Judgment :- M. THANIKACHALAM, J. An Ex Police Constable, who lost his job on 14.7.1977, is the petitioner. 2. The petitioner, appointed as a Police Constable in 1963, was working at Singanallur Police Station. On 16.10.1976, he absented himself from sentry duty between 10.05 hours and 13.00 hours, because of the reason, he has to attend a civil case, in the Court of District Judge, Coimbatore. When, his absence from duty was known to the higher officials, a charge memo was issued on 19.10.1976 under Rule 3(a) of the Tamil Nadu Police Subordinate Service (Disciplinary and Appeal) Rules, for the delinquency, directing him to submit the explanation, for the charge. Thereafter, the charge framed under Rule 3(a) against the petitioner, for his absence from sentry duty from 10.05 hours to 13.00 hours on 16.10.1976 at B5 Singanallur Police Station, was dropped. As seen from the records, a fresh charge memo was issued, calling for explanation for the same delinquency, under Rule 3(b) of Tamil Nadu Police Subordinate Service (Disciplinary and Appeal) Rules. The explanation offered by the petitioner, the then delinquent, was not satisfactory and therefore, an enquiry was conducted and the petitioner was found to be guilty of the charge framed against him. The appointing authority viz., the second respondent herein, furnishing the copy of the enquiry report, and considering the representation, came to the conclusion that the constable should be dealt with severely, since the delinquent, who was on sentry duty, left the station for his own benefit, and the same should not be viewed leniently. In this view, as per the order dated 14.7.1977, the second respondent, compulsorily retired the petitioner, from service with effect from the date of receipt of the order. 3. The appeal and the representation preferred by the petitioner, have not yielded any positive result and therefore, he had approached the Tamil Nadu Administrative Tribunal, questioning his compulsory retirement order, in T.A.No.657/89. Originally, when the Tribunal was not constituted, it appears, he has filed a writ petition in W.P.No.7677/84 and it was transferred to the Tribunal, taken on file as T.A.No.657/89. The Tribunal by its order dated 2.11.98, confirming the order passed by the second respondent, dismissed the application, thereby giving cause of action for the petitioner to come to this Court, seeking to reinstate him in service with full back wages and all attendant benefits from 15.7.1977. 4. The Tribunal by its order dated 2.11.98, confirming the order passed by the second respondent, dismissed the application, thereby giving cause of action for the petitioner to come to this Court, seeking to reinstate him in service with full back wages and all attendant benefits from 15.7.1977. 4. Heard the learned counsel for the petitioner, Mr.T.S. Sivagnanam and the learned Special Government Pleader, Mr.S.T.S. Murthy. 5. The learned counsel for the petitioner submitted, that the petitioner did not absent himself intentionally to shirk or evade his responsibility, that in fact, only obtaining an oral permission from the authority concerned, he had left the police station to attend the Court work, that the charge framed against him invoking Rule 3(b) of Tamil Nadu Police Subordinate Service (D&A) Rules, is erroneous in view of the fact that originally a charge framed for the same delinquency, under Rule 3(a) was dropped and that in any event, the compulsory retirement punishment, was grossly disproportionate to the alleged delinquency committed by the petitioner and in this view, the learned counsel would urge further, that the order of compulsory retirement should be set aside. 6. The learned Special Government Pleader, on the other hand argues that the petitioner absented from sentry duty is not only an admitted fact, but also a proved one, and that the sentry duty is a serious one, and for its violation, the delinquent should be dealt with severely, failing which the disciplined force could not be controlled and in this view, he prayed for the affirmation of the orders. 7. The undisputed facts in this case are, that the petitioner was posted as sentry, at Singanallur Police Station on 16.10.1976 at 8.00 hours, making necessary entries in the Station General Diary; the sentry viz., the petitioner has been absent between 10.05 hours and 13.00 hours and that for the delinquency, enquiry was conducted, as aforementioned, and he was compulsorily retired, with effect from the date of receipt of the order dated 14.7.1977. As seen from the reply given by the petitioner, to the charges, more or less, he had admitted his delinquency, and prayed for leniency alone, though his plea of oral permission, to leave the police station was not established. As seen from the reply given by the petitioner, to the charges, more or less, he had admitted his delinquency, and prayed for leniency alone, though his plea of oral permission, to leave the police station was not established. The enquiry officer as well as the appointing authority, have come to a correct conclusion, based on evidence regarding the delinquency committed by the petitioner and this Court being not an Appellate Authority, not entitled to go into the merits of the finding as well. In fact, the learned counsel for the petitioner though raised many points, has not urged effectively, enlightening, how the appointing authority, as well as the Tribunal have prima facie committed any error, in not accepting the case of the petitioner or in not properly appreciating the available materials. The position being so, it is unnecessary for us to go into the details regarding that findings, based on facts. 8. The learned counsel for the petitioner would contend, that the punishment imposed, for the absence of three hours or so, is "shockingly disproportionate" to the alleged delinquency committed by the petitioner, which amounts to gross violation of the principles of natural justice, and in this view at least, according to him the punishment should be modified, reinstating him in the service, since he will be superannuated on 14.12.2004. This submission is made on the basis of doctrine of proportionality. 9. In Union of India vs. Tulsiram Patel, [ (1985) 3 SCC 398 ], the Apex Court has observed, that the Court can interfere, where the penalty imposed is arbitrary or grossly excessive. In this view, if it is evident that disproportionate or harsh punishment was imposed by the disciplinary authority, it could be corrected, either by the appellate authority or by the High Court, as observed by the Apex Court in State Bank of India and others vs. Samarendra Kishore Endow and another ( 1994 2 SCC 537 ). 10. In Ram Autar Singh vs. State Public Service Tribunal and others [ (1998) 9 SCC 666 ], the Apex Court has ruled, that the dismissal of a Constable for undertaking hunger strike, may not be proper punishment and directed the Constable to tender a written apology, thereby ordering to be reinstated with 50% backwages. 10. In Ram Autar Singh vs. State Public Service Tribunal and others [ (1998) 9 SCC 666 ], the Apex Court has ruled, that the dismissal of a Constable for undertaking hunger strike, may not be proper punishment and directed the Constable to tender a written apology, thereby ordering to be reinstated with 50% backwages. The petitioner herein was working as a police constable, and the only mistake committed by him was absenting himself, from the sentry duty, only for three hours, which was sought to be explained, but not accepted. It is not the case of the 2nd respondent or Government, that the petitioner was a recalcitrant constable, throughout, and his continuation in service, would demoralise the disciplined force. In this view, we are of the firm opinion, that the compulsory retirement for the absence of three house, is neither justifiable nor proportionate to the delinquency. Therefore, applying the above principle, we would hold, that for the delinquency committed by the petitioner, compulsory retirement would not be the proper punishment depriving his service as a whole and in our view, it is "shockingly a disproportionate punishment", requires reconsideration. 11. In S.K. Giri vs. Home Secretary, Ministry of Home Affairs and others (1995 Supp (3) SCC 519), the Apex Court has held, considering the facts and circumstances of the case involved therein, that the punishment of removal is severe in nature and disproportionate to the delinquency committed, thereby ordered to reinstate the security guard, with continuity of service, but without back wages, for most of the period between dismissal and reinstatement. In the case involved in the above decision, the appellant therein was posted as Head Security Guard in the CISF Unit, Rourkela Steel Plant. On 25.1.1983, when the appellant was on duty, a large number of persons, totalling about 109 or so entered inside the plant, had removed the coal from the M.C.D. Area. It seems, at the relevant time, the Security Guard was found absent, from his duty and came to his duty point, about 25 minutes after the incident. For this 25 minutes absence, enquiry was initiated, charges were framed for misconduct and gross negligence and finally he was removed from service, which was questioned, unsuccessfully before the High Court. It seems, at the relevant time, the Security Guard was found absent, from his duty and came to his duty point, about 25 minutes after the incident. For this 25 minutes absence, enquiry was initiated, charges were framed for misconduct and gross negligence and finally he was removed from service, which was questioned, unsuccessfully before the High Court. Considering the facts and circumstances of that case, the Apex Court has held, as said, that the punishment awarded was severe and disproportionate and the same deserves to be set aside. Applying the above law, considering the facts and circumstances of this case, we do feel, that the compulsory retirement of the petitioner, for his unauthorised absence, for three hours is not only severe, but also disproportionate to the delinquency. 12. In D. Sainson v. The Chief Security Commissioner (1997 Writ L.R. 626), a division bench of this Court, has held that punishment for remaining, unauthorised absence for 45 days, removal from service is harsh and excessive. On the basis of the above settled position of law, if the petitioner's case is considered, we should say undoubtedly that the appointing authority has dealt with the petitioner very severely, compulsorily retiring him. As rightly contended by the learned Special Government Pleader, sentry duty is an important and sensitive one, in whose custody, the entire Station including records, arms and ammunitions are entrusted. We would not say, absence from sentry duty amounts to an ordinary offence, which could be viewed very lightly. In this case, because of the absence, nothing had taken place, and no charge was also framed against the petitioner; because of his absence any records were missing and arms and ammunitions were removed, from the station, etc. That is why probably, the 2nd respondent, at the first instance, framed a charge against the petitioner, under Rule 3(a) of the Tamil Nadu Police Subordinate Service (Discipline and Appeal) Rules, which was dropped later. The admitted position being so, considering the pathetic position of the petitioner and his family circumstances, we are persuaded to consider his case very sympathetically, viewing the punishment, as shockingly disproportionate. The admitted position being so, considering the pathetic position of the petitioner and his family circumstances, we are persuaded to consider his case very sympathetically, viewing the punishment, as shockingly disproportionate. The main argument of the learned counsel for the petitioner was that the petitioner shall be reinstated, freezing salary and other benefits, and to that effect, the petitioner has also filed an affidavit, stating that the Court may be pleased to reinstate him, in service with continuity of service, without back wages and without effecting any recoveries of pension paid to him, from 15.7.1977 for which, there is no serious objection, though the learned Special Government Pleader would contend, that this kind of case should not be viewed leniently. 13. The petitioner is out of job from the year 1977 till this date. Though he had approached the forums for legal remedies in time, due to unavoidable reasons, which could not be attributed to the petitioner, the case also has not come to an end. During all these periods, as detailed in the affidavit filed by the petitioner, he has received pension of Rs.2,22,076/-. If he had continued in service, in the normal course as stated in the affidavit, he would have received a sum of Rs.7,77,862/- as salary. This calculation would show, that he was deprived of more than 5 lakhs and promotion if any for the unintentional mistake committed by him, being absent only for three hours, that too, had been to a court, probably to safeguard his right in a civil suit or so. The unintentional mistake committed by the petitioner, need not attract a severe punishment, in order to discipline the force, since the petitioner has not committed any other dereliction of duty or has not come to the adverse notice of the higher authorities. The petitioner not being allowed to continue in service from the year 1977 and the loss of pay and other mental agony suffered by him, in our considered opinion, would be a sufficient penalty, for the delinquency committed by him, more or less abandoning the sentry duty for few hours that too when there were other men in the police station to look after the affairs. Under the above circumstances, we would accept the contention of the learned counsel for the petitioner, that the petitioner should be let off with the above said sufferings alone, treating the same as punishment otherwise, natural justice would not be protected. 14. The learned counsel appearing for the petitioner submits that the Tribunal had not properly considered the plea of the petitioner from proper perspective, at least in imposing the punishment and therefore, according to him, the order deserves to be set aside to that extent. 15. Before the Tribunal, the main ground urged was that, once the charge memo framed against the applicant under Rule 3(a) of the Tamil Nadu Police Subordinate Service (Disciplinary and Appeal) Rules was dropped, the second respondent had no jurisdiction to order issue of a fresh charge memo under Rule 3(b) and in this view, the finding of the second respondent is liable to the set aside. The Tribunal considering this aspect, negatived the same and we do not find any reason to take contra view, since it is an admitted fact that the petitioner abandoned the sentry duty and he had not questioned the charge framed against him also, before the enquiry officer. 16. Another ground raised before the Tribunal was that someone, who was initially compulsorily retired from service was subsequently reinstated in service and the same benefit should be extended to this petitioner also. This ground was also rightly rejected by the Tribunal and we find no reason to interfere with the same. 17. Each and every case should depend upon individual facts and a person, who was compulsorily retired and reinstated on representation, would not give a right, to this petitioner for the same benefit and in this view, the rejection on that ground by the Tribunal also appears to be well founded. But as rightly contended by the learned counsel for the petitioner, the Tribunal had not properly considered the punishment imposed by the disciplinary authority, such as whether the punishment does commensurate with the proved charge or not. Only in this view of the matter, for the foregoing reasons, placing reliance upon certain Apex Court's rulings, we are inclined to interfere with the findings of the Tribunal regarding the punishment, since it failed in its duty, in our opinion, to consider the punishment, testing whether the punishment was proper, sufficient and proportionate to the proved charge or not. Only in this view of the matter, for the foregoing reasons, placing reliance upon certain Apex Court's rulings, we are inclined to interfere with the findings of the Tribunal regarding the punishment, since it failed in its duty, in our opinion, to consider the punishment, testing whether the punishment was proper, sufficient and proportionate to the proved charge or not. 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 consider the penalty imposed or to shorten the litigation, it may itself in exceptional and rare cases, impose appropriate punishment, for the reasons to be recorded. This dictum of the Apex Court should be followed in this case. 18. The petitioner had already lost service and out of job for the past more than 25 years. Such person, if once again allowed to face the disciplinary authority, in order to decide the quantum of punishment alone, it will work intolerable hardship, making the life of the petitioner miserable. On the other hand, in order to shorten the litigation, considering the proved charge, we feel this Court could modify the punishment and the same is well within the power of this Court. 19. We have already picturised the pathetic position of the petitioner, who had lost the job as well as the monetary benefit, extending to more than Rs.5 lakhs, being out of posting. His case comes within our view, the rarest of the rare case, and therefore, in order to shorten the litigation, we are inclined to modify the punishment. Unfortunately, neither the disciplinary authority nor the Tribunal has adverted to this fact regarding the quantum of punishment. For the absence of three hours duty, not causing any damage to anybody, imposing a punishment of compulsory retirement, in our opinion, is not proportionate to the proved charges, whereas it is not only shockingly disproportionate, but also shocks the conscience of ours and therefore, we are inclined to set aside the order passed by the disciplinary authority as well as the Tribunal in T.A.No.657/89. 20. 20. For the foregoing reasons, we would set aside the order of the Tribunal and also the compulsory retirement order in R.No.6/PR/77 dated 14.7.77, limiting the punishment to the deprivation of back wages for the entire period of his absence from duty, without effecting recovery of the pension amount paid to him. On his reinstatement, he would be entitled only to the continuity of service which would be reckoned for the purpose of computing the retirement benefits alone. The writ petition is allowed to the above said extent. No costs. W.M.P.No.17497/1999 is closed.