent. It was argued that however the Education Tribunal so far as the proportion of punishment is concerned, assumed the jurisdiction of primary review and substituted its own punishment in place of punishment awarded by the competent authority. It was argued vehemently that this conclusion of the Education Tribunal was in sheer contravention of the established law of this Country. It was argued that learned Tribunal misread the decision of this Court reported in 18th GLR pg.615 [Supra]. It was also argued that learned Tribunal failed to assign sound and cogent reasons which were required while exercising the secondary review as per the law. It was argued that when charges levelled against the delinquent were finally stood proved, it was not proper on the part of the Education Tribunal to consider the proportion of the punishment in a primary review and substitute its own punishment. It was argued that therefore the order passed by the Education Tribunal impugned in this petition is required to be set aside. #. Learned Senior Counsel Mr.A.H.Mehta for petitioner in support of his contentions cited following case law. [i] In case of UNION OF INDIA V. G. GANAYUTHAM as reported in AIR 1997 SC 3387. In the decision, the main question was whether it was permissible for the Court / Tribunal to interfere with the quantum of punishment imposed by the competent authority on the ground that it was to severe and hence, disproportionate to the gravity of the charges proved. After referring to Wednesbury principles of reasonableness, the Apex Court has observed in para-30 as under : "30. In Ranjit Thakur [AIR 1987 SC SC 2386 ] 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 : [1995 AIR SCW 4374 ] a three Judge Bench said the same thing as follows [Para 18 of AIR]: "The High Court/Tribunal, while exercising the power of judicial review, cannot normally substitute its own conclusions on penalty and impose some other penalty. If the punishment imposed by the disciplinary authority or the appellant authority shocks the conscience of the High Court / Tribunal it would appropriately mould the relief, either by directing the disciplinary authority / appellate authority to reconsider the penalty imposed, or to shorten the litigation, it may itself, in exceptional and rare case, impose appropriate punishment with cogent reasons in support thereof." Similar view was taken in India Oil Corporation v. Ashok Kumar Arora [1997] 3 SCC 72, that the Court will not intervene unless the punishment is wholly disproportionate." [ii] In the matter of SANCHALAKSHRI AND ANOTHER V. VIJAYAKUMAR RAGHUVIRPRASAR MEHTA AND ANOTHER reported in [1998] 8 SCC 245. Learned counsel for the petitioner relying upon para-6 of the decision which is as under :- "6. After a review of earlier cases, this Court in B.C.Chaturvedi v. Union of India has held that : [SCC p.762, para 18 ] "The High Court / 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 / Tribunal, it would appropriately mould the relief, either directing the disciplinary / 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." Neither the Tribunal nor the High Court in this case has held that the punishment imposed upon respondent 1 was shockingly disproportionate. Respondent 1 was a school teacher. A teacher is expected to maintain higher standard of honesty and integrity in view of the position he holds. He committed acts of forgery either himself or with the held of some other person by forging signatures of the District Education Officer, the Auditor and the Sanchalak and Principal of Pallavi Vidyalaya. Even after he was called upon by the School Management to disclose the names of the persons who had put their signatures in the service book, he had stated that it was signed by the District Education Officer, Mr.S.M.Parmar. That statement was false to his knowledge. It was on the basis of the forged endorsements that he wanted to get payments as per the revised pay scale regularised. Respondent 1 had thus not only committed a serious misconduct but also a serious criminal offence. If under such circumstances, the punishment of dismissal was imposed by the School Management, it cannot be said that it was shockingly disproportionate to the gravity of the misconduct." [iii] In the matter of SHRIJI VIDHALAYA AND ANOTHER VS. PATEL ANIL KUMAR LALLUBHAI AND ANOTHER as reported in [1998] 9 SCC 561, relevant parts on which learned counsel Mr.Mehta placed reliance are paras-4 to 7, which runs as under : "4. Learned Senior Counsel appearing for the appellants submitted that the Tribunal exceeded its review jurisdiction and the power to award appropriate punishment vests normally with the management and the Tribunal cannot exercise that power. According to him the High Court failed to appreciate. He further contended that the Tribunal has no jurisdiction to reduce or award lesser punishment substituting its own punishment in the place of punishment given by the disciplinary authority. 5. Learned counsel for the first respondent while inviting our attention to the provisions of Section 36, 38 and 39 of the Act, submitted that the Tribunal has power to go into the matter and give its own finding as well as to substitute the punishment. 6. We do not think that the abovesaid sections enable the Tribunal to exercise such power. 7. This Court has consistently held that the tribunal / court normally cannot substitute its punishment in the place of punishment given by the disciplinary authority vide Union of India v. Parmar Nanda and B.C.Chaturvedi v. Union of India. Applying the said principle, we allow the appeal and set aside the order of the High Court which confirmed the order of the Tribunal. No costs." [iv] In the matter of OM KUMAR VS. UNION OF INDIA as reported in 2000 SC 3689, of which, para-67, 70 and 71 are relied by learned Senior Counsel Mr.Mehta, which are reproduced as under; "67. But where, an administrative action is challenged as arbitrary' under Art.14 on the basis of Royappa [as in case where punishments in disciplinary cases are challenged ], the question will be whether the administrative order is "rational" or "reasonable" and the test then is the Wednesbury test. The Courts would then be confined only to a secondary role and will only have to see whether the Administrator has done well in his primary role, whether he has acted illegally or has omitted relevant factors from consideration or has taken irrelevant factors into consideration or whether his view is one which no reasonable person could have taken. If his action does not satisfy these rules, it is to be treated as arbitrary [ In G.B. Mahajan v. Jalgaon Municipal Council [1991] 3 SCC 91 at p.111 : [AIR 1991 SC 1153 at pg.1165 ], Venkatchallah, J. [as he then was ] pointed out that "reasonableness" of the Administrator under Art.14 in the context of Administrative Law has to be judged from the standpoint of Wednesbury rules. In Tata Celluar v. Union of India [1994] 6 SCC 651 at Pp. 3369-70 : AIR 1996 SC 11 ] : Indian Express Newpapers v. Union of India [1985] 1 SCC 64 ] at p.691 : [AIR 1986 SC 515 at Pp.542-43] : Supreme Court Employees' Welfare Association v. Union of India [1989] 4 SCC 187 at Lab IC 324 at p.358 ] and U.P. Financial Corporation v. GEM CAP [India] pvt. Ltd. [1993] 2 SCC 299, at P.307 : [1993 AIR SCW 1439], while judging whether administrative action is arbitrary under Art.14 [i.e otherwise than being discriminatory], this Court has confined itself to a Wednesbury review always. 70. In this context, we shall only refer to these case. In Ranjit Thakur v. Union of India [1987] 4 SCC 611 : [AIR 1987 SC 2386 : 1988 Cri LJ 158 ], this Court referred to "proportionality' in the quantum of punishment but the Court observed that the punishment was "shockingly" disproportionate to the misconduct proved. In B.C. Chaturvedi v. Union of India [1995] 6 SCC 749 : [1995 AIR SCW 4374 : AIR 1996 SC 484 : 1996 Lab IC 462 ], this Court stated that the Court will not interfere unless the punishment awarded was one which shocked the conscience of the Court. Even then, the Court would remit the matter back to the authority and would not normally substitute one punishment for the other. However, in rare situations, the Court could award an alternative penalty. It was also so stated in Ganayutham. 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 Art.14, the Court is confined to Wednesbury Principles as secondary reviewing authority. The Court will not apply proportionality as a primary reviewing Court because no issue of fundamental freedoms nor of discrimination under Art.14 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 [in] such extreme or rare cases can the Court substitute its own view as to the quantum of punishment." ##. In a decision of this Court in Special Civil Application No.8053 of 1998 as decided by learned Single Judge of this Court on 25th of July, 2002, this Court after relying upon principle of Wednesbury and the law as laid down by the Supreme Court as mentioned in above cases found that dismissal of an employee of Bank justified for the charge of misbehavior with client of the Bank proved against him. ##. Learned counsel for the petitioner in summing up further argued that it is not the findings of the Education Tribunal that the departmental proceeding was irregular or illegal. No procedural illegality was noticed by the tribunal. The competent authority in exercising choice to inflict the punishment, did not act irrationally because the employee was indisciplined and was not at all working and hence punishment of dismissal was justified. ##. On the other hand, learned counsel Mr.J.D.Ajmera for respondent No.1 contended that this is an incident from the private management of school. So far as management of school is concerned, it remains absolutely in the hands of its Board. It was generally argued that in such management, it is first decided that a person from the management is to be removed and then charges are fabricated. Learned counsel Mr.Ajmera submitted that vindictive attitude of the management could be noticed by the simple fact that for the so called lapses around 19th of January, 1987, the chargesheet was served against the present respondent No.1 after about nine months on 21st October, 1987. It was argued that the respondent No.1 had been working with the management right from 1979 as Junior Clerk. He was promoted as Senior Clerk in 1982. Till day of 19th January, 1987, the respondent No.1 was working properly and no grievance at all at any time before 19th of January, 1987 was expressed against the respondent No.1 in respect of his work and behaviour in the management school. It was argued that however the table appears to have turned from 19th of January, 1987 and the charges twenty five in number pertaining to period after 19th of January, 1987 were levelled. It was argued that therefore it was first decided to remove the respondent No.1 from the school and thereafter, the charges were digged up. It is also argued that in fact, the respondent No.1 was working very hard even in absence of two other posts of Junior Clerks which were vacant since the same were not filled up at the relevant time and the respondent No.1 had to struggle to cope up with the work which was entrusted to him. It was argued that in this process in 1984 and in 1987, respondent No.1 expressed his grievance to the Head Master, management of the school and to the District Education Officer. It was argued that this caused annoyance to the management and therefore after January, 1987, hard days came to be faced by the respondent No.1 from the ends of management to the extent of departmental proceedings, for which, he was found guilty by the management. It was argued that all the charges levelled against the respondent No.1 are too vague and general. It was argued that that charges are proved but considering overall scenario and the circumstances, learned Education Tribunal exercising proper jurisdiction set aside the punishment of dismissal. It was argued that the management did not act reasonably. It was argued that the whole controversy inflamed due to the fact that there were two other vacant posts of the Junior Clerks which were not being filled up by the management resulting into very heavy burden of work on respondent No.1. Learned counsel Mr.Ajmera relying upon decision of this Court in the matter of SATSANGI SHISHUVIHAR KELAVANI TRUST & ORS V. P.N. PATEL AND ORS. as reported in 18th GLR pg.615 [Supra], argued that Education Tribunal while setting aside punishment of dismissal accepted the contentions of respondent No.1 that he was over burdened because of two posts of Junior Clerk vacant in the school. It was argued that these two posts are still vacant today. It was further contended that after accepting this contention of respondent No.1, the tribunal set aside the penalty of dismissal and expressed hope that two vacant posts of Junior Clerk would be filled in by the management. It was therefore contended that though charges were proved against the respondent No.1, but assigning for the cogent and sound reasons, tribunal rightly set aside the punishment of dismissal and directed reinstatement. It was contended that tribunal had jurisdiction and power by virtue of decision as reported in 18th GLR pg.615 in the matter of SATSANGI SHISHUVIHAR KELAVANI TRUST & ORS V. P.N. PATEL AND ORS. [ Supra ] to quash the punishment of dismissal. It was contended that therefore there was no error committed on the part of the Education Tribunal either of jurisdiction or on factual aspect. It was argued that since vindictiveness of the management is apparent, no relief be granted to the petitioner as to interfere with the conclusion of the Education Tribunal in respect of proportion of punishment. Learned advocate Mr.Ajmera contended that the inquiry in question was not conducted properly. But ultimately, this argument was not advanced in view of conclusion of the Education Tribunal that the