ORDER : This is a writ petition under Articles 226 and 227 of the Constitution of India challenging the order dated 10-2-1997 by which the petitioner has been dismissed from service. 2. It is not in dispute that the petitioner was in the employment of the State Bank of India as an officer in Junior Management Grade Scale I. He was posted in its branch at Ambikapur from 9-8-1990 to 3-6-1992. He was served with a charge-sheet on 24-10-1992 when he was in Dhanpuri branch in respect of his work and conduct at Ambikapur. There were six allegations against him. In short, the allegations No. 1 to 4 were to the effect that he did not check the current account day book on 18-9-1990, 21-9-1990 and 22-9-1990 and thereby disobeyed the instructions of the Branch Manager; he did not do the work relating to Saving Bank, Pension S.C. Reversing and Savings Bank, Progressive Balance Book Set 'C' assigned to him by the Branch Manager on 29-7-1991; he termed the Branch Manager's act as "conspiracy" (Shandyantra) by his letter dated 2-8-1991 and did not do the work allotted to him; the petitioner was informed by the Deputy General Manager by letters dated 23-3-1990 and 26-9-1990 that he was not in "innocuous position" yet he did not do the work assigned to him by insisting that he was in such position as some earlier order dated 28-3-1988 by which his powers as cash officer were withdrawn has not been revoked. The allegation No. 5 was that the petitioner challenged the authenticity and validity of the letter dated 3-1-1992 of the Deputy General Manager and that act of the petitioner was an act "unbecoming of a Bank Officer". The allegation No. 6 was to the effect that the petitioner in his representation for promotion termed the conduct of the authorities in the matter of process of promotion as "whimsical". Thus the petitioner was charged with misconducts provided in Rules 32(1) and (4) of the State Bank of India (Supervising Staff) Service Rules in as much as he was disobedient and did not discharge his duties with devotion and diligence and this was "unbecoming of a bank official". 3. The petitioner did not submit any reply to the charge-sheet. The inquiry officer was appointed to conduct the departmental inquiry. 3. The petitioner did not submit any reply to the charge-sheet. The inquiry officer was appointed to conduct the departmental inquiry. He held the inquiry from 5-7-1993 to 27-8-1994 and submitted his report to the disciplinary authority on 27-10-1994. The petitioner admitted the seventeen documents produced in the inquiry and therefore no oral evidence was recorded. The inquiry officer in his detailed report after considering the relevant material held allegations No. 1 to 4 "fully proved" and charges No. 5 and 6 as "partially proved". In substance it was found that the petitioner was "disobedient" and did not discharge his duties properly and he used the words "conspiracy" and "whimsical" towards his superior officers. A copy of the report of the inquiry officer was supplied to the petitioner and he submitted his reply. The disciplinary authority found that the allegations No. 5 and 6 were not only partially but fully proved and passed the impugned order of dismissal and the appeal against that order has also been dismissed by the appellate authority on 28-11-1997. 4. The petitioner's case is that he was placed in "innocuous position" when by letter dated 28-3-1988 his powers as cash officer were withdrawn and therefore he was doing the clerical work at Ambikapur and he did not do the work of an officer. According to him the order contained in this letter was never withdrawn by the competent authority. The findings of the inquiry officer and of the disciplinary authority are perverse. His plea is that the disciplinary authority disagreed with the conclusion of the inquiry officer on allegations No. 5 and 6 but before doing so he did not afford any opportunity of hearing to the petitioner and this has resulted in violation of the principle of natural justice i.e. of fair hearing. It is also pleaded that the penalty of dismissal from service is "highly disproportionate" on the facts and in the circumstances of this case. 5. The respondents' case is that the petitioner was never placed in "innocuous position" and this was made clear by the Deputy General Manager in his letters dated 23-3-1990 and 26-9-1990 and therefore, he could not refuse to do the work entrusted to him by the Branch Manager. The inquiry was conducted in conformity with the principles of natural justice. 5. The respondents' case is that the petitioner was never placed in "innocuous position" and this was made clear by the Deputy General Manager in his letters dated 23-3-1990 and 26-9-1990 and therefore, he could not refuse to do the work entrusted to him by the Branch Manager. The inquiry was conducted in conformity with the principles of natural justice. The inquiry officer did not exonerate the petitioner of any of the charges (allegations) and found them proved. The inquiry officer was of the view that the petitioner did not mean any disrespect to his superiors by using the words referred above and this inference of the inquiry officer was dissented to by the disciplinary authority and in its opinion the allegations No. 5 and 6 were found fully proved. In such a situation it was not necessary for the disciplinary authority to issue a fresh show cause notice to the petitioner. There was no disagreement on facts and in any case the omission to give a fresh show cause notice to the petitioner did not cause any prejudice to him. The penalty imposed on the petitioner is appropriate and it is not open to judicial review. 6. The points for determination are (a) whether the findings arrived at by the inquiry officer and disciplinary authority are perverse, (b) whether the petitioner was not afforded fair hearing as he was not given any show cause notice before recording disagreement by the disciplinary authority on allegations No. 5 and 6 on the findings of the inquiry officer and (c) whether the penalty of dismissal from service is highly disproportionate on the facts and in the circumstances of the present case. 7. Point (a) After hearing the learned counsel for both the sides and perusal of the reports of the inquiry officer and disciplinary authority this Court is of the opinion that the findings recorded by them cannot be said to be perverse or unreasonable. It is not disputed by the petitioner that he did not do the checking of current account Day Book on 18-9-90, 21-9-90 and 22-9-90 when this work was entrusted to him by the Accountant and Branch Manager. His plea was that he was not supposed to do this work as he was in "innocuous position". He has not produced any letter or order to show that he was ever placed in such position. His plea was that he was not supposed to do this work as he was in "innocuous position". He has not produced any letter or order to show that he was ever placed in such position. He has submitted a copy of letter dated 28-3-1998 (Annexure P-1) in which it is mentioned that he has not been given the powers of "cash officer". This does not mean that he was placed in innocuous position. As per Annexure P-18 "innocuous posting" means rendering an officer in a slightly better position than placing him under suspension. In that it does not attach the stigma which the suspended officer carries. He continues to be useful to the Bank though in a limited manner. Therefore, the petitioner was labouring under a mistaken notion that he was in innocuous position. If he had any confusion that was cleared by the Deputy General Manager by his letters dated 23-3-1990 and 26-9-1990 and after that the petitioner could not take the stand that he was in such a position and therefore he was not required to do the work of an officer. It is argued on his behalf that such a clarification should have been made by the Chief General Manager or the General Manager but not by the Dy. General Manager. This argument is not acceptable as the petitioner was not placed in innocuous position by the C.G.M. or G.M. 8. As regards allegation No. 1 it has been found that the petitioner did not check the day book and this was very important work and it has to be completed before the bank opens next day. The CGM has mentioned after an exhaustive and objective analysis that the entries in the customers' accounts are required to be posted, verified and checked before the transactions are put through on the next day. The petitioner refused to do this work given to him by the Branch Manager. This was disobedience on his part and it exhibited lack of the sense of responsibility. It is indiscipline. The allegation No. 2 also related to refusal to perform the work assigned by the superior officer. The allegation No. 3 related to use of the word "conspiracy" for the superior officer. The petitioner used intemperate language. As per allegation No. 4 the petitioner did not follow the instructions of the Dy. General Manager. It is indiscipline. The allegation No. 2 also related to refusal to perform the work assigned by the superior officer. The allegation No. 3 related to use of the word "conspiracy" for the superior officer. The petitioner used intemperate language. As per allegation No. 4 the petitioner did not follow the instructions of the Dy. General Manager. The allegations No. 5 and 6 related to comments of the petitioner against the promotion policy and he used the word "whimsically". The letters written by the petitioner go to show that he was making derogatory remarks against the management. The disciplinary authority has concluded that the petitioner has disobeyed the lawful and reasonable orders of his superiors and controlling authorities and used indecorous language in his letters. The order passed by the disciplinary authority is well reasoned and based on the material on record. The inferences which have been drawn are proper. 9. The appreciation of the evidence and the findings do not suffer from any infirmity muchless any perversity. It is well settled that the finding of fact recorded by the disciplinary authority and the inquiry officer cannot be interfered with by the Court unless it is shown that it is based on no evidence or is such as could not be reached by an ordinary prudent man or is perverse (Kuldeep Singh vs. Commissioner of Police, (1999) 2 SCC 10 ). The Court cannot sit in appeal over the reasonable findings of the inquiry officer and assume the role of appellate authority. In the present case the findings cannot be said to be perverse and therefore, these are not open to judicial review. 10. Point (b) There is no disagreement between the findings of fact on allegations No. 5 and 6 between the inquiry officer and the disciplinary authority. The difference was on the inference to be drawn from those factual findings. The inquiry officer was of the view that the Management did not specifically clarify that the order by which his powers of "cash officer" were withdrawn stood revoked and that gave rise to all the confusion. It has been discussed above that the petitioner was never placed in innocuous position and therefore he could not take the stand that he would not do the work given to him. Further, the Dy. G.M. had by his two letters clarified the position. It has been discussed above that the petitioner was never placed in innocuous position and therefore he could not take the stand that he would not do the work given to him. Further, the Dy. G.M. had by his two letters clarified the position. The soft-pedalling shown by the inquiry officer in para 3 at page 9 of his report was not accepted by the disciplinary authority. This is not "disagreement" with regard to the proof of allegations No. 5 and 6. The inquiry officer had held them "partially proved" because of some extenuating circumstance which in his view existed but the disciplinary authority on the facts held that there was no extenuating or mitigating circumstance and if the petitioner was labouring under a mistaken notion his act of disobedience and indiscipline does not get softened. 11. The argument of the learned counsel for the petitioner is that if the disciplinary authority wanted to differ from the inquiry officer on allegations No. 5 and 6 it was necessary for him to give a show cause notice in that respect to the petitioner and hear him on that point. Reliance is placed on the decision of the Supreme Court in Punjab National Bank vs. Kunj Bihari, (1998) 7 SCC 84 in support of the plea that such opportunity should be given. It has been held following the Constitution Bench decision in ECIL vs. Karunakar, (1993) 4 SCC 727 that when the enquiry report is in favour of the delinquent officer but the disciplinary authority proposes to differ with such conclusions then the authority which is deciding against the delinquent officer must give him an opportunity of being heard, for otherwise he would be condemned unheard. In that case the inquiry officer had exonerated the delinquent officer of the main charges and the disciplinary authority disagreeing with the view of the inquiry officer held them proved. In the present case this is not the situation. The petitioner was not exonerated of any charge by the inquiry officer. The allegations No. 1 to 4 were found fully proved and there is concurrent finding on them. The allegations No. 5 and 6 were found partially proved by the inquiry officer and fully proved by the disciplinary authority. There was no disagreement as to the proof of facts on these two allegations. The allegations No. 1 to 4 were found fully proved and there is concurrent finding on them. The allegations No. 5 and 6 were found partially proved by the inquiry officer and fully proved by the disciplinary authority. There was no disagreement as to the proof of facts on these two allegations. As already demonstrated the difference was only on the point whether the extenuating circumstance existed or not. Therefore, present case is distinguishable on facts and is not covered by the dictum of the decision which has been relied upon. 12. The other decision cited by the learned counsel for the petitioner is Yoginath vs. State of Maharashtra, (1999) 7 SCC 739 in which the same principle has been reiterated which has been laid down in the two decisions referred above. It has been held that the disciplinary authority before forming its final opinion, has to convey to the charged employee its tentative reasons for disagreeing with the findings of the inquiry officer. As stated above there was no such disagreement in the present case and therefore it was not necessary to communicate to the petitioner the tentative reasons for disagreement. 13. In this respect it has been argued on behalf of the respondents that no prejudice has been caused to the petitioner as the facts are not in dispute. It is only the conclusion which has been drawn that differs and in such a case the petitioner's plea that he has not been afforded fair hearing can be accepted only if it is shown that he has been in any way prejudiced. The recent decision of the Supreme Court in State of U. P. vs. Harendra Arora, (2001) 6 SCC 392 has been cited. It has been held in this case that the objection on this score has to be judged on the "touchstone of prejudice". It has been further held that this principle has also been laid down in ECIL vs. Karunakar (supra). It has been held that non-furnishing of enquiry report would not be fatal to the order of punishment unless prejudice is shown. It has also been observed that the principle of natural justice cannot be reduced to any hard and fast formulae and the same cannot be put in a strait-jacket as its applicability depends upon the context and the facts and circumstances of each case. 14. It has also been observed that the principle of natural justice cannot be reduced to any hard and fast formulae and the same cannot be put in a strait-jacket as its applicability depends upon the context and the facts and circumstances of each case. 14. Assuming that there was the disagreement in respect of allegations No. 5 and 6, the allegations No. 1 to 4 were found proved by both the officers and therefore, the misconduct under Rules 32(1) and (4) was established and that itself was sufficient for imposition of appropriate punishment. It is well settled that in a departmental proceeding even if one charge or some of the charges are established then the disciplinary authority can pass an order imposing punishment State of Orissa vs. B. Mohapatra, (1963) Supp. 1 SCR 648 and order dated 4-4-1996 in SLP (Civil) 18831-18833 of 1995 of the Supreme Court (copy on record). 15. Point (c) The petitioner had put in about 22 years of service in the Bank. He was not found guilty for any bribery and corruption, fraud or forgery or for committing any dishonest act making wrongful gain to himself or wrongful loss to the Bank. He was found guilty for not checking the Day Book on three dates and for failure to do some work on one more date. He used intemperate language in his letters and used the words "conspiracy" and "whimsical" in respect of his superiors. In short there was dereliction of duty but no moral turpitude. Justice must be tempered with mercy. Keeping in view all the facts and circumstances of the case the punishment of "removal from service" as per Rule 49(g) was appropriate and not "dismissal" as per clause (h) of Rule 49. The petitioner did not deserve to be kept in service but dismissal was disproportionate to the misconduct which was established. It appears that at the time the order of removal was passed the petitioner was facing a criminal charge under sections 420 and 409/34, Indian Penal Code before the Judicial Magistrate First Class at Katni of which he was discharged by the Court on 23-8-1999 as per Annexure P-19 and from the averments in the return of the respondents it is clear that this factor was also taken into account in imposing the punishment of dismissal. That must have weighed heavily in the mind of the disciplinary authority. That must have weighed heavily in the mind of the disciplinary authority. The cardinal rule is that the punishment should be commensurate with the proved misconduct. It should not be disproportionate. It should neither be too strict nor too liberal. 16. The legal position does not admit of any doubt that the penalty imposed must be commensurate with the gravity of the misconduct and the imposition of disproportionate penalty would amount to arbitrariness and violative of the Constitutional guarantee under Article 14. The doctrine of proportionality is well established both in the field of criminal law and administrative law. Recently the entire case law on this point has been exhaustively considered by a Division Bench of this Court in Arvind Dixit vs. Director General of Police, 2002 (3) MPLJ 258 in which it has been held that the Court can direct for moulding the relief if the penalty is "grossly severe and disproportionate". The decision of the Supreme Court in B. C. Chaturvedi vs. Union of India, AIR 1996 SC 484 has summarised the legal position thus: "The High Court/Tribunal, while exercising the power of judicial review, cannot normally substitute its own conclusion on penalty and impose some other penalty. If the punishment imposed by the disciplinary authority or the appellate authority "shocks the conscience of the High Court/Tribunal", it would appropriately mould the relief, either directing the disciplinary/appellate authority to reconsider the penalty imposed or to shorten the litigation, it may itself, in exceptional and rare cases, impose appropriate punishment with cogent reasons in support thereof". The same principle has been reiterated in more recent decisions in Union of India vs. Narainsingh, (2002) 5 SCC 11 , UPSRTC vs. Mahesh Kumar, (2000) 3 SCC 450 and AEP Council vs. A. K. Chopra, (1999) 1 SCC 759 . In the present case it has been demonstrated above that on the facts of the present case the penalty of dismissal is unduly severe and disproportionate and it can be said to be shockingly disproportionate. 17. In the result the petition is partly allowed. The punishment imposed upon the petitioner is altered from "dismissal" to "removal from service". Costs as incurred.