Skip to content


H.P. Thakore Vs. State of Gujarat and ors. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtGujarat High Court
Decided On
Case NumberSpl. Civil Appl. No. 1310 of 1974
Judge
Reported in(1979)0GLR109; (1979)ILLJ339Guj
ActsConstitution of India - Article 226
AppellantH.P. Thakore
RespondentState of Gujarat and ors.
Excerpt:
.....cannot be retained in government service without detriment to the public interest or the interest of the administration. the expression 'determination' has inter alia been defined to mean 'to given decision' or 'to ascertain precisely' in the concise oxford dictionary, fifth..........a fault. (4) in order not to attract the charge of arbitrariness it has to be ensured that the penalty imposed is commensurate with the magnitude of the fault. surely one cannot rationally or justly impose the same penalty for giving a slap as one would impose for homicide. (5) when different categories of penalties can be imposed in respect of the alleged fault one of which is dismissal from service, the disciplinary authority per force is required to consult himself for selecting the most appropriate penalty from out of the range of penalties available that can be imposed having regard to the nature, content and gravity of the default. unless the disciplinary authority reaches the conclusion that having regard to the nature, content and magnitude of the fault committed by the.....
Judgment:

Thakkar, J.

1. A question of life-or-death-significance relating to service jurisprudence as to whether before imposing the economic death penalty of dismissal or removal from service a disciplinary authority is bound to apply his mind to the three vital considerations, namely, (1) as regards the nature and magnitude of the established charge, (2) as regards the desirability or otherwise of retaining the Government servant in service in the context of the charges found proved against him and (3) as to whether a penalty lesser than the extreme penalty of dismissal or removal would prove adequate, and several other questions have surfaced in this petition under Art. 226 of the Constitution of India instituted by a Talati-cum-Mantri who was dismissed from service at the conclusion of a departmental proceedings.

* * * * *

[His Lordship after discussing the evidence held that it was abundantly clear that the finding on the point of the guilt of the petitioner in respect of the different charges as also on the point of the extent of the penalty was vitiated by reason of the manifest bias on the part of Mr. Kadia both in respect of the subject-matter as also in view of his personal prejudice against the petitioner. His Lordship further observed :]

* * * * *

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

(1) In a disciplinary proceeding for an alleged fault of an employee punishment is imposed not in order to seek retribution or to give vent to feeling of wrath.

(2) The main purpose of a punishment is to correct the fault of the employee concerned by making him more alert in the future and to hold out a warning to the other employees to be careful in the discharge of their duties so that they do not expose themselves to similar punishment.

(3) It is not expedient in the interest of the administration to visit every employee against whom a fault is established with the penalty of dismissal and to get rid of him. It would be counter productive to do so for it would be futile to expect to recruit employees who are so perfect that they would never commit any fault. And citizens would be deterred from joining Government service if the principle of security of service is scuttled and every employee renders himself liable to lose his job, incur social stigma thereby, and exposes his entire family to misery if he commits a fault.

(4) In order not to attract the charge of arbitrariness it has to be ensured that the penalty imposed is commensurate with the magnitude of the fault. Surely one cannot rationally or justly impose the same penalty for giving a slap as one would impose for homicide.

(5) When different categories of penalties can be imposed in respect of the alleged fault one of which is dismissal from service, the disciplinary authority per force is required to consult himself for selecting the most appropriate penalty from out of the range of penalties available that can be imposed having regard to the nature, content and gravity of the default. Unless the disciplinary authority reaches the conclusion that having regard to the nature, content and magnitude of the fault committed by the employee concern it would be risky to retain him in Government service, the maximum, penalty of dismissal cannot be imposed. If a lesser penalty can be imposed without jeopardizing the interest of the administration the disciplinary authority cannot impose the maximum penalty of dismissal from service. He is bound to ask his inner voice and rational faculty whether the penalty lesser than the penalty sought to be imposed can be imposed without jeopardizing the interests of the service.

(6) It cannot be overlooked that by and large it is because the maximum penalty is imposed and total ruination stares one in the eyes that the employee concerned is obliged to approach the Court and avail of the costly and time consuming machinery to challenges in desperation the order passed by the disciplinary authority. If a lesser penalty was imposed, he might not have been obliged to make recourse to costly legal proceedings which result in loss of public time and also result in considerable hardship and misery to the employee concerned.

(7) When the disciplinary proceedings end in favour of the employee the State has often to pay back wages say for about 5 years without being able to take work from the employee concerned. The public exchequer suffers. On the other hand, the employee concerned would have had to suffer economic misery and mental torture for all these years. Even the misery of being obliged to remain idle without work would constitute an unbearable burden. And when the curtain drops everyone is left with a bitter taste in the mouth. All because extreme penalty of dismissal or removal is imposed instead of a lighter one.

Having regard to these considerations the disciplinary authority is bound to apply his mind carefully to this aspect. In the present case it is obvious that he has given no thought to the relevant considerations involved in imposing the penalty of dismissal. Under the circumstances, the impugned order deserves to be quashed also on the ground that it suffers from the vice of non-application of mind on the part of the disciplinary authority to a vital function entrusted to him. In the present case it does not appear that the disciplinary authority has applied his mind in respect of each proved charge in order to ascertain its magnitude with a view to inform himself whether the charge was so serious that the petitioner deserved to be dismissed from service. He has simply made a reference in a general and vague manner to the accusations which formed the subject-matter of the charge sheet. Which particular charge is considered serious enough to merit the penalty of dismissal it is difficult to find out that the impugned order. Nor is it possible to find out whether the disciplinary authority considered the charges to be of such a serious character as to merit an order of dismissal. It must be realised that it cannot be the ipse dixit of the disciplinary authority. It is not every charge that merits the extreme penalty of dismissal, in order to reach an intelligent decision as to whether or not the charge is serious enough, one has to consider the nature of the duties performed, the consequences of the fault attributed to the Government servant, the loss or damage sustained by the administration on account of the alleged fault, as also to consider whether the nature of the charge is such that the person concerned cannot be retained in Government service without detriment to the public interest or the interest of the administration.

3. Again, the present case Rule 7(12) (a) in terms enjoins that the disciplinary authority shall determine the penalty after applying his mind to (1) the record of the enquiry, (2) representation made by the delinquent, (3) the report of the inquiry officer and (4) the advice tendered by the Board. The expression 'determine' has been advisedly and purposefully employed. It has great significance. The expression 'determination' has inter alia been defined to mean 'to given decision' or 'to ascertain precisely' in the Concise Oxford Dictionary, Fifth Edition. 'To decide' means to give rational judgment after considering the pros and cons of the matter. As the rule in terms enjoins that the disciplinary authority is bound to apply his mind to the aforesaid is bound to apply his mind to the aforesaid four aspects and to 'determine' the question of penalty, the order imposing the penalty must show that there has been application of mind to the aforesaid aspects and the relevant aspects have entered into consideration in rendering the decision by a process of rationalisation. It is only when the order itself gives a clue to the factors which have weighed with the disciplinary authority in deciding upon the punishment of dismissal that one can say that there has been application of mind. Only then can it be realised that relevant and germane factors (and none others) have entered into the equation. There can be no determination or decision which does not disclose that the 'plus' and 'minus' factors and for and 'against' considerations have been arraigned in the weighing scales. The order must ex facie show why the maximum penalty of dismissal is selected from out of the list of alternatives and why a less serious penalty has been considered to be inadequate. If selecting a maximum penalty and naming it from out of the list of alternative penalties which could have been imposed cannot be arbitrarily done and it cannot be matter of ipse dixit of the disciplinary authority, he has to inform himself of the relevant consideration and to re-assure himself that a particular penalty deserves to be imposed in order to meet the requirements of the situation. It will not be sufficient for him to say in a general vague and omnibus manner that having regard to the circumstances of the case the employee concerned deserves to be dismissed. The disciplinary authority was bound to take into consideration the gravity of the charge, the nature of its consequences, whether the charge warranted an inference as regards his honest, integrity or uprightness, whether the fault was such as had resulted in serious detriment to the public interest. All these were question which the disciplinary authority was bound pose to himself and to answer to his own satisfaction.

4. It may be that each charge taken individually mat not be serious enough and yet taking an over-all and cumulative view the disciplinary authority may consider it appropriate to impose the maximum penalty. But then the disciplinary authority is bound to apply his mind to this aspect. It is not sufficient for him merely to say that he has considered the report and the advice and having regard to the nature of the charges (which mysterious expression may be used in a general way) the penalty of dismissal deserves to be imposed. The disciplinary authority is also bound to ask himself the question as to whether the penalty of dismissal from service is the only penalty which can be imposed having regard to the nature of the charges levelled against the Government servant concerned. He has to ask himself the question as to whether a lesser penalty will meet the ends of justice. If the law enjoins that a person accused of every petty offences must be heard on the question of sentence and that the sentence must be neither too lenient, nor too harsh, but just, even when the penalty likely to be imposed is penalty of fine or a short term of imprisonment, there is greater reason for insisting on the disciplinary authority discharging this very delicate function in relation to the life and career of the employee concerned in conformity with the aforesaid principles. He has to stake a neat balance and to determine a just penalty which cannot be characterized either as too lenient or too harsh. May be he commits an error and a different view is possible. But at least he is bound to make an effort by weighing the pros and cons of the every charge from the standpoint the gravity of the offence and the compulsion to impose the maximum penalty. After making an honest attempt at ascertaining the just penalty called for in the facts and circumstances of the case, he can pass an appropriate order of punishment. But if he makes no attempt, it cannot be said that he has discharged the quasi-judicial function in the manner required by law an it cannot be said that he has applied his mind to this most important function. The order, therefore, deserves to be quashed.

* * * * *

[The rest of the judgment is not material for the reports].


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //