DEPUTY COMMISSIONER, KVS & ORS.versusJ. HUSSAIN

                        [2013] 9 S.C.R. 898


A            DEPUTY COMMISSIONER, KVS & ORS.
                                  v.
                            J. HUSSAIN
                  (Civil Appeal No. 8948 of 2013)
                        OCTOBER 4, 2013
B
          [SUDHANSU JYOTI MUKHOPADHAYA AND
                     A.K.SIKRI, JJ.]

        SERVICE LAW:
c
       Misconduct - Dismissal from service - Appellant, in
  drunken state, forcibly entering into office of Principal - High
  Court substituting the order of dismissal by withholding of two
  increments without cumulative effect - Held: When the charge
0 is proved, it is the disciplinary authority with whom lies the
  discretion to decide as to what kind of punishment is to be
  imposed - If appellate authority is of the opinion that the case
  warrants lesser penalty, it can reduce the penalty imposed by
  Disciplinary Authority - However, such a power is ordinarily
  not available to court! tribunal - Where it is found that
E punishment is disproportionate to the nature of charge, court
  can only refer matter back to disciplinary authority to take
  appropriate view by imposing lesser punishment, rather than
  directing itself the exact nature of penalty -- Judgment of High
  Court is set aside and that of Tribunal restored, upholding the
F punishment of removal of respondent from service.

       Punishment - Judicial review - Held: Court while
  undertaking judicial review of the matter is not supposed to
  substitute its own opinion on reappraisal of facts - In exercise
G of power of judicial review, court can interfere with the
  punishment imposed when it is found to be totally irrational
  or is outrageous in defiance of logic - Entering the school
  premises in working hours in an inebriated condition and
  thereafter forcibly entering into Principal's room would
H                              898
    DEPUTY COMMISSIONER, KVS & ORS. v. J.                899
                 HUSSAIN

constitute a serious misconduct - Penalty of removal for such A
a misconduct cannot be treated as disproportionate -
Constitution of India, 1950 - Art. 14.

     Dismissal of the appellant, an UDC, in a Kendriya
Vidyalaya, was upheld by the Central Administrative
                                                                8
Tribunal, as his misconduct in forcibly entering into the
office of the Principal in drunken state in duty hours was
found proved. However, the High Court, in writ petition,
substituted the punishment by withholding two
increments without cumulative effect.
                                                                c
     In the instant appeal filed by the School, the question
for consideration before the High Court was: whether the
penalty of removal from service inflicted upon the
respondent        by    the      appellant-school       was
"disproportionate to the gravity of the misconduct to the       D
extent that it shocks the conscience of the Court and is
to be treated so arbitrary as to term it as violative of Art.
14 of the Constitution".

    Allowing the appeal, the Court
                                                                E
     HELD: 1.1 When the charge is proved, as happened
in the instant 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 F
and gravity of charge. The disciplinary authority is to
decide a particular penalty specified in the relevant Rules.
Several factors go into the decision making while
exercising such a discretion which include, apart from the
nature and gravity of misconduct, past conduct, nature G
of duties and responsibilities 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 H
    900     SUPREME COURT REPORTS             [2013] 9 S.C.R.


A 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
8 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. In exercise of power of
C judicial review 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
0 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. [Para
  6) [905-C-H; 906-A-B]

E      1.2 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 Wednesbury Rule of reasonableness, only
F 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. [Para 7) [906-C-D]
G       Ranjit Thakur vs. Union of India 1988 ( 1 ) SCR 512   =
    (1987) 4 sec 611 - referred to

        1.3 In the instant case, the High Court has committed
    an error while holding that the punishment was shocking
H
    DEPUTY COMMISSIONER, KVS & ORS. v. J.              901
                 HUSSAIN

and arbitrary. Moreover, while interfering therewith, the A
High Court has itself prescribed the punishment which,
according to it, "would meet the ends of justice", little
realizing that the court cannot act as a disciplinary
authority and impose a particular penalty. Even in those
cases where it is found that the punishment is B
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. [Para 9] [907-E-G]                            c
     1.4 The High Court has totally downplayed the
seriousness of misconduct. It was a case where the
respondent had gone to the place of work in a fully
drunken state, which would itself be a serious act of
misconduct. What compounds the gravity of delinquency D
is that the place of work is not any commercial
establishment but a school where even a singular act of
this nature would have serious implications. Further, the
respondent had barged into the office of the Principal,
which would, obviously, be a case of forcible entry. There E
is no explanation of this behavior on the part of the
respondent in his reply. Penalty of removal for such a
serious     misconduct cannot            be treated       as
disproportionate. It does not seem to be unreasonable and
does not shock the conscience of the court. It does not F
appear to be excessive either. 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. In all cases dealing with the penalty of removal,
dismissal or compulsory retirements, hardship would G
result. That cannot a ground for the court to interdict with
the penalty. Courts should not be guided by misplaced
sympathy· or continuity ground, as a factor in judicial
review while examining the quantum of punishment. [Para
10-12] [907-H; 908-A-H; 909-C-E; 910-C]                       H
    902      SUPREME COURT REPORTS                 (2013] 9 S.C.R.


A        H.G.E. Trust & Anr. vs. State of Karnataka & Ors. 2005
    (5) Suppl. SCR 937 = (2006) 1 SCC 430; Karnataka Bank
    Ltd. Vs. AL.Mohan Rao (2006) 1 SCC 63; Ex-Constable
    Ramvir Singh vs. Union of India & Ors. 2008 (17) SCR 1112
    = (2009) 3 SCC 97; and Charanjit Lamba vs. Commanding
B   Officer2010 (7) SCR 820 = (2010) 11 SCC 314 - relied on.

        1.5 In the instant case, it cannot be imputed that the
    departmental authorities while imposing the punishment
    acted in a manner which manifests lack of
C   reasonableness or fairness. The judgment of the High
    Court is set aside and that of the Tribunal restored,
    upholding the punishment of removal of the respondent
    from service. [Para 12 and 14] [910-A, G]

                          Case Law Reference:
D
          1988 (1) SCR 512           referred to          Para 8
          2005 (5) Suppl. SCR 937 relied on               Para 11
          (2006) 1 sec 63            relied on            Para 12
E         2008 (17) SCR 1112         relied on            Para 13
          2010 (7) SCR 820           relied on            Para 13

        CIVIL APPELLATE JURISDICTION : Civil Appeal No.
    8948 of 2013.
F
        From the Judgment and Order dated 20.04.2006 of the
    High Court of Judicature at Bilaspur (C.G.) in W.P. No. 162 of
    2004.

          S. Rajappa for the Appellant.
G
         M.K. Choudhary, Namita Choudhary, Yudhister Bhardwaj,
    S.K. Verma for the Respondent.

          The Judgment of the Court was delivered by
H
     DEPUTY COMMISSIONER, KVS & ORS. v. J.                     903
                  HUSSAIN

     A.K. SIKRI, J. 1. Leave granted.                                 A
     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
                                                                      8
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.
                                                                      c
      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            D
 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,            E
 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             F
 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         G
 to be 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    H
 would not be entitled to two annual increments without any
        904       SUPREME COURT REPORTS                 [2013] 9 S.C.R.


    A 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
    B of the direction given by the High Court.

1          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
    C 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 treated so arbitrary so as to term it as
      violative of Artice 14 of the Constitution?

    D      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
    E 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
    F         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
    G         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 24.5.2000 as mentioned by in-Charge Araimile B.H.,
              Tura letter dated 28.5.2000. The consumption of alcohol
    H         by Md.J.Hussain was confirmed by the Senior Medical &
     DEPUTY COMMISSIONER, KVS & ORS. v. J.                   905
             HUSSAIN [A.K.SIKRI, J.]

    Health Officer, Tura Civil Hospital, vide his certificate TCH   A
    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
                                                                    8
    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 C
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 0
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 is to decide a particular penalty specified in the
relevant Rules. Host of factors go into the decision making while E
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 F
where he works, as well as extenuating circumstances, if any
exist. The order of the Appellate Authority while having a re-
lock 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 G
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 H
    906       SUPREME COURT REPORTS                   [2013] 9 S.C.R.


A   & Nagar Have/i vs. Gulabhia M.Lad (2010) 5 SCC 775) In
    exercise of power of 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
B   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.
c         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
D   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
    proportionality was propounded by Lord Diplock in Council of
E   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
F         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
G
          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
H   this Court as well, in Ranjit Thakur vs. Union of India (1987)
     DEPUTY COMMISSIONER, KVS & ORS. v. J.                     907
             HUSSAIN [A.K.SIKRI, J.]

4 SCC 611. Speaking for the Court, Justice Venkatachaliah              A
(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 jurisdiction and discretion of the
                                                                   8
     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 C
     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 D'
     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         E
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     F
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 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        G
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        H
     908      SUPREME COURT REPORTS                   [2013) 9 S.C.R.

                      '
A    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
 B   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
 c   often". Even a 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
 0
     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
·E
      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
 F    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 Principal
     with his permission or for any specific purpose.
 G        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
 H   of the Court. Though it does not appear to be excessive either,
     DEPUTY COMMISSIONER, KVS & ORS. v. J.                      909
             HUSSAIN [A.K.SIKRI, J.]
but even if it were to be so, merely because the Court feels that       A
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           B
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 found that the       c
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                  0
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
                                                                        E
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.     F
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             G
     of proportionality may be applicable in such matter, but a
     punishment of dismissal from 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          H
    910       SUPREME COURT REPORTS                [2013] 9 S.C.R.


A         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. AL.Mohan Rao (2006)
B 1 sec 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
C 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.
D      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
E 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
F 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
G Court as unacceptable. We, accordingly allow this appeal, set
  aside the 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.

H R.P.                                             Appeal allowed.