Charanjit Lamba vs Army Southern Command

possible abuse of discretionary powers by various

administrative authorities, certain principles have been

evolved by reference to which the action of such authorities

can be judged. If any action taken by an authority is

contrary to law, improper, irrational or otherwise 8

unreasonable, a court competent to do so can interfere with

the same while exercising its power of judicial review.

8. This Court referred with approval to the decision of the

House of Lords in Council of Civil Service Union v.

Minister for Civil Service (1985 AC 374) where Lord

Diplock summed up the grounds on which administrative

action was open to judicial review by a Writ Court. Lord

Diplock's off-quoted passage dealing with the scope of

judicial review of an administrative action may be gainfully

extracted at this stage:

"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 ground 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'....."

9 9. The doctrine of proportionality which Lord Diplock saw

as a future possibility is now a well recognized ground on

which a Writ Court can interfere with the order of

punishment imposed upon an employee if the same is so

outrageously disproportionate to the nature of misconduct

that it shocks conscience of the Court. We may at this stage

briefly refer to the decisions of this Court which have over

the years applied the doctrine of proportionality to specific

fact situations.

10. In Bhagat Ram v. State of Himachal Pradesh

(1983) 2 SCC 442 this Court held that if the penalty

imposed is disproportionate to the gravity of the misconduct,

it would be violative of Article 14 of the Constitution.

11. In Ranjit Thakur v. Union of India & Ors. (1987) 4

SCC 611, this Court was dealing with a case where the

petitioner had made a representation about the

maltreatment given to him directly to the higher officers. He 10

was sentenced to rigorous imprisonment for one year for

that offence. While serving the sentence imposed upon him

he declined to eat food. The summary court martial

assembled the next day sentenced him to undergo

imprisonment for one more year and dismissal from service.

This Court held that the punishment imposed upon the

delinquent was totally disproportionate to the gravity of the

offence committed by him. So also in Ex-Naik Sardar

Singh v. Union of India & Ors. (1991) 3 SCC 213

instead of one bottle of brandy that was authorized the

delinquent was found carrying four bottles of brandy while

going home on leave. He was sentenced to three months

rigorous imprisonment and dismissal from service which was

found by this Court to be disproportionate to the gravity of

the offence proved against him.

12. The decision of this Court in Hind Construction &

Engineering Co. Ltd. v. Workmen (AIR 1965 SC 917)

dealt with a situation where some workers had remained

absent from duty treating a particular day as a holiday. 11

They were for that misconduct dismissed from service. This

Court held that the absence of the workmen could have

been treated as `leave without pay' and they could also be

warned and not fined. Reversing the order of punishment

this Court observed:

"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.

13. Reference may also be made to Management of the

Federation of Indian Chambers of Commerce and

Industry v. Workman, Shri R.K. Mittal (1972) 1 SC 40)

where the employer had issued a legal notice to the

federation and to the international chamber of Commerce

which brought discredit to the petitioner-employer. A

domestic inquiry was held in which he was found guilty and

his services terminated. This Court held that the punishment

was disproportionate to the misconduct alleged observing:

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

12 14. We may refer to the decision of this Court in M.P.

Gangadharan & Anr. v. State of Kerala & Ors. (2006) 6

SCC 162, where this Court declared that the question of

reasonableness and fairness on the part of the statutory

shall have to be considered in the context of the factual

matrix obtaining in each case and that it cannot be put in a

straitjacket formula. The following passage is in this regard

apposite:

"34. The constitutional requirement for judging the question of reasonableness and fairness on the part of the statutory authority must be considered having regard to the factual matrix obtaining in each case. It cannot be put in a straitjacket formula. It must be considered keeping in view the doctrine of flexibility. Before an action is struck down, the court must be satisfied that a case has been made out for exercise of power of judicial review. We are not unmindful of the development of the law that from the doctrine of Wednesbury unreasonableness, the court is leaning towards the doctrine of proportionality........."

15. That the punishment imposed upon a delinquent should

commensurate to the nature and generally of the

misconduct is not only a requirement of fairness, objectivity, 13

and non-discriminatory treatment which even those form

quality of a misdemeanour are entitled to claim but the

same is recognized as being a part of Article 14 of the

Constitution. It is also evident from the long time of

decisions referred to above that the courts in India have

recognized the doctrine of proportionality as one of the

ground for judicial review. Having said that we need to

remember that the quantum of punishment in disciplinary

matters is something that rests primarily with the

disciplinary authority. The jurisdiction of a Writ Court or the

Administrative Tribunal for that matter is limited to finding

out whether the punishment is so outrageously

disproportionate as to be suggestive of lack of good faith.

What is clear is that while judicially reviewing an order of

punishment imposed upon a delinquent employee the Writ

Court would not assume the role of an appellate authority. It

would not impose a lesser punishment merely because it

considers the same to be more reasonable than what the

disciplinary authority has imposed. It is only in cases where 14

the punishment is so disproportionate to the gravity of

charge that no reasonable person placed in the position of

the disciplinary authority could have imposed such a

punishment that a Writ Court may step in to interfere with

the same.

16. The question then is whether the present is indeed one

such case where the High Court could and ought to have

interfered with the sentence imposed upon the appellant on

the doctrine of proportionality. Our answer is in the

negative. The appellant was holding the rank of a Major in

the Indian Army at the time he committed the misconduct

alleged and proved against him. As an officer of disciplined

force like the Army he was expected to maintain the highest

standard of honesty and conduct and forebear from doing

anything that could be termed as unbecoming of anyone

holding that rank and office. Making a false claim for

payment of transport charges of household luggage and car

to Chandigarh was a serious matter bordering on moral

turpitude. Breach of the rule requiring him to clear his 15

electricity dues upon his transfer from the place of his

posting was also not credit worthy for an officer. The

competent authority was therefore justified in taking the

view that the nature of the misconduct proved against the

appellant called for a suitable punishment. Inasmuch as the

punishment chosen was dismissal from service, the

competent authority, did not in our opinion, take an

outrageously absurd view of the matter. We need to

remember that the higher the public office held by a person

the greater is the demand for rectitude on his part. An

officer holding the rank of Major has to lead by example not

only in the matter of his readiness to make the supreme

sacrifice required of him in war or internal strife but even in

adherence to the principles of honesty, loyalty and

commitment. An officer cannot inspire those under his

command to maintain the values of rectitude and to remain

committed to duty if he himself is found lacking in that

quality. Suffice it to say that any act on the part of an officer

holding a commission in the Indian Army which is subversive 16

of army discipline or high traditions of the Army renders

such person unfit to stay in the service of the nation's Army

especially when the misconduct has compromised the values

of patriotism, honesty and selflessness which values are too

precious to be scarified on the altar of petty monetary gains,

obtained by dubious means.

17. In the result this appeal fails and is hereby dismissed.

............................................J. (DALVEER BHANDARI)

............................................J. (T.S. THAKUR) New Delhi July 6, 2010