IMPORTANT POINT
In India, in cases not involving fundamental freedoms, the role of our Courts/Tribunals in administrative law is purely secondary while the primary judgment as to reasonableness will remain with the executive or administrative authority.

Headnote:SERVICE LAW-Central Civil Services (Pension) Rules, 1972-Rule 9-Interpretation of-Withdrawal of whole or part of pension-Whether under Rule 9 death-cum-gratuity could also be withdrawn wholly or in part?-(Yes)-The term pension used in Rule 9(1) must be construed to include gratuity-Tribunal was wrong in thinking that under Rule 9, 50 of gratuity could not be withheld.
       Held : Rule 9 of the Rules refers to the power of the President to withhold or withdraw pension, whether permanently or for a specified period, and to the ordering of recovery from the pension, of the whole or part of any pecuniary loss caused to the government, in any departmental or Judicial proceedings, if the pensioner is found guilty of grave misconduct or negligence during the period of his service, including service rendered upon re-employment after retirement. The proviso requires that the Union Public Service Commission be consulted before any final orders are passed. Rule 3 of the Rules defines pension as including gratuity except when the term pension is used in contradistinction to gratuity. (Para 7)
       (ii) JUDICIAL REVIEW-Powers of-Question of proportionality in administrative law-Whether it is permissible for Court or Tribunal to interfere with quantum of punishment imposed by competent authority on the ground that it was too severe and hence disproportionate to gravity of charges proved?-Position in England and India.
       Held : (1) To judge the validity of any administrative order or statutory discretion, normally the Wednesbury test is to be applied to find out if the decision was illegal or suffered from procedural improprieties or was one whch no sensible decision-maker could, on the material before him and within the framework of the law, have arrived at. The Court would consider whether relevant matters had not been taken into account or whether irrelevant matters had been taken into account or whether the action was not bonafide. The Court would also consider whether the decision was absurd or perverse. The Court would not however go into the correctness of the choice made by the administrator amongst the various alternatives open to him. Nor could the Court substitute its decision to that of the administrator. This is the Wednesbury test.
       (2) The Court would not interfere with the administrator s decision unless it was illegal or suffered from procedural impropriety or was irrational - in the sense that it was in outrageous defiance of logic or moral standards. The possibility of other tests, including proportionality being brought into English Administrative Law in future is not ruled out. These are the CCSU principles.
       (3)(a) As per Bugdaycay, 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 the material before him, arrived at the primary judgment in the manner he has done.
       (3)(b) If the Convention is incorporated in England making available the principle of proportinality, then the English Courts will render primary judgment on the validity of the administrative action and find out if the restriction is disproportionate or excessive or is not based upon a fair balancing of the fundamental freedom and the need for the restriction thereupon.
       (4)(a) The position in our country, in administrative law, 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 judgment of the Court is to be based on Wednesbury and CCSU principles as stated by Lord Greene and Lord Diplock 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 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 fundamental freedoms. It will be then necessary to decide whether the Courts will have a primary role only if the freedoms under Article 19, 21 etc. are involved and not for Article 14. (Para 20)
       (iii) ADMINISTRATIVE LAW-Power of judicial review-Scope-Position in England-Wednesbury case (1948)-CCSU Case (1985)-Expectation of future adoption of proportionality-What is proportionality-Whether proportionality is part of Indian administrative law-Debatable issue-Scope of its applicability in context of fundamental freedoms-Question left open-Statute law in India-Whether proportionality applies-Role of our Courts/Tribunals in administrative law is purely secondary-Court/Tribunal cannot substitute its view as to what is reasonable. (Paras 12 to 18, 20)
       (iv) ADMINISTRATIVE LAW-Power of judicial review-Scope-Margin of appreciation and judicial restraint.
       Held that even if the Courts in England by virtue of incorporation of the Convention should become the primary Judges of the validity of administrative decisions, still they would exercise great judicial restraint in matters concerning governmental policies, national security, or taxation, finance and economy of the country and similar such matters of grave public policy. This restraint on the part of the judiciary is described in administrative law as giving a greater margin of appreciation to the administrator in certain areas. See Brind, (Lord Templeman, (P. 751), Ackner (P. 762) and Lord Lowry (P. 766). Similar principles have been laid down by this Court while testing the validity of legislative measures in the context of Art. 19(2) to (6). The Courts would give a reasonable margin to the legislature (Manoharlal v. State of Punjab, 1961 (2) SCR 343) in several situations. (Para 19)
       (v) Central Civil Services (Pension) Rules, 1972-Rule 9-Respondent while working as Superintendent of Central Excise was served with a memo of charges-Some charges held proved-Respondent retired from service-Award of penalty of withholding 50 of pension and 50 of gratuity admissible to respondent-Challenged-Tribunal holding that punishment awarded was too severe restricted order of withholding of only pension of 50 for a period of 10 years-Appeal-Whether Tribunal was justified in interfering with quantum of punishment and substituting its own view of the punishment?-(No)-Order of Tribunal set aside-Punishment awarded by departmental authorities restored.
       Held : There is no contention that the punishment imposed is illegal or vitiated by procedural impropriety. As 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 satisfied. (Para 21)
       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 or CCSU norms, the punishment cannot be quashed. 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 s case that the Court mihgt, - to shorten litigation - think of substituting its own view as to the quantum of punishment in the place of the punishment awarded by the competent authority, (Para 22)
       For the aforesaid reasons, we set aside the order of the Tribunal which has interfered with the quantum of punishment and which has also substituted its own view of the punishment. The punishment awarded by the departmental authorities is restored. (Para 23)

JUDGMENT

M. Jagannadha Rao, J.-This is an appeal by the Union of India and the Collector of Central Excise against the judgment of the Central Administrative Tribunal in Tr. A. No. 660 of 1986 dated 5.12.1986 allowing the petition filed by the respondent.

2. The respondent was working as Superintendent of Central Excise. While so, on 14.11.1977, was served with a memo of eight charges and an inquiry was conducted. The Inquiry Officer submitted a report dated 17.5.1978 stating that charge No. 4 was not proved, charge No. 8 was partly proved and other charges were held proved. The respondent retired from service on 31.5.1978. A show cause notice dated 18.3.1982 was issued under Rule 9 of the Central Civil Services (Pension) Rules, 1972 (hereinafter called the Rules ) proposing withdrawal of full pension and gratuity admissible to the respondent on the ground that the Government suffered substantial loss of revenue due to the misconduct of the respondent. The respondent submitted an explanation. The Union Public Service Commission was consulted and the Commission felt that charges 4 and 6 were not proved but concurred with the findings of the Inquiry Officer on other charges. Based on the Commission s advice, a penalty of withholding 50 of the pension and 50 of gratuity was awarded to the respondent by orders dated 8.5.1984. Questioning the same, a writ petition was filed by the respondent in the High Court of Madras which was later transferred to the Tribunal. After hearing the respective counsel for the parties, the Tribunal held by judgment dated 5.12.1986 that under Rule 9 of the Rules the competent authority could not withdraw any part of the gratuity inasmuch as the said provision referred merely to withholding of pension and not gratuity. It held that the definition of pension in rule 3(1)(o) which included gratuity was not applicable for purposes of Rule 9. So far as the penalty of withholding 50 of the pension was concerned, it held that the punishment awarded was too severe , that the lapses were procedural, there was no collusion between the respondent and any party, that the officer had otherwise done excellent work and, therefore, it was a fit case where the withholding of pension of 50 had to be restricted for a period of 10 years instead of on a permanent basis.

3. Aggrieved by the said decision of the Tribunal, the Union of India and the Collector, Central Excise have preferred this appeal. During the pendency of this appeal, the respondent died and his legal representatives have been brought on record.

4. It was contended by the learned counsel for the appellants that the Tribunal was wrong in law in holding that the power to withhold pension as specified in rule 9 did not include the power to withhold the whole or part of the gratuity. It was argued that under Rule 3(1)(o), the word pension is defined to include the gratuity except when the term pension is used in contradistinction the gratuity and that in Rule 9 there is no question of the word pension being used in contradistinction gratuity. This point, according to the appellant s counsel is covered by the judgment of this Court in Jarnail Singh v. Secretary, Ministry of Home Affairs1, in favour of the appellant and against the respondent. It was also contended that the Tribunal ought not to have gone into the question as to whether the punishment of withholding 50 of the pension and gratuity was commensurate with the gravity of the misconduct proved and that this amounted to going into the proportionality of the punishment which was not permissible in law. The charges proved showed that the conduct of the respondent respondent related to loss of revenue to the government and that the competent authority had taken a reasonable decision as to quantum of punishment weighing all the relevant factors and the decision of the said authority could not be said to be one which no reasonable person could have reasonably taken. In any event, there w

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1997 Supreme(SC) 1137

IMPORTANT POINT In India, in cases not involving fundamental freedoms, the role of our Courts/Tribunals in administrative law is purely secondary while the primary judgment as to reasonableness will remain with the executive or administrative authority.

Cases Referred (16)

IMPORTANT POINT
In India, in cases not involving fundamental freedoms, the role of our Courts/Tribunals in administrative law is purely secondary while the primary judgment as to reasonableness will remain with the executive or administrative authority.