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2013 DIGILAW 1262 (JHR)

Dil Chand Kumar Mandal v. State of Jharkhand

2013-11-22

SHREE CHANDRASHEKHAR

body2013
JUDGMENT : By Court: Assailing the order of punishment whereby the petitioners were removed from service, they have approached this Court by filing the present writ petition. 2. The brief facts of the case as disclosed in the writ petition are that, the petitioner no. 1 was appointed on 28.07.1989 on a Class-IV post and the petitioner no. 2 was appointed on 25.06.1971 as a Peon. In the midnight of 12th September, 2002 a fire broke out in the court room of Shri A.K. Srivastava, Judicial Magistrate, 1st Class, Ranchi and judicial records, registers, tables etc. were destroyed. The petitioners were deputed as night-guards, when the incident took place. The petitioners were suspended and a disciplinary proceeding was initiated against them in which a charge-memo dated 02.12.2002 was served upon the petitioners on the allegation that, they were not vigilant in their duty at the time when the fire incident took place in the Civil Court premises. It was alleged that they were careless and therefore, liable to be punished for dereliction of duty. The enquiry report dated 20.05.2003 was submitted, a copy of which was not supplied to the petitioners. Without issuing second show-cause notice to the petitioners, the penalty orders both dated 11.02.2004 withholding one increment for one year, were passed by the Judicial Commissioner, Ranchi. By order dated 11.03.2004 it was further ordered that for the period of suspension, the petitioners would not be entitled for salary, allowances etc. except, subsistence allowance. On 03.07.2004 again show-cause notices were issued by the disciplinary authority to the petitioners for enhancing the punishment. The petitioners submitted their reply and thereafter, another show-cause notice was issued to the petitioners on 03.08.2004. The penalty orders contained in Memo no. 53/c and Memo no. 54/c, both dated 18.05.2005 of removal from service were passed which have been challenged in the present proceeding. 3. A counter-affidavit has been filed on behalf of respondent no. 3 stating that the disciplinary inquiry was conducted in accordance with the rules and observing the principles of natural justice. The petitioners participated in the enquiry and cross-examined the witnesses. 54/c, both dated 18.05.2005 of removal from service were passed which have been challenged in the present proceeding. 3. A counter-affidavit has been filed on behalf of respondent no. 3 stating that the disciplinary inquiry was conducted in accordance with the rules and observing the principles of natural justice. The petitioners participated in the enquiry and cross-examined the witnesses. On direction of the Hon'ble High Court fresh show-cause notices were issued to the petitioners requiring them to show-cause why the punishment awarded to them for dereliction of duty, be not enhanced and thereafter, the punishment of removal from service has been passed and thus, the petitioners had sufficient notice and opportunity to defend themselves. 4. A counter-affidavit has been filed by respondent no. 4 also taking a similar stand. The petitioners have filed reply to the counter-affidavit and supplementary affidavit. Pursuant to order dated 28.06.2013, a supplementary affidavit has been filed on behalf of the respondent no. 4. 5. Mr. Rajendra Krishna, the learned counsel appearing for the petitioners has raised two fold contentions namely, (i) since the rules do not confer power of review on the disciplinary authority therefore, the order of penalty could not have been reviewed by the disciplinary authority and, (ii) the materials which were considered by the High Court were not supplied to the petitioners and therefore, the impugned orders are liable to be interfered with. The learned counsel appearing for the petitioners has also questioned the issuance of show-cause notice on the direction of the Hon'ble the Chief Justice of the High Court. He has further submitted that, since the charge framed against the petitioners was of negligence and dereliction of duty, the punishment of removal from service is definitely excessive and disproportionate to the charge framed and found proved against the petitioners. 6. Per contra, Mr. Ananda Sen, the learned counsel appearing for the respondents has submitted that, in view of Article 235 and Article 227 of the Constitution of India, there is no doubt that the High Court has the power of superintendence over the subordinate judiciary and its power to take cognizance suomotu and enhance punishment in appropriate cases, is well settled by now. Ananda Sen, the learned counsel appearing for the respondents has submitted that, in view of Article 235 and Article 227 of the Constitution of India, there is no doubt that the High Court has the power of superintendence over the subordinate judiciary and its power to take cognizance suomotu and enhance punishment in appropriate cases, is well settled by now. He has further submitted that, since the petitioners have accepted the findings recorded by the inquiry officer in as much as, they have not challenged the initial order of punishment dated 11.02.2004, it is not open to them to challenge the impugned order, enhancing the punishment of withholding of one increment to the removal from service. The learned counsel has further submitted that the petitioners were afforded adequate opportunity to show-cause why the punishment should not be enhanced and therefore, they have been given effective opportunity to defend themselves. 7. Before referring to the rival contentions raised on behalf of the parties, it would be appropriate to examine the power of the High Court in so far as, it relates to power of superintendence and power to take cognizance suomotu for enhancing the punishment. 8. In “The State of West Bengal and another v. Nripendra Nath Bagchi”, reported in AIR 1966 SC 447 , a Constitution Bench of the Hon'ble Supreme Court has held that the control vested in the High Court under Article 235 of the Constitution includes disciplinary jurisdiction and is a complete control subject only to the power of the Government, in the matters of appointment (including dismissal and removal) and posting and promotion of District Judges. It was further held that the High Court can in exercise of the control vested in it, hold inquiries, impose punishment other than dismissal or removal, subject, however, to the conditions of service and a right of appeal if granted thereby and giving an opportunity of showing cause as required by Clause (1) of Article 311 unless such opportunity is dispensed with by the Government. It has been held thus ; “13. ............The word "control" is not defined in the Constitution at all. In Part XIV which deals with Services under the Union and the States the words "disciplinary control" or "disciplinary jurisdiction" have not at all been used. It is not to be thought that disciplinary jurisdiction of services is not contemplated. It has been held thus ; “13. ............The word "control" is not defined in the Constitution at all. In Part XIV which deals with Services under the Union and the States the words "disciplinary control" or "disciplinary jurisdiction" have not at all been used. It is not to be thought that disciplinary jurisdiction of services is not contemplated. In the context the word "control" must, in our judgment, include disciplinary jurisdiction. Indeed, the word may be said to be used as a term of art because the Civil Services (Classification, Control and Appeal) Rules used the word "control" and the only rules which can legitimately come under the word "control" are the Disciplinary Rules. Further, as we have already shown, the history which lies behind the enactment of these articles indicates that "control" was vested in the High Court to effectuate a purpose, namely, the securing of the independence of the subordinate judiciary and unless it included disciplinary control as well the very object would be frustrated. This aid to construction is admissible because to find out the meaning of a law, recourse may legitimately be had to the prior state of the law, the evil sought to be removed and the process by which the law was evolved. The word "control", as we have seen, was used for the first time in the Constitution and it is accompanied by the word "vest" which is a strong word. It shows that the High Court is made the sole custodian of the control over the judiciary....... ” 9. In “Jasbir Singh Vs. State of Punjab” reported in (2006) 8 SCC 294 , the Hon'ble Supreme Court has held that the High Court's power of superintendence and control over all subordinate courts and tribunals is both administrative as well as judicial and it can be exercised suomotu also. It has been held thus:- 15. “Article 235 of the Constitution gives power to the High Court to exercise control over the subordinate courts. This power has been specifically described in Article 235 in a comprehensive sense so as to include the powers of general superintendence over the working of the subordinate courts; disciplinary control over the Presiding Judges of the subordinate courts which includes power to make inquiry; and impose punishments other than dismissal, removal or reduction in rank subject, of course, to the rules of services and Article 311(2) of the Constitution. This power also would include the power to order disciplinary inquiry, transfers, promotions of members of subordinate judiciary and confirmation of officers, etc. It also includes the power to recall officers of the subordinate courts holding ex cadre posts or to send officers on deputation to other administrative posts or award selection grade or pass orders on any such matters connected with service.” 10. In “Registrar, High Court of Madras v. R. Rajiah”, reported in (1988) 3 SCC 211 , the Hon'ble Supreme Court has held that the High Court's control over the subordinate judiciary would comprehend taking a decision with respect to punishment including the punishment of compulsory retirement to be imposed upon a member of the subordinate judiciary. 11. The respondents have contended that, in view of Rule 19 (4) of the Bihar Civil Court Staff (Class III and Class IV) Rules, 1998 read with Rule 12 of the Bihar and Orissa Subordinate Services (Discipline and Appeal) Rules, 1935, the High Court has ample power to enhance the punishment imposed upon an employee working on a Class III or Class IV post. The aforesaid Rules are extracted below: Bihar Civil Court Staff (Class-III and Class IV) Rules, 1998 “19. Appeal – (1) Any employee aggrieved by imposition of any minor/major punishments upon him by the disciplinary authority may prefer an appeal to the High Court within a period of 30 days from the date of receipt of a copy of the said order and/or from the date of communication of the said order upon the concerned employee. (2) Such memorandum of appeal shall be forwarded by the District Judge concerned to the Registrar of the High Court together with his comments thereon, if any, within two weeks from the date of receipt of such memorandum of appeal. (3) The Standing Committee of the High Court shall, dispose of such appeal as expeditiously as possible and preferably within a period of three months from the date of receipt of the memorandum of appeal, if the same has been preferred against an order imposing a major penalty and by the Judge Administrative Department No. 1 in case of a minor penalty. (4) All procedures for holding departmental proceeding, imposition of penalty, disposal of appeal etc. shall be governed by such statutory Rules as are applicable for the employees concerned.” Bihar and Orissa Subordinate Services (Discipline and Appeal) Rules, 1935 “12. (4) All procedures for holding departmental proceeding, imposition of penalty, disposal of appeal etc. shall be governed by such statutory Rules as are applicable for the employees concerned.” Bihar and Orissa Subordinate Services (Discipline and Appeal) Rules, 1935 “12. Notwithstanding anything contained in the foregoing provisions of these rules, the State Government and Heads of Departments may, at any time, call for departmental proceedings against their subordinate and reverse or alter the order passed by a subordinate authority. Nothing in these rules shall, however, be construed to interfere with the power conferred by Section 4 of Regulation 1 of 1829.” 12. In view of the aforesaid provisions and the law declared by the Hon'ble Supreme Court, it is apparent that High Court has administrative as well judicial control over the subordinate judiciary. Such control of High Court would definitely include power to enhance punishment and being the appellate authority such power would include power to review also. Accordingly, I do not find merit in the contention raised by the learned counsel for the petitioners that the order of penalty could not have been reviewed by the disciplinary authority, for the reason that the penalty order dated 11.02.2004 has been reviewed by the appellate authority and not by the disciplinary authority. The Judicial Commissioner, Ranchi has simply communicated the decision of the Standing Committee of the High Court to the petitioners vide memo no. 53/c and memo no. 54/c both dated 18.05.2005. 13. Coming to the facts of the case, I find that by the show-cause notice dated 03.07.2004, the petitioners were asked to submit their reply on the question of enhancement of punishment. After the petitioners submitted their reply to the show-cause notice dated 03.07.2004, again a notice dated 03.08.2004 was issued to the petitioner no. 1 requiring him to show-cause why his service should not be terminated. A similar notice was issued to petitioner no. 2 on the proposed punishment of major penalty. A perusal of the show-cause notices dated 03.07.2004 and 03.08.2004 would indicate that no reason except, that ridiculously low punishment was imposed, has been disclosed while issuing show-cause notices to the petitioners requiring them to show-cause why the punishment imposed upon them be not enhanced and why they should not be removed from service. A perusal of the show-cause notices dated 03.07.2004 and 03.08.2004 would indicate that no reason except, that ridiculously low punishment was imposed, has been disclosed while issuing show-cause notices to the petitioners requiring them to show-cause why the punishment imposed upon them be not enhanced and why they should not be removed from service. It is settled law that the person proceeded against must be told the charge against him so that, he can take his defence effectively. In “Khem Chand Vs. Union of India & Ors”, reported in AIR 1958 SC 300 , a Constitution Bench of the Hon'ble Supreme Court speaking through the Hon'ble Chief Justice of India has held that, a delinquent employee has a right to have an opportunity to deny his guilt and establish his innocence, which he can only do, if he is told what are the charges levelled against him and the allegations on which such charges are based. I find that the show-cause notices dated 03.07.2004 and 03.08.2004 issued to the petitioners are cryptic and do not disclose any reason to which the petitioners could have responded. 14. There is another aspect of the matter which would be revealed from the supplementary affidavit dated 11.07.2013 filed on behalf of the Registrar General of the High Court of Jharkhand. The relevant paragraphs in the supplementary affidavit dated 11.07.2013 are reproduced below: “10. That on 11th Feb. 2004 the Judicial Commissioner, Ranchi imposed punishment on Bhrigunath Bari and Dil Chand Mandal. 11. That on 29.4.2004 Hon'ble Chief Justice asked the Judicial Commissioner, Ranchi whether about the incidents and the action taken. 12. That on 10.6.2004 the Judicial Commissioner, Ranchi vide memo no. 123 (c) submitted his report, as desired by the Hon'ble the Chief Justice. 13. That on 1.7.2004 the matter was placed before Hon'ble the Chief Justice who was the Zonal Judge of Zone1. 14. That the Hon'ble the Chief Justice on 1.7.2004 directed to issue notice to the Night Guard to show cause as to why the punishment awarded to them shall not be enhanced and also noted the punishment is ridiculously low which was not appreciated by Hon'ble the Chief Justice. 15. That on 2.7.2004, the Registrar Vigilance, Jharkhand High Court communicated the direction of the Hon'ble the Chief Justice to issue show cause notices to the Night Guard. 16. 15. That on 2.7.2004, the Registrar Vigilance, Jharkhand High Court communicated the direction of the Hon'ble the Chief Justice to issue show cause notices to the Night Guard. 16. That on 3.7.2004 the Judicial Commissioner, Ranchi issued notices to both the Night Guard directing them to show cause as to why the punishment awarded to them for dereliction of duties should not be enhanced. 17. That on 13.7.2004 the petitioner pleaded innocence and gave reply to the show cause notice. 18. That on 15.7.2004 the Judicial Commissioner, Ranchi informed the matter to the Registrar, Vigilance of the Jharkhand High Court and requesting to place the matter before the Hon'ble Court. 19. That on 29.7.2004 again the Administrative Grievance Committee suggested punishment for this petitioner. 20. That on 3.8.2004 notice was issued to petitioner as to why their services should not be terminated. 21. That the matter was placed before the Hon'ble High Court on 27.9.2004. 22. That on 12.5.2005 the Standing Committee of the Hon'ble Jharkhand High Court consider the entire matter and resolved to enhance the punishment and the punishment would be removal from service with immediate effect in respect of this petitioner and others. 23. That on 17.5.2005 the decision of the Standing Committee was communicated to the Judicial Commissioner, Ranchi.” 15. From the facts narrated in the supplementary affidavit dated 11.07.2013, it is apparent that after the punishment of withholding of one annual increment was passed by the Judicial Commissioner, Ranchi on 11.02.2004, the Hon'ble Chief Justice of the High Court of Jharkhand sought a report from the Judicial Commissioner, Ranchi and on the direction of the Hon'ble the Chief Justice, notices dated 03.07.2004 were issued to both the petitioners. The matter was placed before the Standing Committee of the High Court of Jharkhand on 27.09.2004 for the first time. However, by that time notice dated 03.07.2004 for enhancing the punishment and notice dated 03.08.2004 for imposing major penalty/termination of service were already issued to the petitioners and the opinion of the Administrative Grievance Committee was already taken in the matter. 16. In “State of U.P. Vs. However, by that time notice dated 03.07.2004 for enhancing the punishment and notice dated 03.08.2004 for imposing major penalty/termination of service were already issued to the petitioners and the opinion of the Administrative Grievance Committee was already taken in the matter. 16. In “State of U.P. Vs. Batuk Deo Pati Tripathi and Anr.” reported in (1978) 2 SCC 102 , a Constitution Bench of the Hon'ble Supreme Court while considering the question, whether the decision taken by the Administrative Committee of the High Court compulsorily retiring the delinquent employee, who was working on the post of District Judge, was the decision of the High Court or not has held that, the High Court has the power under Article 235 of the Constitution of India to frame rules for regulating the manner in which the control vested in it may be exercised and thus, the High Court has power to frame rules authorising the Judge or a Committee of the Judges of the High Court to act on behalf of the High Court. It has been held thus:- “16. For answering this question it is necessary in the first place to bear in mind that the power of control over the subordinate courts which is vested in the High Court’s comprises such numerous matters, often involving consideration of details of the minutest nature, that if the whole High Court is required to consider every one of those matters, the exercise of control instead of becoming effective will tend to cause delay and confusion in the administration of justice in the State. A construction which will frustrate the very object of the salient provisions contained in Article 235 ought, is so far as possible, to be avoided. The control vested in the High Court’s by that article comprehends, according to our decisions, a large variety of matters like transfers, subsequent postings, leave, promotions other than initial promotions, imposition of minor penalties which do not fall within Article 311, decisions regarding compulsory retirements, recommendations for imposition of major penalties which fall within Article 311, entries in character rolls and so forth. If every Judge is to be associated personally and directly with the decision on every one of these matters, several important matters pertaining to the High Court’s administrative affairs will pile into arrears like court arrears. If every Judge is to be associated personally and directly with the decision on every one of these matters, several important matters pertaining to the High Court’s administrative affairs will pile into arrears like court arrears. In fact, it is no exaggeration to say that the control will be better and more effectively exercised if a smaller committee of Judges has the authority of the court to consider the manifold matters falling within the purview of Article 235. Bearing in mind therefore the nature of the power which that article confers on the High Courts, we are of the opinion that it is wrong to characterise as ‘delegation’ the process whereby the entire High Court authorises a Judge or some of the Judges of the Court to act on behalf of the whole Court. Such an authorisation effectuates the purpose of Article 235 and indeed without it the control vested in the High Court’s over the subordinate courts will tend gradually to become lax and ineffective. Administrative functions are only a part, though an important part, of the High Court’s constitutional functions. Judicial functions ought to occupy and do in fact consume the best part of a Judge’s time. For balancing these twofold functions it is inevitable that the administrative duties should be left to be discharged by some on behalf of all the Judges. Judicial functions brook no such sharing of responsibilities by any instrumentality.” 17. I do not find that the High Court of Jharkhand has framed a rule which authorises the Administrative Judge to issue direction for enhancement of punishment. Rule 19(3) of the Bihar Civil Court Staff (Class III and Class IV) Rules, 1998 provides that, in cases of major penalty the appeal preferred by the delinquent employee would be dealt with by the Standing Committee of the High Court and in cases of minor penalty, the Judge Administrative Department No. 1 would be the appellate authority for deciding the appeal preferred by a delinquent employee. Though, the punishment imposed upon the petitioners vide order dated 11.02.2004 was a minor penalty and thus, the Judge Administrative Department No. 1 would have been the appellate authority to decide the appeal, if any, preferred by the petitioners against the penalty order dated 11.02.2004 however, I am of the view that it is the Standing Committee of the High Court alone which has power and jurisdiction to alter/modify order of minor penalty into a major penalty otherwise, the very purpose of designating two different authorities to act as appellate authority would be frustrated. Since, the matter was placed before the Standing Committee of the High Court of Jharkhand on 27.09.2004 for the first time and although, the impugned orders of removal from service have been passed after the approval of the Standing Committee of the High Court, the impugned orders are liable to be held illegal as, the initiation of proceeding for enhancement of punishment to the petitioners, itself was without jurisdiction. The provision contained in Rule 12 of the Bihar and Orissa Subordinate Services (Discipline and Appeal) Rules, 1935 which provides that the Heads of Department may at any time call for departmental proceedings against their subordinate and reverse or alter the order passed by a subordinate authority, would not be attracted as the proceeding against the petitioners had already concluded. 18. Relying on the decision in “R.M. Gurjar and Anr. Vs. High Court of Gujarat and Anr.”, reported in (1992) 4 SCC 10 , the learned counsel appearing for the respondents has contended that, since the High Court being the appellate authority is empowered to review the order of District Judge and it has power to enhance the penalty after affording opportunity to the delinquent employee and since such a procedure has been adopted in the present case, the impugned orders removing the petitioners from service are not liable to be interfered with by this Court. I find that in “R. M. Gurjar” (supra) it has been specifically recorded by the Hon'ble Supreme Court that the High Court enhanced the punishment after offering opportunity to officers in accordance with law. However, in the present case, the show-cause notices were not issued at the instance of the Standing Committee of the High Court. I find that in “R. M. Gurjar” (supra) it has been specifically recorded by the Hon'ble Supreme Court that the High Court enhanced the punishment after offering opportunity to officers in accordance with law. However, in the present case, the show-cause notices were not issued at the instance of the Standing Committee of the High Court. The delinquent employees were issued show-cause notices without disclosing any material and the grounds based on which a decision was taken to review the order of penalty passed by the disciplinary authority. Even in the present proceeding it has not been disclosed, whether the Administrative Grievance Committee made a different suggestion subsequently and whether any other material was before the High Court which necessitated review of the order passed by the disciplinary authority on 11.02.2004. I find that in drawing up proceedings and conducting departmental enquires, the instructions contained in Rules 160 to 170 of the Bihar and Orissa Board's Miscellaneous Rules, 1958 are to be followed. Rule 166 of the Bihar and Orissa Miscellaneous Rules, 1958 provides that no order of dismissal, removal or reduction shall be passed on a Government Servant unless he has been informed in writing of the grounds on which it is proposed to take action, and has been afforded a reasonable opportunity of defending himself. In these facts I am of the view that the procedure adopted in the present case for enhancing the punishment, was not just and fair. In “Oryx Fisheries Private Limited Vs. Union of India & Ors.” reported in (2010) 13 SCC 427 , the Hon'ble Supreme Court has observed as under:- “28. Justice is rooted in confidence and justice is the goal of a quasi-judicial proceeding also. If the functioning of a quasi-judicial authority has to inspire confidence in the minds of those subjected to its jurisdiction, such authority must act with utmost fairness. Its fairness is obviously to be manifested by the language in which charges are couched and conveyed to the person proceeded against.” 19. If the functioning of a quasi-judicial authority has to inspire confidence in the minds of those subjected to its jurisdiction, such authority must act with utmost fairness. Its fairness is obviously to be manifested by the language in which charges are couched and conveyed to the person proceeded against.” 19. Adverting to the contention raised by the learned counsel appearing for the respondents that, since the petitioners have not challenged order dated 11.02.2004 inflicting punishment of stoppage of one increment, it is not open to the petitioners to challenge the impugned orders, I am of the view that a right which has been conferred upon the petitioners under the law cannot be taken away on the plea that they did not challenge the penalty order dated 11.02.2004. Admittedly, the appellate-authority while asking the disciplinary authority to issue show-cause notices dated 03.07.2004 and 03.08.2004 did not disclose any reason for enhancing the punishment except, that the petitioners were let off with minor punishment. This is the stage when, in my opinion, a right to know the reasons would accrue to the petitioners and merely because the petitioners have chosen not to challenge the penalty order dated 11.02.2004, it would not prevent the petitioners from challenging the impugned orders dated 18.05.2005. 20. Now, adverting to the contention raised by the learned counsel appearing for the petitioners that, a serious prejudice has been caused to the petitioners when the documents and the inquiry report have not been supplied to the petitioners, I find that in the writ petition in paragraph nos. 15 and 16, a specific plea has been taken by the petitioners that the copy of the enquiry report was not furnished to the petitioners. In paragraph no. 16 of the counter-affidavit filed on behalf of the respondent no. 3, though a statement has been made that the statements in paragraph nos. 15 and 16 of the writ petition are denied, however I find that in later portion of paragraph no. 16 the respondent no. 3 has taken a plea that no prejudice has been caused to the petitioners if, a copy of the enquiry report has not been supplied to the petitioners. This would indicate that the copy of the inquiry report was not supplied to the petitioners and therefore, a vague statement has been made in paragraph 16 of the counter-affidavit filed on behalf of the respondent no. 3. This would indicate that the copy of the inquiry report was not supplied to the petitioners and therefore, a vague statement has been made in paragraph 16 of the counter-affidavit filed on behalf of the respondent no. 3. Even in the present proceeding a copy of the inquiry report has not been placed on record. 21. The matter was referred to the Administrative Grievance Committee however, what was the suggestion of the Administrative Grievance Committee was not disclosed to the petitioners nor it has been disclosed in the present proceeding. From the pleadings on record, it is apparent that the report of the Administrative Grievance Committee formed the basis for enhancing the punishment of stoppage of one annual increment to an order of removal from service, however, a copy of the said report was not supplied to the petitioners. Though, pursuant to order dated 19.07.2013, the record of the case has been produced in the sealed cover, since it is an admitted position that the report of the Administrative Grievance Committee was not supplied to the petitioners, I have refrained from perusing the same and the case record in sealed cover has been returned. 22. While examining the effect of non-supply of the report of the Administrative Grievance Committee to the petitioners, I find that the respondents have admitted that the matter was again referred to the Administrative Grievance Committee and the report of the Administrative Grievance Committee was considered by the Standing Committee of the High Court of Jharkhand which approved the penalty of removal from service of the petitioners. However, it is not disclosed by the respondent nos. 3 and 4, whether there was any fresh material/evidence which necessitated a fresh opinion from the Administrative Grievance Committee. In a disciplinary proceeding, whether the materials collected behind the back of the delinquent employee can be considered by the departmental authorities or not and whether a delinquent employee is entitled to supply of materials on the basis of which an order of punishment has been passed, has been settled by a catena of judgments of the Hon'ble Supreme Court. In “Executive Committee, U.P. Warehousing Corporation Vs. In “Executive Committee, U.P. Warehousing Corporation Vs. Chandra Kiran Tyagi”, reported in (1969) 2 SCC 838 , the Hon'ble Supreme Court found the enquiry proceeding vitiated because the enquiry officer collected information from outside source and utilised the same in his findings recorded against the delinquent officer without disclosing that information to the officer. 23. In “State of Assam & Anr. Vs. Mahendra Kumar Das & Ors.”, reported in (1970) 1 SCC 709 , a case in which when it was found that the enquiry officer considered the materials gathered by Anti Corruption Branch and relied on such materials without supplying a copy of the same to the delinquent officer, the Hon'ble Supreme Court discussed the issue thus:- 23. “From the above averments it will be noted that the respondent no doubt made a grievance of the consultation stated to have taken place during the midst of the enquiry between the Enquiry Officer and the Anti-Corruption Branch. But his specific averment was that the findings against him recorded in the enquiry were based upon the report of the Anti-Corruption Branch the copy of which was not furnished to him. The State, on the other hand, did not controvert the fact that the Enquiry Officer did have consultation with the Anti-Corruption Branch on the dates mentioned in the record of proceedings. But, according to the State, no part of any information contained in that report had been taken into account in the enquiry proceedings and that on the other hand the report of the Enquiry Officer was exclusively based on the evidence adduced during the enquiry. 24. A perusal of the report of the Enquiry Officer, in the proceedings before us, shows that there is absolutely no reference to any data or material, if any, collected by him when he consulted the Deputy Superintendent of Police, Anti-Corruption Branch on July 14 and 15, 1958. But, we have to state that it is highly improper for an Enquiry Officer during the conduct of an enquiry to attempt to collect any materials from outside sources and not make that information, so collected, available to the delinquent officer and further make use of the same in the enquiry proceedings. But, we have to state that it is highly improper for an Enquiry Officer during the conduct of an enquiry to attempt to collect any materials from outside sources and not make that information, so collected, available to the delinquent officer and further make use of the same in the enquiry proceedings. There may also be cases where a very clever and astute enquiry officer may collect outside information behind the back of the delinquent officer and, without any apparent reference to the information so collected, may have been influenced in the conclusions recorded by him against the delinquent officer concerned. If it is established that the material behind the back of the delinquent officer has been collected during the enquiry and such material has been relied on by the Enquiry Officer, without its having been disclosed to the delinquent officer, it can be stated that the enquiry proceedings are vitiated. It was, under such circumstances, that this Court, in U.P. Warehousing Corpn. v. Chandra Kiran Tyagi accepted the view of the High Court that the enquiry proceedings were vitiated by the Enquiry Officer collecting information from outside sources and utilising the same in his findings recorded against the delinquent officer without disclosing that information to the accused officer. It was, again, under similar circumstances that this Court in Sanawarmal Purohit case upheld the order of the High Court holding the enquiry proceedings to be contrary to the principles of natural justice when the Enquiry Officer had collected information from third parties and acted upon the information so collected, without disclosing the same to the accused. If the disciplinary authority himself had been also the Enquiry Officer and, during the course of the enquiry he had collected materials behind the back of the accused and used such materials without disclosing the same to the officer concerned, the position will be still worse and the mere fact that such an order passed by the disciplinary authority had even been confirmed by an Appellate Authority without anything more, will not alter the position in favour of the department.” 24. In “State of Punjab Vs. Bhagat Ram”, reported in (1975) 1 SCC 155 , the Hon'ble Supreme Court has observed, 7. In “State of Punjab Vs. Bhagat Ram”, reported in (1975) 1 SCC 155 , the Hon'ble Supreme Court has observed, 7. “The meaning of a reasonable opportunity of showing cause against the action proposed to be taken is that the Government servant is afforded a reasonable opportunity to defend himself against charges on which inquiry is held. The Government servant should be given an opportunity to deny his guilt and establish his innocence. He can do so when he is told what the charges against him are. He can do so by cross-examining the witnesses produced against him. The object of supplying statements is that the Government servant will be able to refer to the previous statements of the witnesses proposed to be examined against the Government servant. Unless the statements are given to the Government servant he will not be able to have an effective and useful cross-examination. 8. It is unjust and unfair to deny the Government servant copies of statements of witnesses examined during investigation and produced at the inquiry in support of the charges levelled against the Government servant. A synopsis does not satisfy the requirements of giving the Government servant a reasonable opportunity of showing cause against the action proposed to be taken.” 25. In “State of Uttar Pradesh Vs. Mohd. Sharif”, reported in (1982) 2 SCC 376 , where the statements recorded during the pre-enquiry stage were not supplied to the delinquent officer, the Hon'ble Supreme Court held that the person was denied reasonable opportunity to defend himself in the disciplinary enquiry. Again, in “Kashinath Dikshita Vs. Union of India and Others”, reported in (1986) 3 SCC 229 , the Hon'ble Supreme Court took a similar view when it was found that the officer was not supplied with a copy of statements recorded at pre-enquiry stage and such statements were relied upon by the department in support of the charges framed against the employee. 26. Union of India and Others”, reported in (1986) 3 SCC 229 , the Hon'ble Supreme Court took a similar view when it was found that the officer was not supplied with a copy of statements recorded at pre-enquiry stage and such statements were relied upon by the department in support of the charges framed against the employee. 26. Since, a decision has been taken against the petitioners without supplying the relevant materials based on which the respondent-authority came to a conclusion that the penalty imposed upon the petitioners was inadequate and therefore, the punishment imposed upon the petitioners was enhanced, without examining the effect of non-supply of enquiry report, I hold that the proceeding initiated on 03.07.2004 for enhancing the punishment is vitiated due to non-supply of the materials/documents to the petitioners and therefore, the impugned orders of punishment are liable to be quashed. 27. Before dealing with the question of quantum of punishment, it would be useful to examine the law with respect to power of High Court to interfere with the decision of the departmental authorities. The law on the subject first evolved in England. In “Queen v. James Bolton”,(1841) 1 QB 66, Lord Denman, C.J, made the following observation which is considered authoritative and good law even today : “The first of these is a point of much importance, because of very general application; but the principle upon which it turns is very simple: the difficulty is always found in applying it. The case to be supposed is one like the present, in which the Legislature has trusted the original, it may be (as here) the final jurisdiction on the merits to the magistrates below; in which this Court has no jurisdiction as to the merits either originally or on appeal. All that we can then do, when their decision is complained of, is to see that the case was one within their jurisdiction, and that their proceedings on the face of them are regular & according to law. Even if their decision should upon the merits be unwise or unjust, on these grounds we cannot reverse it.” 28. It was further observed by Lord Denman, C.J.:- “Beyond this we cannot go. Even if their decision should upon the merits be unwise or unjust, on these grounds we cannot reverse it.” 28. It was further observed by Lord Denman, C.J.:- “Beyond this we cannot go. The affidavits, being before us, were used on the argument; and much was said of the unreasonableness of the conclusion drawn by the magistrates, and of the hardship on the defendant if we would not review it, there being no appeal to the sessions. We forbear to express any opinion on that which is not before us, the propriety of the conclusion drawn from the evidence by the magistrates: they and they alone were the competent authority to draw it; and we must not constitute ourselves into a Court of Appeal where the statute does not make us such, because it has constituted no other.” 29. A century thereafter, in “Associated Provincial Picture Houses Limited Vs. Wednesbury Corpn.”, reported in (1948) 1 KB 223, which is famously known as 'Wednesbury case', the observation of Lord Greene is considered as basic principle relating to judicial review of administrative or statutory discretion; “12. ........It is true that discretion must be exercised reasonably. Now what does that mean? Lawyers familiar with the phraseology used in relation to exercise of statutory discretions often use the word 'unreasonable' in a rather comprehensive sense. It has 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 sense it is taking into consideration extraneous matters. 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 sense 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 Green also observed (KB p.230: All ER p.683) “......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 the correctness one view over another.” 30. In “Council of Civil Service Unions Vs. Minister for the Civil Service”, reported in (1984) 3 ALL ER 935, Lord Diplock observed, “.............Judicial review has I think developed to a stage today when, without reiterating any analysis of the steps by which the development has come about, one can conveniently classify under three heads the grounds on which administrative action is subject to control by judicial review. The first ground I would call 'illegality', the second 'irrationality' and the third 'procedural impropriety'. That is not to say that further development on a case by case basis may not in course of time add further grounds. I have in mind particularly the possible adoption in the future of the principle of 'proportionality' which is recognised in the administrative law of several of our fellow members of the European Economic Community;.....” 31. In “R. Vs. Secy. of State for the Home Deptt., ex p Brind”, reported in (1991) 1 AC 696, Lord Bridge explained the 'primary review' in the following passage: “The primary judgment as to whether the particular 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 make the primary judgment.” 32. In India the principle of 'proportionality' has always been applied to administrative action affecting fundamental freedoms. But, we are entitled to exercise a secondary judgment by asking whether a reasonable Secretary of State, on the material before him, could reasonably make the primary judgment.” 32. In India the principle of 'proportionality' has always been applied to administrative action affecting fundamental freedoms. When administrative action is attacked as discriminatory under Article 14 of the Constitution of India, the Courts in India have applied the principle of proportionality. However, where administrative action is challenged as “arbitrary” under Article 14, the Courts have applied Wednesbury principle. The test laid down in “E.P. Royappa Vs. State of T. N.”, reported in (1974) 4 SCC 3 that, if the administrative action is arbitrary, it can be struck down under Article 14 of the Constitution of India, is now being uniformally followed by the Courts in India. Thus, where an administrative action is challenged as “arbitrary” under Article 14, the Courts would then be confined only to a 'secondary' role to see whether the administrator acted illegally or has omitted relevant factors from consideration or has taken irrelevant factors into consideration or whether the view taken is one which no reasonable person could have taken. 33. In “Om Kumar & Ors. Vs. Union of India”, reported in (2001) 2 SCC 386 , the Hon'ble Supreme Court has observed:- “The quantum of punishment in disciplinary matters is primary for the disciplinary authority to decide and the jurisdiction of the High Courts under Article 226 of the Constitution of India or of the Administrative Tribunals is limited and is confined to the applicability of one or other of the wellknown principles known as Wednesbury principles.” 34. In “Union of India & Anr. Vs. Ganayutham”, reported in (1997) 7 SCC 463 , the Hon'ble Supreme Court has held that “in the matter of penalty imposed in a disciplinary case unless the Court/Tribunal opines in its secondary role that the administrator on the materials before him, made an irrational decision, the punishment cannot be quashed.” 35. In “Apparel Export Promotion Counil Vs. A.K. Chopra”, reported in (1999) 1 SCC 759 , the Hon'ble Supreme Court has observed, “16. ...........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. ...........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. ................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...........” 36. In “Ranjit Thakur Vs. Union of India & Ors.”, reported in (1987) 4 SCC 611 , the Hon'ble Supreme Court has observed, “25.............The doctrine of proportionality, as part of the concept of judicial review, would ensure that even on an aspect which is, otherwise, within the exclusive province of the court-martial, if the decision of the court even as to sentence is an outrageous defiance of logic, then the sentence would not be immune from correction. Irrationality and perversity are recognised grounds of judicial review...........” 37. In “Dev Singh Vs. Punjab Tourism Development Corporation Ltd. and Another”, reported in (2003) 8 SCC 9 , a case where official file was misplaced and for that the employee was proceeded in departmental enquiry and he was dismissed from service, the Hon'ble Supreme Court has held thus:- 6.“A perusal of the above judgments clearly shows that a court sitting in appeal against a punishment imposed in the disciplinary proceedings will not normally substitute its own conclusion on penalty, however, if the punishment imposed by the disciplinary authority or the appellate authority shocks the conscience of the court, then the court would appropriately mould the relief either by directing the disciplinary/appropriate authority to reconsider the penalty imposed or to shorten the litigation it may make an exception in rare cases and impose appropriate punishment with cogent reasons in support thereof. It is also clear from the abovenoted judgments of this Court, if the punishment imposed by the disciplinary authority is totally disproportionate to the misconduct proved against the delinquent officer, then the court would interfere in such a case.” 38. It is also clear from the abovenoted judgments of this Court, if the punishment imposed by the disciplinary authority is totally disproportionate to the misconduct proved against the delinquent officer, then the court would interfere in such a case.” 38. When the punishment of removal from service imposed upon the petitioners is examined in the background of the law laid down by the Hon'ble Supreme Court, I find that the punishment imposed upon the petitioners is so excessive that it shocks the conscience of the Court. The specific charge framed against the petitioners is of being careless and not vigilant and they have been punished for dereliction of duty. No charge of any mischief committed by the petitioners has been framed against them. A First Information Report was lodged on 13.09.2002 however, the petitioners were not named as accused in the said report. A Final Form has been submitted by the Police in the said case however, complicity of the petitioners in the incident has not been found. The charge against the petitioners cannot be said to be one of the gravest in nature and therefore, the punishment of removal from service is definitely disproportionate to the charge framed and found proved against the petitioners. 39. In view of the aforesaid discussion, the impugned orders are quashed and the matter is remitted to the Standing Committee of the High Court for taking a decision afresh, if required. However, it is made clear that the order passed by this Court would not be construed as an order of automatic reinstatement of the petitioners. As the matter has been remanded to the appellate authority, an appropriate decision would be taken by the appellate authority in this regard. 40. The writ petition is allowed in the aforesaid terms.