UNION OF INDIA v. RAMJISINGH TILAKDHARISINGH — 1992 DIGILAW 259 (GUJ)

DAVE, J. ( 1 ) THIS Second Appeal has been directed against the appellate judgment pronounced by the learned District Judge, Valsad at Navsari in Regular civil Appeal No. 61 of 1979 dated 22/01/1980 confirming the judgment and decree pronounced by the learned Civil Judge (S. D.), Valsad in Regular civil Suit No. 61 of 1978 decreeing the suit of the plaintiff against the defendant. The substantial question as formulated by this Court runs thus :"whether the sentence is too harsh or not can be decided by this Court ? ( 2 ) PLAINTIFF Ramjisingh Tilakdharisingh had filed a suit against Union of India represented by General Manager, Western Railway, Bombay, before the learned Civil Judge (S. D.), Valsad, which came to be registered as regular Civil Suit No. 61 of 1978. The plaintiff had approached the court against the defendant by urging that he was employed as a Rakshak in Railway Protection Force with effect from 15/03/1957 and thereafter had obtained a gradual promotion and at the relevant time was working in the position of a Head Rakshak. On 8/04/1977 he was posted on duty at Parel Railway Station and has some quarrel between him and the Sub- inspector D. M. Madane. Later on the plaintiff was charge-sheeted for the alleged misconduct and the Security Officer, Baroda, had conducted the inquiry against him vide orders dated 11/05/1972 in pursuance of the provisions contained in Sec. 9 (1) (1) (2) of the Railway Protection Force Act, 1957 and rule 45 of Railway Protection Force Rules, 1959. Vide orders dated 1/09/1972, two increments were ordered to be stopped without the future effect. The plaintiff thereafter had preferred the appeal on 20/10/1972 before the Chief Security Officer and had asked for the personal hearing also. The chief Security Officer by his orders dated 15/09/1973 had felt that the penalty imposed on the plaintiff was too lenient and, therefore, in exercise of the powers under Rule 58 of R. P. F. Rules, 1959, the plaintiff was called upon to show cause as to why the penalty should not be enhanced. The plaintiff had submitted his reply against the above said notice on 11/10/1973 and had submitted that the incident had taken place because of the unhealthy attitude of the superior officer. The Chief Security Officer vide his orders dated 29/11/1973, had ordered a fresh inquiry. The plaintiff had submitted his reply against the above said notice on 11/10/1973 and had submitted that the incident had taken place because of the unhealthy attitude of the superior officer. The Chief Security Officer vide his orders dated 29/11/1973, had ordered a fresh inquiry. Accordingly a fresh inquiry was started and the plaintiff had submitted his reply or the explanation. The Chief Security Officer had imposed the punishment or the penalty of the reduction of the rank from H. R. K. to that of S. R. K. for a period of 2 years. Any how the Chief Security Officer by the orders dated 21/03/1975 had cancelled or discharged the above said show cause notice at Exh. 24 and hid ordered that some further inquiry be made. Thereafter on 6/04/1975 the statement of Mr. Madane was recorded. The Chief security Officer had come to the conclusion that the guilt of the plaintiff was duly established and, therefore, he was served with a show cause notice for the removal from service which is at Exh. 42. The plaintiff had replied the above said show cause notice on 9/12/1975 vide Exh. 43. The chief Security Officer, by his orders dated 1/01/1976 had ordered the removal of the plaintiff from service. By filing the above said suit the plaintiff had called in question the legality and validity of the above said orders of removal. He had prayed for a decree for quashing and setting aside the above said orders of removal and also prayed for the reinstatement in the service as if he had continued in the service without the break with all the benefits available to him. ( 3 ) THE defendant-Railway Administration had appeared before the learned trial judge and had challenged the case of the plaintiff by filing the W. S. at Exh. 11, inter alia contending that the plaintiff was guilty of a grave misconduct inasmuch as he hid used improper language for Sub-Inspector Mr. Madane who was holding a higher post than the plaintiff. It was also contended on behalf of the defendant that, looking to the grave allegations against the plaintiff he deserve severe punishment. From the abovesaid pleadings of the parties, the learned trial Judge had framed issues at Exh. Madane who was holding a higher post than the plaintiff. It was also contended on behalf of the defendant that, looking to the grave allegations against the plaintiff he deserve severe punishment. From the abovesaid pleadings of the parties, the learned trial Judge had framed issues at Exh. 12 and after the appreciation of the evidence on record the learned trial Judge had come to the conclusion that the orders under challenge removing the plaintiff from service were bad in law, without jurisdiction, unreasonable and against the principles of natural justice. In view of this finding, the learned trial Judge had expressed the opinion that the plaintiff was entitled to the prayers as prayed for by him. The learned trial judge therefore by the judgment dated 28/03/1979 has decreed the suit of the plaintiff against the defendant. The orders of termination of service of the plaintiff were quashed and set aside and the plaintiff was directed to be deemed to be in the continuous service. He was also directed to be reinstated in service with all the benefits available to him. ( 4 ) THE above said judgment and decree came to be challenged by the defendant by the Regular Civil Appeal No. 61 of 1979. The learned Appellate judge after hearing the parties came to the conclusion that the appeal deserves to be dismissed and the judgment and decree under appeal were required to be upheld and confirmed. The District Judge, Valsad at Navsari therefore dismissed the appeal of the original defendant with cost by the judgment dated 22/01/1980. The validity and legality of the above said appellate orders confirming the judgment and decree rendered by the trial Court have been challenged in this Second Appeal filed by the appellant-Union of India who are the original defendant. ( 5 ) AT the time of admission of the appeal, the substantial question of law which has been formulated by this Court, has been indicated above and need not to be quoted once again. ( 6 ) IT is obvious that if the answer to the above said question formulated by this Court is in affirmative, then there would be no reason for any interference with the appellate judgment and decree confirming the judgment and decree of the trial Court. ( 6 ) IT is obvious that if the answer to the above said question formulated by this Court is in affirmative, then there would be no reason for any interference with the appellate judgment and decree confirming the judgment and decree of the trial Court. ( 7 ) WHEN the reference is made to the judgment rendered by the learned trial Judge it appears very clear that the reliance was placed on this High court decision in H. P. Thakore v. State of Gujarat, (1979) XX GLR 109. The above said decision rendered by this Court makes it clear that 3 vital considerations, namely (1) nature and magnitude of the established charge, (2) the desirability or otherwise of retaining the delinquent in service in the context of the charges found against him, and (3) whether the penalty lesser than the extreme penalty of dismissal or removal would prove adequate or not, were required to be taken into consideration. The learned trial Judge in the light of the aforesaid High Court decision, has come to the conclusion that looking to the guilt established the economical death penalty of the termination of service or the removal of the plaintiff from service was not a sustainable penalty. The same view has been taken by the learned Appellate Judge, who has dismissed the Reg. Civil Appeal No. 61 of 1979 by judgment dated 22/01/1980. It is therefore the concurrent finding of the Courts below that the penalty imposed cannot be said to be commensurate with the guilt established. ( 8 ) LEARNED Advocate Mr. R. M. Vin who appears on behalf of the appellant has urged that the administrative orders imposing penalty are not open to the judicial review. In view of the aforesaid broad statement Mr. Vin has tried to urge that when a particular penalty was imposed upon the delinquent, it was not open for the civil forum to examine and decide the question in respect of the adequacy or otherwise of the penalty imposed. Any how, the learned Advocate Mr. In view of the aforesaid broad statement Mr. Vin has tried to urge that when a particular penalty was imposed upon the delinquent, it was not open for the civil forum to examine and decide the question in respect of the adequacy or otherwise of the penalty imposed. Any how, the learned Advocate Mr. D. R. Bhatt who appears on behalf of the respondentthe original plaintiff delinquent has urged that if the penalty imposed appears to be non-commensurate with the guilt established, then the administrative orders imposing penalty on the delinquent would be subject to a judicial review by the civil forum ( 9 ) IN this context reference requires to be made to the Supreme Court decision in Ex. Naik Sardar Singh v. Union of India and Ors. , AIR 1992 sc 417 . In this decision invoking the Doctrine of Proportionality vis-a-vis the provisions contained under Secs. 63, 71, 72 and 73 of the Army Act of 1950, the punishment of 3 months rigorous imprisonment and dismissal from service accorded to the delinquent was found to be liable to be set aside, being severe, arbitrary and violative of Sec. 72 of Army Act, 1950. The Supreme Court has taken pains to quote what has been said by Lord diplock in Council of Civil Service Unions v. Minister for the Civil Service, 1984 (3) All ER 935. In the aforementioned decision Lord Diplock had said thus :"judicial review has I think development 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. This is not to say that further development on a case by case basis may not in course of time add further grounds. 1 have in mind particularly the possible adoption in the future of the principle of proportionality which is recognised in the administrative law of several of our fellow members of the European Economic Community. . . "the above said decision rendered by lord Diplock therefore goes to show very clearly that there are certain grounds on which the administrative action would be subject to a control by judicial review. . . "the above said decision rendered by lord Diplock therefore goes to show very clearly that there are certain grounds on which the administrative action would be subject to a control by judicial review. The first such ground can be called illegality, the second ground can be said irrationality and the third ground can be said to be procedural impropriety. Lord Diplock was conscious of the fact that there may be further development on a case by case basis in course of time adding further grounds. Lord Diplock had in mind particularly the possible adoption, in the future, of the principle of proportionality in the matter of awarding the punishment under the administrative action, for a proven misconduct. What has been befallen from Lord Diplock can be appreciated as conveying that when the penalty imposed is not proportionate vis-a-vis the proven misconduct, the administrative action, manifesting itself in a shape or colour of disproportionate or noncommensurate chastisement can assume a form of a subject sheet which can be examined by a civil forum. An administrative check-mating in such a span can be (or should I say "shall have to be" ?) intercepted by a judicial discretion, emerging out of a judicial review. ( 10 ) IN Bhagat Ram v. State of Himachal Pradesh, 1983 (2) SCC 442 : ( AIR 1983 SC 454 ) the Supreme Court has said thus :"it is equally true that time penalty imposed must be commensurate with the gravity of the misconduct, and that any penalty disproportionate to the gravity of the misconduct would be violative of Art. 14 of the Constitution. " ( 11 ) IN Bhagat Rams case (supra) the Supreme Court has pointed out that the penalty imposed must be commensurate with the gravity of the misconduct and any penalty which is found to be disproportionate to the gravity of the misconduct would be violative of Art. 14 of the Constitution of India. ( 12 ) THUS in the above said decision of the Supreme Court in case of ex. Naik Sardar Singh (supra) it has been made clear that in certain circumstances, including the case of disproportionate penalty the administrative action would be subject to the control of a judicial review. ( 13 ) ). ( 12 ) THUS in the above said decision of the Supreme Court in case of ex. Naik Sardar Singh (supra) it has been made clear that in certain circumstances, including the case of disproportionate penalty the administrative action would be subject to the control of a judicial review. ( 13 ) ). The learned trial Judge, as noticed above, had placed reliance upon this High Court decision in H. P. Thakur v. State of Gujarat, (1979) XX glr 109 with a view to come to the conclusion that the 3 vital circumstances indicated above shall have to be examined by the Court. The view taken by the learned trial Judge and endorsed by the learned Appellate Judge is to the effect that the extreme penalty of economic death, namely, dismissal or removal from the service was not a justifiable penalty and therefore the same required to be quashed and set aside. It should not escape the notice of a judicial mind that the allegation which ultimately was found to be proved against the plaintiff delinquent was that he had used improper language in respect of a higher cadre officer following a petty quarrel on a railway station. The penalty of termination of service in view of the above said proved misconduct cannot be said to be a commensurate punishment. If once this situation is recognised the principles laid down by the Supreme Court in case of Ex. Naik Sardar Singh (supra) would come into play. It, therefore, would become clear that in such a case the principle of proportionality shall have to be invoiced and if the penalty imposed is found to be non-commensurate or disproportionate with the guilt established, then the administrative action, namely, the penalty provided under the administrative law shall be subject to the examination and control by the judicial review. In this view of this position it is clear that the question formulated which has been indicated above must be answered - in affirmative, saying that, in the facts and circumstances of the case when the penalty is found to be too harsh or disproportionate with the guilt established, the same can be examined by the Civil Court. Thus, looking to these legal and factual aspects of she case it appears that both the Courts below were perfectly justified in their reasoning and the ultimate orders. Thus, looking to these legal and factual aspects of she case it appears that both the Courts below were perfectly justified in their reasoning and the ultimate orders. Because of this reason the present Second Appeal fails and the same requires to be dismissed. The same is accordingly hereby dismissed with no order as to cost in the facts and circumstances of the case. .