Judgment · High Court · 2012

To Sri Dhiren Das, Messenger, Assam Financial Corporation, Paltan Bazar, Guwahati-8. Sub: SHOW CAUSE. You are hereby directed to show cause under Regulation 41 of Assam Finan cial Corporation Staff Regulation, 1957, as amended, as to why any one of the pe nalties prescribed in the said Regulation No.41 should not be inflicted on you f or the following charge based on the statement of allegation attached herewith.

#01. It is evident from record that you are very irregular in attending your duties without prior intimation/prior permission or approval from appropriate au thority. You deliberately remain absent from duties frequently and apply for lea ve thereafter. In many occasions leaves were considered post facto. Observing yo ur habitual nature in remaining absent from duties without prior intimation/appr oval, pay and allowances were either held up or ordered to consider your unautho rized absence without pay as under: Period of unauthorized absence No. of days Action taken

23.09.98

01.04.99 1 Pay withheld

21.05.99 1 1 -do- -do- For 4(four) days late attendance 1 -do- (in May, 99) 01.07.99 to 31.07.99 -do- 03.08.99 to 05.08.99 -do-

20.11.99, 22.11.99, 25.11.99 -do- 01.12.99 to 19.12.99 -do-

05.04.2000 to 07.04.2000 -do- 3 31 3 19 3 Besides above you remained continuous absence from your duties w.e.f. 26 .04.2000 till 11.05.2000 and again from 15.05.2000 till 20.05.2000 without any a uthorities and prior intimation. It is evident from the attendance register that you reported for duties on 12.05.2000 only putting your signature in the depart ure column. Your such habitual act is considered by the Corporation as gross neglige nce of duties, violation of office discipline & misconduct. You are, therefore, charged with the breach of office discipline neglige nce of duties and misconduct, which is detriment to the interest of the Corporat ion. You should submit your written statement in defence within 15 (fifteen) days from the date of receipt of this communication provided you do not intend t o inspect the documents which have relevance with the issue under enquiry. In ca se you intend to inspect those documents you should write to the undersigned for the same within 7 (seven) days from the date of receipt of this communication a nd submit your explanation thereafter within 10(ten) days of completion of this inspection. Sd/-Managing Director (cid:29) [3] In reply to the show cause notice dated 08.06.2000, petitioner s ubmitted his written statement of defense dated 26.06.2000 wherein the petitione r stated that he had filed applications for leave, and as there was no leave in his credit the authority had already imposed the penalty of pay cut for the said unauthorized absence, and also that the said unauthorized absence was due to un avoidable circumstances of hospitalization of his son. The said show cause state ment or/written statement was in reply to the charge of absence of 84 days menti oned in the article of charge or/show cause notice. It is the further case of the petitioner that since petitioner h ad already been punished by imposing pay cut for the said unauthorized absence o f 84 days, further departmental enquiry for the same charge i.e. unauthorized ab sence of 84 days for imposing penalty or/punishment will amount to double jeopar dy inasmuch as the petitioner cannot be subjected to double punishment for the s ame charge i.e. the charge of unauthorized absence of 84 days. [4] The Managing Director, issued order dated 29.07.2000 in pursuanc e of Board resolution dated 15.07.1999 for appointing Shri K.Laskar, Ex-Secretar y, Legal Deptt, Govt of Assam as Inquiry Officer; and one Shri K.Talukdar, Assis tant Manager (Admn) as Presenting Officer. The Inquiry Officer submitted inquiry report dated 18.09.2000 with the finding that the record placed before him show s that the petitioner was absent for 523 days from July, 1994 to October, 1996. As stated above, there was no charge for the absence of 523 days in the said art icle of charge i.e. show cause notice, which was treated as article of charge. B ut without any charge the Inquiry Officer submitted report that the petitioner w as absent for 523 days. As stated above, as there was no charge for the absence of 523 days, it is the case of the petitioner that the petitioner had not have c hance of submitting his written statement of defense for the said alleged unauth orized absence of 523 days. [5] The disciplinary authority basing on the said report of the Inqu iry Officer dated 18.09.2000 passed the impugned order dated 14.11.2000 for impo sing major penalty of dismissal from service to the petitioner. Being aggrieved, the petitioner filed appeal to the Appellate Authority. The appeal was pending for a considerable period without giving any heed and being aggrieved, petitione r had approached this court by filing WP(C) No.4718 of 2002 which was disposed o f by this Court vide order dated 06.08.2002 directing the Appellate Authority to consider and dispose of the said appeal within a period of two months from the date of receipt of certified copy of the order. The said appeal was dismissed by the Appellate Authority vide impugned order dated 16.10.2002. From the above factual backdrop, it appears that the petitioner had unauthorizedly absented from duty for 84 days, for which there was departmen tal enquiry and there was no charge for the absence of 523 days. [6] It is fairly settled that penalty cannot be imposed to the delin quent (employee) for the charge for which there was no departmental enquiry; and therefore, the petitioner cannot be punished for the alleged absence of 523 day s for which there was no departmental proceedings or disciplinary proceedings ag ainst the petitioner. [7] Now the core question is (cid:28)if dismissal of the petitioner from se rvice for the absence of 84 days for which the authority had already imposed pen alty of pay cut to the petitioner is proportionate or not? (cid:29) No doubt, in the mat ter of determination of the quantum of punishment the role of administrative aut hority is primary and that of the Court is secondary to be exercised only on wel l settled Wednesbury Principles. Normally the quantum of punishment is not inter fered with by the Court by exercising power of judicial review unless punishment awarded was shockingly disproportionate. There should be reasonable restriction s in the judicial review of the quantum of punishment. The court while exercisin g power of judicial review of the quantum of punishment the court shall carefull y apply the principles of Wednesbury. The Apex Court had considered and decided the meaning of ’propor [8] tionality’ in Omkumar & Ors Vs Union of India: (2001) 2 SCC 386. The Apex Court in Omkumar’s case (supra) (para 28 and 29 of the SCC) held as follows: By (cid:28)proportionality (cid:29), we mean the question whether, while regulating exe (cid:28)28. rcise of fundamental rights, the appropriate or least-restrictive choice of meas ures has been made by the legislature or the administrator so as to achieve the object of the legislation or the purpose of the administrative order, as the cas e may be. Under the principle, the court will see that the legislature and the a dministrative authority (cid:28)maintain a proper balance between the adverse effects w hich the legislation or the administrative order may have on the rights, liberti es or interests of persons keeping in mind the purpose which they were intended to serve (cid:29). The legislature and the administrative authority are, however, given an area of discretion or a range of choices but as to whether the choice made in fringes the rights excessively or not is for the court. That is what is meant by proportionality.

#29. The above principle of proportionality has been applied by the European Court to protect the rights guaranteed under the European Convention for the Pro tection of Human Rights and Fundamental Freedoms, 1950 and in particular, for co nsidering whether restrictions imposed were restrictions which were (cid:28)necessary (cid:29) - within Articles 8 to 11 of the said Convention [corresponding to our Article 1 9(1)] and to find out whether the restrictions imposed on fundamental freedoms w ere more excessive than required (Handyside v UK (1976) 1 EHR 737). Articles 2 a nd 5 of the Convention contain provisions similar to Article 21 of our Constitut ion relating to life and liberty. The European Court has applied the principle o f proportionality also to questions of discrimination under Article 14 of the Co nvention (corresponding to Article 14 of our Constitution). See European adminis trative Law by J.Schwarze, 1992, pp.677-866). [9] It is equally settled law that the court’s interference with the quantum of punishment cannot be a routine matter. The court should not interfer e with the administrative decision unless it was illogical and suffer from proce dural propriety, so shocking to the conscience of the Court, in the sense that i t was in defiance of logic and moral standard. The Apex Court in Union of India & Ors Vs Dwarka Prasad Tiwari: (2006) 10 SCC 388 held that: The scope of interference with quantum of punishment has been the subjec (cid:28)10. t-mater of various decisions of this Court. Such interference cannot be a routin e mater. .. .. .. .. .. .. 15. The common thread running through in all these decisions is that the cou rt should not interfere with the administrator’s decision unless it was illogica l or suffers from procedural impropriety or was shocking to the conscience of th e court, in the sense that it was in defiance of logic or moral standards. In vi ew of what has been stated in Wednesbury case, Associated Provincial Picture Hou ses Ltd V Wednesbury Corpn : (1948) 1 KB 223, the court would not go into the co rrectness of the choice made by the administrator open to him and the court shou ld not substitute its decision to that of the administrator. The scope of judici al review is limited to the deficiency in decision-making process and not the de cision. (cid:29) [10] The ratio laid down in Omkumar’s case (supra) is also followed i n State of Rajathan & Anr Vs Mohd Ayub Naz: (2006) 1 SCC 589 and reiterated that : This Court in Om Kumar v Union of India: (2001) 2 SCC 386 while consider (cid:28)10. ing the quantum of punishment/proportionality has observed that in determining t he quantum, role of administrative authority is primary and that of court is sec ondary, confined to see if discretion exercised by the administrative authority caused excessive infringement of rights. In the instant case, the authorities ha ve not omitted any relevant materials nor has any irrelevant fact been taken int o account nor any illegality committed by the authority nor was the punishment a warded shockingly disproportionate. The punishment was awarded in the instant ca se after considering all the relevant materials, and, therefore, in our view, in terference by the High Court on reduction of punishment of removal was not calle d for (cid:29). [11] Keeping in view of the ratio laid down by the Apex Court in the matter of judicial review of quantum of punishment imposed by the Administrative Authority, this Court has given anxious considerations of mind, if major penalt y of dismissal from service imposed to the petitioner for the unauthorized absen ce of 85 days, for which the authority had already imposed penalty of pay cut to the petitioner is the right quantum of punishment or punishment of dismissal fr om service is shockingly disproportionate. By applying Wednesbury principles, as stated above, the role of this court in the judicial review of quantum of punis hment is only secondary. In the given case, no reasonable person imparting justi ce in writ proceedings, equity in origin, will impose major penalty of dismissal from service to the petitioner for the unauthorized absence of 85 days for whic h authority had already imposed the penalty of pay cut to the petitioner. This court, for the foregoing discussions is of the considered v [12] iew that the penalty of dismissal from service imposed under the impugned order dated 14.11.2000 is shockingly disproportionate and, accordingly interfered with . For the above discussions, the impugned dismissal order dated 14.11.2000 is he reby quashed; the petitioner should be reinstated in service. However, there sha ll be no back-wages in the given case. Consequently, the impugned order dated 16 .10.2002 is also set aside. Order for reinstating the petitioner to service shal l be issued within a period of three months from the date of receipt of certifie d copy of this order. To the extent indicated above, the writ petition is allowed.