JUDGMENT : - Rakesh Tiwari 1. HEARD learned counsel for the parties. 2. THE matrix of the case is that the petitioner was appointed as Cashier in the Judgeship of Farrukhabad in July, 1987. On 3.2.1988, the then Additional District Judge/Accounts Officer provided two peons to the petitioner and entrusted him to bring cash of Rs. 48,319.20 p. from the Bank. It is submitted by the petitioner that apart from the above two peons, namely, Ravish Chandra and Mumtaz Hasan, deputed by the Additional District Judge, he also took his personal peon Satish Chandra Dixit to the Bank. After encashment of the bill, the petitioner gave Rs. 40,000 to his peon for safe keeping and kept Rs. 8,319.20 P. with him. When the petitioner returned to Nazarat, it was found that Rs. 30,000 were missing from the leather bag, which was kept by him in the bag of Satish Chandra Dixit. The petitioner thereupon informed the District Judge and lodged an F.I.R. 3. ALL the three peons were suspended. The petitioner was also suspended on the charge of gross negligence and a charge-sheet was served on him charging him for disobedience of bank circulars/orders issued for the safety of the money as he had not taken police aid with him. 4. THE petitioner submitted his explanation denying the charges. It is submitted by the counsel for the petitioner that : (a) Satish Chandra Dixit, Peon, had admitted in his statement that he was entrusted Rs. 40,000 by the petitioner out of which Rs. 30,000 was found missing from his bag. (b) THE request of the petitioner to cross-examine the witnesses was not accepted and charges were framed by the Inquiry Officer himself and not by the appointing authority. (c) In para 37 of the enquiry report, it has been held that Satish Chandra Dixit was personally liable for Rs. 30,000 but all the three peons as well as the petitioner were dismissed from service by order dated 4.4.1989. Appeals were preferred by the aforesaid persons on the administrative side of this Court under Rule 7 of the U. P. Subordinate Courts Staff (Punishment and Appeal) Rules, 1976. The appeals preferred by Ravish Chandra and Mumtaz Hasan were allowed and they were re-instated in service. The appeals filed by the petitioner and Satish Chandra Dixit were rejected by order dated 22.12.1993. 5. The appeals preferred by Ravish Chandra and Mumtaz Hasan were allowed and they were re-instated in service. The appeals filed by the petitioner and Satish Chandra Dixit were rejected by order dated 22.12.1993. 5. THE counsel for the petitioner states that while rejecting the appeal, solely a new case of conspiracy in between the petitioner and his peon was made, which was initially not in the charge-sheet. It is also argued that the petitioner was not afforded any opportunity to meet the alleged new case of conspiracy. It is contended that from perusal of the enquiry report dated 27.2.1989 (Annexure-9), order of dismissal dated 4.4.1989 (Annexure-12), from other materials on record and the own admission of Satish Chandra Dixit as well, it is established that it was Satish Chandra Dixit who was liable for the loss of the amount. 6. IT is vehemently argued on behalf of the petitioner that being a cashier, negligence has been attributed to the petitioner as he could not bring the money withdrawn by him from the Bank to the Nazarat, as such the punishment of dismissal, imposed on him, is too harsh, highly dis-proportionate and does not commensurate with the gravity of the charge. IT is argued that the petitioner was not aware of the order for taking the police escort whenever the amount of money is to be withdrawn. IT is submitted that since the amount to be withdrawn was very small one, the Additional District Judge Incharge had deputed peons and gave authority to him to bring the money. Since no mala fide has been alleged and no charge of embezzlement against the petitioner has been levelled, the punishment of dismissal from service but for the negligence part cannot be sustained and the same is liable to be set aside as even minor punishment could have served the ends of justice. It is not denied that the disciplinary authority is vested with the discretion of imposing appropriate punishment commensurating the gravity of the charge and the magnitude of the misconduct. It is submitted that in the instant case, the quantum of punishment is shockingly disproportionate to the magnitude of the charge, hence, it is prayed that this Court may interfere and substitute its own conclusion on the question of punishment. It is submitted that in the instant case, the quantum of punishment is shockingly disproportionate to the magnitude of the charge, hence, it is prayed that this Court may interfere and substitute its own conclusion on the question of punishment. The petitioner has relied upon the following cases in support of his present contention : (1) U. P. S.R.T.C. and others v. Mahesh Kumar Mishra and others, 2000 (2) AWC 1475 (SC) : 2000 (3) SCC 450 . (2) Om Kumar and others v. Union of India, 2001 (2) SCC 386 . (3) Colour Chem. v. Alapurkar, 1998 (3) SCC 192 . (4) Ex. Naik Sardar Singh v. Union of India, AIR 1992 SC 417 . (5) B. C. Chaturvedi v. Union of India and others, 1995 (6) SCC 749 . (6) Union of India v. Gannayutham, 1997 (7) SCC 463 . (7) Ranjeet Thakur v. Union of India, AIR 1987 SC 2386 . (8) Syed Zahir Husain v. Union of India, 1999 (2) AWC 1183 (SC) : 1999 (2) UPLBEC 944. 7. IN U. P. State Road Transport Corporation and others v. Mahesh Kumar Mishra and others, 2000 (2) AWC 1475 (SC) : (2000) 3 SCC 450 , it has been held that sufficient evidence, though available, was not collected and the mis-conduct was not being serious one, the Court can judicially review the punishment. IN that case, it was found that 11 passengers travelling on the Bus from a longer distance were issued short distance tickets, the deficiency in fare amounted to 30 paise per head only. None of the passengers was examined in this case during the domestic enquiry and the only evidence in support of the charge was the Transport Inspector’s Report. Hence, it was held that the High Court was justified in interfering with the quantum of punishment and substituting reinstatement with one-fourth back wages for dismissal. 8. IN Om Kumar and others v. Union of India, (2001) 2 SCC 386 , it has been held that in determining the quantum, relevant facts should be taken into consideration and irrelevant facts have to be discarded. It has been held that the punishment was not shockingly disproportionate as the authority had not considered all relevant materials before passing the order of punishment and there was no illegality committed by it. Thus, this case is of no help to the petitioner. In Colour Chem. It has been held that the punishment was not shockingly disproportionate as the authority had not considered all relevant materials before passing the order of punishment and there was no illegality committed by it. Thus, this case is of no help to the petitioner. In Colour Chem. Ltd. v. A. L. Alapurkar and others, (1998) 3 SCC 192 , the Court was concerned with the question of victimisation and unfair labour practice under Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971. The petitioner, in this case, was awarded punishment of dismissal for sleeping on duty while the machine was running. It was held that such punishment was disproportionate to the misconduct. 9. IN the instant case, there is no plea of victimisation but is of entrustment of Government money to a peon by a person holding a responsible post of trust, i.e., of cashier which not only shows gross negligence but also a very serious lapse by handing over the money to a peon. The petitioner has not acted in the manner a Government servant should keep the entrustment. The gravity of the charges cannot be said to be disproportionate to the punishment which is of a very serious nature. 10. THE case of Ex. Naik Sardar Singh v. Union of India and others, AIR 1992 SC 417 , is also a case on the doctrine of proportionality. THE accused was an Army Jawan and was found to have extra 7 bottles of Rum within area under prohibition while going to home town having valid permit to carry five bottles. He pleaded that extra bottles were purchased from the Army Canteen on the Chit given by an higher authority. In these circumstances, it was held that punishment of three months R. I. and dismissal from service was disproportionate and liable to be set aside being severe, arbitrary and violative of Section 72 of the Army Act. It can be seen that in this case the charge was of trivial nature and the punishment awarded to the delinquent employee was rightly held to be wholly disproportionate and shocking the conscience. In B. C. Chaturvedi v. Union of India and others, (1995) 6 SCC 749 , the Apex Court held that Courts/Tribunals cannot interfere with the findings of fact based on evidence and substitute its own independent findings. In B. C. Chaturvedi v. Union of India and others, (1995) 6 SCC 749 , the Apex Court held that Courts/Tribunals cannot interfere with the findings of fact based on evidence and substitute its own independent findings. It was held that where findings of discriplinary authority/appellate authority are based on some evidence, the Court/Tribunal cannot re-appreciate the evidence and submit its own finding. After discussing the scope of judicial review and scope of the High Court's power, it was held that the High Court being a court of plenary jurisdiction has inherent powers to do complete justice between the parties similar to Apex Court under Article 142 of the Constitution, as such the High Court can, therefore, modify the punishment by moulding the relief to avoid possible infringement of Article 14. The judgment in this case was in the context of Article 14 of the Constitution and Section 11A of the U. P. Industrial Disputes Act, 1947. This case is, therefore, also not of any help to the petitioner. 11. THE next case relied upon by the petitioner is of Ranjit Thakur v. Union of India, AIR 1987 SC 2386 . This case is also a case under the Army Act in which the proceedings under Section 130 of the Act were being taken. THE Court has held that procedural safeguards in this case were not complied with and that the proceedings are vitiated. There being no fair trial as the delinquent was not asked whether he objects to be tried by any officer sitting at the court-martial. THE Court further held that the proceedings of summary court-martial punishing delinquent on previous occasions sitting at court-martial are vitiated and suffered from bias. THE Court has held that judicial review, generally speaking, is not directed against a decision, but is directed against the "decision making process". 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 was further held that the punishment should not be vindictive or unduly harsh. It should not be so disproportionate to the offence as to shock the conscience and amounts in itself to conclusive evidence of bias. 12. THUS, the doctrine of proportionality as part of the concept of the judicial review was being considered in the aforesaid cases. It was further held that the punishment should not be vindictive or unduly harsh. It should not be so disproportionate to the offence as to shock the conscience and amounts in itself to conclusive evidence of bias. 12. THUS, the doctrine of proportionality as part of the concept of the judicial review was being considered in the aforesaid cases. This proposition, as has been held earlier, is not disputed at all. In those cases, the punishment was so shockingly disproportionate as to call for and justify interference and should not have been allowed to be uncorrected in the judicial review. In Syed Zaheer Hussain v. Union of India and others, 1999 (2) AWC 1183 (SC) : (1999) 2 UPLBEC 944, the Apex Court held that dismissal from service on unauthorised absence for 7 days, was harsh and clearly disproportionate. The judgment, in this case, in the peculiar facts and circumstances of the case, does not lay down any law. The case of Ram Bachan Yadav v. Commandant, P.A.C. 20th Battalion, Azamgarh and others, (1998) 1 UPLBEC 730 and Girja Shankar Singh v. General Manager-II, U. P. S.R.T.C., Varanasi and another, (1992) 2 UPLBEC 851, have been decided by learned single Judge of this Court. In these cases also, the doctrine of proportionality has been applied and has been held that where the punishment is shockingly disproportionate to the charges, the Court is empowered to correct the punishment under judicial review. 13. THE principle as laid down in B. C. Chaturvedi's case (supra) has been followed in the case of Union of India v. Gannayutham, 1997 (7) SCC 463 . 14. THE petitioner being cashier should be aware of the order for taking the police escort for the purpose of security of the money under his entrustment. Mere denial that he was not aware of the order does not lessen the gravity of the charge, on contra, it increases it. If a person working on a responsible and sensitive post of cashier is not aware about the order/circular issued by the competent authority regarding withdrawal of the money, he is not only inefficient but also a person, who is unreliable. Admittedly, it was the petitioner, who had withdrawn the amount of Rs. 40,000 and odd from the Bank. If a person working on a responsible and sensitive post of cashier is not aware about the order/circular issued by the competent authority regarding withdrawal of the money, he is not only inefficient but also a person, who is unreliable. Admittedly, it was the petitioner, who had withdrawn the amount of Rs. 40,000 and odd from the Bank. It was he, who was entrusted with the money and it was he to whom the peons were provided by the Additional District Judge for safety. The petitioner has not only committed gross negligence but also has not followed the orders for proper safety by not taking the escort when he went to withdraw the aforesaid amount from the bank. A person to whom such onerous and pious entrustment is made cannot brush his hand by saying that he had given the money to his personal peon for safe keeping. The money, in all these circumstances, has to be kept by the person to whom the entrustment is made under his personal safe custody. He may take such other measure for safety but he cannot entrust the money to peons who know nothing about the orders and may be negligent or could not foresee the consequences of keeping the money, after all he was a peon and may not have wide vision in such matters. 15. IN the facts of the present case, this element of punishment shockingly disproportionate to the charge is not present. 16. HOWEVER, the Apex Court in a catena of cases held that the Courts should not only ensure that justice is done but should also ensure that injustice is not done. In the case in hand, the loss to the Government has been made good by the petitioner and Shri Dixit. In the peculiar facts and circumstances of this case, it would be in the interest of justice that following the ratio of law laid down by the Apex Court in the aforesaid case of B. C. Chaturvedi v. Union of India (supra) the reliefs should be moulded by this Court in exercise of extraordinary powers under Article 226 of the Constitution to enable him to get his pensionery benefits. 17. DURING the pendency of the writ petition, the petitioner has also attained the age of superannuation on 5.1.2000. The petitioner has now sought indulgence of this Court on the short question of quantum of punishment. 17. DURING the pendency of the writ petition, the petitioner has also attained the age of superannuation on 5.1.2000. The petitioner has now sought indulgence of this Court on the short question of quantum of punishment. The argument for this is that the Government had not suffered any loss because as per direction of this Court, on administrative side, Satish Chandra Dixit and the petitioner had deposited Rs. 15,000 each and have made good the loss of Rs. 30,000. 18. THE other leg of the argument is that since the petitioner has reached the age of superannuation, during the pendency of the writ petition, it would not be proper and appropriate to hold the order of dismissal and some lesser punishment is to be substituted. THE counsel for the petitioner has relied upon the case of Mohd. Aquil Siddiqui v. U. P. State of Public S.T. and others, 1996 (2) UPLBEC 1149 (Para 8) . He also contends that a learned single Judge of this Court has also taken similar view in Girja Shankar Singh v. General Manager, 1992 (2) UPLBEC 851 and 1998 (1) UPLBEC 730 (Paras 7, 8, 9 and 12). In view of the facts and circumstances of this case and in the interest of justice with humanitarian approach the respondents are directed to pay pensionery and other retiral benefits to the petitioner, if he is eligible, notionally treating the period between his dismissal and actual date of retirement as continuity of service. The calculation shall, however, be made on the basis of actual pay drawn by him just preceding the date of his suspension. He shall not be entitled to any annual increment, etc., for this notional period. 19. WITH the aforesaid directions, the writ petition is disposed of. No order as to costs.