ft-F-^^ ^_e-?--^'^ ^^ HIOH COURT OF CHAmSGARH: BILASPUR DIVISIOW BBHCH Hon'Me Shri S.R. Nayak, C.J., Hoa'bIeSIu-i D.R. Deshmukh, J WRIT PBTITION N0.162/2004 PBTITXONER J. Hussain S/o Late Subamia Aged about 52 years, (Ex-UDC, Kendriya Vidyalaya, Along), C/o. StiabiaaTypuig Centre, Mohaa Talkies Road, P.0, Jauuiipali, Distiict Korba (C.G.j VBRSUS 1 Union of India, TIuough its Secretaiy Deparfacaent of Education Ministiy ofHumaa Resources aad Development 301, C-Wing, Shastri Bhavan, New Delhi 2. Depuly CommissiQner Kendriya Vidyalaya Sangafhau, 18, Institi.itional Area, Shaheed Jeet Siagh Marg, NewDeUu—110016 3. Assistaat Coiniaissioner, Keadriya Vidyalaya Saagafhaa, .Maligaon Chariali, Guwahati-781012 4. Principal, Kendriya Vidyalaya, P.0. Araimile, Tura, West Garo Hffls, Meghalaya -794001 5 Registear, Central Adiimustrative Tribuaal, 1 Jabalpur Bench, JabalpT.iT (M.P.) Us -a.- Preseat: SIuiAmrito Das, couasel forthe petitioner. Shri Narayan SBrivastava, for respondeRts no. 1 to 4 -/ ^t>-.. '\\ ORALORDBR (20.04.2006) The foUowing oral orier ofthe Coyrt was passed by S.R. Nayak. C.J. 1 This Writ Ttetition arises out of ctisciplinaTy action taken by fhe respondents imposiag penally of reiaoval from service as a disciplinary ineasure on the petitioner. The facts of fhe case, in brief, are as foUows: The petitioner was au enaployee of Kendriya Vtdyalaya Sangafhan since 1977. During the year 1999-2000, fhe petitioner was posted as Upper Division ClerK at Kendriya Vidyalayct, TuravoL the State of Meghalaya. The petitioner was served wifh a charge laeinodated 2/3-8-2000 iinderftieprovisionsofRule 14 ofGenlral Civil Seryices (CCA) Rules, 1965 (forshorfCCA Rules") and Rule 20 ofthe Central Civil Services (Gondzict) Rnles 1964 aUegmgthat, the petitioner forcibly entered uito the Rrincipal's ofiEee arolind 11;30 a.in. on 24/5/2000 in a fiiUy drunkeii state and ttiereby couinutted miscondiict and violated Rule 3 0 (ii) (ui) 6f CCS (Condiict) Rules 1964. The petitioner submitted his reply. In fhe reply, fhe petitioner adniitted that when he eatered the office ofthe Priacipal, he was in drtuikea state, but, deai^ fhe chai^e of forcihle entiy mto ttae PrincipaTs office and ofifered lus ua(»nditibna^ CQnsumption ofalebfaQl and requested the disciplto take sympafhetic view oftlie niatter aiui &igi\re 1iirn. 't^ Ajssisto 116 -s- L- CoTnTnissjoner, Kendriya Vidyalaya Sangathan, Guwahati^ fhe 3rd respoadeat herein, passed fhe orderdated 31/8/2000 removing the petitioner froin seivice as a discipliaary meaaure for the aUeged iiusconduct. (3) The petitioner feeluig aggrieved by the said oider of the 3rd respondent pi-eien-ed an appeal under Rule 23 oftheeCARulesto the Dy. CouLmissioner, Kendriya Vidyalaya Sangafhan, 2nd respondent hereilL. The 2nd respondertt disinissed the appeal by his orderdated 03/09-07-2001. Thepetitionerjeelmgaggrieved by the above two oiders of fhe 2nd and 3Td lespondents iastituted O.A No.770/2001 before fhe Central Admuustrafive Tribunal (for short "the Tribiuial") Jabalpur Bench, cauip at Bilaspur. The Tribuiial haviag opined fhat fhe petitioner has adinitted the inisconduct aHeged against hua and therefore, conductmg eitquiiy was not necessaiy aald that he was also warried for siniilar inisconduct ui fhe past, refused to graat any reUef t6 the petitioner, aad accordiagly by its order dated 24/9/2003 dramissed fhe OA No.770/2001. Hence, this petition. (4) We have heard leamed counsel forfheparttes. (5) Leamed counsel for the petitionerwould contend that though consuming alcohol diuing the day tune aad mafcmg entiy iato the office of the Prmcipal of the ScUool, js uiideniably a conduet not expected ofan einployee ofthe School, that conductitself would aot attract fhe extreine penalty of reiaoval fiipia serviee. LeaEaed counsel would contend that the extreiiie penalty of reino^al fixiia seivice, ia fhe facts and circumstances of this cas^, was unwarratttEd, particulariy because, fhe petiyoner liimself lieaMzihg ^ u 'f^.-^-f 1:.' • i ^- his luistake adiaitted consuitiptioH. of the alcohol when he entered the office pf flle Sehool and teadered uncondifional apology fer his wrong-doiug aad.^requested the cliscipUriaiy autlwrily to fbrgiye faim. (6) Havirig heard leamed Gouiisel fer fhe parties, the only question that arises for consideration is whether the exticine penalty of disinissaE&oia service iinposed by the 3rf respondentas approved by the^2nA respondent, in the facts and ciTGiunstaiices of fhis case, could be regarded as the one proportionate to fhe gravity of iniscoaduct cOTnTnitted by fhe petitipner; It is weU settled by the judgments of fhe Supreme Court m B.C. Cliattu-vedi Vs Itoioa^^^ ladia aad otlters1 Uaioa of ladia Vs Ciariayutliam2 and Om Kumar Vs Uniou ofludia3, fo cite a few, fhat wtule reviewiEig the disciplinary action under Artacle 22i6 of the Constitution., ui appi-ppriate cases, the Court is entitled to apply the pnnciple of proportionalily aad the doctnne of Wednesbury Rule of reasonableness. It te held and reiterated that-ifthe peiialty^unposed by a disciplulaiy authority, iu ttie facts aad circuiastances of the case, shocks fhe conscience ofthe Court Euad fhe Court thinks that it is totaUy uiu'easonable, arbitraiy and dispropdrdonate t6 the' gravily of niiscondnct GOThmitted by a delinquent, the Court could step in under Articte 226 and redux^'tlw peiiatty.^ y^ of prQportionality has Gonie to stay as one of fhfi graiunds pfjudiGial review ofadm.inistra.twe actfons. The doctniie-ofgiopor^ one which confines fhe liimt offhe exerc'ise oppowerto means wlueh 1. AIR 1996 SC;484;:: . ^ 2. (ftmi997 363387)= (1997) 7'SCp;463 3: AIR2000 SCW4361 ;: ' ; : -s~- 118 t;K"is-^ \..- are proportional to fhe object to be pureued. In other words, the doctrine of proportionaliily niaadates fhat disciplinaiy ineasures must not be more drastic than is necessary for attaming the desircd icsiilts. The doGtrine of proportionality requires fhe Court tojudge whether ffae action taken by the disciplinary aufhori.ly was really needed as weU as whefher it was wittun fhe range of courses of action tfaat could reasonably be foUowed. It is titie that judicial review generaUy speakuig is not directed e^ainst the decisiQn but it is directed against the decision-Diafcmg process. The question of choice aad qiiaatum of punishiaent is within fhe jurisdiction and discretion of the disciplinaiy authority. Biit tfae disciplinary measure is to suit the xnisconduct and the delinquent. It should not be vindictive or uaduly harsh. It should not be so disproportionate to nature aad kind ofiniscoD.duct as to shock the eonscieuce ofttie Court aad amount in itselftoevidcnceofbiasQrvindictiveness. The dQctrine ofproportionality,as part ofthe concept ofjudicial review, woiild ensure that .even on fhe aspeet which is, ofherwise, wifhin the exclusive proviace offhe discipUnaiy authority, iffhe decision of fhe aiifhority even as to piuiishment as a disciplinary measure is aa outrageous defiance of logic and rationality, fhen fhe punishinent would not be inunuae froin correction. Itis sobecause, UTationality and perversity are recognized grounds of judicial review. Ifa discipliitary nieasiire taken by a discipluiary aiifhorily is grossly disproportionate, fhe said decision is not immuiie froin judicial scrutiny. - ; (7j In Couacil of CivU Service Unions Vs. Miaister for Civil Seryice 4 Lord Diplock obseryed : 4. . (1984)3 ALL ER 935 : (1984) 3 WtR 1174 : (1985)AG 374 6- ^3 " Judicialrcview has I thiak developed to a stage today when, without peiterating any aaalysis ofthe steps by whieh the developinent has come about, one can convenieutly classify under three heads the grounds onwhich admmistrative action is subjeet to control by judicial review. The first ground I would caU ''illegalily", fhe second "in-ationalily" aad fhe thjrd "procediiral impropriety". This is not to say that further developinent on a case by case basis inay not iu course oftime add furfher groiinds. Ihave inmind pctrticulwly ihe possible adoption in the future of the principle of 'proportionality'' In R. v. Bamsley Metropolitan Borough Council, ex parte Hook, 6 where the piuiishment imposed on a statl holder i.e. loss of his market license, for baviag urinated iu pubUc whicli has described by LORD DENNING MR as "fhe pumshment was too seyere". In Hind Coastructioa and Bn^. Co. Ltd. Vs. Thefa- Worhmea 6, some workers remamed absent fiTom duty trcatmg a particular day as hoMday. They were dismissed froln serffice. The ludustrial Tribzinal set aside the action. Confinning fhe oider offhe tnbunal, fhe Suprem.e Courtobserved that the absence could have been treated as leave without pay., The workniaii might have been wamed and fined. The Suprenie Court observed:'tfl is impossiWe to fhirdc thal any reasonable employer wauld hcwe imposedthe extreme punishm.ent of disrnissal on its entire perm.aneni sic^'infhisimanner." 5. (1976)3AUER452, 6. AIR 1965 80917 (919-20); (1965)3 SCR 85 l2o ^ (10) In Bha^t Ram v. State of Hlmachal Pradesh,7 the Supreine Court observed : "II is equally true thai, the penalty imposed miist be commensurate with the grat'ity oflhe misconduct andthat any perwlty disproportiortdte fo the gravity of ihe nus(x>nduct would be violativeofArticle 14 ofthe Constitutwrf, (11) In Raiyit Thakur Vs. Union of Indla 8, aa anny officer did not obey the lawful cominaud of his superior of&cer by not eatins food offered to him. Court inartial proceedings wee iiiitiated aad a sentence of ngorous mlprisoninent ofone yearwas imposed. He was also disniissed froin service, with added disqiiaBfication fhat he would be unfit for future einployiaent. The sakt order was challenged inter alia on. the ground ffctat the punishment was grossly dispropordonate. Upholding fhe eonteution, foUowin.g Council of Civil Servicc Union4 (Supia), and emphasiziag fhat "all powers have legal ffm;(s , Venkatachaliah, J (as he thenwas) observed: "The qnestion of the choice and quantum. of punishinent is within the jurisdiction and discretion of fhe conrt-martial. But fhe sentence has to suit fhe offence and fhe offender. It should not be. vindictive or unduly harsh. It should not be so disproportioaate to the ofFence as to shock fhe eonscieuce and amount in itself to conclusive evidence of bias. The doctrine of proporfiona.Vfy as part oftheconceptofjudidaS review, ivould ensure that even on an aspecl which is, otherwise, within ihe excluswe province of ihe court- martial, ifihe dedsion ofthe courf even as to sentence 7, . AIR 1983 SC 454 at 460 8. (1987) 4 SCC 611 : AIR 1987 SC 2386 8- ^ ;»:< is an outrageous defidnce of logic, then the sentenee wouldnoibe irnn'tunefroTn. correction. Irrationality dnd peniersity arereoogmzedgraunds ofjudidctS review (12) In Sardar Siagh Vs. Union oflndia 9 , a Jawan semngm aa ludian Anny was graated leave and while goiag to his hom.e town, he piirchased eleven botfles ofrum 'from. army csuiteen fhough he was entifled to cany only four botfles. In court inartial prQceeduigs, he was sentenced to itadergo R.I. for ttiree inonths aad was also dismissed froia service. His petition uiider Article 226 of the Constitution was dismissed by the High Court. The petitipner approached tlie Supreine Court. Holding the action arbitraiy and punishineut severe, ttieSupreiae Coupt set aside the order. (13) Here is a ease, where nothing is brought on record to show that fhe petitioner is a Uabitual drunteard and used to coine to the schobl preinises ia drunkea state regularly or quite often. It has coine in the evidence ofthe petitioner that on the fateful day, having applied for leave, he had gone to fhe inarket aad his fneuds oflfered druik; he consuined it and siace fhe consuniption of alcohol was a new experience for hica, he felt drowsiaess immediately after consumption of the alcohol aiid wlule retuming hoine, he reiiieiubered that he had left SQine of lus articles ia the school premises and fhcrefore, he had conie to the school premises to pickup the left-oiit articles belonging to him. It is not fhe ease ofthe discipliaary aufhorily that the petitioner in a druiiken state entered the school preniises, ausbeliaved witB any staff or the Priacipal pr created any|nuisau^a etc. Undenial^, ffie coiichict pf^ 9. (1991)138cc2ll3 ;AIR1992.SC;417'- •; ' • ^- ^z <^3r 'k ofschool consunimg alcohol whUe going to fhc schoolpremises itself is aa objectiQnabIe conduct and that conduct caunot be overlooked by the school inaaE^eiaent, but, at tfae same tnne, tfae discipliaary action fhat may be taken by the Schbol maaageinent in such cases shozild be guided by the postulates ofArticle 14, ie., principles of the reasonableness, faimess, propordQiiality and non-arbiti-arfness. The penalty fhat maybe unposed on a delinquent byvirtue ofArticle 14 postulates should be reasonable aad piBportionate to the gravily of niisconduct. It is stated before us by learued eonnsel for the petitioner fhat the petitioner is a niarried man with a family consisting of uuinber ofdependents to siipport aad since he is out of einployiaent, the whole fanuly is m penuiy and unbearable hardship. Takiqg Into accoiiat the totality of the facts and cif'cuinstances ofliie case, fhe gravity ofthe misconduet coinmitted by fhe petitioner aad in the preinises oflaw declared by the Apex Court, we are of fhe considered opiirion fhat the extreme penalty of reiaoval froin sen?ice, which is regaided as an CCOB.OIIUC capital piinishment, aad it violates Article 21 right if unjustified, is too severe aad shockmgly disproportionate to the gravily pf misGonduct coTnmitted by him. In that view of the inatter, we are iaclmed to step in under Article 226 and reduce the penally. i (14) IQ the result and for the foregoing reasons, the writ petition is allowed ia part, and in substitution ofthe penalty imposed by fhe ctisciplmaiy authorily as confinned by fhe appeUate aufhoiity, we direct reiastateinent of the petitioner info semce witfa coutintiity of service only for the purpose ofpeiisiQnary' benefits. We direct that f&e petitioaer is not entitled to two armual increnients witfaout any cuini-ilati.ve effect. Furfher. we direct fhat the petitiorier iis not -10- ^3- entitled tp any baete-wages, We -thiiik that the above terms would meet the gnds ofjustice. No costs.' Rao|SiA>« Sd/- ChiefJustice Sd-/ Dilip Raosaheb Deshmukh Judge •; \-- ^' ^- fiii