S. D. SHAH, J. ( 1 ) BY this petition under Article 227 of the Constitution of India the petitioner has challenged the judgment and order of the Gujarat Civil Services Tribunal in appeal No. 171 of 87 dated 20th May 1988, confirming the order of compulsory retirement of the petitioner from service dated 22nd of February 1985, passed by the Director, National Cadet Corps (N. C. C.), Gujarat State. ( 2 ) IN order to appreciate the challenge to the aforesaid order in its proper perspective, it would be necessary to set out few relevant facts hereunder : ( 3 ) THE petitioner was recruited as junior Clerk in National Cadet Corps (N. C. C.) on 7th July 1956 and came to be promoted to the post of Senior Clerk on 10th April 1958 and then further promoted to the post of Head Clerk on 11th December 1964. At the relevant time the petitioner was serving as Head Clerk and she came to be transferred to visnagar by order dated 2nd March 1981. The petitioner proceeded on sick leave without joining her duties at Visnagar. Her sick leave was sanctioned from 14th march 1981 to 30th September 1981. It appears that even thereafter the petitioner could not resume her duties as her husband was then serving in Baroda municipal Corporation and it was not possible for her to stay alone at Visnagar, leaving her husband and children in helpness position at Baroda. It appears that the petitioner has also addressed various representations to the authorities, requesting the authorities to consider her case sympathetically and to bring her back to Baroda or place nearer to Baroda. , ( 4 ) IT appears that by order 17th december 1982, she was transferred from visnagar to Godhra though it is the case of the petitioner that such order of transfer was never served upon her. ( 5 ) BECAUSE of continued absenteeism from her duties, charge-sheet dated 11th october 1983 was served on the petitioner. By the said charge-sheet, it was alleged against the petitioner that she has wilfully or unauthorisedly remained absent from duty without any justifiable cause. ( 5 ) BECAUSE of continued absenteeism from her duties, charge-sheet dated 11th october 1983 was served on the petitioner. By the said charge-sheet, it was alleged against the petitioner that she has wilfully or unauthorisedly remained absent from duty without any justifiable cause. The petitioner filed reply to the said charge-sheet on 5th July 1984 and thereafter, since the explanation of the petitioner was not acceptable to the disciplinary Authority, the regular departmental enquiry was held into the charges levelled against the petitioner by the aforesaid charge-sheet. The enquiry was conducted on 22nd of August 1984 and Enquiry Officer submitted his report on 23rd August 1984 and, thereafter, notice to show cause was served upon the petitioner dated 16th October 1984, calling upon the petitioner to show cause as to why proposed penalty of compulsory retirement should not be inflicted on her. The petitioner filed reply to such show cause notice and ultimately the impugned order dated 22nd February 1985, was passed, whereby the Disciplinary authority ordered the penally of compulsory retirement from service with effect from the date of the service of said order on the petitioner. ( 6 ) BEING aggrieved by the order of compulsory retirement dated 22nd february 1985, the petitioner preferred appeal to the Gujarat Civil Services tribunal, which came to be decided by the Tribunal by the impugned judgment and order dated 20th May 1988. The appeal of the petitioner was dismissed by the Tribunal and the penalty of compulsory retirement imposed on the petitioner was upheld. It is against the aforesaid orders that the present petition is directed. ( 7 ) MR. A. K. Clerk, learned Counsel appearing for the petitioner has mainly submitted that the order passed by the disciplinary Authority and as confirmed by the Tribunal is vitiated in law inasmuch as it is arbitrary, excessive, unreasonable, irrational and disproportionate and that the same is, therefore, violative of Article 14 of the Constitution of India. He submitted that the Disciplinary Authority as well as the Tribunal ought to have taken a more informed approach to the problem and ought not to have passed an order of economic death penalty especially when absenteeism from duty for some period was justifiable and when a female employee found it impossible to join her duties since she was driven apart from her matrimonial home. Mr. Mr. D. N. Patel, learned Assistant government Pleader, on the other hand strenuously urged before this Court that absenteeism of the petitioner was for a long period that as a last resort action was required to be taken and unless such deterrent action is taken, no discipline would be maintained in the administration. He submitted that the disciplinary Authority was quite reasonable is not imposing the penalty of dismissal or removal from service. It had taken a lenient view by imposing the penalty of compulsory retirement. He further submitted that when the disciplinary Authority has after considering all relevant factors imposed the punishment of compulsory retirement and the same is confirmed by the tribunal, this Court should not interfere with such an order, which in his submission just and proper in the facts and circumstances of the present case. ( 8 ) IN the case of Ex Naik Sardar Singh v. Union of India and Others reported in 1991 Volume (3) Supreme Court Cases, p. 213, the Supreme Court of India has with approval quoted the following pertinent observations of Lord Diplock in Council of Civil Service Unions v. Minister for the Civil Service : 1984 (3) all E. R. 935. "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". This 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" which is recognised in the administrative law of several of our fellow members of the European economic Community. . . . "in the case of Ranjit Thakur v. Union of India reported in 1987 (4) SCC 611 the Supreme Court of India considered the question of doctrine of proportionality in the matter of awarding punishment and it observed as under :"the question of the choice and quantum of punishment is within the jurisdiction and discretion of the Court martial. But the sentence has to suit the offence and the offender. But the sentence has to suit the offence and the offender. It should not be so disproportionate to the offence as to shock the conscience and amount 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 Court martial, if the decision of the Court even logic, then the sentence would not be immune from correction. Irrationality and perversity are recognised grounds of judicial review. " ( 9 ) THE aforesaid observations make it abundantly clear that the approach of the disciplinary Authority while imposing punishment should be rational and reasonable. Every misconduct does not call for a severe penalty of dismissal or removal. The nature of misconduct is to be kept in mind while imposing the penalty. The right to impose the penalty carries with it the duty to act justly. The penalty imposed must be commensurate with the gravity of the misconduct and any penalty dispropertionate to the gravity of the misconduct would be violative of article 14 of the Constitution of India. Oscar Wildes dictum, "moderation is a fatal thing. Nothing succeeds like excess" cannot be accepted in the present day context in the country wedded to the principle of equality before the law in the matter of employment. There must be graded punishment for graded misconduct because that penalty is just which fits the misconduct and does not suffer from undue mitigation or immoderate exaggeration. True it is that discipline in any administration is to be maintained and wilful and unauthorised absenteeism from duty cannot be permitted for a long period when no justifiable reasons are forthcoming for such wilful absenteeism from service. The duration of absenteeism from service is undoubtedly a relevant factor. At the same time, the authority is required to weigh in the scale the factors which prevented the employee from attending to duties, and if factors are referable to genuine personal difficulties of the employee and/or his/her family members, the Disciplinary Authority cannot afford to neglect such factors by imposing the arbitrary punishment of dismissing and/or removing the employee from service. If the purpose of punishment is to teach a lesson to the employee and to prevent the employee from repeating such conduct in future, in my opinion, a chance shall have to be given to the employee to continue in service. In such cases, dismissal/removal or compulsory retirement from service may act too harsh, excessive, unreasonable, irrational and disproportionate to the charge for which the penalty is imposed. The cases where the employee has wilfully remained absent without any intimation and has settled in foreign country, or cases where the employee has wilfully remained absent and has been serving elsewhere or has been carrying on business stand all together on a different footing and the disciplinary Authority may be justified in such cases to impose the penalty of dismissal or removal. However, in cases where due to sickness, due to hardship to the family and due to peculiar circumstances in the family, not permitting the employee to present himself/herself for duty, penalty of dismissal/removal or compulsory retirement would Act too harsh. In my opinion, such an employee shall have to be provided an opportunity to improve himself/herself and to see that such a misconduct is not repeated. Such an approach would necessarily bring about a change in the employee, would provide an opportunity to him/her and would provide an opportunity to the employer to watch the conduct of the employee in future. If such conduct is blissfully without any remorse repeated and employee does not show any improvement or remains incorrigible harsh penalty would be justifiable. In the facts and circumstances of this case, applying the aforesaid principle, it shall have to be seen as to whether the Disciplinary authority has kept the aforesaid factors in mind and has been alive to its function as a Disciplinary Authority. From the order of penalty dated 22nd February 1985, the charge-sheet was given to the employee, the Disciplinary Authority has found the penalty of compulsory retirement to be adequate. It has not considered the possibility of imposing other punishment and it has also considered as to how the imposition of such penalty would be reasonable and rational in the context of the charge levelled against the employee. It has not considered the possibility of imposing other punishment and it has also considered as to how the imposition of such penalty would be reasonable and rational in the context of the charge levelled against the employee. Applying the aforesaid principle, I am of the opinion that in the facts and circumstances of this case, more particularly when the petitioner has a clean service record of more than twenty-five years, penalty of compulsory retirement from service was rather too harsh, excessive, irrational and disproportionate to the conduct for which the same was to be imposed. Unfortunately, the Tribunal has not been alive to this problem at all and has proceeded to consider the details of the charge and has confirmed the order passed by the Disciplinary Authority without, in fact, considering as to whether such penalty can be said to be rational, reasonable and just and proper in the facts and circumstances of this case. The order of the Tribunal is, therefore, required to be quashed and set aside for the reasons for which the order of disciplinary Authority is also required to be quashed and set aside. The order of the Disciplinary Authority imposing punishment of compulsory retirement is arbitrary, irrational, and unreasonable and disproportionate to the misconduct and, therefore, the same is required to be quashed and set aside. ( 10 ) THE question is now as to what penalty is to be imposed. Ordinarily, the court would not substitute its decision in a matter of imposition of penalty and it would accept the penalty imposed by the Disciplinary Authority. However, when penalty imposed by the Disciplinary authority is found to be disproportionate, irrational, unreasonable and excessively harsh, there are two options left to the court. One is that of referring the matter to the Disciplinary Authority to impose reasonable punishment or to impose punishment itself, which appears to be just and proper in the facts and i circumstances of the case. Since the i petitioner in this case has remained out of employment from 22nd February 1985, till today, in my opinion, it would not be just and proper to relegate her to the disciplinary -Authority once again. I would, therefore, in the facts and circumstances of this case, substitute the penalty of compulsory retirement from service to that of withholding of one increment without future effect from the date the order was passed. I would, therefore, in the facts and circumstances of this case, substitute the penalty of compulsory retirement from service to that of withholding of one increment without future effect from the date the order was passed. I am imposing this penalty because the petitioner has even otherwise suffered by remaining out of employment for such a long period and because I have not granted relief of back wages to the petitioner for this period, substantially therefore the petitioner would not gain any financial benefit for the period she has remained out of employment and that would have both preventive and reformtive effect. The penalty of compulsory retirement dated 22nd February 1985 as well as the order of the Tribunal dated 20th May 1988, are hereby quashed and set aside and the petitioner is ordered to be reinstated to her post of Head Clerk and respondents are directed to post her immediately to the post of Head Clerk and Mr. D. N. Patel, learned Assistant government Pleader has clarified to the court that at present there is vacancy at Surat only. The respondents are, therefore, directed to reinstate the petitioner as Head Clerk at Surat with further direction that in case occurrence of any vacancy at Baroda or in the vicinity, case of the petitioner for bringing her to such place as Head Clerk will be sympathetically considered. Since I am ordering the reinstatement of the petitioner with minor penalty of withholding of one increment without future effect, and since I am not granting of relief of backwages to the petitioner on the principle of no work no wages. In the facts and circumstances of this case, in my opinion, it would be just and proper to direct the respondent to reinstate the petitioner in service with continuity of service within one week from today by posting her as Head Clerk at Surat and to carry out the directions given hereinabove. ( 11 ) IN the result the petition succeeds. The rule is made to the aforesaid extent. There shall be no order as to costs. Direct service is permitted. Rule made absolute to the extent indicated. .