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2007 DIGILAW 128 (GAU)

Bijay Rajkhowa v. State Bank of India

2007-02-09

T.NANDAKUMAR SINGH

body2007
JUDGMENT T.N.K. Singh, J. 1. By this writ petition, petitioner is assailing the enquiry report cum findings dated 10th September, 1999, submitted by the Enquiry Officer after full length enquiry in which the petitioner had participated and also he was available with all the opportunities for defending his case, Order dated 30.11.99 passed by the Asstt. General Manager, Region-I (Disciplinary Authority), Order dated 28.1.2000 passed by the Assistant General Manager (Appointing Authority) for imposing the penalty of dismissal from service to the petitioner, Order dated 18.7.2000 passed by the Deputy General Manager (Appellate Authority) for dismissing the appeal preferred by the petitioner against the order dated 28.1.2000 for dismissing the petitioner from service and also for a direction to the respondents to re-instate the petitioner in his service along with all the consequential benefits from 30.11.99. 2. Heard Mr. M.K. Choudhury, learned Senior Counsel assisted by Mr. A. Borkotoki, learned Counsel appearing for the petitioner and also heard Mr. S.S. Sharma, learned Senior Counsel assisted by Mr. N. Barua, learned Counsel for the respondents. 3. The succinct fact of the petitioner's case is that the petitioner was an employee of the State Bank of India before he was dismissed from service. While the petitioner was serving as an Assistant (Cash and Accounts), by a memorandum dated 19.5.99 the petitioner was asked to submit his show cause why the disciplinary proceeding should not be initiated against him for the charges which reads as follows: Smt. Jyoti Borah, a teacher, deposited at the Bank her monthly salary bill for Rs.3032/- for the month of January, 1997 on 04.02.97 for payment. The proceeds of the bill was to be credited by her savings Bank account maintained with Jorhat Branch. After the bill was paid on 04.02.97, the proceeds could not be credited to her S.B. Account for want of correct account number. Instead a Bankers Cheque No. 316047 was issued on 04.02.97, for Rs.3032/- favouring Smt. Jyoti Borah. Subsequently, the Bankers Cheque was fraudulently encashed on 18.07.97. After verification of her S.B. account, Smti. Jyoti Borah lodged a complaint with the Bank regarding non credit of her salary bill of Rs.3032/- into her S.B. account. You surreptitiously obtained the Bankers Cheque and forged the signature of Smt. Jyoti Borah, the payee on the reverse of the Bankers Cheque. Subsequently, the Bankers Cheque was fraudulently encashed on 18.07.97. After verification of her S.B. account, Smti. Jyoti Borah lodged a complaint with the Bank regarding non credit of her salary bill of Rs.3032/- into her S.B. account. You surreptitiously obtained the Bankers Cheque and forged the signature of Smt. Jyoti Borah, the payee on the reverse of the Bankers Cheque. Though the signature did not tally with the recorded one you authenticated the endorsement of the payee through your remark on the back of the instrument as signature of Smt. J. Borah is verified by me. Thereafter the Bankers Cheque was encashed from the teller Counter on 18.07.97. Thus it is evident that you misappropriated customer's money by adopting unfair practice for your own benefit. Moreover, you did not submit your explanation in reply to Jorhat Branch Memo No. CM/42/164 dated 30.07.98 despite reminder. Your such acts amount to gross misconduct and insubordination on your part. 4. In response to the memorandum dated 19.5.99 the petitioner submitted his show-cause reply admitting that he authenticated the alleged signature of Smti. Jyoti Borah appearing in the Bankers Cheque. In his show cause statement, the petitioner stated that as Smti. Jyoti Borah was known to him for quite a long period he signed on the reverse side of the cheque about the authority of the signature of Smti. J. Borah just to help her as he used to do so in other known customers. The petitioner was placed under suspension on the same date on which the petitioner had submitted his reply to the charge sheet, under order of the Assistant General Manager, Region No. 1 (Disciplinary Authority) dated 28.6.99. 5. The Full Departmental enquiry was initiated against the petitioner for the said charge. In the departmental enquiry the petitioner was given all opportunities to defend his case. The prosecution witnesses were also examined in his presence and he was also given the chance to cross-examine the prosecution witnesses. Sri J. Phukan, the concerned Teller of the State Bank of India, was also examined as one of the prosecution witnesses. Sri J. Phukan in the course of his examination as witness stated that encashment of the Bankers Cheque was made by the petitioner on 18.7.97. It is also the admitted fact that the amount encashed from the teller was not paid to Smt. J. Borah. Sri J. Phukan in the course of his examination as witness stated that encashment of the Bankers Cheque was made by the petitioner on 18.7.97. It is also the admitted fact that the amount encashed from the teller was not paid to Smt. J. Borah. Smt. J. Borah was also examined as an witness in the disciplinary proceeding and she deposed that she never issued the Bankers Cheque with which the money had been encashed by the petitioner from the concerned teller of the State Bank of India, on 18.7.97 and also that signature appearing on the reverse side of the Bankers Cheque was not her signature. It is also admitted by the petitioner in the course of the disciplinary enquiry that forged signature of the payee was verified by the petitioner. But the petitioner did not produce any witness (defence witness) in the disciplinary enquiry against him other than the petitioner who himself verified the signature of the payee i.e. signature of Smt. J. Borah on the forged Bankers Cheque. In the course of the disciplinary enquiry the petitioner had tried to point out certain procedural irregularities on the part of the concerned teller Sri J. Phukan in making the payment to the petitioner, but the fact remains that notwithstanding the irregularities if any on the part of the concerned teller the money was encashed by the petitioner and not paid to Smt. J. Borah. Smt. J. Borah had complained to the State Bank of India, Jorhat Branch regarding not crediting the said amount to her account. The complaint made by Smt. J. Borah was exhibited as MO-9 in the disciplinary proceeding. The petitioner took the strange plea that he made some amicable settlement with Smt. J. Borah by paying Rs.3032/- as evident from the exhibit M-11. 6. After the full length enquiry, the Enquiry Officer had submitted his report to the disciplinary authority. The said report cum findings of the Enquiry Officer was furnished to the petitioner under the letter of the Assistant General Manager, Region No. 1 (Disciplinary Authority and Appointing Authority). 6. After the full length enquiry, the Enquiry Officer had submitted his report to the disciplinary authority. The said report cum findings of the Enquiry Officer was furnished to the petitioner under the letter of the Assistant General Manager, Region No. 1 (Disciplinary Authority and Appointing Authority). The enquiry Officer submitted his findings cum report stating that the charge for surreptitiously obtaining the Bankers Cheque by the petitioner was not proved but the charge for authenticating the signature of Smt. J. Borah payee on the reverse side of the Bankers Cheque by the petitioner and also encashment of the Bankers Cheque by the petitioner had been proved. The copy of the report cum findings of the Enquiry Officer is available at page 33 to 36 of the present writ petition. The findings cum report of the Enquiry Officer are based on the reasons and also the findings was made by the Enquiry Officer after discussing not only the statements of the witnesses but also the material documents which were exhibited in the departmental enquiry. 7. The petitioner after receiving the second show cause notice for proposed punishment of dismissal from service basing on the said enquiry report cum findings of the Enquiry Officer, the petitioner submitted his written statement dated 14.12.99 to the Assistant General Manager, Region-I (Disciplinary Authority and Appointing Authority). In his second show cause statement the petitioner had not pointed out any irregularities committed by the Enquiry Officer in conducting the enquiry and also any prejudice caused to the petitioner in defending his case in the disciplinary proceeding. The only point mentioned by the petitioner is that the lapses in verification of signatures in the Bankers Cheque on his part was not his intentional one but he did it in good faith only to the persons known to him and the proposed penalty for dismissal from service is harsh in comparison to the alleged offences. The show cause statement of the petitioner dtd. 14.12.99 is quoted herein: To The Assistant General Manager, Region-1, (Disciplinary Authority and Appointing Authority) Zonal Office, State Bank of India, Jorhat. Dated: Jorhat the 14th December, 99. Dear Sir, With reference to your Memo No. DPS/99-2000/383 dated 30th November 99 relating to disciplinary proceeding initiated against me and place me under dismissal from banks service by you, I most respectfully beg to submit flowing points before your honour to consider sympathetically. 1. Dated: Jorhat the 14th December, 99. Dear Sir, With reference to your Memo No. DPS/99-2000/383 dated 30th November 99 relating to disciplinary proceeding initiated against me and place me under dismissal from banks service by you, I most respectfully beg to submit flowing points before your honour to consider sympathetically. 1. That I had been serving in your organization for last 15 years. 2. That during my entire service carrier I always tried to provide my best service to the organization for benefits of its customers with great satisfaction and cleanness except an allegation of irregularities of a Banker's Cheque No. 316047 dated 4.2.97 for Rs.3032/-. 3. That the charge framed against me is misconceived and I was not aware of how the Banker's Cheque was taken out from the Bank custody. 4. That the lapse in verification of signature in the Banker's Cheque on my part was not as intention one but I did it in good faith only to help as known person only. 5. That the only reason of payment of alleged amount of Rs.3032/- to Mrs. Jyoti Borah by me is that the good image of the Bank is not at all affected. 6. That the order passed on 30.11.99 is based entirely on wrong appreciation of facts and 1 have denied any involvement in the matter. 7. That in any case the penalty imposed is very harsh in comparison to the alleged offence. 8. That at last I am maintaining my family entirely on the job under the bank and my dismissal will lead to the starvation of my family. In view of the above, I beg to pray that your honour will be kind enough to re-consider the case and be pleased to withdraw the order allow me to serve the great organization. Yours faithfully, Bijoy Rajkhowa) Asstt. (C & A)(U/S). State Bank of India Sonari Branch 8. The Disciplinary Authority and Appointing Authority, Assistant General Manager, Region-I after thorough consideration of the enquiry report as well as the case of the petitioner including his second show cause statement had passed the order dated 28.1.2000 for imposing the penalty of dismissal from service to the petitioner. Against the dismissal order dated 28.1.2000 the petitioner preferred an appeal dated 21.2.2000 before the Appellate Authority i.e. Deputy General Manager, State Bank of India, Zonal Office. Jorhat. Against the dismissal order dated 28.1.2000 the petitioner preferred an appeal dated 21.2.2000 before the Appellate Authority i.e. Deputy General Manager, State Bank of India, Zonal Office. Jorhat. In his appeal dated 21.02.2000 the petitioner had mentioned nothing about the lapses on the part of the Enquiry Officer in holding the departmental enquiry and also any prejudice cause to the petitioner in defending his case but the only point taken in his appeal was that he know Smt. J. Borah as a customer of the Bank who comes to the petitioner every month to draw her money from the bank. In the facts and circumstances of the case he had verified her signature in good faith and without any negligence. Moreover the signature of Smt. J. Borah which is reported as forged was not verified by the bank through the authorized hand writing expert to ascertain genuineness of the signature of the payee. It is pertinent to mention here that it is Smti. J. Borah who made the complaint that the signature of the reverse side of the Bankers Cheque with which the petitioner had encashed the money from the teller of the Bank was not her signature. In his appeal dated 21.2.2000 the petitioner mentioned that dismissal from service by the disciplinary authority is mostly disproportionate considering the alleged amount involved which is only Rs.3032/- and also that the alleged amount involved had already been paid to Smt. J. Borah by installments. The Appellate Authority by reasoned order dated 18.7.2000 dismissed the appeal filed by the petitioner. The punishment for dismissal from service imposed to the petitioner imposed under order of the disciplinary authority dated 28.1.2000 had been upheld. Hence the present writ petition. 9. The respondent also filed their affidavit-in-opposition stating that the petitioner was given all possible scopes to defend himself during the course of enquiry and was allowed to peruse the documents having any bearing for the charges. It is also stated in their affidavit that the petitioner was allowed ample opportunities to verify the documents mentioned in the list before commencement of the hearing. Further the petitioner was granted full opportunities to cross-examine the witnesses produced by the banks against him and the deposition of the witnesses were recorded by the Enquiry Officer in presence of the petitioner. Further the petitioner was granted full opportunities to cross-examine the witnesses produced by the banks against him and the deposition of the witnesses were recorded by the Enquiry Officer in presence of the petitioner. Petitioner was also allowed to lead his evidence in defense by producing his witnesses and thereupon on conclusion of the enquiry, the Enquiry Officer submitted his report cum findings after taking into consideration of the day to day enquiry proceeding as well as submissions of the presenting officer and the defence. 10. In the present writ petition, the petitioner is assailing the enquiry report as well as the impugned dismissal order on two main grounds--(1). The punishment were imposed on the petitioner on the basis of the enquiry report which was submitted by the Enquiry Officer on the basis of the evidence which are insufficient for coming to a finding that the 2nd charge against the petitioner have been proved and also the Enquiry Officers had not considered the fact that the petitioner had paid the money involved after the petitioner felt morally responsible (2). The punishment for dismissal from service is harsh in comparison to the amount involved in the case. 11. The Apex Court in Nand Kishore Prasad v. State of Bihar and Ors. 1978 (2) LLJ 84 SC held that the High Court is not examining the record of the Disciplinary Tribunal with a view to make out or reconstruct a new case but only to see whether there was some evidence of the primary facts relied upon by the domestic tribunal in support of its conclusion. If the disciplinary enquiry has been conducted fairly without bias or predilection in accordance with the relevant disciplinary rule and the constitutional provisions, the order passed by such authority can not be interfered with in proceedings, under Article 226 of the Constitution of India, merely on the ground that it was based on the evidence which would be insufficient for conviction of the delinquent on the same charge at criminal trial. Para 19 of the Nand Kishore Prasad's case (supra) is quoted below: The second principle, which is a corollary from the first, is, that if the disciplinary inquiry has been conducted fairly without bias or predilection, in accordance with the relevant disciplinary rules and the Constitutional provisions, the order passed by such authority can not be interfered with in proceedings under Article 226 of the Constitution merely on the ground that it was based on evidence which would be insufficient for conviction of the delinquent on the same charge at a criminal trial. 12. The Apex Court in Apparel Export Promotion Council v. A.K. Chopra 1999 (1) LLJ 962 SC held that once findings of fact, based on appreciation of evidence are recorded the High Court in writ jurisdiction may not normally interfere with those factual findings unless it finds that the recorded findings were wholly perverse and/or legally untenable. The adequacy or inadequacy of the evidence is not permitted to be canvassed before the High Court. Since, the High Court does not sit as an Appellate Authority, over the factual findings recorded during departmental proceedings, while exercising the power of judicial review, the High Court cannot normally speaking substitute its own conclusion, with regard to the guilt of the delinquent for that of the departmental authorities. Para 17 of the Apparel Export Promotion Council's case (supra) is quoted below: The High Court appears to have overlooked the settled position that in departmental proceedings the Disciplinary Authority is the sole Judge of facts and in case an appeal is presented to the Appellate Authority, the Appellate Authority has also the power/and jurisdiction to re-appreciate the evidence and come to its own conclusion on facts, being the sole fact finding authorities. Once findings of fact, based on appreciation of evidence are recorded the High Court in writ jurisdiction may not normally interfere with those factual findings unless it finds that the recorded findings were based either on no evidence or that the findings were wholly perverse and/or legally untenable. The adequacy or inadequacy of the evidence is not permitted to be canvassed before the High Court. The adequacy or inadequacy of the evidence is not permitted to be canvassed before the High Court. Since, the High Court does not sit as an Appellate Authority, over the factual findings recorded during departmental proceedings, while exercising the power of judicial review, the High Court cannot normally speaking substitute its own conclusion, with regard to the guilt of the delinquent, for that of the departmental authorities. Even insofar as Imposition of penalty or punishment is concerned, unless the punishment or penalty imposed by the Disciplinary or the Departmental Appellate Authority, is either impermissible or such that it shocks the conscience of the High Court, it should not normally substitute its own opinion and impose some other punishment or penalty. Both the learned single judge and the Division Bench of the High Court, it appears, ignored the well-settled principle that even though Judicial Review of administrative action must remain flexible and its dimension not closed, yet the Court in exercise of the power of judicial review is not concerned with the correctness of the findings of fact on the basis of which the orders are made so long as those findings are reasonably supported by evidence and have been arrived at through proceedings which cannot be faulted with for procedural illegalities or irregularities which vitiate the process by which the decision was arrived at, Judicial Review, it must be remembered, is directed not against the decision but is confined to the examination of the decision making process. Lord Haltom in Chief Constable of the North Wales Police v. Evans (1982) 3 All ER141, observed. The purpose of judicial review is to ensure that the individual receives fair treatment, and not to ensure that the authority, after according fall treatment, reaches, on a matter which it is authorized by law to decide for itself, a conclusion which is correct in the eyes of the Court. 13. The Apex Court in Syed Rahimuddin v. Director General, C.S.I.R, and Ors. AIR 2001 SC 2418 held that interference to the finding of fact by the Disciplinary Authority is permitted only when there is no materials, for the said finding or on materials, the conclusions cannot be that of a reasonable persons. 13. The Apex Court in Syed Rahimuddin v. Director General, C.S.I.R, and Ors. AIR 2001 SC 2418 held that interference to the finding of fact by the Disciplinary Authority is permitted only when there is no materials, for the said finding or on materials, the conclusions cannot be that of a reasonable persons. The Enquiry Officer dealing with the article of charge chronologically and relevant materials on the basis of which ultimate conclusion is arrived at such findings can not be held to be finding based on no evidence. Para 5 of the Syed Rahimuddin's case (supra) is quoted below: The further grievance that the findings of the Enquiring Officer are findings on no evidence is belied by the very report of the Enquiry Officer. The Enquiring Officer has dealt with the Articles of charge chronologically and the relevant materials on the basis of which the ultimate conclusion is arrived at. It is well settled that a conclusion or a finding of fact arrived at in a disciplinary inquiry can be interfered with by the Court only when there is no materials for the said conclusion, or that on the materials, the conclusion can not be that of a reasonable man. Having examined the report of the Enquiring Officer, we are unable to accept the contention of the learned Counsel for the appellant that the findings of the Engineering Officer cannot be held to be findings based on no evidence. 14. The Apex Court in State Bank of Patiala and Ors. v. S.K. Sharma 1996 (2) LLJ 296 SC held that justice means justice between both the parties. The interest of justice equally demand that the guilty should be punished and that technicalities and irregularities which do not occasion failure of justice are not allowed to defeat the ends of justice. Principles of natural justice are but the means to achieve the ends of justice. They can not be perverted to achieve the very opposite end. That would be a counter productive exercise. These principles cannot be put in a strait-jacket. Their applicability depends upon the context and the facts and circumstances of each case. In the present case the petitioner himself admitted that he authenticated the signatures of Smti. J. Borah on the reverse side of the Bankers Cheque. In this regard we may recall the decision of the Apex Court in S.L. Kapoor v. Jagmohan and Ors. Their applicability depends upon the context and the facts and circumstances of each case. In the present case the petitioner himself admitted that he authenticated the signatures of Smti. J. Borah on the reverse side of the Bankers Cheque. In this regard we may recall the decision of the Apex Court in S.L. Kapoor v. Jagmohan and Ors. 1981 (1) SCR 746 that in our view the principles of natural justice know of no exclusionary rule dependent on whether it would have made any difference if natural justice had been observed. The nonobservance of natural justice is itself prejudice to any man and proof of prejudice independents of proof of denial of natural justice is unnecessary. If all comes from a person who has denied justice that the person who has been denied justice is not prejudiced. As we said earlier where on the admitted of indisputable facts only one conclusion is possible and under the law only one penalty is permissible, the Court may not issue its writ to compel the observance of natural justice, not because it is not necessary to observe natural justice but because Courts do not issue futile writs. We do not agree with the contrary view taken by the Delhi High Court in the judgment under appeal. 15. The Apex Court again in Dharmarathmakara Raibahadur Aroot Ramaswamy Mudaliar Educational Institution v. The Educational Appellate Tribunal and Anr. 2000 (1) LLJ 393 SC held that what enquiry is to be made when one admits violations? In a case where facts are almost admitted, the case reveals itself and is apparent on the face of record, and in spite of opportunity no worthwhile explanation is forthcoming as in the present case it would not be a fit case to interfere with termination order. 16. The Apex Court in Lalit Popli v. Canara Bank and Ors. 2003 (2) LLJ 324 SC held that the High Court in exercise of jurisdiction under Article 226 in a writ proceeding against the finding of the Departmental Enquiry does not act as an Appellate authority. 17. The Apex Court in the High Court of Judicature at Bombay v. Shashikant S. Patil and Anr. 2003 (2) LLJ 324 SC held that the High Court in exercise of jurisdiction under Article 226 in a writ proceeding against the finding of the Departmental Enquiry does not act as an Appellate authority. 17. The Apex Court in the High Court of Judicature at Bombay v. Shashikant S. Patil and Anr. 2000 (67) ECC 16 held that interference with the decision of departmental authorities can be permitted, while exercising jurisdiction under Article 226 of the Constitution if such authority had held proceedings in violation of the principles of natural justice or in violation of the principles of natural justice or in violation of statutory regulations prescribing the made of such inquiry or if the decision of the authority is vitiated by considerations extraneous to the evidence and merits of the case, or if the conclusion made by the authority, on the very face of it, is wholly arbitrary or capricious that no reasonable person could have arrived at such a conclusion, or grounds very similar to the above. However, it cannot be overlook that the departmental authority is the sole judge of the facts, if the inquiry has been properly conducted. The settled legal position is that if there is some legal evidence on which the findings can be based, then adequacy or even reliability of that evidence is not a matter for canvassing before the High Court in a writ petition filed under Article 226 of the Constitution. 18. The procedural requirements which are required to be followed in the disciplinary proceeding are: i. Opportunity to the officer concerned to deny his guilt and establish his innocence which means he must be told that what the charges against him are and the allegations on which such charges are based; ii. He must be given a reasonable opportunity to cross-examine the witnesses produced against him and examine himself or other witnesses on his behalf and iii. He must be given opportunity to show cause that the proposed punishment would not be proper punishment to inflict which means that the tentative determination of the competent authority to inflict one of the three punishments must be communicated to him. 19. It is well settled that those principles of natural justice are not embodied principles. The requirements contained in Article 311(2) of the Constitution as a part of the principle of natural justice. 19. It is well settled that those principles of natural justice are not embodied principles. The requirements contained in Article 311(2) of the Constitution as a part of the principle of natural justice. The Courts in the aforementioned situation are required to see as to whether non observance of an of the said principles in a given case has resulted in denial of justice. If there had been substantial compliance with the procedure, the Court may not interfere. 20. From the above discussions, this Court is of the considered view that the petitioner has failed to make out his case for interference with the finding of the Enquiry Officer that the charge against the petitioner is proved and also of the considered view that dismissal and also the impugned order of the appellate authority are well-reasoned and valid. 21. Lord Diplock in Council of Civil Service Unions v. Minister for Civil Service (called CCSU Case) summarized the principle of judicial review of administrative action as based upon one or the other of the following viz, legality, procedural, irregularity and irrationality. He, however, opined that "proportionality" was a future possibility. According to my opinion, Lord Diplock for the first time opened the window of "Proportionality" in the judicial review of administrative action. Now, the Apex Court in a catena of cases held that "proportionality" is one of the basis for judicial review of the quantum of punishment imposed on the delinquent/employee by the disciplinary authority. While exercising the power of judicial review of the quantum of punishment basing on "proportionality" the Court is applying Wednesbury Principle as secondary reviewing authority and also the court will not apply "Proportionality" as a primary reviewing Court. Therefore, the court could exercise power of secondary review based only on Wednesbury Principle. Lord Bridge explained the primary and secondary review in Brind Case (1991) 1 A C 696 : (1991) 1 All ER 72 : (1991) 2 WLR 588 as follows: The primary judgment as to whether the peculiar competing public interest justifying 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 whether a reasonable Secretary of State, on the material before him, could reasonably made the primary judgment. 22. But, we are entitled to exercise a secondary judgment by asking whether a reasonable Secretary of State, on the material before him, could reasonably made the primary judgment. 22. The Constitution Bench of the Apex Court in E.P. Royappa v. State of Tamil Nadu 1974 (1) LLJ 172 SC held that where a punishment in disciplinary cases are challenged question will be whether the administrative order is "rational" or "reasonable" and the test then is the Wednesday Test. The Apex Court in Union of India v. G. Ganayutham (1997) SCC 1806 had summed up position relating to "proportionality" in paras 31 & 32 which read as follows: 31. The current position of proportionality in administrative law in England and India can be summarized as follows: 1. To Judge the validity of my 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 done on 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 the action was not bona fide. The court would also consider whether the decision was absurd or perverse. The court would not however go to 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 administration. This is the Wendesbury test. 2. The Court would not interfere with the administrator's decision unless it was illegal on suffered from procedural impropriety or was irrational in the sense that it was in outrageous of 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 (1985 AC U4 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 has done. 3. 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 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 balancing of the fundamental freedom and the need for the restriction thereupon. 4. (a) The position in our country, an 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 Green and Lord Diplock respectively top 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 felt 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. 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. 23. The Apex Court in Chairman and Managing Director, United Commercial Bank and Ors. 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. 23. The Apex Court in Chairman and Managing Director, United Commercial Bank and Ors. v. P.C. Kakkar (2003) 2 SCC 364 held that unless the punishment imposed by the disciplinary authority or by the appellate authority shocks the conscience of the Court/tribunal, there is no scope for interference. Further to shorten litigation it may, in exceptional and rare cases, impose appropriate punishment by recording cogent reasons in support thereof. In the normal course of the punishment imposed is shockingly disproportionate it would be appropriate to direct the disciplinary authority or the appellate authority to reconsider the penalty imposed para-12 of the judgment in Chairman and Managing Director, United Commercial Bank and Ors. v. P.C. Kakkar (2003) 2 SCC 364 (supra) is quoted as under: 12. To put it differently, unless the punishment imposed by the disciplinary authority or by the appellate authority shocks the conscience of the court/tribunal, there is no scope for interference. Further to shorten litigation it may, in exceptional and rare cases, impose appropriate punishment by recording cogent reasons in support thereof. In the normal course if the punishment imposed is shockingly disproportionate it would be appropriate to direct the disciplinary authority or the appellate authority to reconsider the penalty. 24. Again, the Apex Court in Canara Bank v. V.K. Awasthy 2005 (2) LLJ 461 SC had discussed the scope of judicial review of the quantum of punishment on the basis of "Proportionality" Paras-21, 22 and 23 of the judgment in Canara Bank v. V.K. Awasthy (supra) are quoted as under: 21. Coming to the question whether the punishment awarded was disproportionate, it is to be noted that the various allegations as laid in the departmental proceedings reveal that several acts of misconduct unbecoming of a bank official were committed by the respondent. 22. It is to be noted that the detailed charge-sheets were served on the respondent employee who not only submitted' written reply, but also participated in the proceedings. His explanations were considered and the inquiry officer held the charges to have been amply proved. He recommended dismissal from service. The same was accepted by the disciplinary authority. 22. It is to be noted that the detailed charge-sheets were served on the respondent employee who not only submitted' written reply, but also participated in the proceedings. His explanations were considered and the inquiry officer held the charges to have been amply proved. He recommended dismissal from service. The same was accepted by the disciplinary authority. The proved charges clearly established that the respondent employee failed to discharge his duties with utmost integrity honesty, devotion and diligence and his acts were prejudicial to the interest of the Bank in the appeal before the prescribed Appellate Authority the findings of the inquiry officer were challenged. The Appellate Authority after analyzing the material on record found no substance in the appeal. The scope of interference with the quantum of punishment has been the subject-matter of various decisions of this Court. Such interference cannot be a routine matter. 25. Keeping in view of the ratio laid down by the Apex Court in the above cases regarding the power of judicial review of the quantum of punishment and also in the facts and circumstances of the present case, this Court is of the considered view that submissions of the learned Counsel of the petitioner that penalty of dismissal from service imposed to the petitioner is shockingly disproportionate is not acceptable. This writ petition is accordingly devoid of merit and hence dismissed. Parties are to bear their own costs.