Judgment : Banerjee, J.: This is an appeal against the order dated 19th March, 1992 passed by the Ld. Trial Judge. The Ld. trial Judge set aside the chargesheet, enquiry report and the order of removal from service dt. 29th August, 1989 and directed the appellant to allow the Writ Petitioner Opposite Party to resume duties forthwith, preferably within a period of one week from communication of this order. The writ petitioner opposite party was held to be entitled to all back wages as if the order of removal had not been passed. However, the learned trial Judge gave liberty to proceed in respect of the Writ Petitioner Opposite Party, if any charge could be lawfully framed for the alleged delinquency. 2. The facts of this case are simple. The following charges were framed against the Writ Petitioner Opposite Party under rule 34 of the CISF Rules, 1969 :- "ARTICLE NO. I : An act prejudicial to good order of discipline in that whereas the said L/NK S. K. Roy, on termination of Refresher Course at Ad-hoc Recruits Training Centre, CISF DSP, Durgapur was issued with a Movement Order of 8.3.89 (FN) from the Training Centre, directing him to report at Intelligence Branch, he did not report to Intelligence Branch and thereby disobeyed the lawful orders of his superior officers, in violation of Section 18 of CISF Act, 1968. ARTICLE NO. II : An act prejudicial to good order of discipline in that No. 7531187L/NK S. K. Roy unauthorisedly absented from his duty without leave or permission of the competent authority and deserted from the Unit w.e.f. 8.3.89 (FN) and continues to remain so without sufficient or reasonable cause, in violation of Sec. 18 of CISF Act, 1968. ARTICLE NO. III : That the said L/NK S. K. Roy is habituated to absenting without leave, and unauthorisedly overstaying leave, as if evident, from his previous record of service. Should the charges contained in Article I & II above be proved in course of enquiry his past record of service will be taken into account while disposing of the present case." On the basis of the said charge sheet the writ petitioner opposite party was removed from service. Should the charges contained in Article I & II above be proved in course of enquiry his past record of service will be taken into account while disposing of the present case." On the basis of the said charge sheet the writ petitioner opposite party was removed from service. The Ld trial Judge considering the facts and circumstances of the case and after hearing both side~ was pleased to hold that the order of removal from service could not be sustained in law firstly because the same was passed ex parte and without affording any opportunity to the writ petitioner, and secondly, because of the fact that the punishment of removal from the service inflicted in respect of the petitioner for absenting from duty, is disproportionate to the charges. The appellant being aggrieved by and dissatisfied with the order passed by the Id. trial Judge on 19th March, 1992 filed an application for stay and on the application for stay, an order was passed by this Court on 4.1.93 directing the writ petitioner opposite party to appear before the Enquiring Officer who was directed to proceed with the matter on the basis of the chargesheet so framed without any prejudice. The writ petitioner opposite party was given liberty to file written statement and adduce all evidences in respect of his case before the Enquiring Officer and the said officer should conclude the proceeding and submit a report to that effect before the Disciplinary Authority who was also directed to consider the report and take a fresh decision in the matter but should not give effect to any such decision that might be taken without the leave of this Court. 3. In this application filed by the appellant before us leave was sought for to take action on the basis of the said report. A copy of the enquiry report submitted by the Enquiring Officer pursuant to our order has been disclosed. But no proposed order of punishment has been disclosed in the application filed in this behalf. The Id. counsel appearing on behalf of the appellant submitted that the disciplinary authorities have decided to pass order of removal from the service this time also. We adjourned the matter for the purpose of taking instruction from the appellant whether the appellant was willing to pass any lesser punishment in the matter. But the Id. The Id. counsel appearing on behalf of the appellant submitted that the disciplinary authorities have decided to pass order of removal from the service this time also. We adjourned the matter for the purpose of taking instruction from the appellant whether the appellant was willing to pass any lesser punishment in the matter. But the Id. counsel informed the inability of the disciplinary authorities to do anything into the matter. 4. The Id. trial Judge held that if any of the charges could be lawfully framed for the alleged delinquency in that event liberty was given to proceed against the writ petitioner opposite party. The question is now whether the articles of charges amount to misconduct. Admittedly the defence case of the writ petitioner opposite party was that during the pendency at the training centre he was injured and got injury on his left foot. He was shifted to hospital and was, hospitalised. Plastering was made on his foot and admittedly he was in the hospital. He was discharged on 17.2.89 and after two weeks he came back to training centre and deposited the unfit certificate along with an application to Coy. Comdr. Training Coy. and apprised him about his condition. On 28th February, 1989 his mother came to meet him in the training centre and he prayed for 15 days leave. But that leave prayed for was not granted on the alleged ground that he was on medical rest. He applied for out-Jiving permission but it was refused. Doctors did not give him fit certificate and extended rest from time to time. At that time it was very difficult for him to move around in the barrack and as such he prayed for leave but that was also refused. Due to pain his problem increased and according to him, he developed some mental problem. On 7th or 8th March, 1989 one person came from his native place and informed him that his only son went to school but did not return. He was very upset. He reached home and his family members took him to Berhampore District Hospital for treatment. It is his case that he does not remember what has happened to him. Doctor who treated him issued proper medical certificate and after coming back from Berhampore Hospital he sent a letter under Certificate of Posting to Commdr. on 4.3.89. Again he sent letters from time to time. It is his case that he does not remember what has happened to him. Doctor who treated him issued proper medical certificate and after coming back from Berhampore Hospital he sent a letter under Certificate of Posting to Commdr. on 4.3.89. Again he sent letters from time to time. With the medical certificate he went to Intelligence Branch on 18.8.89 for joining the duty. He was taken to Asstt. Commdr. Sri Y.K. Saxena by the Inspector S. M. Das but he was not permitted to join, After staying some days in pass section he went back home as he was not put on any duty, He further stated that on 1.8.1989 his sister's husband and his younger brother were murdered, faced with this unprecedented situation it was stated that lapses occured on his part. The Enquiring Officer, it appears had accepted the position but had taken very casual approach to this problem., It is, well within the domain of the enquiring officer to accept and reject any evidence and in the instant case the enquiring officer admitted the fact that his son was missing which was very shocking thing but observed that such shocking news and pain in the injured left foot cannot have any repercussion on the brain and/or memory of the man. We are not ,intending to apprise all the evidence but in order to find out whether the defence for the lapses were wilful or otherwise, we had to look into the defene. In service jurisprudence misconduct has its own meaning. Every commission or omission does not amount io misconduct. Supreme Court in the case of (1) Union of India v. V. J. Ahmed, reported in AIR 1979 SC 1022 held that, "code of conduct as set out in the Conduct Rules clearly indicates the conduct expected of a member of the service. It would follow that conduct which is blameworthy for the Government Servant in the context of Conduct 'Rules would be misconduct. If a servant conducts himself in a way inconsistant with due and faithful discharge of his duty in service, it is misconduct see (2) Pearce v. Foster, (1886) 17 QBD 536 at P. 542 A disregard of an essential condition of the contract of service may constitute misconduct see (3) Laws v. London Chronicae Indicator Newspapers, (1959) 1 WLR 698. If a servant conducts himself in a way inconsistant with due and faithful discharge of his duty in service, it is misconduct see (2) Pearce v. Foster, (1886) 17 QBD 536 at P. 542 A disregard of an essential condition of the contract of service may constitute misconduct see (3) Laws v. London Chronicae Indicator Newspapers, (1959) 1 WLR 698. This view was adopted in (4) Shardaprasad Onkarprasad Tiwari v. Divisional Supdt., Central Railway, Nagpur Divn. Nagpur, 61 Bom LR 1596 AIR 1961 Bom. 150 and (5) Satubha K. Vaghela v. Moosa Raza, (1969) 10 Guj LR 23. The High Court has noted the definition of misconduct in Stroud's Judicial Dictionary which, runs as under :- "Misconduct means, misconduct arising from ill motive : acts or negligence, errors of judgment or innocent mistake, do not constitute such misconduct." 5. In industrial jurisprudence amongst others, habitual or gross negligence constitute but in (6) Management Utkal Machinery Ltd. v. Workmen, Miss Shant; Palnail, (1966) 2 SCR 434 : AIR 1966 SC 1051 , in the absence of standing orders governing the employee's undertaking" unsatisfactory work was treated as misconduct in the context of discharge being assailed as punitive. In (7) S. Govinda Menon v. Union of India, (1962) 2 SCR 566: AIR 1967 SC 1274 , the manner in which a member of the service discharged his quasi judicial function disclosing abuse of power was treated as constituting misconduct for initiating disciplinary proceedings." According to this judgment, however; negligence in performance of duty or lapse in performance of duty or error of judgment would not constitute misconduct unless there was some ill-motive behind it. Supreme Court in the case of (8) A. L. Kalra v. P. & E. Corpn. of India Ltd, reported in AIR 1984 SC 1361 held :- "What in a given context would constitute conduct unbecoming of a public servant to be treated as misconduct would expose a grey area not amenable to objective evaluation. Where misconduct when proved entails penal consequences, it is obligatory on the employer to specify and if necessary define it with precision and accuracy so that any ex- post facto interpretation of some incident may not be comou-flaged as misconduct. Where misconduct when proved entails penal consequences, it is obligatory on the employer to specify and if necessary define it with precision and accuracy so that any ex- post facto interpretation of some incident may not be comou-flaged as misconduct. It is not necessary to dilate on this point in view of a recent decision of this Court in (9) Flaxo Laboratories (P.) Ltd. v. Presiding Officer, Labour Court, Meerut (1984) 1 SCC 1 : AIR 1984 SC 505 , where this Court held that everything which is scribed with precision and no argument can be entertained that something not prevarying what is prescribed, In short it cannot be left to the vagaries of management to say ex post facto that some acts of omission or commission nowhere found to be enumerated in the relevant standing order is nonetheless a misconduct not strictly falling within the enumerated misconduct in the relevant standing order but yet a misconduct for the purpose of imposing a penalty". The Ld trial Judge presumably on the basis of the principle laid down in above two cases held that if the charge could otherwise be sustained in that event the appellant could proceed afresh. In the instant case the enquiring officer has accepted the defence with some reservation and held that the charge were all proved. In the absence of any documentary evidence to substantiate the defence case, be that as it may, for some reasons or other, ,the movement order of 8th March, 1989 could not be carried out as enumerated in Article of charge No.1 and that admittedly, there was delay in reporting. Technically it can be stated to be a case of violation of the movement order but at the same time there was nothing to show on record that this is wilful and done with ill motive. A person who fails to carry out the movement order and/or absented from his duty is not going to be benefitted or enriched by his lapses. He has to loose his salaries and allowances for such illegal absence. Of course, as a member of disciplined force he was bound to follow the disciplines of the service. Article of charge No.2 follows the article of charge No.1 and states that because of the failure to carry out the movement order, the absence without sufficient or reasonable cause amounts to desertion which was punishable. Of course, as a member of disciplined force he was bound to follow the disciplines of the service. Article of charge No.2 follows the article of charge No.1 and states that because of the failure to carry out the movement order, the absence without sufficient or reasonable cause amounts to desertion which was punishable. The respondent writ petitioner had a defence but that defence was not accepted in toto. What would be impact on the mind of a person if he comes to know that his only son was missing when he was injured and subsequently, his near and dear relations were murdered, it is difficult to assess and/or to comprehend. One may say that these are usual things but to some, it is very fatal and under such circumstance, different person may act differently. There is no para-meter for it. But only thing is that one may consider the matter sympathetically and other may think it technically and procedures and technicalities should not prevail at the cost of everything. Charge No.3 is vague, wanting in particular and unascertained but the same is necessary corolary of first two charges. Considering all the aspects of the matter we are of the; view that in the facts and circumstances of the case, it will be too much technical if we hold that the first and the second charge do not amount to misconduct. But the gravity of such charge is a matter which is required to be considered in its true perspective while imposing punishment. It was expected that the disciplinary authority should have considered the matter compassionately because of peculiar facts and circumstances of the case disclosed in defence. On the question of disproportionate punishment Supreme Court in the case, of (10) Bhagat Ram v. State of Himachal Pradesh, AIR 1983 SC 454 held that, "The question is once we quash the order, is it open to us to give any direction which would not permit a fresh enquiry to be held? After all what is the purpose of holding a fresh enquiry ? Obviously, it must be to impose some penalty. It is equally true that the penalty imposed must be commensurate with the gravity of the misconduct and that any penalty disproportionate to the gravity of the misconduct would be violative of Article 14 of the Constitution. After all what is the purpose of holding a fresh enquiry ? Obviously, it must be to impose some penalty. It is equally true that the penalty imposed must be commensurate with the gravity of the misconduct and that any penalty disproportionate to the gravity of the misconduct would be violative of Article 14 of the Constitution. Having been influenced by all these relevant considerations, we are of the opinion that no useful purpose would be served by a fresh enquiry. What option is open to us in exercise of our jurisdiction under Article 136 to make an appropriate order. We believe that justice and fair play demand that we make an order of minor penalty here and now without being unduly technical apart jurisdiction, we are fortified in this view by the decision of this Court in (11) Hindustan Steels Ltd., Rourkela v. A. K. Roy, (1970) 3 SCR 343 : AIR 1970 SC 1401 where this Court after quashing the order of reinstatement proceeded to examine whether the party should be left to pursue further remedy................................ Accordingly, two increments with future effect of the appellant be withheld and he must be paid 50% of the arrears from the date of termination till the date of reinstatement". Proportionality has been a new ground of challenge for judicial Review. In (12) Council of Civil Service Unions v. Minister for the Civil Service, (1984)3 WLR 1174(HL): (1984)3 All ER 935 Lord Deplock said: "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 upon 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' That 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. 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. It was also said by Deplock, J. that a decision be so outrageous in its defiance of logic or accepted mural standards that no sensible person who had applied his mind to the question to be decided could have arrived at it. The doctrine of proportionality seems to be increasingly accepted in English law as a test of lawfulness of official action, requiring simply that excessive means should not be employed to achieve given ends. To be unlawful for want or proportionality, a decision must now be "unreasonably disproportionate or perhaps disproportionately disproportionate". The Courts will quash exercises of discretionary powers in which there is not a reasonable relationship between the objective which is sought to be achieved and the means used to that and or where punishments imposed by administrative bodies or inferior Courts are wholly out of protection to the relevant misconduct. 6. In (13) Ved Prakash Gupta v. Delton Cable India Ltd., AIR 1984 SC 914 it was held that when punishment awarded is chockingly disproportionate regard being had to the charge framed particularly when the circumstance will infer that no responsible employer will victimise the employee with extreme punishment, the unfair labour practice can well be inferred from the conduct of management. In (14) Union of India v. Giraj Sharma, AIR 1994 SC 215 punishment of dismissal was imposed on the ground of overstaying leave period by employee subsequent to order of rejection of application for extension of leave and there was no useful intention to flout the order. It was held by the Supreme Court that the punishment of dismissal was harsh and disproportionate order for reinstatement with all monatory and service benefits granted with liberty to visit minor punishment. Accordingly considering the facts and circumstances of the case and law laid down by the Supreme Court, we are of the view that this is a fit and proper case where the disciplinary authority should impose some minor punishment instead of passing any major punishment of removal from service in accordance with law. The appeal is disposed of as above. There will be, however, no order as to costs. The appeal is disposed of as above. There will be, however, no order as to costs. Let a xeroxed copy of the above order be given to the parties on the usual undertaking. Bhattacharjee, J. : I agree.