JUDGMENT : R.B. MISRA, J. 1. In this writ petition prayer has been made to quash the order dated 30.3.94 passed by District Judge removing the Petitioner from service/Class IV post and 20.9.1996 passed by the Respondent No. 3 the Administrative Judge as appellate authority. 2. Heard Anu Jaiswal, learned Counsel on behalf of the Petitioner as well as Sri K.R. Sirohi, learned Counsel for the Respondents. 3. The facts necessary for adjudication of the case are that the Petitioner was appointed as class IV/peon in the judgeship of Jalaun at Orai in the month of November, 1980 and at the relevant time, while working as Chaukidar at the head quarter Orai, he proceeded on sanctioned casual leave on 26.6.93 and was expected to come back on the next day, however, the Petitioner moved an application for availing fifteen days earned leave up to 12.7.93. In the meantime, the Petitioner had fallen seriously ill, suffered from Pyrexia Anesebic Hepatitis and due to the said disease the Petitioner remained absent from 12.7.93 to 21.8.93 also and after that the Petitioner was declared fit to resume duty on 23.8.93, therefore, sought permission to join his duty, along with medical fitness certificate dated 21.8.93 issued to him by Medical Officer of P.H.C. The Petitioner was not allowed to join duty on the ground that he had already been suspended on 7.8.93 for absence from duty since 13.7.93. 4. The departmental proceedings were initiated against the Petitioner and learned civil Judge was appointed as Inquiry Officer. A charge-sheet dated 16.8.93 (Annexure-4 to the writ petition) was issued to him on 24.12.93. The charge-sheet indicated the allegations against the Petitioner that the Petitioner proceeded on sanctioned leave on 26.6.93 and was about to come back to join to the office on 27.6.93 and the Petitioner has submitted an application dated 5.7.93 through Sri Jagdish II counsel requesting for fifteen days earned leave up to 12.7.93 even then he did not turn up on 12.7.93. In these circumstances, the Petitioner was absent for long period without sanctioned leave and absence from 28.6.93 without sanctioned leave is a misconduct and is defiance of the provisions of the Government Servants Conduct Rules, 1956, as such in support of the charges following documents was also to be considered: (a) Application dated 5.7.93 of the Petitioner ; (b) Report of Assistant Nazir dated 2.7.93, 5.7.93 and 7.8.93 ; (c) The Petitioner was expected to give reply before 26.8.93 by writing. The reply was filed and it shall be presumed that the Petitioner has not to say anything in his defence. By the charge-sheet dated 16.8.93, it was also expected by the Petitioner that if he wanted personal hearing, he can give in writing to the inquiry officer. The Petitioner submitted his reply dated 5.1.1994 (Annexure-5) by saying that immediately after proceeding on leave on 26.3.93 the Petitioner became seriously ill and the Petitioner had endeavoured to send the application through Sri Jagdish, however, since his physical condition was so deteriorated and the Petitioner was unable to read or write in those conditions the Petitioner could not send the reply. However, in the explanation the Petitioner has to only submit the medical certificate and the reply is sent Under Certificate of Post/U.P.C. 5. Sri D.N. Shukla, Inquiry Officer vide its order dated 22.3.94 (Annexure-6) has considered all the documents and has found that one application which is dated 5.7.93 was sent by the Petitioner through Sri Jagdish where the Petitioner had prayed for earned leave from 28.6.93 to 12.7.93 on the ground of the illness of his wife and according to the statements of Sri Munna Lal-II his second application dated 14.7.93 in respect of the Petitioner was sent by U.P.C., over which the inquiry officer has said that by submission of application for leave the Petitioner or any employee is not entitled to remain on leave and by submission of the application for leave only the employee is not absolved from the responsibility. According to the Inquiry Officer the leave was not sanctioned by the competent authority and according to the Regulation 73 of U.P. Financial Hand Book Part II, Sections 2 to 4 the conduct of such employee who does not turn up on duty after completing sanctioned leave is being treated as misconduct as such the Inquiry Officer held that the Petitioner was without sanctioned leave from 28.6.93 to 7.8.93 and his absence was misconduct and the allegations against the Petitioner was found to be proved. 6. The District Judge, Jalaun on 25.3.94 (Annexure-7) before awarding punishment thought to consider the past record of the Petitioner/ delinquent employee and in this connection personal file of the Petitioner was seen and character roll was perused and found that Sri D.R. Singh, the then District Judge, Jalaun at Orai on 1.4.89 has earlier made a remark against the Petitioner as below: Sri Munna Lal-II Addl. Chaukidar Vide order dated 1.4.1989, following entry has been made in the C.R. of Sri Munna Lal-II Addl. Chaukidar: (1) Chaukidar Munna Lal-II is self built, undisciplined, disloyal and misbehaved an employee. As he has done in the past, so did he do again by remaining absent from duty in between March 9,31,1989, without prior sanction. In spite of direction given to him by Assistant Nazir Sri Raja Ram, he made signature in token of his presence on duty on 31.3.89 although he turned up in Nazarat at 5.30 p.m. and by that time he had already been marked absent therein. An amount of Rs. 50 was imposed as fine on him on this account. (2) On 23.10.90, Sri Vinod Kumar Khare, Asstt. Nazir had reported that the delinquent employee was absent from duty w.e.f. 22.10.90, although had gone after obtaining station leave for the period w.e.f. 10.9.90 to 21.10.90. He was taken to be on casual leave and an entry was ordered to be made. (3) On 19.10.91, Sri Rajesh Singh, Munsif Magistrate, Konch reported against him mentioning that the delinquent employee was absent from 5.10.91 without any application. (4) On 4.6.92, also similar report of absence without permission was made by the office to the District Judge. (5) On 29.3.93, also it was reported by Assistant Nazir that the delinquent employee was absent with effect from 17.3.93 without any permission. (4) On 4.6.92, also similar report of absence without permission was made by the office to the District Judge. (5) On 29.3.93, also it was reported by Assistant Nazir that the delinquent employee was absent with effect from 17.3.93 without any permission. (6) He was also absent as per report dated 20.3.93, w.e.f. 10.3.93 to 14.3.93 without any permission. 7. The District Judge on 3.4.89, incorporated the above remarks made by Sri D.R. Singh the then District Judge in his note and had issued a show cause notice to the Petitioner as indicated from (1) to (6) above. The District Judge in the show cause notice dated 25.3.94 incorporated as below: So the delinquent employee is in the habit of remaining absent without prior sanction of the leave and without any permission to leave the station. Under these circumstances, the work suffers and it so appears that the delinquent employee has no concern with his service or Government duty. Therefore, it would be just and proper to remove such an employee from the service of the State which does not disqualify him from future employment as laid down under Rule 4 (1) (g) of the U.P. Subordinate Courts Staff (Punishment and Appeals) Rules, 1976. A notice is, therefore, given to the delinquent employee Sri Munna Lal-II to show cause why above notice for punishment of removing from the service of the State be not awarded to him. The delinquent employee shall show cause under Sub-rule (4) of Rule 5 of the above Rules on or before 30.3.94. The delinquent employee is already under suspension in this inquiry. Put upon 30.3.94 at 11 a.m. for orders. The delinquent employee can make a representation either in writing or verbally on or before 11 a.m. on 30.3.94. The inquiry report dated 22.3.94 shall form part of the order and shall be served on the delinquent employee. 8. The Petitioner submitted his reply dated 30.3.94 (Annexure-8) to the show cause notice dated 25.3.94 by simply saying that he has a wife and six children and was seriously ill and had sent application by U.P.C. and suffering from serious ailment, he could not come to the duty, therefore, the pitiable condition of the family and children was prayed for reinstatement. The punishing authority/District Judge by order dated 30.3.94 has again proceeded with to punish the Petitioner under Rule 5 (4) and Rule 4 of the Uttar Pradesh Subordinate Courts Staff (Punishment and Appeals) Rules, 1976 (in short called Rules 1976). The relevant provisions of Rules, 1976 are given as below: "4. Punishments.-(1) The following penalties may, for reasons to be recorded in writing, be imposed by a District Judge on the ministerial or Class IV employees of the Subordinate Courts of the Judgeship: (g) removal from the service of the State which does not disqualify for future employment ; (h) dismissal from the service of the State which ordinarily disqualifies for future employment ; 5. Procedure in respect of major punishments.-(1) Without prejudice to the provisions of the Public Servants Inquiries Act, 1850 ; 5 (4) After the inquiry against a Government servant has been completed and after the punishing authority has arrived at provisional conclusions in regard to the penalty to be imposed, the Government servant charged shall, if the penalty proposed is dismissal, removal or reduction in rank, be supplied with a copy of the report of the inquiring officer prepared under Sub-rule (1) together with the recommendation if any, in regard to punishment, made by the officer conducting the inquiry and be given a notice stating the penalty proposed to be imposed on him and calling upon him to submit a particular date which affords him reasonable time, such representation as he may be to make on the proposed penalty, provided that such representation shall be based on the evidence adduced during the inquiry: 7. Appeals.- (1) A person against whom an order imposing a penalty specified in Clause (a) or Clause (b) of Sub-rule (1) of Rule 4 has been passed by the presiding officer of a subordinate court, other than the Court of District Judge may file an appeal to the District Judge. (2) A person against whom an order: (a) imposing a penalty specified in any of the Clauses (a) to (b) of Sub-rule (1) of Rule 4 has been passed by a District Judge ; or (b) of enhancement of punishment has been made by a District Judge in appeal filed under Sub-rule (1) of this rule, may file an appeal to the High Court. (3) The period during which an appeal may be filed shall be thirty days in the case of an appeal filed under Sub-rule (1) and ninety days in the case of an appeal filed under Sub-rule (2). The period of limitation shall count from the date on which the Appellant is informed of the order appealed against. The time taken in obtaining the copy of the order appealed against shall be excluded in computing the period of limitation. (4) The appellate authority shall consider- (a) Whether the facts on which the order was passed have been established ; (b) Whether the facts established afford sufficient ground for taking action ; and (c) Whether the penalty is excessive, adequate or inadequate ; and after such consideration, the appellate authority shall pass such orders as appear to it just and equitable having regard to all the circumstances of the case". 9. The District Judge in his final order dated 30.3.94 (Annexure-9) after considering the second show cause notice dated 25.3.94 and the reply dated 30.3.94 of the Petitioner has passed an order keeping in mind the original charge-sheet dated 16.8.93 and the reply thereto of the Petitioner. In addition to it the previous remarks dated 1/3.4.89 of Sri D.R. Singh, the then District Judge had observed as below: "Therefore, past report of the delinquent employee is also very bad and he is an undisciplined person and is in the habit of remaining absent from duty without prior sanction of the leave. At the relevant time also he was chaukidar and remained absent. The facts of the matter have been given in detail by Sri D.N. Shukla Munsif Magistrate, Konch/ inquiring officer in his report dated 22.3.94 and have also been repeated in the notice dated 25.3.94. The delinquent employee remained absent from duty for a sufficient long time without sanction of the leave. In view of his past record which has been considered after the due notice to the employee in this inquiry, the employee deserves to be punished by a major punishment as he does not appear to be interested in Government duty and in maintaining discipline. He remained absent from duty, w.e.f. 13.7.83 to 23.8.93 this time. In view of his past record which has been considered after the due notice to the employee in this inquiry, the employee deserves to be punished by a major punishment as he does not appear to be interested in Government duty and in maintaining discipline. He remained absent from duty, w.e.f. 13.7.83 to 23.8.93 this time. His case could not be dealt with clear knowledge that earlier he had taken the plea of illness of his female member of the family but later on he came with the plea that it was he himself who had fallen ill. The ground was found false to the personal knowledge of the delinquent employee. Therefore, in view of this lapse on the part of the employee and in view of his past record and continued opportunities having been given by the former District Judge to the delinquent employee to reform himself, did not bear any fruit, the employee deserves major punishment. The delinquent employee, therefore, to be removed from the service of the State of U.P. Sri Munna Lal-II is removed from the service of the State of U.P. which does not ordinarily disqualify him form future employment with immediate effect." 10. The Petitioner preferred review application before the District Judge which has also been rejected on 10.5.94 (Annexure-12 to the writ petition), therefore, an appeal u/s 7 of the Rules, 1976 was preferred before the High Court Administrative Judge against the order dated 30.3.94, passed by the District Judge/Punishing Authority, Jalaun, which was disposed of on 20.6.96 (Annexure-14 to the writ petition) with the following observations: "The absence from 27.6.93 onward has rightly been treated wilful. This employee went from the H.Q. simply on permission to leave H.Q. on 26.6.93. It speaks of that he wilfully managed to leave the H.Q. and remained absent according to his own choice. Such employee who being on responsible duty of Chaukidar of civil court behaving in this way of his choice need not be retained in service. The past record of this employee gives very strong ground to justify the punishment. Of course the past history cannot and should not be base of the punishment but at the same time for basing major punishment the past history is worth consideration. The past record of this employee gives very strong ground to justify the punishment. Of course the past history cannot and should not be base of the punishment but at the same time for basing major punishment the past history is worth consideration. So, there is no error in the order of D.J. and the punishment of removal from service is in no way harsh, so it does not require interference. The appeal is accordingly dismissed. The question of non-payment of subsistence allowance during suspension has been properly appreciated and replied by the D.J. that reasoning is just and proper, so need no interference. Sd. R. K. Singh 20.9.96 Hon'ble Inspecting Judge, Jalaun at Orai" 11. In the counter-affidavit, it has been contended that keeping in view the previous record of the Petitioner the punishment order was passed by the District Judge and a second show cause notice was issued against the Petitioner by the District Judge/ Punishing Authority and after considering the reply of the second show cause notice the District Judge/ Punishing Authority has passed a correct order where the previous remarks made by the earlier District Judge was also taken into consideration and the punishment has been concurrently been affirmed by the District Judge in the review order as well as by the Administrative Judge also. I have heard learned Counsel for the parties and perused the documents. I find that the Petitioner was served charge-sheet on 5.1.94 (Annexure-5 to the writ petition) where the period for absence from 28.6.93 to 7.8.93 was treated to be unauthorised absence, however, in the original charge-sheet dated 16.8.93 (Annexure-4) as indicated above the only limited charges were indicated for which the Petitioner had given reply on 5.1.94. The Petitioner was charge-sheeted on 16.8.93 indicating the specific, definite charges, which were responded by the Petitioner by his reply dated 5.1.94, however, in the second show cause notice dated 25.3.94 (Annexure-7) the District Judge/Punishing authority, Jalaun, incorporated some more additional charges on the basis of remarks dated 1/3.4.89 made by formal District Judge Sri D.R. Singh which were not part of the original charge-sheet dated 16.8.93 and after obtaining the reply to the augmented show cause notice dated 25.3.94 keeping in mind the earlier deficiencies, dereliction and slackness in service on the part of the Petitioner the said order dated 30.3.94 was passed. Here in the second show cause notice dated 25.3.94 the District Judge/Punishing Authority kept in mind that while awarding punishment it is relevant to see whether past record of the delinquent employee is good or bad and the order dated 30.3.94 of District Judge/Punishing Authority (Annexure-9) was not based on the definite specific charges rather it was on the augmented charges which was not a subject-matter of inquiry. Learned Counsel for the Petitioner has placed reliance on Masiuddin v. Commissioner, Allahabad Division, Allahabad 1972 ALJ 573, where it was observed as below: "6. The show cause notice stated that as the Petitioner was accused of the offence u/s 302, Indian Penal Code, his licence was suspended. The notice asked him to show cause why the licence should not be cancelled. The language of the notice would suggest that he was asked to explain why his licence should not be cancelled because he was accused u/s 302, Indian Penal Code, in a criminal case. The notice did not ask him to explain any other charge or circumstance. In his explanation he said that he has been acquitted of the charge u/s 302 by the Sessions Judge, Allahabad, on May 10, 1969. He further stated that he was a law obiding person and a peace-loving citizen and has never misused the gun. In his order the District Magistrate states that the explanation was not satisfactory. He cancelled the licence. The reason given by him in support of his order is that "there is enmity between him and one Mohammad Afaq so that there is possibility of the misuse of the fire arm". Evidently, the Petitioner was never asked to explain why his licence should not be cancelled on account of there being enmity between him and one Mohammad Afaq. He was asked to explain only one charge, namely that he was accused of an offence u/s 302, Indian Penal Code. Regarding that charge he did give an explanation. Presumably that explanation was found satisfactory for the order is silent about it. But he was never asked to explain the new charge that there was enmity between him and Mohammad Afaq. So he was not afforded a fair hearing by the District Magistrate. Regarding that charge he did give an explanation. Presumably that explanation was found satisfactory for the order is silent about it. But he was never asked to explain the new charge that there was enmity between him and Mohammad Afaq. So he was not afforded a fair hearing by the District Magistrate. And Parliament says that a licence cannot be cancelled until the licence has been heard." It is well-settled principle that the disciplinary authority cannot rely on any material or any information without disclosing or giving the party an opportunity of hearing and the same has concluded by the Supreme Court in the case of State of Mysore Vs. K. Manche Gowda, AIR 1964 SC 506 . 12. In Mirja Barkat Ali Vs. Inspector General of Police, Allahabad and Others, (2002) 3 AWC 2339 , the police constable was dismissed for absent in duty of 109 days on the ground of illness. The Inquiry Officer recommended for minor punishment however, S.P. disagreed and imposed punishment of dismissal. High Court found the punishment is too harsh and severe/disproportionate to allegations and directed for awarding lessor punishment. Punishment to be imposed-discretion of the disciplinary authority. (A) The punishment to be imposed by the disciplinary authority is the discretion of the authority concerned and unless such penalty grossly disproportionate there can be no occasion for the Court or Tribunal to interfere with the punishment. However, penalty should be commensurate with the magnitude of the misconduct committed. If a lessor penalty can be imposed without jeopardising the interest of the administration, then the disciplinary authority/punishing authority, should not impose the maximum penalty of dismissal from service. When the rules require that the disciplinary authority will determine the penalty after applying its mind to the enquiry report, then this shows that he has to pass a reasoned order. However, taking an overall and cumulative view the disciplinary authority may impose maximum penalty but after considering all aspects of the case. H.P. Thakore Vs. State of Gujarat and Others, (1979) 20 GLR 109. When an authority proceeds to impose a penalty, the only question which is ordinarily to be kept in mind is to impose adequate penalty ; then punishment shall be neither too lenient nor to harsh. [Ansar Ali Rakshak v. Union of India 1984 Lab IC 73]. Punishment not to be disproportionate to the gravity of the charge established. When an authority proceeds to impose a penalty, the only question which is ordinarily to be kept in mind is to impose adequate penalty ; then punishment shall be neither too lenient nor to harsh. [Ansar Ali Rakshak v. Union of India 1984 Lab IC 73]. Punishment not to be disproportionate to the gravity of the charge established. (B) Ordinarily the Court or Tribunal cannot interfere with the discretion of the punishing authority in imposing particular penalty but this rule has exception. If the penalty imposed is grossly disproportionate with the misconduct committed, then the Court can interfere. The railway employee on being charged with negligence in not reporting to the railway hospital for treatment was removed from service. The Supreme Court has thought it fit to interfere with the punishment of removal from service and modify it to withholding of two increments [Alexander Pal Singh v. Divisional Operating Superintendent (1987) 2 ATC 922 (SC)]. But when the police constable working as Gunman of Deputy Commissioner of Police while on duty was wandering near the bus stand with service revolver in a heavily drunken condition and when he was brought to hospital he began abusing the doctor on duty, the imposition of penalty of dismissal of service cannot be held to be disproportionate because the constable was guilty of gravest misconduct. State of Punjab and Others Vs. Ram Singh Ex. Constable, AIR 1992 SC 2188 . (C) When the charge of misconduct against the Civil Judge in disposing of the Land Acquisition Reference cases have been proved partially and for fixing higher valuation of land than was legitimate in L.A. Reference was not proved for which he can be given benefit of doubt, the Supreme Court has modified the penalty of dismissal to compulsory retirement. V.R. Katarki Vs. State of Karnataka and others, AIR 1991 SC 1241 . In another case when the employee had 29 years of unblemished record and PSC on consultation had not agreed to the proposal of dismissal, but he was dismissed, the Supreme Court, after the death of employee, held that the evidence in support of the charges which led to dismissal was not very strong and in order to grant relief to poor widow, the punishment of dismissal should be converted to compulsory retirement so that the widow will get the appropriate financial benefit. Kartar Singh Gerwal Vs. Kartar Singh Gerwal Vs. State of Punjab, AIR 1991 SC 1067 . However, even though the Supreme Court has power to modify the penalty imposed by the disciplinary authority in exercise of equitable jurisdiction under Article 136 of the Constitution, but the High Court or the Administrative Tribunal has no such jurisdiction to interfere with the punishment imposed by the disciplinary authority. This is the view of the Supreme Court in Samarendra Kishore Endow's case. It is held that the High Court/Administrative Tribunal cannot interfere with the punishment if imposed after holding enquiry and if it is considered that the punishment imposed is harsh, the proper course is not to modify the penalty but to remit the matter to the appellate or disciplinary authority. The Supreme Court has observed as follows: "Imposition of appropriate punishment is within the discretion and judgment of the disciplinary authority. It may be open to the appellate authority to interfere with it, but not to the High Court or to the Administrative Tribunal for the reason that the jurisdiction of the Tribunal is similar to the powers of the High Court under Article 226 is one of judicial review. It is not an appeal from a decision but a review of the manner in which the decision was made. The power of the judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the authority after according a fair treatment reaches on a matter which it is authorised by law to decide for itself a conclusion which is correct in the eyes of law Bhagat Ram Vs. State of Himachal Pradesh and Others, AIR 1983 SC 454 , is no authority, for the proposition that the High Court or Tribunal has jurisdiction to impose any punishment to meet the ends of justice. The Supreme Court in Bhagat Ram's case exercised the jurisdiction under Article 136 of the Constitution. The High Court or the Tribunal has no such power". State Bank of India and Others Vs. Samarendra Kishore Endow and Another, (1994) 2 SCC 537 . Samarendra Kishore Endow case is the authoritative pronouncement of the Supreme Court in the matter of jurisdiction of the High Court or the Administrative Tribunal by way of judicial review of the penalty. The High Court or the Tribunal has no such power". State Bank of India and Others Vs. Samarendra Kishore Endow and Another, (1994) 2 SCC 537 . Samarendra Kishore Endow case is the authoritative pronouncement of the Supreme Court in the matter of jurisdiction of the High Court or the Administrative Tribunal by way of judicial review of the penalty. It does not ordinarily have power to interfere with the penalty if there is no infirmity in the enquiry but if the punishment imposed is harsh the proper course for the High Court/Tribunal is to refer the matter to the appellate authority or the disciplinary authority for reconsideration of the penalty imposed. But in the instant case, when on a proper departmental enquiry the Respondent was removed from service on the basis of the charges of falsely claiming reimbursement of travel expenses on his transfer and there was also another charge of release of construction loan of Rs. 1,00,000 in one case to a co-employee without verifying the progress of construction, then the Supreme Court on taking the view that the punishment was harsh directed the appellate authority to consider whether a lesser punishment is not called for in the facts and circumstances of the case. (D) The three-Judge Bench judgment of the Supreme Court in B.C. Chaturvedi Vs. Union of India and others, AIR 1996 SC 484 , as to some extent modified the view expressed in Samarendra Kishore Endow's case, by holding that even though the High Court/Tribunal, while exercising the power of judicial review cannot normally substitute their 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 or the Tribunal it would be appropriate to grant the relief either directing the disciplinary, or the appellate authority to reconsider the penalty or to shorten the litigation, it may itself, in exceptional and rare cases, impose appropriate punishment with reasons in support thereof. (E) The decision of B.C. Chaturvedi's case has also been reiterated by the Supreme Court in Union of India and another Vs. G. Ganayutham (Dead) by LRs., AIR 1997 SC 3387 . In that case, the Government employee whose disciplinary enquiry was continued even after retirement was imposed penalty of 50% pension and gratuity and he moved the Central Administrative Tribunal against such order. G. Ganayutham (Dead) by LRs., AIR 1997 SC 3387 . In that case, the Government employee whose disciplinary enquiry was continued even after retirement was imposed penalty of 50% pension and gratuity and he moved the Central Administrative Tribunal against such order. The Tribunal held that gratuity not being part of pension cannot be curtailed and modified the deduction of pension for a limited period. In appeal by special leave, the Supreme Court has held that the Tribunal had no jurisdiction to interfere with the penalty when there is no contention that the punishment imposed is illegal or vitiated by procedural irregularity and there is no finding that the decision is one which no sensible person who weighed the pros and cons could have arrived at nor is there a finding, based on material that the punishment is an outrageous defiance of logic. (F) When the appointing authority disagree with the findings of the enquiry officer in respect of charges 1 and 2 and found those charges also proved even though the disciplinary authority approved the report of enquiry officer and recommended a particular penalty, it is held by the Supreme Court that when the Regulation 68 (3) (iii) of the Bank Regulation clearly stipulates that the appointing authority is not bound by the recommendation of the disciplinary authority relating to penalty of compulsory retirement being quite valid and legal, it cannot be subjected to judicial review on the ground that the appointing authority while imposing penalty cannot differ with the recommendation of the disciplinary authority. State Bank of Hyderabad and Others Vs. Rangachary, (1994) 2 SCC 479 Supp. (G) A member of the Central Reserve Police who only because he overstayed the leave for twelve years for which had sufficient reason and had no intention to wilfully disobey the order was dismissed from service, the High Court on the interpretation of Section 11(1) of the Central Reserve Police Force Act, 1949, quashed the dismissal order and reinstated him with all consequential benefit. The Central Government moved the Supreme Court in appeal by special leave. The Supreme Court in the facts of the case has held the dismissal to be harsh, upheld the order of reinstatement of service but gave liberty to the Government to impose any minor penalty for such misconduct. Union of India and others Vs. Giriraj Sharma, AIR 1994 SC 215 . The Supreme Court in the facts of the case has held the dismissal to be harsh, upheld the order of reinstatement of service but gave liberty to the Government to impose any minor penalty for such misconduct. Union of India and others Vs. Giriraj Sharma, AIR 1994 SC 215 . (H) When the police constable was dismissed from service for using abusive language, but what the abusive words used were not disclosed in the enquiry, then only because a police constable used abusive language there can be no straitjacket formula that in all such cases the constable should be dismissed from service. So, the Supreme Court has considered the punishment to be harsh and disproportionate to the gravity of the charge and modified the penalty to stoppage of two increments with cumulative effect. Ram Kishan Vs. Union of India and others, (1995) 6 SCC 157 . When subsequent to promotion as inspector the police officer failed to deposit his service revolver and six live cartridges, the Supreme Court has held that penalty of dismissal is too harsh when his previous record was unblemished and at the relevant time he was sharing a room with two colleagues. So, the Supreme Court substituted the penalty to compulsory retirement. Mehnga Singh, Ex-Sub Inspector Vs. Inspector General of Police, PAP, Jalandhar Cantt. and Others, (1995) 5 SCC 682 . (I) On the finding delinquent guilty of demanding and accepting illegal gratification, the order of dismissal has been passed against the delinquent. The same has been challenged on the ground that the penalty is harsh and that there is only one witness to prove the charge and that there was no earlier charge of misconduct against him. The Supreme Court has held that it is for the disciplinary authority to decide about the punishment and merely because there was solitary evidence to prove the charge the finding of the guilt by the enquiry officer and disciplinary authority is not illegal. It is also observed that merely because there was no allegation of misconduct against the delinquent employee earlier is inconsequential. Even the recommendation of the Public Service Commission to take a lenient view is not binding on the Government. It was held that the interference with the penalty on the facts of the case is not called for. N. Rajarathinam Vs. State of T.N. and Another, (1996) 10 SCC 371 . Even the recommendation of the Public Service Commission to take a lenient view is not binding on the Government. It was held that the interference with the penalty on the facts of the case is not called for. N. Rajarathinam Vs. State of T.N. and Another, (1996) 10 SCC 371 . The police constable who was dismissed on account of absence without leave from 7th November, 1986 to 1st March, 1988, on holding the departmental enquiry filed civil suit challenging such punishment on the ground that the disciplinary rules applicable to him provided that the dismissal could be resorted to if there was a gravest act of misconduct. The trial court dismissed the suit on the ground that it could not interfere with the order of punishment imposed in a disciplinary proceedings. But the appellate court remanded the matter for reconsideration of the trial court on the point of punishment. The Supreme Court has disapproved the order passed by the appellate court. It is held that it is for the disciplinary authority to pass appropriate punishment and the civil court cannot substitute its own view to that of the disciplinary as well as that the appellate authority on the nature of punishment to be imposed upon the delinquent, as he was absent without any leave for over one and half years it ought not to have interfered with the degree passed by the trial court dismissing the suit. State of Punjab and others Vs. Bakhshish Singh, AIR 1997 SC 2696 . The Supreme Court has also held that when on the charge of demand and acceptance of illegal gratification by the inspector of police, the inspector has been dismissed from service, then the police officer being guilty of grave misconduct resorting to corruption, there is no occasion for interference with the order of punishment imposed by the disciplinary authority. The Government of Andhra Pradesh Vs. B. Ashok Kumar, AIR 1997 SC 2447 . (J) When a bus conductor was charged for taking certain passengers without tickets and on holding departmental enquiry he was found guilty and the disciplinary authority removed the Respondent from the post of the conductor, he moved the High Court challenging the order of removal. The Government of Andhra Pradesh Vs. B. Ashok Kumar, AIR 1997 SC 2447 . (J) When a bus conductor was charged for taking certain passengers without tickets and on holding departmental enquiry he was found guilty and the disciplinary authority removed the Respondent from the post of the conductor, he moved the High Court challenging the order of removal. The High Court while concurring with the finding of the authority that the charges levelled against the Respondent were proved held that the punishment awarded did not commensurate with the gravity of the charge. On that basis the High Court set aside the punishment and directed the reinstatement of the Respondent. Being aggrieved an appeal by special leave has been filed by the Corporation before Supreme Court. The Supreme Court has held that it has consistently taken the view that under the judicial review the Court shall not normally interfere with the punishment imposed by the authority and this will be more so when the Court found the charges were proved and interference with the punishment on the facts of the case cannot be sustained. U.P. State Road Transport Corpn. and Others Vs. A.K. Parul, AIR 1999 SC 1552 . When the Respondent, a police constable was dismissed from service on the ground that he illegally extracted money from the auto-rickshaw driver by misusing his official position then the interference by the Administrative Tribunal with the penalty imposed by the departmental authority is not warranted in this case, because it is only in a case where the punishment was totally irrational in the sense that it was in outrageous defiance of logic or moral standard that a Court or Tribunal can interfere with the punishment imposed by the Administrative Authority. As in this case, the police constable was guilty of grave misconduct, there was no reason as to why the Tribunal should interfere with the punishment imposed by the disciplinary authority. State of Karnataka and Others Vs. H. Nagaraj, (1998) 9 SCC 671 . 13. In Sahdev Singh v. U.P. Public Service Tribunal, Lucknow and others 2001 (2) AWC 983, this Court, Hon'ble M. Katju and Onkareshwar Bhatt, JJ. decided on 19th February, 2001, the Writ Petition No. 1722 of 1999 where the Petitioner a confirmed police constable had consumed liquor in the night, was charge-sheeted and after inquiry was dismissed from service. 13. In Sahdev Singh v. U.P. Public Service Tribunal, Lucknow and others 2001 (2) AWC 983, this Court, Hon'ble M. Katju and Onkareshwar Bhatt, JJ. decided on 19th February, 2001, the Writ Petition No. 1722 of 1999 where the Petitioner a confirmed police constable had consumed liquor in the night, was charge-sheeted and after inquiry was dismissed from service. His appeal was rejected and his claim petition before U.P. Public Service Tribunal was also dismissed. In writ petition this Court has observed that before the Tribunal neither the Petitioner has said anything in his defence nor produced any witness but prayed for forgiveness and assured that he will not commit such act again in future. In these circumstances, this Court had indicated that a lenient view should be taken against the Petitioner and for awarding some lesser punishment taking in view the sense of Shakespeares Merchant of Venice, justice should be tempered with mercy. In these circumstances the Court has found the punishment of dismissal is too harsh and set aside the order of dismissal and directed the Petitioner to be reinstated in service with 25% of the back wages from the date of the dismissal to the date of reinstatement. 14. In Hussaini Vs. Hon. Chief Justice of High Court of Judicature at Allahabad and Others, AIR 1985 SC 75 . In this case, the Appellant was working as a sweeper and was placed under suspension for derogation of duty and was dismissed from service after inquiry. At the time of dismissal he had rendered service over 20 years and was denied retirement benefits such as pension, provident fund and gratuity to which he would have been entitled if he was compulsorily retired from service. The Supreme Court has observed that the Appellant was a low paid Government servant, therefore, the order of punishment of dismissal might have been converted into compulsory retirement on compassionate ground so that the Appellant may get retiral benefits and the Supreme Court observed that the Appellant was a low paid safai jamadar. We do not propose to minimise the gravity of his misconduct for which the High Court thought fit to impose maximum punishment of dismissal from service simultaneously denying him all retiral benefits. We do not propose to minimise the gravity of his misconduct for which the High Court thought fit to impose maximum punishment of dismissal from service simultaneously denying him all retiral benefits. Without in any manner detracting from the view taken by the High Court we are of the opinion that there is some scope for taking a little lenient view in the matter of punishment awarded to the Appellant. The lenience if at all would render the post-dismissal life of the low paid employee a little tolerable and keep him away from the penury destitution. 15. In Union of India and Ors. v. Giriraj Sharma AIR 1994 SC 604, it was held that the punishment of dismissal for over-staying the period of 12 days, on account of unexpected circumstances which have not been controverted in the counter is harsh since the circumstances show that it was not his intention to wilfully flout the order, but the circumstances forced him to do so. It was open to the authority to visit him with a minor penalty, but the major penalty of dismissal from service was not called for. 16. In Union of India and others Vs. Giriraj Sharma, AIR 1994 SC 215 . In this case the Respondent who was deputed to undergo a course as an electrician sought leave for 10 days which he was granted and while on leave he sent a telegram for extension of leave for 12 days, which request was rejected, however, the Respondent joined duty after over-staying period of 12 days and for this misdemeanour his services came to be terminated and his departmental appeal and revision were also rejected, whereupon he filed a writ petition in the High Court challenging the order of termination and the writ petition was allowed with a direction to reinstate his service with all monetary and other service benefits. The Supreme Court did not find merit in the appeal preferred by Union of India but has been pleased to modify the order of the High Court by stating that as there as no wilful intention to flout the order on the part of the Respondent and punishment was treated to be harsh and disproportionate, therefore, relief with monetary benefits was granted to the minor punishment. 17. In State of Punjab and others Vs. 17. In State of Punjab and others Vs. Bakhshish Singh, AIR 1997 SC 2696 , where the Respondent a police constable was dismissed on account of absence without leave from 7.11.1986 to 1.3.1988. The disciplinary rules applicable to him provided that dismissal could be resorted to, if there was a "gravest act of misconduct". The trial court dismissed the suit but the appellate court remanded the matter for reconsideration by the trial court on the point of punishment. It was held by the Supreme Court that it is for the disciplinary authority to pass appropriate punishment ; the civil court cannot substitute its own view to that of the disciplinary as well as the appellate authority on the nature of the punishment to be imposed upon the delinquent officer. The appellate court, in view of its own findings, that the Respondent's conduct was grave, ought not have interfered with the decree of trial court. 18. In U.P. S.R.T.C. and Others Vs. Har Narain Singh and Others, (1998) 9 SCC 220 , where a disciplinary enquiry was held against the Respondent who was a bus conductor in the Appellant's Corporation. The Assistant Regional Manager of the Appellant himself conducted the enquiry and found that the charges against the Respondent are proved and issued a show cause notice on the punishment and after considering the reply of the Respondent imposed a punishment of dismissal from service on the Respondent who preferred an appeal before the Regional Manager which too was dismissed. In claim before the Labour Tribunal held that it had no jurisdiction in the matter. Thereafter, the Respondent preferred a writ petition before the U.P. Public Services Tribunal at Lucknow and the Tribunal dismissed the writ petition and held that there is no illegality in the conduct of the enquiry and the enquiry officer cannot be said to be perverse or against merit on the record. Against this judgment of the Tribunal the Respondent filed writ petition before High Court where a single Judge of the High Court re-appreciated the evidence led in the enquiry and quashed the order passed by the Tribunal as also the order passed by the disciplinary authority. The Supreme Court has held that because the High Court was not sitting in appeal over the findings given by the disciplinary authority as such the re-examination of the evidence led in the disciplinary proceedings was not warranted. The Supreme Court has held that because the High Court was not sitting in appeal over the findings given by the disciplinary authority as such the re-examination of the evidence led in the disciplinary proceedings was not warranted. The impugned judgment and order of the High Court were set aside and the order of the Tribunal was restored. 19. In U.P. State Road Transport Corporation Vs. Subhash Chandra Sharma and Others, AIR 2000 SC 1163 , the delinquent driver Respondent of Corporation went in a drunken stage to the Assistant Cashier in the cash room, demanded money from him and on his refusal abused and threatened to assault him held was a serious charge of misconduct and the punishment of removal awarded after the said charge was found proved in a departmental enquiry. The said punishment by stopping and payment of 50% back wages. High Court found that the judgment of Allahabad High Court was arbitrary and was not justified. The Supreme Court found that the opinion of the High Court was erroneous in exercise of jurisdiction under Article 226 to correct the erroneous order of Labour Court as the punishment of removal was not stood as disproportionate and in order to arrive at such decision the Supreme Court consider the following judgment of the High Court in B.C. Chaturvedi Vs. Union of India and others, AIR 1996 SC 484 ; Colour-Chem Limited Vs. A.L. Alaspurkar and Others, AIR 1998 SC 948 ; and Hind Construction and Engineering Co. Ltd. Vs. Their Workmen, AIR 1965 SC 917 . However, the Supreme Court in 2000 (2) UPLBEC 1195 , in another case of U.P. State Road Transport Corporation and Ors. v. Mahesh Kumar Mishra and others, while considering the B.C. Chaturvedi's case (supra) and Colour Chem Ltd. (supra) and also in reference to the Civil Appeal No. 9754 of 1995, arising out of SLP (C) No. 1960 of 1994 U.P. State Road Transport Corpn. and Anr. v. Om Prakash Pandey, in which the order of High Court by which interference was made with the punishment inflicted upon the delinquent employee of the Corporation was set aside. In Mahesh Kumar Misra the Supreme Court has interfered with the quantum of punishment inflicted by the Disciplinary Authority. and Anr. v. Om Prakash Pandey, in which the order of High Court by which interference was made with the punishment inflicted upon the delinquent employee of the Corporation was set aside. In Mahesh Kumar Misra the Supreme Court has interfered with the quantum of punishment inflicted by the Disciplinary Authority. The conductor of local city bus was dismissed from service on the allegations that all passengers were without tickets and on the dispute whether the passengers boarded at the High Court or Zero Road and what tickets should be charged and what rate. In domestic enquiry no passenger was examined. In these condition the punishment on the face of highly and interference of the High Court in the quantum of punishment of dismissal was found to be justified. It was held by the Supreme Court that the punishment must be commensurate to the offence vide Sardar Singh v. Union of India AIR 1992 SC 417 . In Girija Shanker Singh v. General Manager, U.P.S.R.T.C.-II, Varanasi and another (1992) 2 UPLBEC 851, this Court (Hon'ble M. Katju, J.) has interfered in the quantum of punishment of termination and directed for reinstatement of Petitioner on the charge of coming late while deployed on to operate the bus and refusing to operate the bus and using insulting language to the A.R.M. and the punishment was concurrently approved by the enquiry officer, disciplinary authority and appellate authority. On finding the punishment is not consonance to the allegations and charges the same was directed and the authorities were directed to pass lessor punishment. 20. In U.P.S.R.T.C. v. Basudev Chaudhary and Anr., where the conductor worked in the corporation recovered fair at higher rate and entered in the bills at lower rate per head passenger and the manipulation in the fair for such misconduct and attempt to cause loss of money to the corporation. The offence was treated to be in serious nature and punishment of removal held to be justified and not disproportionate. The Supreme Court in Basudev Chaudhary has distinguished the case of Bhagat Ram Vs. State of Himachal Pradesh and Others, AIR 1983 SC 454 and Gulzar v. State of Punjab, 1986 Suppl. SCC 738. The offence was treated to be in serious nature and punishment of removal held to be justified and not disproportionate. The Supreme Court in Basudev Chaudhary has distinguished the case of Bhagat Ram Vs. State of Himachal Pradesh and Others, AIR 1983 SC 454 and Gulzar v. State of Punjab, 1986 Suppl. SCC 738. In Municipal Committee Bahadurgarh v. Krishna Bihari and others 1996 SCC 539 ,where the Respondent was convicted u/s 468, I.P.C. by criminal court for committing forgery and the Municipal Committee imposed punishment of dismissal which was reduced to stoppage of four increments by Director of Local Bodies and appeal to the Commissioner preferred by Municipal Committee the same was dismissed and writ petition filed by the Municipal Committee. In these circumstances Civil Appeal preferred by the Municipal Committee before the Supreme Court while upholding the punishment of dismissal has observed that the amount misappropriate may be small or large it is the act of misappropriation, i.e., relevant, therefore, the punishment was not to be interfered with. In Bhagwan Krishna Pandey, Meerut v. U.P.S.R.T.C. Meerut 2002 (1) UPLBEC 82, where dismissal of bus conductor for carrying eight passengers without tickets in a bus and for not collecting proper fair from the passengers, the punishment of dismissal indicated by the Enquiry Officer and affirmed by the disciplinary authority was found to be disproportionate directing the authorities replacing the punishment by a minor punishment, however, this case cannot be applied. In the facts of the case as the High Court in Bhagwan Krishna Pandey has failed to received proposed punishment was under challenge shockingly disproportionate. 21. In State of U.P. and Ors. v. Ramakant Yadav 2002 (3) UPLBEC 2799, (Hon'ble G.B. Pattanayak and H.K. Sema, JJ.) the view of the High Court in not interfering with the punishment was an error where the constable for the alleged charge of sleeping in duty to guard armoury was on an inquiry found to be guilty and dismissed by the disciplinary authority and affirmed by the U.P. Public Services Tribunal such dismissal was interfered on preferring the writ petition. The High Court had interfered in the said punishment of dismissal with an observation that the finding of guilt is not a finding of fact and High Court has no jurisdiction to interfere in the finding and indicated that the punishment was disproportionate and was set aside the dismissal of the order with direction to reinstatement of the Petitioner with a payment of 50% back wages. 22. In Director General, R.P.F. v. Ch. Sai Babu 2003 (1) UPLBEC 566 (Hon. Shivaraj V. Patil and Arijit Pasayat, JJ.), where quantum of punishment from removal from service imposed for the alleged charges under Rule 153 of Railway Protection Force Rules, 1987, was found proved by the enquiry report and affirmed by the disciplinary authority as well as appellate/revisional authority and the same was interfered with by the High Court by substituting dismissal from stoppage of increment with cumulative effect and reinstatement of the Petitioner the decision of the High Court interfering in the punishment of removal on the ground of shockingly disproportionate was not found justifiable by the Supreme Court as it was not supported by recording of reasons. 23. In State of Rajasthan and Others Vs. Sujata Malhotra, (2003) 9 SCC 286 , (Hon. G.B. Pattanaik and Brijesh Kumar JJ.), where the Respondent absented from 1983 to 1987 and departmental inquiry was initiated and termination order was passed. The High Court found the punishment was grossly disproportionate and set aside the termination and reinstated the writ Petitioner with 50% of back wages, in these circumstances the Supreme Court has observed that the High Court should not have interfered with the punishment however since the reinstatement had taken place that order was not touched and the Respondent employee did not get back wages and the period of absence were treated for retirement benefits but not for pecuniary benefits. 24. In Regional Manager, U.P.S.R.T.C., Etawah and Others Vs. 24. In Regional Manager, U.P.S.R.T.C., Etawah and Others Vs. Hoti Lal and Another, AIR 2003 SC 1462 , (Hon.Shivaraj V. Patil and Arijit Pasayat, JJ.) where the Respondent employee conductor for dereliction of duty, for violation of employment code and misappro-priation and extraction of money from the passenger for not issuing the tickets was enquired into by a retired District Judge and was found guilty and was terminated, which was affirmed by appellate authority, the punishment too was affirmed by single Judge of High Court, however, Division Bench of the High Court set aside the order of termination leaving it open to the employer to award other punishment except termination or compulsory retirement while allowing the appeal of U.P.S.R.T.C. in those circumstances the Supreme Court held that High Court Division Bench has not recorded any reason for consideration of disproportionate punishment and as such there was denial of justice and mere statement that the punishment is disproportionate was not sufficient in cases where the persons deals with the public money or is engaged in financial transaction or acts in fiduciary capacity as such are to be dealt with by an iron hands. As such the order of the High Court (D.B.) was set aside and the dismissal order of the High Court (D.B.) was upheld. 25. In Chairman and Managing Director, United Commercial Bank and Others Vs. P.C. Kakkar, AIR 2003 SC 1571 , the Supreme Court (Hon. Shivaraj V. Patil and Arijit Pasayat, JJ.) has analysed, in the matter of quantum of punishment in respect of Respondent Bank Officer when he was found to be involved in financial irregularities, dereliction of duty, misappropriation of fund and whose service was dispensed with, however, the High Court found the charges proved, nevertheless accepted the plea of the Respondent employee and directed the Appellant Bank to impose lessor punishment without recording any reason as to why it considered the punishment to be disproportionate. The Supreme Court held that when the High Court finds that the punishment is shockingly disproportionate and could not meet the requirement of law, therefore, in the facts of the case since the charges against the Respondent employee were not in casual nature and was serious nature, therefore, the High Court was not justified in interfering the quantum of punishment and the matter was remitted to the High Court for fresh consideration only with regard to the quantum of punishment. 26. In Shri Panchanan Manna v. Indian Oil Corporation Haldia Midnapur and others 1996 (II) LLJ, the Calcutta High Court has found the scope of judicial review in analysing the disproportionate aspect of punishment inflicted upon the writ Petitioner for the misconduct and the High Court, indicating the punishment should be commensurate with the nature of misconduct alleged upon. Similar view was taken by the High Court of Bombay in Abdullah A. Latif Shah v. Bombay Port Trust 1992 (I) LLJ. 27. In Chairman and Managing Director, United Commercial Bank and Others Vs. P.C. Kakkar, AIR 2003 SC 1571 (Hon.Shivaraj V. Patil and Arijit Pasayat, JJ) the observations made in paragraphs 7, 8, 10, 11, 12, 13 and 14 read as below: 7. Lord Greene said in 1948 in the famous Wednesbury (1948 (1) KB 223), case that when a statute gave discretion to an administrator to take a decision, the scope of judicial review would remain limited. He said that interference was not permissible unless one or the other of the following conditions was satisfied, namely the order was contrary to law, or relevant factors were not considered, or the decision was one which no reasonable persons could have taken. These principles were consistently followed in U.P. and in India to judge the validity of administrative action. It is equally well known that in 1983. Lord Diplock in Council for Civil Services Union v. Minister of Civil Service (1983) 1 AC 768 , (called the CCSU case) summarised the principles of judicial review of administrative action as based upon one or other of the following viz. illegality, procedural irregularity and irrationality. He, however, opined that "proportionality" was a "future possibility". "8. In Om Kumar and Ors. illegality, procedural irregularity and irrationality. He, however, opined that "proportionality" was a "future possibility". "8. In Om Kumar and Ors. v. Union of India JT 2000 (Suppl 3) SC 92: 2001 (2) SCC 386 , this Court observed inter alia, as follows: The principle originated in Prussia in the nineteenth century and has since been adopted in Germany, France and other European countries. The European Court of Justice at Luxembourg and the European Court of Human Rights at Stasbourg have applied the principle while judging the validity of administrative action. But even long before that the Indian Supreme Court has applied the principle of "proportionality" to legislative action since 1950, as stated in detail below. By "proportionality," we mean the question whether, while regulating exercise of fundamental rights, the appropriate or least-restrictive, choice of measures has been made by the Legislature or the administrator so as to achieve the object of the legislation or the purpose of the administrative order as the case may be. Under the principle, the Court will see that the Legislature and the administrative authority "maintain a proper balance between the adverse effects which the legislation or the administrative order may have on the rights, liberties or interests of persons keeping in mind the purpose which they were intended to serve." The Legislature and the administrative authority are, however, given an area of discretion or a range of choices but as to whether the choice made infringes the rights excessively or not is for the Court. That is what is meant by proportionality. xxx xxx xxx xxx. The development of the principle of "strict scrutiny" or "proportionality" in administrative law in England is, however, recent Administrative action was traditionally being tested on Wednesbury grounds. But in the last few years, administrative action affecting the freedom of expression or liberty has been declared invalid in several cases applying the principle of "strict scrutiny". In the case of these freedoms, Wednesbury principles are no longer applied. The Courts in England could not expressly apply proportionately in the absence of the convention but tried to safeguard the rights zealously by treating the said rights as basic to the common law and the Courts then applied the strict scrutiny text. In the case of these freedoms, Wednesbury principles are no longer applied. The Courts in England could not expressly apply proportionately in the absence of the convention but tried to safeguard the rights zealously by treating the said rights as basic to the common law and the Courts then applied the strict scrutiny text. In the Spycatcher case Attorney General v. Guardian Newspapers Ltd. (No. 2) (1990) 1 AC 109 Lord Goff stated that there was no inconsistency between the convention and the common law. In Derbyshire County Council v. Times Newspapers Ltd. (1993) AC 534, Lord Keith treated freedom of expression as part of common law. Recently, in R. v. Secy. of State for Home Department, ex p. Simms (1999) 3 All ER 4000, the right of a prisoner to grant an interview to a journalist was upheld treating the right as part of the common law. Lord Hobhouse held that the policy of the administrator was disproportionate. The need for a more intense and anxious judicial scrutiny in administrative decisions which engage fundamental human rights was re-emphasised in R. v. Lord Saville ex p. (1999) 4 All ER 860 , at pp. 870, 872. In all these cases, the English Courts applied the "strict scrutiny" test rather than describe the test as one of "proportionality". But in any event, in respect of these rights "Wednesbury" rules has ceased to apply. However, the principle of "strict scrutiny" or "proportionality" and primary review came to be explained in R. v. Secy. of State for the Home Deptt. Ex p. Brind (1991) 1 AC 696 .That case related to directions given by the Home Secretary under the Broadcasting Act, 1981, requiring BBC and IBA to refrain from broadcasting certain matters through persons who represented organisations which were prescribed under legislation concerning the prevention of terrorism. The extent of prohibition was linked with the direct statement made by the members of the organisations. It did not however, for example, preclude the broadcasting by such persons through the medium of a film provided there was a 'voice-over' account, paraphrasing what they said. The applicant's claim was based directly on the European Convention of Human Rights. Lord Bridge noticed that the convention rights were not still expressly engrafted into English law but stated that freedom of expression was basic to the Common law and that even in the absence of the Convention. The applicant's claim was based directly on the European Convention of Human Rights. Lord Bridge noticed that the convention rights were not still expressly engrafted into English law but stated that freedom of expression was basic to the Common law and that even in the absence of the Convention. English Courts could go into the question (see p. 748-49). ....whether the Secretary of State, in the exercise of his discretion, could reasonably impose the restriction he has imposed on the broadcasting organisations "and that the Court were" not perfectly entitled to start from the premise that any restriction of the right to freedom of expression requires to be justified and nothing less than an important public interest will be sufficient to justify it. Lord Templeman also said in the above case that the Courts could go into the question whether a reasonable Minister could reasonably have concluded that the interference with this freedom was justifiable. He said that "in terms of the Convention " any such interference must be both necessary and proportionate (ibid pp 750-51). In the famous passage, the seeds of the principle of primary and secondary review by Courts were planted in the administrative law by Lord Bridge in the Brind case (1991) 1 AC 696 . Where convention rights were in question the Courts could exercise a right of primary review. However, the Courts would exercise a right of secondary review based only on Wednesbury principles in case not affecting the rights under the convention. Adverting to cases where fundamental freedoms were not invoked and where administrative action was questioned, it was said that the Courts were then confined only to a secondary review while the primary decision would be with the administrator. Lord Bridge explained the primary and secondary review as follows: The primary judgment as to whether the particular competing public interest justifying the particular restriction imposed falls to be made by the Secretary of State to whom Parliament has entrusted the discretion. But, we are entitled to exercise a secondary judgment by asking whether a reasonable Secretary of State, on the material before him, could reasonably make the primary judgment. But, we are entitled to exercise a secondary judgment by asking whether a reasonable Secretary of State, on the material before him, could reasonably make the primary judgment. But when an administrative action is challenged "arbitrary" under Article 14 on the basis of Royappa, ( 1974 (2) SCR 348 (as in cases where punishments in disciplinary cases are challenged), the question will be whether the administrative order is "rational" or "reasonable" and the test then is the Wednesbury test. The Courts would then be confined only to a secondary role and will only have to see whether the administrator has done well in his primary role, whether he has acted illegally or has omitted relevant factors into consideration or whether his view is one which no reasonable person could have taken. If his action does not satisfy these rules, it is to be treated as arbitrary. In G.B. Mahajan and others Vs. The Jalgaon Municipal Council and others, AIR 1991 SC 1153 , Venkatachalia,J. (as he then was) pointed out that "reasonableness" of the administrator under Article 14 in the context of administrative law has to be judged from the stand point of Wednesbury rules. In Tata Cellular v. Union of India JT 1994 (4) SC 532 ; Indian Express Newspapers Bombay (P) Ltd. v. Union of India 1985 (2) SCR 287 ; Supreme Court Employees' Welfare Association and Others Vs. Union of India (UOI) and Another, AIR 1990 SC 334 and U.P. Financial Corporation Vs. Gem Cap (India) Pvt. Ltd. and Others, AIR 1993 SC 1435 , while judging whether the administrative action is "arbitrary" under Article 14 (i.e. otherwise than being discriminatory), this Court has confined itself to a Wednesbury review always. The principles explained in the last preceding paragraph in respect of Article 14 are now to be applied here where the question of "arbitrariness" of the order of punishment is questioned under Article 14. xxx xxx xxx xxx Thus, from the above principles and decided cases, it must be held that whether an administrative decision relating to punishment in disciplinary cases is questioned as "arbitrary" under Article 14, the Court is confined to Wednesbury principles as a secondary reviewing authority. The Court will not apply proportionality as a primary reviewing Court because no issue of fundamental freedoms nor of discrimination under Article 14 applies in such a context. The Court will not apply proportionality as a primary reviewing Court because no issue of fundamental freedoms nor of discrimination under Article 14 applies in such a context. The Court while reviewing punishment and if it is satisfied that Wednesbury principles are violated, it has normally to remit the matter to the administrator for a fresh decision as to the quantum of punishment. Only in rare cases where there has been long delay in the time taken by the disciplinary proceedings and in the time taken in the Courts, and such extreme or rare cases can the Court substitute its own view as to the quantum of punishment. 10. In Union of India and another Vs. G. Ganayutham (Dead) by LRs., AIR 1997 SC 3387 , this Court summed up the position relating to proportionality in paragraphs 31 and 32 which reads as follows: "The current position of proportionality in administrative law in England and India can be summarised as follows: (1) To judge the validity of any administrative order or statutory discretion, normally the Wednesbury test is to be applied to find out if the decision was illegal or suffered from procedural improprieties or was one which no sensible decision-maker could, on the material before him and within the framework of law have arrived at. The Court would consider whether relevant matters had not been taken into account or whether irrelevant matters had been taken into account or whether the action was not bona fide. The Court would also consider whether the decision was absurd or perverse. The Court would not however go into the correctness of the choice made by the administrator amongst the various alternatives open to him. Nor could the Court substitute its decision to that of the administrator. This is the Wednesbury (1948 1 KB 223) test. (2) The Court would not interfere with the administrator's decision unless it was illegal or suffered from procedural impropriety or was irrational-in the sense that it was in outrageous defiance of logic or moral standards. The possibility of other tests, including proportionality being brought into English administrative law in future is not ruled out. These are the CCSU 1985 AC 374 principles. The possibility of other tests, including proportionality being brought into English administrative law in future is not ruled out. These are the CCSU 1985 AC 374 principles. (3) (a) As per Bugdaycay 1987 AC 514 ; Brind ( 1991 (1) AC 696 ) and Smith 1996 (1) All ER 257 as long as the Convention is not incorporated into English law, the English Courts merely exercise a secondary judgment to find out if the decision-maker could have on the material before him, arrived at the primary judgment in the manner he has done. (3) (b) If the convention is incorporated in England making available the principle of proportionality, then the English Courts will render primary judgment on the validity of the administrative action and find out if the restriction is disproportionate or excessive or is not based upon a fair balancing of the fundamental freedom and the need for the restriction thereupon." 11. The common thread running though in all these decisions is that the Court should not interfere with the administrator's decision unless it was illogical or suffers from procedural impropriety or was shocking to the conscience of the Court, in the sense that it was in defiance of logic or moral standards. In view of what has been stated in the Wednesbury's case (supra), the Court would not go into the correctness of the choice made by the administrator open to him and the Court should not substitute its decision to that of the administrator. The scope of judicial review is limited to the deficiency in decision-making process and not the decision. 12. To put difference unless the punishment imposed by the disciplinary authority or the appellate authority shocks the conscience of the Court/Tribunal, there is no scope for interference. Further to certain litigation it may, in exceptional and rare cases, impose appropriate punishment by recording cogent reasons in support thereof. In a normal course if the punishment imposed is shockingly disproportionate, it would be appropriate to direct the disciplinary authority or the appellate authority to reconsider the penalty imposed. 13. In the case at hand the High Court did not record any reason as to how and why it found the punishment shockingly disproportionate. Even there is no discussion on this aspect. The only discernible reason was the punishment awarded in M.L. Keshwani's case. As was observed by this Court in Balbir Chand Vs. 13. In the case at hand the High Court did not record any reason as to how and why it found the punishment shockingly disproportionate. Even there is no discussion on this aspect. The only discernible reason was the punishment awarded in M.L. Keshwani's case. As was observed by this Court in Balbir Chand Vs. Food Corporation of India Ltd. and others, AIR 1997 SC 2229 , even if a co-delinquent is given lesser punishment, it cannot be a ground for interference. Even such a plea was not available to be given credence as the allegations were contextually different. 14. A bank officer is required to exercise higher standards of honesty and integrity. He deals with money of the depositors and the customers. Every officer/ employee of the bank is required to all possible steps to protect the interests of the bank and to discharge his duties with utmost integrity, honesty, devotion and diligence and to do nothing which is unbecoming of a bank officer. Good conduct and discipline are inseparable from the functioning of every officer/employee of the bank. As was observed by this Court in Disciplinary Authority-cum-Regional Manager and Others Vs. Nikunja Bihari Patnaik, (1996) 9 SCC 69 , it is no defence available to say that there was no loss or profit resulted in case, when the officer/employee acted without authority. The very discipline of an organisation more particularly a bank is dependent upon each of its officers and officers acting and operating within their allotted sphere. Acting beyond one's authority is by itself a breach of discipline and is a misconduct. The charges against the employee were not casual in nature and were serious. These aspects do not appear to have been kept in view by the High Court. 28. In the facts and circumstances, it appears that though the charges against the Petitioner is proved, however, keeping in view the charges against the Petitioner the quantum of punishment is not proportionate to the allegations because the charges were that the Petitioner was absent from duty from 28.6.93 to 12.7.93, for which a definite and specific charges were framed against the Petitioner which was replied by the Petitioner. If the reply was not satisfactory, the Petitioner was to be awarded punishment keeping in view the only charges alleged in the charge-sheet dated 16.8.93 which was subject matter of inquiry and not to keep in the background the earlier observations dated 1/3.4.89 of the former District Judge Sri D. R. Singh, which was not a subject-matter of inquiry and under the impression of his previous conduct and performance the punishment given by the order dated 30.3.94 was not justifiable. For these reasons, the punishment is shockingly disproportionate and would not meet the requirement of law. 29. In these circumstances, the order dated 30.3.94 and 20.9.96 are set aside and the District Judge, Jalaun at Orai is directed to consider the Petitioner's case again in respect of awarding the lesser punishment of any kind or compulsory retirement or other than the dismissal. Such decision has to be taken before 31st of October, 2003. 30. In view of the above observations, writ petition is partly allowed. No order as to costs.