1996 Supreme(AP) 1362

Andhra Pradesh High Court
Judges : S.R.NAYAK
G.Sambasiva Rao - Appellant
Versus
The A.P.State Road Transport Corporation, rep., by its Managing Director, Hyderabad - Respondent
Decided On : 12-30-96

Headnote:A.P.S.R.T.C. Employees (Classification, Central and Appeal) Regulations, 1967 - Regulations 8(1), 27(1)(c) - Disciplinary proceedings - power to punish delinquent is a discretionary power - what is an adequate punishment is a question of discretion.

       Held : The combined reading of the provisions of regulations 8 and 9 of C. C. A. Regulations and Regulation 28 of Conduct regulations makes it very clear that after the conclusion of the departmental enquiry, the disciplinary authority, having regard to the nature of the misconduct proved against the delinquent and taking into account all the attending facts and circumstances of the case, should decide as to what should be the adequate and appropriate penalty. When the disciplinary authority applies its mind accordingly and comes to the conclusion that one of the specified penalties in sub-regulation (1) of Regulation 8 is adequate and reasonable penalty, then, there will not be any problem to a ward such penalty. On the other hand in a given case after such application of mind if the disciplinary authority thinks that "x" penalty is an adequate and reasonable penalty but that "x" penalty is not one of the penalties specified in sub- regulation (1) of Regulation 8, what should the disciplinary authority do? In such facts-situation, if the Court were to hold that despite the satisfaction of the disciplinary authority that "x" penalty is the proper and adequate penalty, he should impose only one of the penalties specified in sub-Regulation (1) of Regulation 8 and not any other, then, the discretionary power to choose an appropriate and adequate penalty vested in the disciplinary authority would be violated. A power without freedom or right to choose will never be a discretionary power. In the content of the present case, one may argue that the power of the disciplinary authority to choose is not taken away altogether by requiring him to impose only one of the penalties specified in regulation 8 (1) of C. C. A. Regulations; he can still choose one among eleven penalties. In appreciating such argument, the Court should not fail to notice the other cardinal principle governing punishment. It is well settled that penalty imposed on a delinquent should be reasonable, fair and proportionate to the gravity of misconduct committed by the delinquent. Therefore, in the context of disciplinary proceedings, the freedom or right to choose a penalty means the freedom or right to choose a right, appropriate and proportionate penalty. In a given case, if the disciplinary authority chooses a right and proper penalty and Industrial Court or High Court also finds that that penalty chosen by the disciplinary authority is a right and proper penalty, the penalty imposed by the disciplinary authority cannot be set aside only on the ground that the penalty is not one of the penalties specified in Regulation 8 (1) of C. C. A. Regulations. If the Court sets aside, then, technicality will overtake substantive justice resulting in injustice. Technicality may be employed to do justice, not to thwart justice. To do complete justice inheres in every Court of law and justice, and the duty of Courts is to do complete justice. No compromise can be made in enforcing this rule on technical grounds.

       C. C. A. REGULATIONS do not specify minimum or maximum penalty in respect of each and every kind of misconduct. However, if the penalties specified in sub-Regulation (1) of Regulation 8 are taken to be the penalties for misconduct as a whole, then censure is the minimum penalty and dismissal from service is the maximum penalty. If that is so, the disciplinary authority and the appellate authority should have discretion to impose not only any of the penalties specified in sub-Regulation (1) of Regulation 8 but also any other unspecified penalty which could validly be treated as the one which falls within the limits of the minimum and the maximum penalties. The disciplinary authority and appellate authority cannot be stripped of freedom to choose and impose proper and adequate penalty on a delinquent only on the ground that what they think as adequate penalty is not one of the specified penalties, and if that freedom is denied on that ground, the essence of discretionary power to operate within the limits will be lost, and standardization will replace discretion. Standardization and discretion cannot co-exist. Standardization leaves no room; discretion has always a room to operate. A counsel, surcharged with only logic, may contend that logic mandates that the disciplinary authority cannot award any punishment other than the one specified in Regulation 8 (1 ). The Holmesian homily is that the life of law is not logic but experience. Undoubtedly logic plays an important role in judicial and quasi-judicial decision-making, but logic should play the role of a logistician and not the role of a Judge in the decision-making. In the ultimate analysis, the decision to be taken either by the disciplinary authority or by the appellate authority should rest on reasons and justice perception, and not necessarily on logic and never on technicalities divorced from justice. Therefore, I hold that it is open to the disciplinary authority under the C. C. A. Regulations to impose not only a penalty specified in regulation 8 (1) but also any other penalty which he thinks it adequate, appropriate and reasonable provided such penalty falls within the limits of minimum and the maximum penalties enumerated under Regulation 8 (1) of c. C. A. Regulations.

       Therefore, the appellate authority is charged with a duty to examine whether the penalty imposed by the disciplinary authority is excessive, adequate or inadequate and after application of mind and consideration of all relevant materials and evidence, if it finds that the penalty is excessive, it is armed with necessary power to reduce the penalty. The terms excessive adequate or inadequate are relative terms in value space, place and time, and, therefore, the question whether the penalty imposed by the disciplinary authority is excessive, adequate or inadequate has to be decided having regard to the facts and circumstances of each case. What is considered to be adequate penalty in a given set of circumstances may be excessive penalty in another- set of facts and circumstances. Therefore, standardization is not permissible while exercising discretionary power. If the appellate authority acting under regulation 27 of C. C. A. Regulations, after due consideration of facts and circumstances of the case and application of mind, thinks that "x" penalty is an adequate and reasonable penalty and the penalty imposed by the disciplinary authority is excessive, should he be deprived of the power to substitute "x" penalty in the place of the penalty imposed by the disciplinary authority only on the ground that "x" penalty is not of the specified penalties under Regulation 8 (1) ? For the same reasons stated by me supra, the appellate authority has power to impose "x" penalty provided "x" penalty in the facts and circumstances of the case is found by the Court to be a fair and adequate penalty. If it is held otherwise, the essence of discretionary power vested in the appellate authority to choose an adequate penalty will be lost. Therefore, i hold that it is permissible for an appellate authority under Regulation 27 of C. C. A. Regulations to impose even a non-specified penalty in substitution of the specified penalty imposed by the disciplinary authority provided such penalty is the one which falls between the minimum and the maximum penalty enumerated in Regulation 8 (1) of C. C. A. Regulations.

       The appellate authority to use his own language held that "all the charges are proved beyond reasonable doubt and the Depot Manager (Disciplinary authority) is justified in removing the appellant from the rolls of Corporation. " therefore, it is manifestly clear that the appellate authority concurred with the findings of fact recorded by the disciplinary authority and also approved the quantum of punishment imposed by the disciplinary authority. The appellate authority having recorded such satisfaction, however, directed reinstatement of the workman into service in the minimum scale of pay of conductor on, the ground that the Traffic Inspector who gave scope for the petitioner to defraud the revenues of the Corporation was let off and taking lenient view. The observations of the appellate authority reflect that he directed reinstatement of the petitioner into service on compassionate grounds and not on merits. In similar facts-situation, a Division Bench of this Court in p. Habeeb Saheb vs. Andhra Pradesh State Road Transport Corporation speaking through A. Lakshmana Rao, J. , as he then was, construed a similar order made by the Regional Manager of the A. P. S. R. T. C. in a review petition filed by the delinquent therein to be a composite order consisting of two parts. In that case the reviewing authority after recording the satisfaction that these was no need to interfere with the orders of the Depot Manager-Disciplinary authority, but on compassionate grounds and taking a lenient view directed the Depot Manager to appoint the delinquent as conductor afresh. The argument of the learned counsel for the delinquent in that case was that the direction of the reviewing authority to appoint the delinquent as conductor afresh was a modified punishment and that modified punishment is not one of the punishments contemplated under Regulation 8 of C. CA. Regulations and therefore, the same could not be sustained in law. The Division Bench while rejecting that argument pointed out that the order passed by the reviewing authority consisted of two parts, namely, the first part related to the confirmation of the order of removal passed by the disciplinary authority and the second part related to a direction for appointment as a fresh candidate. The Division Bench also pointed out that the order of removal passed by the disciplinary authority was no bar for appointment of the delinquent as a fresh candidate. The opinion expressed by the Division Bench squarely covers the facts of this case also. Another judgment of the Division Bench of this Court in K. Dayanand vs. The Depot Manager, APSRTC5 also clearly indicates that the appellate authority can pass a composite order consisting of two parts; one part affirming the decision of the disciplinary authority and the other directing fresh appointment of the delinquent on compassionate ground.

       the petitioner has no grounds whatsoever on merits to assail the action of the disciplinary authority or the appellate authority, and the writ petition is grounded only on technicalities, rather technical tortures.