JUDGMENT - ASHOK AGARWAL, J.:--- If one has regard to the finding arrived at in the Department inquiry and in the Appeal, in my view, it will have to be held that the extreme penalty of dismissal from service is unconscionable and the same serves to be struck down. 2. The petitioner at the material time was employed in the capacity of Assistant Manager (Depot) with the Food Corporation of India, the respondent No. 1. He was in charge of several Depots including the Rampur Depot at Jabalpur. In October 1982 an employee of the respondent No. 1 Shri R.K. Oswal applied to the Assistant Manager (D) of the respondent No. 1 Jabalpur for issue of four serviceable tarpaulins for his personal use, on the undertaking that the same would be returned before the 28th of October, 1982. On that application, the petitioner passed an endorsement directing the issued of the said tarnaulins after observing of usual formalities. On the aforesaid endorsement being made, one Shri Paranjape who was in-charge of the depot issued two new and two serviceable tarpaulins to Shri R.K. Oswal. The said tarpaulins were not returned within the stipulated time and hence the petitioner, on the 7th September, 1983 and 27th September, 1983 issued memos to Shri Oswal calling upon him to return the same to the office immediately. Copies of the said Memo were endorsed to Shri Paranjape as also to the District Manager, F.C.I, Jabalpur. On or about 1st October, 1983, the aforesaid Shri Oswal returned the tarpaulins and by the letter dated the 9th October, 1983, the in-charge of the godown informed the petitioner of the same. 3. On the 27th February, 1984 the petitioner was served with a charge-sheet containing allegations in respect of the departmental inquiry which was initiated against the petitioner. On the 15th November, 1984 the Joint Manager (Inquiry) who held the aforesaid inquiry was pleased to hold charge No. 1 proved and charge Nos. 2 and 3 partially proved. Charge No. 1 which was held provided that the petitioner while functioning as Assistant Manager had issued four tarpaulins belonging to F.C.I. to Shri R.K. Oswal. The tarpaulins were issued for private use without any permission from competent authority, despite the petitioner being fully aware of the fact that the F.C.I. property is not to be given for any private and personal use. The tarpaulins were issued for private use without any permission from competent authority, despite the petitioner being fully aware of the fact that the F.C.I. property is not to be given for any private and personal use. On the 1st of October, 1983, after a lapse of nearly one year, four tarpaulins in completely bad condition had been returned by Shri Oswal. Out of these four tarpaulins, two tarpaulins were found completely unserviceable and the other two at the low level of unserviceability. Charge No. 2 which was found partially proved provided that the petitioner did not take care to recover this property in time and did not properly verify the size, condition and quality of four tarpaulins returned by Shri Oswal. Charge No. 3 which was also held partially proved, provided that the petitioner had been negligent in his duties and did not exercise proper care to safeguard F.C.I. property due to which the organisation had been put to financial loss amounting Rs. 6000/-. The aforesaid acts had contravened the Regulations 31 and 32 of the F.C.I. Staff Regulations, 1971. 4. After the aforesaid finding were arrived at by the Inquiry Officer, the Zonal Manager by his order dated the 7th January, 1986 was pleased to agree with the findings of the Inquiry Officer and pass the impugned penalty of removal from service. According to the Zonal Manager, the petitioner as a responsible officer should not have indulged in such acts and functions detrimental to the interest of the corporation. Taking into account all theses facts and circumstances of the case, he held that there existed good and sufficient reason to impose the penalty of removal from service. Being aggrieved, the petitioner preferred an appeal and the Managing Director by his order dated the 26th March, 1987 was pleased to hold that the petitioner had issued the tarpaulins to a private party and the same were returned in a deteriorated condition. The petitioner had acted irregularly and the loss was caused to the Corporation because of his actions. The managing Director proceeded to hold that the penalty imposed on the petitioner is commensurate with the irregularity committed by him. Consequently, the appeal of the petitioner was dismissed. Being aggrieved, the petitioner has preferred the present petition. 5. The petitioner had acted irregularly and the loss was caused to the Corporation because of his actions. The managing Director proceeded to hold that the penalty imposed on the petitioner is commensurate with the irregularity committed by him. Consequently, the appeal of the petitioner was dismissed. Being aggrieved, the petitioner has preferred the present petition. 5. Miss Nichani, the Advocate appearing on behalf of the petitioner submitted that the departmental inquiry conducted by the Inquiry Officer should be held to have been vitiated on the ground that the same had contravened the principles of natural justice. According to her, the Inquiry Officer had taken into account, material which had been collected behind the back of the petitioner of which the petitioner had no notice. She placed reliance on Para 18 of the report of the Inquiry Officer which recites than during the inquiry, the petitioner had mentioned that it was informed by Shri Oswal that Shri Oswal had obtained the permission of the then District Manager for the issue of four tarpaulins. On the basis of the assertion Shri Tawde and Shri Oswal, the District Manager and Shri Rajalal who was at that time working as District Manager, F.C.I., Jabalpur was asked to clarify the position whether they have given any permission to Shri Oswal for collecting the tarpaulins for personal use In reply to queries, Shri Rajalal Intimated by his latter No. DM(QC)/PA/VIG/84 dated 8th October, 1984 that no such permission was granted by him to shri Oswal for taking tarpaulins from F.C.I. Depot for his personal use. In view of the above, the Inquiry Officer proceeded to ascertain as to how far the statement of the petitioner and Shri Oswal was correct. 6. Miss Nichani pointed out that the aforesaid inquiry was conducted the departmental proceedings but no notice of the same was given to the petitioner. That no notice of the aforesaid material was furnished to the petitioner is accepted on behalf of the respondents Nos. 1, 3 and 4 in the affidavit of Shri Rajendra Lal filed in reply to the petition. All that is stated is that the Inquiry Officer wanted to ascertain whether in fact the District Manager had given any such permission to Shri Oswal, who had written that he has not given any such permission. 1, 3 and 4 in the affidavit of Shri Rajendra Lal filed in reply to the petition. All that is stated is that the Inquiry Officer wanted to ascertain whether in fact the District Manager had given any such permission to Shri Oswal, who had written that he has not given any such permission. Next to the said letter from the District Manager, the petitioner had not be able to produce any material to show that there was a prior permission obtained by the petitioner from the District Manager for permission to issue the said four tarpaulist in question. 7. In my judgment, the aforesaid material which has been relied upon by the Inquiry Officer ought to have been put to the petitioner before passing any findings on that material. It is apparent that the said material has been taken into account for discarding the defence of the petitioner that Shri Oswal had informed him that he had obtained prior permission from the District Manager. Had the petitioner been given notice of this material, it might have been to the petitioner to call upon the District Manager for cross-examination. To this extent, it must be held that the aforesaid inquiry suffers from the lack of the principles of natural justice. Despite that being so, it may not be permissible to hold that the entire inquiry as also the findings arrived at in the departmental inquiry stands vitiated. Having regard to all the material on record, the finding that the petitioner had given the four tarpaulins to Shri Oswal causing certain monetary loss to the respondent No. 1 is inescapable. However, if regard is had to the finding arrived at by the Inquiry Officer, in my view, the extreme penalty of removal of the petitioner from service is unconscionable and unduly harsh. It is true that judicial review generally speaking is not directed against a decision but is directed against a decision making process. The choice and quantum of punishment is always within the jurisdiction and discretion of the departmental heads but the penalty has to suit the misconduct of the delinquent. The penalty should not be vindictive or unduly harsh. It should not be so disproportionate to the misconduct so as to shock the conscience and amount in itself to conclusive evidence of bias. The penalty should not be vindictive or unduly harsh. It should not be so disproportionate to the misconduct so as to shock the conscience and amount in itself to conclusive evidence of bias. 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 Department, if the decision of the Department even as to punishment is an outrageous defiance of logic, then the penalty would not be immune from correction. Irrationality and perversity are recognised grounds of judicial review. Penalty imposed must be commensurate to the gravity of misconduct and any penalty disproportionate to the gravity of misconduct would be violative of Article-14 of the Constitution. 8. I am supported in the observations by the case of (Ranjit Thakur v. Union of India)1, decided by the Supreme Court and reported in A.I.R. 1987 S.C. Page 2386 and by the case of (Bhagat Ram v. State of Himachal Pradesh)2, reported in A.I.R. 1983 S.C. Page 454. If one has regard to the findings arrived at, at the inquiry, it would be noticed that tarpaulins were at times issued for use of other than the use of the F.C.I. and in one case the tarpaulins were issued on the orders of the Divisional Manager, F.C.I. Jabalpur but these were issued to State Government or their Agency. It is further to be noted that the petitioner had directed the issue of four serviceable tarpaulins whereas Shri Pranjape, in charge of the Depot had issued two new tarpaulins and two serviceable tarpaulins which was in excess of the directions of the petitioner. Though a loss of Rs. 6000/- was alleged to have been caused, it was found that the tarpaulins had been received back from Shri Oswal and they had been found to be serviceable and were put under use. Hence, the loss could not be worked out on the basis of the cost price of the new tarpaulins. The petitioner, therefore, could not be only held responsible for the loss and the officials like P.W. 1 Shri Paranjape and Shri Oswal were also to be blamed. On these findings, only Charge No. 1 was held to be fully proved whereas Charge Nos. 2 and 3 only partially proved. The petitioner, therefore, could not be only held responsible for the loss and the officials like P.W. 1 Shri Paranjape and Shri Oswal were also to be blamed. On these findings, only Charge No. 1 was held to be fully proved whereas Charge Nos. 2 and 3 only partially proved. In Appeal, the Managing Director after finding that the petitioner had issued the tarpaulins to a private party which tarpaulins were returned in a deteriorated condition held that the petitioner had acted irregularly causing loss to the Corporation. In my judgment, on the aforesaid findings it will have to be held that the extreme penalty of removal from service is unconscionable and unduly harsh and the same will have to be quashed. 9. Mr. Desai, the learned Counsel appearing on behalf of the respondents Nos. 1, 3 and 4 strenuously urged that the measure of punishment imposed in departmental proceedings is not justiciable and it would not be open to me to sit in judgment over the measure of punishment as I was not sitting as a Court of appeal. He placed reliance on the case of the (State of Orissa v. Bidhaybhushan Mohapatra)3, reported in A.I.R. 1963 S.C. Page 779, wherein it was observed as under: "The reasonable opportunity contemplated by Art. 311(2) has manifestly to be in accordance with the rules framed under Art. 309 of the Constitution. But the Court, in a case in which an order of dismissal of a public servant is impugned, is not concerned to decide whether the sentence imposed, provided it is justified by the rules, is appropriate having regard to the gravity of the misdemeanour established. The reasons which induce the punishing authority, if there has been an enquiry consistent with the prescribed rules, are not justiciable; nor is the penalty open to review by the Court. If the order of dismissal may be supported on any finding as to substantial misdemeanour for which the punishment can lawfully be imposed, it is not for the Court to consider whether that ground alone would have weighed with the authority in dismissing the public servant. If the order of dismissal may be supported on any finding as to substantial misdemeanour for which the punishment can lawfully be imposed, it is not for the Court to consider whether that ground alone would have weighed with the authority in dismissing the public servant. The Court has no jurisdiction if the findings of the enquiry Officer or the Tribunal prime facie make out a case of misdemeanour, to direct the authority to reconsider that order because in respect of some of the findings but not all, it appears that there had been violation of the rules of natural justice." 10. In my view, the aforesaid decision relied upon by Shri Desai will have no application to the facts of the present case. I have found herein above that the department inquiry conducted against the petitioner had contravened the principles of natural justice inasmuch as it had taken into account the material of which no notice was given to the petitioner. I have also indicated hereinabove that the two new and two old tarpaulins were issued when the petitioner had directed the issues of two tarpaulins. The tarpaulins had been returned and the financial loss suffered by the respondent No. 1 had not been determined. It has also been found that tarpaulins have in the past been issued for non- F.C.I. purposes though they may have been issued to State Government or their agency. On these facts when I hold that the measure of extreme penalty is unconscionable and unduly harsh. I am not sitting in judgment over the measure of punishment but am seeking to review the judicial making process adopted for inflicting the punishment. I find that the punishment is both unduly harsh and vindictive and so disproportionate to the offence as to shock the conscience. I find the punishment imposed is conclusive evidence of bias. 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 Department, if the decision of the Department even as to punishment would is an outrageous defiance of logic, then the punishment would not be immune from correction. 11. Regulation 54 of the Food Corporation of India (Staff Regulations) 1971 provides for penalties which are minor penalties and major penalties. 11. Regulation 54 of the Food Corporation of India (Staff Regulations) 1971 provides for penalties which are minor penalties and major penalties. In my view, the findings arrived at against the petitioner can attract only one of the minor penalties and cannot attract any of the major penalties provided under the aforesaid Regulations. 12. In the view of the matter, I set aside the impugned order of removal from service and remit back the matter to the Zonal Manager, the disciplinary authority for reconsideration of the matter of imposing one or the other of the minor penalties provided under Regulation 54. Since I have set aside the order of dismissal from service, the petitioner will be entitled to be reinstated in service with all benefits subject to the penalties that may be imposed upon him by the Disciplinary, Authority. Rule absolute in the above terms. In the facts and circumstances of the case, there shall be no order as to costs. On the prayer of Shri Desai, my order to stand stayed for a period of six weeks from today. Rule made absolute. ------