VIKRAM SINGH Vs. UNION OF INDIA

JUDGEMENT

(1.) APPELLANT was served with the charge sheet in the month of January,1993 on the ground that he remained willfully absent from duty since October 6, 1992 till March 24, 1993 and flouted the provisions of Section 11 (1) of Central Reserve Police Force Act,1949 (for short `crpf Act' ). Enquiry Officer found the charges proved and the Disciplinary Authority passed the order dated October 3, 1993 dismissing the appellant from service. The appellant against the order of dismissal preferred departmental appeal before DIG, which was dismissed on March 21, 1994. Further appeal was preferred before IG, but it was also dismissed on March 10, 1995. Assailing the said orders the appellant preferred writ petition before learned Single Judge, but the learned Single Judge also dismissed the writ petition. Against these orders that the instant action of filing instant intra Court appeal has been resorted to by the appellant.

(2.) LEARNED counsel for the appellant assailed the impugned finding from various angles and in the alternate canvassed that the punishment imposed on the appellant is disproportionate to the charges levelled against the appellant. Reliance is placed on Vijay Laxmi vs. Indian Red Cross Society [2008 (2) WLC (Raj.) 21], Ramautar Singh vs. State (1998) 9 SCC 666, Sayed Zaheer Hussain vs. Union of India (1999) 9 SCC 86, Bhagat Ram vs. State of HP (1983) 2 SCC 442 and Malkiat Singh vs. State of Punjab (1996) 7 SCC 634.

(3.) IN Union of INdia V. G. Ganayutham (1997) 7 SCC 463, again the Supreme Court considered the aspect of proportionality in administrative law in England and INdia and indicated as under:- (para 31) "31. The current position of proportionality in administrative law in England and INdia can be summarised as follows: (1) To Judge the validity of any administrative order or statutory discretion, normally the Wednesbury (1948)1 KB 223 test is to be applied to find out if the decision was illegal or suffered from procedural improprieties or was one which no sensible decision-maker could, on the material before him and within the framework of the law, have arrived at. The Court would consider whether relevant matters had not been taken into account or whether irrelevant matters had been taken into account or whether the action was not bona fide. The Court would also consider whether the decision was absurd or perverse. The Court would not however go into the correctness of the choice made by the administrator amongst the various alternatives open to him. Nor could the Court substitute its decision to that of the administrator. This is the Wednesbury test. (2) The Court would not interfere with the administrator's decision unless it was illegal or suffered from procedural impropriety or was irrational - in the sense that it as in outrageous defiance of logic or moral standards. The possibility of other tests, including proportionality being brought into English administrative law in future is not ruled out. These are CCSU [1985 AC 374] principles. (3) (a) As per Bugdaycay [1987 AC 514], Brind [ (1991)1 AC 696] and Smith [ (1996)1 All ER 257] as long as the convention is not incorporated into English law, the English Courts merely exercise a secondary judgment to find out if the decision-maker could have, on the material before him, arrived at the primary judgment in the manner he has done. (3) (b) If the Convention is incorporated in England making available the principle of proportionality, then the English Courts will render primary judgment on the validity of the administrative action and find out of the restriction is disproportionate or excessive or is not based upon a fair balancing of the fundamental freedom and the need for the restriction thereupon. 4 (a) The position in our country, in administrative law, where no fundamental freedoms as aforesaid are involved, is that the Courts/ tribunals will only play a secondary role while the primary judgment as to reasonableness will remain with the executive or administrative authority. The secondary judgment of the Court is to be based on Wednesbury and CCSU principles as stated by Lord Greene and Lord Diplock respectively to find if the executive or administrative authority has reasonably arrived at his decision as the primary authority. (4) (b) Whether in the case of administrative or executive action affecting fundamental freedoms, the Courts in our country will apply the principle of `proportionality' and assume a primary role, is left open, to be decided in an appropriate case where such action is alleged to offend fundamental freedoms. It will be then necessary to decide whether the Courts will have a primary role only if the freedoms under Articles 19, 21 etc. are involved and not for Article 14. "