H P THAKORE Vs. STATE OF GUJARAT

JUDGEMENT

(1.) A question of life-or-death-significance relating to service jurisprudence as to whether before imposing the economic death penalty of dismissal or removal from service a disciplinary authority is bound to apply his mind to the three vital considerations namely (1) as regards the nature and magnitude of the established charge (2) as regards the desirability or otherwise of retaining the Government servant in service in the context of the charges found proved against him and (3) as to whether a penalty lesser than the extreme penalty of dismissal or removal would prove adequate and several other questions have surfaced in this petition under Article 226 of the Constitution of India instituted by a Talati-cumMantri who was dismissed from service at the conclusion of a departmental proceeding ... ... . . . [His Lordship after discussing the evidence held that it was abundantly clear that the finding on the point of the guilt of the petitioner in respect of the different charges as also on the point of the extent of the penalty was vitiated by reason of the manifest bias on the part of Mr. Kadia both in respect of the subject matter as also in view of his personal prejudice against the petitioner. His Lordship further observed

(2.) Be it administration of criminal Law or the exercise of disciplinary jurisdiction in departmental proceedings punishment is not and cannot be the end in itself. Punishment for the sake of punishment cannot be the motto. Whilst deliberating upon the jurisprudential dimension the following factors must be considered :

(3.) Again in the present case Rule 7(12)(a) in terms enjoins that the disciplinary authority shall determine the penalty after applying his mind to (i) the record of the enquiry (ii) representation made by the delinquent (iii) the report of the Inquiry Officer and (iv) the advice tendered by the Board. The expression determine has been advisedly and purposefully It has great significance. The expression determination has inter alia been defined to mean to give decision or to ascertain precisely in the Concise Oxford Dictionary Fifth Edition. To decide means to give rational judgment after considering the pros and cons of the matter. As the rule in terms enjoins that the disciplinary authority is bound to apply his mind to the aforesaid four aspects and to determine the question of penalty the order imposing the penalty must show that there has been application of mind to the aforesaid aspects and the relevant aspects have entered into consideration in rendering the decision by a process of ratiocination. It is only when the order itself gives a clue to the factors which have weighed with the disciplinary authority in deciding upon the punishment of dismissal that one can say that there has been application of mind. Only then can it be realised that relevant and germane factors (and none others) have entered into the equation. There can be no determination or decision which does not disclose that the plus and minus factors and for and against considerations have been arraigned in the weighing scales. The order must exfacie show why the maximum penalty of dismissal is selected from out of the list of alternatives and why a less serious penalty has been considered to be inadequate. If selecting a maximum penalty and naming it from out of the list of alternative penalties which could have been imposed cannot be arbitrarily done and it cannot be a matter of ipse dixit of the disciplinary authority he has to inform himself of the relevant considerations and to re-assure himself that a particular penalty deserves to be imposed in order to meet the requirements of the situation. It will not be sufficient for him to say in a general value and omnibus manner that having regard to the circumstances of the case the employee concerned deserves to be dismissed. The disciplinary authority was bound to take into consideration the gravity of the charge the nature of its consequences whether the charge warranted an inference as regards his honesty integrity or uprightness whether the fault was such as bad resulted in detriment to the public interest. All these were questions which the disciplinary authority was bound to pose to himself and to answer to his own satisfaction.