JUDGMENT Anjani Kumar and Sabhajeet Yadav, JJ.
1. The petitioner aggrieved by the action of the respondents and the order dated 16th March, 1999/2nd June, 1999 (Annexure 12 to the writ petition) filed this writ petition with the following prayer:
(i) to allow this writ petition.
(ii) to issue writ order/direction in the nature of mandamus to the respondent No. 2 to pay salary w.e.f. 1-2-93 to 31-7-95 treating the petitioner as on duty and consider the petitioner for promotion in the grade of Rs. 3700-5000 (pre-revised) and other benefits alongwith others, before his juniors.
(iii) to allow an interest @ 18% on the arrear of salary till the arrears are actually paid.
(iv) to allow a compensation of rupees, eight Lakhs for causing damage, not only to the petitioner but to his entire family w.e.f. 1-2-93 till this date.
(v) to quash the impugned order dated 16-3-99 /2-6-99 Annexure-12, issued in the name of president forfeiting entire pensionary benefits, including monthly provisional pension and gratuity as a penalty.
(vi) to issue writ order or direction to the respondent No. 2 to pay 18% interest on the arrears of provisional pension w.e.f. 1-8-95 to 28-2-99.
(vii) to issue writ order/direction to pay interest @ 18% on gratuity w.e.f. 1-8-95 till it is actually paid.
(viii) to pay arrears of full pension 1-3-99 along with an interest 18% till it is actually paid.
(ix) to allow a damage @ Rs. 100/- per day, w.e.f. 1-3-99, as a compensation, till the retiral benefits are actually paid.
(x) to allow cost of legal proceedings/litigations.
(xi) to pay the salary, including salary in revised grade for retaining the petitioner in service against its will w.e.f. 1-8-95 to 2-6-99 as an re-employed pensioner.
(xii) to allow any other relief as this Hon'ble Court may deem fit.
(xiii) case may be decided on merit.
2. The aforesaid writ petition was amended during its pendency before this Court and the petitioner added a prayer seeking quashing of the order passed by the Central Administrative Tribunal, Allahabad (hereinafter referred to as the 'CAT') dated 17th April, 2001 (Annexure 1 to the writ petition). This writ petition came up for hearing before a Division Bench of this Court and the Division Bench by its judgement and order dated 3rd November, 2004 allowed the aforesaid writ petition.
3. Against the aforesaid judgement and order dated 3rd November, 2004 passed by this Court, the respondent-Union of India preferred Civil Appeal No. 1617 of 2007 before the Hon'ble Apex Court. The aforesaid Civil Appeal is ultimately allowed by the Hon'ble Apex Court and the Hon'ble Apex Court issued the following directions:
....we are of the opinion that the impugned judgement cannot be sustained. Respondent claimed himself to be continuing in service despite order of transfer dated 02.02.1993. It is not disputed that the said order of transfer has not been set aside by any court having jurisdiction in the matter. An order of penalty was passed against him. In the facts and circumstances of this case, the question as to whether the respondent was justified in disobeying the order of transfer or not, was considered by the Central Administrative Tribunal. The High Court, in exercise of its jurisdiction under Article 226 of the Constitution of India could have interfered with the said finding but, in our opinion, could not have substituted the opinion of the employer by its own and that too by creating an artificial date of retirement with effect from 2.2.1993 whereas the respondent (petitioner in the writ petition) himself thought that he had continued in service till his date of superannuation.
We, therefore, are of the opinion that the impugned judgement cannot be sustained and is set aside accordingly and the matter is remitted to the High Court for consideration of the matter afresh on merits....
Thus, this matter is before us.
4. We have heard petitioner, Sri S.C. Gulati in person and Sri Subodh Kumar for respondents. The brief facts as emerged after exchange of the pleadings are that the petitioner who was working with the respondents aggrieved by an order of transfer dated 2nd February, 1993 whereby he was transferred to Chennai (Madras). The petitioner challenged the aforesaid order of transfer in Original Application No. 232 of 1993 before the CAT. The aforesaid Original Application was decided by the CAT on 13th August, 1993 with liberty to petitioner to file a representation against his transfer order dated 2nd February, 1993. Petitioner therefore, filed a representation against the transfer order which was rejected by the authority vide order dated 6th October, 1993. After rejection of the representation, petitioner filed Original Application No. 1617 of 1993 challenging the transfer which was also rejected by the CAT vide order dated 1st February, 1994. Thus, CAT refused to interfere with the transfer order dated 2nd February, 1993. That even after rejection of Original Application No. 1617 of 1993, petitioner did not join his services at Chennai (Madras) and ultimately he was superannuated on 31st July, 1995. Thereafter petitioner filed yet another Original Application No. 1333 of 1996 with the prayer that the respondents be directed to the payment of cash equivalent to leave salary with interest @ 12.5% with effect from 1st August, 1995, damages and cost of litigation. This Original Application No. 1333 of 1996 was dismissed vide order dated 29th July, 1998 with the finding that withholding of leave salary of the petitioner is in accordance with Rule 39 of relevant Rules applicable to the petitioner. This order dated 29th July, 1998 passed by the CAT was challenged by the petitioner before this Court by filing writ petition No. 28749 of 1998. In the meantime, departmental proceedings pending against the petitioner was decided by the respondent vide order dated 27th July, 2001. This order dated 27th July, 2001, whereby the disciplinary proceedings against the petitioner dated 27th July, 2001 is challenged by the petitioner by filing an amendment application in writ petition No. 28749 of 1998. This writ petition was dismissed by this Court. However, liberty was granted to the petitioner that if he likes, may challenge the order dated 27th July, 2001.
5. The disciplinary proceedings against the petitioner were decided on 16th March, 1999. The pension and gratuity of petitioner was withheld as punishment for disobedience of order dated 2nd February, 1993. The petitioner challenged this order dated 16th March, 1999 by filing Original Application No. 766 of 1999. This Original Application was decided by the CAT vide order dated 17th April, 2001. The CAT upheld the finding recored by the disciplinary authority that the petitioner deliberately did not joint when he was transferred from Allahabad to Madras. However, it was left open to the petitioner to make representation to the appropriate authority for reconsideration of the quantum of punishment. The petitioner filed representation for modification of quantum of punishment which was ultimately modified to the extent that gratuity due to him is withheld and pension equal to the eligible family pension has been made admissible to him. This order dated 22nd October, 2002 modifying earlier order of the disciplinary authority was challenged by the petitioner. As already stated, the writ petition was decided which has been remanded by the Hon'ble Supreme Court in accordance with law as per direction. This is how, writ petition is before us.
6. The petitioner who appeared in person, laid emphasis on the observations made by Division Bench of this Court when it decided the writ petition on 21st February, 1997 and submitted that this Court should take similar view as has been taken by the earlier Bench.
Learned Counsel for the petitioner though made an attempt to challenge the finding arrived at in the impugned order regarding the fact petitioner did not join the place of posting on transfer, therefore, he is subjected to disciplinary proceedings but he failed to demonstrate that the aforesaid finding is either perverse or suffer from any error apparent on the face of record.
7 On the other hand, we find that the order of the CAT that on the basis of material on record no interference is required, in our view do not warrant any interference by this Court in exercise of jurisdiction under Article 226 of the Constitution of India.
8. Petitioner has submitted that in any view of the matter, the punishment awarded to the petitioner withholding of the pension except what has been allowed, is wholly arbitrary, cannot be said to be reasonable.
9. We have given our considered thoughts to the judgement relied upon by the petitioner. Learned Counsel for the respondent has relied upon the decision of the Apex Court Union of India and Anr. v. G. Ganayutham, wherein the Apex Court has ruled as under:
The current position regarding proportionality in administrative law in England and India can be summarised as follows:
(1) To judge the validity of an 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 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 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 Budaycay, Brind and Smith, as long as the Convention is not incorporated into English law, the English Courts merely exercise a secondary judgement to find out if the decision-maker could have, on the material before him, arrived at the primary judgement in the manner he has done.
(3) (b) If the Convention is incorporated in England making available the principle of proportionality, then the English Court will render primary judgment on the validity of the administrative action and find out if the restriction is disproportionate or excessive or it is not based upon a fair balancing of the fundamental freedom and the need for the restriction thereupon.
10. In view of the aforesaid decision of the Apex Court, we find that there is no ground made out for interference with the order even on quantum of punishment.
The writ petition is dismiss