Judgment:
Devi Prasad Singh, J.
1. Heard Shri Amit Bose learned Counsel for the petitioner as well as Shri Shatrughan Choudhary learned Standing Counsel. Question of law involved in the present writ petition is as to whether under Regulation 497 of the U.P. Police Regulations a suspended employee shall be entitled to continue only at his place of posting by residing in police line of the district concerned and cannot be transferred to other place And under what circumstances this Court can interfere with the quantum of punishment awarded by the disciplinary authority Whether the services of an employee can be dismissed on account of unauthorised absence and non-compliance of a transfer order
2. Petitioner was a Police Constable. In the year 1988 he was posted in the 32nd Battalion of PAC at Lucknow. Against the petitioner a First Information Report was lodged on 30.12.1988 on the ground that petitioner had refused to perform patrol duty while posted at Katra Bijan Beg, Police Station Chowk Lucknow. One another allegation against the petitioner was that when platoon commander had made certain enquiry from the petitioner, instead of submitting a reply in a dignified manner he alleged to have misbehaved with the platoon commander and also threatened him for dire consequence. It has been also alleged that petitioner had proceeded on leave 21.11.1988 without sanction and any intimation to the competent authority. A First Information Report was lodged against the petitioner. Proceedings under Section 8 of the U.P. PAC Act was also initiated. Thereafter, the petitioner was suspended by an order dated 31.12.1988. Later on by order dated 17.1.1989 petitioner was transferred from 32nd Battalion PAC Lucknow to 2nd Battalion PAC of District Sitapur by the Deputy Inspector General of PAC Lucknow. The commandant of 32nd Battalion PAC had communicated the order of transfer on 28.1.1989 to his counterpart at Sitapur. Petitioner was relieved in pursuance to transfer order by the commandant of 32nd Battalion, Lucknow on 22.1.1989 to enable him to join at Sitapur. Accordingly the relevant records were sent to Sitapur. The commandant of 2nd Battalion Sitapur had written a letter dated 17.3.1989 to the petitioner to report for duty, which was alleged to be not accepted by the petitioner. The letter was sent by registered post. Under these facts and circumstances and allegations, along with relevant material on record a charge-sheet dated 7.9.1989 was served on the petitioner followed by another supplementary charge-sheet dated 9/14.12.1989. However, petitioner had not submitted any reply to the charge-sheet. The Enquiry Officer had fixed 20.1.1990 as a date for recording of evidence and accordingly the petitioner was informed on 15.1.1990 but he had not turned up. Again by letter dated 21.1.1990 petitioner was called on to participate in inquiry and produce evidence on 15.2.1990 but he had not turned up. Under these facts and circumstances an ex parte inquiry was conducted and thereafter the inquiry officer has submitted his report on 7.4.1990. After receipt of inquiry report a show cause notice dated 9.4.1990 was sent and served on petitioner on 5.5.1990. Petitioner had not submitted any reply to show cause notice. Copy of inquiry report dated 7.4.1990 has been filed as Annexure-2 to the writ petition. After considering the inquiry report the commandant of 2nd Battalion PAC Sitapur (opposite party No, 2) had dismissed the petitioner's services by impugned order dated 17.5.1990, a copy of which has been filed as Annexure-1 to the writ petition.
3. Shri Amit Bose learned Counsel for the petitioner had assailed the impugned order mainly on two grounds; firstly, the commandant 2nd Battalion PAC Sitapur was having no jurisdiction to pass the impugned order of dismissal and secondly, under Regulation 397 of Police Regulation, a suspend employee could not have been transferred to other place and such person shall be entitled to remain at the place where the surety resides.
4. Learned Counsel for the petitioner had submitted that the criminal case registered against the petitioner under the PAC Act had resulted in acquittal by the competent Court on 28.7.1989.
5. While assailing the impugned order petitioner's Counsel had relied upon the judgments of Associated Provincial Picture Houses Limited v. Wednesbury Corporation, (1947) 2 All. E.R. 680 ; Council of Civil Services Union and Ors. v. Minister for the Civil Services, (1984) 3 All. E.R. 935 ; State Bank of India and Ors. v. Samarenda Kishore Endow and Anr., : (1994)ILLJ872SC ; B.C. Chaturvedi v. Union of India, : (1996)ILLJ1231SC ; Union of India v. C. Ganayutham, : (2000)IILLJ648SC ; Om Kumar v. Union of India, (2001) 2 SCC 386 ; Mithilesh Singh v. Union of India, : [2003]2SCR377 ; Regional Manager, U.P.S.R.T.C. v. Hoti Lal and Anr., : (2003)IILLJ267SC ; Chairman and Managing Director, United Commercial Bank and Ors. v. P.C. Kakkar, : (2003)IILLJ181SC ; Dr. Ramesh Chandra Tyagi v. Union of India and Ors., : (1994)IILLJ192SC .
6. Rebutting the submission of learned Counsel for the petitioner, Shri Shatrughan Choudhary, learned Standing Counsel had submitted that the transfer order was never challenged by the petitioner, hence, it attains finality. It has been further submitted by learned Standing Counsel that the commandant 32nd Battalion, Lucknow who had suspended and relieved the petitioner has been not impleaded as a party.
7. Learned Standing Counsel further submits that since, the petitioner was relieved by the commandant of 32nd Battalion PAC, Lucknow in pursuance to transfer order dated 17.1.1989 and 22.1.1989, the commandant of 2nd Battalion Sitapur was having jurisdiction to pass the impugned order.
8. Learned Standing Counsel had relied upon the judgments of State of U.P. and Ors. v. Ashok Kumar Singh and Anr., : AIR1996SC736 ; Mithilesh Singh v. Union of India and Ors., (2003) 1 UPLBEC 911 ; State of Punjab and Ors. v. Charanjit Singh, (2004) 1 ESC 77 (SC).
9. So far as the first contention of learned Counsel for the petitioner that commandant 2nd Battalion PAC was having no jurisdiction to pass the impugned order of dismissal seems to be misconceived. Once the petitioner was transferred by order dated 17.1.1989 to 2nd Battalion, Sitapur and consequently he was relieved on 22.1.1989 by 32nd Battalion PAC, Lucknow then the commandant of Sitapur was having full jurisdiction to proceed against the petitioner in accordance with law. Petitioner was relieved by the 32nd Battalion on 22.1.1989. Neither the transfer order for relieving order was ever admittedly challenged by the petitioners hence, it attains finality.
10. Accordingly submission of learned Standing Counsel Shri Shatrughan Choudhary since petitioner had not challenged the order of transfer it attains finality seems to be correct. As and when petitioner was relieved by the 32nd Battalion his services shall fall within the jurisdiction of commandant of 2nd Battalion Sitapur. Accordingly, the submission of the learned Counsel for the petitioner that the commandant of second Battalion Sitapur was having no jurisdiction to pass the impugned order is not sustainable and seems to be incorrect.
11. So far as the second submission of learned Counsel for the petitioner that in view of provision contained in Regulation 497 of the Police Regulation petitioner could not be transferred to other place and a suspended constable shall have right to continue at the same place where surety resides seems to be also not correct. Regulation 497 of the U.P. Police Regulations for convenience is reproduced as under :
'Head constables and constables under suspension may be required by the Superintendent of Police to live in lines but should not be subject to stricter restraint than officers of their own rank who are in the lines on duty. They should be allowed to leave the lines to consult their legal advisers or to prepare their defence. The same orders apply in the case of sub-inspectors under suspension, provided there is suitable accommodation for them in the lines.
If police officer who is placed under suspension is required to live in the police lines, the order of suspension must contain instruction to this effect.
These orders do not apply in the case of a police officer who is released on bail but a Court of Law and places under suspension, but the Superintendent of Police may order such an officer to keep him informed of his movement.'
12. A plain reading of Section 497 reproduced hereinabove at the face of record shows that the provision contained therein is directory in nature. Option has been given to the superintendent of police who may by appropriate order require a constable or head constable to reside in police line during the period of suspension. The provision further at the face of record provides that if a police officer is placed under suspension and is required to live in police line, the order of suspension must contain instruction to this effect. Learned Counsel for the petitioner had not pointed out any pleading on record which may reveal that the superintendent of police or the commandant of PAC had directed the petitioner to remain in the police line. In the absence of any material on record the ground advanced by the petitioner's Counsel for retention at Lucknow seems to be not sustainable. Moreover, protection of Regulation 497 seems to be not available to the petitioner on account of fact that he had not challenged the transfer order followed by relieving order from 32nd Battalion PAC, Lucknow to 2nd Battalion PAC at Sitapur.
13. Let us consider the cases cited by Counsel for the parties referred hereinabove. In the case of Associated Provincial Picture Houses Limited v. Wednesbury Corporation (supra), Lord Green M.R. proceeded to held as to what extent a court can interfere with an order passed by the Executive Authorities :
'what, then is the power of the Courts They can only interfere with an act of executive authority if it be shown that the authority has contravened the law. It is for those who assert that the local authority has contravened the law to establish that proposition. On the face of it, a condition of the kind imposed in this case is perfectly lawful. It is not to be assumed prima facie that responsible bodies like the local authority in this case will exceed their powers, but the Court, whenever it is alleged that the local authority have contravened the law, must not substitute itself for that authority. It is only concerned with seeing whether or not the proposition is made good. When an executive discretion is entrusted by parliament to a body such as the local authority in this case, what appears to be an exercise of that discretion can only be challenged in the Courts in a strictly limited class of case.'
Again in the same case Lord Green held as under :
'...They have considered it and come to a decision upon it. It is true to say that, if a decision on a competent matter is so unreasonable that no reasonable authority could ever have come to it, then the Courts can interfere, that, I think, is quite right; but to prove a case of that kind would require something overwhelming, and, in this case, the facts do not come anywhere near anything of that kind. I think Mr. Gallop in the end agreed that his proposition that the decision of the local authority can be upset if it is proved to be unreasonable, really meant that it must be proved to be unreasonable in the sense that the Court considering it to be a decision that no reasonable, a different thing altogether....the Court is entitled to investigate the action of the local authority with a view to seeing whether they have taken into account matters which they ought not to take into account, or, conversely, have refused to take into account or neglected to take into account matters which they ought to take into account. Once that question is answered in favour of the local authority, it may be still, possible to say that, although the local authority have kept within the Jour corner of the matters which they ought to consider, they have nevertheless come to the conclusion so unreasonable that no reasonable authority could ever have come to it. In such a case again, I think the Court can interfere. The power of the Court to interfere in each case is not as an appellate authority to override a decision of the local authority, but as a judicial authority which is concerned, and concerned only, to see whether the local authority have contravened the law by acting in excess of the powers which Parliament has confided in them.'
14. In the case of Council of Civil Services Union and Ors. v. Minister for the Civil Services (supra), question involved as to whether the Prime Minister of England was having power to pass an order without following the procedural application and also without consulting the person concerned while exercising power under Article 4 of the Order in Council. It was argued by the respondents in the appeal that order in council was not issued by any power confirmed by Act of Parliament but it was issued by resonant by virtue of her prerogative of course on the advice of the Government of the day. Accordingly, it was submitted that instructions were not open to rule by Courts because it was an imagination of the prerogative. Accordingly, it was submitted that prerogative powers are discretionary power which may be exercised as the discretion of sovereign and secondly an instruction given in the exercise of delegated power confirmed by the sovereign under the prerogative enjoys the same immunity from review as if it were itself a direct exercise of prerogative powers. The Court of appeal had dismissed the appeal only on technical ground on account of involvement of national security but otherwise allowed the appeal on the procedural ground that the respondents had acted unfairly in failing to consult unions or staff before making her decision in accordance to relevant procedure. Lord Diplock in the said judgment had proceeded to held as under :
'40. For a decision to be susceptible of judicial review the decision maker must be empowered by public law (and not merely, as in arbitration, by agreement between private parties) to make decisions that, if validly made, will lead to administrative action or abstention from action by an authority endowed by law with executive powers, which have one or other of the consequences mentioned in the preceding paragraph. The ultimate source of the decision-making power is nearly always now-a-days a statute or subordinate legislation made under the statute, but in the absence of any statute regulating the subject matter of the decision the source of the decision-making power may still be the common law itself, i.e. that part of the common law that is given by lawyers the label of the prerogative. Where this is the source of decision making power, the power is confined to executive officers of the central as distinct from local Government and in constitutional practice is generally exercised by those holding ministerial rank.
43. Nevertheless, whatever label may be attached to them there have unquestionably survived into the present day a residue of miscellaneous fields of law in which the executive Government retains decision-making powers that are not dependent on any statutory authority but nevertheless have consequences on the private rights or legitimate expectations of other persons which would render the decision subject to judicial review if the power of the decision-maker to make them were statutory in origin. From matters so relatively minor as the grant of pardons to condemned criminals, of honours to the good and great, of corporate personality to deserving bodies of persons, and of bounty from moneys made available to the executive Government by parliament, they extend to matters so vital to the survival and welfare of the nation as the conduct of relations with foreign States and (what lies at the heart of the present case) the defence of the realm against potential enemies. Adopting the phraseology used in the Convention for the protection of Human Rights and Fundamental Freedoms (Riome 4th November, 1950) ; The submission of the learned Counsel for the petitioner is that 71 (1953) ; Cmd 8969), to which the United Kingdom is a party, it has not become usual in statutes to refer to the latter as 'national security'.
44. My Lord, I see no reason why simply because a decision-making power is derived from a common law and not a statutory source it should for that reason only be immune from judicial review. Judicial review has I think developed to a stage today when, without reiterating any analysis of the steps by which the development has come about, or can conveniently classify under three heads 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'. That is not to say that further development on a case by case 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' which is recognised in the administrative law of several of our fellow members of the European Economic Community; but to dispose of the instant case the three already well-established heads that I have mentioned will suffice.
45. By 'illegality' as a ground for judicial review I mean that the decision maker must understand correctly the law that regulates his decision-making power and must give effect to it. Whether he has or not is par excellence a justifiable question to be decided, in the event of dispute, by those persons, the Judges, by whom the judicial power of the State is exercisable.
46. By 'irrationality' I mean what can by now be succinctly referred to as 'Wednesbury unreasonableness' [see Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation (1947) 2 All ER 680 : (1948) 1 KB 223]. It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it. Whether a decision falls within this category is a question that Judges by their training and experience should be well equipped to answer, or else there would be something badly wrong with our judicial system. To justify the Court's exercise of this role, resort I think is today no longer needed to Viscount Radcliffe's ingenious explanation in Edwards (Inspector of Taxes) v. Bairstow, (1955) 3 All ER 48 : (1956) AC 14, of irrationality as a ground for a Court's reversal of a decision by ascribing it to an inferred though unidentifiable mistake of law by the decision-maker. 'Irrationality' by now can stand on its own feet as an accepted ground on which a decision may be attacked by judicial review.
47. I have described the third head as 'procedural impropriety' rather than failure to observe basic rules of natural justice or failure to act with procedural fairness towards the person who will be affected by the decision. This is because susceptibility to judicial review under this head covers also failure by an administrative tribunal to observe procedural rules that are expressly laid down in the legislative instrument by which its jurisdiction is conferred, even where such failure does not involve any denial of natural justice. But the instant case is not concerned with the proceedings of an administrative tribunal at all.
49. As respects 'procedural propriety', I see no reason why it should not be a ground for judicial review of a decision made under powers of which the ultimate source is the prerogative. Such, indeed, was one of the grounds that formed the subject matter of judicial review in R. v. Criminal Injuries Compensation Board, ex p Lain, (1967) 2 All ER 770 : (1967) 2 QB 864. Indeed, where the decision is one which does not alter rights or obligations enforceable in private law but only deprives a person of legitimate expectations, 'procedural impropriety' will normally provide the only ground on which the decision is open to judicial review. But in any event what procedure will satisfy the public law requirement of procedural propriety depends on the subject matter of the decision. The executive functions of the decision-maker (if the decision is not that of an administrative tribunal) and the particular circumstances in which the decision came to be made.
67. Dicey's classic statement in Law of the Constitution (10th Edn. 1959) p. 424 that the prerogative is the residue of discretionary or arbitrary authority, which at any given time is legally left in the hands of the 'Crown' has the weight behind it not only of the author's own authority but also of the majority of this House in Burmah Oil Co. (Burma Trading) Ltd. v. Lord Advocate, (1964) 2 All ER 348 at 353 : (1965) AC 75 at 99, per Lord Reid. But as Lord Reid himself pointed out, this definition 'does not take us very far'. On the other hand the attempt by Lord Denning MR in Laker Airways Ltd. v. Dept. of Trade, (1977) 2 All ER 182 at 192 : (1977) QB 643 at 705, (obiter since the other members of the Court of Appeal did not take so broad a view) to assert that the prerogative 'if ...exercised improperly or mistakenly' was reviewable is, with great respect, far too wide. Lord Denning MR sought to support his view by a quotation from Blackstone's Commentaries (1 B1 Com (15th edn.) 252). But unfortunately and no doubt inadvertently he omitted the opening words of the paragraph :
'In the exercise therefore of those prerogatives, which the law has given him, the king is irresistible and absolute, according to the forms of the Constitution. And yet, if the consequence of that exertion be manifestly to the grievance or dishonour of the kingdom, the parliament will call his advisers to a just and severe account.'In short the Orthodox view was at that time that the remedy for abuse of the prerogative law in the political and not in the judicial field.
69. My Lord, the right of the executive to do a lawful act affecting the rights of the citizen, whether adversely or beneficially, is founded on the giving to the executive of a power enabling it to do that act. The giving of such a power usually carries with it legal sanctions to enable that power if necessary to be enforced by the Courts. In most cases that power is derived from statute though in some cases, as indeed in the present case, it may still be derived from the prerogative. In yet other cases, as the decisions show, the two powers may coexist or the statutory power may be necessary implication have replaced the former prerogative power. If the executive in pursuance of the statutory power does an act affecting the rights of the citizens, it is beyond question that in principle the manner of the exercise of that power may today be situation which the oral instructions were themselves designed to avoid, namely the risk of industrial action by the staff at GCHQ caused or at least facilitated by a membership of trade unions, and damaging to national security, GCHQ was, it was said, and is, highly vulnerable have revealed to those who have previously organised disruption that high degree of vulnerability.'
16. In the case of State Bank of India and Ors. v. Samarendra Kishore Endow and Anr. (supra) it has been held by Hon'ble Supreme Court that the punishment awarded to an employee should be commensurate with the offence and accordingly held while exercising power under Article 226 of the Constitution of India High Court have to ensure that individual receives fair treatment and not to ensure that authority after according fair treatment reaches on a matter which it is authorised by law to decide for itself. Relevant portion from the said judgment is reproduced as under :
'10. On the question of punishment, learned Counsel for the respondents submitted that the punishment awarded is excessive and that lesser punishment would meet the ends of justice. It may be noticed that the imposition of appropriate punishment is within the discretion and judgment of the. disciplinary authority. It may be open to the appellate authority to interfere with it but not to the High Court or to the Administrative Tribunal for the reason that the jurisdiction of the Tribunal is similar to the powers of the High Court under Article 226. The power under Article 226 is one of judicial review. It 'is not an appeal from a decision, but a review of the manner in which the decision was made.' [Per Lord Brightman in Chief Constable of the North Wales Police v. Evans and H.B. Gandhi Excise and Taxation Officer-cum-Assessing Authority v. Gopinath and Sons]. In other words the power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the authority after according fair treatment, reaches on a matter which it is authorised by law to decide for itself, a conclusion which is correct in the eyes of the Court.'
Hon'ble Supreme Court after considering the other judgments of apex Court arrived to the conclusion that punishment awarded to the delinquent employee was too harsh and remitted the matter again to disciplinary authority to reconsider for imposition of appropriate punishment.
17. In the case of B.C. Chaturvedi, the apex Court held that appreciation of evidence should not be done by Tribunal to substitute its own conclusion to that of disciplinary authority by giving own finding. It has been further held that High Court while exercising power of judicial review normally cannot substitute its conclusion or own penalty and to impose some other penalty. However, Hon'ble Supreme Court had further proceeded to held as under :
'22. The aforesaid has, therefore, to be avoided and I have no doubt that a High Court would be within its jurisdiction to modify the punishment/penalty by moulding the relief, which power it undoubtedly has, in view of a long line of decisions of this Court, to which reference is not deemed necessary, as the position is well settled in law. It may, however, be stated that this power of moulding relief in cases of the present nature can be invoked by a High Court only when the punishment/penalty awarded shocks the judicial conscience.
23. It deserves to be pointed out that the mere fact that there is no provision parallel to Article 142 relating to the High Courts, can be no ground to think that they have not to do complete justice, and if moulding of relief would do complete justice between the parties, the same cannot be ordered. Absence of provision like Article 142 is not material, according to me. This may be illustrated by pointing out that despite there being no provision in the Constitution parallel to Article 137 conferring power of review on the High Court, this Court held as early as 1961 in Shivdeo Singh case that the High Court too can exercise power of review, which inheres in every Court of plenary jurisdiction. I would say that power to do complete justice also inheres in every Court, not to speak of a Court of plenary jurisdiction like a High Court. Of course, this power is not as wide as which this Court has under Article 142. That, however, is a different matter.
24. What has been stated above may be buttressed by putting the matter a little differently. The same is that in a case of a dismissal. Article 21 gets attracted, and, in view of the interdependence of fundamental rights, which concept was first accepted in the cases commonly known as Bank Nationalisation case, which thinking was extended to cases attracting Article 21 in Maneka Gandhi v. Union of India, the punishment/penalty awarded has to be reasonable; and if it be unreasonable, Article 14 would be violated. That Article 14 gets attracted in a case of disproportionate punishment was the view of this Court in Bhagat Ram v. State of H.P. also. How is Article 14 were to be violated, it cannot be doubted that a High Court can take care of the same by substituting, in appropriate cases, a punishment deemed reasonable by it.'
18. The case of V.G. Ganayutham (supra) also relates to quantum of punishment. The apex Court held that whether there is no allegation that punishment is illegal or vitiated by procedural impropriety or its irrational and outrageous defines of logic the Court should not substitute the quantum of punishment by its own views on the ground of disproportionate to the gravity of charges. Hon'ble Supreme Court while relying upon the Wednesbury case (1948) 1 KB 223 : (1947) 2 All ER 680 and other judgments of apex Court held as under :
'27. We are of the view that even in our country in cases not involving fundamental freedoms--the role of our Courts/tribunals in administrative law is purely secondary and while applying Wednesbury and CCSU principles to test the validity of executive action or of administrative action taken in exercise of statutory powers, the Courts and tribunals in our country can only go into the matters, as a secondary reviewing Court to find out if the executive or the administrator in their primary roles have arrived at a reasonable decision on the material before them in the light of Wednesbury and CCSU tests. The choice of the options available is for the authority, the Court/tribunal cannot substitute its view as to what is reasonable.
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 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 bonafide. 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, (1948) 1 KB 223 : (1947) 2 All ER 680, 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 was 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 rule out. These are the CCSU, (1985) AC 374 : 3 All ER 935, principles.'
19. The case of Om Kumar (supra) also relates to applicability of Wednesbury principle Hon'ble Supreme Court in the case of Om Kumar (supra) held that the Courts in our country may interfere with the quantum of punishment, where fundamental right of life and liberty is involved and principle of proportionality may be made applicable. For convenience para 66, 67, 68 and 69 of the Om Kumar's case is reproduced as under :
'It is clear from the above discussion that in India where administrative action is challenged under Article 14 as being discriminatory equals are treated unequally or unequal are treated equally, the question is for the constitutional Courts as primary reviewing Courts to consider correctness of the level of discrimination applied and whether it is excessive and whether it has a nexus with the objective intended to be achieved by the administrator. Here the Court deals with the merits of the balancing action of the administrator and it, in essence, applying 'proportionality' and is a primary reviewing authority.
67. But where as administrative action is challenged as 'arbitrary' under Article 14 on the basis of Royappa (as in cases where punishments in disciplinary cases are challenged), the question will be whether the administrative order is 'rational' or 'reasonable' and the test then is the Wednesbury test. The Courts would then be confined only to a secondary role and will only have to see whether the administrator has done well in his primary role, whether he has acted illegally or has omitted relevant factors from consideration or has taken irrelevant factors into consideration or whether his view is one which a reasonable person could have taken. If his action does not satisfy these rules, it is to be treated as arbitrary. In G.B. Mahajan v. Jalqaon Municipal Council, SCC at p. 111. Venkatachaliah, J. (as he then was) pointed out that 'reasonableness' of the administrator under Article 14 in the context of administrative law has to be judged from the stand point of Wednesbury rules. In Tata Cellular v. Union of India, SCC at pp. 679-80 ; Indian Express Newspapers Bombay (P) Ltd. v. Union of India, SCC at p. 6910 ; Supreme Court Employees' Welfare Assn. v. Union of India, SCC at p. 2410 and U.P. Financial Corporation v. Gem Cap (India; (P) Ltd., SCC at p. 307, while judging whether the administrative action is 'arbitrary' under Article 14 (i.e. otherwise than being discriminatory), this Court has confined itself to a Wednesbury review always.
68. Thus, when administrative action is attacked as discriminatory under Article 14 the principle of primary review is for the Courts by applying proportionality. However, where administrative action is questioned as 'arbitrary' under Article 14, the principle of secondary review based on Wednesbury principle applies.
Proportionality and punishments in service law
69. The principles explained in the last preceding paragraph in respect of Article 14 are now to be applied here where the question of 'arbitrariness' of the order of punishment is questioned under Article 14.'
20. In the case of Mithilesh Singh (supra) Hon'ble Supreme Court held that unless the punishment appears to be shockingly disproportionate the Court should not interfere with the same. For convenience para 9 of the Mithilesh Singh's case is reproduced as under :
'the only other plea is regarding punishment awarded. As has been observed in a series of cases, the scope of interference with punishment awarded by a disciplinary authority is very limited and unless the punishment appears to be shockingly disproportionate, the Court cannot interfere with the same. Reference may be made to a few of them. (See B.C. Chaturvedi v. Union of India; State of U.P. v. Ashok Kumar Singh; Union of India v. G. Ganayutham ; Union of India v. J.R. Dhiman and Om Kumar v. Union of India).'
21. In the case of Regional Manager, U.P.S.R.T.C. v. Hoti Lal and Anr., as well as Chairman and Managing Director, United Commercial Bank and Ors. v. P.C. Kakkar, Hon'ble Supreme Court had reiterated the principle governing the interference with the quantum of punishment settled by earlier judgment of the apex Court referred hereinabove.
22. In the case of State of U.P. and Ors. v. Ashok Kumar Singh and Anr. (supra) Hon'ble Supreme Court had set aside the order of High Court where in the matter of police constable the order of punishment was modified. For convenience para 8 of the said judgment is reproduced as under :
'We are clearly of the opinion that the High Court has exceeded its jurisdiction in modifying the punishment while concurring with the findings of the Tribunal on facts. The High Court failed to bear in mind that the first respondent was a police constable and was serving in a disciplined force demanding strict adherence to the rules and procedures more than any other department. Having noticed the fact that the first respondent has absented himself from duty without leave on several occasions. We are unable to appreciate the High Court's observation that his absence from duty would not amount to such a grave charge. Even otherwise on the facts of this case, there was no justification for the High Court to interfere with the punishment holding that the punishment does not commensurate with the gravity of the charge especially when the High Court concurred with the findings of the Tribunal on facts. No case for interference with the punishment is made out.'
23. In the case of State of Punjab and Ors. v. Charanjit Singh, again Hon'ble Supreme Court had ruled that even if the period of absence from duty is condoned it does not mean that an employee cannot be charged with misconduct. Accordingly, interference of the Court restoring the service was set aside by the apex Court.
24. In the present case though the petitioner was under suspension he was transferred on 17.1.1989 to join at Sitapur. The commandant of the 2nd Battalion PAC Sitapur had written a letter dated 17.3.1989 directing the petitioner to resume duty but it appears that petitioner had not given heed to the letter of commandant and not reported for duty even for about six months. Hence, there was no option except to serve the charge-sheet dated 17.9.1989. Even after service of charge-sheet petitioner had not taken care to participate in the inquiry. The conduct of the petitioner seems to be deplorable. It is not excepted from a Government employee more so a person who is a member of armed force to defy the order of superiors. Since petitioner bad not challenged his order of transfer neither in present writ petition or by moving application or representation to the competent authority he was rightly expected by the opposite parties to resume duty. Once the order of transfer attains finality there was no option before the petitioner except to join in the 2nd Battalion of PAC at Sitapur. The defiance of order by a police constable of an armed forces should not be taken lightly. The impugned order of dismissal was passed after lapse of more than a year from the date when petitioner was transferred from Lucknow to Sitapur. There is no material on record which may shows that petitioner had ever tried to resume duty. Under these facts and circumstances once the authorities had exercise their power dismissed the petitioner's service then this Court while exercising jurisdiction under Article 226 of the Constitution of India ordinarily should not interfere with the order of punishment more so when it relates to an employee of armed forces as held by Hon'ble Supreme Court in Ashok Kumar's case (supra). The cases relied upon by the petitioner's Counsel referred hereinabove for taking a lenient view keeping in view the quantum of punishment awarded to the petitioner does not seems to be extend any help. The attitude of the petitioner by not joining in the 2nd Battalion of PAC, Sitapur even after up to date of service of charge-sheet does not create a ground to interfere with the quantum of punishment. Accordingly, I am not inclined to interfere on the ground of quantum of punishment against the impugned order of dismissal.
25. Moreover, as held by Lord Diplock (supra) and Hon'ble Supreme Court the power of judicial review means to ensure that the individual receives fair treatment and not ensure that the authority after according fair treatment reaches on a matter which it is authorised by law to decide for itself, a conclusion which is correct in the eyes of law. The case laws referred by learned Counsel for the petitioner himself as discussed hereinabove postulates that this Court while exercising jurisdiction under Article 226 of the Constitution of India should normally look into the procedure adopted by authorities arriving to the conclusion for passing an order of punishment. On the question of quantum of punishment inference should be done only on limited ground and in rarest of rare cases where the punishment awarded to an employee is so disproportionate that it shake up the conscious to a person. The present case seems to be does not covered by the exception provided by Hon'ble Supreme Court for inference on the ground of quantum of punishment. Accordingly, the impugned order does not deserves for inference on the ground of quantum of punishment and it does not seems to be disproportionate to the misconduct committed by the petitioner.
26. Thus an employee can be dismissed from service after enquiry in accordance with law on account of deliberate absence from duty. An employee more so a member of armed forces is never expected to absent from duty without sanctioned leave. Deliberate absence from duty without sanctioned leave should not be taken lightly more so when the occurrence relates to armed forces. The appointing authority has got power to punish such employees in accordance with law which includes dismissal from service. As settled by apex Court while exercising jurisdiction under Article 226 of the Constitution of India, this Court should not substitute its own opinion over and above the decision taken by the competent authority while punishing an employee by awarding major punishment unless the punishment is shockingly disproportionate to misconduct committed by the delinquent employee.
27. As discussed hereinabove in the present case petitioner seems to be deliberately and intentionally not joined in pursuance to order of transfer at Sitapur. He was absent without any sanctioned leave deliberately and intentionally, and in case a lenient view is taken by this Court then it will encourage the defaulter not to discharge their duties on one or other grounds. Absence from duty or non-compliance of a transfer order for short period bonafidely under compelling circumstances may create a ground for minor punishment. But in the present case, petitioner does not seem to be covered by this exception. Accordingly, punishment awarded to the petitioner does not seem to be disproportionate to the misconduct committed by him under the facts and circumstances of the present case.
FINDING
28. Under the above facts and circumstances of the case writ petition devoid of merit for following reasons :
(1) Under Regulation 497 of the U.P. Police Regulations a suspended employee will have no absolute right to claim for continuance in the police line of the District where he was placed under suspension unless specifically provided in the suspension order itself. Power under Regulation 497 of the U.P. Police Regulations is a discretionary power which can be exercised for reasons to be recorded. Competent authority can modify the order for reasonable cause under the compelling facts and circumstances of a particular case.
(2) A Government employee can be punished with major penalty that is dismissal or removal from service after enquiry in accordance with rules in case he is found guilty of deliberate and intentional absence from duty or non-compliance of an order of transfer passed by a competent authority.
(3) Since, petitioner had not challenged the order of transfer dated 17.1.1989 coupled with the relieving order, he has got no right to challenge the impugned order of dismissal on the ground that order of transfer was bad in law as it was passed during the period of suspension. Petitioner was having no right to reside at Lucknow on account of fact that sureties of the criminal case were residing at. Lucknow.
(4) In spite of order of transfer dated 17.1.1989 and letter written by commandant of the 2nd Battalion PAC Sitapur dated 17.1. 1989 petitioner had not resume duty at Sitapur for about nine months resulting in serving of charge-sheet dated 17.9.1989. Being member of armed force and under facts and circumstances of the case, no interference is called for by this Court against the impugned order of dismissal on the ground of quantum of punishment in view of Ashok Kumar Singh's case (supra).
(5) As settled by Hon'ble Supreme Court ordinarily this Court while exercising jurisdiction under Article 226 of the Constitution of India, should not substitute the quantum of punishment by its own view on the ground of disproportionate punishment to the gravity of charges unless the punishment awarded to the delinquent employee is shockingly disproportionate to the misconduct committed by the delinquent employee. The present case does not fall under this exception.
29. Under the above facts and circumstances of the case writ petition is devoid of merit and call for no interference by this Court under extraordinary jurisdiction under Article 226 of the Constitution of India.
Writ petition is dismissed. No order as to costs.