Delhi High Court
S.V.S. Raghuvanshi vs National Seeds Corporation Ltd. & ... on 7 August, 2013
Author: Valmiki J. Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) No. 2117/1996
% 7th August, 2013
S.V.S. RAGHUVANSHI ......Petitioner
Through: Mr. Mahesh Srivastava, Mr. Ashok
Sharma, Mr. Vaibhav M. Srivastava,
Advocates
VERSUS
NATIONAL SEEDS CORPORATION LTD. & ANR. ...... Respondents
Through: Mr. Sudheer Kulshreshtha, Advocate
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
1. By this writ petition, the petitioner impugns the orders passed by the
departmental authorities dated 18.1.1993 and 22.6.1994. By the impugned
orders penalty of removal from services has been imposed upon the
petitioner.
2. The only ground urged by the learned counsel for the petitioner is that
the impugned orders are hit by the doctrine of proportionality. It is argued
that because of the extreme punishment imposed of removal of services for
the alleged loss of Rs. 420/-, the entire service record of the petitioner has
been wiped out, and the petitioner therefore will not be able to get his
provident fund or gratuity or other benefits. What is argued is that petitioner
in a case like the present should only have been given a lesser penalty of
compulsory retirement because petitioner had an unblemished service
record with the respondent No. 2/employer for about 16 years before the
chargesheet was issued against him. Petitioner was employed with the
respondent No. 2 in 1963 and the chargesheet which was issued in this case
is dated 27.4.1978.
3. Reliance is placed by the petitioner upon the judgments of the
Supreme Court in the cases of State of M.P. and Ors. Vs. Hazarilal, (2008)
3 SCC 273, Sheel Kumar Roy Vs. Secretary, Ministry of Defence & Ors.,
2007 (12) SCC 462, Mavji C. Lakum Vs. Central Bank of India, (2008) 12
SCC 726, Ved Prakash Gupta Vs. Delton Cable India (P) Ltd., (1984) 2
SCC 569 and U.P. State Road Transport Corporation and Ors. Vs. Shivaji,
(2006) 13 SCC 637 to urge application of the doctrine of proportionality for
reducing the penalty imposed.
4. In the case of State of M.P. and Ors. Vs. Hazarilal (supra), paras 11
to 13 are relied upon and which read as under:
11. Furthermore the legal parameters of judicial review has
undergone a change. Wednesbury principle of unreasonableness has
been replaced by the doctrine of proportionality. [See : Indian
Airlines Ltd. v. Prabha D. Kanan (2006) 11 SCC 67 : (2007) 1 SCC
(L&S) 359, State of U.P. v. Sheo Shanker Lal Srivastava (2006) 3
SCC 276: 2006 SCC (L&S) 521and M.P. Gangadharan v. State of
Kerala (2006) 6 See 162: AIR 2006 SC 2360)
12. At this stage we may also notice the application of the Doctrine
by the United Kingdom House of Lords in Seal (FC)
(Appellant) v. Chief Constable of South Wales Police
(Respondent) [2007] 4 All ER 177; Huang (FC)
(Respondent) v. Secretary of State for the Home Department
(Appellant) and Kashmiri (FC) (Appellant) v.Secretary of State for
the Home Department (Respondent) (Conjoined Appeals) [2007] 4
All ER 15; Tweed (Appellant) v. Parades Commission for Northern
Ireland (Respondents) (Northern Ireland) [2007] 2 All ER
273;Belfast City Council (Appellants) v. Miss Behavin' Limited
(Respondents) (Northern Ireland) [2007] 3 All ER 1007 and R (on
the application of Countryside Alliance and Ors. and Ors.) v. Her
Majesty's Attorney General and Anr.[2007] 3 WLR 922.
13. It is interesting to note that distinguishing between the
traditional grounds of juicial review and the doctrine of
proportionality, Lord Carswell in Tweed (Supra) after referring to
previous decisions and authorities, observed (WLR p.15.para 35)
" 35....'27....The starting point is that there is an overlap
between the traditional grounds of review and the approach of
proportionality. Most cases would be decided in the same way
whichever approach is adopted. But the intensity of review is
somewhat greater under the proportionality approach. Making
due allowance for important structural differences between
various convention rights, which I do not propose to discuss, a
few generalisations are perhaps permissible. I would mention
three concrete differences without suggesting that my statement
is exhaustive. First, the doctrine of proportionality may require
the reviewing court to assess the balance which the decision
maker has struck, not merely whether it is within the range of
rational or reasonable decisions. Secondly, the proportionality
test may go further than the traditional grounds of review
inasmuch as it may require attention to be directed to the
relative weight accorded to interests and considerations. Thirdly,
even the heightened scrutiny test developed in R v.Ministry of
Defence, Ex p Smith [1996] QB 517, 554 is not necessarily
appropriate to the protection of human rights."
5. In the case of Sheel Kumar Roy Vs. Secretary, Ministry of Defence
& Ors. (supra) reliance is placed upon para 17 and which reads as under:
"Fairness and reasonableness in the action of the State
whether in a criminal proceeding or otherwise are the hallmark of
Article 14 of the Constitution of India. The doctrine of
proportionality is one of the grounds on the basis whereof the
power of judicial review could be exercised. It was so held in Ex-
Naik Sardar Singh v. Union of India (1991)3 SCC 213."
6. Para 15 in the case of Kshetra Pal Singh Vs. NCT of Delhi & Ors.
(W.P. (C) 631/1997 decided by this Court on 21.01.2013) reads as under:
"15. In the case of Mavji C. Lakum Vs. Central Bank of
India, (2008) 12 SCC 726, it was held that extreme punishment
of discharge granted on account of absence of certain days of an
employee and who was also found to be argumentative in
nature was violative of doctrine of proportionality and lesser
punishment instead of discharge from service was imposed. In
the case of Ved Prakash Gupta Vs. Delton Cable India (P)
Ltd., (1984) 2 SCC 569, it was held that if a person is held
guilty of abusing some workers and officers of management,
but there was no previous adverse remarks against the
delinquent, the extreme penalty of discharge on the ground of
alleged mis-conduct was held to be disproportionately
excessive and violative of the doctrine of the proportionality.
In the judgment of U.P. State Road Transport Corporation
and Ors. vs. Shivaji, (2006) 13 SCC 637, it was held that
termination of services was not justified if a Driver was held
guilty of misconduct of driving a bus into a barrier, once it was
proved that the incident happened not on account of any
deliberate act but negligence of the Driver."
7. Learned counsel for the respondent No. 2 on the contrary relies upon
the judgment of the Supreme Court in the case of Regional Manager, U.P.
S.R.T.C., Etawah & Ors. vs. Hoti Lal & Anr., 2003 (3) SCC 605 wherein
the Supreme Court held that even where the State only suffers a loss of `
16, yet, punishment of removal of service is justified because in dealing with
public monies there cannot be any lapse.
8. The doctrine of proportionality is now well entrenched in service
jurisprudence. No doubt, Courts would not ordinarily interfere with the
punishment which is imposed by the Disciplinary Authority, however, one
cannot also overlook the fact that the Supreme Court has observed that a
sledgehammer is not required when a nut-cracker will do the job, and
similarly a battle axe is not required where a knife can do the job. Of
course, petitioner has been found guilty of misappropriation of ` 420/-,
however, I may note that petitioner in the enquiry proceedings said that on
account of peak season and rush of work he trusted his junior employee and,
therefore, he himself did not verify the payment vouchers of the workers,
and because of which this loss of ` 420/- took place.
9. In my opinion, I cannot overlook the service of the employee of over
16 years with the respondent No. 2. Of course because of loss of the amount
of ` 420/-, major penalty proceedings can be and were initiated, and a
major penalty imposed, however, even within major penalty proceedings,
there are various major penalties which can be awarded and which need not
be the extreme punishment of removal from services. Each case depends on
its own peculiar facts. No doubt, petitioner has been found guilty of loss of
Rs. 420/- to the organization and the claim that he pocketed the same,
however, one cannot overlook the aspect of rush of work in the peak season.
10. Therefore, in view of the judgments which are relied upon on behalf
of the petitioner, I reduce the punishment in the present case from that of
removal from service of the petitioner to that of compulsory retirement of
the petitioner w.e.f the date of the order of the Disciplinary Authority dated
8.1.1981. I note that though this first order of Disciplinary Authority was set
aside on technical grounds, however, considering all the facts and
circumstances, I am of the opinion that petitioner would stand compulsorily
retired from the respondent No. 2/employer w.e.f 8.1.1981 and the orders
of Departmental Authority imposing the extreme punishment of removal are
set aside. Counsel for the petitioner on instructions from the petitioner
agrees to the imposition of the punishment of compulsory retirement.
11. In view of the above, writ petition is allowed to the limited extent that
the punishment imposed by the Departmental Authority from removal of
service of the petitioner will stand changed to that of compulsory retirement
of the petitioner w.e.f 8.1.1981. If as a result of reducing of punishment to
that of compulsory retirement, petitioner will be in accordance with the rules
entitled to gratuity or other terminal benefits, then, the respondent No. 2
should process the papers of the petitioner within a period of two months
from today and pay such amounts to the petitioner along with interest at 5%
per annum simple from 8.1.1981 till the date of payment.
12. Writ petition is accordingly allowed to the extent as stated above. No
costs.
AUGUST 07, 2013 VALMIKI J. MEHTA, J
godara
