Doctrine of Proportionality: an analysis of Supreme Court cases

THIS ARTICLE WAS WRITTEN BY PIYUSH TIWARI, A STUDENT OF WBNUJS.

INTRODUCTION

Doctrine of proportionality is a principle that is prominently used as a ground for judicial review in cases of administrative action. The doctrine was developed in Europe and it is a vital part of the European administrative law. The doctrine essentially signifies that the punishment should not be disproportionate to the offence committed or the means that are used by administration to obtain a particular objective or result should not me more restrictive than that are required to achieve it. We live in an age where administrative authorities have been empowered to exercise discretionary powers, the position holders in the administration exercise wide discretionary powers and these powers cannot be used arbitrarily, therefore to keep a check on them, the doctrine of proportionality is used. While exercising administrative action, the body should keep in mind the purpose it seeks to obtain and the means it is using to achieve it, and if its actions deviate from the object or are discriminatory or disproportionate then they would be quashed by the court by using the doctrine of proportionality. In India the doctrine of proportionality was adopted by the Supreme Court of India in the case of Om Kumar v. Union of India.[1] In this case the Apex court observed that Indian courts have been using this doctrine since 1950, in cases of legislations violating fundamental rights enshrined in Article 19(1) of the constitution. Although the Doctrine has been adopted in India in a very restrictive manner. The European model has not been adopted fully. The doctrine of proportionality requires a body to maintain balance between its action and purpose for which the powers have been conferred.

Application of the Doctrine

“’Proportionality’ is a principle where the Court is concerned with the process, method or manner in which the decision-maker has ordered his priorities, reached a conclusion or arrived at a decision.”[2] It is a misconception that judicial review on the basis of this doctrine is similar to appeal. In an appeal the appellate authority is authorised to adjudge the whole matter again, whereas in the case when an administrative action is challenged on the basis of doctrine of proportionality, the appellate authority only ensures that whether the procedure was right or the punishment given was the least restrictive way to fulfil its objective. In Indian legal system a restrictive approach has been taken for this doctrine as if a broader doctrine was adopted then the discretionary powers of the administration will become redundant. It will allow the judiciary to encroach upon the powers of executive. The judiciary cannot step into the shoes of executive and take actions on its behalf. Hence the doctrine adopted in India is perfect to maintain this status. The administrative tribunals deal with the matter of administrative actions, they act as primary reviewer of these actions, courts only act as secondary reviewer. This position was explained in R v. Secretary of State for the Home Department[3], the  Lord Bridge in this case held that when convention rights i.e. Fundamental Rights are invoked then the court will act as a primary reviewer and if non-Convention rights are involved, the court can only act as a secondary reviewer. This arrangement does not allow the court to go into the merits of the administrative action.

The Court will alter the punishment or measures taken by the administration only if it is “Strikingly disproportionate” to the offence or misconduct.[4] The punishment will only be reduced or reconsidered if it shocks the conscience of the court. Only in rare case the court will reduce the punishment. The Apex Court in Coimbatore District Central Coop. Bank v. Employees Assn[5] declared that  the Doctrine of proportionality is a vital organ of judicial review as with the growth of administrative law and the wide discretionary power given to administrative authorities there is need of a doctrine which can keep a check on these powers, to prevent authorities from abusing them.

Analysis of Supreme Court cases

1. Om Kumar v. Union of India

 The Doctrine of Proportionality was adopted in Om Kumar v. Union of India.[6] in this case the disciplinary authority had asked the SC to reconsider the quantum of punishment given to four civil servants, the court refused to re-consider the quantum of punishment as no principle of law was violated nor the punishment was “Shockingly Disproportionate” to the mischiefs committed by the concerned persons. This position of law was crystallised by the Supreme Court itself in later cases

2. P. State Road Transport Corporation v. Subhash Chandra Sharma

The respondent in this case was charge-sheeted for disciplinary proceedings. Three charges were registered against him, regarding grave misconduct, habitual absence from duty, and abusing the cashier of the transport corporation. All the three charges were proved against him and he was removed from the service. Consequently, the respondent appeal against the decision of disciplinary committee in the labour court. The court held that there was no infirmity in the procedure used or in the findings of the committee, still the court set aside the decision of the committee and reinstated him. The court did not give any reason why the punishment was excessive. The Supreme Court held that the decision passed by the labour court was arbitrary and whimsical. Further the court observed that the punishment awarded by the disciplinary committee was not “shockingly disproportionate” in any way to the charge proved against him as the misconduct of the respondent was grave and intolerable. The court also observed that the High Court failed to exercise its power under Art. 226 and omitted to correct the decision of the labour court.

3. P. SRTC v. Hoti Lal.[7]

The respondent was a conductor in the appellant’s corporation and he used to misappropriate funds by not issuing tickets to passengers even after taking money. The disciplinary committee found out and after conducting an enquiry removed him from the service. The matter went to the High Court, and the decision of the committee was overturned citing that the punishment was disproportionate to the misconduct. The Corporation appealed in the Apex Court on the ground that the punishment was just and fair as the relationship between the corporation and conduction is a fiduciary one i.e. based on trust and the conduct of the respondent is of such a grave nature that it breached their trust and such person cannot be retained on these posts hence to maintain discipline and to deter other conductors from committing breach of trust by misappropriating money, he was removed from the post. The SC accepted this argument and said that the punishment was not disproportionate and does not shock the conscience of the court which would require the court to interfere in the matter.

 The High Court again erred in deciding whether the punishment is disproportionate enough to shock the conscience of the court.

4. Coimbatore District Central Coop. Bank v. Employees Assn.[8]

The Apex Court in this case discussed the concept and applicability of the doctrine extensively. The facts of the case are, the respondents were employees of the bank and they went on a strike called by their union, the same was illegal and unlawful. Disciplinary action was taken against them, the committee took a liberal view and did not remove them from service although their 1-4 years of cumulative increment was taken away, the matter went to labour court and it upheld the charges against them and refused to set aside the punishment. In an appeal to High Court single judge and subsequently division bench, the court reduces their punishment saying that the same was disproportionate to the misconduct and charges proved against them and considered it as harsh. Hence an order was passed and of the disciplinary committee was set aside. This is again a case where High Court failed to analyse the misconduct done by the respondent and punishment awarded. The conduct of the respondent was grave and violative of the code followed by the bank. The High court reduced the punishment on compassionate grounds that they have a family and without these increments they will not be able to sustain. The Doctrine of Proportionality is used when any action taken by an administrative body is such that no reasonable authority would have taken such measures to fulfil the objective or the punishment is so disproportionate that it shocks the conscience of the court, in these kind of cases, the court is empowered to review the quantum of punishment by itself or remit it to tribunals for reconsideration. In the present scenario the court reduced the punishment on compassionate ground which is not a valid ground for applying doctrine of Proportionality and hence the decision of single judge and division bench of the High Court were declared incorrect and the SC observed that HC was not justified in reducing the punishment. the Court further observed that discretionary powers have been given to administrative bodies and the High Court cannot substitute the same by its own decision under Art. 226 of the Constitution.

5. Dev Singh v. Punjab Tourism Development Corporation[9]

This is one of the cases where the SC reduced the punishment given by the disciplinary committee by applying Doctrine of Proportionality. The appellant was an employee of the corporation for 20 years and in his career there was not even an allegation of misconduct against him. In the present case a disciplinary enquiry was initiated against him for misplacing a file entrusted to him, which amounted to a misconduct under by-law. The committee after completing its enquiry concluded that this is a case where removal from the service would be appropriate, accordingly he was removed from the post. He appealed in the High Court which was dismissed and hence he appealed to the Supreme Court.  The Apex court agreed with the findings of the court. However, the Court refused to accept that the misplacement of a file is such a grave misconduct as to remove him from the service. The Court observed that he had been working with the corporation for 20 years with no complaint of misconduct, and even this is not a case of deliberately misplacing a file, it is only a case of negligence and to remove him from service as a punishment is disproportionate and it is of such a nature that shocks the conscience of the court. The Supreme Court further said that the court will not interfere with the punishment imposed by the disciplinary committee unless it is disproportionate to the misconduct, this is case which satisfies the position. Therefore, the court to avoid further litigation reduced the punishment itself.

This case is a perfect example of use of Doctrine of Proportionality. The doctrine says that means used to fulfil the objective should be narrowly tailored and it should be the least restrictive means. In this case the corporation wanted to deter employees from acting negligently, hence it remove the appellant from service. Even though there were other least restrictive means or punishment under bye-law under which he was punished, but they were not used, the least restrictive means was not employed, hence the court applied Doctrine of Proportionality in this case and reviewed the quantum of punishment.

6. Coal India Limited v. Mukul Kumar Choudhuri[10]

The respondent was removed from his post for being remaining absent for six months despite orders by higher authority. The facts of the case are that he was absent for six months because of some personal reasons which he could not have avoided in any circumstances, he even sent his resignation to the corporation however it was rejected and he was asked to join back. Just after his joining disciplinary enquiry was initiated and he was removed from his post. The decision was upheld by the High Court saying that the punishment is no disproportionate. The matter came before the Supreme Court and it held that during disciplinary enquiry he accepted his guilt and gave reason as to why he was absent and also that he was not deliberately absent but the circumstances were beyond his control and he even sent his resignation which was rejected by the company. The court held that it is a case in which “no reasonable employer would have imposed extreme punishment of removal in like circumstances.” The court said the punishment is harsh and Strikingly disproportionate to the misconduct.

On the doctrine of Proportionality, the Apex Court observed that “the imposition of punishment is subject to judicial intervention if the same is exercised in a manner which is out of proportion to the fault. If the award of punishment is grossly in excess of the allegations made, it cannot claim immunity and makes itself amenable for interference under the limited scope of judicial review”. The court reaffirmed the position taken by it in the previous judgements.

7. Union of India v. Rajesh PU, Puthuvalnikathu[11]

We have observed that the Doctrine is mostly applied to cases relating to disciplinary orders and punishments, this is a case where the doctrine was applied to different scenario.

In the present case, applications for some vacant posts were invited by the CBI. Allegation of “nepotism and favouritism” were brought up during physical efficiency test. Also some irregularities were claimed during the written as a result, the selection list was cancelled. This was challenged before the court.  In an enquiry conducted by HC it was revealed that the impact of nepotism and irregularities can be identified and there was no reason to cancel the entire list of selected candidates. The court found irregularities in 31 selected candidates, the HC passed an order accordingly. The HC court order was challenged before the Supreme Court and it accepted the position taken by the High Court and held that the Doctrine of Proportionality states that the administrative authority should not take action severer than required to meet the purpose. The Court said that in this there was no reason to cancel the entire list, it was sufficient to only cancel the selection of those 31 candidates in whose selection irregularities were found and proved.

Fundamental freedoms

In cases where fundamental freedoms are being restricted by administration, the doctrine of proportionality is applied to check the validity of such restrictions. In Om Kumar v. Union of India[12], the Supreme Court observed that restriction on Fundamental freedom have always been checked on the “anvil of proportionality”, it further said that the courts have been using this doctrine since 1950 to test the validity of restrictions imposed by administrative actions. The doctrine of proportionality is being used in cases where administration restricts fundamental rights through its actions, in these cases the court sees if the measure taken by the body are the least restrictive means to achieve the purpose if they are not then the restriction imposed will be quashed by using this doctrine. In cases where the rights provided under Art.19(1) and 21 are being restricted by administrative actions, the courts act as a primary reviewer and uses the doctrine of proportionality. This implies that the court can go into the merits of the case while applying doctrine of proportionality in Fundamental rights cases.

CONCLUSION

 From the above analysis of cases it can be concluded that there is a misconception about the application of this doctrine in India. In most of the cases it has been observed that the High court erred in deciding whether a punishment is disproportionate or not, the Supreme Court has reversed the decision of High courts in most of the cases that the author has covered in this article. From the above analysis it can be said that the Doctrine of Proportionality is only applied in rare cases only where the punishment given by the administrative body is not in proportion to the misconduct and it is of such nature that it shocks the conscience of the court. Also that the doctrine cannot be used to reduce the punishment on compassionate grounds. In one of the cases the High Court reduced the punishment on compassionate ground, and as a result its decision was set aside by the Apex Court. The doctrine of Proportionality is not only restricted to cases of disciplinary orders, penalty or fundamental freedom but also to cases where the measure taken by any institution was not required and a least restrictive measure was available.

[1] Om kumar v. Union of India AIR 2000 SC 3689.

[2] Coimbatore District Central Coop. Bank v. Employees Assn, (2007) 4 SCC 669.

[3] R v. Secretary of State for the Home Department, ex. P. Brind, (1991) 1 A.C. 696.

[4] Supra note 1.

[5] Coimbatore District Central Coop. Bank v. Employees Assn, (2007) 4 SCC 669.

[6] Om Kumar v. Union of India, AIR 2000 SC 3689.

[7]  Regional Manager, U.P. SRTC v. Hoti Lal, (2003) 3 SCC 605.

[8] Coimbatore District Central Coop. Bank v. Employees Assn, (2007) 4 SCC 669.

[9] Dev Singh v. Punjab Tourism Development Corporation, 2003 SC 3712.

[10] Chairman cum Managing Director, Coal India Limited v. Mukul Kumar Choudhuri, AIR 2010 SC 75.

[11] Union of India v. Rajesh PU, Puthuvalnikathu, (2003) 7 SCC 285.

[12] Om Kumar v. Union of India, AIR 2000 SC 3689.