Holding

The removal of the employee was grossly disproportionate and the High Court could not re‑examine the Inquiry Officer's factual findings, thus the employee must be reinstated without back wages.

Summary

Mukul Kumar Choudhuri, a System Officer of Coal India, overstayed his sanctioned leave and was absent without authorization for six months. He admitted the charges in a departmental inquiry, after which the Inquiry Officer found the misconduct proved and recommended removal from service. The High Court set aside the removal, reinstating him without back wages; the Division Bench later awarded back wages, which the employer appealed. The Supreme Court held that the High Court could not re‑evaluate the factual findings of the Inquiry Officer, but could examine whether the punishment was proportionate. It found the removal to be grossly disproportionate to the misconduct and ordered reinstatement without any back wages. The Court allowed the appeals in part, directing reinstatement without back wages and dismissing the employer’s claim for back wages.

Issues considered

The scope of Article 226 writ jurisdiction in reviewing departmental inquiries and factual findings.
Whether the High Court can substitute its own findings on the proof of misconduct.
Whether the punishment of removal from service is proportionate to the charge of unauthorized absence for six months.

Subjects

service lawdisciplinary actionremoval from serviceproportionalityjudicial reviewArticle 226back wagesreinstatementmisconductunauthorised absence

Judgment

(2009] 13 (ADDL.) S.C.R. 487

CHAIRMAN-CUM-MANAGING DIRECTOR, COAL INDIA A
LIMITED & ANR.
v.
MUKUL KUMAR CHOUDHURI & ORS.
(Civil Appeal Nos. 5762-63 of 2009)
B
AUGUST 24, 2009
[P. SATHASIVAM AND R.M. LODl:iA, JJ.]
""' ~

CONSTITUTION OF /NOIA, 1950:
c
Article 226 - Writ jurisdiction - Scope of - Employee
removed from service on charges of overstaying sanctioned
leave and absenting himself unauthorisedly - Reinstatement
by High Court with back wages - Held : It is not open to High
Court to examine findings recorded by Inquiry Officer, as a D
f court of appeal and reach its own conclusions - In the instant
case, in absence of any procedural il/egalitylirregu/arity in
conducting of departmental proceedings, there is no scope
to differ with conclusions arrived at by Inquiry Officer about
proof of charges - However, keeping in with doctrine of
E
proportionality, power ofjudicia~ review can be exercised if the
punishment awarded is grossly in excess to the fault - In the
~
instant case, punishment is not only unduly harsh but also
)- grossly in excess to the a/legations - Accordingly, employers
shall reinstate the employee forthwith but without any back
wages - Administrative Law - Doctrine of proportionality - F
Judicial Review - Service Law - Coal India Executives
Conduct Discipline and appeal Rules, 1978 - r.29.

SERVICE LAW
G
COAL /NOIA EXECUTIVES CONDUCT, DISCIPLINE
~ AND APPEAL RULES, 1978:

r.29 - Misconduct - Employee overstaying sanctioned

487 H
488 SUPREME COURT REPORTS [2009) 13 (ADDL.) S.C.R.

A leave and absenting himself unauthorisedly - Removal from
service - Held: Punishment is grossly in excess of the charge
established - Reinstatement without back wages would meet
the ends of justice - Constitution of India, 1950 - Article 226.
Respondent No.1, a System Officer in the appellant
8
Company, overstayed the sanctioned leave and absented
himself unauthorisedly for six months. In the disciplinary
inquiry he admitted the charges, but stated that his
absence was due to the personal reasons which were
beyond his control and could not be explained. The
C Inquiry Officer recorded a finding that the charges were
established. The disciplinary authority ordered removal
of respondent No. 1 from service. In the writ petition, the
single Judge of the High Court set aside the order of
removal and directed reinstatement of the employee but
D without back wages. The Division Bench allowed the
appeal of the employee for back wages and dismissed
that of the employer challenging the order of
reinstatement. Aggrieved, the employer filed the appeals.

E Allowing the appeals in part, the Court

HELD: 1.1. It has been time and again said that it is
not open to the High Court to examine the findings
recorded by the Inquiry Officer as a court of appeal and
reach its own conclusions; and that the power of judicial
F review is not directed against the decision but is confined
to the decision making process. In the instant case, the
delinquent having admitted the charges, no scope is left
to differ with the conclusions arrived at by the Inquiry
Officer about the proof of c~arges. In the absence of any
G procedural illegality or irregularity in conducting of the
departmental enquiry, it has to be held that the charges
against the delinquent stood proved and warranted no
interference. [Para 18] (498-G-H; 499-A]

H
CHAIRMAN-CUM-MANAGING DIRECTOR, COAL 489
INDIA LTD. v. MUKUL KUMAR CHOUDHURI
v' - r~
State of Andhra Pradesh and Ors. vs. Chitra VenkataRao A
(1975) 2 sec 557, relied on.

1.2. The Division Bench of the High Court, like the
single Judge fell into grave error in not adequately
adverting to the fact that the charges were admitted by 8
the delinquent unequivocally and unambiguously and, as
such, his misconduct was clearly established. Therefore,
.... the view of the High Court cannot be concurred with .
[Para 21] [500-C]

2.1. So far as the punishment is concerned, the c
doctrine of proportionality is a well recognized concept
of judicial review. What is otherwise within the
discretionary domain and sole power of the decision
.. maker to quantify punishment once the charge of
-'(
misconduct stands proved, such discretionary power is D
exposed to judicial intervention if exercised in a manner
which is out of proportion to the fault. Award of
punishment which is grossly in access to the allegations
cannot claim immunity, and remains open for interference
under limited scope of judicial review. One of the tests to E
be applied while dealing with the question of quantum of
punishment would be: would any reasonable employer
" have imposed such punishment in like circumstances?
Obviously, a reasonable employer is expected to take
into consideration measure, magnitude and degree of F
misconduct and all other relevant circumstances and
exclude irrelevant matters before imposing punishment.
{Para 26] [508-G-H; 509-A-B]

Union of India and Anr. vs. G. Ganayutham (1997) 7 SCC
463; Ranjit Thakur vs. Union of India (1987) 4 SCC 611; State G
~'

'
of Maharashtra vs. M.H. Mazumdar(1988) 2 SCC 52; Sardar
Singh vs. Union of/ndia (1991) 3 SCC 213; Tata Cellular vs.
Union of India (1994) 6 SCC 651; State of A.P. vs. McDowell
& Co. (1996) .3 SCC 709; and Coimbatore District Central
H
490 SUPREME COURT REPORTS (2009] 13 (ADDL) S.C.R.

A Cooperative Bank vs. Coimbatore District Central
Cooperative Bank Employees Association & Anr. (2007) 4
sec
669, relied on.

Associated Provincial Picture Houses Ltd. vs.
8 Wednesbury Corporation (1947) 2 All ER 680; Council of
Civil Service Unions vs. Minister for Civil Service (1984) 3
All ER 935; R. VS. Goldstein (1983) 1 All ER 434; and R. vs.
Secretary for Home Deptt. Ex.p. Brind (1991) 1 All ER 720,
referred to.

C 2.2. In the instant case, the misconduct of the
delinquent was unauthorised absence fram duty for six
months, and upon being charged of such misconduct, he
fairly admitted his guilt and explained the reasons Tor his
absence by stating that he did not have any intention nor
D did he desire to disobey the order of higher authority or
violate any of the Company's Rules and Regulations, but
the reason was purely personal and beyond his control;
and, as a matter of fact, he had sent his resignation which
was not accepted. Therefore, the order of removal cannot
E be held to be justified, since no reasonable employer
would have imposed extreme punishment of removal in
like circumstances. The punishment is not only unduly
harsh but is also grossly in excess to the allegations.
[Para 26) [509-B-D]
F 2.3. Ordinarily, this Court would have sent the matter
back to the appropriate authority for reconsideration on
the question of punishment but in the facts and
circumstances of the case, this exercise may not be
proper. The demand of justice would be met if
G respondent No. 1 is denied back wages for the entire
period by way of punishment for the proved misconduct
of unauthorised absence for six months. The appellants
shall reinstate respondent No.1 forthwith, but he will not
be entitled to any back wages from the date of his removal
H
CHAIRMAN-CUM-MANAGING DIRECTOR, COAL . 491
INDIA LTD. v. MUKUL KUMAR CHOUDHURI
--~ until reinstatement [Para 26 and 27] [509-E-G] A

Case Law, Reference:
(1975) 2 sec 557 relied on para 17
(1997) 1 sec 463 relied on para 23 B
(1947) 2 All ER 680 referred to para 23
~ (1984) 3 All ER 935 referred to para 23
(1983) 1 All ER 434 referred to para 23
c
(1991) 1 All ER 720 referred to para 23
(1987) 4 sec 611 relied on para 23
(1991) 3 sec 213 relied on para 23
(1988) 2 sec 52 relied on para 23 D

(1994) 6 sec 651 relied on para 23
(1996) 3 sec 109 relied on para 23
(2001) 4 sec 669 relied on para 25 E
CIVIL APPELLATE JURISDICTION: Civil Appeal No.
5762-5763 of 2009.

From the Judgment & Order dated 22.9.2008 of the High
Court of Calcutta in APOT No. 492 of 2007 and APOT No. 457 F
of 2007.

Gopal Subramanium, SG, Gautam Awasthi, Ajay Pal for
the Appellant.
G
Caveator-in-person.

The judgment of the Court was delivered by

R.M. LODHA, J. 1. Leave granted.
H
492 SUPREME COURT REPORTS [2009) 13 (ADDL.) S.C.R.

A 2. These two appeals by special leave are directed ~--

against the judgment passed by the Division Bench of High
Court of Judicature at Calcutta on September 22, 2008 whereby
the· Division Bench affirmed the order of the Single 'Judge
passed on July 26, 2007 insofar as reinstatement of the
B Respondent No. 1 was concerned but modified the order of tJle
Single Judge by awarding him back wages.

3. Mukul Kumar Chaudhuri, Respondent No. 1, joined his ~
service with the Eastern Coalfields in 1992 as System Officer.
In 1996, he was transferred to North-Eastern Coalfields,
c Assam. On September 16, 1998, the Respondent No. 1
proceeded on sanctioned leave upto September. 29, 1998.
However, after expiry of his sanctioned leave, he did not report
to duty and despite reminders remained absent for six months
without any authorization.
D t
4. On March 18, 1999, the Director-in-Charge, North-
Eastern Coalfields initiated disciplinary enquiry again~J the
Respondent No. 1 und~r Rule 29 of the Coal India Executives
Conduct Discipline and Appeal Rules, 1978 (for short, 'Conduct
E Rules, 1978') for misconduct on his part by -(i) absenting
himself without leave; (ii) Overstaying the sanctioned leave for
more than four consecutive days; and (iii) Desertion of job and
failure to maintain integrity and devotion to duty.
.,
5. On May 31, 1999, the Respondent No. 1 sent letter of
F resignation. His resignation was, however, not accepted by the
Management and, accordingly, he joined his duty on September
10, 1999.

6. In the enquiry proceedings, the Respondent No. 1
G appeared before the Inquiry Officer and admitted the charges
leveled against him. The Inquiry Officer concluded the enquiry
and vide his report dated October 5, 1999 held that the
delinquent was guilty of the charges as mentioned in the
charge-sheet. I

H
CHAIRMAN-CUM-MANAGING DIRECTOR, COAL INDIA 493
LTD. v. MUKUL KUMAR CHOUDHURI [R.M. LODHA, J.]
7. Upon receipt of the enquiry report, a second show A
--'1 cause notice dated December 10, 1999 was issued to the
Respondent No. 1 indicating therein that in view of the findings
recorded by the Inquiry Officer, termination of his services was
proposed. The delinquent was asked to show cause as to why
the punishment of termination of service be not awarded to him. B
A copy of the enquiry report was sent along with the second
show cause notice.
~ ,_
8. The Respondent No. 1 responded to the second show
cause notice. He submitted that he sincerely wanted to leave
the Company for several personal problems but these were
c
aggravated by unsympathetic attitude of the Management in not
accepting his resignation. He submitted that he deserved no
punishment and that hts explanation be considered favourably.
9. By an Office Order dated November 29, 2000, the D
Respondent No. 1 was removed from service with immediate
effect. The Respondent No. 1 pursued the departmental remedy
but without any success. He also approached Calcutta High
Court on more than one occasiori raising grievance of non-
consideration of the departmental appeal and the review E
application before Reviewing Authority and the departmental
authorities not passing the reasoned order. It is not necessary
to refer to these proceedings in details. Suffice it to say that
• as directed by the High Court, he challenged the order of
~
removal before the Board of Directors which came to be F
dismissed on August 17, 2006. Then, he again approached the
High Court by filing writ petition being Writ Petition No. 1334
of 2006.

10. The Single Judge of the High Court by his judgment
delivered on July 26, 2007 allowed the writ petition, set aside G
the impugned orders and directed the reinstatement of
-.(
Respondent No. 1. The Single Judge, however, did not award
back wages to the Respondent No. 1 but declared that he be
treated to be in continuous service without any break and
without affecting his seniority. H
494 SUPREME COURT REPORTS [2009] 13 (ADDL.) S.C.R.

A 11. The order of the Single Judge was challenged in
separate appeals by both parties before the Division Bench.
The appeal preferred by the present appellants was dismissed
while the appeal preferred by the Respondent No. 1 was
allowed and it was held that he was entitled to back wages for
B the period on and from the year 2000 until. reinstatement.
12. We heard Mr. Gopal Subramanium, learned Solicitor
General and the Respondent No. 1 in-person.
~ ·~

13. Inter alia, the misconduct alleged against the
c Respondent No. 1 was unauthorized absence from duty for
more than six months. The delinquent admitted the charges
before the Inquiry Officer. He stated :

"I admit the charges. However, I desire to state
D reasons for my absence and is given below:

(i) I did not have any intention nor desire of disobeying
order of higher authority or violate any of the Company's
rule and regulations and.

E (ii) The reason is purely personal which cannot be
produced by any evidence to prove and is beyond my
control."

14. The admission on the part of delinquent before the
...
Inquiry Officer leaves no manner of doubt that the charges
1
F
against the delinquent stood fully proved. He was given second
show cause notice and a copy of the enquiry report was
annexed thereto. He sent his written response to the second
show cause on July 15, 2000.

G 15. Office Order dated November 29, 2000 reads thus :
"Coal India ltd. )"--- •
10, Netaji Subash Road,
Calcutta - 700001
Ref. No. CIUC-5A(iii)/740 Dated
H
CHAIRMAN-CUM-MANAGING DIRECTOR, COAL INDIA 495
LTD. v. MUKUL KUMAR CHOUDHURI [RM. LODHA, J.]

29.11.2000 A

ORDER

WHEREAS a Memorandum No. NEC/ EE/DIC/99/
10/ 621 dated 18.03.99 was issued to Sri M.K. Choudhury,
Manager (Systems), North Eastern Coalfields for B
unauthorized absence from duty w.e.f. 30.09.1998, and

WHEREAS the written explanation submitted by Shri
Choudhury Vide dated 31.05.99 having been found not
satisfactory, a departmental ·enquiry was ordered and c
conducted wherein Shri Choudhury fully participated. The
Inquiring Authority submitted his report wherein the charge
of unauthorized absence w.e.f. 30.09.98 against Sri M.K.
Choudhury, was proved beyond doubt. A showcause
Notice along with the copy of the enquiry report was also 0
sent to him for making representation thereon, and;

WHEREAS the, Chairman-cum-Mg. Director, Coal
India Limited, after careful consideration of the
memorandum dated 18.03.1999 report of the Inquiring
Authority dated 05.10.99 enquiry proceedings, E
representation dated 15.07.2000 of Shri M.K. Choudhury
and other documents on record has come to the conclusion
that the Charge of unauthorized absence w.e.f. 30.09.98
against Shri M.K. Chowdhury, Manager (Systems), NEC
has been proved beyond doubt. F

NOW THEREFORE, the Chairman-cum-Mg.
Director, Coal India Limited as Disciplinary Authority,
considering the gravity of the offence has imposed the
penalty of "removal from service" on Sri M.K. Choudhury, G
Manager (Systems), North Eastern Coalfields with
immediate effect. Accordingly, Sri Choudhury is hereby
removed from service with immediate effect.

This issues with the approval of Competent
Authority. H
496 SUPREME COURT REPORTS [2009] 13 (ADDL.) S.C.R.

A (N.K. Sharma)
)--...
Director (Technical)"

16. It is apparent therefrom that it is the disciplinary authority
who took the decision of imposition of penalty of removal. The
B issuance of the order is by Director Technical only. There is no
procedural illegality or irregularity in the disciplinary

c
proceedings. The charge of unauthorized absence for more
than six months is admitted by the delinquent and clearly
established.

17. In the case of State of Andhra Pradesh and Others v.
~
-
Chitra Venkata Rao1, this Court considered the scope of
judicial review in dealing with departmental enquiries and held:

"21. The scope of Article 226 in dealing with departmental
D inquiries has come up before this Court. Two propositions
;...
were laid down by this Court in State of A.P. v. S. Sree
Rama Rao (AIR 1963 SC 1723). First, there is no warrant
for the view that in considering whether a public officer is
guilty of misconduct charged against him, the rule followed
E in criminal trials that an offence is not established unless
proved by evidence beyond reasonable doubt to the
satisfaction of the Court must be applied. If that rule be not
applied by a domestiq tribunal of inquiry the High Court in
a petition under Article 226 of the Constitution is not "
1
F competent to declare: the order of the authorities holding
a departmental enqu,iry invalid. The High Court is not a
court of appeal underI Article
•
226 over the decision of the
authorities holding a departmental enquiry against a public
servant. The Court is, concerned to determine whether the
G enquiry is held by an authority competent in that behalf and
according to the procedure ·prescribed in that behalf, and
whether the rules of natural justice are not violated. .,..,....
Second, where there is some evidence which the authority
entrusted with the duty to hold the enquiry has accepted
H 11. (1975) 2 sec 557.
CHAIRMAN-CUM-MANAGING DIRECTOR, COAL INDIA 497
LTD. v. MUKUL KUMAR CHOUDHURI [R.M. LODHA, J.]
,.,
and which evidence may reasonably support the conclusion A
...-...\ that the delinquent officer is guilty of the charge, it is not
the function of the High Court to review the evidence and
to arrive at an independent finding on the evidence. The
High Court may interfere where the departmental
authorities have held the proceedings against the B
delinquent in a manner inconsistent with the rules of natural
justice or in violation of the statutory rules prescribing the
mode of enquiry or where the authorities have disabled
themselves from reaching a fair decision by some
considerations extraneous to the evidence and the merits c
of the case or by allowing themselves to be influenced by
irrelevant considerations or where the conclusion on the
very face of it is so wholly arbitrary and capricious that no
reasonable person could ever have arrived at that
conclusion. The departmental authorities are, if the enquiry D
' ~
is otherwise properly held, the sole judges of facts and if
there is some legal evidence on which their findings can
be based, the adequacy or reliability of that evidence is
not a matter which can be permitted to be canvassed
before the High Court in a proceeding for a writ under
E
Article 226.

... 22 •.......

~
23. The jurisdiction to issue a writ of certiorari under Article
226 is a supervisory jurisdiction. The Court exercises it not F
as an appellate court. The findings of fact reached by an
inferior court or tribunal as a result of the appreciation of
evidence are not reopened or questioned in writ
proceedings. An error of law which is apparent on the face
of the record can be corrected by a writ, but not an error
G
of fact, however grave it may appear to be. In regard to a
~
finding of fact recorded by a tribunal, a writ can be issued
.,,,. if it is shown that in recording the said finding, the tribunal
had erroneously refused to admit admissible and material
evidence, or had erroneously admitted inadmissible
H
498 SUPREME COURT REPORTS [2009) 13 (ADDL.) S.C.R.
....
!

A evidence which has influenced the impugned finding. Again
. if a finding of fact is based on no evidence, that would be ~.--,.--

regarded as an error of law which can be corrected by a
writ of certiorari. A finding of fact recorded by the Tribunal
cannot be challenged on the ground that the relevant and
B material evidence adduced before the Tribunal is
insufficient or inadequate to sustain a finding. The
adequacy or sufficiency of evidence led on a point and the
inference of fact to be drawn from the said finding are
within the exclusive jurisdiction of the Tribunal. See Syed ~

c Yakoob v. K.S. Radhakrishnan (AIR 1964 SC 477).

24. The High Court in the present case assessed the entire
evidence and came to its own conclusion. The High Court
was not justified to do so. Apart from the aspect that the
High Court does not correct a finding of fact-on the ground
D that the evidence is not sufficient or adequate, the evidence
in the present case which was considered by the Tribunal ).._

cannot be scanned by the High Court to justify the
conclusion that there is no evidence which would justify the
finding of the Tribunal that the respondent did not make the
E journey. The Tribunal gave reasons for its conclusions. It
is not possible for the High Court to say that no reasonable
person could have arrived at these conclusions. The High )

Court reviewed the evidence, reassessed the evidence
and then rejected the evidence as no evidence. That is i
F precisely what the High Court in exercising jurisdiction to
issue a writ of certiorari should not do."
18. It has been time and again said that it is not open to
the High Court to examine the findings recorded by the Inquiry
Officer as a Court of Appeal and reach its own conclusions and
G
that power of judicial review is not directed against the decision
but is confined to the decision making process. In a case such ...,.,-
as the present one where the.delinquent admitted the charges, .....
no scope is left to differ with the conclusions arrived at by the
Inquiry Officer about the proof of charges. In the absence of any
H

"'
CHAIRMAN-CUM-MANAGING DIRECTOR, COAL INDIA 499
LTD. v. MUKUL KUMAR CHOUDHURI [R.M. LODHA, J.]
• procedural illegality or irregularity in conduct of the departmental A
\---1
enquiry, it has to be held that the charges against the delinquent
stood proved and warranted no interference.
;.
t9. The Single Judge of the High Court in paragraphs 43
and 44 of the judgment observed thus:
B
"43. This Court is of the view that the so-called order dated
29.11 :2000 is a mere communication WITHOUT
y ACTUALLY serving the original Order of the Disciplinary
Authority. Merely transmitting the decision of the
Disciplinary Authority was not sufficient since this was a c
matter involving the punishment of removal from service
entailing civil consequences.

44. We are dealing with a case of removal from service
for an alleged absence of 6(six) months. This Court is of D
' .A the view. that the Respondents were bound to adhere to a
fair and transparent procedure by firstly serving the actual
order of the Disciplinary Authority upon the petitioner and
then, by giving reasons as to why they chose not to agree
with what the Petitioner wanted to say qua his absence
E
when, after admitting the absence, he gave reasons as to
why he had remained absent. They were also obliged to
4 strictly obey with the Orders of this, court. In that view of
" )' the matter, the argument of Mr. Aloke Banerjee to the effect
that the Respondents were not required to give reasons,
are not acceptable to this Court. Consequently the F
Judgments cited by him namely AIR 1987 SC 2043 and
the other Judgments such as 2001 (2) CHN 632 and
1991(2) sec 716 are held to be not applicable because
in this case, it was the desire and Order of the Hon'ble
Division Bench that the Respondents should deal with the G
matter in accordance with law. In the opiniori of this Court,
-~
"in accordance with law'' means and includes observing the
principles of natural justice and giving reasons because
the Respondents were supposed to be dealing with his
pleas relating to his explanations which were so very very H
~'-

"'"(
500 SUPREME COURT REPORTS [2009) 13 (ADDL.) S.C.R.

A crucial to his case. Consequently and in the facts and
~-1
circumstances of this case, none of the Judgments cited
by Mr. Banerjee can be said to have any Application." ~

20. In what we have already discussed, we find it difficult
to accept the view of the Single Judge.
B
21. The Division Bench like the Single Bench fell into grave
error in not adequately adverting to the fact that the charges
were admitted by the delinquent unequivocally and ~
unambiguously and, therefore, misconduct of the Respondent
c No. 1 was clearly established. We are, therefore, unable to
persuade ourselves to concur with the view of tile High Court.

22. The question, however, remains : is the punishment of
removal grossly disproportionate to the proved charge of
D unauthorized absence for more than six months? /
)..
23. In order to answer the aforesaid question, it would be
appropriate to refer to a few of decisions of this Court wherein
doctrine of proportionality has been considered. In Union of
India and Another v. G. Ganayutham2, this Court elaborately
E considered the proportionality in the administrative law in
·England as well as in our own country. The court considered
some important English decisions, viz., Associated Provincial
•
Picture Houses Ltd. v. Wednesbury Corporation3, Council of
Civil Service Unions v. Minister for Civil Service 4 , R. v.
.., "·
F Goldstein5 and R. v. Secretary for Home Dept. ex. p. Brincf
and few decisions of this Court, viz., Ranjit Thakur v. Union of
lndia 7, State of Maharashtra v. M.H. Mazumdar6, Ex-Naik
2. (1997) 1 sec 463.
3. (1947) 2 All ER 680.
G
4. (1984) 3 All ER 935.
5. (1983) 1 All ER 434. )'--

6. (1991) 1 All ER 470.
7. (1987) 4 sec 611.
8 (1988) 2 sec 52.
H
CHAIRMAN-CUM-MANAGING DIRECTOR, COAL INDIA 501
LTD. v. MUKUL KUMAR CHOUDHURI [R.M. LODHA, J.]
.,_~ Sardar Singh v. Union of lndia 9 , Tata Cellular v. Union of A
lndia 10, State of A.P. v. McDowell & Co11 • Pnd summed up
position of proportionality in administrative law in England and
India thus:

"(1) To judge the validity of any administrative order or
B
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
c
been taken into account or whether irrelevant matters had
been taken into account or whether the action was not bona
fide. The court would also consider whether the decision
was absurd or perverse. The court would not however go
into the correctness of the choice made by the D
administrator amongst the various alternatives open tO him.
Nor could the court substitute its decision to that of the
administrator. This is the Wednesbury test.

(2) The court would not interfere with the administrator's E
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
t possibility of other tests, including proportionality being
brought into English administrative law in future is not ruled F
out. These are the CCSU principles.

(3)(a) As per Bugdaycay (1987 AC 514), Brind and Smith
as long as the Convention-is not incorporated into English
law, the English courts merely exercise a secondary
judgment to find out if the decision-maker could have, on G
-""'( the material before him, arrived afthe primary judgment
9. (1991) 3 sec 213.
10. (1994) 6 sec 651.
11. (1996) 3 sec 709. H
502 SUPREME COURT REPORTS [2009] 13 (ADDL.) S.C.R.

A in the manner he has done. )-,..

(3)(b) If the Convention is incorporated in England making
available the principle of proportionality, then the English
courts will render primary judgment on the validity of the
administrative action and find out if the restriction is
B
disproportionate or excessive or is not based upon a fair
balancing of the fundamental freedom and the need for the
restriction thereupon. i
(4)(a) The position in our country, in administrative law,
c where no fundamental freedoms as aforesaid are involved,
is that the courts/tribunals will only play a secondary role
while the primary judgment as to reasonableness will
remain with the executive or administrative authority. The
secondary judgffent of the court is to be based on
D Wednesbury and CCSU principles as stated by Lord )._
Greene and Lord biplock respectively to find if the
executive or administrative authority has reasonably
arrived at his decision as the primary authority.

(4)(b) Whether in the case of administrative or executive
E
action affecting fundamental freedoms, the courts in our
country will apply the principle of "proportionality" and
assume a primary role, is left open, to be decided in an
appropriate case where such action is alleged to offend -4 ""'
fundamental freedoms. U will be then necessary to decide
F whether the courts will have a primary role only if the
freedoms under Articles 19, 21 etc. are involved and not
for Article 14."

24. Dealing with the question of proportionality with regard
G to punishment in disciplinary matters, the court said :
'r . .
"32. Finally, we come to the present case. It is not
contended before us that any fundamental freedom is
affected. We need not therefore go into the question of
"proportionality". There is no contention that the punishment
H
""
CHAIRMAN-CUM-MANAGING DIRECTOR, COAL INDIA 503
LTD. v. MUKUL KUMAR CHOUDHURI [R.M. LODHA, J.]
,_ ~
imposed is illegal or vitiated by procedural impropriety. As A
to "irrationality", there is no finding by the Tribunal that the
decision is one which no sensible person who weighed the
pros and cons could have arrived at nor is there a finding,
based on material, that the punishment is in "outrageous"
defiance of logic. Neither Wednesbury nor CCSU tests are 8
satisfied. We have still to explain "Ranjit Thakur".
y 33. In Ranjit Thakur this Court interfered with the
punishment only after coming to the conclusion that the
punishment was in outrageous defiance of logic and was
shocking. It was also described as perverse and irrational. c
In other words, this Court felt that, on facts, Wednesbury
and CCSU tests were satisfied. In another case, in B.C.
Chaturvedi v. Union of India [(1995) 6 SCC 749) a three-
Judge Bench said the same thing as follows: (SCC p. 762,
,,. para 18) D
"18. ... The High CourVTribunal, while exercising the
power of judicial review, cannot normally substitute
its own conclusion on penalty and impose some
other penalty. If the punishment imposed by the E
discipHnary authority or the appellate authority
. shocks the conscience of the High Court/Tribunal,
it would appropriately mould the relief, either
r directing the disciplinary authority/appellate
authority to reconsider the penalty imposed, or to
F
shorten the litigation, it may itself, in exceptional
and rare cases, impose appropriate punishment
with cogent reasons in support thereof. n

Similar view was taken in Indian Oil Corpn. Ltd. v. Ashok
Kumar Arora [(1997) 3 SCC 72) that the Court will not G
-"'(
" intervene unless the punishment is wholly disproportion~te.
,...

34. In such a situation, unless the court/tribunal opines in
its secondary role, that the administrator was, on the
material before him, irrational according to Wednesbury H
504 SUPREME COURT REPORTS [2009) 13 (ADDL.) S.C.R.

A or CCSU norms, the punishment cannot be quashed. ~r
Even then, the matter has to be remitted back to the
appropriate authority for reconsideration. It is only in very
rare cases as pointed out in B. C. Chaturvedi case that the
Court might - to shorten litigation - think of substituting ,.
B its own view as to the quantum of punishment in the place
of the punishment awarded by the competent authority. (In
B. C. Chaturvedi and other cases referred to therein it has
however been made clear that the power of this Court i
under Article 136 is different.) For the reasons given
above, the case cited for the respondent, namely, State ••
c of Maharashtra v. M.H. Mazumdarcannot be of any help."

25. Again, in the case of Coimbatore District Central
Cooperative Bank v. Coimbatore District Central Cooperative
D Bank Employees Assn. and Another12 this court considered ~ ~l

the doctrine ofproportionality and it was held:

"17. So far as the doctrine of proportionality is concerned,
there is no gainsaying that the said doctrine has not only
E arrived in our legal system but has come to stay. With the
rapid growth of administrative law and the need and
necessity to control possible abuse of discretionary
powers by various administrative authorities, certain . ~

principles have been evolved by courts. If an action taken
F
by any authority is contrary to law, improper, irrational or ""'
otherwise unreasonable, a court of law can interfere with
such action by exercising power of judicial review. One of
such modes of exercising power, known to law is the
"doctrine of proportionality".

G 18. "Proportionality" is a principle where the court is
concerned with the process, method or manner in which r .
the decision-maker has ordered his priorities, reached a ...,
conclusion or arrived at a decision. The very essence of

H 12. c2007) 4 sec 669.
CHAIRMAN-CUM-MANAGING DIRECTOR, COAL INDIA 505
LTD. v. MUKUL KUMAR CHOUDHURI [R.M. LODHA, J.]
decision-making consists in the attribution of relative A
importance to the factors and considerations in the case.
The doctrine of proportionality thus steps in focus true
nature of exercise-the elaooration of a rule of permissible
priorities.
B
19. de Smith states that "proportionality'' involves "balancing
test" and "necessity test". Whereas the former (balancing
test) permits scrutiny of excessive onerous penalties or
infringement of rights or interests and a manifest
imbalance of relevant considerations, the latter (necessity C
test) requires infringement of human rights to the least
restrictive alternative. [Judicial Review of Administrative
Action (1995), pp. 601-05, para 13.085; see also Wade
& Forsyth: Administrative Law (2005), p. 366.]

20. In Halsbury's Laws of England (4th Edn.), Reissue, Vol. D
1(1), pp. 144-45, para 78, it is stated:·

"The court will quash exercise of discretionary
powers in which there is no reasonable relationship
between the objective which is sought to be E
achieved and the means used to that end, or where
punishments imposed by administrative bodies or
inferior courts are wholly out of proportion to the
relevant misconduct. The principle of proportionality
is well established in European law, and will be F
applied by English courts where European law is
enforceable in the domestic courts. The principle of ·
proportionality is still at a stage of development in
English law; lack of proportionality is not usually
treated as a separate ground for review in -English
law, but is regarded as one indication of manifest G
unreasonableness."

21. The doctrine has its genesis in the field of
administrative law. The Government and its departments,
in administering the affairs of the country, are expected to H
506 SUPREME COURT REPORTS (2009] 13 (ADDL.) S.C.R.
,__.,,
A honour their statements of policy or intention and treat the
citizens with full personal consideration without abuse of
discretion. There can be no "pick and choose", selective
applicability of the government norms or ·unfairness,
arbitrariness or unreasonableness. It is not permissible to
B use a "sledgehammer to crack a nut". As has been said
many a time; "where paring knife ·suffices, battle axe is
precluded". -.,
22. In the celebrated decision of Council of Civil Service
Union v. Minister for Civil Service(1985 AC 374 : (1984)
c 3 WLR 1174 : (1984) 3 All ER 935 (HL) Lord Diplock
proclaimed: (All ER p. 950h-J)

"Judicial review has I think developed to a stage t

today when, without reiterating any analysis of the
D steps by which the development has come about, )...

one 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
E '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 '
1T1ind particularly the possible adoption in the --~
'1
future of the principle of 'proportionality' ... .n
F (emphasis supplied)

23~. CCSU has been reiterated by English courts. in several I=
subsequent cases. We do not think It necessary to refer $·
to all those cases ..

G 24. So far as our legal system is concerned, the doctrine
'?--
is well settled. Even prior to CCSU, this Court has held
that if punishment imposed on an employee by an
employer is grossly excessive, disproportionately high or
unduly harsh, it cannot claim immunity from judicial scrutiny,
H and it is always open to a court to interfere with such
CHAIRMAN-CUM-MANAGING DIRECTOR, COAL INDIA 507
LTD. v. MUKUL KUMAR CHOUDHURI [R.M. LODHA, J.]
t- ~ penalty in appropriate cases. A

25. In Hind Construction & Engg. Co. Ltd. v. Workmen
(AIR 1965 SC 917),·some workers remained absent from
duty treating a particular day as holiday. They were
dismissed from service. The Industrial Tribunal set aside
B
the action. This Court held that the absence could have
been treated as leave without pay. The workmen might
,I
y have been warned and fined. (But)

"It is impossible to think that any other reasonable
employer would have imposed the extreme c
punishment of dismissal on its entire permanent
staff in this manner." (AIR p. 919, para 7)
(emphasis supplied)

,..( The Court concluded that the punishment imposed on the D
~
workmen was

"not only severe and out of proportion to the fault,
but one which, in our judgment, no reasonable
employer would have imposed'. (AIR pp. 919-
20, para 7)(emphasis supplied) E

26. In Federation of Indian Chambers of Commerce and
r,,4.
Industry v. Workmen {(1972) 1 SCC 40), the allegation
t
against the employee of Jhe Federation was that he issued
legal notices to the Federation and to the International F
Chamber of Commerce which brought discredit to the
Federation-the employer. Domestic inquiry was held
against the employee and his services were terminated.
The punishment was held to be disproportionate' to the
misconduct alleged and established. This Court observed G
• - --( that: (SCC p. 62, para 34)

"[T]he Federation had made a m~untain out of a
mole hill and made a trivial matter into one involving
loss of its prestige and reputation. n
H
508 SUPREME COURT REPORTS [2009) 13 (ADDL.) S.C.R.

A 27. In Ranjit Thakur referred to earliet, an army officer did )- -..
not obey the lawful command of his superior officer by not
eating food offered to him. Court-martial proceedings were
initiated and a sentence of rigorous imprisonment of one
year was imposed. He was also dismissed from service,
B with added disqualification that he would be unfit for future
employment.

28. Applying the doctrine of proportionality and following 'Y '\

CCSU, Venkatachaliah, J. (as His Lordship then was)
observed: (SCC p. 620, para 25)
c
"The question of the choice and quantum of
punishment is within the jurisdiction and discretion
of the court martial. But the sentence has to suit the
offence and the offender. It should not be vindictive
D or unduly harsh. It should not be so disproportionate
~ 'f--
to the offence as to shock the conscience and
amount in itself to conclusive evidence of bias. The
doctrine of proportionality, as part of the concept
of judicial review, would ensu~ that even on an '-
E aspect which is, otherwise, within the exclusive
province of the court martial, if the decision of the
court even as to sentence is an outrageous
defiance of logic, then the sentence would not be .....
immune from correction. Irrationality and l
F perversity are recognised grounds of judiciai
review."(emphasis supplied)

26. The doctrine of proportionality is, thus, well recognized
concept of judicial review in our jurisprudence. What is
otherwise within the discretionary domain and sole power of
G the decision maker to quantify punishment once the charge of
misconduct stands proved, such discretionary power is )-• .
exposed to judicial intervention if exercised in a manner which '-
is out of proportion to the fault. Award of punishment which is ~
grossly in access to the allegations cannot claim immunity and
H remains open for interference under limited scope of judicial
"""'
CHAIRMAN-CUM-MANAGING DIRECTOR, COAL INDIA 509
l TD. v. MUKUL KUMAR CHOUDHURI [R.M. LODHA, J.]

review. One of the tests to be applied while dealing with the A
question of quantum of punishment would be : would any
reasonable employer have imposed such punishment in like
circumstances? Obviously, a reasonable employer is expected
to take Into consideration measure, magnitude and degree of
misconduct and all other relevant circumstances and exclude B
irrelevant matters before imposing punishment. In a case like
the present one where the misconduct of the delinquent was
unauthorized absence from duty for six months but upon being
charged of such misconduct, he fairly admitted his guilt and
explained the reasons for his absence by stating that he did c
not have any intention nor desired to disobey the order of higher
authority or violate any of the Company's Rules and
Regulations but the reason was purely personal and beyond his
control and, as a matter of fact, he sent his resignation which
was not accepted, the order of removal cannot be held to be 0
justified, since in our judgment, no reasonable employer would
have imposed extreme punishment of removal in like
circumstances. The punishment is not only unduly harsh but
grossly in exGess to the allegations. Ordinarily, we would have
sent the matter back to the appropriate authority for
reconsideration on the question of punishment but in the facts E
and circumstances of the present case, this exercise may not
be proper. In our view, the demand of justice would be met if
the Respondent No. 1 is denied back wages for the entire
period by way of punishment for the proved misconduct of
unauthorized absence for six months. F

27. Consequently, both these appeals are allowed in part.
The appellants shall reinstate Respondent No. 1 forthwith but
he will not be entitled to any back wages from the date of his
removal until reinstatement. Parties will bear their own costs. G
R.P. Appeals partly allowed.