Proportionality Principle Stressed by Calcutta High Court

In disciplinary proceedings, the complete procedural aspects are dealt in the respective Control and Appeal Rules. The rules prescribed constitute a complete code. The principles of natural justice forms the basic building block of such rules. The Central Civil Services (CCA) Rules is an example of this. The specific rules pertaining to any Nationalised Bank, Railways, or any other PSU contain provisions on similar lines.

It is not uncommon that after the appeal procedure as prescribed in the respective rules, Writ Petitions are filed before the High Court under Art 226 of the Constitution to get remedy against the order imposing penalty. During the last month, the Hon’ble Calcutta High Court dealt with one such case in the matter of Sh Basudev Haldar Vs UCO Bank APO No 112/2014 arising out of WP No 755/2011.

The judgment is worth reading as it has made a survey of previous case law on the power of the Writ Court when an administrative order is challenged on one ground or the other. Often the pleas taken by the Petitioner fall under the following categories:

• The principles of natural justice is not followed;
• The enquiry is vitiated due to its conduct by interested person;
• The penalty is very harsh;
• Many times the factual disputes are taken up in the Court;
• Merits of the administrative order.

The law is well settled in the matter of judicial review under the Writ Jurisdiction. The Writ Action is a process of judicial control over the administrative action. The action is intended to see that the basic tenets of law are applied in the matter of taking the action. The process can only make a broad review of the procedure. But no review is possible by the Writ Court about the merits of the case.

The following decisions of the Hon’ble Supreme Court extensively discussed the issue:

1.  B.C. Chaturvedi Vs Union of India and others (1995) 6 SCC 749;
2. Union of India & another Vs G. Ganayutham (1997) 7 SCC 463;
3. Om Kumar and others Vs Union of India in (2001) 2 SCC 386;
4. Coimbatore District Central Co-operative Bank Vs Coimbatore District Central Co-operative Bank Employees Association and another (2007) 4 SC 669;
5. Chairman cum Managing Director, Coal India Limited and another versus Mukul Kumar Choudhuri and others (2009) 15SCC 620;
6. Chennai Metropolitan Water Supply and Sewarage Board versus T.T. Murali Babu (2014) 4 SCC 108.

In the most recent case in the Supreme Court in the matter of Union of India and others versus P. Gunasekaran (2015) 2 SCC 610 the whole law on the judicial review of final order of disciplinary authority has been summarized in the following manner:

 A. The High Court, in a proceeding under Art 226 of the Constitution, has the jurisdiction to see whether:

(i) the enquiry is held by a competent authority;
(ii) the enquiry is held according to the procedure prescribed in that behalf;
(iii) there is no violation of the principles of natural justice in conducting the proceedings;
(iv) the authorities have disabled themselves from reaching a fair conclusion by some considerations extraneous to the evidence on merits of the case;
(v) the authorities have allowed themselves to be influenced by irrelevant or extraneous considerations;
(vi)the conclusion, on the face of it, is so wholly arbitrary and capricious that no reasonable person could ever have arrived at such conclusion;
(vii) the disciplinary authority had erroneously failed to admit material and admissible evidence and had admitted inadmissible evidence which influenced the finding;
(viii) the finding of fact is based on no evidence.

B. Along with the positive aspects, the High Court is not permitted to do the following:

(a) re-appreciate the evidence;
(b) interfere with the conclusions in the enquiry, in case the same has been conducted in accordance with law;
(c) go into the adequacy of evidence;
(d) go into the reliability of the evidence;
(e) interfere, if there be some legal evidence on which findings can be based;
(f) correct the error of fact however grave it may appear to be;
(g) go into the proportionality of punishment unless it shocks its conscience.

Only Point No (g) in Cl B above can hold some point in case of advocates pursuing the appeal case against the final order of a disciplinary authority. Only when the order satisfies the proportionality test the High Court would review the admitted factual matrix. The issue whether the order shocks the conscience is a question of law to be based on admitted facts. In view of this, success in a case which seeks to review an order of penalty by the Disciplinary Authority depends to a great extent on the skill of the Advocate in convincing the High Court that the case falls under the proportionality test. As the proceedings in Central Administrative Tribunal (CAT ) is done on the same principle, the lawyers practicing in CAT may be highly benefited by acquiring the skill of pleading and establishing how one particular order comes within the terms of proportionality test.