S.V.S. Raghuvanshi vs National Seeds Corporation Ltd. and Another

Valmiki J Mehta, J.—By this writ petition, the petitioner impugns the orders passed by the departmental authorities dated 18.1.1993 and 22.6.1994. By the impugned orders penalty of removal from services has been imposed upon the petitioner. The only ground urged by the learned counsel for the petitioner is that the impugned orders are hit by the doctrine of proportionality. It is argued that because of the extreme punishment imposed of removal of services for the alleged loss of Rs. 420/-, the entire service record of the petitioner has been wiped out, and the petitioner therefore will not be able to get his provident fund or gratuity or other benefits. What is argued is that petitioner in a case like the present should only have been given a lesser penalty of compulsory retirement because petitioner had an unblemished service record with the respondent No. 2/employer for about 16 years before the chargesheet was issued against him. Petitioner was employed with the respondent No. 2 in 1963 and the chargesheet which was issued in this case is dated 27.4.1978.

Reliance is placed by the petitioner upon the judgments of the Supreme Court in the cases of State of M.P. and Others Vs. Hazarilal, , Sheel Kr. Roy Vs. Secretary M/o Defence and Others, , Mavji C. Lakum Vs. Central Bank of India, , Ved Prakash Gupta Vs. Delton Cable India (P) Ltd., and U.P. State Road Transport Corporation and Others Vs. Shivaji, to urge application of the doctrine of proportionality for reducing the penalty imposed.

In the case of State of M.P. and Ors. Vs. Hazarilal (supra), paras 11 to 13 are relied upon and which read as under:

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 Wednesbury principle of unreasonableness has been replaced by the doctrine of proportionality.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. Kanan, , State of U.P. Vs. Sheo Shanker Lal Srivastava and Others, and M.P. Gangadharan and Another Vs. State of Kerala and Others,

At this stage we may also notice the application of the Doctrine by the United Kingdom House of Lords in Seal (FC) (Appellant) v. Chief Constable of South Wales Police (Respondent), (2007) 4 All ER 177 Huang (FC) (Respondent) v. Secretary of State for the Home Department (Appellant) and Kashmiri (FC) (Appellant) v. Secretary of State for the Home Department (Respondent) (Conjoined Appeals) [2007] 4 All ER 15; Tweed (Appellant) v. Parades Commission for Northern Ireland (Respondents) (Northern Ireland), [2007) 2 All ER 273 ; Belfast City Council (Appellants) v. Miss Behavin'' Limited (Respondents) (Northern Ireland) [2007] 3 All ER 1007 and R (on the application of Countryside Alliance and Ors. and Ors.) v. Her Majesty''s Attorney General and Anr. [2007] 3 WLR 922.

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 (WLR p. 15. para 35)

35....''27....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.V. Ministry of Defence, Ex. p Smith [1996] QB 517 554 is not necessarily appropriate to the protection of human rights.

In the case of Sheel Kumar Roy Vs. Secretary, Ministry of Defence & Ors. (supra) reliance is placed upon para 17 and which reads as under:

Fairness and reasonableness in the action of the State whether in a criminal proceeding or otherwise are the hallmark of Article 14 of the Constitution of India. The doctrine of proportionality is one of the grounds on the basis whereof the power of judicial review could be exercised. It was so held in Ex-Naik Sardar Singh Vs. Union of India (UOI) and Others,

Para 15 in the case of Kshetra Pal Singh Vs. NCT of Delhi & Ors. (W.P. (C) 631/1997 decided by this Court on 21.01.2013) reads as under:

In the case of Mavji C. Lakum Vs. Central Bank of India, , it was held that extreme punishment of discharge granted on account of absence of certain days of an employee and who was also found to be argumentative in nature was violative of doctrine of proportionality and lesser punishment instead of discharge from service was imposed. In the case of Ved Prakash Gupta Vs. Delton Cable India (P) Ltd., , it was held that if a person is held guilty of abusing some workers and officers of management, but there was no previous adverse remarks against the delinquent, the extreme penalty of discharge on the ground of alleged mis-conduct was held to be disproportionately excessive and violative of the doctrine of the proportionality. In the judgment of U.P. State Road Transport Corporation and Others Vs. Shivaji, , it was held that termination of services was not justified if a Driver was held guilty of misconduct of driving a bus into a barrier, once it was proved that the incident happened not on account of any deliberate act but negligence of the Driver.

Learned counsel for the respondent No. 2 on the contrary relies upon the judgment of the Supreme Court in the case of Regional Manager, U.P.S.R.T.C., Etawah and Others Vs. Hoti Lal and Another, wherein the Supreme Court held that even where the State only suffers a loss of Rs. 16, yet, punishment of removal of service is justified because in dealing with public monies there cannot be any lapse.

The doctrine of proportionality is now well entrenched in service jurisprudence. No doubt, Courts would not ordinarily interfere with the punishment which is imposed by the Disciplinary Authority, however, one cannot also overlook the fact that the Supreme Court has observed that a sledgehammer is not required when a nut-cracker will do the job, and similarly a battle axe is not required where a knife can do the job. Of course, petitioner has been found guilty of misappropriation of Rs. 420/-, however, I may note that petitioner in the enquiry proceedings said that on account of peak season and rush of work he trusted his junior employee and, therefore, he himself did not verify the payment vouchers of the workers, and because of which this loss of Rs. 420/- took place.

In my opinion, I cannot overlook the service of the employee of over 16 years with the respondent No. 2. Of course because of loss of the amount of Rs. 420/-, major penalty proceedings can be and were initiated, and a major penalty imposed, however, even within major penalty proceedings, there are various major penalties which can be awarded and which need not be the extreme punishment of removal from services. Each case depends on its own peculiar facts. No doubt, petitioner has been found guilty of loss of Rs. 420/- to the organization and the claim that he pocketed the same, however, one cannot overlook the aspect of rush of work in the peak season.

Therefore, in view of the judgments which are relied upon on behalf of the petitioner, I reduce the punishment in the present case from that of removal from service of the petitioner to that of compulsory retirement of the petitioner w.e.f. the date of the order of the Disciplinary Authority dated 8.1.1981. I note that though this first order of Disciplinary Authority was set aside on technical grounds, however, considering all the facts and circumstances, I am of the opinion that petitioner would stand compulsorily retired from the respondent No. 2/employer w.e.f. 8.1.1981 and the orders of Departmental Authority imposing the extreme punishment of removal are set aside. Counsel for the petitioner on instructions from the petitioner agrees to the imposition of the punishment of compulsory retirement.

In view of the above, writ petition is allowed to the limited extent that the punishment imposed by the Departmental Authority from removal of service of the petitioner will stand changed to that of compulsory retirement of the petitioner w.e.f. 8.1.1981. If as a result of reducing of punishment to that of compulsory retirement, petitioner will be in accordance with the rules entitled to gratuity or other terminal benefits, then, the respondent No. 2 should process the papers of the petitioner within a period of two months from today and pay such amounts to the petitioner along with interest at 5% per annum simple from 8.1.1981 till the date of payment. Writ petition is accordingly allowed to the extent as stated above. No costs.