CWP No.10391-CAT of 2004 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. C.W.P.No. 10391-CAT of 2004 Date of decision 7 .5.2008 O.P.Sharma ...Petitioner Versus Union of India and others ... Respondents. CORAM: HON'BLE MR. JUSTICE M.M. KUMAR HON'BLE MRS. JUSTICE SABINA Present: Mr. G.S.Chahal, Advocate for the petitioner. MrR.K.Sharma, Advocate for the respondents M.M.KUMAR, J. The instant petition is directed against order dated 23.3.2004 (Annexure P.6) passed by the Chandigarh Administrative Tribunal, Chandigarh Bench, Chandigarh (for brevity 'the Tribunal') dismissing OA No.208/CH/2003. The Tribunal has upheld the order of premature retirement of the petitioner. The petitioner was to retire from service on attaining the age of 60 years in February, 2008 as his date of birth is 6.2.1948 but he was prematurely retired on 16.8.2002 after charges against the petitioner were proved. The charges levelled against the petitioner vide charge sheet dated 11/23.1.2002 ( Annexure P.2) were as under: “i) The applicant was advised to improve the short-comings in his work and conduct. But he showed his annoyance to the observations made by the Principal and did not improve his working. ii)The applicant used derogatory remarks against his seniors CWP No.10391-CAT of 2004 2 during inspection by Education Officers on 13.8.2001 and behaved in a manner of unbecoming a Govt. servant. iii) The third charge against the applicant is that he writes the title 'Doctor' with his name while corresponding with the Principal, whereas he has no authentic proof of such Degree with him.” A regular departmental enquiry was held against the petitioner under Rule 14 of the Central Civil Services ( Classification, Control and Appeal) Rules, 1965 (for brevity 'the Rules'). The Enquiry Officer in his report dated 20.5.2002 ( Annexure P.3) had concluded that charges No. 1,2 and 3 stand proved against the petitioner. Acting on the findings recorded by the Enquiry Officer the Assistant Commissioner exercising the powers conferred by Rule 19(1) of the Rules imposed major penalty of compulsory retirement upon the petitioner w.e.f. 17.8.2002 ( Annexure P.4). The appeal filed by him has also been dismissed by the Joint Commissioner and Appellate Authority on 7.2/3.2003 (Annexure P.5). The petitioner challenged the order of premature retirement order before the Tribunal. The argument of the petitioner that he suffers from the disease of Schizophrenia and has not been leading normal life has been rejected by the Tribunal by observing as under: “ We have given a careful consideration to the case. There is no doubt that the applicant has been a patient of schizophrenia and has not been leading a normal life. This is reflected in his conduct at work place. The charge sheet issued to him indicates some of the incidents. Although the respondents have not specifically stated that he is suffering CWP No.10391-CAT of 2004 3 from mental illness but surely while dealing with the case, this fact has been at the back of their mind. The applicant himself in his appeal has revealed this fact that he is under treatment in a hospital for the psychic problem. It is thus clear that the respondent department have been magnanimous enough to carry on with him somehow, despite his illness, due to which he was not in a position to properly discharge his duties of teaching the students. His behavior has also been very abnormal as reflected in the charge sheet. These charges have been proved in the enquiry conducted by the respondent Department in which the applicant had also participated. Considering the totality of the situation, the respondents had imposed the penalty of compulsory retirement on the applicant. The respondents had probably no other option because the conduct of the applicant was adversely affecting the career of hundreds of students to whom he was supposed to teach. Once the charges were proved in the enquiry, they imposed the penalty of compulsory retirement in public interest, which they could impose under the rules.” The Tribunal also opined that it had no jurisdiction to appraise or re- appraise the findings to substitute its own finding in preference to the findings recorded by the Disciplinary Authority. In that regard it has placed reliance on various judgements of Hon'ble the Supreme Court in the cases of B.C.Chaturvedi v. Union of India 1995(7)JT 65; State of Tamilnadu v. T.V.Venugopalan 1994(6) SCC 302; Union of India v. Upendra Singh 1994 (3) SCC 457; Government of Tamil Nadu v. A.Rajapanndian 1995(6) SCC CWP No.10391-CAT of 2004 4 749 and Director General of Police and Ors v. Jani Basha 1999 AIR SCW 4802. It may further be noticed that the Tribunal did not find any procedural lapse in the conduct of enquiry proceedings and rejected the argument that the punishment was dis-proportionate to the mis-conduct. In this regard, observations made in para 11 of the orders may be noticed which reads thus: “ During the course of arguments, the learned counsel for the applicant also raised a point that considering the charges, the punishment imposed on the applicant was very harsh and the Tribunal may consider imposing some other punishment. After taking an overall view of the facts and circumstances of the case, we are convinced that the applicant, due to his mental illness, as admitted by him, may not be in a position to properly perform his duties to teach the students. In that case hundreds of students will suffer in their career, for no fault of theirs. In such circumstances and taking into consideration the fact that the charges against the applicant have been proved, the decision of the respondents to compulsory retire him cannot be considered as harsh. It is noted that by his compulsory retirement, he does not lose any of his retrial benefits, except his remaining service for 5-6 years till the age of his normal superannaution. Considering the totality of the circumstances, the punishment imposed on the applicant is not considered such as would shock the conscience of the Tribunal. We are, therefore, not inclined to intervene in the matter.” CWP No.10391-CAT of 2004 5 Mr.G.S.Chahal, learned counsel for the petitioner has argued that the petitioner was suffering from the disease of Schizophrenia during the period when enquiry was held. In that regard he has placed reliance on the OPD ticket of the Government Medical College and Hospital, Sector 32, Chandigarh. According to the learned counsel once the petitioner was suffering from the disease of Schizophrenia then issuance of charge sheet to him on 23.1.2002 ( Annexure P.2) would be wholly meaningless. Referring to the OPD ticket he has stated that the treatment was continuing on 30.1.2002, 25.2.2002, 1.4.2002 so on and so forth. He has also submitted that punishment of premature retirement is far excessive than the allegations of misconduct which are of trivial nature. According to him dis-obedience of the observations made by the Principal or use of 'Doctor' in front of his name by the petitioner should not be regarded such a misconduct as to attract a major penalty of compulsory retirement. Mr. R.K.Sharma, learned counsel for the respondents has vehemently argued that the petitioner has been found guilty of using derogatory remarks against the inspecting team during the process of inspection by the officers of the Education department on 13.8.2001 and thereby he lowered the dignity and respect of the institution which is unbecoming of an employee of Kendrya Vidyala Sangahtan. He has also pointed out that issuance of charge sheet to the petitioner on 23.1.2002 would not suffer from any lapse as the petitioner did not take any defence of Schizophrenia nor anything is visible from the record of the enquiry proceedings. Mr. Sharma has further submitted that this Court cannot go into the question of quantum of punishment until and unless some defect in the enquiry is highlighted. CWP No.10391-CAT of 2004 6 After hearing the learned counsel for the parties at a considerable length and perusal of record we are of the view that this petition lacks merit and is thus liable to be dismissed. The charges against the petitioner have been proved after holding enquiry in accordance with Rule 14 of the Rules which are admittedly applicable to the employees of Kendrya Vidyala Sanghathan to which the petitioner belongs. Once the enquiry has been held in accordance with the procedure prescribed by the rules then there is no room to conclude that the petitioner has been prejudiced in any manner. He was given an option to take the services of a co-employee to defend his case but he preferred to defend his case himself. The disease Schizophrenia is not such a disease which would result into insanity of such a nature that during the whole period a patient is unable to understand. It is only for a small interval that the patient may not be within his senses. Therefore, we have no doubt that the sickness of the petitioner has got no bearing on the issuance of charge sheet, proceedings of enquiry and the findings recorded by the Enquiry Officer. We are further of the view that once the petitioner himself has accepted that he was suffering from a disease like Schizophrenia then it would itself constitute sufficient ground to compulsory retire him from service. We are further of the view that one principle which is now well settled is that quantum of punishment awarded to an employee should not be interfered with unless there is any procedural illegality or violation of principles of natural justice. The well known principles of Wednesbury test have been considered by Hon'ble the Supreme Court as succinctly clarified in para 31 of its judgement rendered in the case of Union of India v. G.Ganayutham (1997) 7 SCC 463which reads thus: CWP No.10391-CAT of 2004 7 “ 31. The current position of proportionality in administrative law in England and India can be summarised as follows: (1)To judge the validity of any administrative order or statutory discretion, normally the Wednesbury test is to be applied to find out if the decision was illegal or suffered from procedural improperties or was one which no sensible decision make could, on the material before him and within the framework of the law, have arrived at. The Court would consider whether relevant matters had not been taken into account or whether irrelevant matters had been taken into account or whether the action was not bona fide. The Court would also consider whether the decision was absurd or perverse. The Court not however go into the correctness of the choice made by the administrator amongst the various alternatives open to him. Nor could the Court substitute its decision to that of the administrator. This is the Wednesbury test. (2)The Court would not interfere with the administrator's decision unless it was illegal or suffered from procedural impropriety or was irrational- in the sense that it was in outrageous defiance of logic or moral standards. The possibility of other tests, including proportionality being brought into English administrative law in future is not ruled out. These are the CCSU principles. (3)(a)As per Bugdacay, Brind and Smith as long as the Convention is not incorporated into English law, the English CWP No.10391-CAT of 2004 8 courts merely exercise a secondary judgement to find out if the decision maker could have, on the material before him, arrived at the primary judgement in the manner as has done. (3)(b) If the Convention is incorporated in England making available the principle of proportionality, then the English courts will render primary judgement 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 judgement as to reasonableness will remain with the executive or administrative authority. The secondary judgement 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.” The afore-mentioned view of the two Members Bench of the Hon'ble Supreme Court has been approved by a Constitution Bench of seven Judges in the case of Rameshwar Prasad (VI) v. Union of India (2006) 2 SCC 1. The Constitution Bench in para 242 has concluded as under: “ 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 CWP No.10391-CAT of 2004 9 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.” When the facts of the present case are considered in the light of the principles laid down in the afore-mentioned judgements it becomes evident that the order passed by the respondents does not suffer from any procedural lapse nor it could be shown that wholly irrelevant material has been taken into consideration or relevant material has been ignored. It can also not be concluded that the decision to retire the petitioner compulsory is absurd and no reasonable or sensible person could have ever reached it. Therefore, the writ petition is wholly without merit and is thus liable to be dismissed. For the reasons stated above, this petition fails and the same is dismissed. (M.M.Kumar) Judge (Sabina) 7.5.2008 Judge okg