# OM KUMAR AND ORS v. UNION OF INDIA

- **Citation:** [2000] Supp. 4 S.C.R. 693
- **Court:** Supreme Court of India
- **Decided:** 2000-11-17
- **Bench:** M. Jagannadha Rao, U.C. Banerjee
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/om-kumar-and-ors-v-union-of-india-17666
- **Pages:** 29

## Headnote

Service Law-Employee-Disciplinary enquiry-PunishmentProportionality to gravity of offence-Power of Court to interfere with
quantum of Punishment-Extent of-Doctrine of proportionality.
A
B
c
Delhi Development A uthority-Ojficials-Disciplinary enquiry- D
Punishment-Order by Supreme Court reop~ning the question of quantum of
punishment-Upward revision of punishment by Supreme CourtPermissibility and extent of-Proportionality and punishment in service law.
Administrative Law
Doctrine cf Proportionality and Wednesbury Principles-Applicability E
of-Meaning of proportionality-Position in other countries discussedDistinction between primary and secondary roles of Courts in the matter of
proportionality-Proportionality and administrative action.
Where administrative action is challenged under Article 14 as being F
discriminatory, equals are treated unequally or unequals 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 is, in essence, applying G
'proportionality' and is a primary reviewing authority-But where, an
administrative action is challenged as 'arbitrary' under Article 14 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 H
693
694
SUPREME COURT REPORTS [2000] SUPP. 4 S.C.R.
A a seconda1y 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 no reasonable person could
have taken-If his action does not satisfy these rules, it is to be treated as
B arbitrary.
Held where an administrative decision relating to punishment in
disciplina1y cases is questioned as. 'arbitrary' under Article I 4, the Court is
confined to Wednesbury principles as a secondary reviewing authority-The
Court will not apply proportionality as a primary reviewing Court because
C no issue of fimdamental .freedoms nor of discrimination under Article 14
applies in such a context-The Court while reviewing punishment and if it
is satisfied that Wednesbury principles are violated, it has normally to remit
the matter to the administrator for a fresh decision as to the quantum of
punishment-Only in rare cases where there has been long delay in the time
taken by the disciplinary proceedings and in the time taken in the Courts,
D and such extreme or rare cases can the Court substitute its own view as to
the quantum of punishment.
Constitution of India, 1950 : Article 226
High Court-Judicial review-Power of High Court to interfere with
E the quantum of punishment in disciplinary matters.
Part Ill-Fundamental Rights-Proportionality and legislation-Power
of Court to declare unconstitutional on the Principle of Proportionalitylegislation relating to restrictions on fundamental .freedoms could be tested
F on the anvil of 'proportionality '-This is called 'primary' review by the
Courts of the validity of legislation which offended fundamental freedoms.
Articles 14 and 2 I-Principle of proportionality.
Union of India v. Ganavutham, 119971 7 SCC 463; Chintaman Rao v.
G State of UP., 119501 SCR 759; State of Madras v. V.S. Row, 119521SCR597;
State of A.P. v. Mc. Dowell & Co., f199613 SCC 709; Bachan Singh v. State
of Punjab, (198012 SCC 684; Air India v. Nergesh Meerza & Ors., 119811 4
SCC 335 at 372-373; R.M. Seshadri v. Distt. Magistrate Tanjore & Anr., AIR
(1954) SC 747; Union of India v. Motion Picture Association, f 19991 6 SCC
150; S. Rangarajan v. P. Jagjivan Ram & Ors., f1989) 2 SCC

## Text

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OM KUMAR AND ORS.
v.
UNION OF INDIA
IN
DELHI DEVELOPMENT AUTHORITY
v.
SKIPPER CONSTRUCTION AND ANR.
NOVEMBER 17, 2000
[M. JAGANNADHA RAO AND U.C. BANERJEE, JJ.]
Service Law-Employee-Disciplinary enquiry-PunishmentProportionality to gravity of offence-Power of Court to interfere with
quantum of Punishment-Extent of-Doctrine of proportionality.
A
B
c
Delhi Development A uthority-Ojficials-Disciplinary enquiry- D
Punishment-Order by Supreme Court reop~ning the question of quantum of
punishment-Upward revision of punishment by Supreme CourtPermissibility and extent of-Proportionality and punishment in service law.
Administrative Law
Doctrine cf Proportionality and Wednesbury Principles-Applicability E
of-Meaning of proportionality-Position in other countries discussedDistinction between primary and secondary roles of Courts in the matter of
proportionality-Proportionality and administrative action.
Where administrative action is challenged under Article 14 as being F
discriminatory, equals are treated unequally or unequals 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 is, in essence, applying G
'proportionality' and is a primary reviewing authority-But where, an
administrative action is challenged as 'arbitrary' under Article 14 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 H
693
694
SUPREME COURT REPORTS [2000] SUPP. 4 S.C.R.
A a seconda1y 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 no reasonable person could
have taken-If his action does not satisfy these rules, it is to be treated as
B arbitrary.
Held where an administrative decision relating to punishment in
disciplina1y cases is questioned as. 'arbitrary' under Article I 4, the Court is
confined to Wednesbury principles as a secondary reviewing authority-The
Court will not apply proportionality as a primary reviewing Court because
C no issue of fimdamental .freedoms nor of discrimination under Article 14
applies in such a context-The Court while reviewing punishment and if it
is satisfied that Wednesbury principles are violated, it has normally to remit
the matter to the administrator for a fresh decision as to the quantum of
punishment-Only in rare cases where there has been long delay in the time
taken by the disciplinary proceedings and in the time taken in the Courts,
D and such extreme or rare cases can the Court substitute its own view as to
the quantum of punishment.
Constitution of India, 1950 : Article 226
High Court-Judicial review-Power of High Court to interfere with
E the quantum of punishment in disciplinary matters.
Part Ill-Fundamental Rights-Proportionality and legislation-Power
of Court to declare unconstitutional on the Principle of Proportionalitylegislation relating to restrictions on fundamental .freedoms could be tested
F on the anvil of 'proportionality '-This is called 'primary' review by the
Courts of the validity of legislation which offended fundamental freedoms.
Articles 14 and 2 I-Principle of proportionality.
Union of India v. Ganavutham, 119971 7 SCC 463; Chintaman Rao v.
G State of UP., 119501 SCR 759; State of Madras v. V.S. Row, 119521SCR597;
State of A.P. v. Mc. Dowell & Co., f199613 SCC 709; Bachan Singh v. State
of Punjab, (198012 SCC 684; Air India v. Nergesh Meerza & Ors., 119811 4
SCC 335 at 372-373; R.M. Seshadri v. Distt. Magistrate Tanjore & Anr., AIR
(1954) SC 747; Union of India v. Motion Picture Association, f 19991 6 SCC
150; S. Rangarajan v. P. Jagjivan Ram & Ors., f1989) 2 SCC 574; Malak
H Singh & Ors., v. State of P & H & Ors., ft 98111 SCC 420; Bishambhar Dayal
'•
-
OM KUMAR y. U.0.1.
695
Chandra Mohan & Ors. v. State ofU.P. & Ors., 11982] 1SCC39; E.P. Royappa A
v. State of Tamil Nadu, (1974] 4 SCC 31; Indira Sawhney v. Union of India,
(1992] Supple. 3 SCC 217; Ajit Singh (II) v. State of Punjab, (19991 7 SCC
209; G.B. Mahajan v. Jalgaon Municipal Council, (1991] 3 SCC 91at111;
Tata's Cellular v. Union of India, [1994] 6 SCC 651; Indian Express
Newspapers v. Union of India, (1985] l SCC 641; Supreme Court Employees'
Welfare' Assn. v. Union of India & Anr., (1989] 4 SCC 187; UP. Financial B
Corporation v. GEM CAP (India) Pvt. ltd., [1993] 2 SCC 299; Ranjit Thakur
v. Union of India, [1987] 4 SCC 611; B.C. Chaturvedi v. Union of India, [1995)
6 SCC 749 and Navinchandra N. Majithia v. State of Meghalaya & Ors., JT
(2000) Suppl. 1 SC 538, referred to.
c
Associated Provincial Picture Houses v. Wednesbury Corporation,
(1948) 1 KB 223; Handyside v. U.K., (1976) 1 EHR p. 737; Cunliffe v.
Commonwealth, (1994) 68 Aust. LJ 791; R. v. Oakes, (1986) 26 DLR 4th 200;
Ross v. Brunswick School Dishut No. 15, (1996) 1 SCR 825 Canada ; City of
Boarne v. Floras, [1997] 52 U.S. 507; Spycatcher Case Att. General v.
Guardian Newspapers Ltd. No. 2, (1990) 1 AC 109; Derbyshine Country D
Council v. Times Newspapers Ltd., (1993) AC 534; R. v. Secretary of State for
Home Department, Exp. Simms, (1999) 3 All ER 400 (H.L.); R. v. Lord Saville
Ex Pt., (1999) 4 All ER 860; R. v. Secretary of State for the Home Department,
exp. Brind, (1991) 1 A.C. 696; R. v. Ministry of Defence Exp. Smith, (1996)
Q.B. 517; R. v. Ministry of Defence Exp. Smith, (1996) 1 AU ER 257 CA; R. v. E
Secretary of State for the Environment Ex. p. Nothinghanshore Country
Council, (1986) AC 240; R. v. Secretary of State for Environment exp.
Hammersmith and Fu/tan London Borough Council, (1991) l AC 521 (597);
R. v. Chie/Constable ofSussesc. ex. p. International Trader's Ferry Ltd., (1999)
1 All E.R. 129; Lithgow v. U.K., (1996) SCHR 329 and Adarand Constructors
Inc. v. Pena, (1995) 75 US 200, referred to.
F
European Administrative Law by J. Schwarze, (1992) pp. 677-866; Prof
R.P. Craig's Administrative Law, 4th Ed. 1999 pp. 585-586; Human Rights Law
and Practice by Lord Leaster of Herne Hill, Q.C. & David Pannick Q.C.,
(1999) para 3.16; De Smith, Woolf. Jowell, First Cumulative Supplement to G
Judicial Review of Administrative Action, (1998) p. 114; EU Law and Human
Rights by Lammy Betten and Nicholas Grief, (1998) at p. 98 and
Administrative Law, Craig 4th Ed., (1999) page 652, referred to.
CIVIL APPELLATE JURISDICTION : Special Leave Petition (C) No.
21000 of 1993.
H
696
SUPREME COURT REPORTS [2000] SUPP. 4 S.C.R.
A
From the Judgment and Order dated 9.12.93 of the Delhi High Court in
Suit No. 770of1993.
Altaf Ahmad, K.N. Rawal, Additional Solicitor Generals Joseph
Vellappally, (AC) V.R. Reddy, Rajeev Dhawan, R.K. Jain, P.P. Malhotra, T.L.
Viswanatha Iyer, Dayan Krishnan, Ms. Kamini Jaiswal, Lt. Colonel Jaswant
B Singh, Jaideep Gupta, H.S. Parihar, Kuldeep S. Parihar, Davinder Singh, S.
Sukumaran, Din Dayal Sharma, Jana Kalyan Das, S. Muralidhar, K.K. John,
Ravindera Kumar, K. Swami, Ashok Mathur, K.B. Rohtagi, Mahesh Kasana,
Ms. Apama Rohtagi Jain, P.H. Parekh, E.R. Kumar, Rohit M. Alex, Pradeep
Misra, Shambhu Prasad Singh, Ms. Manjula Gupta, Ravikesh Sinha, Gopal
C Jain, Ravinder Nath, Arvind Kumar Sharma, S.U.K. Sagar, Ms. Sunita Sharma,
Ms. Binu Tamta, Ms. Sushma Suri, Y.P. Mahajan, S.N. Terdol, P. Parmeswaran,
A.K. Srivastava, S.K. Dwivedi, P.K. Prasad, Sunil Dogra, Ms. Monica Sharma,
Manu Nair, G.M. Kawoosa, Shri Narain, Sandeep Narain, Ms. Anjali, Manoj
Goel, Ms. Abha R. Sharma, Rajiv K. Garg, Ms. Manisha, Ms. Bhavna, N.D.
Garg, C.V.S. Rao, Hemant Sharma, Ms. V.B. Gugnani, A. Mariarputham. Ms.
D Aruna Mathur, Anurag D, Mathur, Rajesh Srivastava, S.K. Puri, Ujjwal Banerjee,
H.K. Puri, Ashwani Bhardwaj, Abhishek Atrey, S.P. Sharma, Praveen Swarup,
Ms. Pareena Swarup, Pramod Swarup, R.C. Gubrele, V.K. Varma, P.R. Ramesesh,
S.K. Kulkarni, C.N. Sree Kumar, S.K. Verma, Ms. Sumita Mukherjee, Ms.
Nanita Sharma, Jaswant Singh, K.S. Rana, Dr. Nafis A. Siddiqui, Arun K.
E Sharma, Sandeep Narayan, Ms. Anjali, Pawan Verma, S.K. Garg, G. Acharya,
Ms. Archana Singh, A.P. Medh, Prem Malhotra, Ms. Jasmine Tarapore, A.D.N.
Rao, V.B. Saharya, Ramesh Babu M.R., Rajeev Sharma, Sanjay R. Hegde, B.K.
Satija; Chandra Shekhar Ashri, Ramesh C. Kohli, Ms. S. Janani, Ms. Manjula
Gupta, Ms. Asha Jain Madan, R.K. Kapoor, Sumit Kumar, A.A. Khan, P.K.
F
Manohai:, S.K. Verma and B.K. Satija for the appearing parties.
The following order of the Court was delivered :
M. JAGANNADHA RAO. J. This case concerns the proceedings arising
out of an order of this Court dated 4.5.2000 proposing to re-open the quantum
of punishments imposed in departmental inquiries on certain officers of the
G Delhi Development Authority (hereinafter called the DDA) who were connected
with the land of the DDA allotted to Mis Skipper Construction Co. It was
proposed to consider imposition of higher degree of punishments in view of
the role of these officers in the said matter. After directions were given by
this Court that disciplinary action be taken and punishments were imposed,
this Court had no occasion to examine whether the right punishments were
H awarded to the officers in accordance with well known principles of law or
·{
-
-
OM KUMAR v. U.0.1. [M. JAGANNADHA RAO. J.]
697
whether the punishments required any upward revision.
A
The facts of the case limited to the present order are as follows :
By an order dated 29.11.94, this Court requested Justice 0. Chinnappa
Red<;ly (former Judge of this Court}, to investigate into the conduct of the
officials of the DDA including its ex-officio chairman at the relevant time, in B
handing over the possession of the suit land in M/s. Skipper Construction
Pvt. Ltd. before receiving the auction amount in full and also in "conniving"
at the construction thereon as well as at the advertisements given by it for
bookings in the building in question. The learned Judge was also requested
to "look into the legality and propriety of the order dated 4.10.98 passed by
the then ex-officio Chairman of the DDA and the directions given by the C
Central Government under Section 41 of the Delhi Development Act."
Report of Justice Chinnappa Reddy and orders thereon:
Justice Reddy submitted his report on 7.7.95. Thereafter, this Court
accepted the Report and passed an Order of29. I I .95, directing the Department D
of Personnel to initiate disciplinary proceedings against five officers (i) Sri V .S.
Aila,vadi IAS (retired). (ii) Sri K.S. Baidwan, IAS (iii) Sri Virendra Nath IAS,
(iv) Sri R.S. Sethi IAS and (v) Sri Om Kumar IAS. This Court, in its order,
stated that so far as Sri Om Kumar was concerned, only a minor punishment
could be imposed.
Consequent Disciplinary fnquiry:
Thereafter, Sri P.K. Gopinath was appointed as Inquiry Officer on 8.8.96.
E
Report of the Inquiry Officer was received on 31.8.96 so far as Sri Virendra
Nath and Sri Om Kumar were concerned. Copy was sent to the officers on
11.1.96 and replies of the officers were received. Similarly, in the case of Sri F
K.S. Baidwan and Sri R.S. Sethi. Inquiry Officer, Sri P.K. Gopinath was appointed
on 20.8.96, report was received on 31.10.96 and copies were given to the
officers on 14.11. 96 and replies were received from them. As regards, Sri V.S.
Ailawadi, in view of the expiry of four years prescribed in Rule 6(1) (b) (ii)
of the All India Service (Death-cum-Retirement Benefits) Rules, 1958 upon G
which the officer relied, the Department did not take any action.
On 5.2.97 after taking tentative decisions, the cases of the four officers
were referred to the U.P.S.C. as required by the All India Service (Discipline
and Appeal) Rules, 1969. The advice of the U.P.S.C. dated 28.2.97 was received
by the department on 3.3.97. The said advice was favourable to the officers. H
698
SUPREME COURT REPORTS [2000] SUPP. 4 S.C.R.
A Since there was difference in the tentative decisions of the Competent
Authority and the advice of the UPSC, the matter was reconsidered by the
Department of Personnel so far as Sri Virendra Nath and Sri Om Kumar.
Similarly, the Ministry of Home Affairs, in the cases of Sri K.S. Baidwan and
Sri R.S. Sethi, differed from a similar view of the UPSC.
B
It was considered by the Committee of Secretaries that the UPSC must
be asked to reconsider its advice. The Home Ministry was requested to take
action in this behalf in the case of Sri K.S. Baidwan and Sri R.S. Sethi. The
reconsidered advice of the UPSC was received on 16.6.97. It was in favour
of the officers. The matter concerning the four officers was placed again
C before the Committee of Secretaries and then before the respective competent
authorities.
The Orders of Punishment in Respect of Four Officers:
On 27.8.97, the [)epartment of Personel imposed a 'Major' penalty on
D Sri Virendra Nath and a 'minor' penalty of'censure' on Sri Om Kumar. The
Ministry of Home Affairs imposed a 'Major' penalties on Sri K.S. Baidwan
and Sri R.S. Sethi on 27.8.97. the following are the punishments imposed.
E
F
G
H
(I) Sri Om Kumar
(2) Sri Virendra Nath
(3) Sri K.S. Baidwan
· · 'Censure' (Minor penalty)
(Major penalty)--Reduction to the pay of
Rs. 7,500 in the existing grade for a period
of two years with further directions that he
will not earn increment during this period
and that on the expiry of the said i;eriod
the reduction will have the effect of
postponing his further increments. As and
when new pay scales are notified this pay
will be refixed with regard to the penalty
imposed in the revised pay scale with all
the above stipulations.
(Major Penalty)--His pay was to be reduced
by one stage from Rs. 7600 to Rs. 7500 in
the time scale of pay of Rs. 7300-100-7600
for 2 years with immediate effect and he
would not earn increments of pay during
the said period of 2 years with immediate
·{
...
DM KUMAR v. U.0.1. [M. JAGANNADHA RAO, J.]
699
(4) Sri R.S. Sethi
effect, and on expiry thereof, the reduction A
in pay will have effect of postponing future
increments of his pay; in the event of the
time-scale being revised, the refixation was
to be subject to the above stipulations,
(Major Penalty)-His pay be reduced by B
one stage from Rs. 7100 to Rs. 6900 in the
time-scale of Rs. 5900-6700 for 2 years with
immediate effect and he would not earn
increment during the said period, and the
reduction in pay will have the effect of
postponing future increments; in the case C
of pay revision- the refixation was to be
subject to the above stipulations.
Subsequent Litigation in this Court between Skipper and prospective
buyers of flats:
D
Skipper Construction having obtained possession from ODA without
paying the consideration in full, advertised and collected crores of rupees
from would be purchasers. In that process, it collected amounts from more
persons than there were flats. It was the case of the purchasers that the
company had also diverted funds elsewhere.
In that state of affairs, this Court directed possession to be given back
E
by Skipper Construction CO. to DOA, together with the structure under
construction, and permitted DOA to resell the property in auction. The property
was resold by DOA. Out of the amount fetched in re-auction, this court
directed Rs. 16 crores to be deposited in this Court for disbursal among the F
various persons who had earlier deposited monies with Skipper Construction
Co. The genuineness and validity of claims of the depositors had to be gone
into. This Court was, in fact, thereafter flooded with claims. The misery of the
depositors over the years is unprecedented.
Two Commissions were appointed by this Court viz. one in favour of G
Justice 0. Chinnappa Reddy and another in favour of Justice R.C. Lahoti. The
Commission went into the claims of hundreds of depositors from whom Skipper
Construction Co. had collected monies. After the Commissions submitted
reports, a few crores were disbursed to the claimants. There were further claims
before this Court and Justice P.K. Bahri, retired Judge of Delhi High Court was
appointed to go into the further claims. The inquiry, we are told is almost over. H
700
SUPREME COURT REPORTS [2000] SUPP. 4 S.C.R.
A In this process, this court had to spend a lot of time to sort out various
complicated legal and factual issues concerning the claimants. Several orders
passed running into two huge volumes have been passed during the last five
years. Many more orders remain to be passed. In fact, it took considerable
time to bring the directors of Skipper Company/family members before this Court
to see that they cooperate in sorting out the mess that was created. If only
B these officers of DDA had cancelled the contract, encashed the Bank
guarantees in time and had not granted extensions to Skipper Construction
Company, all this litigation could have been e·asily avoided.
c
Show Cause Notice by this Court proposing to refer the matter to the
Vigilance Commission by re-opening the quantum of punishment.
This court felt that the officers of the DDA who dealt with these matters·
at the relevant time were solely responsible for the misery of hundreds of
claimants who had put in their life's earnings in the Skipper Construction
Company, and that these depositors were virtually taken for a ride. This Court
D directed that disciplinary action be initiated and thereafter, proceedings were
initiated and punishments, as above stated, were imposed. Thereafter, this
Court felt tha~ prima facie the punishments imposed on these officers were
not proportionate to the gravity of misconduct and that the punishments
needed to be upgraded. An order was, therefore, passed on 4.5.2000 to reopen the punishments imposed and to refer them for reconsideration by the
E Vigilance Commissioner. Before taking further action, this Court issued notice
to the five officers to show cause. why the question relating to the quantum
of punishments should not be re-opened and referred to the Vigilance
Commissioner for re-examination.
F
G
Replies to show cause and submissions of counsel:
Pursuant thereto, reply affidavits have been filed by the officers and we
are now passing orders in their cases i.e. in the cases of (I) Sri Om Kumar,
(2) Sri Virendra Nath, (3) Sri K.S. Baidwan and (4) Sri R.S. Sethi. The matter
relating to Sri Ailawadi Stood adjourned at the request of learned senior
counsel Sri Kapil Sibal.
We have heard submissions of learned Senior Counsel Sri K. Parasaran
on behalfofSri Om Kumar and of Dr. Rajeev Dhawan on behalfofSri Virendra
Nath. We haye heard learned senior counsel Sri KTS Tutsi on behalf of Sri
K.S. Baidwan and of Sri Gopal Subramaniam on behalf of Sri R.S. Sethi. We
have also heard the submissions of the learned Amicus Curiae, Sri Joseph
H Vellapally and of Sri Dayan Krishnan the Counsel for ODA and Union of
...
..
OM KUMAR v. U.O.l. [M. JAGANNADHA RAO, J.]
701
India. The records of the disciplinary proceedings have also been placed A
before us.
During the course of the hearing, while Sri K. Parasaran, learned Senior
counsel for Sri Om Kumar and Dr. Rajeev Dhawan for Sri Virendra Nath
submitted that the respective punishments awarded to their clients namely,
censure, reduction in pay and increments did not need any enhancement, Sri B
Gopal Subramaniam for Sri R.S. Sethi pointed out that his client had filed a
petition before the Central Administrative Tribunal and the matter is pending.
Sri K.T.S. Tulsi, appearing for Sri Baidwan submitted that his client's role was
so meagre in the entire episode that it was a case where he should have been
exonerated fully. A memorial filed by him is pending before the Competent C
Authority.
Our view in regard to four officers:
Sri R.S. Sethi:
After hearing the submissions on behalf of Sri R.S. Sethi as stated D
above, we were of view that, so far as Sri R.S. Sethi was concerned, inasmuch
as a major punishment had been imposed, we should not go into further
enhancement of punishment, so far as reduction of punishment is concerned,
his case is now pending before the Central Administrative Tribunal. We, had
therefore, stated that it would be for the Tribunal to consider his case in
accordance with law.
Sri Baidwan:
So far as Sri Baidwan is concerned, the basic contention of learned
Senior Counsel, Sri KTS Tulsi is that the major punishment awarded to him
E
is unjustified and that the charge against him nullifies itself since the same F
emanated slightly from the "note" dated 31.5.1982 recorded by Mr. Virendra
Nath. For convenience sake, the "note" is reproduced hereinbelow :
"On 28.5.82 the V.C. had desired that before issuing orders I shall
get in touch with Secretary to L.G. Accordingly, on 29th I got in touch
with the Secretary to L.G. and he asked me to wait till Monday. Since G
there are no further instructions from Secy. to L.G. further action may
be taken as proposed."
Sd/-
(Virendra Nath)
Commission (Lands) H
31.5.82
A
702
SUPREME COURT REPORTS [2000] SUPP. 4 S.C.R.
Mr. Tulsi contended rather strongly that there was existing no evidence
against hiin except for the alleged telephonic instructions appearing in the
"Note" Mr. Tulsi contended that in terms of Rules II and III of AIS Conduct
Rules, there was existing an obligation to have a "note" confirmed in the
event there was any involvement of any other officer and it was on this basis
B the Union Public Service Commission in its advice dat.ed 28th February, 1987
categorically held that though Virendra Nath had recorded a "note" on 31.5 .1982
regarding instruction received on telephone resulting in obtaining stay order
by Mis. Skipper, no action was taken by ¥ice-Chairman to whom the file had
been put up again on 2.6.1982 to confirm the telephonic instructions alleged
to have been received from Baidwan nor was the matter brought to the notice
, C of the Lt. Governor immediately as required under the Rules. The Union
Public Service Commission had further noted that the Vice-Chairman, as a
matter of fact, had stated before Justice Chinnappa Reddy Commission that
he did not recollect exactly the conversation he had with Sri Baidwan on
28.5.1982.
D
Mr. Tulsi contended that the "note" of Sri Virendra Nath regarding the
telephonic instructions was one clearly created by Mr. Virendra Nath to save
his own skin and that this was apparent from the fact that the Vice-Chairman,
DDA had failed to carry out the orders of the Lt. Governor dated 6.4.82, in
which the Lt. Governor had ordered that he did not expect the case to be put
E up before him for the purpose of extension again. Inspite of the clear orders
of the Lt. Governor, the then Vice-Chairman failed to cancel the bid of Mis.
Skipper Constructions on 1.5 .1982 and chose to recommend another extension
and sent the case to the Lt. Governor. This failure on the part of the ViceChairman to take any action for 25 days, itself negated the inference of
collusion between him and the deponent with regard to the alleged delay of
F two days from 29.5.82 to 31.5.82.
~
Mr. Tulsi further relied on the evidence of the former Lt. Governor Shri
S.L. Khurana, conceptually ruling out the possibility of Sri Baidwan's
involvement in the telephone affair and it was on this score Mr. Tulsi contended
G that imposition of major penalty- or for that matter, any penalty- was wholly
unwarranted and the career of Sri K.S. Baidwan had been very seriously
damaged in an otherwise unblelJlished record of service as a bureaucrat for
34 years, thus depriving him of a good chance of promotion to the level of
Secretary to the Government of India.
H
We do find some force in the contention of Mr. Tulsi but we are not
!'
..
OM KUMAR v. U.0.1. [M. JAGANNADHA RAO, J.]
703
expressing any opinion in regard thereto since a "memorial" submitted by Sri A
Baidwan is pending consideration before the appropriate authority. Save and
except recording that the available documentary evidence would definitely
cast a doubt as regards the aspersion cast on to Sri K.S. Baidwan, we are of
the view that this aspect of the matter may be reconsidered by the concerned
authority while dealing with the "memorial". We do not want to express any B
opinion one way or the other on the merits inasmuch as the "memorial" of
Sri Baidwan is pending before the Competent Authority.
We are of the view that in the case of Sri Baidwan. First his "memorial"
be disposed of by the Competent Authority within six weeks from today. In
case it goes in his favour, of course, the matter would end there. But, in case C
it goes against him either wholly or in part, it will be for him to move the
appropriate forum, namely, the Central Administrative Tribunal. In the above
circumstances, we are of the view that it is not necessary for this Court to
refer his case to the Vigilance Commissioner.
Shri Om Kumar and Shri Virendra Nath:
That leaves the cases of Sri Om Kumar, who was awarded a minor
punishment (as directed in the order of this Court dated 29.11.95) and of Sri
Virendra Nath, who was awarded a major punishment.
D
Submissions of counsel and legal Issues emanating therefrom:
E
It was argued at great length by learned senior counsel Sri K. Parasaran
and Dr. Rajeev Dhawan that the question as to the quantum of punishment
to be imposed was for the competent authority and that the Courts would
not normally interfere with the same unless the punishment was grossly
disproportionate. The punishments awarded satisfied the Wednesbury rules. F
On the other hand, learned Amicus Curiae argued that, on the facts of the
case, the cases of these two officers justify reference to the Vigilance
Commissioner .
We agree that the question of the quantum of punishment in disciplinary G
matters is primarily for the disciplinary authority and the jurisdiction of the
High Courts under Article 226 of the Constitution or of the Administrative
Tribunals is limited and is confined to the applicability of one or other of the
well known principles known as Wednesbury principles. (See Associated
Provincial Picture Houses v. Wednesbury Corporation (1948) I KB 223. This
Court had occasion to lay down the narrow scope of the jurisdiction in H
704
SUPREME COURT REPORTS [2000] SUPP. 4 S.C.R.
A several cases. The applicability of the principle of 'proportionality' in
Administrative law was considered exhaustively in Union of India v.
Ganayutham, [ 1997) 7 SCC 463 where the primary role of the administrator
and the secondary role of the Courts in matters not involving fundamental
freedoms, was explained.
B
We shall, therefore, have to examine the cases of Sri Om Kumar and of
c
Sri Virendra Nath from the stand point of basic principles applicable under
Administrative Law, namely, Wednesbury principles and the doctrine of
proportionality. It has, therefore, become necessary to make reference to
these principles and trace certain recent developments in the law.
I (a) Wednesbury principle:
Lord Greene said in 1948 in the Wednesbury case that when a statute
gave discretion to an administrator to take a decision, the scope of judicial
review would remain limited. He said that interference was not permissible
D unless one or other of the following conditions were satisfied-namely the
order was contrary to law, or relevant factors were not considered, or irrelevant
factors were considered; or the decision was one which no reasonable person
could have taken. These principles were consistently followed in UK and in
India to judge the validity of administrative action. It is equally well known
that in 1983, Lord Dip lock in Council for Civil Services Union v. Minister of
E Civil Services, (l 983) 1 AC 768 (called the GCHQ case) summarised the
principles of judicial review of administrative action as based upon one or
other of the following-viz. Illegality, procedural irregularity and irrationality.
He, however, opined that 'proportionality' was a 'future possibility.'
F
(b) Proportionality:
The principle originated in Prussia in the nineteenth Century and has
since been adopted in Germany, France and other European countries. The
European Court of Justice at Luxembourg and the European Court of Human
Rights at Strasbourg have applied the principle while judging the validity of
G administrative action. But even long before that, the Indian Supreme Court
had applied the principle of 'proportionality' to legislative action since
1950, as stated in detail below.
By 'proportionality', we mean the question whether, while regulating
exercise of fundamental rights, the appropriate or least restrictive choice of
H measures has been made by the legislature or the administrator so as to
,..-
j
..
OM KUMAR v. U.0.1. [M. JAGANNADHA RAO, J.]
705
achieve the object of the legislation or the purpose of the administrative order, A
as the case may be. Under the principle, the Court will see that the legislature
and the administrative authority 'maintain a proper balance between the
adverse effects which the legislation or the administrative order may have on
the rights, liberties or interests of persons keeping in mind the purpose which
they were intended to serve'. The legislature and the administrative authority B
are, however, given an area of discretion or a range· of choices but as to
whether the choice made infringes the rights excessively or not is for the
Court. That is what is meant by proportionality.
The above principle of proportionality has been applied by the European
c;ourt to protect the rights guaranteed under the European Convention for the C
Protection of Human Rights and Fundamental Freedoms, 1950 and, in particular,
for considering whether restrictions imposed were restrictions which were
'necessary'-Within Articles 8 to 11 of the said convention (corresponding
to our Article 19( I) and to find out whether the restrictions imposed on
fundamental freedoms were more excessive than required. (Handyside v. UK,
(1976) I EHR p. 737. Articles 2 and 5 of the Convention contain provisions D
similar to Article 21 of our Constitution relating to life and liberty. The
European Court has applied the pi:inciple of proportionality also to questions
of discrimination under Article 14 of the Convention (corresponding to Article
14 of our Constitution). (See European Administrative Law by J. Schwarze,
1992, pp. 677-866.
E
(If) Proportionality and legislation in U.K. & India:
On account of a Chapter on Fundamental Rights in Part III of our
Constitution right from 1950, Indian Courts did not suffer from the disability
similar to the one experienced by English Courts for declaring as F
unconstitutional legislation on the principle of proportionality or reading
them in a manner consistent with the charter of rights. Ever since 1950, the
principle of 'proportionality' has indeed been applied vigorously to legislative
(and administrative action) in India. While dealing with the validity of legislation
infringing fundamental freedoms enumerated in Article 19(1) of the Constitution G
of India-such as freedom of speech and expression, freedom to assessable
peacably, freedom to form associations and unions, freedom to move freely
throughout the territory of India, freedom to reside and settle in any part of
India-this court had occasion to consider whether the ·restrictions imposed
by legislation were dispr~portionate to the situation and were not the least
restrictive of the choices. The burden of proof to show that the restriction H
7Q6
SUPREME COURT REPORTS (2000) SUPP. 4 S.C.R.
A was reasonable lay on the State. 'Reasonable restrictions' under Article 19(2)
to (6) could be imposed on these freedoms only by legislation and Courts had
occasion throughout to consider the proportionality of the restrictions. In
numerous judgments of this court, the extent to which 'reasonable restrictions'
could be imposed was considered. In Chintaman Rao v. State ofU.P., [1950]
SCR 759, Mahajan J, (as he then was) observed that 'reasonable restrictions'
B which the State could impose on the fundamental rights 'should not be
arbitrary or of an excessive nature, beyond what is required for achieving the
objects of the legislation.' 'Reasonable' implied intelligent care and deliberations,
that is, the choice of a course which reason dictated. Legislation which
arbltrarily or excessively invaded the right could not be said to contain the
C quality of reasonableness unless it struck a proper balance between the
rights guaranteed and the control permissible under Article 19(2) to (6).
Otherwise, it must be held to be wanting in that quality. Patanjali Sastri CJ
in State of Madras v. V.S. Row, [1952] SCR 597, observed that the Court must
keep in mind the nature of the right alleged to have been infringed, the
underlying purpose of the restrictions imposed, the extent and urgency of the
D evil sought to be remedied thereby, the disproportion of the imposition, the
prevailing conditions of the time. This principle of proportionality vis-a-vis
legislation was referred to by Jeevan Reddy Jin State of A.P. v. MC Dowell
& Co., [1996] 3 SCC 709 recently. This level of scrutiny has been a common
feature in the High Court and the Supreme Court in the last fifty years.
E Decided cases run into thousands.
Article 2 I guarantees liberty and has also been subjected to principles
of 'proportionality'. Provisions of Criminal Procedure Code, 1974 and the
Indian Penal Code came up for consideration in Bachan Singh v. State of
Punjab, [1980] 2 SCC 684, the majority upholding the legislation. The dissenting
F judgment of Bhagwati J See [1982] 3 sec 24
dealt elaborately with
'proportionality' and held that the punishment provided by the statute was
disproportionate.
So far as Article 14 is concerned, the Courts in India examined whether
G the classification was based on intelligible differentia and whether the differentia
had a reasonable nexus with the object of the legislation. Obviously, when
the Court consi!1ered the question weather the classification was based on
intelligible differentia, the Courts were examining the validity of the differences
and the adequacy of the differences. This is again nothing but the principle
of proportionality. There are also cases where legislation or rules have been
H struck down as being arbitrary in the sense of being unreasonable See Air
....
OM KUMAR ~v. U.0.1. [M. JAGANNADHA RAO, J.)
707
India v. Nergesh Meerza and Ors., (1981] 4 SCC 335 at 372-373. But this latter A
aspect of striking down legislation only on the basis of 'arbitrariness' has
been doubted in State of A.f. v. Mc Dowell and Co., [1996] 3 SCC 709.
In Australia and Canada, the principle of proportionality has been
applied to test the validity of statutes [See Cunliffe v. Commonwealth, (1994)
68 Aust. LJ 791(at827,839) (799, 810, 821). In R. v. Oakes, (1986)26 DLR (4th) B
200 Dickson, CJ of the Canadian Supreme Court has observed that there are
three important components of the proportionality test. First, the measures
adopted must be carefully designed to achieve the objective in question.
They must not be arbitrary, unfair or based on irrational considerations. In
short, they must be rationally connected to the objective. Secondly, the C
means, must not only be rationally connected to the objective in the first
sense, but should impair as little as possible the right to freedom in question.
Thirdly, there must be 'proportionality' between the effects of the measures
and the objective. See also Ross v. Brunswick School Dishut, No. 15 [1996]
1 SCR 825 at 872 referring to proportionality. English Courts had no occasion
to apply this principle to legislation. Aggrieved parties had to go to the D
European Court at Strasbourg for a declaration.
In USA, in City of Boerne v. Flores, [1997] 521 U.S. 507, the principle
of proportionality has been applied to legislation by stating that "there must
be congruence and proportionality between the injury to be prevented or E
remedied and the means adopted to that end".
Thus, the principle that legislation relating to restrictions on fundamental
freedoms could be tested on the anvil of 'proportionality' has never been
doubted in India. This is called 'primary' review by the Courts of the validity
of legislation which offended fundamental freedoms.
F
II/A Proportionality and Administration Action (In England):
In Administrative Law, the principle of'proportionality' has been applied
in several European Countries. But, in England, it was considered a future
possibility in the GCHQ case by Lord Diplock. In India, as stated below, it G
has
always been applied to administrative action affecting fundamental
freedoms.
(i) From Wednesbury to strict scrutiny or proportionality:
The development of the principle of 'strict Scrutiny' or 'proportionality' H
708
SUPREME COURT REPORTS [2000] SUPP. 4 S.C.R.
A in Administrative Law in England is, however, recent: Administrative action
was traditionally being tested on Wednesbury grounds. But in the last few
years, administrative action affecting the freedom of expression or liberty has
been declared invalid in several cases applying the principle of'strict scrutiny'.
ln the case of these freedoms, Wednesbury principles are no longer applied.
The Courts in England could not expressly apply proportionality in the absence
B of the Convention but tried to safeguard the rights zealously by treating the
said rights as basic to the Common Law and the Courts then applied the strict
scrutiny test. In the Scatcher Case Att. General v. Guardian Newspapers
ltd., (No.2) (1990) 1 AC I 09 (at pp. 283-284), Lord Goff stated that there was
no inconsistency between the Convention and the Common Law. In Derbyshire
C Country Council v. Times Newspapers ltd., ( 1993) AC 534, Lord Keith treated
freedom of expression as part of Common Law, Recently, in R v. Secretary of
State for Home Department, Ex P. Simms, [1999] 3 All ER 400 (H.L.), the right
of a prisoner to grant an interview to a journalist was upheld treating the right
as part of the Common Law. Lord Hobhouse held the policy of the administrator
was disproportionate. The need for a more intense and anxious judicial scrutiny
D in administrative decisions which engage fundamental human rights was reemphasised in R v. lord Saville Ex. pt., [I 999] 4 All ER 860 870, 872 CCA.
In all these cases, the English Courts applied the 'strict scruti~y' test rather
than describe the test as one of 'proportionality'. But, in any event, in respect
E
of these rights 'Wednesbury' rule has ceased to apply.
·
(ii) Brind and proportionality: Primary and Secondary review:
However, the principle of'Strict Scrutiny' or 'proportionality' and primary
review came to be explained in R v. Secretary of State for the Home Department.
ex. P. Br ind, ( 1991) I A.C. 696. That case related to directions given by the
F
Home Secretary under the Broadcasting Act, 1981 requiring BBC and IBA to
refrain from broadcasting certain matters through persons who represented
organisations which were prescribed under legislation concerning the
prevention of terrorism. The extent of prohibition was linked with the direct
statement made by the members of the organisations. It did not however, for
example, preclude the broadcasting by such persons through the medium of
G a film, provided there was a 'voice-over' account, paraphrasing that they said.
The applicant's claim was based directly on the European Convention of
Human Rights. Lord Bridge noticed that the Convention rights were not still
expressly engrafted into English Law but stated that freedom of expression
was.basic to the Common Law and that, even in the absence of the Convention,
H English Courts could go into the question (See p. 748-749).
,..
OM KUMAR v. U.O.l. (M. JAGANNADHA RAO, J.)
709
" ........