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Judgment
M. Venugopal, J.—The petitioners/administration have preferred the present Writ of Certiorari in calling for the records of the Second
Respondent/Administrative Tribunal pertaining to the orders dated 16.9.2002 in T.A. No. 204 of 1991 (W.P. No. 3585 of 1983) and to quash
the same. The Second Respondent, while passing the orders in T.A. No. 204 of 1991 (W.P. No. 3585 of 1983) on 16.9.2002, has, inter alia,
observed that ''the evidence against the applicant (First Respondent) was only to the effect that there has been some delay in writing up the case
diary in respect of Cr. No. 229 of 1980 and that he has sent petitions directly to the higher officials instead of sending them through proper
channels and for this proved charge, punishment of compulsory retirement was imposed and neither the Superintendent of Police nor the Appellate
or Revision Authorities had considered the evidence in the proper perspective and they have not at all dealt with the points raised by the Applicant.
The Enquiry Officer is also wrong in not examining the Deputy Superintendent of Police cited by the applicant which would have revealed many
facts relevant to the issues involved''. Therefore, the Tribunal held that ''gross injustice has been done to the applicant and in the absence of any
other allegation or in the absence of any bad past history, the punishment of compulsory retirement imposed on the applicant is highly excessive
and shockingly disproportionate'' and therefore, set aside the order of compulsory retirement and resultantly, directed the respondents to reinstate
the applicant by withholding half of back wages due to the applicant who is stated to be 50 years old when he filed the application in 1983. The
Tribunal further held that the applicant ought to have retired on attaining the age of Superannuation in 1991 and he shall be demand to have retired
from the date on which he attained the age of Superannuation and further held that the applicant is entitled to revision of his pay and is entitled to
get half of the back wages from the date on which he was compulsorily retired from his normal date of retirement and further, held that the
applicant is also entitled to have revision of his pay and accordingly, directed the proposals to be sent to the Accountant General for revision of his
pension also. The Tribunal further held that the First Respondent/applicant is entitled to the difference thus arrived and accordingly, he is entitled for
the terminal benefits and the amount paid to him shall be adjusted to and arrears shall be paid to him and ordered the original application
accordingly.
The Learned Special Government Pleader submits that the First Respondent/applicant was compulsorily retired from service on 21.7.1982 and
he crossed the date of Superannuation on 31.3.1992 afternoon itself and as such, the Second Respondent/Tribunal committed an error in ordering
the reinstatement of the First Respondent/applicant and modifying the punishment into one of withholding of half back wages etc.
The Learned Special Government Pleader urges before this Court that the Second Respondent/Tribunal while holding that the punishment of
compulsorily retirement awarded to the First Respondent/applicant was an excessive one for the proved charges, suggested a punishment which
was not a statutory one and in fact, the Tribunal failed to consider the case projected by the 3rd Petitioner/3rd Respondent.
It is the contention of the Learned Special Government Pleader that the Second Respondent/Tribunal has not adhered to the directions issued
by this Court in W.P. No. 21896 of 2000 in W.M.P. No. 31728 of 2000, wherein it was held that discipline was to be maintained by the
Government Servant and the impugned orders of the Tribunal at any rate should not be a contributory factor in undermining discipline.
Expatiating his submissions, the Learned Special Government Pleader submits that the Second Respondent/Tribunal cannot interfere with the
findings rendered by the Enquiry Officer and the Disciplinary Authority and further, the Second Respondent/Tribunal cannot usurp the powers of
the disciplinary authority. Finally, the Learned Special Government Pleader projects a legal plea that the Second Respondent/Tribunal is not a
Court of Appeal and it cannot sit on the quantum of the punishment imposed by the Disciplinary Authority.
Per contra, the Learned counsel for the Respondents 3 to 5 supported the impugned order passed by the Tribunal by contenting that the
Second Respondent/Tribunal had taken into account all the facts and circumstances of the case in a cumulative fashion and the view taken by the
Tribunal could not be found fault by the writ petitioner on any count.
The First Respondent/applicant (since deceased) was served with the memo dated 27.8.1981 by the Deputy Superintendent of Police,
Udumalpet specifying the following charges:
Charge No. 1-
Gross neglect of duty in making perfunctory investigation in Tiruppur North P.S. Cr. No. 229 of 1980 u/s 304(A) IPC.
Cr. No. 234 of 1980 u/s 4(1)(a) T.N.P. Act.
Cr. No. 235 of 1980 u/s 4(1)(b) read with 7(1) TNP Act.
Cr. No. 236 of 1981 u/s 4(1)(g) T.N.P. Act and failing to hand over the case diaries in the above cases for onward submission and failing to
hand over the contraband concerned in Cr. Nos. 234 of 1980 to 236 of 1980 either in the Police Station or in the Court.
Charge-2-Indisciplinary conduct in throwing incomplete records in Cr. No. 229 of 1980 u/s 304(A) IPC. On the table of Inspector Thiru P.
Arumugham (now in Velayutham Palayam circle in Tiruchy District) on 9.4.1980, when the records were demanded for completing the
investigation by the Inspector.
Charge-3-Gross neglect of duty in neither making entries in the General Diary of Tiruppur North P.S. about your work nor sending any special
reports about the work turned up by from 7.4.1980 to 11.5.1981.
Charge-4-Indisciplinary conduct in sending petition on 27.4.1981 direct to the Deputy Inspector General of Police, Coimbatore Range,
Coimbatore leveling false allegation against officers when you were directed to vacated the line hut at Tiruppur North Police Station.
Also, the First Respondent/applicant (later deceased) was informed that he was proposed to be dealt with on a charge under Rule 3(b) of
T.N.P.S.S. (D & A) Rules, 1955 for the above delinquencies and further that an oral enquiry would be held in connection with this and that the
witnesses 1 to 6 mentioned thereunder would be examined.
By means of the charge memo dated 27.8.1981, the First Respondent/appellant (later deceased) was required to submit his written explanation
within 7 days from the date of receipt of the charge memo. The First Respondent/applicant (later deceased) submitted his detailed explanation on
3.11.1981 denying the charges and also prayed for summoning of the witnesses Arumugam-Tiruppur Circle Inspector and Nandhakumar-Sub-
Inspector, Tirupur North Police Station and also requested for summoning of the documents and requested for reasonable time to peruse the
same.
The 3rd Petitioner/Superintendent of Police, Coimbatore on 12.5.1982 drew a minute by rendering a finding that charges 1 to 4 were proved
and also observed that the oral enquiry commenced on 20.9.1981 and that the Delinquent was clever enough to prolong the enquiry till 23.2.1982
and on that date wanted to close prosecution but on that date the delinquent wanted to recall prosecution witnesses with a view to prolong the
enquiry further and that he rejected his plea and served a memo to produce his defence witness and documents. But the delinquent refused to sign
the proceeding on 23.2.1982, even though his advocate advised him to sign the proceedings. Moreover, he served the proceedings on the
delinquent through special messengers to appear before him on 4.3.1982, 9.3.1982 and 13.3.1982 with defence witness and documents but the
delinquent absented himself for the enquiry and on 23.3.1982 the delinquent appeared before him but had not produced any witnesses or
documents and he waited till 12.5.1982 and submitted an excerpts of the minutes.
The 3rd Petitioner/Superintendent of Police, Coimbatore Rural has passed a final order in PR. No. 53 of 1981 HC 311 Natarajan viz., the
First Respondent, wherein he has agreed to findings of the Enquiry Officer and held that Count No. 1 of the charges has been proved and in
respect of Count No. 2, he has arrived at the conclusion that the same is also proved beyond any doubt. As regards Count No. 3 viz., his gross
neglect of duty in not making any entries in GD of Tiruppur North Police Station etc., he has come to the conclusion that this charge also is proved
and in regard to Count No. 4, viz., the delinquent''s indiscipline conduct in sending a petition on 27.4.1981 to the Deputy Inspector General of
Police, Coimbatore Range directly leveling allegations against officers etc., he has held that the said charge has also stood proved and finally, taking
note of his 25 years of service and by taking a lenient view, passed an order of compulsory retirement from the date of receipt of order and the
suspension period has been treated as such.
On 20.7.1982, the first Respondent viz., HC 311 Natarajan of Pollachi Taluk Police Station was compulsorily retired from service i.e., the
date of receipt of order for (1) gross neglect on duty in making perfunctory investigation in Tiruppur North Police station Crime No. 229 of 1980
u/s 304(A) IPC, 2. Cr. No. 234 of 1980 u/s 4(1)(a) of TNP Act, 3. Cr. No. 235 of 1980 u/s 4(1)(b) read with 7(1) TNP Act. 4. Cr. No. 236 of
1980 u/s 4(1)(g) TNP Act and for his failure to hand over the case diaries in the above case for onward submission and for his failure to hand over
contraband concerned in Cr. No. 234 of 1980 to 236 of 1980 either in the police station or in the Court and three other counts in PR. 53 of 1981
and further, the Inspector of Police, Pollachi Taluk was directed to report the date of relief of Head Constable for DPO at once.
The first respondent preferred an appeal petition dated 22.7.1982 before the Second Petitioner/DIG of Police, Coimbatore range and passed
orders in C. No. 34/AP/82, dated 6.10.1982, inter alia, opining that all the four counts of the charges were correctly held proved and the
punishing authority had shown him all due considerations and even though the charge merits dismissal, the punishing authority showed sympathy
and awarded him compulsory retirement, which appears to be in order, considering his length of services and ultimately rejected the appeal.
The First Petitioner/IG of Police, (Law and Order and Admn,) Madras-4 in Rc. No. 219829/AP-2/82, Dated 12.2.1983 after going through
the petition by the First Respondent and connected records and also taking note of his contentions, has come to a resultant conclusion that the
Review Petitioner (First Respondent), for reasons best known to himself, failed to avail every opportunity offered to him to defend himself and in
his present petition no effort was made to counter the facts in evidence against him and it was only after his failure to avail the opportunity of a
properly conducted enquiry, an ex parte minute was drawn up and that the proceedings and the findings were in order and the punishment was
commensurate with the charges held proved against him and lastly, rejected the Review Petition.
The main grievance of the petitioners is that utmost discipline has to be maintained by the Government Servant and orders of the Tribunal
should not be a contributory factor in undermining discipline and further, the First Respondent was compulsorily retired from service on 21.7.1982
and he crossed the date of his superannuation on 31.3.1992 afternoon and as such, the order of the Second Respondent to reinstate the First
Respondent and to impose the punishment withholding half of back wages due to him for the period of unemployment and also, by setting aside the
order of compulsory retirement, the petitioner was deemed to have continued in service till the date of attaining the age of superannuation in 1991
and further, he was deemed to have retired from the date on which he attained the age of superannuation etc., is not a statutory one. More so,
when the Second Respondent/Tribunal was not a Court of appeal, it cannot sit on the quantum of punishment inflicted by the disciplinary authority.
It is to be noted that the principles of natural justice comprised primarily of two main points viz., 1. ""nemo Judex in cause sua "" (no man shall be
a judge in his own cause) and 2. ""audi alteram partem "" (""hear the other side""). Rules of natural justice are not embodied rules nor they could be
elevated to the rank of fundamental rights. The principles of nature justice are not immutable but flexible and can be adapted, modified or excluded
by statute and statutory rules and also by the fact that the concerned authority has to decide a particular matter in the manner known to law and the
rules of natural justice to secure ends of justice. The principles of nature justice are not the creation of Article 14 of the Constitution of India.
Article 14 is one''s constitutional guardian. If a person has been given an opportunity to take part in enquiry and also has been given adequate
opportunity to examine the witness or cross examine the witness, then it cannot be said that there is negation of the principles of natural justice.
In the considered opinion of this Court, the principles of natural justice must give way to change with the exigencies of situations and they do
not apply in the same manner to situations which are not similar.
The application of principles of natural justice are excluded in the interest of administration, efficiency and expedition. The requirements of
principles of natural justice, which are required to be followed are: (1). a person should know the nature of the complaint or accusation; (2). an
opportunity to project his case; and 3, the employer should act in good faith which means that his/its action should be fair, reasonable and just. (3).
The principle of natural justice is that a disciplinary authority/the Appellate Authority must act in good faith without bias and not unreasonably or
arbitrarily. In case of quasi-Judicial proceedings, the authority enjoined to decide the dispute between the parties ought to be one without bias,
(whether conscious or unconscious towards one side or the other in the dispute).
At this juncture, this Court cites the following decisions to prevent an aberration of justice:
(a) In the decision of the Hon''ble Supreme Court in Union of India and Another Vs. Tulsiram Patel and Others, it is, inter alia, held as follows:
The principles of natural justice have come to be recognized as being a part of the guarantee contained in Art. 14 because of the new and dynamic
interpretation given by the Supreme Court to the concept of equality which is the subject matter of that Article. A violation of a principle of natural
justice by a State action is a violation of Art. 14. Though the two rules of natural justice, namely, nemo judex in causa sua and audi alteram partem,
have now a definite meaning and connotation in law and their content and implication are well understood and firmly established, they are
nonetheless not statutory rules. Each of these rules yields to and changes with the exigencies of different situations. Not only can the principle of
natural justice be modified but in exceptional cases they can even be excluded. If legislation and the necessities of a situation can exclude the
principles of natural justice including the audi alteram partem rule, a fortiori so can a provision of the Constitution, for a Constitutional provision has
a far greater and all pervading sanctity than a statutory provision. Clause (2) of Art. 311 embodies in express words the audi alteram partem rule.
This principle of natural justice having been expressly excluded by a Constitutional provision, namely, the second proviso to clause (2) of Art. 311,
there is no scope for reintroducing it by a side-door to provide once again the same inquiry which the Constitutional provision has expressly
prohibited. To hold that once the second proviso is properly applied and clause (2) of Art. 311 excluded, Art. 14 will step in to take the place of
clause (2) would be to nullify the effect of the opening words of the second proviso and thus frustrate the intention of the makers of the
Constitution. The second proviso is based on public policy and is in public interest and for public good and the Constitution makers who inserted it
in Art. 311(2) were the best persons to decide whether such an exclusionary provision should be there and the situations in which this provision
should apply.
(b) In the decision of the Hon''ble Supreme Court in Canara Bank and Others Vs. Shri Debasis Das and Others, and at special page 560 and 561,
it is observed as follows:
Natural justice has been variously defined. It is another name for commonsense justice. Rules of natural justice are not codified canons. But they
are principles ingrained into the conscience of man. Natural justice is the administration of justice in a common-sense liberal way. Justice is based
substantially on natural ideals and human values. The administration of justice is to be freed from the narrow and restricted considerations which
are usually associated with a formulated law involving linguistic technicalities and grammatical niceties. It is the substance of justice which has to
determine its form. Principles of natural justice are those rules which have been laid down by the Courts as being the minimum protection of the
rights of the individual against the arbitrary procedure that may be adopted by a judicial, quasi-judicial and administrative authority while making an
order affecting those rights. These rules are intended to prevent such authority from doing injustice.
The expressions ""natural justice"" and ""legal justice"" do not present a water-tight classification. It is the substance of justice which is to be secured
by both, and whenever legal justice fails to achieve this solemn purpose, natural justice is called in aid of legal justice. Natural justice relieves legal
justice from unnecessary technicality, grammatical pedantry or logical prevarication. It supplies the omissions of a formulated law. No form or
procedure should ever be permitted to exclude the presentation of a litigants'' defence.
Concept of natural justice has undergone a great deal of change in recent years. Rules of natural justice are not rules embodied always expressly in
a statute or in rules framed thereunder. They may be implied from the nature of the duty to be performed under a statute. What particular rule of
natural justice should be implied and what its context should be in a given case must depend to a great extent on the facts and circumstances of that
case, the framework of the statute under which the enquiry is held. The old distinction between a judicial act and an administrative act has withered
away. The adherence to principles of natural justice as recognized by all civilized States is of supreme importance when a quasi-judicial body
embarks on determining disputes between the parties, or any administrative action involving civil consequences is in issue. Even an administrative
order which involves civil consequences must be consistent with the rules of natural justice. The expression ''civil consequences'' encompasses
infraction of not merely property or personal rights but of civil liberties, material deprivations, and non-pecuniary damages. In its wide umbrella
comes everything that affects a citizen in his civil life.
(c) In the decision of the Hon''ble Supreme Court in Chandrama Tewari Vs. Union of India (UOI) (through General Manager, Eastern Railways), ,
it is held as follows:
It is now well settled that if copies of relevant and material documents including the statement of witnesses recorded in the preliminary enquiry or
during investigation are not supplied to the delinquent officer facing the enquiry and if such documents are relied in holding the charges framed
against the officer, the enquiry would be vitiated for violation of principles of natural justice. Similarly, if the statement of witnesses recorded during
the investigation of a criminal case or in the preliminary enquiry is not supplied to the delinquent officer that would amount to denial of opportunity
of effective cross-examination. It is difficult to comprehend exhaustively the facts and circumstances which may lead to violation of principles of
natural justice or denial of reasonable opportunity of defence. This question must be determined on the facts and circumstances of each case.
While considering this question it has to be borne in mind that a delinquent officer is entitled to have copies of material and relevant documents only
which may include the copy of statement of witnesses recorded during the investigation or preliminary enquiry or the copy of any other document
which may have been relied in support of the charges. If a document has no bearing on the charges or if it is not relied by the enquiry officer to
support the charges, or if such document or material was not necessary for the cross-examination of witnesses during the enquiry, the officer
cannot insist upon the supply of copies of such documents, as the absence of copy of such document will not prejudice the delinquent officer. The
decision of the question whether a document is material or not will depend upon the facts and circumstances of each case. Case law discussed.
(d) In the decision of the Hon''ble Supreme Court in Union of India (UOI) Vs. Sardar Bahadur, it is held as follows:
A finding cannot be characterised as perverse or unsupported by any relevant materials if it is reasonable inference from proved facts. A
disciplinary proceeding is not a criminal trial. The standard proof required is that of preponderance of probability and not proof beyond reasonable
doubt.
As there are limits to the powers exercised by a single Judge under Article 226 of the Constitution, there are limits to the powers of a Division
Bench while sitting in appeal over the judgment of a single Judge. Where there are some relevant materials which the authority has accepted and
which material may reasonable support the conclusion that the officer is guilty, it is not the function of the High Court exercising its jurisdiction
under Article 226 to arrive at an independent finding at the materials. If the enquiry has been properly held the question of adequacy or reliability of
evidence cannot be canvassed before the High Court.
also in the aforesaid decision at page 619, it is laid down as follows:
If the order of punishing authority can be supported on any finding as to substantial misdemeanour for which the punishment can be imposed, it is
not for the Court to consider whether the charge proved alone would have weighed with the authority in imposing the punishment. The Court is not
concerned to decide whether the punishment imposed, provided it is justified by the rules, is appropriate having regard to the misdemeanour
established.
(e) In the decision of the Hon''ble Supreme Court in B.C. Chaturvedi Vs. Union of India and others, it is held as follows:
Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. Power of judicial review is meant to
ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the eye of
the Court. When an inquiry is conducted on charges of misconduct by a public servant, the Court/Tribunal is concerned to determine whether the
inquiry was held by a competent officer or whether rules of natural justice are complied with. Whether the findings or conclusions are based on
some evidence, the authority entrusted with the power to hold inquiry has jurisdiction, power and authority to reach a finding of fact or conclusion.
But that finding must be based on some evidence. Neither the technical rules of Evidence Act nor of proof of fact or evidence as defined therein,
apply to disciplinary proceeding. Adequacy of evidence or reliability of evidence cannot be permitted to be canvassed before the Court/Tribunal.
When the authority accepts the evidence and the conclusion receives support therefrom, the disciplinary authority is entitled to hold that the
delinquent officer is guilty of the charge. The disciplinary authority is the sole judge of facts. Where appeal is presented, the appellate authority has
coextensive power to reappreciate the evidence or the nature of punishment. The Court/Tribunal in its power of judicial review does not act as
appellate authority to reappreciate the evidence and to arrive at its own independent findings on the evidence. The Court/Tribunal may interfere
where the authority held the proceedings against the delinquent officer in a manner inconsistent with the rules of natural justice or in violation of
statutory rules prescribing the mode of inquiry or where the conclusion or finding reached by the disciplinary authority is based on no evidence. If
the conclusion or finding be such as no reasonable person would have ever reached, the Court/Tribunal may interfere with the conclusion or the
finding, and mould the relief so as to make it appropriate to the facts of that case.
(f) In the decision of the Hon''ble Supreme Court in State of Orissa Vs. Bidyabhushan Mohapatra, , it is observed as under:
The reasonable opportunity contemplated by Art. 311 (2) has manifestly to be in accordance with the rules framed under Art. 309 of the
Constitution. But the Court, in a case in which an order of dismissal of a public servant is impugned, is not concerned to decide whether the
sentence imposed, provided it is justified by the rules, is appropriate having regard to the gravity of the misdemeanour established. The reasons
which indue the punishing authority, if there has been an enquiry consistent with the prescribed rules, are not justiciable; nor is the penalty open to
review by the Court. If the order of dismissal may be supported on any finding as to substantial misdemeanour for which the punishment can
lawfully be imposed, it is not for the Court to consider whether that ground alone would have weighed with the authority in dismissing the public
servant. The Court has no jurisdiction if the findings of the enquiry Officer or the Tribunal prima facie make out a case of misdemeanour to direct
the authority to reconsider that order because in respect of some of the findings but not all, it appears that there had been violation of the rules of
natural justice.
That apart, this Court, to promote substantial cause of justice, quotes the following decisions:
(i) In the decision of the Hon''ble Supreme Court in Government of Tamil Nadu and another Vs. A. Rajapandian, it is held as follows:
The Administrative Tribunal fell into patent error in reappreciating and going into the sufficiency of evidence. It has been authoritatively settled by
string of authorities of the Supreme Court that the Administrative Tribunal cannot sit as a Court of appeal over a decision based on the findings of
the inquiring authority in disciplinary proceedings. Where there is some relevant material which the disciplinary authority has accepted and which
material reasonable supports the conclusion reached by the disciplinary authority, it is not the function of the Administrative Tribunal to review the
same and reach different finding than that of the disciplinary authority. The Administrative Tribunal, in this case, has found no fault with the
proceedings held by the inquiring authority. It has quashed the dismissal order by reappreciating the evidence and reaching a finding different than
that of the inquiring authority. In such a case, it is not necessary for the Supreme Court to go into the merits of appreciation of evidence by the two
authorities as the Administrative Tribunal had no jurisdiction to sit as an appellate authority over the findings of the inquiring authority. Hence, the
order of the Administrative Tribunal is set aside and the order dismissing the respondent is upheld.
(ii) In the decision of I.K. Mishra Vs. Union of India and Others, the Hon''ble Supreme Court has held hereunder:
Power to retire compulsorily a government servant in terms of the service rules is absolute provided the authority concerned forms an opinion bona
fide that the compulsory retirement is in public interest.
(iii) In the decision of the Hon''ble Supreme Court in Shyam Lal Vs. The State of Uttar Pradesh and The Union of India (UOI), it is held as
follows:
There can be no doubt that removal (using the term synonymously with dismissal) generally implies that the officer is regarded as in some manner
blameworthy or deficient, that is to say, that he has been guilty of some misconduct or is lacking in ability or capacity or the will to discharge his
duties as he should do. The action of removal taken against him in such circumstances is thus founded and justified on some ground personal to the
officer. Such grounds, therefore, involve the leveling of some imputation or charge against the officer which may conceivably be controverted or
explained by the officer. There is no such element of charge or imputation in the case of compulsory retirement. Further Rule 49 of the Civil
Services (Classification, Control and Appeal) Rules clearly indicates that dismissal or removal is a punishment. This is imposed on an officer as a
penalty. It involves loss of benefit already earned. But an officer who is compulsorily retired does not lose any part of the benefit that he has
earned. On compulsory retirement he will be entitled to the pension etc., that he has actually earned. There is no diminution of the accrued benefit.
A compulsory retirement therefore does not amount to dismissal or removal and, therefore, does not attract the provisions of Article 311 of the
Constitution or of Rule 55 and Note 1 to Article 465A of the Civil Service Regulations is not repugnant to Article 311.
(iv) In the decision of the Hon''ble Supreme Court in Ranjit Thakur Vs. Union of India (UOI) and Others, it is held thus:
Judicial review, generally speaking, is not directed against a decision, but is directed against the ""decision making process"". 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. Bhagat Ram
Vs. State of Himachal Pradesh and Others,
In the instant case the punishment is so strikingly disproportionate as to call for and justify interference. It cannot be allowed to remain uncorrected
in judicial review.
(v) In the decision of the Hon''ble Supreme Court in Union of India (UOI) and Others Vs. Upendra Singh, , it is held as follows:
In the case of charges framed in a disciplinary inquiry the Tribunal or Court can interfere only if on the charges framed (read with imputation or
particulars of the charges, if any) no misconduct or other irregularity alleged can be said to have been made out or the charges framed are contrary
to any law. At this stage, the Tribunal has no jurisdiction to go into the correctness or truth of the charges. The Tribunal cannot take over the
functions of the disciplinary authority. The truth or otherwise of the charges is a matter for the disciplinary authority to go into. Indeed, even after
the conclusion of the disciplinary proceedings, if the matter comes to Court or Tribunal, they have no jurisdiction to look into the truth of the
charges or into the correctness of the findings recorded by the disciplinary authority or the appellate authority as the case may be.
Also, in the aforesaid decision, it is held hereunder:
The jurisdiction of the Central Administrative Tribunal is akin to the jurisdiction of the High Court under Article 226 of the Constitution. Therefore,
the principles, norms and the constraints which apply to the said jurisdiction apply equally to the Tribunal. If the original application of the
respondent were to be filed in the High Court it would have been termed, properly speaking, as a writ of prohibition. A writ of prohibition is issued
only when patent lack of jurisdiction is made out. It is true that a High Court acting under Article 226 is not bound by the technical rules applying to
the issuance of prerogative writs like certiorari, prohibition and mandamus in United Kingdom, yet the basic principles and norms applying to the
said writs must be kept in view.
(vi) In the decision of the Hon''ble Supreme Court in A.P.S.R.T.C. Vs. State Transport Appellate Tribunal and Others, there is a reference to DE
SMITH''S JUDICIAL REVIEW OF ADMINISTRATIVE ACTION, Fourth Edition, pages 283 and 285 which read as follows:
An authority may have a discretion whether to exercise a power, and a discretion in the manner of exercising it. But discretionary powers are
frequently coupled with duties. A Minister may be empowered to confirm or refuse to confirm a compulsory purchase order. In making his
decision, he is entitled to exercise a very wide discretion, but he is under a legal duty to determine the application for confirmation one way or the
other. Again, to the extent that a discretionary power is not absolute, the repository of a discretion is under a legal duty to observe certain
requirements that condition the manner in which its discretion may be exercised.
The relevant principles formulated by the Courts may be broadly summarized as follows. The authority in which a discretion is vested can be
compelled to exercise that discretion, but not to exercise it in any particular manner. In general, a discretion must be exercised only by the authority
to which it is committed. That authority must genuinely address itself to the matter before it: it must not act under the dictation of another body or
disable itself from exercising a discretion in each individual case. In the purported exercise of its discretion, it must not do what it has been
forbidden to do, nor must it do what it has not been authorised to do, it must act in good faith, must have regard to all relevant considerations and
must not be swayed by irrelevant considerations, must not seek to promote alien to the letter or to the spirit of the legislation that gives it power to
act, and must not act arbitrarily or capriciously.
(vii) In the decision of the Hon''ble Supreme Court in Mohinder Singh Gill and Another Vs. The Chief Election Commissioner, New Delhi and
Others, , it is laid down as follows:
when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be
supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to Court
on account of a challenge, get validated by additional grounds later brought out. Commissioner of Police, Bombay Vs. Gordhandas Bhanji, Rel.
on.
It is to be borne in mind that a premature retirement is a concept relating to the terminal point of a normal service carrier and cut short the right
of an employee to be in service till the usual date of Superannuation.
It is well known that a Court of Law cannot substitute a decision of an administrator but the said decision is subject to a minimal review as per
well established principles of Administrative Law and based on the Constitutional obligations/requirements.
The Litigations of Judicial power in judicial review are confined to an examination of materials by a Court of Law to find out whether a prudent
mind conceivably satisfied that order of compulsorily retirement is in public interest.
As far as the present case is concerned, the Second Respondent/Tribunal in T.A. No. 204 of 1991 (W.P. No. 3585 of 1983) on 16.9.2002,
in its order opined that
on going through the charge memo and the statement of allegations etc., that relationship between the Deputy Superintendent of Police, Tiruppur
and the Inspector of Police, Tiruppur Town was not cordial and there has been misunderstanding between them. In fact, in the order of the
Superintendent of Police rivalry between the Deputy Superintendent of Police and the Inspection has been mentioned. The delinquent Head
Constable seems to have been chosen by the Deputy Superintendent of Police to base members of his raiding party organized by him on the next
morning. After the Deputy Superintendent of Police called the delinquent Head Constable to came and join him for the Prohibition Raides, the
delinquent could not refuse him and he has not specifically informed the Sub-Inspector and Inspector of Police. The raid is said to have
commenced at 5.00 a.m. on 8.4.1980 and therefore there could have been no change for the Head Constable to come and report to the Sub-
Inspector of Police at such an early hour. He has returned after the raid, but again seems to have been called for duty by the Deputy
Superintendent of Police who was sub-division officer in charge of the divisions comprising the Tiruppur North Police station also. The absence of
applicant to give special report or anything between 7.4.1980 and 11.4.1980 and 11.4.1980 is also only due to the fact that on all these days he
was given duty by the Deputy Superintendent of Police and therefore no exemption can be taken any the Sub-Inspector of Police and Inspector of
Police, The Inspector of Police seems to have put up charges against the applicant with a view to wreck vengeance on the applicant who seems to
have been close to the Deputy Superintendent of Police whereas there was not such clerical relation between the Inspector and Deputy
Superintendent of Police. The Head Constable seems to have been chosen by the Inspector of Police to show his anger because of these incidents.
There is no question of showing disrespect to the Inspector of Police.
Failure to examine the Deputy Superintendent of Police concerned by the enquiry Officer to whom request has been admittedly made by the
applicant is also a mistake committed by the Enquiry officer and the Enquiry Officer has failed to collect information with regard to happenings of in
these days because of the non-examination of Deputy Superintendent of Police. Enquiry Officer cannot was off his hands by stating that the
applicant has not brought the Deputy Superintendent of police Superior officer and the applicant cannot summon him and the applicant cannot go
and ask Deputy Superintendent of Police to come and depose in the enquiry unless he was put on notice or request from the Enquiry Officer. The
Enquiry Officer who is bound to fin out the truth or otherwise of the allegation make against the delinquent who was subjected to the enquiry, ought
to have examined the Deputy Superintendent of Police in which case he would have come to a different conclusion. Therefore, applicant is also
correct in stating that failure to examine the witnesses cited by him has proved fatal to his case and he was not able to establish his innocence. Even
the evidence available is not bough to substantiate the charges in view of the admitted facts and in view of the situation. The dispute between the
Inspector and Deputy Superintendent of Police has caused injustice to the applicant.
Further, the Second Respondent/Tribunal has also come to the conclusion that in its view
one of the charge is that the First Respondent/Applicant has sent petition directly to Deputy Inspector General of Police, Coimbatore with regard
to eviction of quarters allotted to him and he has found guilty of the charge and even if this charge also held proved, does not warrant any serious
punishment definitely not compulsory retirement. In view of my observation made above the applicant can be held to have been committed lapse of
delayed recording of 161/Cr. PC statements and inquest report and to this extent there is flaw in the investigation but his cannot be stated or
equated with perfunctory investigation. Final result of this case before the competent Court is not made known to us. The evidence against the
applicant was only to the effect that there has been some delay in writing up the case diary in respect of Cr. No. 229 of 1980 and that he has sent
petitions directly to the proper channel. For this proved charge punishment of compulsory neither the Superintendent of Police not the Appellate or
Revision Authorities have considered the evidence in the proper perspective and they have not at all death with the points raised by the applicant.
The enquiry officer also is wrong is not examining the Deputy Superintendent of Police cited by the applicant which would have revealed many
facts relevant to the issues involved and therefore I hold that gross injustice has been done to the applicant and in the absence of any other
allegation or in the absence or any bad past history, the punishment of compulsory retirement imposed on the applicant is highly excessive and
shockingly disproportionate. Therefore I have not has situation in setting aside the order of compulsory retirement and finally, directed to
reinstatement of the First Respondent/Applicant and awarded punishment of withholding half of back wages due to him, stated to be 50 years old
when he filed the application during 1983 and also held that he ought to have retired on attaining the age of Superannuation in 1991 and he was
deemed to have retired from the date on which he attained the age of superannuation.
The aim of the compulsory retirement is to see that the inefficient and corrupt persons are removed. But, if no sufficient evidence was available
to dismiss or remove them from service after enquiry, they are weeded out from service with a view to secure efficiency in public service and to
maintain honesty and integrity among the service personnel as per the decision of the Hon''ble Supreme Court in Sukhdeo Vs. Commissioner
Amravati Division, Amravati and Another, .
The legality of the order of the compulsory retirement squarely depends upon the totality of material facts viewed in an holistic perspective.
Admittedly, the First Respondent (later deceased) was provided with an opportunity to defend himself in the departmental enquiry
proceedings. He also refused to sign the proceeding on 22.3.1982, even though his counsel advised him to sign the proceedings as per order dated
12.5.1982 passed by the Deputy Superintendent of Police, Udumalpet. Moreover, he failed to appear on 4.3.1982, 9.3.1982 and 13.3.1982 with
defence witness and documents, but he absented himself for the enquiry (notwithstanding that he appeared on 23.2.1982 before the Deputy
Superintendent of Police, Udumalpet and had not produced any witness or documents) and only thereafter, a minute was drawn up on 12.5.1982
by the Deputy Superintendent of Police, Udumalpet.
Therefore, it could not be contended on behalf of Respondents 3 to 5 that the First Respondent/Applicant (deceased) was not provided with
an adequate opportunity to defend himself before the Enquiry Officer in the departmental proceedings.
On going through the impugned order of the Second Respondent/Tribunal in T.A. No. 204 of 1991 (W.P. No. 3585 of 1983, dated
16.9.2002), we are of the considered opinion that the Tribunal, in totality facts and circumstances of the case, had opined that the dispute between
the Inspector and Deputy Superintendent of Police caused injustice to the applicant(First Respondent) and further that neither the Superintendent
of Police nor the Appellate or Revision Authorities considered the evidence in the proper perspective and they had not at all dealt with the points
raised. Moreover, it opined that gross injustice was done to the applicant (First Respondent) and in the absence of any other allegation or in the
absence or any bad past history, the punishment of compulsory retirement imposed on the applicant (First Respondent) was an excessive and
shockingly disproportionate one.
The first test to be kept in mind for finding out whether termination of service by compulsory retirement amounting to removal or dismissal so
as to attract the provisions of s. 311 of the Constitution of India, is that
whether the action is by way of punishment and to find that it was necessary that a charge or imputation against the officer is made the condition
of the exercise of the power?
Whether by compulsory retirement the officer is losing the benefit he has already earned as he does by dismissal or removal? as per the decision
of Hon''ble Supreme Court in Dalip Singh v. State of Punjab, AIR 1960 SC 1305, 1308.
We deem it appropriate to pertinently point out that if the correctness of a decision of compulsory retirement by an appropriate authority,
provided it is bona fide, would not be gone into by the Hon''ble Supreme Court as per the decision in R.L. Butah Vs. Union of India (UOI) and
Others,
With regard to the plea of the petitioners that the Tribunal cannot modify the punishment imposed by the disciplinary authority, we deem it apt
to quote a judgment of the Honourable Apex Court in Union of India and Another v. S.S. Ahluwalia (2007) 6 Sup 521, wherein it has been held
as follows:
The Court can interfere with the punishment only if it finds the same to be shockingly disproportionate to the charges found to be proved, in which
case, the matter is to be remitted to the disciplinary authority for reconsideration of the punishment. In an appropriate case, however, in order to
avoid delay, the Court can itself impose lesser penalty.
Therefore, in view of the authentic pronouncement of the Honourable Apex Court, we have no hesitation to hold that the Tribunal has correctly
assessed the facts and circumstances of the case in their proper perspective and weighing the same in a judicious way, has modified the punishment
which is well within the legal bounds and the contra arguments advanced on the part of the petitioners are untenable and accordingly, they are
rejected.
The Disciplinary Authority, Appellate Authority and the Revisional Authority had all come to a conclusion that the charges levelled against the
First Respondent/appellant (later deceased) were proved. Since the Second Respondent/Tribunal had held (after going through the matter in
depth) that the punishment of compulsory retirement imposed on the First Respondent/applicant was an excessive and shockingly disproportionate
one, it set aside the order of compulsory retirement and ordered reinstatement; and directed the reinstatement of the First Respondent and
modified the punishment to one of withholding half of back wages and passed an order of deemed retirement during the year 1991 on which date
he attained the age of superannuation and further ordered the entitlement of revision of pay and also directed to get half of back wages from the
date on which the First Respondent/applicant was compulsorily retired his normal date or retirement etc. The exercise of discretion in modifying the
punishment of compulsory retirement into that of reinstatement of applicant etc., and more elaborately referred to in earlier paragraphs, in our
consider opinion, does not suffer from any material irregularity or patent illegality, warranting interference in the hands of this Court.
In view of the fact that the First Respondent/applicant expired on 19.12.2005, appellants are directed to issue appropriate proceedings so as
to enable the R3 to R5 to receive all the terminal benefits (due to the First Respondent/applicant) deducting the amount already paid and the
Appellants are directed to send proposals regarding revision of pay of the First Respondent to the Accountant General relating to the pension and
the difference amount be paid to them, to promote substantial cause of justice. Consequently, the writ petition fails. In the result, the writ petition is
dismissed. Consequently, the order passed by the Tribunal dated 16.9.2002 in T.A. No. 204 of 1991 (W.P. No. 3585 of 1983) are affirmed by
this Court, for the reasons assigned in this Writ Petition. No costs. Consequently, connected miscellaneous petition is closed.