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PETITIONER:

UNION OF INDIA & ANOTHER

Vs.

RESPONDENT:

G. GANAYUTHAM

DATE OF JUDGMENT: 27/08/1997

BENCH:

SUJATA V. MANOHAR, M. JAGANNADHA RAO

ACT:

HEADNOTE:

JUDGMENT:

J U D G M E N T

M. JAGANNADHA RAO,J.

This is an appeal by the Union of India and the

Collector of Central Excise against the judgment of the

Central Administrative Tribunal in Tr. A.No.660 of 1986

dated 5.12.1986 allowing the petition filed by the

respondent.

The respondent was working as Superintendent of Central

Excise. While so, on 14.11.1977, was served with a memo of

eight charges and an inquiry was conducted. The Inquiry

Officer submitted a report dated 17.5.1978 stating hat

charge No.4 was not proved, charge NO.8 was partly proved,

and other charges were held proved. The respondent retired

from service on 31.5.1978. A show cause notice dated

18.3.1982 was issue under Rule 9 of the Central Civil

Services (pension) Rules, 1972 (hereinafter called the

'Rules') proposing withdrawal of full pension and gratuity

admissible to the respondent on the ground that the

Government suffered substantial loss of revenue due to the

misconduct of the respondent. The respondent submitted an

explanation. The Union Public Service Commission was

consulted and the Commission felt that charges 4 and 6 were

not proved but concurred with the findings of the Inquiry

Officer on other charges. based on the Commission's advice,

a penalty of withholding 50% of the pension and 50^ of

gratuity was awarded to the respondent by orders dated

8.5.1984. Questioning the same, a writ petition was filed

by the respondent in the High Court of Madras which was

later transferred to the Tribunal. After hearing the

respective counsel for the parties, the Tribunal held by

judgment dated 5.12.1986 that under Rule 9 of the Rules the

competent authority could not withdraw any art of the

gratuity inasmuch as the said provision referred merely to

withholding of pension and not gratuity. It held that the

definition of 'pension' in rule 3(1)(o) which included

gratuity was not applicable for purposes of Rule 9. So far

as the penalty of withholding 50% of the pension was

concerned, it held that the punishment awarded was 'too

severe', that the lapses were procedural, there was no

collusion between the respondent and any party, that the

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officer had otherwise done excellent work and, therefore, it

was a fit case where the withholding of pension of 50% had

to be restricted for a period of 10 years instead of on a

permanent basis.

Aggrieved by the said decision of the Tribunal, the

Union of India and the Collector, Central Excise have

preferred this appeal. During the pendency of this appeal,

the respondent died and his legal representatives have been

bought on record.

It was contended by the learned counsel for the

appellants that the Tribunal was wrong in law in holding

that the power to withhold 'pension' as specified in rule 9

did not include the power to withhold the whole or part of

the gratuity. It was argued that under Rule 3(1)(o)), the

word 'pension' is defined to include the 'gratuity' except

when the term 'pension' is used in contradistinction to

gratuity and that in Rule 9 there is no question of the word

'pension' being used in contradistinction gratuity. This

point, according to the appellant's counsel is covered by

the judgment of this Court in Jarnail Singh vs. Secretary,

Ministry of Home Affairs [1993 (1) SCC 47] in favour of the

appellant and against the respondent. It was also contended

that the Tribunal ought not to have gone into the question

as to whether the punishment of withholding 50% of the

pension and gratuity was commensurate with the gravity of

the misconduct proved and that this amounted to going into

the 'proportionality' of the punishment which was not

permissible in law. The charges proved showed that the

conduct of the respondent related to loss of revenue to the

government and that the competent authority had taken a

'reasonable' decision as to quantum of punishment weighing

all the relevant factors and the decision of the said

authority could not be said to be one which no reasonable

person could have reasonably taken. In any event, there was

also no finding by the Tribunal that the punishment imposed

was 'shockingly' disproportionate to the gravity of charges.

In Ranjit Thakur Vs. Union of India [1987 (4) SCC 611],

though the principle of 'proportionality' was referred to,

still it was only after arriving at a finding that the

punishment was 'shockingly' disproportionate that this Court

interfered with the punishment and that too under Article

136 of the Constitution of India.

Learned counsel for the respondent could not place

before us any other decision to persuade us to take a view

different from the view taken in Jarnail Singh's case

(supra). So far as the punishment was concerned, the argued

that the Tribunal felt that the punishment was far severe

having regard to the charges proved and it was, in those

circumstances, permissible for the Tribunal to interfere

with the quantum of punishment. Learned counsel relied upon

the decision of this Court in State of Maharashtra vs.

M.H.Mazumdar [1988 (2) SCC 52] where, on facts, it was held

that withdrawing 50% of the pension permanently was harsh

and the matter was remanded by this Court to the Government

for fresh consideration of the quantum of punishment.

The following points arise for consideration.

(1) Whether while interpreting Rule 9 of the Central Civil

Services (Pension) Rules, 1972 in regard to withdrawal of

whole or part of pension, it is permissible to apply the

definition of 'pension' in rule 3 and hold that under Rule 9

death-cum-gratuity could also be withdrawn wholly r in part?

(2) Whether it is permissible for the Court or Tribunal to

interfere with the quantum of punishment imposed by the

competent authority on the ground that it was too severe and

hence 'disproportionate' to the gravity of the charges

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proved?

Point No.1: Rule 9 of the Rule refers to the power of

the President to withhold or withdraw pension, whether

permanently or for a specified period, and to the ordering

of recovery from the pension, of the whole or part of any

pecuniary loss caused to the government, in any departmental

or Judicial proceedings, if the pensioner is found guilty of

grave misconduct of negligence during the period of his

service, including service rendered upon re-employment after

retirement. The proviso requires that the Union Public

Service Commission be consulted before any final orders are

passed. Rule 3 of the Rules defines 'pension' as including

'gratuity' except when the term pension is used in

contradistinction to gratuity. In Jarnail Singh vs.

Secretary, Ministry of Home Affairs [1993 (1) SCC 47] it was

held that 'the term 'pension' used in Rule 9(1) must be

construed to include gratuity since the said word, in the

context, was not used in constradistinction to gratuity'.

It was further hold that the amendment made in Rule 9(1) by

the Central Civil Services (Pension) Third Amendment Rules,

1991 which substituted the words 'pension or gratuity, or

both' in the body of Rule 9 was clarificatory and was

intended to remove the doubt created by certain decisions of

the Court rendered in 1990. It was also held that in an

earlier decision in D.V.Kapoor vs. union of India [1990 (4)

SCC 314] which took a contrary view, Rule 3(1)(o) was not

brought to the notice of the Court. As to Jesuratnam vs.

Union of India, [1990 supp.SCC 640] it was said that there

was no discussion in that case.

We may also state that subsequently, in State of U.P.

vs. UP University Colleges Pensioners' association [1994 (2)

SCC 729], the decision in Jarnail Singh's case was

distinguished as the latter was based on rule 3. In yet

another case in Sita Ram Yadava vs. union of India [1995

Suppl. (4) SCC 618], special leave was initially granted

because of a contention based on D.V.kapoor's case that

gratuity could not be withdrawn, wholly or partly, under

rule 9. But at the time when the matter was disposed of, it

was said that inasmuch as the gratuity had already been

released in full to the employee, it was not necessary to go

into the question whether gratuity could be withheld under

the Pension Rules.

We are of the view that the last two decision, namely,

State of UP vs. UP University Colleges Pensioners'

Association [1994 (2) SCC 729] and Sita Ram yadava vs. Union

of India [1995 Suppl. (4) SCC 618] do not, for the reasons

stated above, affect the ratio of the case in Jarnail Singh

vs. Secretary, Ministry of Home Affairs [1993 (1) SCC 47].

Therefore, the Tribunal was wrong in thinking that under

rule 9, 50% of the gratuity could not be withheld. We

accordingly set aside the finding of the Tribunal on this

point.

Point 2; The point is whether judicial review powers

in administrative law permit the High Courts or the

Administrative Tribunals to apply the principle of

'proportionality?

Before we refer to the rulings of this Court on the

question of 'proportionality' in the administrative law

sphere, we shall refer to the leading cases in England on

the question of judicial review of administrative action.

The Wednesbury Case (1948):

This case is treated as laying down various basic

principle relating to judicial review of administrative or

statutory discretion. Before summarising the substance of

the Principles laid down there we shall refer to the passage

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from the judgment of Lord Greene in Associated Provincial

Picture Houses Ltd. vs. Wednesbury Corporation [9148 (1)

K.B. 223(p.229)]. It reads as follows;

"It is true that discretion must be

exercised reasonably. Now that

does that mean? Lawyers familiar

with the phraseology used in

relation to exercise of statutory

discretions often use the words

'unreasonable' in a rather

comprehensive sense. It has

frequently been used and is

frequently been used and is

frequently used as a general

description of the things that must

not be done. For instance, a

person entrusted with a discretion

must, so to speak, direct himself

properly in law. He must call his

own attention to the matters which

he is bound to consider. He must

exclude from his consideration

matters which are irrelevant to

what he has to consider. If he

does not obey those rules, he may

truly be said, and often is said,

to be acting 'unreasonably'.

Similarly, there may be something

so absurd that no sensible person

could even dream that it lay within

the powers of the authority.... In

another, it is taking into

consideration extraneous matters.

It is unreasonable that it might

almost be described as being done

in bad faith; and in fact, all

these things run into one another"

Lord Greene also observed (p.230):

"...it must be proved to be

unreasonable in the sense that the

Court considers it to be a decision

that no reasonable body can come

to. it is not what the Court

considers unreasonable...The effect

of the legislation is not to set up

the Court as an arbiter of he

correctness of one view over

another"

Therefore, to arrive at a decision on 'reasonableness'

the Court has to find out if the administrator has left out

relevant factors or taken into account irrelevant factors.

The decision of the administrator must have been within the

four corners of the law, and not one which no sensible

person could have reasonably arrived at, having regard to

the above principles, and must have been a bonafide one.

The decision could be one of many choices open to the

authority but it was for that authority to decide upon the

choice and not for the Court to substitute its view.

The CCSU Case(1985) and the expectation of future

adoption of proportionality:-

The principles of judicial review of administrative

action wee further summarised in 1985 by Lord Diplock in

CCSU vs. Minister for Civil Services [1985 (1) AC 374] as

illegality, procedural impropriety and irrationality. He

said more grounds could in future become available,

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including the doctrine of proportionality which was a

principle followed by certain other members of the European

Economic community. Lord Diplock' observed in that case as

follows:

"...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 upon 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 future of the

principle of 'proportionality',

which is recognised in the

administrative law of several of

our fellow members of the European

Economic Community......".

Lord Diplock explained 'irrationality' as follows:

"By irrationality, I mean what can

now be succintly be referred to as

'Wednesbury unreasonabless'... It

applies to a decision which is so

outrageous in its defiance of logic

or of accepted moral standards that

no sensible person who had applied

his mind to the question to be

decided could have arrived at"

In other words, to characterise a decision of the

administrator as 'irrational' the Court has to hold, on

material, that it is a decision 'so outrageous' as to be in

total defiance of logic or moral standards. Adoption of

'proportionality' into administrative law was left for the

future.

Ranjit Thakur vs. Union of India (1987) refers to

'proportionality':

The first decision of this Court in administrative law

which referred to 'proportionality' is the one in Ranjit

Thakur vs. Union of India [1987 (4) SCC 611]. In that case

the appellant was found guilty in Court Martial proceedings

and a punishment of dismissal from service and sentence of

imprisonment was imposed as permitted by the Army Act.

While quashing the said punishment on the ground of its

being 'strikingly disproportionate', this Court observed:

"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 proportioality, as part

of the concept of judicial review,

would ensure that even on an aspect

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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".

It is clear that Ranjit Thakur treated

'proportionality' as part of judicial review in

administrative law. But it will also be noticed that while

observing that 'proportionality' was an aspect of judicial

review, the Court still referred to the CCSU description of

irrationality - namely, that it should be in outrageous in

defiance of logic if it was to be treated as irrational,

Ranjit Thakur was followed in Ex.Naik Sardar Singh vs. union

of India [1991 (3) SCC 213, again a case under the Army Act.

What it proportionality?

In R vs. Goldstein [1983 (1) WLR 151 (157)], Lord

Diplock said: "This would indeed be using a sledge-hammer

to crack a nut". Sir John Laws (Judge of the Q.B. Division)

has described 'proportionality' as a principle here the

Court is

"Concerned with the way in which

the decision-maker has ordered his

priortities; the very essence of

decision making consists surely, in

the attribution of relative

importance to the factors in the

case, and here is my point: This is

precisely what proportionality is

about"

He further says:

"What is therefore needed is a

preparendness to hold that a

decision which overrides a

fundamental right without

sufficient objective justification

will, as a matter of law

necessarily be disproportionate to

the aims in view... The deployment

of proportionality sets in focus

the true nature of the exercise;

the elaboration of a rule about

permissible priorities".

Desmith, Woolf and Jowell, (Judicial Review of

Administrative Action (1995 5th ed., para 13.085 pp.601-605)

point out that 'proportionality' used in human rights

context involves a balancing test and the necessity test.

The 'balancing test' means scrutiny of excessive onerous

penalties or infringements of rights or interests and a

manifest imbalance of relevant considerations. The

'necessity test' means that infringement of human rights in

question must be by the least restrictive alternative.

(Ranjit Thakur is quoted

(1) 'Is the High Court the Guardian of Fundamental

Constitutional Rights?

(1993 P.L.. 59). in f.n.p.601).

Brind (HL)(1991) - administrative law - proportionality

- debatable in India in cases not involving fundamental

freedoms: Tata Cellular (SC) (1994) and McDowell (SC)

(1996):

From 1985, we proceed to the next decision rendered in

1991 by the House of Lords in. R. v. Secretary for Home

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Dept. Ex.p. Brind [1991 (1) AC 6961. That decision stated

that even by 1991. proportionality had not still become

part of the Administrative law in England. This was because

the European Convention of Human Rights and Fundamental

Freedoms had not been expressly incorporated into English

law as yet (See Lord Bridge (p.748); Lord Roskill (p.750);

Lord Templeman (p.751) and Lord Ackner (p.763). It is

sufficient to refer to what Lord Ackner stated:

"Unless and until Parliament

incorporates the Convention into

democratic law, a course which it

is well known has a strong body of

support, there appears to me to be

at present no basis upon which

proportionality doctrine applied by

the European Courts can be followed

by the Courts in the Country".

Two decisions of this Court referred to Brind (1991)

and appear to us to have struck a slightly different note

than the one stated in Ranjit Thakur in regard to the

question whether proportionality is part of our

administrative law.

In Tata Cellular vs. union of India [1994 (6) SCC 651].

It was observed by this Court after referring to Brind that

the principles available in administrative law were

basically illegality, irrationality (Wednesbury

unreasonableness) and procedural impropriety. However, it

was possible that more grounds could be added in future, -

like proportionality. This Court observed (p.677-678):

"those are only the broad grounds

but it does not rule out addition

of future grounds in course of

time. As a matter of fact, in R.

vs. Secretary of State for the Home

dept. Ex.p. Bring, Lord Diplock

refers to one development, namely,

the possible recognition of the

principle of proportionality"

Then in 1996 came the decision in State of A.P. vs.

mcDowell & Co. [1996 (3) SCC 709] where the Court after

referring to Brind and the speeches of Lords Lowry and

Ackner, observed that the applicability of the principle of

'proportionality' in administrative law is still 'debatable'

and has not yet been 'fully and finally settled'. This

Court observed that there were only three grounds as stated

in CCSU:

"...In this connection, it should

be remembered that even in the case

of administrative action, the scope

of judicial review is limited to

three grounds viz (i)

unreasonableness, which can be more

accurately called irrationality,

(ii) illegality and (iii)

procedural impropriety (see Council

of Civil Service union vs. Minister

of Civil Service, which decision

has been accepted by this Court as

well)."

Adverting to proportionality it was observed that the

applicability thereof in administrative law is debatable and

not dully and finally settled in administrative law. This

Court observed:

"The applicability of doctrine of

proportionality even in

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administrative law sphere is yet a

debatable issue, (See the opinion

of Lords Lowry and Ackner in R vs.

Secretary of State for Home Dept.

Ex p. Brind AC p.766-67 and 762).

It would be rather odd if an

enactment were to be struck down by

applying the said principle when

its applicability even in

administrative law sphere is not

fully and finally settled"

From Tata Cellular and McDowell it is fairly clear that

a view has been expressed - somewhat different from Ranjit

Thakur - that it is still debatable whether proportionality

is part of our administrative law. The scope of its

applicability in the context of fundamental freedoms was not

discussed or gone into.

Statute law in India: proportionality applies;

Mcdowell however makes it clear that so far as the

validity of a statute is concerned, the same can be judged

by applying the principle of proportionality for finding our

whether the restrictions imposed by the statute are

permissible and within the bounds prescribed by our

Constitution. McDowell referred to this exception as

follows;

"It is one thing to say that a

restriction imposed upon a

fundamental right can be struck

down if it is disproportionate,

excessive or unreasonable and quite

another thing to say that the Court

can strike down enactment if it

thinks it unreasonable, unnecessary

or unwarranted.'

That a statute can be struck down if the restrictions

imposed by it are disproportionate or excessive having

regard to the purpose of the statute and that the Court can

go into the question whether there is a proper balancing of

the fundamental right and the restriction imposed, is well

settled. (See Chintaman vs. State of M.P. [1950 SCR 759];

State of Madras vs. V.G.Row [1952 SCR 597]; India Express

Newspapers vs. Union of India [1985 (1) SCC 641 & 691) etc.

(The principle of 'proportionality' is applied in Australia

and Canada also, to test the validity of statutes).

Of course, as already stated, the Court in McDowell had

no occasion to consider whether the existence of a written

Constitution with a chapter on Fundamental freedoms made any

difference between the English administrative law and our

administrative law. We have already referred to the

observation in Brind, particularly those of Lord Ackner, s

to why 'proportionality' has not become part of the

administrative law in England, namely, the absence of the

incorporation of the European Human Rights Convention.

With proportionality, Court is primary judge of

administrative action - Without it, Court's role is

secondary: Brind and Smith;

This, in our view, is the most important aspect. it is

here that Brind (1991) explains the different

(2) Cunliffe vs. Commonwealth [(1994)

68.Aust.L.J.791](at 827, 839) (also 799. 810, 821)

Australian Capital Tel.Co, vs. Commonwealth [1992 CL

p.106(at 157)(Aus.)

R.Vs.Big M Drug Mart Ltd. [1985 (1) SCR 295 (can)

consequences of the application of 'proportionality' on the

one hand and Wednesbury and CCSU tests on the other. This

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vital difference was further explained in clearer language

by the Court of Appeal in 1996.

As stated in Brind and as set out earlier, if the

European Human Rights Convention (which, as stated earlier

contains several provisions similar to part III of our

Constitution) was incorporated, then the Courts in England

would be able to apply the principle of 'proportionality,

Brind points out that in that event, the Courts in England

would (like the Human Rights Court at Strasbourg) become the

primary judges of the validity of administrative action or

of discretionary powers exercised under statute. If, on the

other hand, the Human Rights Convention was not incorporated

and the principle of proportionality was not available.

English Courts would be left with Wednesbury and CCSU tests.

Then the Court's role would only be a secondary one while

the primary role would remain with the administrator. What

did this mean? It meant that in its secondary role, the

English Courts would only consider whether the administrator

had reasonably come to his primary decision on the material

before him. This distinction between the primary and

secondary roles was explained by Lord Bridge in Brind

(p.749) as follows:

"The primary judgment as to whether

the particular competing public

interest justifies the particular

restriction imposed falls to be

made by the Secretary of State to

whom Parliament has entrusted the

discretion. But we are entitled to

exercise a secondary judgment by

asking wether a reasonable

secretary of State, on the material

before him, could reasonably make

the primary judgment.

In a recent case 1996, in R vs. Ministry of Defence,

ex.p. Smith [1996 (1) AllE.R.257] in the Court of Appeal,

Lord Bingham M.R. explained (p.264-265) the position of the

Court in the absence of the Convention and of

proportionality, as follows:-

"The appellant's right as human

beings is very much in issue. It

is now accepted that this issue is

justiciable. This does not of

course mean that the Court is

thrust into the position of the

primary decision maker.'

Focusing on this point more clearly, Henry L.J. (p.272)

explained in the same case as follows;

"If the convention were part of our

law, then as Simon Brown L.J. said

in the Divisional Court, the

primary judgment on this issue

would be for the judges, But

parliament has not given us the

primary jurisdiction on this issue.

Our present constitutional role was

correctly identified by Simon Brown

L.j. as exercising a secondary or

reviewing judgment, as it is, in

relation to the Convention, the

only primary judicial role lies

with the European Court of Human

Rights at Strasbourg.'

The Court of Appeal agreed with the observations of

Simon Brown, L.J. in the Divisional Court.

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We are of the view that even in our country, - in cases

not involving fundamental freedoms, - the role of our

Courts/Tribunals in administrative law is purely Secondary

and while applying Wednesbury and CCSU principles to test

the validity of executive action or administrative action

taken in exercise of statutory powers, the Courts and

Tribunals in our country can only go into the matter, as a

secondary reviewing Court to find out if the executive of

the administrator in their primary roles have arrived at a

reasonable decision on the material before them in the light

of Wednesbury and CCSU tests. The choice of the options

available is for the authority the Court/Tribunal cannot

substitute its view as to what is reasonable.

Fundamental rights - Proportionality - administrative

law - question left open.

The question arises whether our Courts while dealing

with executive or administrative action or discretion

exercised under statutory powers where fundamental freedoms

are involved could apply 'proportionality' and take up a

primary role. In England it has been accepted that the

English Court could apply 'proportionality' if the

Convention were incorporated into English law. But, so for

as our Courts are concerned, we do not propose to decide the

question in the present case inasmuch as it is not contended

before us that any fundamental freedom is affected. As and

when an executive act or administrative action taken in

excess of statutory powers, is alleged to offend fundamental

freedoms, it will then be for this Court to decide whether

the principle of proporionality applies in administrative

law sphere in our country and whether the Courts will take

up a primary role. Whether the primary role will be

confined to Article 19.21 etc. and not to Article 14 will

also have to be decided.

Before parting with this aspect, we may state that in

England in R vs. Secretary of State Exp. Bugdaycay [1987 (1)

AC 514] and in Brind as well as Smith it has been, of

course, laid down that at the moment, in the absence of the

convention and proportionality, English Courts will apply a

'strict scrutiny' test to the administrative action rather

than the Wednesbury and CCSU tests, whenever liberty and

freedom of expression etc, which are treated as part of

Common Law are involved. The Courts would consider whether

the restrictions imposed by the administrator are necessary

for protecting some 'competing public interest'. This would

no doubt amount to lowering the 'threshold of Wednesbury'.

Margin of appreciation and judicial restraint;

We may also state that even if the Courts in England by

virtue of incorporation of the Convention should become the

primary Judges of the validity of administrative decisions,

still they would exercise great judicial restraint in

matters concerning governmental policies, national security,

or taxation, finance and economy of the country and similar

such matters of grave public policy. This restraint on the

part of the judiciary is described in administrative law as

giving a greater margin of appreciation to the administrator

in certain areas. See Brind, (lord Templeman, (p.751),

Ackner (p.762) and Lord Lowry (p.766). Similar principles

have been laid down by this court while testing the validity

of legislative measures in the context of Art, 19(2) to (6).

The Courts would give a 'reasonable margin' to the

legislature (Manoharlal vs. State of Punjab [1961 (2) SCR

343]} in several situations.

Summing up:

The current position of proportionality in

administrative law in England and India can be summarised as

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follows;-

(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 bonafide. 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 nor

ruled out. These are the CCSU principles.

(3)(a) As per Bugdaycay, 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 had 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

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 Article 19, 21 etc. are involve and not for

Article 14.

Punishment in disciplinary matters: Wednesbury & CCSU

tests:

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 12 of 12

punishment is in 'outrageous' defiance of logic. Neither

Wednesbury nor CCSU tests are satisfied. We have still to

explain 'Ranjit Thakur'.

In Ranjit Thakur, this Court interfered with the

punishment only after coming to he 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 vs. Union of India [1995 (6) SCC 749], a three

Judge Bench said the same thing as follows;

"The High Court/Tribunal, while

exercising the power of judicial

review, cannot normally substitute

its own conclusions 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 would the relief,

either by directing the

disciplinary authority/appellate

authority to reconsider the penalty

imposed, or to shorten the

litigation, it ma itself, in

exceptional and rare case, impose

appropriate punishment with cogent

reasons in support thereof"

Similar view was taken in India Oil Corporation vs.

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

intervene unless the punishment is wholly disproportionate.

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's 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

vs. M.H.Mazumdar cannot be of any help.

For the aforesaid reasons, we set aside the order of

the Tribunal which has interfered with the quantum of

punishment and which has also substituted its own view of

the punishment. The punishment awarded by the departmental

authorities is restored. In the circumstances, there will

be no order as to costs.