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2024 SCC OnLine Del 5946

In the High Court of Delhi at New Delhi

(BEFORE SURESH KUMAR KAIT AND GIRISH KATHPALIA, JJ.)

Vishav Bandhu Gupta … Petitioner;

Versus
Union of India and Others … Respondents.
W.P.(C) 1522/2018
Decided on August 27, 2024, [Judgment reserved on :
14.08.2024]
Advocates who appeared in this case :
Mr. Saqib, Advocate
Mr. Harish Vaidyanathan Shankar, CGSC with Mr. Srish Kumar Mishra
and Mr. Alexander Mathai Paikaday, Advocates
The Judgment of the Court was delivered by
GIRISH KATHPALIA, J.:— Where paring knife suffices, battle axe is
precluded. The issue before us is as to whether sledgehammer has
been used by the State in this case to crack a nut. To be tested by us in
this case is proportionality or otherwise of the penalty of dismissal from
service imposed by the Disciplinary Authority on the petitioner for his
acts of misconduct.
1.1. The petitioner, through this writ action, has assailed orders
dated 16.07.2016 and 09.05.2017 passed by the learned Central
Administrative Tribunal, Principal Bench, Delhi, whereby punishment of
dismissal from service imposed upon him was upheld and the review
application was dismissed.
1.2. On service of advance notice, respondents entered appearance
through counsel.
1.3. As reflected from order dated 16.07.2016 impugned before us,
learned counsel for petitioner at the outset had submitted before the
learned Tribunal that she intended to address only as regards quantum
of punishment and had further requested for taking a compassionate
view since the petitioner had already superannuated and was seriously
ill.
1.4. Before us also, learned counsel for petitioner confined his
address to the quantum of punishment, raising no challenge to the
legality of the departmental proceedings.
1.5. We heard learned counsel for both sides.
2. The circumstances relevant for present purposes, as pleaded by
the petitioner are as follows.
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2.1. In the year 1976, petitioner was appointed as Income Tax

Officer, Group A in Junior Time Scale after he successfully qualified the
All India Civil Services Examination. Over a period of time, petitioner
earned promotions and became Deputy Commissioner of Income Tax,
posted at Bombay.
2.2. On account of his ill health and medical treatment at AIIMS,
New Delhi, the petitioner was transferred to Delhi at his request on
compassionate grounds as Officer on Special Duty till 20.11.1989, after
which he was posted as Deputy Commissioner (Exemptions) at Delhi
with charge over 74 trusts within his jurisdiction.
2.3. On 24.02.1990, the Hindustan Times published news that one
General Secretary of All India Congress Committee had alleged that the
Vishwa Hindu Parishad had collected Rs. 700 crores in the name of Ram
Janmbhumi Temple. Taking cognizance of the said news item, on
02.03.1990 petitioner issued summons under Section 131 of the
Income Tax Act to the said General Secretary as well as persons
connected with the Ram Janmbhumi Nyas. That issue got raised in the
Parliament of India, after which the petitioner was transferred from New
Delhi to Tamil Nadu vide order dated 08.03.1990 and later the Director
General of Income Tax (Exemptions) withdrew the said summons
issued against the above mentioned persons. The petitioner also
submitted representation before the Hon'ble Finance Minister on
19.03.1990 against his transfer.
2.4. Finding himself unable to work under such situation, petitioner
proceeded on leave, after which he was posted as Deputy
Commissioner Income Tax, Madras. The petitioner challenged his
transfer by way of O.A. No. 1025/1990 before the learned Tribunal and
the same was disposed of on 01.06.1990 directing the respondents to
treat the same as representation/appeal, to be disposed of by
31.08.1990.
2.5. By way of order dated 06.06.1990, the respondents placed the
petitioner under suspension and chargesheeted him on 03.07.1990 for
misconduct and misbehaviour. However, on 21.10.1991 suspension of
the petitioner was revoked and he was posted at Patiala, from where he
was transferred back to Delhi in the year 1994 as Deputy Commissioner
Income Tax.
2.6. The petitioner received a letter of appreciation on 31.03.1995
from the then Commissioner of Income Tax and also earned promotion
as Additional Commissioner of Income Tax with retrospective effect
from November, 1994.
2.7. While posted as Additional Commissioner of Income Tax,
petitioner received letter dated 07.10.1998 from Assistant
Commissioner Income Tax, calling him upon to furnish the CBI details
of various properties belonging to one Romesh Sharma, a henchman of
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Dawood Ibrahim. On 09.10.1998 petitioner issued summons under

Section 131 of the Income Tax Act and also wrote a letter to the
Recovery Officer to attach the helicopter of Romesh Sharma so as to
ensure that the same was not used by the political parties. The said
Romesh Sharma had on 31.12.1997 voluntarily disclosed his assets
worth Rs. 51,00,000/- under the Voluntary Disclosure Scheme, though
the said assets did not belong to him.
2.8. Being a patient of acute angina and depression, the petitioner
was finding it difficult to work so he submitted leave application on
12.10.1998, which leave was sanctioned and was extended later.
2.9. By way of order dated 19.06.2000, petitioner was again
suspended from service in contemplation of departmental enquiry on
the allegations of misconduct unbecoming of a government servant.
Memo of Charge dated 25.07.2000 was served on the petitioner,
alleging that while posted as Additional Commissioner of Income Tax
he remained unauthorisedly absent from duty during the period from
09.11.1998 till the date of suspension (19.06.2000) and performed
other acts of insubordination related thereto, reflecting lack of devotion
to duty; and further alleging that he gave statements to the press and
electronic media irresponsibly without authority and recklessly on
sensitive issues even on matters of government policies, constituting
acts of indiscipline unacceptable from any government servant.
2.10. On the basis of departmental proceedings, which are not
relevant for present purposes (since the present challenge remains
confined to quantum of punishment), petitioner was dismissed from
service on 30.05.2003 in pursuance of Advice dated 08.05.2003,
rendered by UPSC. The said dismissal order dated 30.05.2003 was
successfully challenged by the petitioner through O.A. No. 2155/2003,
in which the learned Tribunal vide order dated 04.06.2004 held that
UPSC had based its opinion on certain facts which were not part of the
Charge. Thus, the dismissal order dated 30.05.2003 was set aside,
granting liberty to the disciplinary authority to pass fresh order in
accordance with law.
2.11. Accordingly, fresh order dated 03.09.2004 was passed by the
respondents, imposing punishment of dismissal from service on the
petitioner. The petitioner challenged the said order dated 03.09.2004
by way of Revision Application before the Secretary (Revenue), Ministry
of Finance, but on being informed through letter dated 09.12.2004 that
Revision was not maintainable, he requested that the Revision
Application be considered as Review Application.
2.12. During pendency of the said review proceedings, petitioner
filed O.A. No. 1597/2005 before the learned Tribunal, challenging the
dismissal order dated 03.09.2004 and the said O.A. was disposed of
vide order dated 29.07.2005, directing the respondents to decide the
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Review of the petitioner within four months, which period was extended
upto 31.07.2006, but the Review remained undecided, and petitioner
retired from service on 31.01.2010 upon attaining the age of
superannuation. On 23.11.2010, the Review filed by the petitioner was
rejected by the respondents.
2.13. The petitioner filed writ petition no. W.P.(C) 2281/2011,
seeking quashing of the said order dated 23.11.2010 of Review
rejection and a coordinate bench of this court, vide order dated
01.03.2013 directed that the said writ petition be treated as a petition
filed before the learned Tribunal in view of protracted proceedings and
age of the petitioner. Thus, the said writ petition came to be registered
as T.A. No. 14/2013 before the learned Tribunal and upon the same
being dismissed, the petitioner preferred Review through R.A. No.
101/2017, which also came to be dismissed.
2.14. Hence, the present petition.
3. During final arguments, learned counsel for petitioner took us
through above records and contended that punishment of dismissal
from service imposed on the petitioner is highly disproportionate to the
charged misconduct of mere unauthorised absence from duty. Learned
counsel for petitioner contended that prior to the commencement of
period of the alleged unauthorised absence, the petitioner was
admittedly on sanctioned medical leave on account of various illnesses,
so lenient view ought to be taken. It was argued that even during the
period from 09.11.1998 to 19.06.2000, the petitioner remained
confined to bed due to ill health, so absence from duty during that
period cannot be treated to be wilful. Learned counsel for petitioner
referred to the judgment in the case of Indu Bhushan Dwivedi v. State
of Jharkhand, (2010) 7 SCR 465 in support of his contention that while
imposing punishment, the disciplinary authority ought to have taken
into consideration the past service record of the petitioner, which was
not done so the dismissal order was not sustainable.
4. On the other hand, learned counsel for respondents supported the
impugned orders as well as the punishment order and contended that
the present petition is totally devoid of merit. Learned counsel for
respondents took us through detailed records of various statements
unauthorisedly made by the petitioner to media and contended that in
view of obnoxious allegations levelled by the petitioner against the
government, no compassion is called for. It was argued that the
misconduct of the petitioner is not just unauthorized absence or just
making obnoxious statements before the media but both, so it cannot
be believed that during the period in question, the petitioner was
confined to bed due to illness.
5. Thence, the question before us is as to whether the punishment of
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dismissal from service imposed on the petitioner is or is not

proportionate to the acts of misconduct committed by him.
6. The two Articles of Charge served vide Memo dated 25.07.2000 as
extracted in the impugned order are as follows:
“Article I
That Shri Vishv Bandhu Gupta, while posted as Additional
Commissioner of Income Tax in the region of CCIT, Delhi remained
unauthorisedly absent from duty from 9.11.98 till the date of his
suspension i.e. 19.6.2000 and performed other acts of
insubordination related thereto. By his aforesaid conduct, Shri Vishv
Bandhu’ Gupta has shown lack of devotion to duty and has acted in a
manner which is unbecoming of a government servant, thereby
contravening rule 3(1) (ii) and 3(1) (iii) of CCS (Conduct) Rules,
1964 besides violating Rule 25 of the CCS (Leave) Rules, 1972.
Article II
That Shri Vishv Bandhu Gupta gave statements to the press and
on the electronic media irresponsibly without authority and
recklessly on sensitive issues and even on matters of government
policies constituting acts of indiscipline unacceptable for any
government servant. By his acts as aforesaid Shri Gupta not only
showed conduct unbecoming of a government servant thereby
contravening Rule 3(1)(iii) of CCS (Conduct) Rules but also violated
Rules 9and 11 of the said Rules.”
7. In order to properly understand the expanse of the acts of
misconduct charged against the petitioner, we find it necessary to
extract the relevant portion of Statement of Imputations of misconduct,
which is as follows:
“1.1 Shri V.B. Gupta, Addl. CIT was transferred from Range-15,
New Delhi and posted as Senior AR, ITAT vide CCIT's order dated
13.10.1998. Shri V.B. Gupta applied for earned leave from 20th
th
October, 1998 till 6 November, 1998. However, on the expiry of the
said leave, Shri Gupta neither reported for duty nor applied for any
extension of leave. After this, a letter dated December 1, 1998 which
was posted on 12.1.1999, as the post mark of the Vasant Kunj Post
Office indicates, was received from Shri Gupta. This was addressed
to CIT, Delhi-IX. Vide this letter, Shri Gupta sought the extension of
leave till February 14, 1999. In this letter, Shri Gupta also stated
that he had earlier furnished a letter seeking extension of leave upto
December 4, 1998 on account of backache for which he was advised
rest. On enquiry, it was found that no such letter ever reached the
office of CIT, Delhi-IX, as mentioned in CIT's report dated 15.6.1999.
Further, the medical certificate and leave application in the
prescribed proforma were also never sent by Shri Gupta to the office
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of CIT, Delhi-IX, though he had mentioned in his letter dated

1.12.1998 that he would be sending the same shortly. The CIT, Delhi
-IX has stated in his report that no leave was sanctioned to Shri V.B.
Gupta after 6.11.1998 (7.11.98 and 8.11.98 having been suffixed).
The absence of Shri V.B. Gupta since 9.11.98 is therefore totally
unauthorised.
th
1.2 In view of the above, a letter dated 4 February, 1999 was
issued by the Addl. CIT(HQ) Admn., Delhi to Shri V.B. Gupta
requesting him to explain his unauthorised absence from duty since
the expiry of his sanctioned leave, and also why no charge of his
post was handed over by him before proceeding on his undated reply
to the aforesaid letter, which was received in CCIT's Office. On
16.2.1999, Shri Gupta stated that he was suffering from backache
and was advised medical rest. He also mentioned that he had
applied for grant of medical leave from 20.10.1998 to CIT, Delhi-IX,
and the same was sanctioned. He requested “for further extension of
this medical leave till February 14, 1999.” As mentioned earlier, he
had applied only for earned leave (on medical grounds) for 18 days
w.e.f 20.10.1998 to 06.11.1998 prefixing 17th, 18th & 19th October,
th th
1998 and suffixing 7 & 8 November, 1998 to the period of leave,
which was sanctioned by CIT, Delhi-IX vide order No. CIT-
IX/Leave/Gazetted/98-99/1528 dated 12.10.1998.
1.3. In his letter, Shri Gupta also alleged that he had proceeded
on leave after signing the unilateral relinquishment of charge and
leaving the required number of copies in the prescribed format as his
successor was not available to take the charge. He further alleged
that his successor without waiting for the completion of the date of
his handing over the charge, broke open the steel drawers in his
room in his absence and took the key of the almirah where
sensitive/confidential documents (such as those of Shri Romesh
Sharma and Gillette Inc.) involving detection of over two dozen
crores of fraudulent tax evasion were kept. He further alleged that
this may have been done with a view to either destroy the evidence
or to help the affected parties.
1.4 As is evident from Shri Gupta's own submissions, his
allegations are self contradictory. On the one hand, he says that his
successor broke open the steel drawer and took the key of the
almirah on the very day of his relinquishment of charge, and on the
other hand he states that his successor was not available to take the
charge that day.
1.5 A copy of the letter from Shri Gupta was sent by CCIT-Delhi to
the CIT, Delhi-IX for report. The charges levelled by Shri Gupta have
been strongly denied by Shri Ravi Mathur, Addl. CIT, the successor
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to Shri Gupta and also by CIT, Delhi-IX. The CIT, Delhi-IX has also
reported that inspite of his specific direction to Shri V.B. Gupta to
hand over charge along with a handing over note. Shri Gupta left the
office on 16th October, 1998 without doing the needful. Shri Ravi
Mathur was accordingly directed to assume charge. The reply by Shri
V.B. Gupta is unfitting, unduly slanderous and uncalled for.
1.6 In view of the above, it is clear that Shri Gupta has not been
th
granted any leave subsequent to 8 November, 1998. It was also
reported by senior DR (Admn.), ITAT, Delhi vide his letter no. 350
dated 14.6.99, Shri V.B. Gupta who was posted as Sr. DR, ITAT by
CCIT's order dated 13.10.98 had not joined nor given any intimation.
1.7 Accordingly, a further show-cause notice regarding his
unauthorised absence and non reporting for duties was issued by the
nd
CCIT on 2 July, 1999, but no reply was received from Sh. V.B.
Gupta. Thus, his absence beyond 8.11.1998 remains both
unauthorised and wilful displaying contravention of Rules 3(l)(ii) and
3(l)(iii) of the CCS(Conduct) Rules. 1964.
1.8 Further, under Rule 25 of CCS (Leave) Rules, 1972 wilful
absence from duty after the expiry of leave renders a Government
servant liable to disciplinary action.
Article-II
2.1 In several news items appearing in national dailies, the
statements given by Shri V.B. Gupta have been reported. These are
discussed below:—
(i) In a news item dated 27.2.2000 in Hindustan Times, it is
reported that Shri V.B. Gupta had told a TV channel that he has
“personal knowledge” that several test cricketers had disclosed
concealed income under the VDIS and that a present Test
captain had disclosed hidden income worth Rs. 16 crores.
According to the press report, Shri Gupta told the Hindustan
Times:“The disclosures are sufficient reason for investigation. I will
write to the Cricket Board, asking it to direct all cricketers who have
played for India over the last ten years to state whether they have
disclosed money under VDIS. The list ought to be made public”.
Further, “… Gupta says questions should be asked of …….. (illegible)
declaring unexplained wealth, especially when there is obvious
criminality in ex-captain's case. He believes someone should file a
public interest litigation to make public the names of VDIS
beneficiaries.”
In view of the fact that Shri Gupta as Addl. Commissioner of
Income-Tax was not supposed to have any official dealing with VDIS
declarations, the information provided by him was either wrong and
misleading or he was in wrongful possession of confidential
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information.
(ii) In another news item appearing in Hindustan Times dt.
3.11.98, it was reported that Mr. Gupta had alleged in his
petition to the Chief Election Commissioner that the Chief
Minister has been leading a personal campaign against him to
protect Romesh Sharma's interest. Other allegations casting
aspersions on the motives and conduct of the then Chief
Minister of Delhi and on the Chief Commissioner of Income-Tax,
Delhi for effecting the transfer of Shri Gupta were also reported
in the same news item. Such statements to the press can
never be expected from a government servant, who has to
abide strictly by the CCS (Conduct) Rules.
(iii) A similar news item was published in Delhi Times of Times of
India dated 05.11.98 disclosing alleged contents of his (Shri
Gupta's) letter to the Election Commission.
(iv) In a news item under the title ‘I.T. officer sees politics in
transfer’ In Hindustan Times dated 15.10.98, Shri Gupta has
been quoted to be protesting against his transfer order, and
claiming that the same was motivated to entice the electorate.
2.2 In an interview on Zee TV in ‘News Break’, Shri Gupta had
made statements about corruption related transfers in government
and payment of huge dowry to government servants in view of their
‘potential’ to earn money illegally. He cited his frequent transfers in
the past as a punishment for good work done by him.
2.3 The excerpts of interview given by Shri V.B. Gupta on DD
(Metro) in ‘Aaj Tak’ show that he had criticised the Chief Minister of
Delhi for allegedly trying to get him transferred and for her alleged
links with tax evaders.
2.4 Shri Gupta appeared on “Zee News” channel (Prime Time
News) and put forth his views regarding links of film industry with
criminal mafia. On an issue of attack on film star Shri Rajesh Roshan
he said that the entire film industry was being funded by criminal
mafia who make major contributions to the film industry for running
the same. He officially said that we (the department) conducted a
survey which unearthed Rs. 10000 crores invested by the mafia in
the industry out of which only 100 crores were declared by the film
producers in their income-tax returns. He is further reported to have
said that kidnapping, extortion and murder were being done with the
knowledge of Govt. of India and Maharashtra Government. He went
to the extent of saying that one Secretary was caught in a hotel
room along with the keep of Mafia King Dawood Ibrahim and that the
Home Secretary had approached Dawood to harm an actress Manisha
Koirala to benefit some other heroine, the tape or conversation of
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which was available with CBI. He further, officially announced that “I

on behalf of the Government of India would bring out a White Paper
on this issue and I can challenge that only 5% has been declared as
white money”. In case, it was found incorrect he would tender his
resignation, says the news item report.
2.5 Regarding Jain Hawala case, the officer made the statement
that the CBI had deliberately not taken appropriate action and did
not place full facts before the Hon'ble Supreme Court which were
available with the Income-tax Department. He further said that
besides the fact that politicians duly accepted on their oath under
the Income-tax Act the fact that they had received money from Jain
Brothers which was made available to CBI, the CBI did not
deliberately take appropriate action and that if the CBI wished these
cases could be reopened in case Hon'ble Supreme Court is
approached for the same.
2.6 In an interview published in a Magazine, ‘Business Today’, in
its issue dated July 7-21.2000. Shri Gupta has sharply criticised the
circular from the C.B.D.T. on the VDIS, and has stated that the
loopholes in the scheme were abused by certain foreign agencies or
some underworld people.
In a news item published in Economic Times dated 22.6.2000,
Shri Gupta was reported to have given an interview to a private T.V.
programme, India Talks, on CNBC, making allegations of criminal-
misconduct on part of the then Revenue Secretary in matters
relating to VDIS.
3. The above noted instances show that Shri V.B. Gupta has
showed insubordination, indiscretion and lack of a sense of
proportion, and his conduct has been unbecoming of a government
servant. Shri Gupta was never authorised to make any statements to
the press or the T.V., and his actions have been grossly violative of
official discipline and decorum. He has made comments which are
derogatory to his superiors and critical of governmental procedures
and policies. Such statements and conduct are totally unacceptable
from a government servant, and against the accepted norms of
behaviour and service rules.
4. In this context, it may be stated that Shri V.B. Gupta had
earlier been suspended (6.6.90 to 21.10.94) and disciplinary
proceedings for major penalty were initiated vide Memorandum
dated 3.7.90 on somewhat similar charges. The inquiry Officer had
held two of the three articles of charge as proved and the UPSC,
when consulted, advised levy of penalty of reduction of pay by 3
stages for a period of 3 years with the directions that the charged
officer will not earn increments during the period of penalty. On that
occasion, keeping in view all the facts and circumstances of the case,
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penalty of ‘Censure’ was finally imposed under Rule 15 of the CCS

(CCA) Rules, 1965 vide order dated 11/15.11.1994. However, Shri
Gupta has not learnt lesson from his past mistakes and the
misconduct of the officer appears to have only increased with the
passage of time. Shri Gupta has again been placed under suspension
vide Ministry's order dated 19.6.2000 for his grave lapses discussed
herein above.”
8. To reiterate, the petitioner has opted not to dispute that during
the period from 09.11.1998 to 19.06.2000 he remained unauthorisedly
absent from duty and that he made the above quoted unauthorized
statements before media against the government. And the only
submission on behalf of petitioner is that punishment of dismissal from
service is disproportionately excessive to the acts of misconduct.
9. At this stage, it would be apposite to briefly traverse through the
legal position relevant for present purposes.
9.1. In the case of B.C. Chaturvedi v. Union of India, (1995) 6 SCC
749, the Hon'ble Supreme Court examined the issue of punishments
and the scope of judicial review, holding thus:
“18. A review of the above legal position would establish that the
disciplinary authority, and on appeal the appellate authority, being
fact-finding authorities have exclusive power to consider the
evidence with a view to maintain discipline. They are invested with
the discretion to impose appropriate punishment keeping in view the
magnitude or gravity of the misconduct. The High Court/Tribunal,
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 disciplinary
authority or the appellate authority shocks the conscience of
the High Court/Tribunal, it would appropriately mould the
relief, either directing the disciplinary/appellate authority to
reconsider the penalty imposed, or to shorten the litigation, it
may itself, in exceptional and rare cases, impose appropriate
punishment with cogent reasons in support thereof.”
(emphasis supplied)
9.2. In the case of Union of India v. G. Ganayutham, (1997) 7 SCC
463, the Hon'ble Supreme Court elaborately considered the
proportionality of punishments in administrative law in England as well
as India and after examining various judicial precedents, held thus:
“31. The current position of proportionality in administrative law
in England and India can be summarised as follows:
(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
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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 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
administrator amongst the various alternatives open to him. Nor
could the court substitute its decision to that of the administrator.
This is the Wednesbury [[1948] 1 K.B. 223 : [1947] 2 All ER 680]
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 [[1985] A.C. 374 :
[1984] 3 All ER 935] principles.
(3)(a) As per Bugdaycay [R. v. Ministry of Defence, ex p Smith,
[1996] 1 All ER 257], Brind [[1991] 1 A.C. 696 : [1991] 1 All ER
720] and Smith [Cunliffe v. Commonwealth, [(1994) 68 Aust LJ
791] (at 827, 839) (also 799, 810, 821), Australian Capital Tel. Co.
v. Commonwealth, 1992 CL p. 106 (at 157) (Aus), R. v. Oake, 1987
Law Reports of Commonwealth 477 (at 500) (Can), R. v. Big M Drug
Mart Ltd., [1985] 1 SCR 295 (Can)] 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 proportionality, 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
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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 Articles 19, 21 etc. are involved and not for Article
14.”
(emphasis supplied)
9.3. In the case of Coimbatore District Central Coop. Bank v.
Employees' Association, (2007) 4 SCC 669, the Hon'ble Supreme Court
held thus:
“17. So far as the doctrine of proportionality is concerned, there is
no gainsaying that the said doctrine has not only 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 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”.
18. “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. The very essence of
decision-making consists in the attribution of relative
importance to the factors and considerations in the case. The
doctrine of proportionality thus steps in focus true nature of
exercise - the elaboration of a rule of permissible priorities.
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
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.]
th
20. In Halsbury's Laws of England (4 Edn.), Reissue, Vol. 1(1),
pp. 144-45, para 78, it is stated:
“The court will quash exercise of discretionary powers in which
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there is no reasonable relationship between the objective which is

sought to be 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
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 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 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 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] A.C. 374 : [1984] 3 WLR 1174 :
[1984] 3 All ER 935 (HL)] Lord Diplock proclaimed:
“Judicial review has I think developed to a stage today when,
without reiterating any analysis of the 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 ‘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 mind particularly the possible adoption in the future of
the principle of ‘proportionality’….”
23. CCSU [[1985] A.C. 374 : [1984] 3 WLR 1174 : [1984] 3 All
ER 935 (HL)] has been reiterated by English courts in several
subsequent cases. We do not think it necessary to refer to all those
cases.
24. So far as our legal system is concerned, the doctrine is well
settled. Even prior to CCSU [[1985] A.C. 374 : [1984] 3 WLR 1174 :
[1984] 3 All ER 935 (HL)], 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, and it is always open to a court to interfere
with such penalty in appropriate cases.”
(emphasis supplied)
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9.4. In the case of Chairman cum Managing Director, Coal India

Limited v. Mukul Kumar Choudhuri, (2009) 15 SCC 620, the Hon'ble
Supreme Court recapitulated the legal position and held thus:
“19 [Ed. : Para 19 corrected vide Official Corrigendum No.
F.3/Ed.B.J./9/2010 dated 11-1-2010.]. The doctrine of
proportionality is, thus, well-recognised concept of judicial
review in our jurisprudence. 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 exposed to judicial
intervention if exercised in a manner which is out of
proportion to the fault. Award of punishment which is grossly in
excess to the allegations cannot claim immunity and remains open
for interference under limited scope of judicial review.
20. One of the tests to 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
misconduct and all other relevant circumstances and exclude
irrelevant matters before imposing punishment.”
(emphasis supplied)
9.5. In the cases of B.C. Chaturvedi (supra) as well as Ganayutham
(supra), the Supreme Court also held that the Court exercising writ
jurisdiction in such matters will not interfere with quantum of
punishment in order to substitute the decision of the disciplinary
authority with its view unless the punishment awarded was one which
shocked the conscience of the court and that even in case its
conscience is shocked, this court would normally remand the matter to
the disciplinary authority instead of substituting the impugned
punishment with an alternate penalty. In B.C. Chaturvedi (supra), the
Supreme Court elaborated thus:
“25. No doubt, while exercising power under Article 226 of
the Constitution, the High Courts have to bear in mind the
restraints inherent in exercising power of judicial review. It is
because of this that substitution of the High Court's view
regarding appropriate punishment is not permissible. But for
this constraint, I would have thought that the law-makers do
desire application of judicial mind to the question of even
proportionality of punishment/penalty. I have said so because
the Industrial Disputes Act, 1947 was amended to insert Section 11-
A in it to confer this power even on a labour court/industrial tribunal.
It may be that this power was conferred on these adjudicating
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authorities because of the prevalence of unfair labour practice or

victimisation by the management. Even so, the power under Section
11-A is available to be exercised, even if there be no victimisation or
taking recourse to unfair labour practice. In this background, I do not
think if we would be justified in giving much weight to the decision
of the employer on the question of appropriate punishment in service
matters relating to government employees or employees of public
corporations. I have said so because if need for maintenance of office
discipline be the reason of our adopting a strict attitude qua the
public servants, discipline has to be maintained in the industrial
sector also. The availability of appeal etc. to public servants does not
make a real difference, as the appellate/revisional authority is known
to have taken a different view on the question of sentence only
rarely. I would, therefore, think that but for the self-imposed
limitation while exercising power under Article 226 of the
Constitution, there is no inherent reason to disallow
application of judicial mind to the question of proportionality
of punishment/penalty. But then, while seized with this
question as a writ court interference is permissible only when
the punishment/penalty is shockingly disproportionate.”
(emphasis supplied)
9.6. In the case of Jai Bhagwan v. Commissioner of Police, (2013)
11 SCC 187, the Hon'ble Supreme Court held thus:
“10. What is the appropriate quantum of punishment to be
awarded to a delinquent is a matter that primarily rests in the
discretion of the disciplinary authority. An authority sitting in appeal
over any such order of punishment is by all means entitled to
examine the issue regarding the quantum of punishment as much as
it is entitled to examine whether the charges have been satisfactorily
proved. But when any such order is challenged before a Service
Tribunal or the High Court the exercise of discretion by the
competent authority in determining and awarding punishment
is generally respected except where the same is found to be
so outrageously disproportionate to the gravity of the
misconduct that the Court considers it be arbitrary in that it is
wholly unreasonable. The superior courts and the Tribunal
invoke the doctrine of proportionality which has been
gradually accepted as one of the facets of judicial review. A
punishment that is so excessive or disproportionate to the
offence as to shock the conscience of the Court is seen as
unacceptable even when courts are slow and generally
reluctant to interfere with the quantum of punishment. The law
on the subject is well settled by a series of decisions rendered by
this Court. We remain content with reference to only some of them.
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11. In Ranjit Thakur v. Union of India [(1987) 4 SCC 611 : 1988

SCC (L&S) 1 : (1987) 5 ATC 113] this Court held that the doctrine of
proportionality, as part of the concept of judicial review, would
ensure that even on an aspect which is, otherwise, within the
exclusive province of the court martial, if the decision even as to the
sentence is in defiance of logic, then the quantum of sentence would
not be immune from correction. Irrationality and perversity,
observed this Court, are recognised grounds of judicial review. The
following passage is apposite in this regard : (SCC p. 620, para 25)
“25. … The doctrine of proportionality, as part of the concept of
judicial review, would ensure that even on an 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 [quantum of] sentence would not be
immune from correction. Irrationality and perversity are
recognised grounds of judicial review.”
12. Similarly, in Dev Singh v. Punjab Tourism Development
Corpn. Ltd. [(2003) 8 SCC 9 : 2003 SCC (L&S) 1198] this Court,
following Ranjit Thakur case [(1987) 4 SCC 611 : 1988 SCC (L&S)
1 : (1987) 5 ATC 113] held: (Dev Singh case [(2003) 8 SCC 9 :
2003 SCC (L&S) 1198], SCC p. 11, para 6)
“6. … a court sitting in appeal against a punishment
imposed in the disciplinary proceedings will not normally
substitute its own conclusion on penalty, however, if the
punishment imposed by the disciplinary authority or the
appellate authority shocks the conscience of the court, then
the court would appropriately mould the relief either by
directing the disciplinary/appropriate authority to
reconsider the penalty imposed or to shorten the litigation
it may make an exception in rare cases and impose
appropriate punishment with cogent reasons in support
thereof. It is also clear from the abovenoted judgments of this
Court, if the punishment imposed by the disciplinary authority is
totally disproportionate to the misconduct proved against the
delinquent officer, then the court would interfere in such a case.”
(emphasis supplied)
9.7. In the case of Union of India v. Constable Sunil Kumar, (2023)
3 SCC 622, the Hon'ble Supreme Court elaborated on the scope of
judicial review in such cases and held thus:
“11. Even otherwise, the Division Bench of the High Court
has materially erred in interfering with the order of penalty of
dismissal passed on proved charges and misconduct of
indiscipline and insubordination and giving threats to the
superior of dire consequences on the ground that the same is
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disproportionate to the gravity of the wrong. In Surinder Kumar

[CRPF v. Surinder Kumar, (2011) 10 SCC 244 : (2012) 1 SCC (L&S)
398] while considering the power of judicial review of the High Court
in interfering with the punishment of dismissal, it is observed and
held by this Court after considering the earlier decision in Union of
India v. R.K. Sharma [Union of India v. R.K. Sharma, (2001) 9 SCC
592 : 2002 SCC (Cri) 767] that in exercise of powers of judicial
review interfering with the punishment of dismissal on the
ground that it was disproportionate, the punishment should
not be merely disproportionate but should be strikingly
disproportionate. As observed and held that only in an
extreme case, where on the face of it there is perversity or
irrationality, there can be judicial review under Articles 226 or
227 or under Article 32 of the Constitution.”
(emphasis supplied)
9.8. Thence, the legal position relevant for present purposes, as
culled out of above quoted and other plethora of judicial
pronouncements is that imposition of penalty is in the domain of
exclusive discretion of the disciplinary authority, which discretion has to
be exercised judiciously; that the punishment imposed must not be
strikingly disproportionate to the proved misconduct, in the sense that
it should not shock the judicial conscience; that scope of the High Court
in the exercise of judicial review of the punishment awarded is a limited
to the extent of examining the proportionality of the punishment with
the proved misconduct; and that the test to be applied by the court in
order to ascertain proportionality is as to whether any reasonable
employer would have imposed such punishment in the like
circumstances.
10. Falling back to the present case, as described above, two
charges of misconduct stand admittedly proved against the petitioner
viz, unauthorised absence for the period from 09.11.1998 to
19.06.2000 (the date of his suspension from service) and his
unauthorised scandalous communications with media which created
avoidable controversies with potential of generating cynicism against
the government. What is to be considered by us is as to whether any
reasonable employer would have imposed the punishment of dismissal
from service on the petitioner for his said acts of misconduct.
11. The unauthorised absence of the petitioner from duties was not
for a period of a day or two or a week or so. The absence was for much
prolonged period from 09.11.1998 to 19.06.2000.
11.1. Even according to his own pleadings, the petitioner availed
leave for a fairly long period, till 06.11.1998 with next two days being
suffixes and admittedly he could not cope up with work pressure. If he
was ill, nothing prevented him from seeking further leave. Rather, in
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response to letter dated 04.02.1999 of the respondents, calling him

upon to explain his unauthorised absence and for a failure to hand over
charge, the petitioner stated that on 16.02.1999 he had been advised
medical rest for backache and that he had applied for medical leave for
the period from 20.10.1998 and had sought extension thereof till
14.02.1999. It would also be significant to note that the petitioner in
the said letter, seeking extension of medical leave till 14.02.1999, ante
-dated the letter to 01.12.1998, and dispatched the same on
12.01.1999 as reflected from the postal record of PO, Vasant Kunj. The
petitioner also claimed in the said letter that he had sought extension
of leave up to 04.12.1998 by way of earlier letter. But no such earlier
letter had ever reached the respondents. Not only this, neither the
medical certificate nor the leave application in prescribed format was
sent by the petitioner ever.
11.2. The said unauthorised absence of the petitioner across such
prolonged period of time has to be also seen in the light of high profile
nature of his duties.
11.3. It would also be very significant to note that during the said
period of unauthorised absence, reason whereof is sought to be
explained by the petitioner as backache, it is not that the petitioner was
bedridden and was unable to submit leave application; as mentioned
above, even during this period of unauthorised absence, petitioner was
engaged in tirade against the government through his interactions with
media and was making obnoxious and scurrilous statements against
the government.
11.4. And all these factors have to be kept in mind while testing as
to whether any reasonable employer would or would not have imposed
the punishment of dismissal from service on account of such acts of
misconduct.
12. Coming to the second article of charge proved against the
petitioner, as extracted above from statement of imputation, the
petitioner despite being a government servant engaged himself in
slanderous campaign against the government and made scandalous
statements to the media, which statements owing to his high position
in the taxation machinery enjoyed high acceptability by media and
public as credible information, thereby damaging the reputation of the
government in the eyes of public.
12.1. Some such scandalising statements made by the petitioner to
the media were that he had personal knowledge about disclosure of
concealed income under the VDIS by several test cricketers including a
disclosure of hidden income of Rs. 16 crores by a test captain; that the
said disclosures are sufficient reason for initiating investigation against
all cricketers who played for India over last 10 years and in this regard
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someone should file Public Interest Litigation (though he was not

authorised to deal with VDIS declarations and information provided by
him was wrong or misleading); that the Chief Minister was leading a
personal campaign against him to protect the interests of Romesh
Sharma and in that regard, he had written to the Chief Election
Commissioner; that there were other allegations, casting aspersions on
the motive and conduct of the then Chief Minister of Delhi and Chief
Commissioner Income Tax, behind his transfer; that there were
corruption related transfers in the government and payment of huge
dowry to government servants owing to their potential to earn money
illegally; that the Chief Minister of Delhi was siding with the tax
evaders; that there was nexus between the film industry and criminal
mafia which led to attack on film star Rajesh Roshan; that Income Tax
Department had unearthed Rs. 10,000 crores invested by mafia in the
film industry, out of which only Rs. 100 crores was declared by the film
producers in their income tax returns; that kidnappings, extortions and
murders were being committed with the knowledge of Government of
India and Maharashtra Government; that one Secretary was caught in a
hotel room with the keep of mafia king Dawood Ibrahim and the Home
Secretary had approached Dawood to harm the actress Manisha Koirala
to benefit some other heroine and tape recorded conversations was
available with CBI; that in Jain Hawala case, the CBI had deliberately
not taken appropriate action and had not placed full facts before the
Supreme Court; that the CBI deliberately concealed from Supreme
Court statements of the politicians whereby they had accepted on oath
under the Income Tax Act having received money from Jain Brothers;
that there were many loopholes in VDIS of CBDT, which were abused
by certain foreign agencies or some underworld people; and that there
were acts of criminal misconduct on the part of Revenue Secretary in
the matters related to VDIS.
12.2. Those scandalous statements were made by the petitioner
through interviews to various popular media entities including the
Hindustan Times, the Times of India, the Zee TV, the DD (Metro), the
Zee News, the Business Today, the Economic Times and the CNBC etc.
13. Going by the above described acts of misconduct committed by
the petitioner, we are unable to believe that no reasonable employer
would have dismissed him from service by way of penalty. We are
unable to find the punishment of dismissal imposed on the petitioner as
the one that could shock conscience of any court. We are of the
considered view that no lesser punishment than dismissal from service
would be commensurate to the gravity of the multiple acts of
misconduct described above. Even if there were no restraints on this
court exercising judicial review of punishment order, we would not find
any other punishment proportionate to the acts of misconduct
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committed by the petitioner. A person castigating their employer

through a constant tirade of false and scandalous allegations does not
deserve to continue in the employment of the said employer.
14. So far as consideration of past service record of the petitioner is
concerned (on which learned counsel for petitioner laid strong
emphasis), suffice it to record that petitioner's own pleadings cited
above and also the extracted statements of imputations reflecting
repeated suspensions for his other acts of misconduct would fail to help
his cause here. As reflected from the above extract earlier also the
petitioner was suspended from 06.06.1990 to 21.10.1994 and
disciplinary proceedings for major penalty were initiated against him,
which proceedings culminated into a lenient penalty of censure.
15. Certainly, it is not a case which could be dealt with paring knife;
use of battle axe was most appropriate. We do not find it a case of the
State using sledgehammer to crack a nut. We are unable to find any
infirmity in the impugned order, so the same is upheld and the petition
is dismissed.
———
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