IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA CWP(T) No. 4316/2008 (OA 849/1997) Date of Decision : May 12, 2009 Sh. Balwant Singh Petitioner Versus State of Himachal Pradesh through Secretary (Revenue) to the Government of H.P., Shimla-171002, HP and others Respondents Coram: Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting?1 Yes. For the petitioner : Mr. B. N. Mehta, Advocate, for the petitioner. For the respondents : Mr. R. K. Sharma, Sr. Addl. Advocate General with Mr. Ankush Dass Sood, Addl. Advocate General and Mr. R.P. Singh, Asstt. Advocate General for respondents. Sanjay Karol, J. (Oral) The petitioner was serving as a Clerk in the office of Deputy Commissioner Bilaspur. The disciplinary action was initiated against him for his alleged misconduct. Inquiry Officer was appointed to enquire into the following charges: “1. That he had proceeded on leave without permission. He did not submit his application for 10.10.1991 and on that day he remained absent wilfully. 1 Whether reports of Local Papers may be allowed to see the judgment? 2 2. That Shri Balwant Singh had locked up one Shri Mansha Ram, process-server in his room on 31.8.1991 and misbehaved with his wife. 3. That Balwant Singh on 12.9.1991 had verbally abused one Shri Nikku Ram, Jamadar in Tehsil Office and threatened him. He is also alleged to have prevented Shri Nikku Ram, Jamadar from marking his attendance. 4. That Shri Balwant Singh had proceeded on tour un- authorisedly on 29,30.11.1991 and shown his tour in the attendance register, but later on he tempered with the attendance register and shown his presence in the office. Earlier Shri Balwant Singh had been warned for false TA Claims.” Vide inquiry report (Annexure A-1) the Inquiry Officer held only Charge 1 to have been proved against the delinquent official. The disciplinary authority accepted the inquiry report but however instead of imposing major penalty, by taking a lenient view imposed the following minor penalty vide order dated 21.4.1994 : “a) Censure warning is issued to Shri Balwant Singh. The record of this penalty should be kept in his A.C.R. dossier and this will have bearing on the assessment of merit and suitability for his promotion to the higher post. b) Withholding of three annual increments. This will be effected from the date of this order. It is further indicated that the increments which may be due to the delinquent official prior to the issue of this order may be given to him even though it may have been withheld due to any administrative reason.” 3 Petitioner’s appeal (Annexure A-3) was rejected vide order dated 1.11.1996 (Annexure A-4). Mr. B.N. Mehta, learned counsel for the petitioner has invited my attention to the letter dated 9.10/1991 whereby the petitioner had requested the Naib Tehsildar, his immediate superior, to get window and door repair work of Patwarkhana done through a carpenter. As per the noting on the said application, on 9.10.1991 itself the Naib Tehsildar had directed the petitioner to personally get the repair work supervised and report immediately. Vide report dated 11.10.1991 petitioner reported that he had visited the spot on 10.10.1991 and ensured early completion of the work. The Tehsildar accepted the same in terms of his report dated 19.10.1991. Incidentally both the Inquiry Officer as also the Appellate Authority did not correctly appreciate the said document. What weighed with the said authorities was the fact that on 10.10.1991 petitioner did not sign the attendance register, as the column of signature was found to be blank. It is true that the aforesaid letter, placed on record by Mr. Ankush Dass Sood, learned Addl. Advocate General, does not reveal that the petitioner had sought specific direction for visiting the site and getting the work carried out on 10.10.1991, but however, it is evident that the Naib Tehsildar himself had directed the petitioner to submit the report promptly after personally getting the work supervised. The petitioner was not supposed to be in office on 10th of October, therefore, where was 4 the question of his signing the attendance register. Admittedly the Patwarkhana was at a distant place. It is not the respondents’ case that the Naib Tehsildr had given a wrong noting to help the petitioner or that both of them were acting in collusion with each other. Hence the reasoning adopted is not only perverse, illogical and irrational but contrary to the record. It is a settled law that while exercising jurisdiction under Article 226 of the Constitution of India, this Court does not act as an appellate authority. Its jurisdiction is circumscribed by limits of judicial review to correct errors of law or procedural errors leading to manifest injustice or violation of principles of natural justice. Judicial review is not akin to adjudication of the case on merits as an appellate authority. (State of A.P. vs. S. Sree Rama Rao, reported in AIR 1963 SC 1723). The Apex Court in V. Ramana v. A.P. SRTC & Ors. (2005) 7 SCC 338, has held that the Court should not interfere with the administrator’s decision unless it was illogical or suffered from procedural impropriety or was shocking to the conscious of the Court in the sense that it was in defiance of logic or moral standards. The penalty imposed can be interfered with if it shocks the conscious of the Court. It is also a settled law that this Court would not reverse a finding of the inquiring authority on the ground that the evidence adduced before it is insufficient. If there is some evidence to 5 reasonably support the conclusion of the inquiring authority, it is not the function of the court to review the evidence and to arrive at its own independent finding. As long as there is some legal evidence to substantiate the finding, the adequacy or reliability of the evidence is not a matter which can be permitted to be canvassed before the court in writ proceedings. In Coimbatore District Central Cooperative Bank v. Coimbatore District Central Cooperative Bank Employees Assn. & Anr. (2007) 4 SCC 669, the Apex Court further held as under:- “It is clear that the Indian Legal system has accepted the doctrine of proportionality. With the rapid growth of administrative law and the need and necessity to control possible abuse of discretionary powers by various administrative authorities, certain principles have been evolved by courts. If an action taken by any authority is contrary to law, improper, irrational or otherwise unreasonable, a court of law can interfere with such action by exercising power of judicial review. One of such modes of exercising power, known to law is the “doctrine of proportionality”. “Proportionality’ is a principle where the court is concerned with the process, method or manner in which the decision-maker has ordered his priorities, reached a conclusion or arrived at a decision. The very essence of decision-making consists in the attribution of relative importance to the factors and considerations in the case. The doctrine of proportionality thus steps in focus true nature of exercise – the elaboration of a rule of permissible priorities. “Proportionality” involves 6 “balancing test” and “necessity test”. Whereas the former (balancing test) permits scrutiny of excessive onerous penalties or infringement of rights or interests and a manifest imbalance of relevant considerations, the latter (necessity test) requires infringement of human rights to the least restrictive alternative. The doctrine of proportionality has its genesis in the field of administrative law. The Government and its departments, in administering the affairs of the country, are expected to honour their statements of policy or intention and treat the citizens with full personal consideration without abuse of discretion. There can be no “pick and choose”, selective applicability of the government norms or unfairness, arbitrariness or unreasonableness. It is not permissible to use a ”sledgehammer to crack a nut”. As has been said many a time; “where paring knife suffices, battle axe is precluded.” In Bank of India & Anr. v. Degala Suryanarayana (1999) 5 SCC 762, the Apex Court has held as under:- “Strict rules of evidence are not applicable to departmental enquiry proceedings. The only requirement of law is that the allegation against the delinquent officer must be established by such evidence acting upon which a reasonable person acting reasonably and with objectivity may arrive at a finding upholding the gravamen of the charge against the delinquent officer. Mere conjecture or surmises cannot sustain the finding of guilt even in departmental enquiry proceedings. The Court exercising the jurisdiction of judicial review would not interfere with the findings of 7 fact arrived at in the departmental enquiry proceedings excepting in a case of mala fides or perversity i.e., where there is no evidence to support a finding or where a finding is such that no man acting reasonably and with objectivity could have arrived at that finding. The Court cannot embark upon reappreciating the evidence or weighing the same like an appellate authority.” Further in Chairman and Managing Director, United Commercial Bank and others vs. P.C.Kakkar, reported in (2003) 4 SCC 364, it has been held as under:- “12. To put it differently, unless the punishment imposed by the disciplinary authority or the Appellate Authority shocks the conscience of the court/tribunal, there is no scope for interference. Further, to shorten litigation it may, in exceptional and rare cases, impose appropriate punishment by recording cogent reasons in support thereof. In the normal course if the punishment imposed is shockingly disproportionate it would be appropriate to direct the disciplinary authority or the Appellate Authority to reconsider the penalty imposed.” “15. ….. It needs no emphasis that when a court feels that the punishment is shockingly disproportionate, it must record reasons for coming to such a conclusion. Mere expression that the punishment is shockingly disproportionate would not meet the requirement of law….” 8 The action of the authorities is irrational, unreasonable and there is no legal evidence to even prima facie prove that the petitioner had absented. The disciplinary authority has relied upon the report of the Inquiry Officer which is based on surmises and conjectures. For the aforesaid reasons the present petition is allowed. Annexure A-2 and A-4 being the order of penalty and rejection of appeal is quashed. As a corollary thereof the respondents are directed to make correction in the record and take all consequential actions in accordance with law, at the earliest. (Sanjay Karol), Judge. May 12, 2009 (PK)