ORDER The petitioner Anand Prakash Saxena who at the relevant time was the Deputy Director (Chemical) of the Export Inspection Council, Calcutta, has in this application under Article 226 of the Constitution impugned the validity of an order dated July 22, 1980 passed by Sri D.C. Majumdar, Director (Inspection and Quality Control) and Ex-officio Member-Secretary of the Export Inspection Council, Ministry of Commerce, Government of India imposing upon him a penalty of removal from service from the office of Deputy Director with immediate effect in exercise of the powers conferred upon him under Rule 9(2) of the Export Inspection Agency Employees (Classification, Control and Appeal) Rules, 1978. A copy of this order is annexure D to the petition. 2. Against this order the petitioner preferred an appeal and Sri V. Vaidyanathan, Joint Director (Vigilance) of the Export Inspection Council of India by a letter dated November 21, 1981 communicated to the petitioner that the Commerce Secretary & Chairman of the said Council on careful consideration of the appeal rejected the same. A copy of this letter, which is annexure 'J' to the petition, is also under challenge in this proceeding. 3. Mosul State Company of Mosul, Iraq floated a tender enquiry for the purchase of 200 metric tonnes of aluminium sulphate with specification of it being technically pure and free from iron granules suitable for water works. The composition of the aluminium sulphate was laid down in the tender as follows : A 1203-17.1 to 173% S03-40 to 40.4% Basicity in % A1203-0.2 to 0.2% Insoluble in water less than 0.2% Fe-0.003 to 0.005% As less than 0.001% 4. In response to the said tender enquiry M/s. Chitra Trading Corporation of India of 68/7, Purna Das Road, Calcutta 29 submitted a tender which was accepted by the company in Iraq and a purchase order was accordingly issued in favour of the Calcutta company. As per terms and conditions of the Mosul State Company, the Chitra Trading Corporation was required to despatch the aluminium sulphate after due inspection by the Export Inspection Agency and suitability of the consignment as per their specification. 5. Chitra Trading Corporation in order to get the material inspected before despatch submitted a notice of inspection on July 1, 1977 to the office of the Export Inspection Agency, Calcutta where the petitioner was employed as the Deputy Director (Chemical). 5. Chitra Trading Corporation in order to get the material inspected before despatch submitted a notice of inspection on July 1, 1977 to the office of the Export Inspection Agency, Calcutta where the petitioner was employed as the Deputy Director (Chemical). On receipt of the notice of inspection the petitioner directed one Sri. S. Roy, one of the technical officers employed in the office of the Export Inspection Agency to collect a sample. Accordingly on July 12, 1977 the sample was collected from M/s Phosphate Co. Ltd. at Rishra in the district of Hooghly from whom Chitra Trading Corporation had purchased the material for the purpose of export. The sample collected by Sri Roy was sent to the laboratory for test and after analysis the laboraty report being No. 112 dated 16.7.77 was as follows : A 1203 16.00% S03-Not tested Basicity in % A 1203-(Ph value about 3.5) Insoluable) 0.39% in water) Fe-0.002% As Not mentioned 6. On receipt of this report the petitioner rejected the consignment for export. 7. Chitra Trading Corporation again sent another intimation for further inspection on or about July 20, 1977. On receipt of the said notice the petitioner directed one Sri R.N. Misra, an Assistant Director (Chemical), for field inspection of the material. Sri Misra, accordingly, visited the factory premises of M/s. Phosphate Co. Ltd. and collected sample which was duly analysed and the laboratory test report being No. 120 dated 23.7.77 a was as follows : A1203-18.35% SO3-Ceport will be submitted later on Basicity in %) Ph Value) A12O3 ) ) 4.O Insoluable in 2.692% Water Fe O.OO1% As Not mentioned 8. On receipt of the above test report the petitioner ordered the issue of a fitness certificate, which was accordingly issued on July 23, 1977 under his signature. 9. On receipt of the above fitness certificate M/s, Chitra Trading Corporation took steps for the despatch of the consignment through their clearing agent at Calcutta. A sample of aluminum sulphate was also drawn by the Customs authorities for test as the exporter had claimed "draw back amount". The sample of the aluminum sulphate drawn by the Customs authorities at the Customs Shed on July 26, 1977 was duly analysed by the Chemist of the Customs House, Calcutta and it was opined that the aluminum sulphate in the form of lump was not free from iron. The sample of the aluminum sulphate drawn by the Customs authorities at the Customs Shed on July 26, 1977 was duly analysed by the Chemist of the Customs House, Calcutta and it was opined that the aluminum sulphate in the form of lump was not free from iron. In spite of this, for reasons best known to them, the Customs authorities allowed the consignment to be exported. 10. On receipt of the consignment Mosul State Company had the aluminum sulphate examined and found that it contained the following : PH value-2.8% A1203-14.5% Insoluable matter-3.4% Fe 203-15.7% Iron 4% 11. The Company further reported that the aluminum sulphate was not of any use to them due to the high quantity of iron. 12. The Mosul State Company made a complaint to the Government of India in the Ministary of Commerce Necessary consequences followed and a charge sheet was issued on the petitioner on June 5, 1979 by the Director (Inspection and Quality Control). The articles of charge, which is included in annexure ‘B’ to the petition, reads as follows : “That Shri A.P. Saxena, while functioning as Deputy Director (Chemical) in the office of Export Inspection Agency, Calcutta on or about 23.7.77 committed gross misconduct in as much as he issued a fitness certificate in favour of M/s. Chitra Trading Corporation of India, Calcutta regarding export-worthiness of 200 M.T. Aluminum Sulphate which were not in conformity with its specification. Shri Saxena has, therefore, failed to maintain absolute devotion to duty and has thereby contravened Rule 3(1)(ii) of Central Civil Services (Conduct) Rules 1964” 13. The Departmental Enquiry was duly held and the Inquiring Authority and Commissioner for Departmental Inquiries gave a report dated October 22, 1979 and found that the charge against the petitioner had been established on the basis of the following conclusions: “But the fact remains that Sri Saxena has issued the certificate of export worthiness on the basis of test results of samples drawn after inspection by the Export Inspection Agency which have not conformed to the specifications given by the exporter in his notice of intimation for inspection to the Export Inspection Agency and for this reason Shri A.P. Saxena should not have issued the export worthiness certificate by exercising the discretion which was not left with him”. 14. The is matter was heard by me previously when on an admission made by Mr. 14. The is matter was heard by me previously when on an admission made by Mr. D.N Das, Senior Counsel appearing on behalf of the Respondents, that what the petitioner may have done cannot be deemed to be a failure to maintain devotion to duty and as such it cannot come within the definition of S. 3(1)(ii) of the Central Civil Services (Conduct) Rules, 1964. (hereinafter referred to as the Rules) and also on Mr. Das’s agreeing that the punishment of removal from service was unduly harsh and completely disproportionate to what the petitioner had done, I made the Rule absolute with the liberty to the Respondents to impose some lesser punishment, such a censure or a reprimand if they so deemed fit. Against my order the Respondents preferred an appeal, inter alia, on the ground that the concession made by Mr. Das was on a point of law and as such not binding on the Respondents. The appeal Court has thereafter remanded back the case to me for fresh heading on merits. 15. Mr. Pradip Ghosh appearing on behalf of the petitioner has firstly drawn my attention to the Notification dated 25.3.1966 issued by the Ministry of Commerce under S. 6 of the Export (Quality Control and Inspection) Act, 1963 and the Rules framed thereunder-copy of which is annexure "A" to the affidavit in-opposition affirmed on behalf of the respondents No. 1, 2, 3, 4 and 6 by Sri Biswanath Majumder on 6.4.82. Mr. Ghosh has in particular referred to paragraph 4(4) of the Notification which lays down under what circumstances a Certificate can be granted to the exporter declaring a consignment to be export-worthy and has submitted that a pre-condition is that the Agency has to be satisfied that the inorganic chemical sought to be exported conformed to the specifications stipulated in the export contract. In other words, according to Mr. Ghosh, it was open to the petitioner to use his own discretion and ascertain whether the chemical intended to be exported could be properly utilised for the purpose mentioned in the export contract and he was not expected to mechanically compare the chemical analyst's report with the specifications laid-down in the export contract and refuse a certificate if the two were not identical in all respects. Mr. Mr. Ghosh has also made detailed submission as to why the petitioner rejected the first sample sent for analysis, but granted the certificate in the second case. 16. Mr. Ghosh's next submission is that there is no allegation either in the charge-sheet or in the statement of imputations that the petitioner had any dishonest intention or any evil motive. As such he cannot be held guilty of misconduct with which he was not charged and if it was a case of exercise of a discretion which was not vested in him, it cannot be regarded as misconduct Reference was made in this connection to a decision of the Supreme Court in the case of J. Ahmed v. Union of India & ors. reported in AIR 1979 SC 1022 . 17. Mr. Ghosh next contended that there was no finding of the Enquiring Officer that the petitioner was lacking in devotion to duty and in any event an exercise of discretion even beyond one's power cannot be regarded as lack of devotion and therefore the petitioner cannot be deemed to have violated Rule 3(1)(iii) of the Rules 18. The next submission of Mr. Ghose was that the punishment of removal from service was wholly disproportionate to the offence of misconduct as alleged and this would also give rise to an inference of victimisation. In this connection Mr. Ghose referred to a decision of this High Court in the case of National Tobacco Company of India & ors v. 4th Industrial Tribunal & ors. reported in AIR 1960 Cal. 249 . 19. Mr. Ghose then contended that the impugned order passed against the petitioner was actuated by malice and as such it should be quashed. In this connection he has submitted that the inference of malice can be drawn from the conduct of the Respondents and it is on record that the senior counsel appearing for then at the first hearing agreed to an order whereby the petitioner was to be let off with a minor punishment, as the punishment imposed was wholly disproportionate to what the petitioner had allegedly done. Mr. Mr. Ghose then stated that even after such an agreed order the Respondents preferred an appeal in order to have the agreed order set aside and this shows that there was strong element of malice and the Respondents were anxious to find a scope-goat to shift their own bungling on the petitioner and to cover up a scandal which was likely to erupt because of the shipment of a wrong consignment to a foreign buyer; in the circumstances the petitioner had to be made liable and suffer a severe punishment so that the authorities concerned could conveniently put the blame on him. 20. Mr. R.C. Deb appearing with Mr. Jatin Ghose has opposed this Rule. It is submitted on behalf of the Respondents that the charge-sheet and the disciplinary proceedings were initiated against the petitioner on the basis of the findings of the Enquiry Officer who came to a finding that Sri Sakena was to issue a certificate in the exercise of the powers derived from the statutory Rules and in the manner prescribed therein and in the matter of issuance of such a certificate no discretion was left with him. As such, the Enquiry Officer held that the charge against the petitioner had been established. In this connection it was further submitted that in the disciplinary proceedings against Sri Saxena the only charge for investigation was the issuance of an export-worthiness certificate in violation of the statutory Rules and the matters subsequent to the issuance of the certificate including the exportation of goods are wholly irrelevant and outside the purview of the disciplinary proceeding against Sri Saxena. 21. In answer to the petitioner's attempt to justify the issuance of the certificate, it was contended that when the statutory Rules prescribed the norms for the issuance of a certificate there was no scope for the exercise of any discretion or the issue of any certificate in deviation of the said statutory norms. 22. It was then contended that the charge against the petitioner was the commission of a major misconduct, i.e. acts or omission in breach of the statutory provisions as the statute has been enacted and the statutory Rules have been framed as a matter of public policy laying down the forms with a view to putting a check so that substandard goods are not exported. 23. 23. It was then submitted that the issuance of any certificate in deviation of the statutory norms on the basis of a plea of alleged discretionary power will have a far-reaching effect prejudicial to the interest of the nation and would frustrate the very object of the Act, as the deviation does not concern only an individual or a few persons but if affects the interest of the export trade of the nation as a whole. 24. As regards Mr. Ghose’s submission that the sample of the consignment which was passed by the petitioner was not exported but a completely different consignment, which had high iron content was sent, it was submitted that the Customs had drawn samples for the purpose of claim for drawback at the point of shipment and the result of the Customs report were available on 16.8.77 after the ship had left Calcutta, and the consignment could not be detained in view of the fact that the exporter had filed the inspection certificate issued by the Export Inspection Agency. 25. As regards the scope and meaning of ‘devotion to duty’ my attention was also drawn to the decision of the Supreme Court in the case of Union of India & ors v. J. Ahmed reported in AIR 1979 SC 1022 where the Supreme Court observed that devotion to duty is something opposed to indifference to duty or an easy going light-hearted approach to duty and an act or omission against the provisions of the statute and public policy constitutes misconduct for which disciplinary proceeding can be initiated. 26. As regards the punishment it was submitted that this Court in the exercises of the writ jurisdiction will not interfere with the findings of fact or the quantum of punishment unless the finding is perverse or the punishment is not justified by the Rules and in the instant case the finding of the Enquiry Officer that Sri Saxena had committed gross misconduct was based on the materials on record, and as such the punishment cannot be deemed to be perverse or in any way illegal. 27. As regards mala fide it was contended that mere allegation of mala fide was not enough and particulars have to be given and this Court should not accept the petitioner's argument that the punishment was actuated by malice on the basis of vague allegations without proper particulars. 28. 27. As regards mala fide it was contended that mere allegation of mala fide was not enough and particulars have to be given and this Court should not accept the petitioner's argument that the punishment was actuated by malice on the basis of vague allegations without proper particulars. 28. The Government of India, Ministry of Commerce by a Notification No. S.O. 1270 published on 25.3.66 prohibited the export in course of International trade of the inorganic chemicals mentioned in the schedule to the said Notification un1ess the same was accompanied by a certificate issued by an agency recognised by the Central Government under S. 7 of the Export (Quality Control and Inspection) Act, 1963 that the inorganic chemical was export-worthy. One of the chemicals mentioned in the schedule is Aluminium Sulphate (non-ferric) in respect of which the petitioner had given a export-worthy certificate. The rules appended to the said Notification entitled Export of Inorganic Chemicals (Inspection Rules), 1967 lay down inter alia the basis and procedure for inspection of the inorganic chemicals. For the purpose of the instant case the following rules are important and they are as follows : (3) “Inspection of an inorganic chemical shall be carried out with a view to seeing that the inorganic chemical conforms to the specification stipulated in the export contract as declared by the exporter”. 4(4) “If after such inspection, the Agency is satisfied that consignment of the inorganic chemical to be exported, conforms to the specification stipulated in the export contract; it shall, within seven days of the receipt of intimation and declaration under sub-rule (2), issue a certificate to the exporter declaring the consignment export-worthy”. 29. Therefore, before the petitioner could grant an export-worthy certificate in respect of the inorganic chemical sent for analysis he had to be satisfied that the aforesaid rules had been complied with. Therefore the two questions which arise for consideration are what are the specifications stipulated in the export contract by the foreign buyer in Iraq and on what basis the petitioner had to arrive at his satisfaction that the consignment given for inspection conformed to the specifications stipulated in the contract ? 30. The specifications which were required by the foreign buyer have also been set out in the earlier part of this judgment. 30. The specifications which were required by the foreign buyer have also been set out in the earlier part of this judgment. The important point to be noted in the specifications is that the inorganic chemical required was Aluminium Sulphate free from iron granules and suitable for water works. Therefore, in giving the export-worthy certificate the petitioner had to keep in mind this requirement of the foreign buyer. 31. The next question that necessarily follows is whether before granting the certificate the petitioner was required to mechanically compare the report submitted by the analyst of the Export Agency with the specifications laid down by the foreign buyer in the export contract and refuse a certificate if the two did not tally; or could he exercise his own discretion and satisfy himself whether or not the chemical sought to be exported was suitable for the purpose for which it was required, viz. purification of water for water works, and grant the certificate if in his opinion it was so ? 32. Therefore the meaning of word 'satisfied' appearing in sub-rule (4) of Rule 4 of the aforesaid Inspection Rules becomes very germane. 33. In Prem's Judicial Dictionary Vol. IV, 1964 Edition, the word 'satisfied' has been defined, inter also, as follows : “To be satisfied with a state of things, means to be honestly satisfied in your own mind;......... The word 'satisfied' connotes a mental or subjective state personal to the authority whose satisfaction is required and, therefore, emphasises the width of his power.... The word 'satisfied' is a well known term in law and is used to connote the vesting of discretionary powers in the authorities to which it refers” 34. The petitioner was the Deputy Director, of the Export Inspection Council under the Ministry of Commerce of the Government of India and posted at Calcutta at the material time. The petitioner was thus holding an important and responsible post. Being a Deputy Director the petitioner surely had the power to exercise his discretion as to whether or not a particular chemical analysed by a Chemist of the Council was what was required by a foreign buyer and merited the issue of an export-worthy certificate. The petitioner was thus holding an important and responsible post. Being a Deputy Director the petitioner surely had the power to exercise his discretion as to whether or not a particular chemical analysed by a Chemist of the Council was what was required by a foreign buyer and merited the issue of an export-worthy certificate. If the chemical contents of the compound sought to be exported had to be identical with the specifications laid down by the foreign buyer, an ordinary chemist who analysed the sample could have granted the certificate and there was no necessity of a Deputy Director’s approval. Therefore, sub-rule (4) of rule 4 of the aforesaid Inspection Rules certainly left some discretion with the petitioner at arriving at his satisfaction in the matter of issuance of an export-worthy certificate. 35. The Mosul State Company required aluminium sulphate free from iron granules to be used for the treatment of water. Some other specifications were also mentioned in the export contract. A reference to any standard text book on Chemistry will show that aluminium sulphate is made by dissolving bauxite (hydrated alumina) in sulphuric acid. The chemical reaction of the acid on bauxite is as follows : A1203+3H2S04=A12 (S04)3+3H20. 36. Therefore, there cannot be any Sulphur Trioxide (S03), which is a gas, in aluminium sulphate and which the foreign buyer must have erroneously stipulated. On this aspect there is the evidence of P.W.1 Sri K.C. Seal, who was examined as an expert before the Enquiry Officer, that S.03 is not required to be mentioned in the case of aluminium sulphate. In the ISI specification of aluminium sulphate (non-ferric) there is also no mention of S03. 37. In the Laboratory test report No. 120 the insoluble matter was found to be 2.692% in place of the stipulated less than 0.2% Mr. K.C. Seal's evidence in this regard is “If the aluminium sulphate was required to be used for water works and if after purification with the aluminium sulphate, process of filtration was involved then the insoluble matter may not cause any harm”. This factor might have also weighed with the petitioner in issuing the certificate. 38. The foreign buyer stipulated that basicity in tile aluminium sulphate should be between 0.2 to 0.4% whereas in the relevant test report Ph value of 40 was given. This factor might have also weighed with the petitioner in issuing the certificate. 38. The foreign buyer stipulated that basicity in tile aluminium sulphate should be between 0.2 to 0.4% whereas in the relevant test report Ph value of 40 was given. It was argued on behalf of the petitioner that a chemical solution of Aluminium sulphate can never be basic, but only acidic, because of the fact that aluminium sulphate is the salt of a weak alkali (bauxite) and a strong acid (sulphuric acid). That there is substance in this submission will be borne out by a reference to any standard Text bank of Chemistry and also because of the ISI specification IS-260 on Aluminium sulphate which specifics only Ph value and not basicity 39. In the Export contract the presence of arsenic (As) was stipulated as less than 0.001%, whereas in the test report No. 120 the presence of As was not mentioned. The petitioner has sought to explain this in paragraph 36 of his affidavit-in-reply by stating that the Laboratory of the Agency did not have the facility for testing for arsenic. 40. In chapter 13 of Emil Raymond Riegel's book on "Industrial Chemistry" (1942 Edition) under the heading "General Remarks on Water Purification" the following passages appear : "For municipal purposes, the factor of safety to health is the controlling one, so that the purification is really a sterilization-a destruction of bacterial life-with improvements in taste and color incidental. When a coagulant is needed, for the removal of turbidity and suspended matter, aluminium sulphate is almost the universal choice; it is called "filter alum". The amount of filter alum required depends upon the turbidity, and to a considerable degree upon the temperature of the water, the colder water requiring more. The presence of 0.1 to 0.2 ppm. of iron is enough to be troublesome, especially in the staining of fabrics and plumbing fixtures. It also stimulates the growth of Crenothrix, a thread-like organism which decomposes iron and manganese compounds with the formation of their hydroxides, and gives the water a bad taste and odor. When iron is present, it is generally in the form of ferrous carbonate or bicarbonate. On exposure to the air these compounds oxidize, and insoluble ferric hydroxide is formed. As small a quantity of iron as 2 ppm. forms a bulky and unsightly precipitate, sufficient to plug pipes." 41. When iron is present, it is generally in the form of ferrous carbonate or bicarbonate. On exposure to the air these compounds oxidize, and insoluble ferric hydroxide is formed. As small a quantity of iron as 2 ppm. forms a bulky and unsightly precipitate, sufficient to plug pipes." 41. From the aforesaid observation it is Clear that the presence of even 0.1 to 0.2 ppm. of iron is enough to make aluminium sulphate unsuitable for water purification and a higher percentage of aluminium sulphate will certainly be more beneficial. 42. According to the Laboratory Report No. 120, on the basis of which the petitioner issued the export worthy certificate, the percentage of A1203 which was 18.35% was higher than the importer's specification, viz. 17.1. to 17.3% and what is most important is that the iron content was 0.001% as against the stipulated 0.005%/ Therefore, although the other specifications did not tally, the petitioner had justifiable reasons to exercise his discretion and issue the certificate. For doing so he cannot under any circumstances be deemed to have committed gross misconduct or violated Rule 3(1)(ii) of the Central Civil Services (Conduct) Rules, 1964 which stipulates that "Every Government servant shall at all times maintain devotion to duty". 43. Some improper or dishonest motives has been sought to be attributed to the petitioner by the respondents because of the fact that he rejected the first Report No. 112 and accepted the second. Apart from the fact that there is no material on record to show that the petitioner was aware of the fact that he held rejected the first report when accepting the second a scrutiny of the first report will indicate that the percentage of aluminium sulphate which is the principal ingredient in water purification, was lower, viz. 16.00% than the stipulated 17.1 to 17.3%. This factor might justifiably have weighed with the petitioner in rejecting the first sample on basis of which report No. 112 was submitted. 44. The case of Union of India vs. J. Ahmed (supra) was referred to by both the parties. The Respondent in this case was a member of the Indian Administrative Service and prior to his retirement he was placed under suspension and disciplinary proceedings were instituted under the relevant rules. 44. The case of Union of India vs. J. Ahmed (supra) was referred to by both the parties. The Respondent in this case was a member of the Indian Administrative Service and prior to his retirement he was placed under suspension and disciplinary proceedings were instituted under the relevant rules. As before the conclusion of the disciplinary proceedings the Respondent was likely to reach the age of superannuation the Governor of Assam by an order passed under Rule 16(2) of the Government of India Service (Death cum Retirement Benefit) Rules, 1958 retained him in service beyond the date of his retirement till the completion of the enquiry. As Rule 16(2) would not be attracted unless the respondent was under suspension on a charge of misconduct, the question arose for consideration as to what would constitute misconduct for a member of a service liable to be removed from service on proof of such misconduct. The Supreme Court in answering this question observed : “'It is however, difficult to believe that lack of efficiency or attainment of highest standards in discharge of duty attached to public office would ipso facto constitute misconduct. There may be negligence in performance of duty and a lapse in performance of duty or error of judgement in evaluating the developing situation may be negligence in discharge of duty but would not constitute misconduct unless the consequences directly attributable to negligence would be such as to be irreparable or the resultant damage would be so heavy that the degree of culpability would be very high. An error can be indicative of negligence and the degree of culpability may indicate the grossness of the negligence. Carelessness can often be productive of more harm than deliberate wickedness or malevolence…. But in any case, failure to attain the highest standard of efficiency in performance of duty permitting an inference of negligence would not constitute misconduct nor for the purpose of Rule 3 of the Conduct Rules as would indicate lack of devotion to duty” 45. In the said decision the Supreme Court also mentioned that the High Court had noted the definition of misconduct in Stroud's Judicial Dictionary which runs as under : “Misconduct means, misconduct arising from ill motive; acts of negligence, errors of judgment or innocent mistake, do not constitute such misconduct” 46. In the said decision the Supreme Court also mentioned that the High Court had noted the definition of misconduct in Stroud's Judicial Dictionary which runs as under : “Misconduct means, misconduct arising from ill motive; acts of negligence, errors of judgment or innocent mistake, do not constitute such misconduct” 46. Even if it be assumed that the petitioner did not have the discretion or the authority to issue an export worthy certificate on the basis of the Laboratory Report No. 120, his action cannot by any means be deemed as gross misconduct, neither can it be said that he failed to maintain absolute devotion to duty. At the most he might have committed some act of indiscretion or negligence for which the punishment of removal from service is unduly harsh and wholly disproportionate to the gravity of the purported offence and as such amounts to victimisation. In this connection a decision of this Court in the case of National Tobacco Co. of India Ltd. & ors. v. 4th Industrial Tribunal & ors. reported in AIR 1960 SC 249 may be referred to. In this case D.N. Sinha, J. (as he then was) observed: “As far as I can see victimisation means one of two things, first is...............the second case is where an employee has committed an offence but he is given a punishment quite out of proportion to the gravity of the offence, simply because he has incurred the displeasure of the employer in a similar manner as mentioned above. But where it is found that the employee is guilty of gross misconduct then there cannot be any question of victimisation because it merits dismissal by itself.” 47. It must be borne in mind that in the first hearing Mr. D.N Das, the Senior Counsel appearing on behalf of the Respondents, conceded that the punishment imposed upon the petitioner was wholly disproportionate to what he had done. Mr. Das must have made the concession on instructions. The very fact that an appeal was preferred goes to show that there may be some substance in the submissions made by Mr. Ghose regarding the conduct of the Respondents. It must also be borne in mind that a chemical wholly different from the chemical on the basis of which laboratory report no. The very fact that an appeal was preferred goes to show that there may be some substance in the submissions made by Mr. Ghose regarding the conduct of the Respondents. It must also be borne in mind that a chemical wholly different from the chemical on the basis of which laboratory report no. 120 was exported to Iraq and that chemical had a very high iron content which made it wholly unsuitable for the purification of water and resulted in the consignment being rejected. Therefore, if the aluminium sulphate on the basis of which laboratory report no. 120 was submitted was actually despatched, the same might not have been rejected as it had a very low iron content and was certainly suitable for the purification of water. If anybody has to be b1amed it is tile person responsible for the despatch of a completely different consignment which was not subject to any prior laboratory test and the sample of which was never analysed in tile laboratory of the petitioner. As such, the contention of Mr. Ghosh that the petitioner had to be made a scape-goat to protect somebody is also not without substance. 48. In the result this application succeeds. The Rule is made absolute and the order dated July 22, 1980 passed by Sri D.C. Majumder removing the petitioner from service as well as the order of V. Vaidyanathan, Joint Director (Vigilance) of the Export Inspection Council of India dated November 21, 1981 are quashed and shall not be given effect to. There will be no order as to costs. Mr. Guha appearing of behalf of the Respondents orally prays for a stay of operation of my order. The stay is refused. Rule made absolute.