High Court
Case Details
WP(C) 3696/2009 BEFORE HON’BLE MR. JUSTICE I. A. ANSARI The challenge, in the present writ petition, made under Article 226 of t he Constitution of India, is posed to the impugned order, dated 06.08.2008, pass ed by respondent No. 4, namely, Commandant, 60th Battalion, Central Reserve Poli ce CRPF (in short, ’CRPF’), whereby the petitioner has been dismissed from servi ce. 2. ief, be set out as under: The material facts, giving rise to the present writ petition, may, in br (i) While being posted in the 60th Battalion of the CRPF, as constab le/mali, the petitioner availed 5 days Earned Leave w.e.f. 03.04.2000. Though t he petitioner was due to report back on 07.04.2000, he overstayed the leave with out any prior permission having been obtained, in this regard, from the competen t authority. When the petitioner reported for duty, on 18.05.2000, the Commanda nt, vide order, dated 13.06.2000, awarded punishment of 10 days’ confinement to the petitioner. This the period of 10 days of confinement was to be over on 22. 06.2000. However, on 21.06.2000, the petitioner, while undergoing punishment of 10 days of confinement, deserted the CRPF. The matter was reported to the auth orities concerned and, though warrant of arrest was issued against the petitione r, the warrant could not be executed inasmuch as the whereabouts of the petition er remained unknown. On 18.07.2000, the petitioner was found to be residing with his family, (ii) in the Group Centre of the CRPF, at Guwahati. Having received this information, an escort party was sent by the 60th Battalion of the CRPF, on 20.07.2000, to a rrest the petitioner and bring him back to the 60th Battalion; but before the pe titioner could be arrested and brought back to 60th Battalion of the CRPF, he wa s admitted in the Base Hospital of the Group Centre, Guwahati, and remained ther e, under treatment, till 07.09.2000. However, from 08.09.2000 to 17.10.2000 and , thereafter, from 08.10.2000 to 13.10.2000, the authorities of the Base Hospita l granted medical leave to the petitioner without consulting the Commandant, 60t h Battalion, CRPF, and, at last, the petitioner was declared fit for resumption of his duties w.e.f. 30.10.2000. (iii) Thereafter, on 03.11.2000, the petitioner was apprehended by the authori ties concerned at the Group Centre, Guwahati, and taken, on 04.11.2000, to the H eadquarters of the 60th Battalion, CRPF, on 04.11.2000. When the petitioner was produced before the Commandant, 60th Battalion, CRPF, on 06.11.2000, the Comman dant, who was also empowered, under Section 16 of the CRPF Act, to act as a 1st Class Judicial Magistrate, remanded the petitioner to judicial custody till 04.1 2.2000. Thereafter, trial was held against the petitioner for commission of off ence under Section 10(m) of the Central Reserve Police CRPF Act, 1949 (hereinaft er referred to as the ’CRPF Act’). On completion of trial, the petitioner, havi ng been guilty of the offence, was sentenced, on 04.12.2000, to suffer simple im prisonment for 15 days. The said period of imprisonment was served by the petit ioner by suffering detention in District Jail, Nagaon. However, on the same date , i.e., 04.12.2000, the Commandant, 60th Battalion of the CRPF, in exercise of t he powers conferred on him by Section 12 of the CRPF Act read with Rule 27 of th e Central Reserved Police Force Rules (hereinafter referred to as the ’CRPF Rule s’), passed an order dismissing the petitioner from service. (iv)
Legal Reasoning
Aggrieved by his dismissal, the petitioner impugned, in a writ petition, made under Article 226 of the Constitution of India, the order, dated 04.12.200 0, whereby he was dismissed. The said writ petition of the petitioner gave rise to WP(C) 423/2003. Noteworthy it is that the petitioner did not, however, chall enge, in the said writ petition, his conviction under Section 10(m) of the CRPF Act nor did he impugn the sentence of imprisonment for 15 days, which had been p assed by the order, dated 04.12.2000 aforementioned. What the petitioner challen ged, by way of his writ petition aforementioned, was his dismissal from service and not his punishment of imprisonment.
Decision
(v) Having examined the grievances of the petitioner vis-à-vis the case, whi ch the respondents had pleaded, a learned Single Judge of this Court disposed of the writ petition, on 06.05.2008, by pointing out that a similar writ petition, covered by WP(C) 4093/2001 (Shivanand Mishra vs. Union of India and Others, rep orted in (2008) 2 GLR 527), had already been disposed of, wherein the Court, whi le interfering with the order of dismissal, had remanded the matter to the disci plinary authority concerned for passing a de novo order after following the requ irements of law and that the petitioner’s case being not different from the case of Shivanand Mishra’s case (supra), similar order needed to be passed and, acco rdingly, the learned Single Judge disposed of the petitioner’s said writ petitio n by directing that, while the petitioner need not be reinstated, the order, dat ed 04.12.2000, whereby the punishment of dismissal from service had been imposed on the petitioner, shall stand aside and a decision be arrived at by the compet ent authority by taking the relevant factors into account as to whether the peti tioner deserved to suffer the punishment of dismissal from service besides suffe ring the punishment of simple imprisonment for a period of 15 days. While disposing of the writ petition, the Court pointed out that in the (vi) light of the provisions of Section 12 of the CRPF Act read with Section 27 of th e CRPF Rules, the power to dismiss a member of the CRPF, following his convictio n and imposition of sentence of imprisonment, is a discretionary power, which ha s been made explicit by the use of the word, ’may’, which appears in Section 12 of the CRPF Act. The Court also pointed out that Section 12 of the CRPF Act rea d with Rule 24 of the CRPF Rules do not make it mandatory to impose punishment o f dismissal from service and, hence, the exercise of power, in this regard, is h edged by the requirement of due consideration of the relevant facts. In paragra ph 11 of Shivanand Mishra’s case (supra), the Court observed, (cid:28) The need to main tain discipline in a highly disciplined CRPF and impermissible deviations from t he conduct expected are indeed relevant circumstances, but there are other relev ant circumstances, which must go into the decision-making process. What is the previous conduct of the petitioner ? Whether in the nearly two decades of servi ce rendered, the petitioner had ever deviated from the conduct expected ? Wheth er the petitioner is a person who has a chance of reforming himself and coming t o the mainstream, if he is not to be dismissed from service ? Whether deviation that had occurred had occasioned remorse and repentance in the wrong doer? The se some of the other relevant circumstances. The list can by no means be exhaus tive. A fair decision-making process is one where all such relevant circumstanc es are taken into account. The decision-making process in the present case, by application of the aforesaid standards, would fail and, therefore, the action ta ken against the petitioner has to be considered legally fragile requiring interf erence at the hands of the Court. (Emphasis is supplied) On receiving back the proceedings on remand, the Commandant, 60th Battal (vii) ion, CRPF, passed an order, on 06.08.2008, dismissing, once again, the petitione r from service w.e.f. 04.12.2000 (afternoon) under the provisions of sub-Section (1) of Section 12 of the CRPF Act. Notwithstanding, however, the dismissal of the petitioner, the Commandan (viii) t allowed the petitioner to draw pension equal to 2/3rd of his total pension, un der the provisions of Section 41(1) of the Central Civil Services (Pension) Rule s. While passing the said order of dismissal, the Commandant, 60th Battalion, i n the impugned order, dated 06.08.2008, aforementioned, observed as follows: (cid:28)In obedience of the Hon’ble High Court’s Order dated 06.05.2008 and the directi on issued by the commandant (Legal Cell), CRPF Directorate vide W.T. message No. J-II 724/2003 LWP-I dt. 27.06.2008, and after careful perusal of the record, th e undersigned has reached the conclusion that F/No.811330754 C/Gardener M.C. Bar doloi had deserted the CRPF on 21.06.2000 even before he had completed the (cid:28)line Cofinement (cid:29) imposed on him; that his such action tantamounts to breach of disci pline and dereliction of duty for which he deserves an exemplary punishment. If the offence so committed by the accused is overlooked, it will aversely affect the other members of the CRPF. Therefore, the accused is not found to be fit to serve the CRPF since his activities only brought since his activities only brou ght disrepute to the entire CRPF and since it will relay a false image of the CR PF. Considering all the factors, accused F/No.811330754 C/Gardener M.C. Bardolo i is ’dismissed from service’ w.e.f. 04.12.2000 (afternoon) under the provisions of Section 12(1) of the CRPF Act, 1949. However maintaining a soft corner on t he accused, he is allowed to draw pension equivalent to 2/3rd of the total compe nsation pension under provisions of Section 41(1) of the Central Civil Services (Pension) Rules. (cid:29) (Emphasis is supplied) (ix) Contending that the Commandant, 60th Battalion, while considering the qu estion of the punishment to be imposed on the petitioner by virtue of Section 12 of the CRPF Act, did not comply with the directions issued by this Court inasmu ch as the Commandant, 60th Battalion, CRPF, omitted to take into account all the relevant factors, which, in the light of the observations made in the earlier decision of this Court, ought to have taken and, hence, the punishment of dismis sal from service need to be interfered with, the present writ petition has been filed by the petitioner under Article 226 of the Constitution of India, impugnin g only his (petitioner’s) dismissal from service and not his conviction and/or p unishment of imprisonment. 3. Resisting the writ petition, the respondents have contended, inter alia, that in the present case, the impugned order of dismissal, is wholly justified by the facts of the case, the materials on record and the law relevant thereto. 4. I have heard Mr. R. Majumdar, learned counsel for the writ petitioner, a nd Mrs. B. Gogoi, learned Central Government counsel, appearing for the responde nts. 5. While considering the present writ petition, it needs to be noted that w hen the scheme of the CRPF Act is carefully anslysed, it becomes evident that Se ction 9 contains a list of offences, which have been described as more heinous o ffences. For commission of those offences, which are described as more heinous offences, Section 9 prescribes punishments, the punishments being transportation for life for a term of not less than 7 years or with imprisonment for a term, w hich may extend to 14 years, or with fine, which may extend to 3 months’ pay, or with fine to that extent in addition to such sentence of transportation or impr isonment as mentioned hereinbefore. So far as Section 10 is concerned, it (Sect ion 10) catalogues a list of offences, which Section 10 describes as less heinou s offences and prescribes therefor punishment of imprisonment for a term, which may extend to one year or with fine, which may extend to 3 months’ pay or with b oth. 6. Coupled with the above, Section 16 of the CRPF Act vests in the Commanda nt or Assistant Commandant of the CRPF the power of the Magistrate of 1st Class, as prescribed by the Code of Criminal Procedure, to try any of the offences afo In the backdrop of what Section 9 and 10 contains, Section 12 needs, now rementioned. 7. , to be considered. Section 12 is, therefore, reproduced below: (cid:28)12. Place of imprisonment and liability to dismissal on imprisonment- (i) every person sentenced under this Act to imprisonment may be dismissed from the CRPF, and shall further be liable to forfeiture of pay, allowance and any other money s due to him, as well as of any medals and decorations received by him. (2) Every such person shall if he is so dismissed, be imprisoned in the prescrib ed prison, but if he is not also dismissed from the CRPF, he may, if the Court o r the commandant so directs, be confined in the quarter-guard or such other plac e as the Court or the Commandant may consider suitable. (cid:29) 8. A careful reading of sub-Section (1) of Section 12 clearly shows that it is not mandatory to pass an order of dismissal from service consequent to the i mprisonment, which a person may suffer by virtue of the punishments prescribed b y Section 9 and Section 10 of the CRPF Act. 9. To make what have been observed above explicit, it may be pointed out th at Section 9 and 10, as already indicated above, have prescribed punishments, in cluding punishment of imprisonment, and sub-Section (1) of Section 12 provides t hat, when a person has been sentenced to imprisonment, he ’may’ be dismissed fro m CRPF (i.e., CRPF). The use of the word, ’may’, which appears in sub-Section ( 1) of Section 12, makes it abundantly clear that it is not mandatory to impose a sentence of dismissal from service as a corollary to a sentence of imprisonment suffered either under Section 9 or under Section 10. 10. In other words, though Section 12 provides that when a persons suffers t he sentence of imprisonment, he may be dismissed from service; yet the word, ’ma y’, appearing in Section 12(1), gives, undoubtedly, a ’discretion’ to the compet ent authority to determine if, in a given case, a person, who has been sentenced to imprisonment, needs also to be dismissed from service too. Notwithstanding, therefore, a CRPF personnel’s conviction and consequential punishment of impriso nment, he may still not be, in exercise of power under Section 12, dismissed fro m service, if the facts and circumstances of a given case do not warrant his dis missal from service. 11. What crystallizes from the above discussion is that the punishment of di smissal from service, as provided under Section 12, would not, automatically, fo llow, as a corollary, to the sentence of imprisonment as prescribed by Section 9 and Section 10. 12. When the statutory provisions, embodied in Section 12, give, without dou bt, a discretionary power to dismiss a person from service, following sentence o f imprisonment passed against him by virtue of either Section 9 or Section 10, i t logically follows that dismissal from service, by virtue of the provisions of Section 12(1), must precede either a notice to show cause against the proposed d ismissal or a hearing on the proposed dismissal; or else, the exercise of power of dismissal from service would be nothing, but arbitrary. Speaking more clearly, Section 12(1) warrants that before sentence of di 13. smissal from service is passed by a competent authority, in exercise of power un der Section 12(1), either a notice to show cause against the proposed dismissal be given to the person proposed to be dismissed and his response thereto be disp assionately considered or hearing on the proposed dismissal must take place and, then and then only, the competent authority shall make up its mind as to whethe r the person, who has been sentenced to imprisonment, needs to be dismissed from service. 14. Though not explicit, the requirement of giving an opportunity of showing cause, or hearing, to a person against his proposed dismissal from service is i mperative and must be read embedded in the provisions of Section 12. This would satisfy the principle of natural justice. This Court must point out that it ha s come to be finally established as one of the basic principles, governing inter pretation of statutes, to read into statutory provisions the principles of natur al justice so that the procedural law becomes just, fair and reasonable. Commen cing from the case of Maneka Gandhi vs. Union of India, reported in (1978) 1 SCC 248, the law, unexceptionally established, is that it is not enough to have law , but the law must be just, fair and reasonable and, for this purpose, the princ iple of natural justice ought to be, ordinarily, read into statutory provisionS so that the given statutory provisions become just, fair and reasonable. 15. When such a notice is given, or hearing is held, as indicated hereinbefo re, it would, obviously, give the person, who has been sentenced to imprisonment , an opportunity to place before the competent authority his say as to why he ma y not be dismissed from service. Though this would not take away the competent authority’s power to dismiss the person concerned from service, fulfillment of t his requirement, or compliance with this requirement, would, in turn, obviously require the competent authority to take all the relevant factors into considerat ion before a decision to dismiss an employee of the CRPF is arrived at. 16. It is in the light the above position of law that the observations, made in paragraph 11 of Shivanand Mishra’s case (supra) and the directions given th erein, need to be considered, wherein the Court has pointed out that there are s everal factors, which must go into the decision-making process resulting into th e dismissal from service, namely, what was the previous conduct of the person co ncerned, whether the person concerned had a chance of reforming himself and comi ng to the mainstream if he is not dismissed from service, whether the conduct, w hich led to the punishment of imprisonment is a deviation, which occurred, and w hether the wrong-doer has a feeling of repentance, etc. The relevant observatio ns, appearing in this regard, at para 11 of Shivanand Mishra’s case (Supra), rea d as under: (cid:28)11. The need to maintain discipline in a highly disciplined CRPF and impermiss ible deviations from the conduct expected are indeed relevant circumstances, but there are other relevant circumstances, which must go into the decision-making process. What is the previous conduct of the petitioner? Whether in the nearly two decades of service rendered, the petitioner had ever deviated from the cond uct expected? Whether the petitioner is a person, who has a chance of reforming himself and coming to the mainstream, if he is not to be dismissed from service ? Whether deviation that had occurred had occasioned remorse and repentance in the wrong-doer ? These are some of the other relevant circumstances. The list can by no means be exhaustive. A fair decision-making process is one where all such relevant circumstances are taken into account. The decision-making proces s in the present case, by application of the aforesaid standards, would fail and , therefore, the action taken against the petitioner has to be considered legall y fragile requiring interference at the hands of the court. (cid:29) 17. It has been pointed out, on behalf of respondents, that while making the impugned order, dated 06.08.2008, dismissing thereby the petitioner from servic e, the Commandant has noted that if the offence, committed by the accused-petiti oner, is overlooked, it would adversely affect the other members of the CRPF. Th is was, according Ms. Gogoi, learned Counsel for the respondents, an extremely i mportant and relevant factor and it is because of the fact that the Commandant h ad come to a considered conclusion that the petitioner’s dismissal was necessary in order to ensure discipline in the CRPF and, hence, the impugned order of the petitioner’s dismissal from service may not be interfered with. 18. There can be no doubt that it is one of the most relevant factors for c onsideration as to whether letting a person, such as, the accused-petitioner, go away without being dismissed from service, especially when he had happened to h ave deserted the line, while undergoing confinement, will adversely affect the m oral and discipline of the members of the CRPF. In a highly disciplined para-mil itary force, such as, the CRPF, it is the duty of the competent authority to tak e into account as to whether leniency, in not according punishment of dismissal from service, would have an adverse impact on the conduct and moral of the membe rs of the CRPF ? No wonder, therefore, that the Supreme Court, in Divisional Pe rsonal Officer, Southern Railways vs. T. R. Chellappan, reported in (1976) 3 SCC 190, has, while dealing with the case of a railway servant, as regards impositi on of penalty by the Railways following conviction under a criminal charge, has observed that the imposition of penalty, on a railway servant, following his con viction on a criminal charge, is not automatic. 19. ovisions, embodied in Clause 14 of the relevant Rules, observed as under: (cid:28)Clause (i) of Rule 14 of the Rules of 1968, which is relevant for consideration , read as follows: (cid:28)Notwithstanding anything contained in Rules 9 to 13: (1) where any penalty is imposed on a railway servant on the ground of conduct w hich has led to his conviction on a criminal charge, the disciplinary authority may consider the circumstances of the case and make such orders thereon as it de ems fit. (cid:29) In T. R. Chellappan (supra), the Supreme Court, considering the penal pr (Emphasis is added) 20. Considering the fact that consequent to the conviction of a railway serv ant on a criminal charge, sub-Rule (1) of Rule 14 lays down that the disciplinar y authority ’may’ consider the circumstances of the case and make such orders th ereon as it deems fit, the Supreme Court pointed out, in T. R. Chellappan (supra ), that the imposition of penalty, on a railway servant, who has been convicted on a criminal charge, was not automatic. 21. Referring to Article 311(2), the Supreme Court pointed out that the prov iso (a) to Article 311(2) was merely an enabling proviso and did not enjoin or m ade it mandatory, on the part of the disciplinary authority, to pass order of di smissal/removal from service or reduction in rank. The moment an employee is co nvicted, imposition of punishment is left completely to the discretion of the di sciplinary authority. The Supreme Court has also pointed out, in T. R. Chellapp an (supra), that various factors, which are relevant, are required to be conside red, while deciding the question of imposition of penalty following conviction o f a railway servant on a criminal charge. The Supreme Court, eventually, held, in T. R. Chellappan (supra), as under: (cid:28)The disciplinary authority has the undoubted power after hearing the delinquent employee and considering the circumstances of the case to inflict any major pen alty on the delinquent employee without any further departmental inquiry if the authority is of the opinion that the employee has been guilty of a serious offen ce involving moral turpitude and, therefore, it is not desirable or conducive in the interests of administration to retain such a person in service. (cid:29) 22. What crystallizes from the above submission is that though the factors, relevant for the purpose of considering CRPF personnel’s case fit for dismissal from service, may be present in the present case, the fact of the matter remains that no factor could have been taken into consideration without according, as p ointed out above, an opportunity of showing cause or hearing to the petitioner o n the proposed punishment, when it is entirely in the realm of discretion for th e competent authority to dismiss or not to dismiss a person from service consequ ent upon his being sentenced to suffer imprisonment following his conviction eit her under Section 8 or under Section 9 of the CRPF Act. Because of the admitted position as well as the revelation from records 23. , it becomes clear that the petitioner, in the present case, had not been heard on the question of sentence of dismissal from service, which was proposed to be passed against him, consequent upon his being sentenced to imprisonment. The pu nishment of the petitioner’s dismissal from service cannot, therefore, be sustai ned. As the requirement of hearing the petitioner, on the question of sentence, before the impugned order, dated 06.08.2008, was passed (dismissing the petitio ner from service), remained unfulfilled, this Court finds no option but to inter fere with the impugned order, dated 06.08.2008, and issue direction necessary fo r a just decision of the case. 24. Though, referring to Section 465 CrPC, the learned Central Government co unsel has submitted that the omission to hear a person on the sentence to be pas sed against him is an irregularity, which is curable by an appellate or revision al authority, what needs to be borne in mind is that a High Court, while exercis ing power under Article 226 of the Constitution of India, does not sit over the punishment imposed, on a member of the CRPF, as an appellate or revisional autho rity. How far a High Court can interfere, while exercising powers under Artic 25. le 226, in matters of penalty imposed by a disciplinary authority, was considere d in B. C. Chaturvedi v. Union of India and others, reported in (1995) 6 SCC 749 , and replied as follows :- \17. The next question is whether the tribunal was justified in interfering with the punishment imposed by the disciplinary authority. A Constitution Bench of t his Court in state of Orissa v. Bidyabhusan Mohapatra held that having regard to the gravity of the established misconduct,, the punishing authority had the pow er and jurisdiction to impose punishment. The penalty was not open to review by the High Court under Article 226. If the High Court had a finding that there was some evidence to reach the conclusion, it became inaccessible. The order of the Governor who had jurisdiction and unrestricted power to determine the appropria te punishment was final. The High Court had no jurisdiction direct the governor to review the penalty. It was further held that if the order was supported on an y finding as to substantial misconduct for which punishment \can lawfully be imp osed\, it was not for the Court to consider whether that ground alone would have weighed with the authority in dismissing the public servant. The court had no j urisdiction, if the findings prima facie made out a case of misconduct, to direc t the Governor to reconsider the order of penalty. This view was reiterated in U nion of India v. Sardar Bahadur. It is true that in Bhagat Ram v. State of H. P. a Bench of two Judges of this Court, while holding that the High Court did not function as a court of appeal, concluded that when the finding was utterly perve rse, the High court could always interfere with the same. In that case, the find ing was that the appellant was to supervise felling of the trees which were not hammer marked. The Government had recovered from the contractor the loss cause t o it by illicit feeling of trees. Under those circumstances, this Court held tha t the finding of guilt was perverse and unsupported by evidence. The ratio, ther efore, is not an authority to conclude that in every case of court/tribunal is e mpowered to interfere with the punishment imposed by the disciplinary authority. In Rangasswami v. State of T. N. a bench of three Judges of this Court, while c onsidering the power to interfere with the order of punishment, held that this C ourt, while exercising the jurisdiction under Article 136 of the Constitution, i s empowered to alter or interfere with the penalty; and the Tribunal had no powe r to substitute its own discretion for that of the authority. It would be seen t hat this court did not appear to have intended to lay down that in no case, the High Court/tribunal has the power to alter the penalty imposed by the disciplina ry or the appellate authority. The controversy was again canvassed in State Bank of India case where the Court elaborately reviewed the case law on the scope of judicial review and powers of the Tribunal in disciplinary matters and nature o f punishment. On the fects in that case, since the appellate authority had not a dverted to the relevant facts, it was remitted to the appellate authority to imp ose appropriate punishment. From what has been observed and laid down in B. C. Chaturvedi (supra), 26. it clearly follows that after considering a catena of authorities, what the Supr eme Court held was that the disciplinary authority, and, on appeal, the appellat e authority, being fact-finding authorities, have exclusive power to consider th e evidence with a view to maintain discipline. They are the ones vested with the discretion to impose appropriate punishment keeping in view the magnitude or gr avity of the misconduct. The High Court/tribunal, while exercising the power of judicial review, cannot, ordinarily, substitute its own conclusion on penalty an d impose some other penalty. If the punishment imposed by the disciplinary autho rity or the appellate authority shocks the conscience of the High Court/tribunal , it would appropriately mould the relief by either directing the disciplinary/a ppellde authority to reconsider the penalty imposed or, to shorten the litigatio n, it may itself, in exceptional and rare cases, impose appropriate punishment w ith cogent reasons in support thereof 27. From what has been observed and laid down in B. C. Chaturvedi (supra), it clearly follows that after considering a catena of authorities, what the Supr eme Court held was that the disciplinary authority, and, on appeal, the appellat e authority, being fact-finding authorities, have exclusive power to consider th e evidence with a view to maintain discipline. They are the ones vested with the discretion to impose appropriate punishment keeping in view the magnitude or gr avity of the misconduct. The High Court/tribunal, while exercising the power of judicial review, cannot, ordinarily, substitute its own conclusion on penalty an d impose some other penalty. If the punishment imposed by the disciplinary autho rity or the appellate authority shocks the conscience of the High Court/tribunal , it would appropriately mould the relief by either directing the disciplinary/a ppellate authority to reconsider the penalty imposed or, to shorten the litigati on, it may itself, in exceptional and rare cases, impose appropriate punishment with cogent reasons in support thereof 28. While considering the case of B. C. Chaturvedi (supra), it is also utmos t importance to bear in mind that in the matter of judicial review of administra tive action imposing penalty, the Supreme Court enjoys, under Article 142 , far wider powers than the high Courts inasmuch as Article 142 empowers the Supreme C ourt to do ’complete justice’ in the matter, while no such power exists with the High Court. It may be noted that in B. C. Chaturvedi (supra), Hansaria, J., too k the view that even the High Court and for, that matter, every Court has the po wer to do complete justice. The relevant observations of Hansaria, J., run thus, \23. . . . . . . . I would say that power to do complete justice also inheres in every court, not to speak of a court of plenary jurisdiction like a; high Court . Of course, this power is not as wide as which this Court has under Article 142 . That, however, is a different matter. \ 29. In the case of Sanchalakshri and another v. Vijay Kumar Raghuvirprasad mehta and another, reported in (1998) 8 SCC 245, the Supreme Court, while taking into consideration the observations, quoted herein above of Hansaria, J. , held as follows :- \8. Learned counsel for respondent 1 relying upon the decision of this Court in bhagat Ram v. State of H. P. submitted that penalty not commensurate with the gr avity of the misconduct has to be considered as violative of Article 14. He furt her submitted that dismissal from service being an economic death, such a severe punishment ought not to have been imposed upon respondent 1 when by his said ac ts, he was not to gain any additional financial benefit. Whether he was likely t o gain anything or not thereby did not have much bearing on the gravity of the m isconduct. The acts committed by him constituted not only a serious misconduct b ut also a serious criminal offence. Learned counsel also relied ; upon the earli er quoted observations made by Hansaria, j. , in B. C. Chaturvedi case. Really, they have no relevance to the facts of this case. This is not a case where the H igh Court/tribunal found any difficulty in granting an appropriate relief to res pondent 1 because of some technicality of rules or procedure even though justice demanded it. Moreover, the said observations are no more than an expression of a personal view. What is to be noted is mat Hansaria. J. . agreed with what the other two learned Judges held as regards the powers of the High Court/ tribunal to interfere with the order of penalty passed by the disciplinary authority. The refore, it would not be correct to say that this Court in b. C. Chaturvedi case has accepted the view that the High Court/tribunals possess the same power which this Court has under Article 142 of the Constitution for doing complete justice , even in the absence of such a provision. \ (Emphasis is supplied.) 30. The above observations made in Sanchalakshri (supra) clearly show that t he power of the High Court under Article 226 of the Constitution is not as wide as that of the Supreme Court under Article 142 of the constitution inasmuch as A rticle 142 empowers the Supreme Court to do complete justice between the parties . With this limitation, one has to consider the present writ petition. While und er Article 142, the Supreme Court could have and can, indeed, interfere with a p enalty for doing complete justice, the High court can interfere with the penalty only if the same is irrational, biased, perverse, shocks the conscience of the Court and/or in defiance of logic. Interference on compassion by high Court, in matters of penalty, is not permissible. While considering as to how far a High court, while acting under Articl 31. e 226, interfere with the penalty imposed by a disciplinary authority, what the High Court basically decides is the \proportionality\ of the penalty imposed by a disciplinary authority. The power of judicial review by High Court under Artic le 226 in matters of administrative action imposing penalty is somewhat circumsc ribed. The concept of proportionality has been dealt with in Union of India and another vs. G. Ganayutham, reported in (1997) 7 SCC 463, wherein, while dealing with the concept of \proportionality\, the Supreme court observed as follows :- \10. The point is whether judicial review powers in administrative law permit th e High court or the Administrative Tribunal to apply the principle of \proportio nality\? 11. Before we refer to the rulings of this Court on the question of proportional ity\ in the administrative law sphere, we shall refer to the leading cases in En gland on the question of judicial review of administrative action. The Wednesbur y case (1948) 12. This case is treated as laying down various basic principles relating to jud icial review of administrative or statutory discretion. Before summarising the s ubstance of the principles laid down therein we shall refer to the passagte from the judgment of Lord Greene in Associated Provincial Picture Houses Ltd. v Wedn esbury Corpn. (KB at p. 229\ All ER p. 682). It reads as follows: \. . . It is true that discretion must be exercised reasonably. Now what does that mean? Law yers familiar with the phraseology used in relation to exercise of statutory dis cretions often use the word ’unreasonable’ in a rather comprehensive sense. It h as frequently been used and is frequently used as a general description of the t hings 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 attentio n to the matters which he is bound to consider. He must exclude from his conside ration matters which are irrelevant to what he has to consider. If he does not o bey those rules, he may truly be said, and often is said, to be acting ’unreason ably’. 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, it i s 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 thing ru n into one another. Lord Greene also observed (KB p 230 : All erp. 683), \. . . it must be proved t o 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 o f the correctness of one view over another. \ (Emphasis supplied) Therefore, to arrive at a decision on \reasonableness\ the court has to find out if the administrator has left out relevant factors or taken into account irrele vant factors. The decision of the administrator must have been within the four c orners of the law, and not one which no sensible person could have reasonably ar rived at, having regard to the above principles, and must have been a bona fide one. The decision could be one of many choices open to the authority but it was for that authority to decide upon the choice and not for the Court to substitute its view. The CCSU case (1985) and the expectation of future adoption of propor tionality. 13. The principles of judicial review of administrative action were further summ arized in 1985 by Lord Diplock in Council of Civil service Unions v Minister for Civil Service as illegality, procedural impropriety and irrationality. He said more grounds could in future becomes available, including the doctrine of propor tionality which was a principle followed by certain other members of the Europea n economic Community. Lord Diplock observed in that case as follows: . (cid:28). . Judi cial 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 convenie ntly classify under three heads the grounds on which administrative action is su bject to control by judicial ’irrationality and the third ’procedural impropriet y. That is not to say that further development on a case-by-case basis may not i n course of time add further grounds. I have in mind particularly the possible a doption in the future of the principle of proportionality’ which is recognised i n the administrative law of several of our fellow members of the European Econom ic community. (cid:29) Lord Diplock explained \irrationality\ as follows :\by ’irrationality I mean wha t can by now be succinctly as ’wednesbury unreasonableness’. It applies to a dec ision which is so outrageous in its defiance of logic or of accepted moral stand ards that no sensible person who had applied his mind to the question to be deci ded could have arrived at it. \ (Emphasis supplied) 14. In other words, to characterise a decision of the administrator as irrationa l’ the Court has to hold, on material, that it is a decision \so outrageous\ as to be in total defiance of logic or moral standards. Adoption of \proportionalit y\ into administrative law was left for the future. \ 32. What role the Courts/tribunals perform, in India, in the field of judic ial review of administrative action in matters not involving fundamental freedom , has been succinctly described, in Ganayutham (supra), as follows: \27. We are of the view that even in our country - in cases not involving fundam ental freedoms - the role of our courts/tribunals in administrative law is purel y secondary and while applying Wednesbury and CCSU principles to test the validi ty of executive action or of administrative action taken in exercise of statutor y powers, the courts and tribunals in our country can only go into the matter, a s a secondary reviewing court to find out if the executive or the administrator in their primary roles have arrived at a reasonable decision on the material bef ore them in the light of wednesbury and CCSU tests. The choice of the options av ailable is for the authority; the court/tribunal cannot substitute its view as t o what is reasonable. \ (Emphasis is added) 33. In the case of Union of India v. G. Ganayutham, reported in (1997) 7 SC C 463, the position of proportionality, in the realmof administrative law, has b een summed up thus: \The current position of proportionality in administrative law in England and In dia can be summarised as follows: (1) To judge the validity of any administrativ e order or statutory discretion, normally the Wednesbury test is to be applied t o find out if the decision was illegal or suffered from procedural improprieties or was one which no sensible decision-maker could, on the material before him a nd within the framework of the law, have arrived at The Court would consider whe ther relevant matters had not been taken into account or whether irrelevant matt ers had been taken into account or whether the action was not bona fide. The Cou rt would also consider whether the decision was absurd or perverse. The Court wo uld not ever go into the correctness of the choice made by the administrator amo ngst the various alternatives open to him. Nor could the Court substitute its de cision to that of the administrator. This is the wednesbury test. (2) The Court would not interfere with the administrator’s decision unless it was illegal or s uffered from procedural impropriety or was irrational - in the sense that it was in outrageous defiance of logic or moral standards. The possibility of other te sts, including proportionality being brought into English administrative law in future is not ruled out. These are the CCSU principles. 3 (a) *** **** **** 3 (b ) **** **** **** (4) (a) The position in our country, in administrative law, whe re no fundamental freedoms as aforesaid are involved, is that the courts/tribuna ls will only play a secondary role while the primary judgment as to reasonablene ss will remain with the executive or administrative authority. The secondary jud gment of the court is to be based on wednesbury and CCSU principles as stated by Lord Greene and Lord Diplock respectively to find if the executive or administr ative authority has reasonably arrived at his decision as the primary authority. (4) (b) Whether in the case of administrative or executive action affecting fun damental freedoms, the courts in our country will apply the principle of \propor tionality\ and assume a primary role, is left open, to be decided in an appropri ate case where such action is alleged to offend fundamental freedoms. It will be then necessary to decide whether courts will have a primary role only if the fr eedoms under Articles 19, 21 etc. are involved and not for Article 14. \ 34. How far Wednesbury and CCSU tests apply, in India, in the matter of pun ishment in disciplinary matters, the Court, in G Ganayutham (supra), laid down a s follows: \33. In Ranjit Thakur this Court interfered with the punishment only after comin g to the conclusion that the punishment was in outrageous defiance of logic and was shocking. It was also described as perverse and irrational. In other words, this Court felt that, on facts, wednesbury and CCSU tests were satisfied. In ano ther case, in B. C. Chaturvedi v. Union of india a three-judges Bench said the s ame tiling ; as follows : (SCC p 762. para 18)\ 18. . . . The High Court/tribunal, while exercising the power of judicial review , cannot normally substitute its own conclusion on penalty and impose some other penalty. If the punishment imposed by the disciplinary authority or the appella te authority shocks the conscience of the High Court/tribunal, it would appropri ately mould the relief, either penalty imposed, or to shorten the litigation, it may itself, in exceptional and rare cases, impose appropriate punishment with c ogent reasons in support thereof. \ similar view was taken in Indian Oil Corpn. Ltd. v. Ashok Kumar Arora that the Court will not intervene unless the punishmen t is wholly disproportionate. 34. In such a situation, unless the court/ tribuna l opines in its secondary role, that the administrator was, on the material befo re him, irrational, according to Wednesbury or CCSU norms, the punishment cannot be quashed. Even then, the matter has to be remitted back to the appropriate au thority for reconsideration. It is only in very rate cases as pointed out in b. C. Chaturvedi case that the Court might - to shorten litigation - think os subst ituting its own view as to the quantum of punishment in the place of the punishm ent awarded by the competent authority. (In B. C. Chaturvedi and other case ther ein it has however been made clear that the power of this Court under Article 13 6 is different.)\ 35. What is of immense importance to note, now is that in the case at hand there can be challenge to the imposition of penalty on ground of discrimination or on the ground of arbitrariness. If more than one person face a disciplinary p roceeding and the penalties handed over are drastically different from each othe r, then, the question of discrimination arises and white considering whether suc h a discrimination needs to be interfered with, the High Court’s role is of prim ary reviewing authority. However, if the challenge to the quantum of penalty is not on the ground of discrimination, but on the ground of arbitrariness, then, t he role of the Court will be that of a secondary reviewing authority. When the r ole of the Court is secondary in nature, then, the tests of reasonableness as pr opounded in wednesbury and CCSU cases would be applied. This aspect of the matte r can be clarified by referring to the case of Om Kumar and others v. Union of I ndia, reported in (2001) 2 SCC 386, wherein it has been observed and held as fol lows:- \66. It is clear from the above discussion that in India where administrative ac tion is challenged under Article 14 as being discriminatory, equals are treated unequally or unequals are treated equally, the question is for the Constitutiona l Courts as primary reviewing courts to consider correctness of the level of dis crimination applied and whether it is excessive and whether it has a nexus with the objective intended to be achieved by the administrator. Here the court deal with the merits of the balancing action of the administrator and is, in essence, applying \proportionality\ and is a primary reviewing authority. 67. But where an administrative action is challenged as \arbitrary\ under Articl e 14 on the basis of Royappa (as in cases where punishments in disciplinary case s are challenged), the question will be whether administrative order is \rationa l\ or \reasonable\ and the test then is the wednesbury test. The courts would th en be confined only to a secondary role and will only have to see whether the ad ministrator has done well in his primary role, whether he has acted illegally or has omitted relevant facts from consideration or has taken irrelevant factors i nto consideration or whether his view i. e. one which no reasonable person could have taken. If his action does not satisfy these rules, it is to be treated as arbitrary. (In GB. Mahajan v. Jalgaon municipal Council (SCC at p. III)Venkatach aliah, J. (as he then was) pointed out that \reasonableness\ of the administrato r under Article 14 in the context of administrative law has to be judged from th e stand point of wednesbury rules. In Tata Cellular v Union of india (SCC at pp 679-80), Indian Express newspapers Bombay (P) Ltd. v Union of India (SCC at p/ 6 91), Supreme Court Employees’ welfare Assn. v. Union of India (SCC at p. 307)and U. P. Financial Corpn. v. Gem Cap (India) (P)Ltd. (SCC at p. 307) while judging whether the administrative action is \arbitrary\ under Article 14 (i. e. otherw ise then being discriminatory) this court has confined itself to a Wednesbury re view always. 36. What follows from a careful reading of the above observations made in O m Kumar (supra) is that when an administrative decision relating to punishment i n disciplinary cases is questioned as \arbitrary\ under Article 14, the Court is confined to Wednesbury principles as a secondary reviewing authority. The court will not, in such a case, apply the concept of proportionality as a primary rev iewing court, because no issue of fundamental freedoms nor of discrimination und er article 14 arises in such a context. If the court, on reviewing the question of punishment, is satisfied that Wednesbury principles are violated, it shall, o rdinarily, remit the matter to the administrator for a fresh decision as to the quantum of punishment and it is only in rare cases, where there has been long de lay for the time taken by the disciplinary proceedings and for the time taken in the courts, can the court substitute its own view as to the quantum of punishme nt. 37. In short, when the role of the Court is secondary, the Court will, norma lly, remit the matter to the administrator for a fresh decision on the quantum o f punishment and it is in rare cases that the court will substitute its own view s on the question of quantum of punishment, the basic test being that if the aut hority concerned has taken into consideration a fact, which was iirelevant in de termining the question of penalty, then, interference is possible and, similarly , if the authority concerned, while determining the quantum of penalty, has not taken into consideration a relevant fact, them, too interference is permissible. If the authority concerned has not taken into account any irrelevant fact and h as not omitted to take into account any relevant fact, then, interference is not possible unless the penalty imposed is biased. In other words, if none of the s aid two factors exists in a given case and the penalty imposed is also not biase d, interference may not be possible, particularly when, in the given set of fact s, the administrator has several choices of punishments and he chooses to adopt one of such choices. For the Supreme Court, however, the scope is wider inasmuch as Article 142 empowers the Supreme court, as indicated in BC Chaturvedi (supra ), \to do complete justice\; whereas no such power is available to the High Cour ts. However, even when the High Court takes the view that the punishment imposed is disproportionate to misconduct, it is necessary for the High court to assign reasons. In the absence of reasons, there can be no interference with the penal ty imposed, for, such interference would be nothing but arbitrary. Reference may be made to Depot Manager, APSRTC v. P. P. Basga and another (AIR 1999 SCW 4753) . What, thus, crystallizes from the above discussion is that while consid 38. ering the question of \proportionality\ of punishment imposed by an administrati ve authority, the power of judicial review is basically confined to the review o f the decision-making process. If the decision has not been reached without any basis or on the basis of the materials on record, such a finding will not be, or dinarily, interfered with. If there are two views possible in a given set of fac ts and the administrator has adopted one of such views, the High court will not substitute its own view in the place of the view of the administrator. When a fi nding of guilt is found to be correct, then, the penalty shall not be, normally, interfered with unless the sentence or penalty imposed is shockingly disproport ionate to the nature and gravity of the misconduct or so irrational that no rati onal mind will accept the same or if the penalty is biased or perverse, i. e. wh olly contrary to the materials on record. In the case at hand, there is no alleg ation of basis against the respondent No. 4 nor is there anything discernible fr om the materials on record to indicate that the penalty has been imposed out of any bias. What is, therefore, required to be determined is if the penalty is dis proportionate to the nature and gravity of the misconduct? Before, however, the question as to whether the punishment of dismissal 39. from service is disproportionate to the nature and gravity of the criminal charg e and other relevant factors, governing imposition of punishment of dismissal fr om service, is examined by this Court in exercise of its powers under Article 22 6 of the Constitution of India, the fact of the matter remains that this Court, as already pointed out above, has already held that punishment of dismissal from service cannot automatically follow the punishment of imprisonment either under Section 9 or under Section 10 and that a CRPF personnel, who is proposed to be dismissed consequent upon the sentence of imprisonment, passed against him, must be given a hearing on the proposed sentence of dismissal from service and, then , taking into consideration his response to the proposed punishment of dismissal from service and all other relevant factors, including the ones, which have bee n indicated at paragraph 11 of Shivanand Mishra’s case (supra), that the compete nt authority is required to take a decision on the proposed punishment of dismis sal from service. 40. In the result and for the reasons discussed above, this writ petition pa rtly succeeds. While the impugned order, dated 06.08.2008, is hereby set aside and quashed, it is made clear that the petitioner need not be reinstated in serv ice. The petitioner shall, however, be heard on the sentence of dismissal from service proposed to be imposed on him and the respondent No. 4, namely, Deputy I nspector General of Police, Group Centre, CRPF, Guwahati, shall, then, pass nece ssary order either dismissing or not dismissing the petitioner. Bearing in mind , however, all relevant factors including those, which have been indicated at pa ra 11 of Shivanand Mishra’s case (supra). 41. sposed of. 42. With the above observations and directions, this writ petition stands di No order as to costs.