Read Time: 20 minutes

Synopsis

The Supreme Court has said an administrative order punishing a delinquent employee is not ordinarily subject to correction in judicial review because the disciplinary authority is the sole judge of facts.

"If there is some legal evidence on which the findings can be based, then adequacy or even reliability of that evidence is not a matter for canvassing before the high court in a writ petition filed under Article 226 of the Constitution," a bench of Justices Dipankar Datta and Manmohan said.

However, the apex court said, the high court may in the exercise of its discretion interfere to set things right, should on consideration of the materials on record, the court be satisfied that there has been a violation of the principles of natural justice.

It said the high court also may interfere if the inquiry proceedings have been conducted contrary to statutory regulations prescribing the mode of such inquiry, or that the ultimate decision of the disciplinary authority is vitiated by considerations extraneous to the evidence and merits of the case, or that the conclusion of the disciplinary authority is ex facie arbitrary or capricious, so much so that no reasonable person could have arrived at such conclusion, or there is any other ground very similar to the these conditions.

"After all, public servants to whom Article 311 of the Constitution apply do enjoy certain procedural safeguards, enforcement of which by the high court can legitimately be urged by such servants depending upon the extent of breach that is manifestly demonstrated...Validity of any disciplinary action, whenever questioned, has to be tested on the touchstone of Articles 14, 16 and 21 as well as Article 311(2), wherever applicable," the bench said.

To test whether interference is warranted, the bench pointed out, that the apex court has laid down that the scrutiny ought to be confined to finding out whether the disciplinary proceedings have been conducted fairly; if not, an inference can be drawn that this has caused prejudice to the charged employee.

"Be that as it may, there can be no gainsaying that the consequences of violation of a fair procedure, which principles of natural justice embody, in a given situation has to be considered on a case-by-case basis bearing in mind that judicial review is not intended to be an appeal in disguise," the bench said.

The court also pointed out that issuing limited notice at the stage of admission does not bar a Constitutional court from having inherent powers to pass such orders as the justice of the case before it demands to enlarge the scope of a petition/appeal at the stage of final hearing.

"Any observation that the court may choose to make while entertaining the petition/appeal by issuing limited notice ought to be regarded as tentative. Such observation cannot limit the court’s jurisdiction to consider the controversy, as raised, in its entire perspective. Whether or not the court would enlarge the scope is, however, a question which is largely dependent on the facts and circumstances of each case. If the court seized of the petition/appeal considers that the justice of the case before it demands enlargement of the scope, notwithstanding that a limited notice had been issued earlier, the court’s powers are not fettered particularly when enforcement of any Fundamental/Constitutional right is urged by the party approaching it," the bench said.

The court was dealing with an appeal by Bhupinderpal Singh, who was aggrieved with the Punjab and Haryana High Court's order to allow a 2% cut in his pension after his retirement, for a period of five years, on the basis of an inquiry report for failing to report to the election duties, among other reasons, within months of his retirement on March 31, 2017.

The appellant was at the twilight of his long career of 34 years in public service. At the relevant time, he was holding the post of Senior Medical Officer, CHC, Dirba, District Sangrur, under the Health and Family Welfare Department, Punjab government.

The court examined whether interference was warranted in the high court’s order, which had merged the disciplinary authority’s penalty order with the single judge’s dismissal of the appellant’s writ petition. It also considered the objection that, since limited notice was issued at the admission stage of the intra-court appeal and the appellant’s grievance was addressed, the court should not expand the appeal’s scope.

Having dealt with the point of limited notice in the matter, the bench examined the prosecution's case, which alleged that the appellant took leave without approval, disregarded directions from the Election Commission and higher authorities, and failed to participate in the pulse polio programme.

In its judgment, the court also considered the concept of natural justice, pointing out that the traditional concept of natural justice comprises the two rules that prohibit anyone from being condemned unheard and anyone from being a judge of his own cause.

"In relation to disciplinary proceedings, subject to just exceptions, natural justice would envisage observance of procedural fairness before holding a public servant guilty of misconduct and imposing a punishment on him for such misconduct. While it is true that principles of natural justice supplement, and not supplant, the law, such principles have been declared by this court to be a constituent feature of Article 14 of the Constitution," the bench said.

With regard to the issue of leave, the bench said undoubtedly, no public servant can claim leave as a matter of right. It said the court had not found any such circumstance from the record to afford ground for holding that the appellant did commit serious misconduct.

"Leave is a matter regulated by rules and such rules need to be duly adhered to by each public servant. While there can be no quarrel on this aspect, we have not found any such circumstance from the record to afford ground for holding that the appellant did commit a serious misconduct," the bench said.

The court noted there was no record of the Civil Surgeon’s refusal to sanction leave being communicated to the appellant either.

"Insofar as defiance of Election Commission’s directions by the appellant are concerned, no such written directions were part of the documentary evidence led before the Inquiry Officer," the bench said, holding that the appellant’s contention that public servants on the verge of retirement are not assigned election duty was not shown to be incorrect and untenable.

"We hold that holding the appellant guilty of a perceived failure to perform a duty not being the charge in respect of which any opportunity of explanation was given, such a finding could not have been taken into consideration by the Disciplinary Authority to impose penalty on the appellant," the bench said.

The court also declared that the order of penalty passed by the disciplinary authority on October 11, 2019, on another count, did not also commend to be legal and valid. A detailed response to the inquiry report had been submitted by the appellant. 'Dismissing the claims by a single sentence that the same are not acceptable, is not part of a fair procedure. This is a substantial ground for which appellant’s grievance seems to be justified', the bench said.

"What has overwhelmed our ability of comprehension is that the division bench despite having returned clear findings in favour of the appellant adopted a hands-off approach by leaving the findings with regard to the charges untouched," the bench said, while setting aside the judgment of the division bench of the High Court and the order of the disciplinary authority.

In its epilogue, the bench noted the appellant had raised a specific plea before the Inquiry Officer that being on the verge of retirement, election duty could not have been assigned to him.

The court said in all fairness, the disciplinary authority ought not to have initiated disciplinary proceedings against the appellant on the face of such clear order of the Election Commission. It found that the appellant was quite right in contending that the disciplinary proceedings culminating in the order of penalty were nothing but a ruse to wreak vengeance for having dragged high officials of the Punjab government to the High Court and in tasting success to obtain his legitimate monetary dues.

"The Constitutional concept is that not only the country but every State in the country would be a welfare state. As the regulator and dispenser of special services and provider of a large number of benefits, none can perhaps deny that a welfare state ought to strive for achieving the maximum welfare and securing the best interests of the people. This happens to be a case where certain officials of the GoP have stooped too low to punish a senior doctor, on the verge of retirement, for no better reason than that he had dared to take on the mighty executive in a court of law. While deprecating such vile acts of the concerned officials, we see the need to adequately compensate the appellant," the bench said, directing for payment of Rs 50,000 as cost to him.

The court granted liberty to the state government to realise the amount of costs from the persons responsible after fixing responsibility in accordance with law. It also allowed the officers concerned to approach the court if they had anything to say on cost, besides the fact they were not altered about the EC's January 6, 2017 notification sparing those on the verge of retirement from pollution duties.

Case Title: Bhupinderpal Singh Gill Vs State of Punjab And Others