Dismissed

Kapil Deo Prasad v. State and Ors.

Rajasthan HC6 Apr 2015CW/75/1997

Case brief

AI extract

What is this about?

The High Court, exercising writ jurisdiction, examined a disciplinary penalty case where the petitioner was punished for mutation irregularities. After finding fair procedures and lack of irrationality, the Court dismissed the writ petition, holding the punishment did not shock the conscience.

What did the court decide?

Writ application dismissed for lack of merit as the punishment was not outrageously disproportionate nor was there procedural impropriety.

Kapil Deo Prasad Vs State and Ors. — Pension and Retirement Benefits | Rajasthan HC (2015)

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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR

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O R D E R

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S.B. Civil Writ Petition No.75/1997 Kapil Deo Prasad Vs. State of Raj. Anr.

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Date of Order

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:::: 6^th April, 2015

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PRESENT HON'BLE MR.JUSTICE VEERENDR SINGH SIRADHANA

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Mr. S.C. Gupta, for the petitioner. Mr. B.L. Awasthi, Addl. G.C., for the State-respondents.

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The petitioner was served with a charge-sheet on 25^th September, 1991, under Rule 16 of the Rajasthan Civil Services (Classification, Control & Appeal) Rules, 1958 (hereinafter referred to as the 'Rules of 1958', for short) and consequently was inflicted with the penalty of stoppage of three grade increments with cumulative effect by the Disciplinary Authority vide order dated 31^st August, 1996. Aggrieved of the penalty imposed, the petitioner has instituted the present writ proceedings, with a prayer to quash and set aside the order of penalty and to exonerate the petitioner of the charges levelled against him.

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Shorn off unnecessary details, the indispensable material facts, necessary for appreciation of the controversy raised, needs to be first noticed. The petitioner was initially appointed as ' Amin' in the Settlement Department on 17^th August, 1961 and was accorded promotion to the post of Inspector Settlement in the month of September, 1989, and he has maintained a clean and unblemished record. The

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disciplinary action initiated relates to three Mutation entries which pertains to Village Pinan Tehsil Rajgarh, District Alwar. The entries were made in the revenue records after sanction/order of the Assistant Settlement Officer viz. Shri Chhagan Lal Verma. Though a preliminary enquiry was conducted against one Shri Ramesh Chandra Sharma ' Amin' along with the petitioner but the proceedings were dropped against him. The petitioner was not accorded any opportunity of hearing in the preliminary enquiry.

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Learned counsel for the petitioner, reiterating the pleaded facts and grounds of the writ application, has assailed the impugned order of penalty mainly on three counts (a) for the findings of the enquiry officer and the disciplinary authority being perverse to the facts and materials on record and also against the provisions of law, (b) for no opportunity of hearing was accorded to the petitioner and the required documents were not furnished, and (c) for the penalty imposed is disproportionate to the nature of alleged misconduct.

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The findings arrived at by the Enquiry Officer, for the petitioner accepted the applications of the applicants for Mutation without stamp fee of Rs.1/- on the application and for filling up Form P-21 “Khasra Parishodhan Patra”, without obtaining prior permission of the concerned Authority i.e. the Assistant Settlement Officer; have been assailed on the ground that as per Settlement Rules Manual and the

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Notification dated 28^th May, 1965, no stamp fee is required on the application for Mutation or for change the Mutation, applied for by the applicant-agriculturists to the ' Amin' or to the Assistant Settlement Officer, during the Settlement operations. The finding on the allegation for not first obtaining order of the competent authority, on the applications, submitted by the agriculturists/applicants, has been assailed referring to the provisions of Rule 119 to 148 of the Rajasthan Land Records Rules, 1957, wherein the concerned Patwari/Amin has to make an entry in the required form by ' Pencil', and forward the same to the Land Record Inspector/Settlement Inspector, who after its verification is to sanction/pass an order, for the change in the concerned revenue record with reference to Mutation by ' Pucca Syahi' . Moreover, in the process involved, the petitioner, was at the lowest end in the cadre of ministerial service, and the entries made, were to be verified by the Inspector (Settlement) before they were forwarded to the Assistant Settlement Officer, who was to pass the required order for the entries in the Mutation register.

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Further, there was not even an iota of evidence for the petitioner, in any manner mislead the Assistant Settlement Officer. The allegations of collusion and misleading alleged are absolutely baseless rather the Mutations were made with due application of mind in according to law. That apart, the Mutation entries have no concern with the rights and title of

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the agriculture land concerned: The entries are fiscal one and only to ascertain as to who is in possession of the agricultural land.

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Since the petitioner was deprived of an opportunity of hearing during the course of enquiry in as much as, in spite of oral as well as written request, copies of required documents were not supplied to him being relevant material to effectively reply to the charges, which resulted into prejudice to the defence of the petitioner. The specific fact detailed out in the reply to the effect that in view of the order of the Government as well as Board of Revenue; no court fee is required on the Mutation nor prior permission is required in filling up the Form P-21 “Khasra Parishodhan Patra”, but the same has not been considered by the enquiry officer as well as by the disciplinary authority.

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The responsibility, if at all, for the alleged transactions, was upon the Settlement Assistant Officer and the petitioner could not have been held responsible while he was working as Amin. The Assistant Settlement Officer has been inflicted with the penalty of stoppage of two grade increments whereas the petitioner has been penalised by stoppage of three grade increments without there being any fault on his part. The penalty had the effect on the grant of benefits of selection scale on completion of service of 18 and 27 years and thus, the petitioner has been punished twice over; firstly by stoppage of three grade increments, and secondly, by not

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according the benefits of selection scale on completion of service of 18 and 27 years. Moreover, charges against Shri Ramesh Chandra Sharma, were dropped and thus the petitioner was signaled out, therefore, the action also suffers with the vice of discrimination.

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Learned counsel further submits that the petitioner rendered his services in the camps, as would be reflected from the materials available on record. The petitioner was deputed to Camp duty in “ Kishan Samsya Samadhan” w.e.f. 16^th May, 1992 to 30^th June, 1992. Thus, in the attending facts and circumstances of the case, the penalty imposed is disproportionate having regard to the nature of alleged misconduct, if any, and needs to be interfered with by this Court in exercise of writ jurisdiction.

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Per contra, Mr. B.L. Awasthi, Addl. Govt. Counsel, reiterating the contents of the reply repelled the assailment of the action of the State-respondents for the petitioner was rightly held responsible for the charges, as would be reflected from the memorandum of charges wherein the petitioner was charged for not only accepting the Mutation applications without Court fee, but was also charged for having made an adverse report without there being registered deeds, as is evident from charge No.3, therefore, the arguments advanced in isolation for charge No.2, for having accepted application Form for “Khasra Parishodhan Patra”, with reference to charge No.2, is not, only the reason for imposition of penalty.

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Since there was no material to proceed against Shri Ramesh Chandra Sharma, the action was not initiated. The finding arrived at, as referred to and relied upon, by the learned counsel for the petitioner for the charge No.4, for having accepted the application form without court fee, was not proved, is a finding qua Shri Chhagan Lal Verma, and not qua the petitioner, as is evident from the enquiry report, from where, it is reflected that the same charge against the petitioner i.e. charge No.3, has been found to be proved.

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Repelling the assailment of the enquiry proceedings for not furnishing the record, learned counsel for the Staterespondents referring to Rule 16 (3) of the Rules of 1958, argued that the petitioner was permitted to inspect the relevant documents and that the opportunity was availed of by the petitioner. Since it was not possible to supply copies of the documents to the petitioner, which he asked for, and as such he was permitted to inspect the record. Moreover, the petitioner did not raise any objection at the relevant time for he was not furnished with the copies of the documents. The application, submitted by the petitioner, available at Annexure-2, would further reveal that the petitioner himself prayed for inspection of the relevant record. Thus, the petitioner was accorded full opportunity to defend himself during the course of enquiry which was conducted against him in accordance with the procedure prescribed under Rule 16 of the Rules of 1958.

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The contention raised on behalf of the petitioner stating the penalty has disproportionate having regard to the nature of the alleged misconduct; the learned counsel for the Staterespondents, argued that the co-delinquent was entrusted with the supervisory duty, being an Officer of Rajasthan Administrative Services whereas it was the the petitioner, who made an adverse note, and therefore, there is no discrimination so far as the penalty has been imposed. Further, to sustain a challenge to a penalty imposed as a result of departmental enquiry, the penalty should be 'shockingly disproportionate' and not merely 'disproportionate'. The learned counsel would further submit that the notification, as referred to and relied upon, had no application in the instant case at hand, having regard to the provisions of Rajasthan Tenancy Act, 1955, with reference to sub-tenancy.

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The learned counsel for the State-respondents in support of his submissions, placing reliance on the opinion of the Hon'ble Supreme Court in the case of State of Maharashtra and Ors. Vs. Namdeo etc. etc.2013(14) SCC, 225 , urged that even if the order is found to be perverse, at the most, it can be remitted back to the StateGovernment.

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I have heard the learned counsel for the parties and with their assistance perused the materials available on record.

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Indisputably, the petitioner was proceeded with for enquiry under Rule 16 of the Rules of 1958, and was accorded ample opportunity to defend himself, as is evident from the materials available on record. The petitioner was also accorded ample opportunity of hearing to defend himself in accordance with the procedure prescribed under Rule 16 of the Rules of 1958. The petitioner also inspected the relevant records as is evident from the application Annexure-2 and materials available on record.

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The petitioner was the person who initiated the proceedings of Mutation on the applications and made the notes/reports, which were relied upon and on the basis of those notes/reports, ultimate orders were passed.

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The Enquiry Officer after a detailed analysis of the evidence and materials available on record, found all the three charges leveled against the petitioner as proved. 17. The charges levelled against the co-delinquent were found partly proved for he was entrusted with the supervisory duty as an Administrative Officer of the State service. The codelinquent has been inflicted with the penalty of stoppage of two grade increments even while being in supervisory capacity. The petitioner, who was at the initial stage from where the entire proceedings on the applications were initiated, in accordance with the rules and prescribed form provided for the purpose of Mutation proceedings. Though, much emphasis has been laid as to the findings with reference

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to charge No.2, for having accepted the applications without court fee but the petitioner has also been found guilty of other two charges i.e. charge No.1 and 2. There is no assailment as to the findings for the petitioner accepted the applications in absence of registered deeds.

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The scope of interference in exercise of writ jurisdiction in the matters like one at hand, is very limited, and is restricted to decision making process.

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The scope and extent of interference with the quantum of punishment has been subject matter of law declared, in a catena of judgments, by the Hon'ble Supreme Court. It has been held in no uncertain words by the Hon'ble Supreme Court that such an interference cannot be a routine matter as would be evident from the observation of Lord Greene in the case of Associated Provincial Picture Houses V. Wednesbury Corpn. (1948) 1 KB 2 : (1947) 2 All ER 680 (CA); wherein it has been held that when a statute gave discretion to an administrator to take a decision, the scope of judicial review would remain limited.

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An interference is not permissible unless the order was contrary to law or relevant factors were not considered or irrelevant factors were considered or the decision was one which no reasonable person could have arrived at. The principles have been consistently followed while conducting scrutiny of the validity of such an administrative action as aforesaid.

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In the case of Om Kumar v. Union of India: (2001) 2 SCC 386, the Hon'ble Supreme Court held that 'proportionality' will have to be considered in the backdrop of the question as to whether, while regulating exercise of fundamental rights, the appropriate or least-restrictive choice of measures have been made by the legislature or the administrator so as to achieve the object of the legislation or the purpose of the administrative order. Where the administrative action is assailed for being arbitrary under Article 14; in cases where punishments in disciplinary cases are challenged, the criteria for scrutiny would be as to whether the administrative order is 'rational' or 'reasonable' and whether it stands the Wednesbury test. In such matters, the Courts are confined only to a 'secondary role' while examining the 'primary role' of the administrator as to whether he has acted illegally or has omitted relevant factors or has considered irrelevant factors or the view arrived at is one which no reasonable person could have arrived at. This principle has been reiterated by the Hon'ble Supreme Court time and again and the common feature that runs through all the decisions on the subject matter, is to the effect that the Court should not interfere with the decision of the administration until and unless the decision was illogical or suffered with procedural impropriety or was so shocking, to the conscious of the Court, that same was in defiance of logic or moral standard. Thus, the scope of judicial review and

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scrutiny in such matters is limited only to the decision making process. The punishment imposed by the Disciplinary Authority or the Appellate Authority unless is found to be in defiance of logic or moral standard or shocks the conscious of the Court, the same is not open for interference.

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In the case of Chairman cum Managing Director, Coal India Limited and Anr. Vs. Mukul Kumar Choudhuri and Ors.;2009 (15) SCC 620, the Hon'ble Supreme Court while examining the proportionality of punishment on proved charge of unauthorized absence for more than six months?. Referring

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to the earlier decisions of the Hon'ble Supreme Court wherein the doctrine of proportionality has been considered held thus:

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“17. Dealing with the question of proportionality with regard to punishment in disciplinary matters, the court said:

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Finally, we come to the present case. It is not contended before us that any fundamental freedom is affected. We need not therefore go into the question of "proportionality". There is no contention that the punishment imposed is illegal or vitiated by procedural impropriety. As to "irrationality", there is no finding by the Tribunal that the decision is one which no sensible person who weighed the pros and cons could have arrived at nor is there a finding, based on material, that the punishment is in "outrageous" defiance of logic. Neither Wednesbury nor CCSU tests are satisfied. We have still to explain "Ranjit Thakur" .

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In Ranjit Thakur this Court interfered with the punishment only after coming to the conclusion that the punishment was in outrageous defiance of logic and was shocking. It was also described as perverse and irrational. In other words, this Court felt that, on facts, Wednesbury and CCSU tests were satisfied. In another case, in B.C. Chaturvedi v. Union of India : (1995) 6 SCC 749 a three-Judge Bench said the same thing as follows: (SCC p. 762, para 18)

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18. ... The High Court/Tribunal, while exercising the power of judicial review, cannot normally substitute its own conclusion on penalty and impose some other penalty. If the punishment imposed by the disciplinary authority or the appellate authority shocks the conscience of the High Court/Tribunal, it would appropriately mould the relief, either directing the disciplinary authority/appellate authority to reconsider the penalty imposed, or to shorten the litigation, it may itself, in exceptional and rare cases, impose appropriate punishment with cogent reasons in support thereof.

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Similar view was taken in Indian Oil Corporation Ltd. v. Ashok Kumar Arora : (1997) 3 SCC 72 that the Court will not intervene unless the punishment is wholly disproportionate.

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In such a situation, unless the court/tribunal opines in its secondary role, that the administrator was, on the material before him, irrational according to Wednesbury or CCSU norms, the punishment cannot be quashed. Even then, the matter has to be remitted back to the appropriate authority for reconsideration. It is only in very rare cases as pointed out in B.C. Chaturvedi case that the Court might -- to shorten litigation-- think of substituting its own view as to the quantum of punishment in the place of the punishment awarded by the competent authority. (In B.C. Chaturvedi and other cases referred to therein it has however been made clear that the power of this Court under Article 136 is different.) For the reasons given above, the case cited for the respondent, namely, State of Maharashtra v. M.H. Mazumdar cannot be of any help.

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Again, in the case of Coimbatore District Central Cooperative Bank v. Coimbatore District Central Cooperative Bank Employees Assn. and Anr. :(2007) 4 SCC 669 this Court considered the doctrine of proportionality and it was held:

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So far as the doctrine of proportionality is concerned, there is no gainsaying that the said doctrine has not only arrived in our legal system but has come to stay. 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

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judicial review. One of such modes of exercising power, known to law is the "doctrine of proportionality".

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"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.

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de Smith states that "proportionality" involves "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. [ Judicial Review of Administrative Action (1995), pp. 601-05, para 13.085; see also Wade & Forsyth: Administrative Law (2005), p. 366.]

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In Halsbury's Laws of England (4th Edn.), Reissue, Vol. 1(1), pp. 144-45, para 78, it is stated:

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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.

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The doctrine 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".

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As has been said many a time; "where paring knife suffices, battle axe is precluded".

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In the celebrated decision of Council of Civil Service Union v. Minister for Civil Service 1985 AC 374 : (1984) 3 WLR 1174 :(1984) 3 All ER 935 (HL) Lord Diplock proclaimed: (All ER p. 950h-j)

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Judicial review has I think developed to a stage today when, without reiterating any analysis of the steps by which the development has come about, one can conveniently classify under three heads the grounds on which administrative action is subject to control by judicial review. The first ground I would call 'illegality', the second 'irrationality' and the third 'procedural impropriety'. That is not to say that further development on a case-by-case basis may not in course of time add further grounds. I have in mind particularly the possible adoption in the future of the principle of 'proportionality' ....

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(emphasis supplied)

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CCSU has been reiterated by English courts in several subsequent cases. We do not think it necessary to refer to all those cases.

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So far as our legal system is concerned, the doctrine is well settled. Even prior to CCSU, this Court has held that if punishment imposed on an employee by an employer is grossly excessive, disproportionately high or unduly harsh, it cannot claim immunity from judicial scrutiny, and it is always open to a court to interfere with such penalty in appropriate cases.

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In Hind Construction & Engg. Co. Ltd. v. Workmen : AIR 1965 SC 917, some workers remained absent from duty treating a particular day as holiday. They were dismissed from service. The Industrial Tribunal set aside the action. This Court held that the absence could have been treated as leave without pay. The workmen might have been warned and fined. (But)

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It is impossible to think that any other reasonable employer would have imposed the extreme punishment of dismissal on its entire permanent staff in this manner. (AIR p. 919, para 7)

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(emphasis supplied)

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The Court concluded that the punishment imposed on the workmen was not only severe and out of proportion to the fault, but one which, in our judgment, no reasonable employer would have imposed. (AIR pp. 919-20, para 7)

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(emphasis supplied)

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In Federation of Indian Chambers of Commerce and Industry v. Workmen : (1972) 1 SCC 40, the allegation against the employee of the Federation was that he issued legal notices to the Federation and to the International Chamber of Commerce which brought discredit to the Federation--the employer. Domestic inquiry was held against the employee and his services were terminated. The punishment was held to be disproportionate to the misconduct alleged and established. This Court observed that: (SCC p. 62, para 34)

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'34..... the Federation had made a mountain out of a mole hill and made a trivial matter into one involving loss of its prestige and reputation.

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In Ranjit Thakur referred to earlier, an army officer did not obey the lawful command of his superior officer by not eating food offered to him. Court-martial proceedings were initiated and a sentence of rigorous imprisonment of one year was imposed. He was also dismissed from service, with added disqualification that he would be unfit for future employment.

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Applying the doctrine of proportionality and following CCSU , Venkatachaliah, J. (as His Lordship then was) observed: (SCC p. 620, para 25)

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25......the question of the choice and quantum of punishment is within the jurisdiction and discretion of the court martial. But the sentence has to suit the offence and the offender. It should not be vindictive or unduly harsh. It should not be so disproportionate to the offence as to shock the conscience and amount in itself to conclusive evidence of bias. The doctrine of proportionality, as part of the concept of judicial review, would ensure that even on an aspect which is, otherwise, within the exclusive province of the court martial, if the decision of the court even as to sentence is an outrageous defiance of logic, then the sentence would not be immune from correction. Irrationality and perversity are recognised grounds of judicial review.”

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(emphasis supplied)

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By now, it is a well recognized concept of judicial review, in service law jurisprudence that the doctrine of proportionality could be invoked for judicial intervention, if the discretion exercised by the decision maker while awarding

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punishment is grossly disproportionate and in excess to the allegations. The employer, as a reasonable employer is expected to take into consideration the measure, magnitude and degree of the misconduct as well as all other relevant circumstances and to exclude irrelevant matters while inflicting penalty for the proved misconduct of the employee. 24. The petitioner was charged of the allegations of misconduct and all the three charges were found to be proved after an enquiry conducted in accordance with the prescribed procedure. The scope of judicial review is limited to the deficiency in the decision making process and not the decision as has been held by the Hon'ble Apex Court of the land in a catena of judgments. Having regard to the position in the country, with reference to administrative law, where no fundamental freedoms are involved, the courts/tribunals will only play a secondary role while the primary judgment as to reasonableness will be that of the executive or administrative authority and in that event the secondary judgment of the court has to be in the light of the Wednesbury principles to determine if the executive or administrator has reasonably arrived at the decision in the role of a primary authority.

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It is trite law and is well settled that if the order of the authority imposing punishment/penalty could be supported on any finding as to the substantial misdemeanour for which the penalty imposed could be sustained, in that event it will not be open for the Court/Tribunal to consider whether the

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charge proved alone would have weighed with the authority imposing the punishment. It will be immeterial to consider the proportionality of the penalty imposed, provided it is justified by the rules with reference to the established misdemeanour.

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Having considered the singular facts and circumstances of the case at hand, I do not find any error committed by the primary authority in decision making process.

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For the reasons and discussions hereinabove, the writ application is devoid of any substance and lacks in merit, and therefore, deserves to be dismissed.

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28. Order accordingly.

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However, in the facts and circumstances of the case,

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there shall be no order as to costs.

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(VEERENDR SINGH SIRADHANA),J.

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Pcg

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All corrections made in judgment/order have been incorporated in the judgment/order being emailed. P.C.Gupta, Sr.P.A.

Kapil Deo Prasad v. State and Ors.

Case brief

What is this about?

What did the court decide?

Kapil Deo Prasad v. State and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

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