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                 [REPORTABLE]

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 8948/2013 (arising out of the SLP (Civil) No. 18271 of 2006)

Deputy Commissioner, KVS & Ors. ….Appellants

Vs.

J.Hussain ….Respondent

J U D G M E N T

A.K.SIKRI,J.

1. Leave granted.

2.   The respondent herein was served with a charge memo  

dated 2/3rd  August 2000 under the provisions of Rule 14 of the  

Central  Civil  Services  (CCA)  Rules,  1965  and  Rule  20  of  the  

Central Civil Services (Conduct) Rules 1964.  Primary allegation  

against him was that he had forcibly entered into the office of  

Principal  of  Kendriya  Vidayala  Sangthan,  Tura  in  the  State  of  

Meghalaya, where he was posted and working as Upper Division  

Clerk.  It was on 24.5.2000 at around 11.30 a.m.   The respondent  

was in a fully drunken state.  -

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The  respondent  in  his  reply  admitted  the  incident,  namely  he  

entered the office of  the Principal  in  that  condition.   However,  

according  to  him,  he  did  not  enter  the  office  of  the  Principal  

forcibly.  The respondent also offered his unconditional apology for  

consumption of alcohol and requested the Disciplinary Authority  

to take a sympathetic view of the matter and pardon him.  The  

Disciplinary  Authority  went  through  the  reply.   Since  the  

respondent  had  admitted  the  charge,  it  was  felt  that  in  view  

thereof,  no  regular  enquiry  was  needed  and  on  the  basis  of  

admission,  the  orders  dated  31st August  2000  were  passed,  

imposing the penalty of ‘removal’  from the service for the said  

misconduct.   Departmental Appeal filed by the respondent was  

also  dismissed  by  the  Appellate  Authority.   The  respondent  

knocked the Judicial Forum challenging both the orders passed by  

Disciplinary as well as Appellate Authority.  He first approached  

the  Central  Administrative  Tribunal.   The  Tribunal,  however,  

dismissed  his  petition.   Against  the  order  of  the  Tribunal,  the  

respondent  filed  Writ  Petition.   This  time  he  succeeded  in  his  

effort inasmuch as by the impugned judgment,  the High Court  

has  found  the  penalty  of  removal  from  service  to  be  

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disproportionate  to  the  nature  and  gravity  of  his  misconduct.  

Thus, -

invoking  the  doctrine  of  proportionality,  the  High  Court  has  

directed  reinstatement  of  the  respondent  into  service  with  

continuity of service only for the purpose of pensionary benefits.  

It is, further, directed that the respondent would not be entitled to  

two annual increments without any cumulative effect and no back  

wages  for  the  intervening  period  shall  be  admissible  to  him.  

According  to  the  High  Court,  the  aforesaid  penalty,  instead  of  

removal,  would  meet  the  ends  of  justice.   It  is  in  these  

circumstances,  the  appellant-school  has  approached  this  Court  

questioning the reasoning and rationale of the direction given by  

the High Court.   

3. In the aforesaid backdrop, the only question to be examined  

in these proceedings is as to whether the penalty of removal from  

service  inflicted  upon  the  respondent  herein  by  the  appellant-

school  offends  the  principle  of  proportionality  i.e.  whether  the  

penalty is disproportionate to the gravity of the misconduct to the  

extent that it  shocks the conscience of the Court and is  to be  

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treated so arbitrary so as to term it as violative of Artice 14 of the  

Constitution?

-

4. The  parties  are  not  at  cudgels  in  so  far  as  facts  are  

concerned and in such a scenario we have to examine the nature  

of  misconduct  imputed  to  the  respondent  in  the  charge  

memorandum  and  then  apply  the  principle  of  proportionality  

thereto.  The sole article of charge was that the respondent, on  

24th May 2000 in duty hours,  entered forcibly in the Principal’s  

office in duty hours at 11.30 a.m. in fully drunken alcohol state.  

The statement of imputation of the said misconduct/misbehavior  

annexed with the charge sheet as Annexure II reads as under:

“That the said Md. J.Hussain, while functioning  as UDC reported at Kendriya Vidalaya, Tura on  24th May  2000  in  duty  hours  and  entered  forcibly  in  the  Principal’s  Office  at  around  11.30 a.m. in fully drunken alcohol state.  He  was beyond the  control.  It  was  complaint  to  the police beat office Araimile,  New Tura,  by  the Principal vide her letter dated 24.5.2000.  The Police Authority escorted Md.J.Hussain to  the Tura Civil hospital for Medical examination  under Ref.No.Araimile B.H./GDE No.316 dated  

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24.5.2000 as mentioned by in-Charge Araimile  B.H.,  Tura  letter  dated  28.5.2000.  The  consumption  of  alcohol  by  Md.J.Hussain  was  confirmed  by  the  Senior  Medical  &  Health  Officer, Tura Civil Hospital, vide his certificate  TCH Ref. No.E.2806/2000 dated 24.5.2000.

- Thus  Md.J.Hussain,  UDC,  has  committed  a  serious  misconduct  and violated rule  3(1)  (i)  (ii)  &  (iii)  of  CCS  (Conduct)  Rules  1964  as  extended  to  the  employees  of  Kendriya  Vidalaya Sangathan.”

5. As pointed out above in his reply, the respondent accepted  

the charge, though he insisted that it was not a case of forcibly  

entry.  It would also pertinent to add that immediately after the  

incident  police  was  called  and  respondent  was  medically  

examined as well.  The medical examination confirmed that the  

respondent was under the influence of liquor.

6. When the charge proved, as happened in the instance case,  

it  is  the disciplinary authority  with whom lies  the discretion to  

decide  as  to  what  kind  of  punishment  is  to  be  imposed.   Of  

course, this discretion has to be examined objectively keeping in  

mind the nature and gravity of charge.  The Disciplinary Authority  

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is to decide a particular penalty specified in the relevant Rules.  

Host of factors go into the decision making while exercising such  

a discretion which include, apart from the nature and gravity of  

misconduct, past conduct, nature of duties assigned to the -

delinquent,  responsibility  of  duties  assigned  to  the  delinquent,  

previous  penalty,  if  any,  and  the  discipline  required  to  be  

maintained in department or establishment where he works, as  

well as extenuating circumstances, if any exist.  The order of the  

Appellate  Authority  while  having  a  re-look  of  the  case  would,  

obviously, examine as to whether the punishment imposed by the  

Disciplinary  Authority  is  reasonable  or  not.   If  the  Appellate  

Authority is of the opinion that the case warrants lesser penalty, it  

can reduce the penalty so imposed by the Disciplinary Authority.  

Such  a  power  which  vests  with  the  Appellate  Authority  

departmentally  is  ordinarily  not  available  to  the  Court  or  a  

Tribunal.   The  Court  while  undertaking  judicial  review  of  the  

matter  is  not  supposed  to  substitute  its  own  opinion  on  

reappraisal of facts.(See: Union Territory of Dadra & Nagar Haveli  

vs. Gulabhia M.Lad (2010) 5 SCC 775)  In exercise of power of  

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judicial  review,  however,  the  Court  can  interfere  with  the  

punishment imposed when it is found to be totally irrational or is  

outrageous  in  defiance of  logic.   This  limited  scope  of  judicial  

review  is  permissible  and  interference  is  available  only  when  

punishment  is  shockingly  disproportionate,  suggesting  lack  of  

good faith.  Otherwise, merely -

because in the opinion of the Court lesser punishment would have  

been more appropriate, cannot be a ground to interfere with the  

discretion of the departmental authorities.

7. When  the  punishment  is  found  to  be  outrageously  

disproportionate  to  the  nature  of  charge,  principle  of  

proportionality  comes into play.   It  is,  however,  to be borne in  

mind that this principle would be attracted, which is in tune with  

doctrine of Wednesbury Rule of reasonableness, only when in the  

facts  and  circumstances  of  the  case,  penalty  imposed  is  so  

disproportionate  to  the  nature  of  charge  that  it  shocks  the  

conscience of the Court and the Court is forced to believe that it is  

totally  unreasonable  and  arbitrary.   This  principle  of  

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proportionality was propounded by Lord Diplock in Council of Civil  

Service Unions vs. Minister for Civil Service in the following words:

“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  of  the grounds on which administrative action is  subject to control by judicial review. The first  ground I would call -

“illegality”,  the  second  “irrationality”  and  the  third  “procedural  impropriety”.  This  is  not  to  say  that further development on a case by case  basis may not in course of time add further  grounds.  I  have  in  mind  particularly  the  possible  adoption  in  the  future  of  the  principle of proportionality.”

8. Imprimatur to the aforesaid principle was accorded by this  

Court as well,  in  Ranjit Thakur vs. Union of India (1987) 4 SCC  

611.  Speaking for the Court, Justice Venkatachaliah (as he then  

was) emphasizing that “all powers have legal limits” invokes the  

aforesaid doctrine in the following words:

“The  question  of  the  choice  and  quantum  of  punishment  is  within  the  

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jurisdiction and discretion of the court-martial.  But the sentence has to suit the offence and  the  offender.  It  should  not  be  vindictive  or  unduly  harsh.  It  should  not  be  so  disproportionate  to  the  offence  as  to  shock  the  conscience  and  amount  in  itself  to  conclusive evidence of  bias.  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  recognized grounds of judicial review.”

9. To be fair  to the High Court,  we may mention that it  was  

conscious of the narrowed scope of the doctrine of proportionality  

as a tool of judicial review and has stated so while giving lucid  

description of this principle in the impugned judgment.  However,  

we are of the view that it is the application of this principle on the  

facts of this case where the High Court has committed an error  

while  holding that  the punishment  was  shocking and arbitrary.  

Moreover,  while interfering therewith,  the High Court  has itself  

prescribed the punishment which,  according to it,  “would meet  

the ends of justice”,  little realizing that the Court cannot act a  

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disciplinary authority and impose a particular  penalty.   Even in  

those  cases  where  it  is  found  that  the  punishment  is  

disproportionate to the nature of charge, the Court can only refer  

the matter back to the Disciplinary Authority to take appropriate  

view by imposing lesser punishment, rather than directing itself  

the exact nature of penalty in a given case.

10. Here  in  the  given  case,  we  find  that  the  High  Court  has  

totally downplayed the seriousness of misconduct. It was a case  

where the -

respondent employee had gone to the place of work in a fully  

drunken state.  Going to the place of work under the influence of  

alcohol during working hours (it was 11.30 a.m.)  would itself be a  

serious  act  of  misconduct.   What  compounds  the  gravity  of  

delinquency  is  that  the  place  of  work  is  not  any  commercial  

establishment but a school i.e. temple of learning.  The High Court  

has glossed over and trivialized the aforesaid aspect by simply  

stating that the respondent was not a “habitual drunkard” and it  

is not the case of the management that he used to come to the  

school  in  a  drunken  state  “regularly  or  quite  often”.   Even  a  

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singular act of this nature would have serious implications.  There  

is  another  pertinent aspect  also which cannot be lost  sight  of.  

The respondent had barged into the office of the Principal.  As per  

the respondent’s explanation, he had gone to the market and his  

friends  offered  him drinks  which  he  consumed.   It  was  a  new  

experience for  him.   Therefore,  he felt  drowsiness immediately  

after  consumption  of  alcohol  and  while  returning  home,  he  

remembered that he had left some articles in the school premises  

and therefore he had gone to school premises to pick up those left  

out  articles  belonging  to  him.   If  the  respondent  was  feeling  

drowsiness as -

claimed  by  him where  was  the  occasion  for  him to  go  to  the  

school in that condition?  Moreover, if he had left some articles in  

the school premises and had visited the school only to pick up  

those  articles,  what  prompted  him  to  enter  the  office  of  the  

Principal?  There is no explanation of this behavior on the part of  

the respondent  in  his  reply.   It  would,  obviously,  be a  case of  

forcible entry as it is no where pleaded that the Principal asked  

him to  come to  his  room or  he  had gone to  the  room of  the  

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Principal with his permission or for any specific purpose.   

11. Thus, in our view entering the school premises in working  

hours  i.e.  11.30 a.m.  in  an inebriated condition and thereafter  

forcibly  entering  into  the  Principal’s  room  would  constitute  a  

serious misconduct.   Penalty of removal for  such a misconduct  

cannot be treated as disproportionate.  It does not seem to be  

unreasonable and does not shock the conscience of the Court.  

Though it does not appear to be excessive either, but even if it  

were to be so, merely because the Court feels that penalty should  

have been lighter than the one imposed, by itself is not a ground  

to interfere with the discretion of the disciplinary authorities.  The  

-

penalty should not only be excessive but disproportionate as well,  

that too the extent that it shocks the conscience of the Court and  

the Court is forced to find it as totally unreasonable and arbitrary  

thereby offending the provision of Article 14 of the Constitution. It  

is stated at the cost of the repetition that discretion lies with the  

disciplinary/appellate  authority  to  impose  a  particular  penalty  

keeping in  view the nature and gravity  of  charge.   Once,  it  is  

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found that the penalty is not shockingly disproportionate, merely  

because in the opinion of the Court lesser punishment could have  

been more justified, cannot be a reason to interfere with the said  

penalty.   The High Court  has  also  mentioned in  the impugned  

order that the respondent is a married man with family consisting  

of number of dependents and is suffering hardship because of the  

said “economic capital  punishment”.   However, such mitigating  

circumstances  are  to  be  looked  into  by  the  departmental  

authorities.  It was not even pleaded before them and is an after  

effect  of  the  penalty.  In  all  cases  dealing  with  the  penalty  of  

removal,  dismissal  or  compulsory  retirements,  hardship  would  

result.  That would not mean that in a given case punishment of  

removal can be discarded by the Court.  That cannot a ground for  

the Court to interdict with the penalty.  -

This is specifically held by this Court in H.G.E.Trust & Anr. vs. State  

of Karnataka & Ors. (2006) 1 SCC 430 in the following words:  

“A person, when dismissed from service,  is put to a great hardship but that would not  mean  that  a  grave  misconduct  should  go  unpunished.  Although  the  doctrine  of  proportionality  may  be  applicable  in  such  matter,  but  a  punishment  of  dismissal  from  

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service for such a misconduct cannot be said  to be unheard of. Maintenance of discipline of  an institution is equally important. Keeping the  aforementioned  principles  in  view,  we  may  hereinafter  notice  a  few  recent  decisions  of  this Court.”             

12. In  the  present  case,  it  cannot  be  imputed  that  the  

departmental authorities  while imposing the punishment acted in  

a manner which manifests lack of reasonableness or fairness.  In  

Karnataka Bank Ltd. Vs. A.L.Mohan Rao (2006) 1 SCC 63, charge  

against the delinquent employee was  that he had colluded with  

one of the Branch Managers and enabled grant of fictitious loan.  

The High Court interfered with the punishment of dismissal and  

ordered  reinstatement  on  sympathetic  ground  even  when  he  

found misconduct was proved.  This Court reversed the judgment  

of  the High Court.   Repeatedly  this  Court  has  emphasized the  

courts -

should  not  be  guided  by  misplaced  sympathy  or  continuity  

ground,  as  a  factor  in  judicial  review  while  examining  the  

quantum of punishment.

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13. We would like to refer the case of the  Ex-Constable Ramvir  

Singh vs.  Union of  India  & Ors. (2009)  3  SCC 97as well.   The  

appellant in that case was working as a Constable in the Border  

Security  Force.   Penalty  of  removal  from service  was  imposed  

upon  him on  account  of  his  failure  to  return  to  place  of  duty  

despite  instructions  given  to  him  and  refusal  to  take  food  in  

protest when he was punished and refusal to do pack drill while  

undergoing  rigorous  imprisonment.   This  Court  held  that  the  

punishment  imposed  upon  him  was  not  disproportionate.   In  

Charanjit  Lamba  vs.  Commanding  Officer (2010)  11  SCC  314  

where the appellant  who was holding the rank of  Major in the  

Indian Army had exhibited dishonesty in making a false claim of  

transport  charges of  household  luggage.   It  was  held  that  the  

penalty of dismissal was not disproportionate.  

14. For all these reasons, we find the reasoning of the High Court  

as unacceptable.  We, accordingly allow this appeal, set aside the  

-

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judgment  of  the  High  Court  and  restore  the  decision  of  the  

Tribunal  thereby  upholding  the  punishment  of  removal  of  the  

respondent from service.  No costs.   

……..……………………………….J. (Sudhansu Jyoti Mukhopadhaya)

………………………………………J. (A.K.Sikri)

  New Delhi, October 4, 2013

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