IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No. 3897 of 2007 Date of Decision : May 30, 2008 State of Haryana and others ....Appellants Versus Smt. Shakuntla Devi .....Respondent CORAM : HON’BLE MR. JUSTICE T.P.S. MANN Present : Mr. Deepak Jindal, Assistant Advocate General, Haryana for the appellants. Ms. Preeti Khanna, Advocate for the respondent. T.P.S. MANN, J. Suit was initially filed by Mehar Chand so as to challenge order No. 950 dated 4.6.1991 passed by General Manager, Haryana Roadways Delhi, Bahadurgarh, whereby he was dismissed from service. It was averred that no charge-sheet was ever received by him or his family members, as he was under mental depression and not available at his place. No notice was issued to him to attend the enquiry nor any show cause notice ever received by him. No personal hearing was provided and, therefore, the order under challenge was against the principles of natural justice. He had already rendered service of around 21 years, hence he could be retired compulsorily, instead of being dismissed and depriving him of his pensionary Regular Second Appeal No. 3897 of 2007 -2- benefits. The fault on his part was simple absence from duty, which was not coupled with any misconduct. He had appealed against the order of dismissal to State Transport Commissioner, Haryana, but his appeal was dismissed on 6.6.2002. While filing the suit for declaration, he sought setting aside of the dismissal order. The case of the defendants was that the plaintiff was absent from duty since 18.3.1990 on the ground of mental depression, but no proof was ever produced by him. Departmental enquiry was held, but it was repeatedly ignored by the plaintiff. There was no violation of the principles of natural justice as the plaintiff was not deprived of his right to defend. Rather, the charge- sheet was sent to him at his residential house under registered cover, but it was never replied by him. The Enquiry Officer also sent three notices, again under registered cover, but the same were returned, either unserved or unreplied. Notice of enquiry, fixed for 8.2.1991, was also served upon the plaintiff through Rajinder, which was duly received by him on 27.1.1991. Still, the petitioner did not care to attend the enquiry. A reminder to charge-sheet was also served upon him through Rajinder, but again he did not reply to the same. He was given an opportunity of personal hearing, but he refused to give the acknowledgment of the notice. Pleading that the plaintiff had ignored all the actions/proceedings held against him, qua his wilful and unauthorised absence from duty and, therefore, he did not deserve Regular Second Appeal No. 3897 of 2007 -3- any sympathetic view from the competent authority, the defendants prayed for dismissal of the suit. During the pendency of the suit, Mehar Chand died. His wife Smt. Shakuntala Devi was brought on record as his legal representative. Vide judgment dated 30.1.2007, learned Civil Judge (Junior Division), Gurgaon, partly decreed the suit by modifying the order of dismissal to that of compulsory retirement. The plaintiff was held entitled to all the consequential benefits of compulsory retirement. An appeal was preferred by the defendants, which was, however, found to be meritless and dismissed by learned District Judge, Gurgaon vide judgment dated 17.7.2007. The defendants, thereafter, filed the present second appeal under Section 100 of the Code of Civil Procedure. Learned counsel for the appellants submitted that plaintiff-respondent wilfully absented himself from duty with effect from 18.3.1990. He was, thereafter, asked to furnish his explanation about his absence. Even charge-sheet was sent to him, but inspite of the same, he neither replied to them nor attended to his duties. Under these circumstances, he was rightly dismissed from service vide impugned order dated 4.6.1991 and the appeal filed by him rightly dismissed vide order dated 6.6.2002. Regular Second Appeal No. 3897 of 2007 -4- Learned counsel for the respondent submitted that no evidence had been brought on record by the defendants that any show cause notice or charge-sheet was ever served upon him. No enquiry was conducted as required by the rules. Instead, he was dismissed from service without following the principles of natural justice. In order to show that intimation was sent to the respondent and so also the charge-sheet, the defendants-appellants relied on documents Ex. D3 and D4, which are the receipts vide which charge-sheet dated 23.1.1991 and letter dated 8.5.1991 were received by plaintiff-respondent. Ex. D5 is another letter dated 31.5.1991 issued by General Manager, Haryana Roadways Delhi, Bahadurgarh requiring the plaintiff to appear before him. Ex. D1 is copy of impugned order dated 4.6.1991. A perusal of all these documents would show that the defendants-appellants failed to establish about service of any show cause notice, charge-sheet or letter affording opportunity of personal hearing upon the plaintiff- respondent. Under these circumstances, learned lower Courts concluded that the defendants-appellants violated the principles of natural justice. However, keeping in view the fact that the notices were affixed on his premises and still the plaintiff remained absent from duty besides not having informed the department about the Regular Second Appeal No. 3897 of 2007 -5- reason of his absence, the learned trial Court held that the action of imposing punishment upon the plaintiff was not illegal. It is then submitted that there could be no interference in service matters, especially qua quantum of punishment and, that too, if the charges were established and there was no lacuna in the procedure of departmental enquiry. Though, the quantum of punishment cannot be interfered with by the Court, yet it is equally true that if the principles of natural justice are prima facie violated, the Court can interfere with the quantum of punishment. In State of U.P. Vs. Jaikaran Singh (2003) 9 Supreme Court Cases 228, the Court held that jurisdiction under Article 226 cannot be normally exercised to interfere with the quantum of punishment alone, but if the punishment inflicted was grossly unjust and shocked the conscience, then in appropriate cases, the Court may interfere. In the said case the employee had served the employer for more than 12 years but was dismissed on account of not joining the parent organisation after having been repatriated back. The Court held that the ends of justice would be met if the order of dismissal was altered to one of compulsory retirement. The issue of interference with the quantum of punishment was considered by the Hon’ble Supreme Court once again in Coimbatore District Central Cooperative Bank Vs. Coimbatore District Central Cooperative Bank Employees Assn. and another (2007)4 Supreme Regular Second Appeal No. 3897 of 2007 -6- Court Cases 669, when it observed that it was not only the power, but the duty of the “Writ Court” to consider whether the penalty imposed on workman was in proportion to the misconduct committed by the workman. Terming it as a ‘doctrine of proportionality’, the Court observed that the same had not only arrived in our legal system but has come to stay. This principle comes into play when an action taken by any authority is contrary to law, improper, irrational or otherwise unreasonable. In such a situation, a Court of law can interfere with such action by exercising power of judicial review. The Court went on to quote from Halsbury’s Laws of England (4th Edn.), Reissue, Vol. I (1), pp. 144-45, para 78 as under :- “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.” Regular Second Appeal No. 3897 of 2007 -7- The Court then proceeded to find out genesis of the doctrine in the field of administrative law. Very beautifully, the Court observed that it was not permissible to use a “sledgehammer to crack a nut” and “where paring knife suffices, battle axe is precluded”. In the present case, Mehar Chand-plaintiff had put in more than twenty one years of service. In such a situation, the order dismissing him from service was highly unproportional to the allegations levelled against him. In such a situation, order of compulsory retirement was found by the Courts below to be sufficient to meet the ends of justice instead of upholding the order of dismissal. In view of the above, no case is made out for any interference in the concurrent findings of facts as well as of law arrived at by the learned lower Courts. These findings were based on proper appreciation of the evidence led by the parties. The substantial questions of law, as claimed by the appellants, do not arise for consideration. The appeal is without any merit and, therefore, dismissed. ( T.P.S. MANN ) May 30, 2008 JUDGE satish Whether to be referred to the Reporters : YES / NO