R. B. MISRA, J. Heard Sri Ashok Khare, learned Senior Advocate assisted by Sri L. K. Dwivedi, learned Counsel for the petitioner, and Sri N. P. Shukla, learned Counsel for Union of India and other respondents. Since, in this case counter-affidavit and rejoinder-affidavit have already been exchanged and pleadings are complete, therefore, with the consent of learned Counsels for the parties this writ petition is decided finally at this stage in view of the Second proviso to Rule-2 of Chapter-XXIl of the Allahabad High Court Rules, 1952. 2. In this petition prayer has been made to quash the order dated 17-10-1997 (Annexure-9 to the writ petition) rejecting the representation of the petitioner and order dated 26-8-1997 (Annexure-8 to the writ petition) rejecting appeal of the petitioner and also the order dated 7-7-1997 (Annexure-7 to the writ petition) passed by the respondent No. 3, whereby the petitioner was removed from service. 3. Undisputed facts revealed from the pleadings of the parties are that the petitioner was recruited as a Constable in Central Reserve Police Force in July, 1991 and was given No. 910920584 as a Constable and after completion of his basic training he reported in 20 Bn. Central Reserve Police Force on 8-2-1993. On 14-12-1996 the petitioner was detailed to proceed on a movement for collection of ammunition alongwith four other personnel under the command of Sub-Inspection Kripa Shanker Mishra. The collection/escort party reached CWS, Rampur on 18-12-1996 about 1100 hours and the petitioner absented from Rampur on 22-12-1996 about 2300 hours. After collecting ammunitions the said collection party left Rampur on 23-12-1996 at 1630 house, however, the petitioner reported at TC Jammu on 26-12-1996 at his own, such act of petitioner was treated an act of neglect of duty under Section 11 (1) of Central Reserve Police Force Act, 1949 (in short called act hereinafter) prejudicial to the good order of the Force. On reaching Battalion Headquarters, the petitioner was placed under suspension by Commandant with effect from 3-1-1997 by Office Order No. P VIII-1/ 97-20 EC-II, dated 3- 1-1997 and subsequently for conducting a departmental inquiry the petitioner was served with the memo of charges vide Memo No. P. VIII-1/97-20-EC-II, dated 11-1-1997. On reaching Battalion Headquarters, the petitioner was placed under suspension by Commandant with effect from 3-1-1997 by Office Order No. P VIII-1/ 97-20 EC-II, dated 3- 1-1997 and subsequently for conducting a departmental inquiry the petitioner was served with the memo of charges vide Memo No. P. VIII-1/97-20-EC-II, dated 11-1-1997. Consequently, in the departmental inquiry conducted as per the procedure prescribed under the act and Rules by the Inquiry Officer and the delinquent after providing ample time to defend his case, the inquiry report was submitted and keeping in view all pros and cons of the case the petitioner was removed from service w. e. f. 9-7-1997 (AN) vide Office order P. VIII. 2/97-20-EC-II, dated 7-7-1997. Aggrieved with the said order an appeal preferred to the Deputy Inspector General of Police, CRPF Srinagar (now Jammu) was rejected on 26-8-1997. 4. According to the petitioner, in the utter necessity when he heard that the wife of the petitioner had fallen ill seriously and no person responsible was to take care of her, he proceeded to his native place after taking oral permission of the Commandant Sri K. N. Mishra and suo-moto the petitioner again joined the destination at Jammu on 26-12-1996 and neither endeavoured to flout the specific direction of the Commandant nor acted any way, which could amount desertion as provided under Rule-31 of the act. According to the petitioner in compelling circumstances the documentary support could not be produced in reference to the oral permission obtained from Commandant to visit home. According to the petitioner the punishment as awarded in reference to Section 11 (1) of the act was not required to be given to the petitioner, as the petitioner has not deliberately attempted to flout or has done anything, which may amount heinous offence, and as such the punishment of removal awarded by the respondents for absence of only three days is disproportionate to the charges, which may shock the conscience of the Court in the facts and circumstances of the case. 5. On the other hand learned Counsel for the respondents has indicated that the petitioner being a member of the disciplined force cannot be allowed to be absent without prior permission of the Commandant, more so, without any documentary proof or evidence his stand cannot be relied upon. 5. On the other hand learned Counsel for the respondents has indicated that the petitioner being a member of the disciplined force cannot be allowed to be absent without prior permission of the Commandant, more so, without any documentary proof or evidence his stand cannot be relied upon. According to Sri N. P. Shukla, learned Counsel for the respondents, the punishment awarded in reference to Section 11 (1) of the act could be given in addition to the dismissal of the petitioner and in the facts and circumstances when there is no procedural latches in the inquiry, the punishment awarded against the petitioner is justified. 6. In [ 2002 (2) LBESR 548 (All) : (2002) 2 U. P. L. B. E. C. 1871)], Mirza Barket Ali v. Inspector General of Police, Allahabad & Ors. 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 allegations and directed for awarding lessor punishment. It is necessary to analyse as follows in respect of discretion of the disciplinary authority while imposing the punishment, as- (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 jeopardizing 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 v. State of Gujarat, (1979) I L. L. J. 339 (Guj ). 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. [ansarali Rakshak v. Union of India, 1984 Lab. I. C. (NOC) 73 (Bom)]. 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. [ansarali Rakshak v. Union of India, 1984 Lab. I. C. (NOC) 73 (Bom)]. (B) Ordinarily the Court or tribunal cannot interfere with the discretion of the punishing authority in imposing particular penalty but this rule is an 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 in such conditions was held not to be disproportionate as the constable was guilty of gravest misconduct. State of Punjab v. Ex. Constable Ram Singh, (1992) 4 SCC 54 . (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. P. Katarki v. State of Karnataka, AIR 1991 SC 1241 ; 1991 Supp (1) SCC 267. In another case when the employee had 29 years of unblemished record and Public Service Commission on consultation had not agreed to the proposal of dismissal, however 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 was converted to compulsory retirement so that the widow could get the appropriate financial benefit. Kartar Singh Grewal v. State of Punjab, AIR 1991 SC 1067 ; (1991) 2 SCC 635 . The Supreme Court could exercise power of judicial review or 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, as could be seen from the decision of the Supreme Court in Bank of India v. Samarendra Kishore Endow, 1994 (2) SCC 537 , where it was held that if the punishment is 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 in Samarendra Kishore Endows case (supra) 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 v. State of H. P. is no authority, (1983) 2 SCC 442 ; 1983 SCC (L&s) 454, 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 Rams case exercised the jurisdiction under Article 136 of the Constitution. The Supreme Court in Bhagat Rams case exercised the jurisdiction under Article 136 of the Constitution. The High Court or the Tribunal has no such power" (D) The three Judges Bench judgment of the Supreme Court in B. C. Chaturvedi v. Union of India, 1996 (1) LBESR 424 (SC) : (1995) 6 SCC 749 , has to some extent modified the view expressed in Samarendra Kishore Endows case by holding that even though the High Court/tribunal, while exercising the power of judicial review cannot normally substitute their own conclusive on penalty and impose some other penalty, however 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 may shorten the same itself, in exceptional and rare cases, imposing appropriate punishment with recording reasons in support thereof. (E) The decision of B. C. Chaturvedis case has also been reiterated by the Supreme Court in Union of India v. G. Ganayuthan, AIR 1997 SC 3387 ; (1997) 7 SCC 463 . In that case, the Government employee whose disciplinary enquiry was continued even after retirement and a penalty of curtailing 50% pension and gratuity was imposed over him, however when he moved to the Central Administrative Tribunal, which held that gratuity not being part of pension cannot be curtailed and modified and the deduction of pension was indicated for a limited period. In appeal 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 is 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 v. Rangachary, 1994 Supp (2) SCC 479. (G) A member of the Central Reserve Police for overstaying the leave for twelve years for which he had sufficient reason and had no intention to willfully disobey the order was, however, 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 reinstating him with all consequential benefit and the Supreme Court in appeal has held that the punishment of dismissal was harsh and indicated for the reinstatement of writ petitioner in service giving liberty to the Government to impose any minor penalty for the misconduct in question. [union of India v. Giriraj Sharma, AIR 1994 SC 215 ; 1994 Supp (3) SCC 755; (1994) I L. L. J. 604]. (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 straight jacket 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 v. Union of India, (1995) 6 SCC 157 . When subsequent to promotion as Inspector the Police Officer failed to deposit his service revolver and six live centisides, the Supreme Court has held that penalty of dismissal is too harsh when his previous records were unblemished and at the relevant time he was sharing a room with two colleagues. When subsequent to promotion as Inspector the Police Officer failed to deposit his service revolver and six live centisides, the Supreme Court has held that penalty of dismissal is too harsh when his previous records were unblemished and at the relevant time he was sharing a room with two colleagues. So, the Supreme Court substituted the penalty to compulsory retirement. Mehanga Singh v. I. G. of Police, 1996 (1) LBESR 214 (SC) : (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 v. State of T. N. , 1997 (1) LBESR 111 (SC) : (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. 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 to not to have interfered with the degree passed by the Trial Court dismissing the suit. State of Punjab v. Bakshi Singh, 1997 (2) LBESR 922 (SC) : AIR 1997 SC 2696 ; (1997) 6 SCC 381 ; 1997 (4) SLR 590. 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. Government of A. P. v. B. Ashok Kumar, 1997 (2) LBESR 563 (All) : AIR 1997 SC 2447 : (1997) 5 SCC 478 . (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. 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. Road Transport Corporation v. A. K. Parul, 2000 (3) LBESR 631 (SC) : Cal LT 1999 (1) SC 77. 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 v. H. Nagraj, (1998) 9 SCC 671 . 7. In 2001 (2) A. W. C. 983, Sahdev Singh v. U. P. Public Service Tribunal, Lucknow & Ors. , this Court, Honble M. Katju and Onkareshwar Bhatt, JJ. decided on 19th February, 2001 the writ petition No. 1722/99 where the petitioner a confirmed police constable hand 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 produce 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 view the sense of Shakespeares Merchant of venice, justice should be tempered with mercy. In these circumstances, this Court had indicated that a lenient view should be taken against the petitioner and for awarding some lesser punishment taking 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. 8. In (1985) I Supreme Court Cases 120, Hussaini v. Chief Justice of High Court of Judicature at Allahabad & Ors. , the appellant was working as a Sweeper and was placed under suspension for derogation of duty and was dismissed from service after enquiry. At the time of dismissal he had rendered service over 20 years and was denied retirement benefits such as pension, provident found 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 minimize 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. 9. In 1994 S. C. 604, Union of India & Ors. v. Giriraj Sharma, 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 willfully flout the order, but the circumstances forced him to do so. v. Giriraj Sharma, 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 willfully 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. 10. In A. I. R. 1994 SC 215, Union of India & Ors. v. Giriraj Sharma, the respondent who was deputed to undergo a course as an electrician sough leave for 1-0 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 misdemeanor 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 was no willful 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. 11. In 1997 (2) LBESR 922 (SC) : (1997) 6 Supreme Court Cases 381, State of Punjab & Ors. v. Bakhshish Singh, 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. 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 respondents conduct was grave, ought not have interfered with the decree of trial Court. 12. In 2000 (3) LBESR 644 (SC) : (1998) 9 S. C. C. 220, U. P. S. R. T. C. & Ors. v. Har Narain Singh & Ors. , where a disciplinary enquiry was held against the respondent who was a bus conductor in the appellants 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 from dismissal of 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 impugned judgment and order of the High Court were set aside and the order of the Tribunal was restored. 13. 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. 13. In 2000 (1) LBESR 1002 (SC) : (2000) 3 SCC 324 , U. P. State Road Transport Corporation v. Subash Chandra Sharma & Ors. , the delinquent driver respondent of Corporation went in a drunken state 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. Chuturvedi v. Union of India, 1996 (1) LBESR 424 (SC): (1995) 6 SCC 749 and Colour-Chem Ltd. v. A. L. Alaspurkar, (1998) 3 SCC 192 and Hind Construction & Engg. Co. Ltd. v. Workmen, AIR 1965 SC 917 . 14. However, the Supreme Court in 2000 (1) LBESR 1060 (SC) : 2000 (2) UPLBEC 1195 in another case of U. P. State Road Transport Corporation & Ors. v. Mahesh Kumar Mishra & Ors. , while considering the B. C. Chaturvedis 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. & 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. & 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 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. 15. It was held by the Supreme Court that the punishment must be commensurate to the offence vide Sardar Singh v. Union, AIR 1992 SC 417 . In (1992) 2 UPLBEC 851 Girija Shanker Singh v. General Manager U. P. S. R. T. C-II Varanasi & Anr. , this Court (Honble M. Katju, J.) has interfered in the quantum of punishment of termination and directed for reinstatement of petitioner on the charge of coming late 0 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. The finding the punishment is not consonance to the allegations and charges the same was directed and the authorities were directed to pass lessor punishment. 16. In 1998 SCC (L&s) 15, U. P. S. R. T. C. v. Basudev Chaudhary & 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 treaded to be in serious nature and punishment of removal held to be justified and not disproportionate. The Supreme Court in Basudev Chaudhary (supra) has distinguished the case of Bhagat Ram, 1983 442 and Gulzar v. State of Punjab, 1986 Suppl. SCC 738. In 1996 SCC (L & S) 539, Municipal Committee Bahadurgarh v. Krishna Bihari & Ors. The Supreme Court in Basudev Chaudhary (supra) has distinguished the case of Bhagat Ram, 1983 442 and Gulzar v. State of Punjab, 1986 Suppl. SCC 738. In 1996 SCC (L & S) 539, Municipal Committee Bahadurgarh v. Krishna Bihari & Ors. , where the respondent was convicted under Section 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 uphold 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 2002 (1) U. P. L. B. E. C. 82, Sri Bhagwan Krishna Pandey Meerut v. U. P. S. R. T. C. Meerut, where dismissal of Bus conductor for carrying eight passengers without tickets in a bus and for not collecting proper fair from the passenger, 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 receive proposed punishment was under challenged shockingly disproportionate. 17. In 2002 (3) UPLBEC 2799, (State of U. P. & Ors. v. Ramakant Yadav. (Honble G. B. Pattnayak and H. K. Sema, JJ.) the view of the High Court in not interfering the punishment was an error where the constable for the alleged charge of sleeping in duty to guard armoury was on an inquiry was 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. 18. In 2003 (1) LBESR 566 (SC) : 2003 (1) UPLBEC 566 (SC), Director General R. P. F. v. Ch. Sai Babu, (Honble Shivaraj V. Patil and Honble Arijit Pasayat, JJ.) where quantum of punishment from removal 1 from service imposed for the alleged charges under Rule 153 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. 19. In 2002 (2) LBESR 96 (SC) : 2002 (93) FLR 616 SC (Honble G. B. Pattanaik and Brijesh Kumar JJ.) State of Rajasthan & Ors. v. Sujata Malhotra, 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. 20. In J. T. 2003 (2) 27 (SC), Regional Manager UPSRTC Etawah v. O. P. Lal & Ors. 20. In J. T. 2003 (2) 27 (SC), Regional Manager UPSRTC Etawah v. O. P. Lal & Ors. , (Honble Shivaraj V. Patil and Arijit Pasayat, JJ.), where the respondent employee conductor for dereliction of duty, for violation of employment code and misappropriation 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 termination, 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. 21. In 2003 (1) LBESR 897 (SC) : J. T. 2003 (2) SC 78, Chairman and Managing Director, United Commercial Bank & Ors. v. P. C. Kakkar, the Supreme Court (Honble Shivaraj V. Patil & 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 respondent 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. 22. In 1996 (Vol. 2) LLJ, Shri Panchanan Manna v. Indian Oil Corporation Haldia Madinapur & Ors. , 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 Bombay in 1992 (Vol. 1) LLJ, Abdullah A Latif Shah v. Bombay Port Trust. 23. In 2003 (1) LBESR 897 (SC) : JT 2003 (2) SC 78, Chairman and Managing Director, United Commercial Bank & Ors. v. P. C. Kakkar, (Honble Shivaraj V. Patil & Arijit Pasayat, JJ.) the observations made in paragraphs 7, 8, 10, 11, 12, 13 and 14 read as below: " (7) Lord Greene said in 1048 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 the 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 & Ors. illegality, procedural irregularity and irrationality. He however, opined that "proportionality" was a "future possibility. " (8)" In Om Kumar & Ors. v. Union of India, JT 2000 (S3)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. xxxxx xxxxxx xxxxxx xxxxx 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 Jew 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 Spycatcher case Attorney General v. Guardian Newspapers Ltd. (No. 2), (1990)1 AC 109 (at pp. 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 (at pp. 283-284), Lord Goff slated 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 Deptt. , Exp. Simms, (1999) 3 All ER 4000 (HL), 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 Exp, (1999)4 All. ER 860 (CA), at pp. 870, 872 ). In all these case, the English Courts applied the "strict scrutiny" test rather than describe the lest 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. Exp. 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 applicants 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) ". . 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. Muhajan v. Jalgaon Municipal Council, JT 1991 (1) SC 605, Venkaiachalian, 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 at pp. 679-80), Indian Express Newspapers Bombay (P) Ltd. v. Union of India, 1985 (2) SCR 287 ; Supreme Court Employees Welfare Assn. v. Union of India, JT 1989 (3) SC 188 and U. P. Financial Corpn. v. Gem. Cup (India) (P) Ltd. , JT 1993 (2) SC 226, while judging whether the administrative action is "arbitrary" under Article 14 (i. e. otherwise then 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. xxxxx xxxxxx xxxxxx 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 Anr. v. G. Ganayuthan, JT 1997 (7) SC 572 : 1997 (7) SCC 463 , this Court summed up the position relating to proportionality in paragraphs 31 and 32 which reads as follows: 6 "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 administrators 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 through in all these decisions is that the Court should not interfere with the administrators 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 Wednesburys 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. " 7 " (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 it 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. Keshwanis case. " " (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. Keshwanis case. As was observed by this Court in Balbir Chanel v. Food Corporation of India Ltd. & Ors. , JT 1996 (11) SC 507 : 1997 (3) SCC 371 , 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 v. Nikunja Bihari Patnaik, 1996 (2) LBESR 141 (SC) : 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 ones 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. " 24. This Court by order dated 15-12-2003 passed in Civil Misc. Writ Petition No. 21133 of 1994, Harish Chandra Tewari v. State of U. P. & Ors. , has made observations, which are necessary for considering the cases of proportionality, as follows: " (29 ). . . . . . . . . . " 24. This Court by order dated 15-12-2003 passed in Civil Misc. Writ Petition No. 21133 of 1994, Harish Chandra Tewari v. State of U. P. & Ors. , has made observations, which are necessary for considering the cases of proportionality, as follows: " (29 ). . . . . . . . . . I find that the petitioner was given charge-sheet however it was not specified therein what type of misbehaviour was made by the petitioner, however it reflects that the petitioner has misbehaved and a charge-sheet was served and proper reply was filed. The competent authority has conducted the inquiry and the allegations and charges were found to be proved, however the Court is not going to sit over the finding of the authority. In the peculiar facts and circumstances, the Head Constable who was being questioned in the mess meeting had shown rough behaviour and misbehaved by using sub-standard words is not to be pardoned, however such action of punishment was taken in reference to the vagueness of the words and episode alleged to have been made during conversation of the petitioner where he alleged to have shown unusual behaviour which could utmost be a matter of unusual temperament and may not be so serious as the words spoken in the manner described did not comprise moral turpitude, embezzlement or any serious crime or any type of corruption. For an act or `word to constitute `crime or offence the same is to be specific. Likewise `abuse is word of wide connotation as saying one has molested or attacked the chastity or has inflicted injury on secret parts or organs are indicative of vagueness as such may not exclusively be sufficient for penal action under the provisions of Indian Penal Code. (30) The sweet and pleasing words spoken may bring peace, joy consolation or may on the hand create turmoil, anger or quarrel if same are abusive and below standard. The words are the consequential affect of thought process, idea, view, notion and ones own perception. The good and noble words are the ornament of human personality. Same words and language used sometimes are understood in a difference ways depending upon sense, frequency, tone facts, circumstances, and the place. The words are the consequential affect of thought process, idea, view, notion and ones own perception. The good and noble words are the ornament of human personality. Same words and language used sometimes are understood in a difference ways depending upon sense, frequency, tone facts, circumstances, and the place. There is no offence or illegality in calling an individual by taking/pronouncing ones caste or designation but by such calling an ordinary human being, unless one is enlightened one, might not take in good sense or might treat as discourteous or same might be unpleasant. The vices e. g. lust, anger, ego, greed infatuation, jealous, ignorance, selfishness is prevailing more or less in varying degree in every human being but by calling one individual greedy, angry or badman, an individual shall be perturbed as one is not ready to face the reality. The thing, act, or word taken, done or spoken without sense may create different impact e. g. if one is said by pronouncing non-sense or senseless though meaning is similar but both shall have different impact over the mind of an individual as the non-sense might be taken as abusive word and "senseless" as an adjective. Similarly using words "non-application of mind" on the part of some one, "did not apply mind by some one," "one is mindless" connote similar meaning but the impact are different. However, in present case what irrelevant words and allegations exactly were spoken by the petitioner is not on record or mentioned or defined, as such vagueness of allegations and words mitigate the degree of absurdity and alleged offence against the petitioner. (32) A review of the above legal position would establish that the disciplinary authority, and the appellate authority, being fact-finding authorities have exclusive power to consider the evidence with a view to maintain discipline. They are invested with a discretion to impose appropriate punishment keeping in view the magnitude or gravity of the misconduct. The High Court/tribunal, while exercising the power of judicial review, cannot normally substitute its own conclusion on penalty and impose some other penalty. If the punishment imposed by the disciplinary authority or the appellate authority is shockingly disproportional or shocks the conscience of the Court, it could either appropriately mould the relief or direct the disciplinary appellate authority to reconsider the penalty imposed, or to shorten the litigation. If the punishment imposed by the disciplinary authority or the appellate authority is shockingly disproportional or shocks the conscience of the Court, it could either appropriately mould the relief or direct the disciplinary appellate authority to reconsider the penalty imposed, or to shorten the litigation. It may itself, in exceptional and rarest cases, could impose appropriate punishment with cogent reasons in support thereof. Some times it so happens that some instance, act, functioning might create different impact or ramification in different situation and circumstances. For instance, if the person is charged for allegation of "sleeping on duty", the very same act i. e. sleeping by a Chaukidar or of armoury guard or by a driver while driving vehicle, watching at delicate place of storage of arms and ammunitions or at sensitive border may create definite different danger, affect, in case of eventualities or in consequent upon the alleged activity of an individual is also an essential ingredient for evaluating the quantum and magnitude to be taken into consideration while adjudicating the case of disproportionately as the same would also form a basis and parameter of testing activity in question as whether it is shocking the conscience of the Court. " 25. I have heard learned Counsels for the parties. I find that in the facts and circumstances, the petitioner being a Member of movement party under the command of Sri K. N. Mishra, S. I. , in utter urgency might have moved elsewhere and absented himself from duty, however, even if the oral and documentary evidence for his absence could not be produced, but at the appropriate time he reached at Jammu on 26-12-1996 and on his arrival at Jammu he was placed under suspension and inquiry was conducted. During inquiry though he could not justify the genuinity of his absence by supporting documents, but nothing adverse or anything could be noticed about behaviour or on his part during his three days absence, which may disprove his bona fide. During inquiry though he could not justify the genuinity of his absence by supporting documents, but nothing adverse or anything could be noticed about behaviour or on his part during his three days absence, which may disprove his bona fide. The inquiry was conducted properly according to the procedure, therefore, I do not find any latches on the part of the inquiry officer or in inquiry report, however, only in the prevailing circumstances for the reasons that for harmless absence of only three days the punishment as awarded to the petitioner is too harsh, as the petitioner was not habitual of making frequent absence from duty, and the circumstances might have compelled him not to get the written permission because hearing the news of his wife he rushed out of emotions, otherwise there was no occasion or scope to conduct the inquiry looking into the facts and circumstances. In view of the observations made above and for the reasons abovementioned, I find that the punishment as awarded to the petitioner is disproportionate to the allegations levelled against him, therefore, the above orders dated 17-10-1997, 26-8-1997 and 7-7-1997 (Annexures-9, 8 and 7 respectively to the writ petition) are not legally sustainable and, as such, these order, impugned in the present writ petition, are set aside and the Commandant is directed to consider the case of the petitioner for giving lesser punishment other than removal or dismissal of the petitioner from service in accordance with the relevant rules within a period of six months from the date or production of certified copy of this order in addition to the warning to be given to him. In respect of backwages no direction could be made, however, the authorities are at liberty to consider the case of the petitioner for giving backwages keeping in view of the facts and circumstances and shall pass appropriate order. In view of the above observations, the writ petition is disposed of. Matter return back for fresh disposal. .