Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS.5762-5763 OF 2009

(Arising out of SLP(C) Nos. 776-777/2009)

Chairman cum Managing Director,

Coal India Limited & Anr. …Appellants

Versus

Mukul Kumar Choudhuri & Ors. …Respondents

JUDGEMENT

R.M. Lodha, J.

Leave granted.

2. These two appeals by special leave are directed

against the judgment passed by the Division Bench of High

Court of Judicature at Calcutta on September 22, 2008

whereby the Division Bench affirmed the order of the Single

Judge passed on July 26, 2007 insofar as reinstatement of the

Respondent No. 1 was concerned but modified the order of the

Single Judge by awarding him back wages.

3. Mukul Kumar Choudhuri, Respondent No. 1, joined

his service with the Eastern Coalfields in 1992 as System

Officer. In 1996, he was transferred to North-Eastern Coalfields,

Assam. On September 16, 1998, the Respondent No. 1

proceeded on sanctioned leave upto September 29, 1998.

However, after expiry of his sanctioned leave, he did not report

to duty and despite reminders remained absent for six months

without any authorization.

4. On March 18, 1999, the Director-in-Charge, North-

Eastern Coalfields initiated disciplinary enquiry against the

Respondent No. 1 under Rule 29 of the Coal India Executives

Conduct Discipline and Appeal Rules, 1978 (for short, ‘Conduct

Rules, 1978’) for misconduct on his part by –(i) absenting

himself without leave; (ii) Overstaying the sanctioned leave for

more than four consecutive days; and (iii) Desertion of job and

failure to maintain integrity and devotion to duty.

5. On May 31, 1999, the Respondent No. 1 sent letter

of resignation. His resignation was, however, not accepted by

2

the Management and, accordingly, he joined his duty on

September 10, 1999.

6. In the enquiry proceedings, the Respondent No. 1

appeared before the Inquiry Officer and admitted the charges

leveled against him. The Inquiry Officer concluded the enquiry

and vide his report dated October 5, 1999 held that the

delinquent was guilty of the charges as mentioned in the

charge-sheet.

7. Upon receipt of the enquiry report, a second show

cause notice dated December 10, 1999 was issued to the

Respondent No. 1 indicating therein that in view of the findings

recorded by the Inquiry Officer, termination of his services was

proposed. The delinquent was asked to show cause as to why

the punishment of termination of service be not awarded to him.

A copy of the enquiry report was sent along with the second

show cause notice.

8. The Respondent No. 1 responded to the second

show cause notice. He submitted that he sincerely wanted to

leave the Company for several personal problems but these

3

were aggravated by unsympathetic attitude of the Management

in not accepting his resignation. He submitted that he deserved

no punishment and that his explanation be considered

favourably.

9. By an Office Order dated November 29, 2000, the

Respondent No. 1 was removed from service with immediate

effect. The Respondent No. 1 pursued the departmental

remedy but without any success. He also approached Calcutta

High Court on more than one occasion raising grievance of

non-consideration of the departmental appeal and the review

application before Reviewing Authority and the departmental

authorities not passing the reasoned order. It is not necessary

to refer to these proceedings in details. Suffice it to say that as

directed by the High Court, he challenged the order of removal

before the Board of Directors which came to be dismissed on

August 17, 2006. Then, he again approached the High Court by

filing writ petition being Writ Petition No. 1334 of 2006.

10. The Single Judge of the High Court by his judgment

delivered on July 26, 2007 allowed the writ petition, set aside

4

the impugned orders and directed the reinstatement of

Respondent No. 1. The Single Judge, however, did not award

back wages to the Respondent No. 1 but declared that he be

treated to be in continuous service without any break and

without affecting his seniority.

11. The order of the Single Judge was challenged in

separate appeals by both parties before the Division Bench.

The appeal preferred by the present appellants was dismissed

while the appeal preferred by the Respondent No. 1 was

allowed and it was held that he was entitled to back wages for

the period on and from the year 2000 until reinstatement.

12. We heard Mr. Gopal Subramanium, learned

Solicitor General and the Respondent No. 1 in-person.

13. Inter alia, the misconduct alleged against the

Respondent No. 1 was unauthorized absence from duty for

more than six months. The delinquent admitted the charges

before the Inquiry Officer. He stated :

“I admit the charges. However, I desire to state

reasons for my absence and is given below:

5

i) I did not have any intention nor desire of disobeying

order of higher authority or violate any of the

Company’s rule and regulations and.

ii)The reason is purely personal which cannot be

produced by any evidence to prove and is beyond my

control.”

14. The admission on the part of delinquent before the

Inquiry Officer leaves no manner of doubt that the charges

against the delinquent stood fully proved. He was given second

show cause notice and a copy of the enquiry report was

annexed thereto. He sent his written response to the second

show cause on July 15, 2000.

15. Office Order dated November 29, 2000 reads thus :

“Coal India Ltd.

10, Netaji Subash Road,

Calcutta – 700001

Ref. No. CIL/C-5A(iii)/740 Dated : 29.11.2000

ORDER

WHEREAS a Memorandum No. NEC/ EE/DIC/99/10/

621 dated 18.03.99 was issued to Sri M.K. Choudhury,

Manager (Systems), North Eastern Coalfields for

unauthorized absence from duty w.e.f. 30.09.1998, and

WHEREAS the written explanation submitted by Shri

Choudhury vide dated 31.05.99 having been found not

satisfactory, a departmental enquiry was ordered and

conducted wherein Shri Choudhury fully participated. The

Inquiring Authority submitted his report wherein the charge

of unauthorized absence w.e.f. 30.09.98 against Sri M.K.

Choudhury, was proved beyond doubt. A showcause Notice

6

along with the copy of the enquiry report was also sent to

him for making representation thereon, and;

WHEREAS the, Chairman-cum-Mg. Director, Coal

India Limited, after careful consideration of the memorandum

dated 18.03.1999 report of the Inquiring Authority dated

05.10.99 enquiry proceedings, representation dated

15.07.2000 of Shri M.K. Choudhury and other documents on

record has come to the conclusion that the Charge of

unauthorized absence w.e.f. 30.09.98 against Shri M.K.

Chowdhury, Manager (Systems), NEC has been proved

beyond doubt.

NOW THEREFORE, the Chairman-cum-Mg. Director,

Coal India Limited as Disciplinary Authority, considering the

gravity of the offence has imposed the penalty of “removal

from service” on Sri M.K. Choudhury, Manager (Systems),

North Eastern Coalfields with immediate effect. Accordingly,

Sri Choudhury is hereby removed from service with

immediate effect.

This issues with the approval of Competent Authority.

(N.K. Sharma)

Director (Technical)”

16. It is apparent therefrom that it is the

disciplinary authority who took the decision of imposition

of penalty of removal. The issuance of the order is by

Director Technical only. There is no procedural illegality

or irregularity in the disciplinary proceedings. The charge

of unauthorized absence for more than six months is

admitted by the delinquent and clearly established.

7

17. In the case of State of Andhra Pradesh and

Others v. Chitra Venkata Rao

1

, this Court considered the

scope of judicial review in dealing with departmental

enquiries and held:

“21. The scope of Article 226 in dealing with departmental

inquiries has come up before this Court. Two propositions

were laid down by this Court in State of A.P. v. S. Sree

Rama Rao (AIR 1963 SC 1723). First, there is no warrant for

the view that in considering whether a public officer is guilty

of misconduct charged against him, the rule followed in

criminal trials that an offence is not established unless

proved by evidence beyond reasonable doubt to the

satisfaction of the Court must be applied. If that rule be not

applied by a domestic tribunal of inquiry the High Court in a

petition under Article 226 of the Constitution is not

competent to declare the order of the authorities holding a

departmental enquiry invalid. The High Court is not a court of

appeal under Article 226 over the decision of the authorities

holding a departmental enquiry against a public servant. The

Court is concerned to determine whether the enquiry is held

by an authority competent in that behalf and according to the

procedure prescribed in that behalf, and whether the rules of

natural justice are not violated. Second, where there is some

evidence which the authority entrusted with the duty to hold

the enquiry has accepted and which evidence may

reasonably support the conclusion that the delinquent officer

is guilty of the charge, it is not the function of the High Court

to review the evidence and to arrive at an independent

finding on the evidence. The High Court may interfere where

the departmental authorities have held the proceedings

against the delinquent in a manner inconsistent with the

rules of natural justice or in violation of the statutory rules

prescribing the mode of enquiry or where the authorities

have disabled themselves from reaching a fair decision by

some considerations extraneous to the evidence and the

merits of the case or by allowing themselves to be influenced

by irrelevant considerations or where the conclusion on the

very face of it is so wholly arbitrary and capricious that no

reasonable person could ever have arrived at that

1

(1975) 2SCC 557

8

conclusion. The departmental authorities are, if the enquiry

is otherwise properly held, the sole judges of facts and if

there is some legal evidence on which their findings can be

based, the adequacy or reliability of that evidence is not a

matter which can be permitted to be canvassed before the

High Court in a proceeding for a writ under Article 226.

22. …….

23. The jurisdiction to issue a writ of certiorari under Article

226 is a supervisory jurisdiction. The Court exercises it not

as an appellate court. The findings of fact reached by an

inferior court or tribunal as a result of the appreciation of

evidence are not reopened or questioned in writ

proceedings. An error of law which is apparent on the face of

the record can be corrected by a writ, but not an error of fact,

however grave it may appear to be. In regard to a finding of

fact recorded by a tribunal, a writ can be issued if it is shown

that in recording the said finding, the tribunal had

erroneously refused to admit admissible and material

evidence, or had erroneously admitted inadmissible

evidence which has influenced the impugned finding. Again

if a finding of fact is based on no evidence, that would be

regarded as an error of law which can be corrected by a writ

of certiorari. A finding of fact recorded by the Tribunal cannot

be challenged on the ground that the relevant and material

evidence adduced before the Tribunal is insufficient or

inadequate to sustain a finding. The adequacy or sufficiency

of evidence led on a point and the inference of fact to be

drawn from the said finding are within the exclusive

jurisdiction of the Tribunal. See Syed Yakoob v. K.S.

Radhakrishnan (AIR 1964 SC 477).

24. The High Court in the present case assessed the entire

evidence and came to its own conclusion. The High Court

was not justified to do so. Apart from the aspect that the

High Court does not correct a finding of fact on the ground

that the evidence is not sufficient or adequate, the evidence

in the present case which was considered by the Tribunal

cannot be scanned by the High Court to justify the

conclusion that there is no evidence which would justify the

finding of the Tribunal that the respondent did not make the

journey. The Tribunal gave reasons for its conclusions. It is

not possible for the High Court to say that no reasonable

person could have arrived at these conclusions. The High

Court reviewed the evidence, reassessed the evidence and

9

then rejected the evidence as no evidence. That is precisely

what the High Court in exercising jurisdiction to issue a writ

of certiorari should not do.”

18. It has been time and again said that it is not open to

the High Court to examine the findings recorded by the Inquiry

Officer as a Court of Appeal and reach its own conclusions and

that power of judicial review is not directed against the decision

but is confined to the decision making process. In a case such

as the present one where the delinquent admitted the charges,

no scope is left to differ with the conclusions arrived at by the

Inquiry Officer about the proof of charges. In the absence of

any procedural illegality or irregularity in conduct of the

departmental enquiry, it has to be held that the charges against

the delinquent stood proved and warranted no interference.

19. The Single Judge of the High Court in paragraphs

43 and 44 of the judgment observed thus:

“43.This Court is of the view that the so-called order dated

29.11.2000 is a mere communication WITHOUT ACTUALLY

serving the original Order of the Disciplinary Authority.

Merely transmitting the decision of the Disciplinary Authority

was not sufficient since this was a matter involving the

punishment of removal from service entailing civil

consequences.

44.We are dealing with a case of removal from service

for an alleged absence of 6(six) months. This Court is of the

10

view that the Respondents were bound to adhere to a fair

and transparent procedure by firstly serving the actual order

of the Disciplinary Authority upon the petitioner and then, by

giving reasons as to why they chose not to agree with what

the Petitioner wanted to say qua his absence when, after

admitting the absence, he gave reasons as to why he had

remained absent. They were also obliged to strictly obey

with the Orders of this, court. In that view of the matter, the

argument of Mr. Aloke Banerjee to the effect that the

Respondents were not required to give reasons, are not

acceptable to this Court. Consequently the Judgments cited

by him namely AIR 1987 SC 2043 and the other Judgments

such as 2001 (2) CHN 632 and 1991(2) SCC 716 are held to

be not applicable because in this case, it was the desire and

Order of the Hon’ble Division Bench that the Respondents

should deal with the matter in accordance with law. In the

opinion of this Court, “in accordance with law” means and

includes observing the principles of natural justice and giving

reasons because the Respondents were supposed to be

dealing with his pleas relating to his explanations which were

so very very crucial to his case. Consequently and in the

facts and circumstances of this case, none of the Judgments

cited by Mr. Banerjee can be said to have any Application.”

20. In what we have already discussed, we find it

difficult to accept the view of the Single Judge.

21. The Division Bench like the Single Bench fell into

grave error in not adequately adverting to the fact that the

charges were admitted by the delinquent unequivocally and

unambiguously and, therefore, misconduct of the Respondent

No. 1 was clearly established. We are, therefore, unable to

persuade ourselves to concur with the view of the High Court.

11

22. The question, however, remains : is the punishment

of removal grossly disproportionate to the proved charge of

unauthorized absence for more than six months?

23. In order to answer the aforesaid question, it would

be appropriate to refer to a few of decisions of this Court

wherein doctrine of proportionality has been considered. In

Union of India and Another v. G. Ganayutham

2

, this Court

elaborately considered the proportionality in the administrative

law in England as well as in our own country. The court

considered some important English decisions, viz., Associated

Provincial Picture Houses Ltd. v. Wednesbury Corporation

3

,

Council of Civil Service Unions v. Minister for Civil Service

4

, R.

v. Goldstein

5

and R. v. Secretary for Home Dept. ex. p. Brind

6

and few decisions of this Court, viz., Ranjit Thakur v. Union of

India

7

, State of Maharashtra v. M.H. Mazumdar

8

, Ex-Naik

Sardar Singh v. Union of India

9

, Tata Cellular v. Union of

2

(1997) 7SCC463

3

(1947) 2All ER 680

4

(1984) 3 All ER 935

5

(1983) 1 All ER 434

6

(1991) 1 All ER 720

7

(1987) 4 SCC 611

8

(1988) 2 SCC 52

9

(1991) 3 SCC 213

12

India

10

, State of A.P. v. McDowell & Co.

11

and summed up

position of proportionality in administrative law in England and

India thus :

“(1) To judge the validity of any administrative order or

statutory discretion, normally the Wednesbury test is to be

applied to find out if the decision was illegal or suffered from

procedural improprieties or was one which no sensible

decision-maker could, on the material before him and within

the framework of the law, have arrived at. The court would

consider whether relevant matters had not been taken into

account or whether irrelevant matters had been taken into

account or whether the action was not bona fide. The court

would also consider whether the decision was absurd or

perverse. The court would not however go into the

correctness of the choice made by the administrator

amongst the various alternatives open to him. Nor could the

court substitute its decision to that of the administrator. This

is the Wednesbury test.

(2) The court would not interfere with the administrator’s

decision unless it was illegal or suffered from procedural

impropriety or was irrational — in the sense that it was in

outrageous defiance of logic or moral standards. The

possibility of other tests, including proportionality being

brought into English administrative law in future is not ruled

out. These are the CCSU principles.

(3)(a) As per Bugdaycay (1987 AC 514), Brind and Smith as

long as the Convention is not incorporated into English law,

the English courts merely exercise a secondary judgment to

find out if the decision-maker could have, on the material

before him, arrived at the primary judgment in the manner he

has done.

(3)(b) If the Convention is incorporated in England making

available the principle of proportionality, then the English

courts will render primary judgment on the validity of the

administrative action and find out if the restriction is

disproportionate or excessive or is not based upon a fair

10

(1994) 6 SCC 651

11

(1996) 3 SCC 709

13

balancing of the fundamental freedom and the need for the

restriction thereupon.

(4)(a) The position in our country, in administrative law,

where no fundamental freedoms as aforesaid are involved,

is that the courts/tribunals will only play a secondary role

while the primary judgment as to reasonableness will remain

with the executive or administrative authority. The secondary

judgment of the court is to be based on Wednesbury and

CCSU principles as stated by Lord Greene and Lord Diplock

respectively to find if the executive or administrative authority

has reasonably arrived at his decision as the primary

authority.

(4)(b) Whether in the case of administrative or executive

action affecting fundamental freedoms, the courts in our

country will apply the principle of “proportionality” and

assume a primary role, is left open, to be decided in an

appropriate case where such action is alleged to offend

fundamental freedoms. It will be then necessary to decide

whether the courts will have a primary role only if the

freedoms under Articles 19, 21 etc. are involved and not for

Article 14.”

24. Dealing with the question of proportionality with

regard to punishment in disciplinary matters, the court said :

“32. 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”.

33. 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,

14

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)

“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.”

Similar view was taken in Indian Oil Corpn. Ltd. v. Ashok

Kumar Arora [(1997) 3 SCC 72] that the Court will not

intervene unless the punishment is wholly disproportionate.

34. 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.”

25. Again, in the case of Coimbatore District Central

Cooperative Bank v. Coimbatore District Central Cooperative

15

Bank Employees Assn. and Another

12

this court considered the

doctrine of proportionality and it was held :

“17. 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 judicial review. One of such modes of

exercising power, known to law is the “doctrine of

proportionality”.

18. “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.

19. 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.]

20. In Halsbury’s Laws of England (4th Edn.), Reissue, Vol.

1(1), pp. 144-45, para 78, it is stated:

“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

12

(2007) 4 SCC 669

16

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.”

21. 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”. As has been said many a

time; “where paring knife suffices, battle axe is precluded”.

22. 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)

“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’….”(emphasis supplied)

23. CCSU has been reiterated by English courts in several

subsequent cases. We do not think it necessary to refer to

all those cases.

24. So far as our legal system is concerned, the doctrine is

17

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.

25. 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)

“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) (emphasis supplied)

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) (emphasis

supplied)

26. 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)

“[T]he Federation had made a mountain out of

a mole hill and made a trivial matter into one

involving loss of its prestige and reputation.”

27. In Ranjit Thakur referred to earlier, an army officer did

not obey the lawful command of his superior officer by not

18

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.

28. Applying the doctrine of proportionality and following

CCSU, Venkatachaliah, J. (as His Lordship then was)

observed: (SCC p. 620, para 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.” (emphasis supplied)

26. The doctrine of proportionality is, thus, well

recognized concept of judicial review in our jurisprudence. What

is otherwise within the discretionary domain and sole power of

the decision maker to quantify punishment once the charge of

misconduct stands proved, such discretionary power is

exposed to judicial intervention if exercised in a manner which

19

is out of proportion to the fault. Award of punishment which is

grossly in access to the allegations cannot claim immunity and

remains open for interference under limited scope of judicial

review. One of the tests to be applied while dealing with the

question of quantum of punishment would be : would any

reasonable employer have imposed such punishment in like

circumstances? Obviously, a reasonable employer is expected

to take into consideration measure, magnitude and degree of

misconduct and all other relevant circumstances and exclude

irrelevant matters before imposing punishment. In a case like

the present one where the misconduct of the delinquent was

unauthorized absence from duty for six months but upon being

charged of such misconduct, he fairly admitted his guilt and

explained the reasons for his absence by stating that he did not

have any intention nor desired to disobey the order of higher

authority or violate any of the Company’s Rules and

Regulations but the reason was purely personal and beyond his

control and, as a matter of fact, he sent his resignation which

was not accepted, the order of removal cannot be held to be

justified, since in our judgment, no reasonable employer would

20

have imposed extreme punishment of removal in like

circumstances. The punishment is not only unduly harsh but

grossly in excess to the allegations. Ordinarily, we would have

sent the matter back to the appropriate authority for

reconsideration on the question of punishment but in the facts

and circumstances of the present case, this exercise may not

be proper. In our view, the demand of justice would be met if

the Respondent No. 1 is denied back wages for the entire

period by way of punishment for the proved misconduct of

unauthorized absence for six months.

27. Consequently, both these appeals are allowed in

part. The appellants shall reinstate Respondent No. 1 forthwith

but he will not be entitled to any back wages from the date of

his removal until reinstatement. Parties will bear their own

costs.

……………………J

(P. Sathasivam)

…….……………..J

(R. M. Lodha)

New Delhi

August 24, 2009.

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