2008 ALL SCR 741
S.B. SINHA AND HARJIT SINGH BEDI, JJ.
State Of M.P. & Ors. Vs. Hazarilal
Civil Appeal No.6498 of 2005
12th February, 2008
Petitioner Counsel: SIDDHARTHA DAVE, Ms. VIBHA DATTA MAKHIJA and Ms. NEMTIBEN AO
Respondent Counsel: NITIN S. TAMBWEKAR, B. S. SAI and K. RAJEEV
(A) M.P. Civil Services (Classification, Control and Appeal) Rules (1966), R.19 - Constitution of India, Art.311 - Respondent involved in a matter of causing simple injury to another person, he was not sent to prison, a fine of Rs.500/- imposed upon him - Considering nature of case in which respondent involved or punishment imposed upon him, order setting aside dismissal upheld - Appeal dismissed. (Para 7)
(B) Constitution of India, Arts.226, 311 - Service matter - Misconduct - Discretionary powers, exercise of - Authority conferred with a statutory discretionary power is bound to take into consideration all attending facts and circumstances of the case before imposing an order of punishment - While exercising such power, disciplinary authority must act reasonably and fairly. M.P. Civil Services (Classification, Control and Appeal) Rules (1966), R.19. (Para 8)
(C) Constitution of India, Art.226 - Service matter - Misconduct - Punishment - Judicial review - Doctrine of proportionality - Legal parameters of judicial review have undergone a change - Wednesbury principle of unreasonableness has been replaced by the doctrine of proportionality. (Para 12)
Shankar Das Vs. Union of India, (1985)2 SCC 358 [Para 9]
Indian Airlines Ltd. Vs. Prabha D. Kanan, 2006(6) ALL MR 174 (S.C.)=(2006)11 SCC 67 [Para 12]
State of U.P. Vs. Sheo Shanker Lal Srivastava, (2006)3 SCC 276 [Para 12]
M.P. Gangadharan Vs. State of Kerala, AIR 2006 SC 2360 : (2006)6 SCC 162 [Para 12,16]
Seal (FC) Vs. Chief Constable of South Wales Police, 4 All ER 177 [Para 13]
Huang (FC) Vs. Secretary of State for the Home Department and Kashmiri (FC) Vs. Secretary of State for the Home Department, 4 All ER 15 [Para 13]
Tweed Vs. Parades Commission for Northern Ireland, 2 All ER 273 [Para 13,14]
Belfast City Council Vs. Miss Behavin Limited, 3 All ER 1007 [Para 13]
R Vs. Her Majesty's Attorney General, 3 WLR 922 [Para 13]
Coimbatore District Central Co-operative Bank Vs. Coimbatore District Central Co-operative Bank Employees Association, (2007)4 SCC 669 [Para 16]
Ranjit Thakur Vs. Union of India, (1987)4 SCC 611 [Para 16]
S. B. SINHA, J.:- Respondent was a Peon appointed in a Middle School. He is said to have assaulted one Ram Singh on 5th October, 1989. He was prosecuted for commission of the said offence and was convicted by a Court of Magistrate by a judgment dated 22nd July, 1992 under Section 323 read with Section 34 of the Indian Penal Code and sentenced to undergo one month's simple imprisonment. On an appeal preferred by him, the sentence was reduced to a fine of Rs.500/- only. A revision thereagainst was filed by the respondent herein before the High Court.
2. A show cause notice was issued to the respondent as to why disciplinary action shall not be taken against him in view of the judgment of conviction passed against him in the said criminal case. By an order dated 25th November, 1993 his services were terminated by the Deputy Director, Vidisha. An appeal thereagainst was preferred by the respondent in terms of Madhya Pradesh State Services Act. However, no order was passed therein. A revision was filed by him before the Deputy Director, Public Education. During the pendency of the said revision application, his criminal revision petition filed before the High Court was dismissed. The prayer of the respondent that he be reinstated in service was rejected in terms of the order dated 11th January, 1994 passed by the Deputy Director, Public Education, Vidisha.
"However, the applicant succeeds on the ground that the punishment of removal from service is grossly excessive because the punishment was only under section 323, IPC and the High Court has clarified that the punishment does not involve any moral turpitude every power vested in a public authority has to be exercised fairly, justly and reasonably. Respondents should have applied their mind to the penalty which should be appropriately be imposed in the circumstances of the case. Please see Shankar Das Vs. Union of India ((1985)2 SCC 358). This does not seem to have been done."
A writ petition filed thereagainst by the appellants before the High Court has been dismissed by reason of the impugned judgment.
4. Mr. Siddhartha Dave, learned counsel appearing on behalf of he appellants, submitted that the High Court committed a manifest error in passing the impugned judgment in so far as it failed to take into consideration that the Tribunal or the High Court could not have interfered with the quantum of punishment.
5. The case in hand appears to be a gross one. This Court is unable to appreciate the attitude on the part of the appellant herein which ex-facie appears to be wholly unreasonable. Respondent had not committed any misconduct within the meaning of the provisions of the Service Rules. He was involved in a matter for causing simple injury to another person. He was not even sent to prison. Only a sum of Rs.500/- was imposed upon him as fine.
6. Rule 19 of M.P. Civil Services (Classification, Control and Appeal) Rules, 1966, which provides for special procedure in certain cases, to which reliance has been placed by the appellants does not appear to be applicable in the instant case. The said Rule reads thus :-
"19. Special procedure in certain cases.
Notwithstanding anything contained in Rule 14 to Rule 18
(i) where any penalty is imposed on a Government servant on the ground of conduct which has led to his conviction on a criminal charge, or
(ii) where the disciplinary authority is satisfied for reasons to be recorded by it in writing that it is not reasonable practicable to hold an inquiry in the manner provided in these rules, or
(iii) where the Governor is satisfied that in the interest of the security of the State, it is not expedient to hold any inquiry in the manner provided in these rules, the disciplinary authority may consider the circumstances of the case and make such orders thereon as it deems fit.
Provided that the Commission shall be consulted where such consultation is necessary, before any orders are made in any case under this rule."
7. By reason of the said provision, thus, "the disciplinary authority has been empowered to consider the circumstances of the case where any penalty is imposed on a Government servant on the ground of conduct which has led to his conviction on a criminal charge", but the same would not mean that irrespective of the nature of the case in which he was involved or the punishment which has been imposed upon him, an order of dismissal must be passed. Such a construction, in our opinion, is not warranted.
8. An authority which is conferred with a statutory discretionary power is bound to take into consideration all the attending facts and circumstances of the case before imposing an order of punishment. While exercising such power, the disciplinary authority must act reasonably and fairly. Respondent occupied the lowest rank of the cadre. He was merely a contingency peon. Continuation of his service in the department would not bring a bad name to the State. He was not convicted for any act involving moral turpitude. He was not punished for any heinous offence.
9. The Tribunal, in our opinion, rightly placed reliance upon the decision of this Court in Shankar Das Vs. Union of India : (1985)2 SCC 358 wherein this Court commended the judgment of a Magistrate of Delhi as he had let off the appellant therein under Section 12 of the Probation of Offenders Act stating :-
"Misfortune dogged the accused for about a year...... and it seems that it was under the force of adverse circumstances that he held back the money in question. Shankar Dass is a middle-aged man and it is obvious that it was under compelling circumstances that he could not deposit the money in question in time. He is not a previous convict. Having regard to the circumstances of the case, I am of the opinion that he should be dealt with under the Probation of Offenders Act, 1958."
"7. It is to be lamented that despite these observations of the learned Magistrate, the Government chose to dismiss the appellant in a huff, without applying its mind to the penalty which could appropriately be imposed upon him insofar as his service career was concerned. Clause (a) of the second proviso to Article 311(2) of the Constitution confers on the Government the power to dismiss a person from service "on the ground of conduct which has led to his conviction on a criminal charge". But, that power, like every other power, has to be exercised fairly, justly and reasonably. Surely, the Constitution does not contemplate that a government servant who is convicted for parking his scooter in a no-parking area should be dismissed from service. He may, perhaps, not be entitled to be heard on the question of penalty since clause (a) of the second proviso to Article 311(2) makes the provisions of that article inapplicable when a penalty is to be imposed on a government servant on the ground of conduct which has led to his conviction on a criminal charge. But the right to impose a penalty carries with it the duty to act justly. Considering the facts of this case, there can be no two opinions that the penalty of dismissal from service imposed upon the appellant is whimsical."
12. Furthermore the legal parameters of judicial review has undergone a change. Wednesbury principle of unreasonableness has been replaced by the doctrine of proportionality. [See : Indian Airlines Ltd. Vs. Prabha D. Kannan : (2006)11 SCC 67 : [2006(6) ALL MR 174 (S.C.)]; State of U.P. Vs. Sheo Shanker Lal Srivastava : (2006)3 SCC 276 and M.P. Gangadharan and another Vs. State of Kerala and others : AIR 2006 SC 2360].
13. At this stage we may also notice the application of the Doctrine by the United Kingdom House of Lords in Seal (FC) (Appellant) Vs. Chief Constable of South Wales Police (Respondent) : 4 All ER 177; Huang (FC) (Respondent) Vs. Secretary of State for the Home Department (Appellant) and Kashmiri (FC) (Appellant) Vs. Secretary of State for the Home Department (Respondent) (Conjoined Appeals) : 4 All ER 15; Tweed (Appellant) Vs. Parades Commission for Northern Ireland (Respondents) (Northern Ireland), 2 All ER 273; Belfast City Council (Appellants) Vs. Miss Behavin' Limited (Respondents) (Northern Ireland), 3 All ER 1007 and R (on the application of Countryside Alliance and others) Vs. Her Majesty's Attorney General and another, 3 WLR 922.
14. It is interesting to note that distinguishing between the traditional grounds of judicial review and the doctrine of proportionality, Lord Carswell in Tweed (Supra) after referring to previous decisions and authorities, observed :
"The starting point is that there is an overlap between the traditional grounds of review and the approach of proportionality. Most cases would be decided in the same way whichever approach is adopted. But the intensity of review is somewhat greater under the proportionality approach. Making due allowance for important structural differences between various convention rights, which I do not propose to discuss, a few generalisations are perhaps permissible. I would mention three concrete differences without suggesting that my statement is exhaustive. First, the doctrine of proportionality may require the reviewing court to assess the balance which the decision maker has struck, not merely whether it is within the range of rational or reasonable decisions. Secondly, the proportionality test may go further than the traditional grounds of review inasmuch as it may require attention to be directed to the relative weight accorded to interests and considerations. Thirdly, even the heightened scrutiny test developed in R Vs. Ministry of Defence, Ex p Smith,  QB 517, 554 is not necessarily appropriate to the protection of human rights."
16. Reliance has been placed by the learned counsel on Coimbatore District Central Co-operative Bank Vs. Coimbatore District Central Co-operative Bank Employees Association and another : (2007)4 SCC 669 wherein also this Court accepted the applicability of the doctrine of proportionality. Therein this Court has quoted with approval the decision of this Court in Ranjit Thakur Vs. Union of India and others : (1987)4 SCC 611 as also M.P. Gangadharan and another Vs. State of Kerala and others : (2006)6 SCC 162, which had applied the doctrine of proportionality.