S. D. SHAH, J. ( 1 ) RULE. Mr. P. G. Desai, learned advocate appearing for the respondents waives service for rule. With the consent of the parties the matter is heard today finally. i ( 2 ) HARIJAN Sweeper suffering from tuberculosis was under medical treatment and was not in a position to report for duty for certain period. The respondent corporation with a view to setting an example of better discipline has punished him disproportionately so as to remove him from services. It is this order of removal from service that has given rise to the present petition. ( 3 ) TO say the least the order of penalty is absolutely arbitrary, irrational, disproportionate and has to be quashed and set aside solely on the ground that the authority imposing penalty has not balanced the two scales, one of the alleged misconduct and the other of imposition of penalty. The petitioner was absent from duty from 5th April 1989 as he was suffering from tuberculosis and was under the treatment of doctors. The disease of tuberculosis has as such rendered him physically not fit to report for duty and in that weak physical condition perhaps he has not complied with the office routine of submitting an application for leave and getting the leave sanctioned. Even if there is lapse in making application and getting application sanctioned, while imposing penalty any ideal employer would have taken notice of the disease employee was suffering from and his weak physical condition. ( 4 ) THIS case reminds this Court of the following observations of Chandrachud C. J. in the case of Shankardas v. Union of India, reported in AIR 1985 SC 772 :"cases which evoke sympathy come frequently before the court. But pity not often. " ( 5 ) THE case before me has a unique story to tell, the story of a misconduct (it is doubtful whether it can be said to be misconduct) alleged to have been committed under the stress of physical disability arising from disease of tuberculosis which is further compounded by imposition of most draconian and monstrous penalty of removal from service. ( 6 ) IT is undoubtedly true that the corporation has power to dismiss a person from service on the ground of proved misconduct but that power like every other power is to be exercised fairly, justly and reasonably. ( 6 ) IT is undoubtedly true that the corporation has power to dismiss a person from service on the ground of proved misconduct but that power like every other power is to be exercised fairly, justly and reasonably. 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 disproportionate to the gravity of the misconduct would be violative of Article 14 of the Constitution of India. ( 7 ) IN Council of Civil Service Unions v. Minister for the Civil Service, Lord diplock said ( (1984)3 All ER p. 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 and 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. It should not be vindictive or unduly harsh. It should not be so disproportionate to the offence as to shock the conscience and amount itself to conclusive evidence of bias. The doctrine or 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 sentence would not be immune from correction. Irrationality and perversity are recognised grounds of judicial service. Irrationality and perversity are recognised grounds of judicial service. " ( 8 ) IN view of the fact that the petitioner has failed to apply for leave and to get the application duly sanctioned before remaining absent from duty, penalty of removal cannot be said to be commensurate to the misconduct nor can it be said to be proportionate to the misconduct. It is undoubtedly harsh, unreasonable, and whimsical and shall have to be quashed and set aside. However, for that misconduct it will be open to the respondent-Corporation to impose any minor penalty so as not to burden that petitioner with any further liability. Though it is not the function of this Court to suggest the penalty to be imposed, but in the opinion of this court a mere warning will do in the facts and circumstances of the case. However, the matter is left to the Corporation and it is hoped that the Corporation would not take unnecessarily harsh and inhumane approach while imposing minor penalty on petitioner for his conduct of remaining absent without leave. ( 9 ) THE petition therefore succeeds. The rule is made absolute. The impugned order of termination of services of the petitioner is hereby quashed and set aside. The respondent-Corporation is directed to reinstate Dahyabhai Somabhai Harijan in service forthwith with full backwages within 4 weeks from today and to treat him continuous in service without any brake. It will be open to the respondent-Corporation to impose any minor penalty on the employee for admitted conduct of not obtaining prior leave before absenting from duty. There shall be no order as costs. Rule made absolute. .