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2005 DIGILAW 193 (GAU)

Joseph Zimik v. State of Manipur and Ors.

2005-03-07

T.NANDA KUMAR SINGH

body2005
By this petition, the petitioner is praying for quashing the order of the DIG of Police (Range-IV), Senapati the 6.8.2002 for awarding extreme penalty of removal from service to the petitioner by enhancing the minor penalty imposed by the appointing authority i.e. Superintendent of Police, Ukhrul, Manipur dated 6.6.2002 for awarding punishment of withholding three increments with cumulative effect from the date of issuance of the order and also for quashing the order of Superintendent of Police, Ukhrul dated 20.8.2002 issued in pursuance of the order of the DIG (Range-IV) dated 6.8.2002 for awarding extreme penalty of removal from service with immediate effect to the petitioner. 2. Heard Mr.N.Kotishwar, learned counsel for the petitioner and Mr.Jalal, learned Govt.Advocate for the respondents. 3. Succinct fact of the petitioner's case is that on 29.6.2000, Inspector, L.Ragui who was the Officer-in-charge of Ukhrul, Police Station had proceeded to Imphal informing the petitioner that he was going to collect some court exhibits from Imphal and before leaving Ukhrul he handed over the charge of Ukhrul Police Station to the petitioner. The Governor of Manipur in exercise of power conferred by Section 7 read with Section 46 of the Police Act, 1861 issued order being No.7/41/73-POL, Imphal 6.9.74 that the Assam Police Manual Part I-IV shall be deemed to be the Rule framed by the Government of Manipur. According to Rule 180 of the AP Manual Part-III all arms and component parts, when not in use will be kept in the armoury and ammunitions in the magazines should be kept in the store rooms and Sergeant Major or Officer-in-charge, Reserve will keep the keys of the armoury and magazines and will be responsible for proper care of the arms and ammunitions and Superintendents of Police are personally responsible for the arms and duty. At the time of handing over the charge of Ukhrul Police Station to the petitioner by the Inspector, Shri L.Ragui, one Head Constable Shri S.Koireng being the Head Constable of the Ukhrul Police Station kept the keys of the Kote Room of Ukhrul Police Station in his custody. At the time of handing over the charge of Ukhrul Police Station to the petitioner by the Inspector, Shri L.Ragui, one Head Constable Shri S.Koireng being the Head Constable of the Ukhrul Police Station kept the keys of the Kote Room of Ukhrul Police Station in his custody. In compliance with Rule 180 of the AP Manual Part-III when the charge of Ukhrul Police Station was handed over by Shri L.Ragui, Inspector to the petitioner, the key of the Kote Room of Ukhrul Police Station was with the Head Constable, S.Koireng and Head Constable, S.Koireng continued to keep the keys of the Kote Room of Ukhrul Police Station in his custody. Even when the O.C, Ukhrul Police Station was present, the said Head Constable Shri S.Koireng used to keep the keys of the Kote Room of Ukhrul Police Station. 4. On 1.7.2000 at about 7.30 PM after evening roll call, one Shri M.L.Surrender, an Assistant Teacher who hails from the same village of the petitioner came to the Ukhrul Police Station to inform the petitioner that the wife of the petitioner was lying seriously ill and it is also case of the petitioner that wife of the petitioner had been undergoing treatment for her illness for the last about ten years and as a result thereof her left part of the body was almost paralyzed. Because of the serious illness of his wife, petitioner on his request to the higher authority had been posted to the Ukhrul Police Station which is only 1 ½ kms from his village, Hundung where his wife was lying seriously ill at his house. Thus, on getting the said information about the illness of his wife, the petitioner made necessary arrangements for handing over charge of the Police Station to his immediate subordinate officer, i.e. ASI, Aza Thomas. The petitioner also had his dinner at the Police Station on that day as no dinner would be available at that hour of the evening at home and the petitioner also preferred an application addressed to the SDPO, Ukhrul for giving night pass on 1.7.2000 and laid the application on the table with strict instruction to ASI, Aza Thomas to submit the same to the SDPO, Ukhrul. The petitioner also instructed ASI Aza Thomas to function as night duty officer of the Ukhrul Police Station. The petitioner also instructed ASI Aza Thomas to function as night duty officer of the Ukhrul Police Station. The petitioner in his own handwriting made an entry being entry no.5 in the General Diary of the Ukhrul Police Station dated 1.7.2000 for detailment of duties including handing over of the Ukhrul Police Station to ASI Aza Thomas before he left for his house in the evening of 1.7.2000 for attending his ailing wife. Before he left Ukhrul Police Station the petitioner also instructed ASI Aza Thomas to inform the petitioner immediately if anything happens in which service of the petitioner was required. Further, in the night of 1.7.2000 there was no information from the Ukhrul Police Station to the Petitioner about any untoward incident, as such, the petitioner believed that everything was fine at Ukhrul Police Station during the said night. 5. On the following day, i.e. 2.7.2000 in the morning when the petitioner was proceeding to Police Station at about 5.30 AM the petitioner met Shri P.Shangkhahao, Literate Clerk (LC) of the Police Station and Driver, Irakui in Police Jeep and they informed the petitioner about the loss of certain arms from the Kote Room of the Ukhrul Police Station. Immediately, the petitioner went to report about the missing arms and ammunitions to the Addl.S.P and SDPO, Ukhrul. Unfortunately, the incident of stealing of arms and ammunitions from the Kote Room of Ukhrul Police Station occurred during the absence of petitioner from the Ukhrul Police Station for attending his ailing wife at his house. On 3.10.2000 the S.P.,Ukhrul District issued order dated 3.10.2000 for placing the petitioner under suspension in contemplation of a Disciplinary Proceeding in connection with the said loss of arms and ammunitions from the Kote Room of Ukhrul Police Station. On 23.1.2001 articles of charges and statement of imputation was served to the petitioner. The three articles of charges framed against the petitioner reads as follows: “STATEMENT OF ARTICLES OF CHARGES AGAINST SI JOSEPH ZIMIK OF UKHRUL POLICE STATION. I, the undersigned here by charged SI Joseph Zimik of Ukhrul Police Station for his dereliction of duties and grave misconduct. 1. The three articles of charges framed against the petitioner reads as follows: “STATEMENT OF ARTICLES OF CHARGES AGAINST SI JOSEPH ZIMIK OF UKHRUL POLICE STATION. I, the undersigned here by charged SI Joseph Zimik of Ukhrul Police Station for his dereliction of duties and grave misconduct. 1. That, while working as Officer-in-charge of Ukhrul Police Station in the absence of Inspector, L.Ragui Officer-in-Charge was at Imphal on temporary duty you had absented yourself in the night of 1.7.2000 without any leave or permission from the competent authority, which resulted in loss of one .38 Revolver (Titan Tiger) No.N-408748, one 9 MM Pistol No.T.17123 with two magazines and 49 rounds of 9 MM ammunition from the kote of Ukhrul Police Station in the night of 1.7.2000 which shows your dereliction of duty and thus you have committed a grave misconduct. 2. That, you were detailed as night duty officer on 1.7.2000 and did not perform the duty of night duty officer in the same night, which resulted in loss of one .38 Revolver (Titan Tiger) No.408748, one 9 MM Pistol No. T-17123 with two magazines and 49 rounds of 9 MM ammunition from the kote of Ukhrul Police Station in the night of 1.7.2000 which shows your dereliction of duty and thus you have committed a grave misconduct. 3. That, in the evening of 1.7.2000 you had consumed liquor with your Subordinate Officers and men, thus you have committed a grave misconduct. Sd/-23.01.2001 Superintendent of Police, Ukhrul District, Manipur.” 6. The petitioner also filed his written statement of defence and medical certificate for his ailing wife was also produced in support of his written statement of defence in the departmental enquiry proceeded against the petitioner. In the course of inquiry two witnesses namely, (1) P.Shangkhahao and (2) Constable N.Kulachandra Singh were examined as prosecution witnesses and as defence witness of the petitioner, two persons namely, 1.Aza Thomas, ASI and 2.Mr.M.L.Surrender, Asstt.Teacher were examined. In the course of enquiry the said two prosecution witnesses did not state anything directly or indirectly implicating the petitioner for the loss of arms and ammunitions. They only stated that the petitioner left the Police Station in the evening of 1.7.2000. In the course of enquiry the said two prosecution witnesses did not state anything directly or indirectly implicating the petitioner for the loss of arms and ammunitions. They only stated that the petitioner left the Police Station in the evening of 1.7.2000. The said two defence witnesses also supported the case of the petitioner and DW-2, Mr.Aza Thomas, ASI of Ukhrul Police Station clearly stated that on 1.7.2000 after the evening roll call, SI Joseph Zimik the writ petitioner told him that Shri M.L.Surrender, Asstt.Teacher informed him stating that wife of petitioner was ill seriously and Mr.Aza Thomas, ASI in his statement in the departmental enquiry also admitted that petitioner left for his residence after handing over the thana charge of Ukhrul Police Station to him, i.e. ASI Aza Thomas and also that the petitioner made entry no.5 in the General Diary of the Ukhrul Police Station dated 1.7.2000 for detailment of duties and handing over of the Ukhrul Police Station to him, i.e. ASI Aza Thomas. The Inquiry Officer without any material evidence had submitted the report that Articles of Charges No.1 and 2 against the petitioner had been proved and Articles of Charge No.3 has not been proved and submitted his report dated 12.9.2001 to the Disciplinary Authority i.e. S.P.,Ukhrul (copy of the inquiry report is at Annexure-A/5 to the writ petition). The Inquiry Officer in his report had discussed the statement of PWs as well as DWs and portion of inquiry report in which statement of PWs and DWs were discussed is quoted below: “ Now let us assess the evidences adduced by PW1. (i) That SI Joseph Zimik was the I/C of Ukhrul-PS on 1.7.2000 when he rejoined to duty at 2 pm that day after availing earned leave for 30 days as the then OC of Ukhrul PS Insp.L.Ragui was out of station on duty at Imphal. (ii) GD Entry No.5 Exh.P/1-2 relates to detailment of thana sentry duty, gate duty, duty commander and NDO of 1.7.2000. SI Zimik was intered as NDO for that day. (iii) No entry No.14 dt.1.7.2000 Exh P/1-3 confirms leaving of SI Joseph Zimik handing over than charge to ASI. Azar Thomas. The entry was in his own writing. (ii) GD Entry No.5 Exh.P/1-2 relates to detailment of thana sentry duty, gate duty, duty commander and NDO of 1.7.2000. SI Zimik was intered as NDO for that day. (iii) No entry No.14 dt.1.7.2000 Exh P/1-3 confirms leaving of SI Joseph Zimik handing over than charge to ASI. Azar Thomas. The entry was in his own writing. (iv) GD Entry No.23 dt.2.7.2000 relates to registration of case FIR No.10(7)2000 UKL-PS U/S 457/350 IPC in C/W the theft of arms & Amns from the Ukhrul-P.S.Kote, the lost arms and amns mentioned in the report are 1-9 mm Pistol, No.T-17123 with 2 mag. Filled with 10 rds of 9 mm amns each, 1-.38 Revolver (Titan Tiger) No.N.408748 & 29 rds of 9 mm amns. Now let us look in charge No.1 that SI Joseph Zimik while working as OC on 1.7.2000 left the P.S. at 9 pm without leave or permission from the competent authority. As stated by PW I it is established that SI Joseph Zimik was the O/C in charge of Ukhrul PS on 1.7.2000, GD entry no.14 dt. 1.7.2000 shows that SI Joseph Zimik, left the PS at 9 pm. The question now arises is whether SI Joseph Zimik obtained either Verbal/written permission or leave from the competent authority. There is no evidence to prove that he got permission or not. None of the witnesses on say about it. The Charge No.2 states that SI Joseph Zimik was NDO of 1.7.2K. This been proved by GD Entry No.5 dt.1.7.2K exh.P/1-2. The charged No.3 relates to drinking liquor by the charged officer in the evening of 1.7.2000. Neither of the witnesses stated that they saw SI J.Zimik taking liquor/wine in the evening of 1.7.2K except that ASI Azar Thomas, FC S.Koireng & some other persons were see drinking in the room of ASI Azar Thomas. So, charge No.3 can not be substantiated. Let us now consider into the merit of the evidence adduced by the defence & defence witnesses. The charged officer SI Joseph Zimik stated that on 29.6.2000 OC Insp.L.Ragui had gone to Imphal & as such he took up thana charge of the P.S but the keys of the kote was with H.C. S.Koireng all the time. He never handled the keys of the kote and Malkhana. The charged officer SI Joseph Zimik stated that on 29.6.2000 OC Insp.L.Ragui had gone to Imphal & as such he took up thana charge of the P.S but the keys of the kote was with H.C. S.Koireng all the time. He never handled the keys of the kote and Malkhana. On 1.2.2000 at the evening roll call one ML Surender of his village came to the PS and informed him about the illness of h is wife. He stated that he left an application on the table and asked ASI Azar Thomas before he left at 9 pm to give the application to the senior officer in case anything happens in that night he handed over thana charge to ASI Azar Thomas, he admitted that he did not obtain formal written verbal permission from his superior officer and added that he was compelled to leave the PS as the condition of his ailing wife was serious. He further added that he asked ASI Azar Thomas to look the work of NDO. He produced some medical certificate about the illness of his wife. DW 1 M.Surrender confirmed the statement of the charged SI, that as regards to give information to the SI about the illness of his wife. They had meal at the PS and left at 9 pm. DW 2 ASI Azar Thomas stated that at about 7 pm of 1.7.2000 while they were dining together, SI Joseph Zimik told him (DW 2) that his wife is seriously ill and he has to go home. He also stated that SI Joseph Zimik told that he was the NDO of the day. In case of any thing happening he may be picked up from h is house. But he denied of the application of SI Joseph Zimik in writing given to him or left on the table. On cross examination whether he knew from whom SI Joseph Zimik sought permission to leave the station, the DW 2 replied in negative. From the statement of the charge SI Joseph Zimik it is seen that he did not try to inform and sick permission for leaving the PS drop any senior officer when he was acting as OC of PS. The plea of the charged SI was right that his wife is ill supportably the medical certificate. As to the seriousness of the condition of his wife illness, it is hard to believe. The plea of the charged SI was right that his wife is ill supportably the medical certificate. As to the seriousness of the condition of his wife illness, it is hard to believe. If the condition of illness was so serious leritical he should not have wait time from 6 pm to 9 pm to go back home. This shows that he knows the condition of his wife illness by why he did not like to inform, the senior officer & seek permission to leave the station, there is no point to argue on the plea that he was compelled to go home due to seriousness of his wife illness. DW 2 also stated that he did not knows if SI J.Zimik obtained permission from the senior officers. He also stated that SI J.Zimik asked him to do the duty of NDO. This cannot be accepted as no mention of handing over charge on NDO was reflected in GD Entry No.14 dt. 1.7.2000 exh.1/1-2. The contention of the defence as pointed out in his brief is that he handed over thanna charge & NDO to ASI Azar Thomas and accordingly ASI Azar Thomas performed the duty of NDO vide GD Entry No.16 dt.1.7.2000.” 7. From bare perusal of the inquiry report, it appears that of the prosecution witnesses had directly or indirectly implicated the petitioner for the loss of arms and ammunitions from the Kote of Ukhrul PS in the night of 1.7.2K in his absence. The Disciplinary Authority i.e., Superintendent of Police, Ukhrul after thoroughly considering the inquiry report of the Inquiry Officer dated 12.9.2001 passed order dated 6.6.2002 (Annexure-A/7 to the writ petition) for awarding punishment of withholding of three years increments with cumulative effect from the date of issue of the order to the writ petitioner and under the said order dated 6.6.2002, the SP Ukhrul also reinstated the writ petitioner to his service with immediate effect. Against the said order of the SP Ukhrul, no appeal was filed but surprisingly the DIGP (R-IV) issued a showcause notice dated 20.7.2002 without giving his tentative views and reasons for differing with the Disciplinary Authority i.e. SP Ukhrul to the petitioner as to why the petitioner should not be awarded the extreme penalty of dismissal from service. The show cause notice dated 20.7.2002 reads as follows: “ No.W-10/12/2001 (R-IV)/1311 GOVERNMENT OF MANIPUR POLICE DEPARTMENT Senapati,the 20th July,2002. The show cause notice dated 20.7.2002 reads as follows: “ No.W-10/12/2001 (R-IV)/1311 GOVERNMENT OF MANIPUR POLICE DEPARTMENT Senapati,the 20th July,2002. To SI Joseph Zimik Of Ukhrul Police Station. Subject:-Show cause Notice. Whereas a Departmental Enquiry was ordered against you by SP/Ukhrul vide his order No.D/02-SP(UKL) dated 23.1.2001 for loss of arms and ammunitions when you were working as OC in-charge of Ukhrul Police Station; Whereas SP/Ukhrul District awarded the punishment of stoppage of 3 (three) increments with accumulative effect vide his order No.D-6/99-SP(UKL) dated 6.6.2002 following the enquiry in which the charge against you were held proved by the Enquiry Officer. Whereas a perusal of your Service Book reveals that you have been awarded several such punishments by Superior Officers for your various misconducts earlier also. Now, therefore, I call upon you to submit as to why I, while reviewing the recent order of SP/Ukhrul stopping your 3 (three) increment, should not quash his punishment and award you punishment of dismissal from service. Your reply to this notice should reach this office latest by 31.7.2002 failing which it will be presumed that you have nothing to submit in your favour and orders will be issued as mentioned above. Sd/- D.Mishra, IPS Dy.Inspector General of Police (R-IV), Manipur, Senapati. Copy to: 1. The Inspector General of Police (L/O-II), Manipur,Imphal. 2. The SP/Ukhrul District. Sd/- D.Mishra, IPS Dy.Inspector General of Police (R-IV) Manipur, Senapati.” 8. In reply to the show cause notice dated 20.7.2002, petitioner submitted his reply dated 29.7.2002 to the DIGP (R-IV) requesting him not to impose extreme penalty of dismissal from service. The DIGP (R-IV) issued order dated 6.8.2002 (Annexure-A/9 to the writ petition) without giving any reason for disagreement with the Disciplinary Authority in awarding punishment for imposing the extreme penalty of dismissal from service to the writ petitioner. The said order dated 6.8.2002 reads as follows: “ GOVERNMENT OF MANIPUR POLICE DEPARTMENT Orders by Dy.Inspector General of Police (R-IV),Manipur Senapati, the 6th August,2002 No.W/10/12/201(R-IV)/SPT/ Whereas a Departmental Enquiry was ordered against SI Joseph Zimik of Ukhrul District by SP Ukhrul District Vide his No.D-6/99-SP(UKL)/ dated 23.1.2001 for loss of arms and ammunitions when SI Joseph Zimik was working as OC-in-charge of Ukhrul Police Station in the absence of Inspector L.Ragui Singh. 2. 2. Whereas the Enquiry Officers after conducting the Departmental Enquiry under the relevant provisions of Assam Police Manual submitted his findings opining that the charges leveled against sub-Inspector Joseph Zimik were held proved; 3. Whereas the Superintendent of Police agreed with the findings of the Enquiry Officer awarded the delinquent Sub-Inspector the punishment of stoppage of three increments with a cumulative effect vide his order No.D-6/99-SP(UKL)/dtd 6.6.2002. 4. Whereas the undersigned in his capacity as the superior to the Disciplinary Authority (SP/Ukhrul) reviewed the Departmental proceedings and came to the conclusion that the punishment of stoppage of three increments does not meet the ends of justice keeping in view the gravity of misconduct; 5. Whereas the delinquent Sub-Inspector Joseph Zimik was given yet another opportunity by issuing a show cause notice vide this office No.W/10/12/2001(R-IV)/1811 dated 20th July, 2002 following which his reply was received on 29th July, 2002. 6. Whereas he has nothing new to explain in his reply to the aforesaid show Cause notice and only accepted the commission of his misconduct. 7. Now, therefore, I, D.Mishra, Dy.Inspector General of Police (R-IV), Manipur reject the punishment as ordered by SP Ukhrul and awarded Sub-Inspector Joseph Zimik the punishment of dismissal from service with immediate effect. 8. Superintendent of Polcie, Ukhrul District should issue the dismissal order immediately in pursuance of this order. Sd/- (D.Mishra)IPS Dy.IG of Police (R-IV), Manipur, Senapati.” 9. The SP Ukhrul in compliance with the order of the DIGP dated 6.8.2002 passed order dated 20.8.2002 for awarding extreme penalty of dismissal from service with immediate effect to the petitioner. The learned counsel appearing for the petitioner vehemently contended that the show cause notice dated 20.7.2002 and dismissal order dated 5.8.2002 are illegal and arbitrary. The SP Ukhrul in compliance with the order of the DIGP dated 6.8.2002 passed order dated 20.8.2002 for awarding extreme penalty of dismissal from service with immediate effect to the petitioner. The learned counsel appearing for the petitioner vehemently contended that the show cause notice dated 20.7.2002 and dismissal order dated 5.8.2002 are illegal and arbitrary. In this regard he referred to the decision of the Apex Court in, Punjab National Bank and Ors Vs Kunj Bihari Mishra reported in (1998) 7 SCC 84 and stated that the DIG P(R-IV) should have recordded his tentative views and reasons in the show cause notice dated 20.7.2002 for his disagreement with the Disciplinary Authority i.e. SP Ukhrul in awarding the punishment of three years withholding of increment with cumulative effect to the writ petitioner and reason also should be mentioned in the impugned order dated 6.8.2002 passed by the DIGP (R-IV), Manipur for imposing the extreme penalty of removal from service to the petitioner by disagreeing with the said penalty imposed by the Disciplinary Authority i.e. SP Ukhrul. Para 19 of the SCC in Punjab National Bank (supra) is quoted hereunder: “19. The result of the aforesaid discussion would be that the principles of natural justice have to be read into Regulation 7(2). As a result thereof, whenever the disciplinary authority disagrees with the enquiry authority on any article of charge, then before it records its own findings on such charge, it must record its tentative reasons for such disagreement and give to the delinquent officer an opportunity to represent before it records its findings. The report of the enquiry officer containing its findings will have to be conveyed and the delinquent officer will have an opportunity to persuade the disciplinary authority to accept the favourable conclusion of the enquiry officer. The principles of natural justice, as we have already observed, require the authority which has to take a final decision and can impose a penalty, to give an opportunity to the officer charged of misconduct to file a representation before the disciplinary authority records its findings on the charges framed against the officer.” 10. He further submits that this Court in the case of Shri N.Rupoban Singh & Anr. Vs. State of Manipur reported in 2001 (3) GLT 292 took the same view and again the Apex Court in the State of Rajasthan Vs. He further submits that this Court in the case of Shri N.Rupoban Singh & Anr. Vs. State of Manipur reported in 2001 (3) GLT 292 took the same view and again the Apex Court in the State of Rajasthan Vs. MC Saxena reported in (1998) 3 SCC 385 held that Higher Authority can disagree with the findings arrived at by the Inquiry Officer and took his own conclusion. The only requirement is that the Disciplinary Authority must record reasons for his disagreement with the finding of the Inquiry Officer. In the instant case the Disciplinary Authority, DIGP (R-IV) neither in his show cause notice dated 20.7.2002 nor his order dated 6.8.2002 recorded the reasons for disagreeing with the Disciplinary Authority, i.e. SP, Ukhrul in imposing penalty to the petitioner, except the word “the punishment of stoppage of three years increment does not meet the ends of justice keeping in view, the gravity of misconduct in the said order dated 6.8.2002. Looking into the entirety of the show cause statement dated 20.7.2002 keeping in view of the decision of the Apex Court in Punjab National Bank (supra), State of Rajasthan (supra) as well as decision of this Court in N.Rupoban Singh (supra), I am of the considered view that the impugned order dated 6.8.2002 is illegal and liable to be quashed on this score. 11. The next submission of learned counsel for the petitioner is that even by accepting the inquiry report of the inquiry officer dated 12.9.2001 regarding the factual finding against the writ petitioner, the only fact which is proved against the petitioner is that he had unauthorized absence of one night i.e. night of 1.7.2000 from Ukhrul P.S. For the unauthorized absence of one night, extreme penalty of removal from service is too severe and harsh. Learned counsel for the petitioner further submits that the Apex Court in Union of India and Anr. Vs. BC Chaturvedy reported in (1995) 6 SCC 749 held that the High Court/Tribunal, while exercising the power of judicial review, cannot substitute its own conclusion on penalty and impose some other penalty. Learned counsel for the petitioner further submits that the Apex Court in Union of India and Anr. Vs. BC Chaturvedy reported in (1995) 6 SCC 749 held that the High Court/Tribunal, while exercising the power of judicial review, cannot substitute its own conclusion on penalty and impose some other penalty. If the punishment imposed by the Disciplinary Authority or the Appellate Authority shocks the conscience of the High Court/Tribunal it would appropriately mould the relief, either directing the disciplinary/appellate authority to re-consider the penalty imposed, or to shorten litigation, it may itself, in exceptional and rare cases impose appropriate punishment with cogent reason in support thereof. Again the Apex Court in UP State Transport Corpn and Anr. Vs. Maheshkumar Mishra reported in (2000) 3 SCC 450 held not only Supreme Court but also the High Court can interfere with the punishment inflicted upon the delinquent employee if, that penalty,shocks the conscience of the Court and if, the punishment imposed is shockingly disproportionate to the charges held proved against the employee, it will be open to the Court to interfere. (emphasis supplied) 12. The similar view had been taken by the Apex Court in Dev Singh Vs Punjab Tourism Dev Corp Ltd and Ors reported in (2003) 8 SCC 9 . The Apex Court in Om Kumar & Anr Vs Union of India reported in (2001) 2 SCC 386 held that the principles of proportionality is applied on merit by the Court by primary review, but if the action is challenged to be violative of Article 14 on the ground of arbitrariness, Wednesbury Principles is applied by the Court by way of Secondary Review. The Apex Court in Sayed Zaheer Hussain Vs Union of India & Ors reported in (1999) 9 SCC 86 held that dismissal from service is too harsh for the unauthorized absence of seven days. Para 3 and relevant portion para-4 of the SCC runs as under: “3. The short question is whether the appellant who was working as Sorting Assistant under the respondents' organization could have been dismissed from service only because he was alleged to be unauthorisedly absent from 9.1.1985 to 15.1.1985. When he tried to resume his duties thereafter, he was placed under suspension on 16.1.1985 and after a departmental enquiry, was dismissed from service. He went to the Tribunal. When he tried to resume his duties thereafter, he was placed under suspension on 16.1.1985 and after a departmental enquiry, was dismissed from service. He went to the Tribunal. The Tribunal took the view that the punishment meted out to the appellant was grossly disproportionate but could not interfere in exercise of its jurisdiction. That is how the appellant is before us on grant of special leave. 4. In our view, in the facts and circumstances of the case, the punishment of dismissal from service is too harsh and on the contrary, it is required to be substituted by an appropriate lesser punishment. Learned counsel for the respondents after instructions has stated that an appropriate lesser punishment may be awarded by this Court. It will be acceptable to the respondents. In our view, the ends of justice will be served if we set aside the order of dismissal of the appellant and instead direct reinstatement of the appellant in service with continuity and with all other benefits save and except withdrawing 50 percent of back wages from the date of dismissal, i.e. 11.10.1988 till today. In our view, this punishment which will involve a substantial monetary loss to the appellant will meet the ends of justice and will be a sufficient corrective measure for the appellant. The request of learned counsel for the respondents that two future increments may also be withheld without cumulative effect does not appear to us to be justified on the peculiar facts and circumstances of the case. In our view, the aforesaid monetary loss to the appellant will meet the ends of justice so that he may be careful in future. It is ordered accordingly.” 13. Considering the totality of the facts and circumstances of the present case extreme penalty of removal from service imposed to the petitioner for the unauthorized absence of one night from his duty in Ukhrul P.S i.e. on 1.7.2000 shocks the judicial conscience of this Court and shockingly disproportionate for absence of one night without permission of the higher authority. 14. For the reasons above mentioned the impugned order dated 6.8.2002 (Annexure-A/9 to the writ petition) and 20.8.2002 (Annexure-A/10 to the writ petition) are hereby quashed and I leave it to the authority to impose any other minor penalty save and except dismissal from service to the petitioner. 14. For the reasons above mentioned the impugned order dated 6.8.2002 (Annexure-A/9 to the writ petition) and 20.8.2002 (Annexure-A/10 to the writ petition) are hereby quashed and I leave it to the authority to impose any other minor penalty save and except dismissal from service to the petitioner. Further, it is made clear that the petitioner shall not be entitled to back wages. The order or reinstatement should be issued within a period of three months from the date of receipt of this order. Writ petition is allowed accordingly. No order as to costs.