S. R. NAYAK, J. ( 1 ) THE delinquent being aggrieved by the order of the Central Administrative Tribunal, bangalore Bench, Bangalore (for short, the Tribunal) dated 25th February, 2000 dismissing O. A. No. 854 of 1998 which was directed against the order of the respondent disciplinary authority imposing the penalty of removal from service as a disciplinary measure for the proven misconduct, has preferred this writ petition under Articles 226 and 227 of the Constitution of india. ( 2 ) LET us first briefly refer to the background facts leading to the filing of the O. A. before the tribunal: the petitioner was a Station Master Grade II at the relevant point of time. He was transferred from Bangalore Cantonment to Belandur station, and as per the instructions issued by the transferring authority he had to report for the duty at the new station on 07. 03. 1994. The petitioner went to Belandur railway station on 05. 03. 1994 and perused the Station Working rules ('swr', for short ). As the petitioner found certain anomalies in SWRs, he sent a letter as per Annexure-A. 1 dated 05. 03. 1994 to the 4th respondent pointing out certain anomalies for rectification. After the petitioner reported for duty on 07. 03. 1994 he was allowed to be trained for two days. On 09. 03. 1994 the incharge Station Master sent a message as per Annexure-A. 2 to the effect that the petitioner who had completed SWR training had become spare and was awaiting clarification over SWR anomaly raised by him in the letter dated 05. 03. 1994. The 4th respondent in reply thereto instructed that the petitioner should take up independent duty with due declaration, that the delay in taking up block duty would be treated as absence and that the correction to SWR would be done after a study by T1/rules as per Annexure-A. 3. The Station master incharge then reported to the 4th respondent that the petitioner was willing to take up duty without declaration in view of the anomalies stated by him and that when he is physically present he could not be treated absent and his services could be utilised for other duties which did not involve declaration as per Annexure-A. 4. It is stated that after exchange of some messages, the 4th respondent issued a message as per Annexure-A. 5. It is stated that after exchange of some messages, the 4th respondent issued a message as per Annexure-A. 5. It reads: "sri G. Rajan, SM/ii/blrr is not permitted to claim his attendance so long as he does not perform block duties at BLRR. Ensure by marking as absent in such cases". Notwithstanding the above message, the petitioner was not willing to give declaration as required under the relevant rules before assuming duties of the Station Master. When the matter stood thus, on 23. 04. 1994, the petitioner, however, gave the required declaration and assumed charge as Station Master. Of course, it is the case of the petitioner that he was coerced to give such declaration on 23. 04. 1994. ( 3 ) ON 22. 06. 1994, a Memorandum of charge was issued to the petitioner wherein it was alleged that he disobeyed the lawful orders given by his superiors and refused to take up independent duties of Station Master thereby violating GR 2. 06 (a) and (b) by absenting himself unauthorisedly from 13. 03. 1994 to 23. 04. 1994 and that he failed to abide by the terms of employment, disobeyed Subsidiary Rules, special instructions and departmental rules by which he was governed, thereby violating the provisions of Section 101 of the Indian Railways Act, 1989. The petitioner submitted his statement of defence denying the allegations. In the circumstance, the 6th respondent was appointed as the Enquiry Officer to conduct a regular departmental enquiry against the petitioner. ( 4 ) THE Enquiry Officer having conducted the enquiry and having appreciated the materials laid before him, concluded that the charges levelled against the petitioner are proved, the disciplinary authority on receipt of the enquiry report and taking into account the totality of the circumstances, the gravity of the misconduct committed by the petitioner, thought, it appropriate to impose penalty of removal from service as a disciplinary measure by passing the order on 13. 06. 1995-Annexure-R. 1. The appeal preferred by the petitioner against the said order of the disciplinary authority to the appellate authority also went in vain. That lead to the petitioner preferring O. A. No. 854 of 1998 before the Tribunal seeking quashing of the order of the disciplinary authority culminating in the imposition of penalty of removal from, service as a disciplinary measure. The Application was opposed by the respondent-authorities by filing a detailed reply statement. That lead to the petitioner preferring O. A. No. 854 of 1998 before the Tribunal seeking quashing of the order of the disciplinary authority culminating in the imposition of penalty of removal from, service as a disciplinary measure. The Application was opposed by the respondent-authorities by filing a detailed reply statement. ( 5 ) AS could be seen from the order of the Tribunal, on behalf of the petitioner delinquent, the following points are urged: " (1) Admittedly it was at the instance of the 5th respondent who was the Disciplinary Authority that the applicant was marked as; absent though the applicant was reporting for duties even after 13. 03. 1994, that the 4/5th respondent was in the position of a witness and he could not have acted as a Disciplinary Authority and passed the penalty advice. The Disciplinary Authority having issued the instructions to mark the applicant absent and after subsequently issuing the charge sheet was biased and that as such the order passed by him is vitiated. (2) The inquiry officer was also biased inasmuch as he had tried to support the charge which had been framed earlier and which charge sheet was subsequently withdrawn. The applicant had reasonable basis to apprehend bias on the part of the Inquiry Officer and as such the proceedings held by the 6th respondent are vitiated. In support of his contention that it is not necessary that actual bias should be made out and that it is sufficient if there is reasonable likelihood of bias, he relied on the decision of the Supreme Court in S. PARATHASARATHi v. STATE OF andhra PRADESH (1973 SCC (Lands) 580 ). (3) As per Sub-rule 12 of Rule 9 of the Railway Servants (Discipline and Appeal) Rules 1968 the inquiry had to be adjourned to a date not exceeding 30 days to enable the charged employee to adduce defence evidence. In this case, the Inquiry Officer has not fixed any date for defence evidence after the evidence of the witnesses in support of the charges were examined and no opportunity was given to the applicant to adduce defence evidence. (4) Admittedly the applicant was present and he had a justification in not giving the declaration without the anomalies pointed out by him being rectified. (4) Admittedly the applicant was present and he had a justification in not giving the declaration without the anomalies pointed out by him being rectified. He further pointed out that subsequently those SWRs have been replaced by fresh SWRs and this fact shows that the applicants' grievance was justified and in the circumstances, he could not held to have been unauthorisedly absent. (5) The report of the Inquiry Officer does not deal with the point at issue and the entire report is a thesis about what has to be done and it is his opinion as to how the work has to be done and that the report is, therefore perverse. (6) The Disciplinary Authority has not taken into consideration the evidence in the case to record his findings as required under Sub-rule 10 of Rule 9 of the Railway Servants (Discipline and appeal) Rules. (7) The Appellate and the Revisional Authorities have not dealt with the plea of bias raised by the applicant against the Disciplinary Authority and the Inquiry Officer and as such those orders are also vitiated. (8) Lastly he contended that it was only for bona fide reasons the applicant had not agreed to give the declaration though he was present in the station during the relevant period and that in the circumstances, the penalty of removal from service is wholly disproportionate to the gravity of the charges and as such the penalty will have to be set aside". The Tribunal having dealt with the matter and having appreciated the evidence on record, did not find merit in any of the contentions. In the result, the Tribunal dismissed the application by the impugned order. ( 6 ) WE have heard Sri K. Kasturi, Learned Senior Counsel for the petitioner assisted by Sri M. Raghavendra Achar, Learned Counsel on record and Sri Ashok Haranahalli, learned senior standing Counsel for the respondent-Department. ( 7 ) SRI K. Kasturi while assailing the validity of the impugned order of the Tribunal would contend (i) that the conduct of the petitioner with regard to which complaint is made by the disciplinary authority, in the facts and circumstances of the case, could never be regarded as a 'misconduct'; (ii) that the petitioner could not be deemed to have absented himself unauthorisedly between 13. 03. 1994 to 23. 04. 03. 1994 to 23. 04. 1994; (iii) that the petitioner was not under any legal obligation to sign statutory declaration as insisted by the appointing authority to his prejudice; (iv) that the 4th respondent is not the competent authority to pass the final order imposing penalty or removal as a disciplinary measure; (v) that the incumbent of the 4th respondent office viz. , Sri Madhukumar reddy having himself collected the evidence against the petitioner could not have passed the impugned order inasmuch as he was biased against the petitioner; and (vi) that the imposition of extreme penalty of removal from service against the petitioner, in the facts and circumstances of the case, is totally disproportionate to the gravity of the misconduct alleged and therefore, the court should step in and apply doctrine of proportionality to reduce the penalty. ( 8 ) SRI Ashok Haranahalli, learned standing Counsel for respondent 1 to 6, per contra, would support the impugned order of the Tribunal and would highlight that there is no merit in any of the contentions advanced on behalf of the petitioner. ( 9 ) HAVING heard the learned Counsel for the parties, we notice that some of the contentions now urged by Sri K. Kasturi were not addressed specifically for the decision-making before the tribunal. Be that as it may, we think it appropriate to deal with the contentions now urged by Sri k. Kasturi, learned senior Counsel. ( 10 ) THE contentions 1 to 3 could be dealt with together for the sake of convenience. It is trite that if an employee fails to perform the duty a attached to his office or disobeys a lawful order made by his employer without any legal justification, such conduct of the employee will be undeniably misconduct. Since the finding that may be recorded on point No. 1 would have a bearing on the decision-making on point Nos. 2 and 3, we proceed to examine whether the petitioner has had legal justification to disobey the order of the 4th respondent. No doubt the petitioner had pointed out certain deficiencies in the SWR but the fact remains that when these deficiencies were brought to the notice of the 4th respondent, he was advised to sign the declaration and assume the office of Station Master. No doubt the petitioner had pointed out certain deficiencies in the SWR but the fact remains that when these deficiencies were brought to the notice of the 4th respondent, he was advised to sign the declaration and assume the office of Station Master. The Petitioner refused to assume charge of the office and stuck to his stand that he would not sign the declaration. It is also highlights by the Department that such declaration is required to be signed not only by the Station Master but also all subordinate officials who man the station. It is also pointed out that the very petitioner in the past had signed such declaration whenever he was posted at various railway stations. Above all, it is pointed out by the higher tips in the administrative echelon that the deficiencies pointed out by the petitioner are not so substantial in nature warranting cessation of service. ( 11 ) WE find considerable force in the contention of Sri Ashok Haranahalli that if the services could be suspended at the behest of an employee like the petitioner, it would have far reaching and grave consequences in providing public utility service. However, Sri K. Kasturi would contend that if the petitioner did not insist the way he did and if there were to be any untoward incident by way of any accident, petitioner would have been hauled up and held responsible for such untoward incident. We do not wish to say anything with regard to whether such untoward incident could have happened, but, the fact remains that during the absence of the petitioner the station was manned by several others in shifts and it is everybody's case that nothing untoward incidents/accidents happened notwithstanding certain deficiencies pointed out by the writ petitioner. Be that as it may, even assuming that some untoward incidents/accidents were to happen and the disciplinary authority were to initiate disciplinary proceedings against the petitioner, he could have defended himself be referring to his report pointing out deficiencies and also the insistence made by the Department that notwithstanding the deficiencies he should report for duty and man the station. Be that as it may, even assuming that some untoward incidents/accidents were to happen and the disciplinary authority were to initiate disciplinary proceedings against the petitioner, he could have defended himself be referring to his report pointing out deficiencies and also the insistence made by the Department that notwithstanding the deficiencies he should report for duty and man the station. Looking from any angle, we do not think that there was any justification for the petitioner to refuse to man the station by signing the statutory declaration even after the appointing authority in Annexure-A. 4, in unmistakable terms, directed him to do so leaving it to the higher ups in the administrative echelon to rectify the deficiencies pointed out by him in due course. What we observed above would also answer the 2nd point urged by Sri K. Kastur. If the petitioner has had no justification to abstain himself from being the Station Master during 13. 3. 1994 to 23. 4. 1994, it is trite, the Department is justified in treating the absence of the petitioner as unauthorised and not on duty. As regards Point No. 3, it is pointed out that the statutory form which was required to be filled in and signed by the petitioner has been prescribed by the railways administration and it has been in vogue for several decades and the contents of this form is known to each and every railway employee. It is pointed out by the enquiry officer that by signing the declaration the employee concerned would not assure the safety of receiving train and despatching the trains. What is imperative in the declaration is that the employee who signs the declaration should know the rules, regulations and administrative instructions issued by the Department to receive and despatch the trains safely at the railway station concerned. Notwithstanding an employee possessing such required knowledge if something untoward happens due to the factors or circumstances beyond his control, he would not be held responsible. ( 12 ) IT needs to be noticed that the petitioner refused to sign the declaration with any oblique motive or deliberately, but we are of the considered opinion that the perception of the petitioner with regard to the declaration he was required to sign was merely misconceived and erroneous. ( 12 ) IT needs to be noticed that the petitioner refused to sign the declaration with any oblique motive or deliberately, but we are of the considered opinion that the perception of the petitioner with regard to the declaration he was required to sign was merely misconceived and erroneous. Therefore, it could not be said that the petitioner was not required to sign statutory declaration when he reported for duty at Belandur Railway Station. ( 13 ) THE contention of Sri K. Kasturi that the 5th respondent who held the office of the 4th respondent at the relevant point of time was biased and, therefore, he should not have acted as a disciplinary authority, is not acceptable to us. The argument of Sri K. Kasturi is based on what the 5th respondent recorded in paras 8. 1, 8. 2 and 17. 2 of the surprise night inspection notes' recorded by him on 24. 04. 1994 at zero hours at Belandur Railway Station. We have carefully perused the notes in para 8. 1, 8. 2 and 17. 2. It is clear that nobody can conclude that from those notes that they were made by the 5th respondent in the process of collection of materials adverse to the petitioner in the departmental enquiry initiated against him. Those notes would only reflect the state of affairs which existed when the 5th respondent conducted the surprise inspection on 24. 04. 1994. There is no necessary pleading much less required proof to bring home the charge of bias or malafide against the 5th respondent who, having held the 4th respondent office, acted as disciplinary authority. ( 14 ) IT was also contended by Sri K. Kasturi that the 5th respondent who passed the final order imposing the penalty of removal as a disciplinary measure on the petitioner was not the competent authority under the rules. Of course, this contention was raised in the Application filed before the Tribunal. But, it seems that no argument in that regard was advanced before the tribunal, because, we do not find any reference to or consideration of that contention by the tribunal. Be that as it may, it is not even the case of the petitioner before us that such a contention was in fact urged before the Tribunal and the Tribunal did not consider the same. Be that as it may, it is not even the case of the petitioner before us that such a contention was in fact urged before the Tribunal and the Tribunal did not consider the same. To that effect, no statement is made in the memorandum of writ petition. Even otherwise, we do not find any merit in the above contention. Meeting the ground taken by the petitioner in the application that the 5th respondent is not the competent authority to pass the final order, the department, in para 5-C of the reply statement has stated thus: "5. C Senior scale officers holding independent charge of the post in the Division are entitled to exercise all the powers attached to that post as long as there are no higher grade officers in the same branch in the Division. At the relevant time, when the applicant was promoted to the station master/ii, the 5th respondent was manning the post of Divisional Operations Manager and the passed the orders of promotion. The applicant has accepted the order of promotion and it according to the applicant, the 5th respondent who was holding the post of Divisional Operations manager was not entitled to give the promotion then the promotion itself will be bad and the petitioner will be in rank of Rs. 1400-2300 and not in the rank of Rs. 1600-2660/- when once the applicant accepts that promotion given to him is according to rules, then the 4th respondent becomes the appointing authority and if he is the appointing authority, he can also be the authority who can exercise the powers of the Disciplinary Authority to remove such a person who was been appointed by him. Only for the purpose of promotion, the applicant cannot say that his promotion is valid even though it was given by the 5th respondent manning the post of divisional Operations Manager. In fact it was the 4th respondent who passed the orders of promotion of the applicant and not any other officer nor the promotions granted are approved by any other authority. The contention that applicant's promotion was approved by Junior administrative Officer or the Divisional Railway Manager raised by the applicant was in support of the case, only to wriggle out of the fact that promotion given by the 5th respondent should ensure the benefit of support, his contention that senior scale officer cannot grant promotion. The contention that applicant's promotion was approved by Junior administrative Officer or the Divisional Railway Manager raised by the applicant was in support of the case, only to wriggle out of the fact that promotion given by the 5th respondent should ensure the benefit of support, his contention that senior scale officer cannot grant promotion. As a matter of fact, it was respondent No. 5 only should order the promotion of applicant to Station master, Grade II in scale Rs. 1600-2660. Thus there is no merit in the contention urged in this paragraph. The applicant was promoted as Station Master/grade II in scale Rs. 1600-2660/- (Rs. 550-750) on 06. 05. 1992 by the Fourth respondent in his capacity as Divisional Operations manager in independent charge of his own unit of the Division and the promotional order was conveyed to the applicant vide Letter No. B/p. 535/i/sms dated 28. 5. 1992 and this order was issued with the approval of the fourth respondent by the Divisional Personnel Officer, the applicant had shouldered higher responsibility on 29. 5. 1992 as per this order". ( 15 ) THE petitioner though chose to file rejoinder to the reply statement, did not specificaly traverse any of the averments made in sub-para (C) of para 5 of the reply statement. Since the 5th respondent was officiating the post of Divisional Operations Manager, he had the authority and competence to pass the impugned order. At this state, it farther needs to be noticed that it is the case of the department that the 5th respondent himself passed the order promoting the petitioner to the post of Station Master-II and posted him to the Belandur Railway Station. The petitioner having accepted that order, could not turn around and claim that the 5th respondent is not the competent authority. The petitioner cannot be permitted to approbate and reprobate. There is no need for us to dilate on this aspect, because, though this contention was taken before the tribunal, it was obviously given up when the matter was argued before the Tribunal ( 16 ) THIS takes us to the last contention of Sri K. Kastur. The petitioner cannot be permitted to approbate and reprobate. There is no need for us to dilate on this aspect, because, though this contention was taken before the tribunal, it was obviously given up when the matter was argued before the Tribunal ( 16 ) THIS takes us to the last contention of Sri K. Kastur. According to Sri K. Kasturi, removal of the petitioner from service, in the facts and circumstances of the case and having regard to the nature of misconduct committed by him, could not be regarded as the one proportionate to the gravity of misconduct committed by him. According to the learned Counsel, the punishment is highly disproportionate and shockingly excessive. It is well settled that Wednesbury rule of reasonableness would apply to the punishment imposed by a disciplinary authority, but the condition precedent for the Court to step in and reduce the penalty is that the penally imposed by the disciplinary authority should shock the conscience of the Court having regard to the gravity of the misconduct committed by the petitioner. Nothing is brought to our notice that before the present misconduct committed by the petitioner, he was involved in any major or minor misconduct earlier. In addition, it needs to be noticed that the misconduct committed by the petitioner does not involve any moral turpitude. At the most it could be said that the petitioner's perception of the statutory form which the petitioner was required to sign was erroneous and misconceived. We are told that before the petitioner was removed from service as a disciplinary measure, he had put in required number of years of service on the date of his removal from service, which would entitle him to seek pension. Taking into account the totality of the circumstances, it is our considered opinion that the punishment imposed by the disciplinary authority seems to be excessive. The ends of justice would be met if we reduce the penalty of removal from service to compulsory retirement ( 17 ) IN the result and for the foregoing reasons, we allow the writ petition in part and set aside the order of the Tribunal dated 25. 02. 2000 and allow O. A. No. 854 of 1998 and in substitution of the penalty of removal from service imposed by the disciplinary authority as affirmed by the appellate and revisional authorities, we substitute the penalty of compulsory retirement. 02. 2000 and allow O. A. No. 854 of 1998 and in substitution of the penalty of removal from service imposed by the disciplinary authority as affirmed by the appellate and revisional authorities, we substitute the penalty of compulsory retirement. In the facts and circumstances of the case, the parties shall bear their respective costs.