JUDGMENT 1. - Core question that arises for consideration in the instant appeal is: Can the High Court while exercising the power of judicial review, interfere with the order of punishment and alter the penalty imposed by Disciplinary and Appellate Authorities? 2. Appellant R.C. Pareek (since dead and represented by legal representatives) was served with a memo of charge sheet on 13.09.1997. The Enquiry Officer found the appellant guilty of all the charges and submitted his report on 11.11.1991. The Managing Committee of the Indian Red Cross Society, Rajasthan State Branch, Jaipur vide its resolution passed in the meeting held on 12.02.1992 constituted a Committee of four members to scrutinise the enquiry report and to recommend a suitable disciplinary action against the appellant. However, out of four members only two had taken decision to dispense with the services of appellant signed the report and the other two members did not agree with the decision and refused to sign on the report. The Disciplinary Authority, on the basis of report of two members dismissed the appellant from the services of Indian Red Cross Society vide order dated 28.07.1992. The appellant assailed the said order by filing writ petition but learned Single Judge dismissed the writ petition on 31.01.1997. Against this order that the present action of filing the appeal has been resorted to by the appellant. 3. Contextual facts depict that appellant, who was served with the charge sheet on 13.08.1991 under Rule 16 of the Rajasthan Civil Services (Classification, Control and Appeals) Rules, 1958. The following charges were levelled against him: "Article I: That the said Shri R.C. Pareek while functioning as Dy. Secretary and AAO during the period 1983 failed to maintain absolute integrity and devotion to duty misusing his powers/seal and designation and committed misconduct in as much as that he without requisite permission of the Chairman of the Indian Red Cross Society, Rajasthan State Branch, Jaipur and other competent authority took a loan of Rs. 3,500/- on 25.06.1983 from District Branch, Banner. Article II . That the said Shri R.C. Pareek during the year 1988 while functioning the aforesaid office he failed to maintain absolute integrity and devotion to duties, misusing his powers/seal and designation committed misconduct as much as that without requisite permission of the Chairman, Indian Red Cross Society, Rajasthan State Branch, Jaipur irregularly took advance of Rs. Article II . That the said Shri R.C. Pareek during the year 1988 while functioning the aforesaid office he failed to maintain absolute integrity and devotion to duties, misusing his powers/seal and designation committed misconduct as much as that without requisite permission of the Chairman, Indian Red Cross Society, Rajasthan State Branch, Jaipur irregularly took advance of Rs. 2000/- on 18.07.1988 from Indian Red Cross, Society, District Branch, Barmer and failed to submit tenders for adjustment of account inspite of instructions and neither intimated the Chairman in this regard. Article III: That the said Shri R.C. Pareek during the month of May, 1989 while functioning in the above said office failed to maintain absolute integrity and devotion to duty and committed misconduct in as much as he submitted a false TA Bill of Rs. 1274/- in which included Rs. 350/- for the expenses in arranging towards air ticket for journey performed on 26.05.1989 from Jaipur to Jodhpur whereas Air Ticket No. 761352 of Indian Airlines on which Shri R.C. Pareek travelled by flight No. IC 491 on 26.05.1989 was actually purchased from the funds of Indian Red Cross Society, Rajasthan State Branch, Jaipur. 4. The Enquiry Officer proceeded to conduct enquiry against the appellant ex-parte. In the writ petition the appellant impleaded Chairman of Indian Red Cross Society in person and alleged malafides against him but the learned Single Judge in the impugned order observed that action of Indian Red Cross Society in terminating the services of appellant R.C. Pareek was not malafide. It was further held that the disciplinary inquiry initiated against him was within jurisdiction and the impugned order of termination did not violate the principles of natural justice. 5. We have given our anxious consideration to the rival submissions. 6. A look at the material on record demonstrates that Committee in the Chairmanship of S.N. Thanvi, Director Social Welfare Department was constituted pursuant to the resolution passed in the meeting held on 12.02.1992 of the Managing Committee of Indian Red Cross Society. Three other members, who were nominated in the Committee, were Dr. Krishna Gelda, Mr. G.L. Soni and Mrs. Aruna Swami. The Committee had to scrutinise the report of Enquiry Officer and to recommend disciplinary action against the appellant. The members of the Committee were not unanimous in their decision and Dr. Krishna Gelda and Mrs. Three other members, who were nominated in the Committee, were Dr. Krishna Gelda, Mr. G.L. Soni and Mrs. Aruna Swami. The Committee had to scrutinise the report of Enquiry Officer and to recommend disciplinary action against the appellant. The members of the Committee were not unanimous in their decision and Dr. Krishna Gelda and Mrs. Aruna Swami did not agree with the findings arrived at by S.N. Thanvi and G.L. Soni. S.N. Thanvi wrote in his report as under: "Both Dr. Gelda and Mrs. Swami were reminded again and again to sign but some how they did not seem to be prepared for this. 7. The report dated 26.07.1992 of S.N. Thanvi, which was made the basis of the order of dismissal, reads as under: "The Committee constituted under the Chairmanship of the u/signed, after looking to the relevant record and hearing Mr. R.C. Pareek, had finalised its report but before it could be got singed from other members, I was shifted over to Bharatpur as District Magistrate. I continued reminding the members to sign the report so that the same could be submitted to the Society for further necessary action. But unfortunately, the members excluding Shri S.L. Soni have shown their reluctance to put their signature on the report. Shri Soni and the undersigned were left with no other alternative but to sign it and submit the same to avoid further delay. The opinion expressed in the report placed below, though singed by me and Shri Soni did represent the views of other members also as the same was drafted by me after full discussion and deliberation with them too. Report is submitted for further necessary action." 8. Chairman of Red Cross Society, without obtaining the report of Dr. Krishna Gelda and Mrs. Aruna Swami dismissed the appellant from the services of Indian Red Cross Society vide order dated 28.07.1992. 9. Mr. S.B. Mathur, learned Counsel for the respondent canvassed that while exercising the powers of judicial review High Court should not substitute its own conclusion on penalty and impose some other penalty. Reliance is placed on Regional Manager v. Hoti Lal, (2003) II LLJ 267 SC : (2003) 3 SCC 605 and P.D. Agrawal v. State Bank of India, (2006) 8 SCC 776 . 10. Reliance is placed on Regional Manager v. Hoti Lal, (2003) II LLJ 267 SC : (2003) 3 SCC 605 and P.D. Agrawal v. State Bank of India, (2006) 8 SCC 776 . 10. The question relating to scope of judicial review in the matter of punishment awarded by the disciplinary authority has been dealt with by the Apex Court in B.C. Chaturvedi v. Union of India, (1996) I LLJ 1231 SC : (1995)6 SCC 749 thus: 17. The next question is whether the Tribunal was justified in interfering with the punishment imposed by the disciplinary authority. A Constitution Bench of this Court in State of Orissa v. Bidyabhushan Mohapatra, (1963) I LLJ 239 SC : AIR 1963 SC 779 held that having regard to the gravity of the established misconduct, the punishing authority had the power and jurisdiction to impose punishment. The penalty was not open to review by the High Court under Article 226. If the High Court reached a finding that there was some evidence to reach the conclusion, it became unassailable. The order of the Governor who had jurisdiction and unrestricted power to determine the appropriate punishment was final. The High Court had no jurisdiction to direct the Governor to review the penalty. It was further held that if the order was supported on any finding as to substantial misconduct for which punishment "can lawfully be imposed", it was not for the Court to consider whether that ground alone would have weighed with the authority in dismissing the public servant. The Court had no jurisdiction, if the findings prima facie out a case, of misconduct, to direct the Governor to reconsider the order of penalty. This view was reiterated in Union of India v. Sardar Bahadur, (1972) 4 SCC 618 It is true that in Bhagat Ram v. State of HP, (1983) 2 SCC 442 a Bench of two Judges of this Court, while holding that the High Court did not function as a Court of appeal, concluded that when the finding was utterly perverse, the High Court would always interfere with the same. In that case, the finding was that the appellant was to supervise felling of the trees which were not hammer-marked. The Government had recovered from the contractor the loss caused to it by illicit felling of trees. In that case, the finding was that the appellant was to supervise felling of the trees which were not hammer-marked. The Government had recovered from the contractor the loss caused to it by illicit felling of trees. Under those circumstances, this Court held that the finding of the guilt was perverse and unsupported by evidence. The ratio, therefore, is not an authority to conclude that in every case the Court/Tribunal is empowered to interfere with the punishment imposed by the disciplinary authority. In Rangaswami v. State of T.N., 1989 Supp. (1) SCC 686 a Bench of three Judges of this Court, while considering the power to interfere with the order of punishment, held that this Court, while exercising the jurisdiction under Article 136 of the Constitution, is empowered to alter or interfere with the penalty; and the Tribunal had no power to substitute its own discretion for that of the authority. It would be seen that this Court did not appear to have intended to lay down that in no case, the High Court/Tribunal has the power to alter the penalty imposed by the disciplinary or the appellate authority. The controversy was again canvassed in State Bank of India case , where the Court elaborately reviewed the case-law on the scope of judicial review and powers of the Tribunal in disciplinary matters and nature of punishment. On the facts in that case, since the Appellate Authority had not adverted to the relevant facts, it was remitted to the Appellate Authority to impose appropriate punishment. 18. A review of the above legal position would establish that the disciplinary authority, and on appeal the Appellate Authority, being fact finding authorities have exclusive power to consider the evidence with a view to maintain discipline. They are invested with the 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 shocks the conscience of the High Court/Tribunal, it would appropriately mould the relief, either directing the disciplinary/appellate authority to reconsider the penalty imposed, or to shorten the litigation, it may itself, in exceptional and rare cases, impose appropriate punishment with cogent reasons in support thereof". (Emphasis supplied) 11. 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 reconsider the penalty imposed, or to shorten the litigation, it may itself, in exceptional and rare cases, impose appropriate punishment with cogent reasons in support thereof". (Emphasis supplied) 11. In Union of India v. G. Ganayutham, (1997) 7 SCC 463 again the Supreme Court considered the aspect of proportionality in administrative law in England and India and indicated as under: "31. 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 (1948) 1 KB 223 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 the law, have arrived at. The Court would consider whether relevant matters had not been taken into account or whether irrelevant mattes 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 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 as 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 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 of 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. 4(a) The position in our country, in administrative law, where no fundamental freedoms as aforesaid are involved, is that the Courts/tribunals will only play a secondary role while the primary judgment as to reasonableness will remain with the executive or administrative authority. The secondary judgment of the Court is to be based on Wednesbury and CCSU principles as stated by Lord Greene and Lord Diplock respectively to find if the executive or administrative authority has reasonably arrived at his decision as the primary authority. (4)(b) Whether in the case of administrative or executive action affecting fundamental freedoms, the Courts in our country will apply the principle of proportionality and assume a primary role, is left open, to be decided in an appropriate case where such action is alleged to offend fundamental freedoms. It will be then necessary to decide whether the Courts will have a primary role only if the freedoms under Articles 19, 21 etc. are involved and not for Article 14. 12. Their Lordships of the Supreme Court in Regional Manager UP SRTC v. Hoti Lal (supra) indicated that while dealing with the quantum of punishment, reasons are required to be assigned. It was observed as under: "It needs to be emphasised that the Court or Tribunal while dealing with the quantum of punishment has to record reasons as to why it is felt that the punishment does not commensurate with the proved charges. As has been highlighted in several cases to which reference has been made above, the scope for interference is very limited and restricted to exceptional cases in the indicated circumstances. Unfortunately, in the present case as the quoted extracts of the High Courts order would go to show, no reasons whatsoever have been indicated as to why the punishment was considered disproportionate. Reasons are live links between the mind of the decision taker to the controversy in question and the decision or conclusion arrived at. Failure to give reasons amounts to denial of justice. See Alexander Machinery Dudley Ltd. v. Crabtree 1974 LCR 120. Reasons are live links between the mind of the decision taker to the controversy in question and the decision or conclusion arrived at. Failure to give reasons amounts to denial of justice. See Alexander Machinery Dudley Ltd. v. Crabtree 1974 LCR 120. A mere statement that it is disproportionate would not suffice. A party appearing before a Court, as to what it is that the Court is addressing its mind. It is not only the amount involved but the mental set up, the type of duty performed and similar relevant circumstances which go into the decision-making process while considering whether the punishment is proportionate or disproportionate. If the charged employee holds a position of trust where honesty and integrity are inbuilt requirements of functioning, it would not be proper to deal with the matter leniently. Misconduct in such cases has to be dealt with iron hands. Where the person deals with public money or is engaged in financial transactions or acts in a fiduciary capacity, highest degree of integrity and trust-worthiness is must and unexceptionable." 13. Judged in this background, conclusions arrived at in the instant matter by the Disciplinary Authority as well as the learned Single Judge do not appear to be proper. The appellant was functioning as Deputy Secretary cum Assistant Account Officer and the allegations against him were that he misused his powers/seal and designation and committed misconduct in as much as that he without requisite permission of Chairman took loan and travelled by Air from Jaipur to Jodhpur. It appears that there was 'ego-clash' between the Chairman and the appellant. In the writ petition the appellant impleaded the Chairman in his individual capacity and pleaded that the chairman acted malafidely in passing the order of dismissal against him. Since the appellant is dead and his legal representatives are contesting the appeal, we looking to the fact that the Chairman before passing the order of dismissal did not afford opportunity of hearing to the appellant and the four members of the Committee did not have unanimity in making recommendation of dismissal of appellant, are of the opinion that punishment of dismissal imposed on the appellant is disproportionate to the alleged misconduct. The penalty of removal imposed on the appellant shocks our judicial conscience. Learned Single Judge failed to consider the question of proportionality of the punishment. The penalty of removal imposed on the appellant shocks our judicial conscience. Learned Single Judge failed to consider the question of proportionality of the punishment. In our opinion, the ends of justice would be met if the penalty of removal from service is substituted to that of penalty of compulsory retirement. 14. Division Bench of this Court in Union of India v. Ummed Singh 2001 (3) RLR 316 considered the ratio indicated in B.C. Chaturvedi v. Union of India (supra) and reduced the punishment of removal from the service to that of compulsory retirement. 15. For these reasons, we in order to shorten the litigation and to avoid any further legal expenses from both the sides, feel just and proper to reduce the punishment of dismissal of appellant from service to that of compulsory retirement. The special appeal stands disposed of as indicated above. There shall be no order as to costs.Special Appeal Disposed of as Above. *******