JUDGMENT Honble Shishir Kumar, J.—The present writ petition has been filed against the order dated 17.7.1982 (Annexure 9 to the writ petition) and order dated 21.5.1984 passed by the Divisional Railway Manager, Allahabad and the Award dated 2.3.1998 passed by the Labour Court, Kanpur (Annexure 12 to the writ petition). 2. The facts arising out of the present writ petition are that the petitioner was appointed as Lady Ticket Collector and was posted in Northern Railway at Allahabad. The petitioner was a confirmed employee and there was no complaint against the petitioner. That around September-October, 1981 when the petitioner was posted at Allahabad, the A.C.S. called her several times with ulterior motive but the petitioner being an honest and a person of high integrity and of religious devotion could not yield to his ill desire. On 14.10.1981, the petitioner alongwith her two sisters went to Maiher temple and came back in the midnight of 14/15.10.1981 and due to the aforesaid circumstances, they had to pass the night at station and accordingly the petitioner deposited Rs. 60/- with T.C. at the booth informing him to issue reservation ticket for Retiring Room No. 1 (Deluxe). The A.C.S. on receipt of this information made a plan and taking stay of the petitioner at the Retiring Room as unauthorised, reported the matter to the Divisional Commercial Superintendent and illegally arranged a surprise checking at 4.45 a.m. on 15.10.1981. Petitioner was asked about the authority of the petitioner’s occupation. Petitioner informed that she has already deposited Rs. 60/- with the ticket Collector on the booth and as he was busy in other engagements he assured the petitioner to issue a receipt then these officers visited the ticket Collector booth rooms and enquire into the matter. 3. On 16.10.1981, the petitioner was suspended and on 20.10.1981 petitioner was served with a memo of charge-sheet. The charge against the petitioner was that railway administration would have suffered loss of the amount with an allegation that the petitioner being a lady Ticket Collector was duty bound to know that Retiring Room can be occupied by the authorised persons on payment of due charges only. By occupying the aforesaid in an unauthorised manner she displayed lack of integrity and devotion to duty and acted in a manner, which is the becoming of a railway servant contravening Rules 3(1) (II) and (III) of Railway Services (Conduct) Rules, 1966. By occupying the aforesaid in an unauthorised manner she displayed lack of integrity and devotion to duty and acted in a manner, which is the becoming of a railway servant contravening Rules 3(1) (II) and (III) of Railway Services (Conduct) Rules, 1966. On 29.10.1981, the petitioner submitted a tentative and incomplete explanation to the disciplinary authority against her illegal and malafide suspension order dated 16.10.1981 and against the illegal charge-sheet dated 20.10.1981. It has been stated in the said reply that there was no occasion for A.C.S. and Divisional Commercial Superintendent to check the Retiring Room at early hours at 4.45 a.m. This clearly shows the malafide and ulterior motive of the respondents. 4. One Sri G.P. Sahu was appointed as inquiry officer to conduct the enquiry into the charges levelled against the petitioner. The petitioner raised an objection by sending a letter to the Divisional Commercial Superintendent, who is the disciplinary authority that the officer who made the surprise check on 15.10.1981 at 4.45 a.m. hours in Retiring Room (Deluxe) should not hold the disciplinary proceedings and to nominate an inquiry officer. At least an officer over and above his rank should act as a disciplinary authority. A copy of the same has been filed as Annexure 5 to the writ petition. The petitioner raised an objection to the Divisional Commercial Superintendent, Northern Railway, Allahabad that persons concerned i.e. the Divisional Commercial Superintendent and A.C.S. who were involved in the matter should not acted as a disciplinary authority. The said objection has been rejected by the Divisional Commercial Superintendent holding therein that appointment of Sri G.P. Sahu, A.C.S. Tundla as inquiry officer was proper and regular and it has been done in accordance with Rules. 5. The petitioner has not been afforded any opportunity before the inquiry officer. The inquiry officer did not supply the relevant documents and the witnesses to whom they rely so that the petitioner might prefer her defence accordingly even the list of four documents mentioned in the memo of charges were not supplied to the petitioner. The petitioner again in her reply dated 26.6.1982 submitted to the Divisional Commercial Superintendent, Northern Railway, Allahabad, again reiterated her stand that the proceedings before the same authority who is involved in the matter cannot go legally and if he is permitted to proceed, action will be biased and full of revengeful spirit. The petitioner again in her reply dated 26.6.1982 submitted to the Divisional Commercial Superintendent, Northern Railway, Allahabad, again reiterated her stand that the proceedings before the same authority who is involved in the matter cannot go legally and if he is permitted to proceed, action will be biased and full of revengeful spirit. Further prayer was made to supply the relevant documents mentioned in the statement of witnesses to enable her to submit her explanation. A copy of the same has been annexed as Annexure 8 to the writ petition. Without affording an opportunity to provide him with necessary and relevant documents, the enquiry officer has submitted a report against the petitioner and on the basis of the ex-parte enquiry report an order was passed on 17.7.1982 by the Senior Divisional Commercial Superintendent, Northern Railway, Allahabad, dismissing the petitioner from service by a non-speaking order. 6. Even no show cause notice was given to the petitioner by supplying her a copy of the inquiry report and without giving a personal hearing. The petitioner submitted an application to the Divisional Commercial Superintendent, Northern Railway, Allahabad, to provide number of documents to unable her to file an appeal. But no documents as demanded by the petitioner were ever supplied. On 6.9.1982, the petitioner filed an appeal against the order dated 17.7.1982. In the meantime a suit was filed in the Court of Munsif at Allahabad and injunction order was granted and subsequently the suit was withdrawn and in view of the aforesaid fact, the earlier appeal is treated as null and void and the petitioner was asked to file another appeal which would be deemed on merits vide Divisional Railway Manager’s Order dated 21.3.1983. Then again, the petitioner filed an appeal on 13.4.1983. For the proper adjudication of the appeal the petitioner again demanded the copy of the proceeding together with the report of the inquiry officer and an application was submitted on 9.4.1994 but the Divisional Railway Manager vide order dated 25.8.1994 has dismissed the petitioner’s appeal. 7. Thereafter the petitioner raised a dispute before the Labour Court but the Labour Court without considering the grounds mentioned therein was also pleased to dismiss the dispute vide its award dated 21.7.1998. 8. 7. Thereafter the petitioner raised a dispute before the Labour Court but the Labour Court without considering the grounds mentioned therein was also pleased to dismiss the dispute vide its award dated 21.7.1998. 8. It has been submitted by the learned Counsel for the petitioner that the total inquiry against the petitioner was not fair and proper and no opportunity was afforded to the petitioner. The charges levelled against the petitioner cannot be said to be a misconduct which can lead to the order of dismissal. The petitioner being a lady was not in a position to leave the station in the night, therefore, with the permission of the ticket collector at the booth deposited Rs. 60/- for the purposes of stay in the night in the Retiring Room No. 1 (Deluxe). It is also not in dispute that receipt was there but in the receipt time was mentioned as 3.45 p.m. There is no denial to this effect that the petitioner has not deposited Rs. 60/- for the purposes of occupying the said Retiring Room. Therefore, it cannot be treated that the petitioner was un-authorisedly occupying the said Retiring Room. The charges levelled against the petitioner regarding doubtful integrity and devotion cannot be assailed in view of the facts and circumstances of the present case. Petitioner submits that she has submitted various applications to change the inquiry officer. As the same disciplinary authority, who was having ill will against the petitioner has been permitted to appoint the inquiry officer and ultimately on the basis of the aforesaid inquiry report, he was the authority to pass the order, petitioner on 9.4.1994 submitted an application to furnish the notices of the proceeding of the inquiry officer together but it was not supplied to the petitioner as the total inquiry is against the principle of natural justice, as such, the same is liable to be quashed. 9. The labour Court also has not considered the aforesaid fact and by a cryptic order the labour Court has also dismissed the claim of the petitioner. Before the Tribunal a dispute was raised that enquiry was not conducted in accordance with law. But the matter was heard by the Presiding Officer vide its Judgement and Order dated 2.3.1998 held that enquiry was not perverse. Before the Tribunal a dispute was raised that enquiry was not conducted in accordance with law. But the matter was heard by the Presiding Officer vide its Judgement and Order dated 2.3.1998 held that enquiry was not perverse. Thereafter the matter came up for final disposal before the Tribunal and the Tribunal has wrongly held that the punishment of dismissal has rightly awarded. 10. It has been submitted by the learned Counsel for the petitioner that the total proceeding against the petitioner is vitiated in law in view of the fact that one J.P. Sahu, Assistant Commercial Superintendent, Tundla was appointed as enquiry officer who submitted his report to the Senior Divisional Commercial Superintendent, Northern Railway, Allahabad. The Enquiry Officer has recorded a finding that petitioner being Ticket Collector occupied the Deluxe Retiring Room at Allahabad Junction on 14/15.10.1981 in an unauthorised manner and that the charges levelled against her vide charge-sheet dated 20.10.1981 are substantiated. The Enquiry Officer and the authority who took action on the basis of the aforesaid enquiry report are two different authorities. Therefore, in view of the judgement reported in 1993 (4) SCC 727 , Managing Director ECIL, Hyderabad and others v. B. Karunakar and others, it has been held by the Apex Court that the delinquent employee has a right to receive a copy of the enquiry report before the disciplinary authority arrives as its conclusions with regard to the charges levelled against him. That right is a part of the employee’s right to defend himself against the charges levelled against him prior to the issuance of show cause notice for the purposes of imposing punishment by the disciplinary authority. A denial of the enquiry officer’s report before the disciplinary authority takes its decision on the charges, will be deemed to be denial of reasonable opportunity to the employee to prove his innocence and the said act is a breach of principles of natural justice. In para 29 of the said judgement is relevant for this purpose. The same is quoted below : “29. Hence it has to be held that when the enquiry officer is not the disciplinary authority, the delinquent employee has a right to receive a copy of the enquiry officer’s report before the disciplinary authority arrives at its conclusions with regard to the guilt or innocence of the employee with regard to the charges levelled against him. Hence it has to be held that when the enquiry officer is not the disciplinary authority, the delinquent employee has a right to receive a copy of the enquiry officer’s report before the disciplinary authority arrives at its conclusions with regard to the guilt or innocence of the employee with regard to the charges levelled against him. That right is a part of the employee’s right to defend himself against the charges levelled against him. A denial of the enquiry officer’s report before the disciplinary authority takes its decision on the charges, is a denial of reasonable opportunity to the employee to prove his innocence and is a breach of the principles of natural justice.” 11. The aforesaid principle laid down by the Apex Court is binding upon the administrative authority has not been followed. This makes it clear that the petitioner was not afforded any opportunity of hearing by the authority concerned. 12. Further it has been argued on behalf of the petitioner that the punishment awarded does not amount to misconduct of any violation of any Service Rules. Therefore, if it is not misconduct the punishment awarded to the petitioner is disproportionate to the charges levelled against the petitioner. The observation in the enquiry report that the receipt was issued after surprise checking, is contrary to the material on record i.e. the receipt. The petitioner had deposited the amount and the receipt was issued at 3.45 a.m. The receipt was left with the person concerned who was posted at the counter. According to his own admission the surprise checking was conducted at about 4.45 a.m. i.e. one hour after the petitioner had deposited the requisite amount of Deluxe Room charges. Therefore, it cannot be inferred by any means that the petitioner was occupying the Deluxe Room unauthorisedly. As the amount was already paid as room rent, the receipt for the same was in possession of the person concerned who was authorised to issue the receipts. Petitioner being a railway employee, in bonafide belief and good faith after depositing the amount, asking the person concerned to keep the receipt with him so that the petitioner could collect the same in the morning. Petitioner being a railway employee, in bonafide belief and good faith after depositing the amount, asking the person concerned to keep the receipt with him so that the petitioner could collect the same in the morning. The Assistant Commercial Superintendent concocted a false and baseless story when he came to know that the petitioner was occupied a Deluxe Room, he took into confidence the Divisional Commercial Superintendent and got an opportunity because the receipt was with the official concerned who was authorised to issue the same, and he make an illegal endorsement on it that “detected”. On the basis of the same a false and incorrect case was set-up against the petitioner that the petitioner was occupying the Deluxe room without paying the rent. The findings to this effect recorded by the enquiry officer are also incorrect and is not based on any evidence on record. In order to come out from the discrepancy pointed out herein before the enquiry officer recorded a strange finding based on conjectures and surmises. The petitioner was not at fault. However, assuming without admitting this fact that the petitioner was at fault, then the extreme punishment awarded to the petitioner of dismissal is extremely disproportionate to the charges levelled of non-payment of Rs. 60/- only towards the rent of Deluxe retiring room, which, in fact the petitioner had already deposited prior to occupying the Deluxe Room. Only on the aforesaid charge, the petitioner was dismissed from service by awarding the extreme punishment. The punishment on the aforesaid charge is highly excessive and arbitrary. The reliance has been placed upon a judgement of the Apex Court reported in JT 2000(3) SC 173, U.P. State Road Transport Corporation v. Mahesh Kumar Mishra and others and reliance has been placed upon para 8 of the said judgement. The same is being reproduced below : “8. This will show that not only this 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. The law, therefore, is not contended by the learned Counsel for the appellants, that the High Court can, in no circumstance, interfere with the quantum of punishment imposed upon a delinquent employee after disciplinary proceedings.” 13. The law, therefore, is not contended by the learned Counsel for the appellants, that the High Court can, in no circumstance, interfere with the quantum of punishment imposed upon a delinquent employee after disciplinary proceedings.” 13. Further it has been argued by Sri Anil Sharma learned Counsel for the petitioner that the procedure for imposing penalties is provided under the Railways Servants (Discipline and Appeal) Rules, 1968. In the aforesaid provision, the procedure regarding initiating any action against an employee of misconduct or misbehaviour has been provided. The same is being reproduced below : “9. Procedure for imposing major penalties.—(1) No order imposing any of the penalties specified in Cls. (v) to (ix) of sub-rule (1) of rule 6 shall be made except after an inquiry held, as far as may be, in the manner provided in this rule and Rule 10, or in the manner provided by the Public Servants (Inquiries) Act, 1850 (37 of 1850), where such inquiry is held under that Act. (2) Whenever the disciplinary authority is of the opinion that there are grounds for inquiring to the truth of any imputation of misconduct or misbehaviour against a railway servant, it may itself inquire into, or appoint under this rule or under the provisions of the Public Servants (Inquiries ) Act, 1850, as the case may be, an authority to inquire into the truth thereof. Explanation.—Whether the disciplinary authority itself holds the inquiry, any reference in sub-rule (9) and in sub-rule (11) to sub-rule (19) to the inquiring authority shall be construed as a reference to the disciplinary authority. (3) Where it is proposed to hold an inquiry against a railway servant under this rule and Rule 10, the disciplinary authority shall draw or cause to be drawn up— (i) the substance of the imputations of misconduct or misbehaviour into definite and distinct articles of charge; (ii) a statement of the imputations of misconduct or misbehaviour in support of each article of charge, which shall contain— (a) a statement of all relevant facts including any admission or confession made by the railway servant; (b) a list of documents by which, and a list of witnesses by whom, the articles of charge are proposed to be sustained. (4) The disciplinary authority shall deliver or cause to be delivered to the railway servant a copy of the articles of charge, the statement of the imputations of misconduct or misbehaviour and a list of documents and witnesses by which each article of charge is proposed to be sustained and shall require the railway servant to submit a written statement of his defence within ten days, if he does not require to inspect any documents of the preparation of his defence, and if he requires to inspect any documents, within ten days after completion of the inspection of documents and to state whether he desires to be heard in person. (5) The railway servant may, for the purpose of preparing his defence— (i) inspect and take extracts from the documents specified in the list referred to in sub-rule (3) within five days of the receipt thereof or within such further time not exceeding five days as the disciplinary authority may allow; (ii) submit a list of witnesses to be examined on his behalf. Note.—If the railway servant applies, in writing, for the supply of copies of the statements of witnesses mentioned in the list referred to in sub-rule (3), the disciplinary authority shall furnish him with a copy each of such statements as early as possible and in any case not later than three days before the commencement of the examination of the witnesses on behalf of the disciplinary authority. (iii) give a notice within ten days of the receipt of the list of documents referred to in sub-rule (3) or within such further time not exceeding ten days as the disciplinary authority may allow for inspection of any other documents which are in the possession of railway administration but not mentioned in the list referred to in sub-rule (3). Note.—The railway servant shall indicate the relevance of the documents required by him for inspection. (6) The disciplinary authority shall, on receipt of the notice for inspection, of documents, permit the railway servant to do so : Provided that the disciplinary authority may, for reasons to be recorded by it in writing, refuse permission to inspect all or any such documents as are in its opinion not relevant to the case or it would be against the public interest or security of the State to allow him access thereto. (7) (a) On receipt of the written statement of defence, the disciplinary authority may itself inquire into such of the articles of change as are not admitted, or, if it considers it necessary to do so, appoint, under sub-rule (2) inquiring authority for the purpose, and where all the articles of charge have been admitted by the railway servants in his written statement of defence, the disciplinary authority shall record its findings on each charge after taking such further evidence as it may think fit and shall act in the manner laid down in Rule 10. (b) If no written statement is submitted by the railway servant, the disciplinary authority may itself inquire into the articles of charge or may, if it considers it necessary to do so, appoint, under sub-rule (2) an inquiring authority for the purpose. (c) Where the disciplinary authority itself inquires into any article of charge or appoints an inquiring authority for holding an inquiry into such charge, it may, by an order in writing, appoint a railway or any other Government servant to be known as the “Presenting Officer” to present on its behalf the case in support of the articles of charge. (8) The disciplinary authority shall, where it is not the inquiring authority, forward to the inquiring authority— (i) a copy of the articles of charge and the statement of the imputations of misconduct or misbehaviour; (ii) a copy of the written statement of defence, if any, submitted by the railway servant; (iii) a copy of the statements of witnesses, if any, referred to in sub-rule (3); (iv) evidence proving the delivery of the documents referred to in sub-rule (3) to the railway servant; and (v) a copy of the order appointing the “Presenting Officer”. (9) The railway servant may present his case with the assistance of any other railway servant (including a railway servant on leave preparatory to retirement) employed on the same railway administration on which he is working. If the railway servant is employed in the office of the Railway Board, its attached office, or subordinate office, he may present his case with the assistance of any other railway servant (including a railway servant on leave preparatory to retirement) employed in the office of the Railway Board, attached office, or subordinate office, as the case may be, in which he is working. Notes.—(1) In the case of a non-gazetted railway servant, he may have the assistance of an official of a railway trade union recognized by the railway administration under which the railway servant is employed, but shall not engage a legal practitioner. A trade union official shall not be allowed to appear in a disciplinary case before an inquiring authority unless he has worked as such in recognized railway trade union for a period of at least one year continuously before he appears and subject to the condition that he takes no fees. (2) Nomination of an assisting railway servant or a railway trade union official shall not be accepted if at the time of nomination the assisting railway servant or the railway trade union official has more than two pending disciplinary cases in which he has to assist. (10) After the nomination of the assisting railway servant or a railway trade union official and the inspection of documents and other necessary steps preliminary to the inquiry are completed, a date ordinarily not exceeding one month shall be fixed for the inquiry and the railway servant informed accordingly. (11) On the date fixed for the inquiry, the oral and documentary evidence by which the articles of charge are proposed to be proved shall be produced by or on behalf of the disciplinary authority. The witnesses shall be examined by or on behalf of the Presenting Officer, if any, and may be cross-examined by or on behalf of the railway servant. The Presenting Officer, if any, shall be entitled to re-examine the witnesses on any points on which they have been cross-examined, but not on any new matter without the leave of the inquiring authority. The inquiring authority may also put such questions to the witnesses as it thinks fit. The Presenting Officer, if any, shall be entitled to re-examine the witnesses on any points on which they have been cross-examined, but not on any new matter without the leave of the inquiring authority. The inquiring authority may also put such questions to the witnesses as it thinks fit. (12) If it shall appear necessary before the close of the case on behalf of the disciplinary authority, the inquiring authority may, in its discretion, allow the Presenting Officer, if any, to produce evidence not included in the list given to the railway servant or may itself call for new evidence or recall and re-examine any witness and in such case the railway servant shall be entitled to have, if he demands it, a copy of the list of further evidence proposed to be produced and an adjournment of the inquiry for three clear days before the production of such new evidence, exclusive of the day of adjournment and the day to which the inquiry is adjourned. The inquiring authority shall give the railway servant an opportunity of inspecting such documents before they are taken on the record. The inquiring authority may also allow the railway servant to produce new evidence, if it is of the opinion that the production of such evidence is necessary in the interest of justice. Note.—New evidence shall not be permitted or called for or any witness shall not be recalled to fill up any gap in the evidence. Such evidence shall be called for only when there is an inherent lacuna or defect in the evidence which has been produced originally. (13) When the case for the disciplinary authority is closed, the railway servant shall be required to state his defence orally or in writing, as he may prefer. If the defence is made orally, it shall be recorded and the railway servant shall be required to sign the record. In either case a copy of the statement of defence shall be given to the Presenting Officer, if any, appointed. (14) The evidence on behalf of the railway servant shall then be produced. The railway servant may examine himself in his own behalf if he so prefers. The witnesses produced by the railway servant shall then be examined and shall be liable to cross-examination and re-examination by the inquiring authority according to the provisions applicable to the witnesses for the disciplinary authority. The railway servant may examine himself in his own behalf if he so prefers. The witnesses produced by the railway servant shall then be examined and shall be liable to cross-examination and re-examination by the inquiring authority according to the provisions applicable to the witnesses for the disciplinary authority. (15) The inquiring authority may after the railway servant closes his case, and shall, if the railway servant has not examined himself, generally question him on the circumstances appearing against him in the evidence for the purpose of enabling the railway servant to explain any circumstances appearing in the evidence against him. (16) The inquiring authority may after the completion of the production of evidence hear the Presenting Officer, if any, appointed and the railway servant, or permit them to file written briefs of their respective cases, if they so desire. (17) If the railway servant to whom a copy of the articles of charge has been delivered, does not submit the written statement of defence on or before the date specified for the purpose or otherwise fails or refuses to comply with the provisions of this rule, the inquiring authority may hold the inquiry ex parte. (18) Whenever any inquiring authority, after having heard and recorded the whole or any part of the evidence in an inquiry ceases to exercise jurisdiction therein and is succeeded by another inquiring authority which has, and which exercises, such jurisdiction, the inquiring authority so succeeding may act on the evidence so recorded by its predecessor, or partly recorded by its predecessor and partly recorded by itself : Provided that if the succeeding inquiring authority is of the opinion that further examination of any of the witnesses whose evidence has already been recorded is necessary in the interests of justice, it may recall, examine, cross-examine and re-examine any such witnesses as hereinbefore provided. (19) (i) After the conclusion of the inquiry, a report shall be prepared and it shall contain— (a) the articles of charge and the statement of the imputations of misconduct or misbehaviour; (b) the defence of the railway servant in respect of each article of charge; (c) an assessment of the evidence in respect of each article of charge; (d) the findings on each article of charge and the reasons therefor. Explanation.—If in the opinion of the inquiring authority the proceedings of the inquiry establish any article of charge different from the original articles of charge, it may record its findings on such article of charge : Provided that the findings on such article of charge shall not be recorded unless the railway servant has either admitted the facts on which such article of charge is based or has had a reasonable opportunity of defending himself against such article of charge. (ii) The inquiring authority, where it is not itself the disciplinary authority, shall forward to the disciplinary authority the records of inquiry, which shall include— (a) the report prepared by it under Cl. (i) ; (b) the written statement of defence, if any, submitted by the railway servant; (c) the oral and documentary evidence produced in the course of the inquiry; (d) written briefs, if any, filed by the Presenting Officer, if any, or the railway servant or both during the course of the inquiry; and (e) the orders, if any, made by the disciplinary authority and the inquiring authority in regard to the inquiry.” 14. Further submission has been made that Rule 10 provides regarding taking action on the basis of the enquiry report. Rule 10 sub-clause (5) provides to this effect that if the disciplinary authority having recorded a finding on all articles of charges is of the opinion that any of the penalties mentioned in Rule 6 is to be imposed upon a railway servant it shall furnish a copy of the enquiry report and the findings on each article of charge and a statement to the Government Servant. Sub-rule (13) provides that before imposing penalty, a railway servant is entitled to get a notice calling upon him to submit reply. Rule 10 is being quoted below : “10. Sub-rule (13) provides that before imposing penalty, a railway servant is entitled to get a notice calling upon him to submit reply. Rule 10 is being quoted below : “10. Action on the inquiry report—(1) If the disciplinary authority having regard to its own findings where it is itself the inquiring authority, or having regard to its decision on all or any of the findings of the inquiring authority, is of the opinion that the penalty warranted is such as is within its competence, that authority may act on the evidence on the record or may, if it is of the opinion that further examination of any of the witnesses is necessary in the interest of justice, recall the witness and examine, cross-examine and re-examine the witness and may impose on the railway servant such penalty as is within its competence in accordance with these rules. Where such disciplinary authority is of the opinion that the penalty warranted is such as is not within its competence, that authority shall forward the records of the inquiry to the appropriate disciplinary authority who shall act in the manner as hereinafter provided. (2) The disciplinary authority, if it is not itself the inquiring authority may, for reasons to be recorded by it in writing, remit the case to the inquiring authority for further inquiry and report and the inquiring authority shall thereupon proceed to hold further inquiry according to the provisions of Rule 9 as far as may be. (3) The disciplinary authority shall, if it disagrees with the findings of the inquiring authority on any article of charge, record its reasons for such disagreement and record its own findings on such charge, if the evidence on record is sufficient for the purpose. (4) If the disciplinary authority having regard to its findings on all or any of the articles of charge is of the opinion that any of the penalties specified in Cls. (4) If the disciplinary authority having regard to its findings on all or any of the articles of charge is of the opinion that any of the penalties specified in Cls. (i) to (iv) of sub-rule (1) and Cls.(i) and (ii) of sub-rule (2) of Rule 6 should be imposed on the railway servant, it shall, notwithstanding anything contained in Rule 11, make an order imposing such penalty : Provided that in every case where it is necessary to consult the Commission, the record of the inquiry shall be forwarded by the disciplinary authority to the Commission for its advice and such advice shall be taken into consideration before making any order imposing any penalty on the railway servant. (5) (i) If the disciplinary authority having regard to its findings on all or any of the articles of charge is of the opinion that any of the penalties specified in Cls. (v) to (ix) of sub-rule (1) of Rule 6 should be imposed on the railway servant, it shall— (a) furnish to the railway servant a copy of the report of the inquiry held by it and its findings on each article of charge, or where the inquiry has been held by an inquiring authority, appointed by it, a copy of the report of such authority and a statement of its findings on each article of charge together with brief reasons for its disagreement, if any, with the findings of the inquiring authority; (b) give the railway servant a notice stating the penalty proposed to be imposed on him and calling upon him to submit within a specified time, ordinarily not exceeding fifteen days from the date of the receipt of the notice subject to a minimum of seven days, such representation as he may wish to make on the proposed penalty on the basis of the evidence adduced during the inquiry held under Rule 9. (ii) (a) In every case in which it is necessary to consult the Commission, the record of the inquiry together with a copy of the notice given under Cl. (i) and the representation made in pursuance of such notice, if any, shall be forwarded by the disciplinary authority to the Commission for its advice. (ii) (a) In every case in which it is necessary to consult the Commission, the record of the inquiry together with a copy of the notice given under Cl. (i) and the representation made in pursuance of such notice, if any, shall be forwarded by the disciplinary authority to the Commission for its advice. (b) The disciplinary authority shall after considering the representation, if any, made by the railway servant, and the advice given by the Commission determine what penalty, if any, should be imposed on the railway servant and make such order as it may deem fit. (iii) Where it is not necessary to consult the Commission, the disciplinary authority shall consider the representation, if any, made by the railway servant in pursuance of the notice given to him under Cl. (i) and determine what penalty, if any should be imposed on him and make such order as it may deem fit.” 15. Further, it has been submitted that according to Railway Services (Conduct) Rules, 1966, there is no violation which has been committed by the petitioner. Rule 3 reads as follows : “3. General.—(1) Every railway servant shall at all times— (i) maintain absolute integrity; (ii) maintain devotion to duty; and (iii) do nothing which is unbecoming of a railway or Government servant.” (2) (i) Every railway servant holding a supervisory post shall take all possible steps to ensure the integrity and devotion to duty of all railway servants for the time being under his control and authority; (ii) No railway servant shall in the performance of his official duties or in the exercise of powers conferred on him, act otherwise than in his best judgement except when he is acting under the direction of his official superior and shall, where he is acting under such direction, obtain the direction in writing, wherever practicable, and where it is not practicable, to obtain the direction in writing, he shall obtain written confirmation of the direction as soon thereafter as possible.” 16. From the perusal of the aforesaid rule, it is clear that the petitioner has not violated any ingredients of Rule 3 as stated by the respondents. Occupying a room, being a government servant after payment of requisite fee cannot be said to be the misconduct by the authorities concerned. From the perusal of the aforesaid rule, it is clear that the petitioner has not violated any ingredients of Rule 3 as stated by the respondents. Occupying a room, being a government servant after payment of requisite fee cannot be said to be the misconduct by the authorities concerned. It is not disputed by the respondents that copy of the enquiry report was not provided to the petitioner in spite of the application submitted by the petitioner annexed to the writ petition after the order passed by the disciplinary authority imposing a punishment of dismissal. This act of the respondents is in clear violation of Rule 10 of the Railway Servants (Discipline and Appeal) Rules, 1968. Admittedly, no copy of the enquiry report was ever served upon the petitioner before passing the order of punishment. It is also not disputed that the enquiry officer was other than the disciplinary authority. Therefore, in view of the judgement of Managing Director ECIL, Hyderabad and others, (supra) there is a clear violation of the principle of natural justice and violation of Rules. Therefore, the punishment awarded is liable to be quashed. 17. Further, it has been submitted that as in view of Rule 3 of the Railway Service (Conduct) Rules, 1966 the act of the petitioner does not amount to said to be misconduct. Therefore, punishment awarded to the petitioner is highly disproportionate and as such liable to be quashed. 18. Further contention raised on behalf of the petitioner is that in spite of the fact if the respondents were of the opinion that some mistake or there is some misconduct on the part of the petitioner some minor punishment should have been awarded. As admittedly, the charges levelled against the petitioner does not come under the definition of misconduct, therefore, there cannot be any punishment of dismissal. The punishment awarded to the petitioner is highly disproportionate to the charges, as such, the same is liable to be quashed. 19. Another judgment cited by the petitioner in 2002 (1) ESC 341 (All), Shahjahan Khan v. State of U.P. and others. The charge in the aforesaid case was that the petitioner in that writ petition was having a married wife, lived with another woman for seven months. The same was in violation of Rule 29 of the U.P. Government Servants Conduct Rules, 1956. The charge in the aforesaid case was that the petitioner in that writ petition was having a married wife, lived with another woman for seven months. The same was in violation of Rule 29 of the U.P. Government Servants Conduct Rules, 1956. This Court has held that merely because of government servant who had married wife lived with a woman, it does not mean that he has married to her, unless the evidence proves the second marriage. The order of dismissal was quashed. 20. Another judgment relied upon by the Counsel for the petitioner is Raj Kishore Yadav v. U.P. Public Service Tribunal, Lucknow and others, 2004(1) ESC 509. In support of the contention of the aforesaid judgment, the petitioner submits that this Court as well as the Apex Court has a wide power of judicial review of the quantum of punishment. In that case, the employee concerned made some wrong measurement. This Court has held that mistake may be committed by any person. It is a part of human nature, therefore, applying the principle laid down by the Apex Court it has been held that the punishment imposed is highly excessive and disproportionate. 21. The another judgment relied upon by the petitioner in Dev Singh v. Punjab Tourism Development Corporation Ltd. and another, (2003) 8 SCC 9 . In the light of the aforesaid judgment the Counsel for the petitioner submits that this Court has full power of judicial review regarding proportionality of punishment and this Court while considering the aforesaid fact can set aside the punishment, if the punishment imposed by the disciplinary authority or the appellate authority shocks the judicial conscience of the Court, the Court can mould the relief. The reliance has been placed upon paras 6 and 7 to the judgment. The same is being reproduced below : “6. A perusal of the above judgments clearly shows that a Court sitting in appeal against a punishment imposed in the disciplinary proceedings will not normally substitute its own conclusion on penalty, however, if the punishment imposed by the disciplinary authority or the appellate authority shocks the conscience of the Court, then the Court would appropriately mould the relief either by directing the disciplinary/appropriate authority to reconsider the penalty imposed or to shorten the litigation it may make an exception in rare cases and impose appropriate punishment with cogent reasons in support thereof. It is also clear from the above noted judgments of this Court, if the punishment imposed by the disciplinary authority is totally disproportionate to the misconduct proved against the delinquent officer, then the Court would interfere in such a case. 7. Applying the said principles laid down by this Court in the cases noted hereinabove, we see that in this case the appellant has been serving the respondent Corporation for nearly 20 years with unblemished service, before the present charge of misconduct was levelled against him. The charge itself shows that what was alleged against the appellant was misplacement of a file and there is no allegation whatsoever that this file was either misplaced by the appellant deliberately or for any collateral consideration. A reading of the charge-sheet shows that the misplacement alleged was not motivated by any ulterior consideration and at the most could be an act of negligence, consequent to which the appellant was unable to traced the file again. The disciplinary authority while considering the quantum of punishment came to the conclusion that the misconduct of the nature alleged against the appellant should be viewed very seriously to prevent such actions in future, whereby important and sensitive records could be lost or removed or destroyed by the employee under whose custody the records are kept. Therefore, he was of the opinion that a deterrent punishment was called for, forgetting for a moment that no such allegations of misplacing of important or sensitive record was made in the instant case against the appellant and what he was charged of was misplacement of a file, importance or sensitiveness of which was not mentioned in the charge-sheet. Therefore, in our opinion, the disciplinary authority was guided by certain facts which were not on record, even otherwise, we are of the opinion that when the Service Bye-laws applicable to the Corporation under Service Bye-law 17 provide various minor punishments, we fail to appreciate why only maximum punishment available under the said Bye-laws should be awarded on the facts of the present case. We think the punishment of dismissal for mere misplacement of a file without any ulterior motive is too harsh a punishment which is totally disproportionate to the misconduct alleged and the same certainly shocks our judicial conscience. We think the punishment of dismissal for mere misplacement of a file without any ulterior motive is too harsh a punishment which is totally disproportionate to the misconduct alleged and the same certainly shocks our judicial conscience. Hence, having considered the basis on which the punishment of dismissal was imposed on the appellant and the facts and circumstances of this case, we think to avoid further prolonged litigation it would be appropriate if we modify the punishment ourselves. On the said basis, while upholding the finding of misconduct against the appellant, we think it appropriate that the appellant be imposed a punishment of withholding of one increment including stoppage at the efficiency bar in substitution of the punishment of dismissal awarded by the disciplinary authority. We further direct that the appellant will not be entitled to any back wages for the period of suspension. However, he will be entitled to the subsistence allowance payable up to the date of the dismissal order.” 22. In view of the aforesaid fact, the petitioner submits that the total disciplinary proceedings against the petitioner is vitiated only on the ground that the petitioner has not been afforded an opportunity, which was necessary to follow the principle of natural justice. Another aspect of the matter is that as it does not come under the definition of misconduct’, therefore, the punishment of dismissal is highly excessive and disproportionate to the offence committed and is liable to be quashed. 23. On the other hand, Sri Sushil Kumar Srivastava, who appeared for the respondents has submitted that on surprise checking on 14/15.10.1981 the petitioner was found occupied the Deluxe retiring room at Railway Station, Allahabad unauthorisedly, as such, she was charge-sheeted and one G.P. Sahu, Assistant Commercial Superintendent, Tundla was appointed as enquiry officer and petitioner after being found guilty of misconduct contravening the Rule 3 (i)(ii)(iii) of Railway Servant Conduct Rules, 1966 by order dated 17.7.1982, has been dismissed from service. The departmental appeal filed by the petitioner was also dismissed and the labour Court has also justified the punishment awarded and has dismissed the dispute raised by the petitioner. The departmental appeal filed by the petitioner was also dismissed and the labour Court has also justified the punishment awarded and has dismissed the dispute raised by the petitioner. The disciplinary authority has held that the petitioner has failed to maintain absolute integrity and devotion of duty and acted in a manner which is unbecoming of railway servant inasmuch as she along with two other ladies occupied Deluxe Retiring Room at Allahabad junction in the night of 14/15.10.1981 in an unauthorised manner. The same was detected in a surprise checking at 4.30 a.m. on 15.10.1981 contravening the Rule 3(1) (ii)(iii) of the Railway Service Conduct Rules, 1966. The presiding officer of the labour Court after considering each and every aspect of the matter of punishment and finding has held that punishment awarded to the petitioner is not shockingly disproportionate to the misconduct, hence call for no interference. The reliance has been placed upon a judgement of the Apex Court reported in 1996 SCC (L&S) 80, B.C. Chaturvedi v. Union of India and others. In support of the aforesaid contention, the learned Counsel for the petitioner submits that there is a very limited scope of judicial review and the Court and Tribunal cannot interfere with the finding of fact based on evidence and to substitute its own independent findings. Where the findings of disciplinary authority are based on some evidence, Court/tribunal cannot reappreciate the evidence and substitute its own findings. As awarding a punishment is in total domain of the administrative authority. Further reliance has been placed upon a judgment of the Apex Court reported in 2005 ACJ 2033, V. Ramana v. A.P.S.R.T.C and others. Reliance has been placed upon para 11 of the said judgment. The same is being reproduced below : “11. The common thread running through in all these decisions is that the Court should not interfere with the administrator’s decision unless it was illogical or suffers from procedural impropriety or was shocking to the conscience of the Court, in the sense that it was in defiance of logic or moral standards. In view of what has been stated in Wednesbury 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 for that of the administrator. In view of what has been stated in Wednesbury 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 for that of the administrator. The scope of judicial review is limited to the deficiency in decision making process and not the decision.” 24. Further reliance has been placed upon a judgment reported in 2006 (2) AWC 1470, State of U.P. v. Sheo Shanker Lal Srivastava and others. Placing reliance upon the aforesaid judgment the learned Counsel for the petitioner submits that unless and until the punishment awarded by the disciplinary authority or the appellate authority shocks the consciousness of the Court, there is no further scope for interference. Further reliance has been placed upon a judgment of the Apex Court reported in AIR 1996 SC 1561 , State of U.P. and others v. Nand Kishore Shukla and another. Reliance has been placed upon para 7 of the said judgment. The same is being quoted below : “7. It is settled law that the Court is not a Court of appeal to go into the question of imposition of the punishment. It is for the disciplinary authority to consider what would be the nature of the punishment to be imposed on a Government servant based upon the proved misconduct against the Government servant. Its proportionality also cannot be gone into by the Court. The only question is whether the disciplinary authority would have passed such an order. It is settled law that even one of the charges, if held proved and sufficient for imposition of penalty by the disciplinary authority or by the appellate authority, the Court would be loath to interfere with that part of the order. The order of removal does not cast stigma on the respondent to disable him to seek any appointment elsewhere. Under these circumstances, we think that the High Court was wholly wrong in setting aside the order.” 25. I have heard Sri Anil Sharma, learned Counsel for the petitioner and Sri Sushil Kumar Srivastava for the respondents and have perused the record. 26. From the record it appears that the petitioner who was a lady ticket collector has stayed in the night after visiting Maiher Temple on 14.10.1981 night. It is also clear from the record that the amount was deposited by the petitioner i.e. Rs. 26. From the record it appears that the petitioner who was a lady ticket collector has stayed in the night after visiting Maiher Temple on 14.10.1981 night. It is also clear from the record that the amount was deposited by the petitioner i.e. Rs. 60/- and there is no denial that amount was not accepted by the authorised person and a receipt was issued. On the direction issued by the officer concerned, on the receipt a remark was mentioned “detected” at 4.45 a.m. The petitioner was suspended on 16.10.1981 by Divisional Commercial Superintendent, Northern Railway, Allahabad and on 20.10.1981 a charge-sheet was given to the petitioner levelling a charge that railway administration has suffered a loss of amount and on the aforesaid checking Km. Urmila Verma, lady T.C. working as Matron (Petitioner) was duty bound to know that retiring room can be occupied by authorised persons on payment of due charges only. The further charge was that by occupying the Deluxe Retiring Room in an unauthorised manner, she has displayed lack of integrity and devotion of duty and acted in a manner which is unbecoming of a railway servant thereby contravening Rules 3(1)(ii)(iii) of the Railway Services (Conduct) Rules, 1966. Petitioner submitted a reply on 29.10.1981 explaining her conduct that under what circumstances, she has occupied the room after payment of Rs. 60/- and the aforesaid action against the petitioner has been taken in a malafide manner. Against one G.P. Sahu, who was appointed as enquiry officer an objection to that effect was taken by the petitioner. From the perusal of the enquiry report it appears that petitioner was not afforded proper opportunity which is necessary in law, after suspension the petitioner as attached to Tundla. 27. From the perusal of the enquiry report, though there is a mention that various dates were fixed to hold the enquiry but the petitioner neither nominated any defence nor participated in the proceeding and in spite of sending letters she has not participated in the proceeding. But there is nothing on record to show that the information regarding the date, time and place as required under the law as ever fixed by the enquiry officer after intimation to the petitioner. But there is nothing on record to show that the information regarding the date, time and place as required under the law as ever fixed by the enquiry officer after intimation to the petitioner. If that has not been done then the total enquiry is vitiated in view of the judgement of this Court reported in 2004 (3) UPLBEC 2864, which has been affirmed by the Apex Court. 28. Further it is apparent from the record that the copy of the enquiry report was given to the petitioner after the punishment of dismissal was awarded by the disciplinary authority, as held in Managing Director ECIL, Hyderabad and others (supra) where the enquiry officer is other than the disciplinary authority, the disciplinary proceeding break into two stages. The first stage needs when disciplinary authority arrives at a conclusion on the basis of evidence, enquiry officer report and the delinquent employee reply to it. The second stage begins when the disciplinary authority decides to impose penalty on the basis of its conclusion. If the disciplinary authority decides to drawn the disciplinary proceeding the second stage is not even reached. When the disciplinary authority has considered the finding in its report and has come to the conclusion with regard to the guilt of the employees and proposes to award penalty on the basis of its conclusion. The first right is the right to prove innocence. Both the dictate of the reasonable opportunity as well as the principle of natural justice, therefore, require that before the disciplinary authority comes to its own conclusion the delinquent employee should have an opportunity to reply to the enquiry officers finding. The disciplinary authority is then required to consider the evidence, the report of the enquiry officer and representation of the employee against him. 29. The Supreme Court has further held in the aforesaid case when the enquiry officer is not the disciplinary authority then the delinquent employee has a right to receive a copy of the enquiry officer’s report before the disciplinary authority arrives at it conclusion with regard to the guilt or innocence of the employee with regard to charges levelled against him. A denial to this effect of reasonable opportunity to the employee to prove has innocence is a breach of principle of natural justice. A denial to this effect of reasonable opportunity to the employee to prove has innocence is a breach of principle of natural justice. In Managing Director, ECIL, Hyderabad and others v. B. Karunakar and others paras 26, 28 and 29 are being reproduced below : “26. The reason why the right to receive the report of the Inquiry Officer is considered an essential part of the reasonable opportunity in the first stage and also a principle of natural justice is that the findings recorded by the Inquiry Officer form an important material before the disciplinary authority which along with the evidence is taken into consideration by it to come to its conclusions. It is difficult to say in advance, to what extent the said findings including the punishment, if any, recommended in the report would influence the disciplinary authority while drawing its conclusions. The findings further might have been recorded without considering the relevant evidence on record, or by misconstruing it or unsupported by it. If such a finding is to be one of the documents to be considered by the disciplinary authority, the principles of natural justice require that the employee should have a fair opportunity to meet, explain and controvert it before he is condemned. It is the negation of the tenets of justice and a denial of fair opportunity to the employee to consider the findings recorded by a third party like the Inquiry Officer without giving the employee an opportunity to reply to it. Although it is true that the disciplinary authority is supposed to arrive at its own findings on the basis of the evidence recorded in the inquiry, it is also equally true that the disciplinary authority takes into consideration the findings recorded by the Inquiry Officer along with the evidence on record. In the circumstances, the findings of the Inquiry Officer do constitute an important material before the disciplinary authority which is likely to influence its conclusions. If the Inquiry Officer were only to record the evidence and forward the same to the disciplinary authority, that would not constitute any additional material before the disciplinary authority of which the delinquent employee has no knowledge. If the Inquiry Officer were only to record the evidence and forward the same to the disciplinary authority, that would not constitute any additional material before the disciplinary authority of which the delinquent employee has no knowledge. However, when the Inquiry Officer goes further and records his findings, as stated above, which may or may not be based on the evidence on record or are contrary to the same or in ignorance of it, such findings are an additional material unknown to the employee but are taken into consideration by the disciplinary authority while arriving at its conclusion. Both the dictates of the reasonable opportunity as well as the principles of natural justice, therefore, require that before the disciplinary authority comes to its own conclusions, the delinquent employee should have an opportunity to reply to the Inquiry Officer’s findings. The disciplinary authority is then required to consider the evidence, the report of the Inquiry Officer and the representation of the employee against it. 28. The position in law can also be looked at from a slightly different angle. Article 311(2) says that the employee shall be given a “reasonable opportunity of being heard in respect of the charges against him”. The findings on the charges given by a third person like the Inquiry Officer, particularly when they are not borne out by the evidence or are arrived at by overlooking the evidence or misconstruing it, could themselves constitute new unwarranted imputations. What is further, when the proviso to the said Article states that “where it is proposed after such inquiry to impose upon him any such penalty such penalty may be imposed on the basis of the evidence adduced during such inquiry and it shall not be necessary to give such person any opportunity of making representation on the penalty proposed”, if in effect accepts two successive stages of differing scope. Since the penalty is to be proposed after the inquiry, which inquiry in effect is to be carried out by the disciplinary authority (the Inquiry Officer being only his delegate appointed to hold the inquiry and to assist him), the employee’s reply to the Inquiry Officer’s report and consideration of such reply by the disciplinary authority also constitute an integral part of such inquiry. The second stage follows the inquiry so carried out and it consists of the issuance of the notice to show cause against the proposed penalty and of considering the reply to the notice and deciding upon the penalty. What is dispensed with is the opportunity of making representation on the penalty proposed and not of opportunity of making representation on the report of the Inquiry Officer. The latter right was always there. But before the 42nd Amendment of the Constitution, the point of time at which it was to be exercised had stood deferred till the second stage viz., the stage of considering the penalty. Till that time, the conclusions that the disciplinary authority might have arrived at both with regard to the guilt of the employee and the penalty to be imposed were only tentative. All that has happened after the 42nd Amendment of the Constitution is to advance the point of time at which the representation of the employee against the Inquiry Officer’s report would be considered. Now, the disciplinary authority has to consider the representation of the employee against the report before it arrives at its conclusion with regard to his guilt or innocence of the charges. 29. Hence it has to be held that when the Inquiry Officer is not the disciplinary authority, the delinquent employee has right to receive a copy of the Inquiry Officer’s report before the disciplinary authority arrives at its conclusions with regard to the guilt or innocence of the employee with regard to the charges levelled against him. That right is a part of the employee’s right to defend himself against the charges levelled against him. A denial of the Inquiry Officer’s report before the disciplinary authority takes its decision on the charges is a denial of reasonable opportunity to the employee to prove his innocence and is a breach of the principles of natural justice." 30. Further from the record, it is also clear that there is no denial by the respondents that copy of the enquiry report was ever served prior to the imposing the punishment. From the perusal of the order dated 25.8.1984, the order passed by the Appellate Authority under Rule 22 (2) of the Railway Servants (Discipline and Appeal) Rules, 1968, it clearly goes to show that only five lines orders have been passed without assigning any reason. From the perusal of the order dated 25.8.1984, the order passed by the Appellate Authority under Rule 22 (2) of the Railway Servants (Discipline and Appeal) Rules, 1968, it clearly goes to show that only five lines orders have been passed without assigning any reason. It is well settled in law in view of the Constitution Bench judgment of the Apex Court in S.N. Mukherjee v. Union of India, AIR 1990 SC 1984 that the administrative authority should also bound to record the reason. If no reason has been recorded it will be presumed that it is an order of non-application of mind. From the perusal of the award passed by the labour Court, it is also clear that labour Court has also not applied his mind and has not narrated the facts and findings by the Appellate Authority. After discussing the fact, it has been held by the Labour Court regarding proportionality of punishment nothing was argued, therefore, it is held that the petitioner has committed grave offence of misconduct for which order of dismissal has been passed, therefore, it is not shockingly disproportionate to the misconduct, as such, it does not call for any interference. 31. In my opinion, the finding recorded by the Labour Court as the Labour Court is a last Court of fact, should have recorded a finding on the basis of evidence on record, nothing has been mentioned. 32. Further it has to be seen that whether in facts and circumstances of this case, the punishment which has been awarded to the petitioner can be said to be disproportionate to the offence committed. 33. The scheme of the disciplinary rules in general is to identify the conduct which is made punishable and then to provide for the various punishments which may be imposed for the acts which are inconsistent with such conduct. The Conduct Rules contain provisions which pertain to the standards of conduct which the Government servant are to follow whereas the Conduct and Appeal Rules provide the punishment or penalties which may be imposed for misconduct. The conduct rules and the rules for punishment may be provided in separate rules or combined into one. Moreover, there are a host of departmental instructions, which elucidate, amplify and provide guidelines regarding the conduct of the employees. The conduct rules and the rules for punishment may be provided in separate rules or combined into one. Moreover, there are a host of departmental instructions, which elucidate, amplify and provide guidelines regarding the conduct of the employees. The range of activities which may amount to acts which are inconsistent with the interest of public service and not befitting the status, position and dignity of a public servant are so varied that it would be impossible for the employer to exhaustively enumerate such acts and treat the categories of misconduct as closed. It has, therefore, to be noted that the word “misconduct” is not capable of precise definition. But at the same time though incapable of precise definition, the word “misconduct” on reflection receives its connotation from the context, the delinquency in performance and its effect on the discipline and the nature of the duty. The act complained of must bear a forbidden quality or character and its ambit has to be construed with reference to the subject-matter and the context wherein the term occurs, having regard to the scope of the statute and the public purpose it seeks to serve. 34. In Baldev Singh Gandhi v. State of Punjab and others, JT 2002 (Suppl-1) SC 602 : 2002(3) SCC 667 , it was held that the expression “misconduct” means unlawful behaviour, misfeasance, wrong conduct, misdemeanor etc. Similarly, in State of Punjab and others v. Ram Singh Ex. Constable, JT 1992 (4) SC 253, it was held that the term “misconduct” may involve moral turpitude. It must be improper or wrong behaviours, unlawful behaviour, wilful in character, forbidden act, a transgression of established and definite Rule of action or code of conduct but not mere error of judgment, carelessness or negligence in performance of the duty; the act complained of bears forbidden quality or character. 35. “Misconduct” as stated in Batt’s Law of Master and Servant (4th Edition) (At page 63) is “comprised positive acts and not mere neglects or failures.” The definition of the word as given in Bakllentine’s Law Dictionary (148th Edition) is “A transgression of some established and definite Rule of action, where no discretion is left except what necessity may demand, it is a violation of definite law, a forbidden act. It differs from carelessness". 36. Misconduct’ as defined in Webster’s Encyclopedic Unabridged Dictionary as follows : 1. improper conduct; wrong behaviour. 2. It differs from carelessness". 36. Misconduct’ as defined in Webster’s Encyclopedic Unabridged Dictionary as follows : 1. improper conduct; wrong behaviour. 2. Unlawful conduct by an official in regard to his office, or by a person in the administration of justice, such as a lawyer, witness, or juror. 3. to mismanage 4. to misbehave (oneself). 37. In Union of India and others v. J. Ahmed, A.I.R. 1979 SC 1022, the Apex Court while interpreting the meaning of misconduct’ has defined what is misconduct. In para 11 and 13 of the aforesaid judgment, the Apex Court has held that “misconduct means, misconduct arising from ill motive; acts of negligence, errors of judgment or innocent mistake, do not constitute such misconduct. Paras 11 and 13 are being quoted below : "11. Code of conduct as set out in the Conduct Rules clearly indicates the conduct expected to a member of the service. It would follow that conduct which is blameworthy for the Government servant in the context of Conduct Rules would be misconduct. If a servant conducts himself in a way inconsistent with due and faithful discharge of his duty in service, it is misconduct (see Pearce v. Foster, (1886) 17 QBD 536 (at p. 542). A disregard of an essential condition of the contract of service may constitute misconduct (see Laws v. London Chronicle (Indicator Newspapers), (1959) 1 WLR 698). This view was adopted in Shardaprasad Onkarprasad Tiwari v. Divisional Supdt., Central Railway, Nagpur Divn., Nagpur, 61 Bom LR 1596 : ( AIR 1961 Bom 150 ) and Satubha K.Vaghela v. Moosa Raza, (1969) 10 Guj LR 23. The High Court has noted the definition of misconduct in Stroud’s Judicial Dictionary which runs as under : “Misconduct means, misconduct arising from ill motive; acts of negligence, errors of judgment, or innocent mistake, do not constitute such misconduct.” In industrial jurisprudence amongst others, habitual or gross negligence constitute misconduct but in Management, Utkal Machinery Ltd. v. Workmen, Miss Shanti Patnaik, (1966) 2 SCR 434 : (AIR 1966 SC1051), in the absence of standing orders governing the employee’s undertaking, unsatisfactory work was treated as misconduct in the context of discharge being assailed as punitive. In S. Govinda Menon v. Union of India, (1967) 2 SCR 566 : ( AIR 1967 SC 1274 ), the manner in which a member of the service discharged his quasi judicial function disclosing abuse of power was treated as constituting misconduct for initiating disciplinary proceedings. A single act of omission or error of judgment would ordinarily not constitute misconduct though if such error or omission results in serious or atrocious consequences the same may amount to misconduct as was held by this Court in P.H. Kalyani v. Air France, Calcutta, (1964) 2 SCR 104 : ( AIR 1963 SC 1756 ), wherein it was found that the two mistakes committed by the employee while checking the load-sheets and balance charts would involve possible accident to the aircraft and possible loss of human life and, therefore, the negligence in work in the context of serious consequences was treated as misconduct. It is, however, difficult to believe that lack of efficiency or attainment of highest standards in discharge of duty attached to public office would ipso facto constitute misconduct. There may be negligence in performance of duty and a lapse in performance of duty or error of judgment in evaluating the developing situation may be negligence in discharge of duty but would not constitute misconduct unless the consequences directly attributable to negligence would be such as to be irreparable or the resultant damage would be so heavy that the degree of culpability would be very high. An error can be indicative of negligence and the degree of culpability may indicate the grossness of the negligence. Carelessness can often be productive of more harm than deliberate wickedness or malevolence. Leaving aside the classic example of the sentry who sleeps at his post and allows the enemy to slip through, there are other more familiar (examples) instances of which (are) a railway cabinman signalling in a train on the same track where there is a stationary train causing headlong collision; a nurse giving intravenous injection which ought to be given intramuscular causing instantaneous death; a pilot overlooking an instrument showing snag in engine and the aircraft crashing causing heavy loss of life. Misplaced sympathy can be a great evil (see Navinchandra Shakerchand Shah v. Manager, Ahmedabad Co-op. Department Stores Ltd., (1978) 19 Guj. LR 108 at p. 120). Misplaced sympathy can be a great evil (see Navinchandra Shakerchand Shah v. Manager, Ahmedabad Co-op. Department Stores Ltd., (1978) 19 Guj. LR 108 at p. 120). But in any case, failure to attain the highest standard of efficiency in performance of duty permitting an interference of negligence would not constitute misconduct nor for the purpose of Rule 3 of the Conduct Rules as would indicate lack of devotion to duty. 13. Having cleared the ground of what would constitute misconduct for the purpose of disciplinary proceeding, a look at the charges framed against the respondent would affirmatively show that the charge inter alia alleged failure to take any effective preventive measures meaning thereby error in judgment in evaluating developing situation. Similarly, failure to visit the scenes of disturbance is another failure to perform the duty in a certain manner. Charges Nos. 2 and 5 clearly indicate the shortcomings in the personal capacity or degree of efficiency of the respondent. It is alleged that respondent showed complete lack of leadership when disturbances broke out and he disclosed complete inaptitude, lack of foresight, lack of firmness and capacity to take firm decision. These are personal qualities which a man holding a post of Deputy Commissioner would be expected to possess. They may be relevant considerations on the question of retaining him in the post or for promotion, but such lack of personal quality cannot constitute misconduct for the purpose of disciplinary proceedings. In fact, charges 2, 5 and 6 are clear surmises on account of effective preventive measures to arrest or to nip in the bud the ensuring disturbances. We do not taken any notice of charge No. 4 because even the Enquiry Officer has noted that there are number of extenuating circumstances which may exonerate the respondent in respect of that charge. What was styled as charge No. 6 is the conclusion, viz., because of what transpired in the inquiry, the Enquiry Officer was of the view that the respondent was unfit to hold any responsible position. Somehow or other, the Enquiry Officer was of the view that the respondent was unfit to hold any responsible position. Somehow or other, the Inquiry Officer completely failed to take note of what was alleged in charges 2, 5 and 6 which was neither misconduct nor even negligence but conclusions about the absence or lack of personal qualities in the respondent. Somehow or other, the Inquiry Officer completely failed to take note of what was alleged in charges 2, 5 and 6 which was neither misconduct nor even negligence but conclusions about the absence or lack of personal qualities in the respondent. It would thus transpire that the allegations made against the respondent may indicate that he is not fit to hold the post of Deputy Commissioner and that if it was possible he may be reverted or he may be compulsorily retired, not by way of punishment. But when the respondent is sought to be removed as a disciplinary measure and by way of penalty, there should have been clear case of misconduct, viz., such acts and omissions which would render him liable for any of the punishments set out in Rule 3 of the Discipline and Appeal Rules, 1955. No such case has been made out." 38. In State of Punjab and others v. Ram Singh Ex-Constable, JT 1992 (4) SC 253, the Apex Court has defined the word ‘’misconduct’. The relevant paras 5 and 6 are being reproduced below : 5. Misconduct has been defined in Black’s Law Dictionary, Sixth edition at page 999 thus : “A transgression of some established and definite rule of action, a forbidden act, a dereliction from duty, unlawful behaviour, wilful in character, improper or wrong behaviour, its synonyms are misdemeanor, misdeed, misbehaviour, delinquency, impropriety, mismanagement, offence, but not negligence or carelessness.” Misconduct in office has been defined as : “Any unlawful behaviour by a public officer in relation to the duties of his office, wilful in character. The term embraces acts which the office holder had no right to perform, acts performed improperly, and failure to act in the face of an affirmative duty to act.” P. Ramanatha Aiyer’s the Law Lexicon, Reprint Edition 1987 at page 82 misconduct’ defines thus : “The term misconduct implies a wrongful intention, and not a mere error of judgment. Misconduct is not necessarily the same thing as conduct involving moral turpitude. The word misconduct is a relative term, and has to be construed with reference to the subject matter and the context wherein the term occurs, having regard to the scope of the Act or statute which is being construed. Misconduct literally means wrong conduct or improper conduct. Misconduct is not necessarily the same thing as conduct involving moral turpitude. The word misconduct is a relative term, and has to be construed with reference to the subject matter and the context wherein the term occurs, having regard to the scope of the Act or statute which is being construed. Misconduct literally means wrong conduct or improper conduct. In usual parlance, misconduct means a transgression of some established and definite rule of action, where no discretion is left, except what necessity may demand and carelessness, negligence and unskilfulness are transgressions of some established, but indefinite, rule of action, where some discretion is necessarily left to the actor. Misconduct is a violation of definite law; carelessness or abuse of discretion under an indefinite law. Misconduct is a forbidden act; carelessness, a forbidden quality of an act, and is necessarily indefinite. Misconduct in office may be defined as unlawful behaviour or neglect by a public officer, by which the rights of a party have been affected.” 6. Thus it could be seen that the word misconduct’ though not capable of precise definition, its reflection receive its connotation from the context, the delinquency in its performance and its effect on the discipline and the nature of the duty. It may involve moral turpitude, it must be improper or wrong behaviour; unlawful behaviour, wilful in character; forbidden act, a transgression of established and definite rule of action or code of conduct but not mere error of judgment, carelessness or negligence in performance of the duty; the act complained of bears forbidden quality or character. Its ambit has to be construed with reference to the subject matter and the context wherein the term occurs, regard being had to the scope of the statute and the public purpose it seeks to serve. The police service is a disciplined service and it requires to maintain strict discipline in the service causing serious effect in the maintenance of law and order." 39. In the context of Section 31 of Advocates Act, 1961, the Apex Court in Noratanmal Chouraria v. M.R. Murli and another, 2004(5) SCC 689 said : “Misconduct, inter alia, envisages breach of discipline, although it would not be possible to lay down exhaustively as to what would constitute conduct and indiscipline, which, however, is wide enough to include wrongful omission or commission whether done of omitted to be done intentionally or unintentionally. It means, “improper behaviour, intentional wrongdoing or deliberate violation of a rule or standard of behaviour”. “Misconduct is said to be a transgression of some established and definite rule of action, where no discretion is left except what necessity may demand, it is a violation of definite law.” 40. In Baldev Singh Gandhi v. State of Punjab and others, AIR 2002 SC 1124 , with reference to the provisions of Punjab Municipal Act, the Apex Court, considering the term ‘misconduct’, held as under : "‘Misconduct’ has not been defined in the Act. The word ‘misconduct’ is antithesis of the word ‘conduct’. Thus, ordinarily the expression ‘misconduct’ means wrong or improper conduct, unlawful behaviour, misfeasance, wrong conduct, misdemeanour etc.” 41. From the perusal of the aforesaid definition and interpretation made by the Apex Court it cannot constitute a misconduct of the petitioner, as it does not constitute misconduct of the petitioner, therefore, the question is whether this Court while exercising the jurisdiction under Article 226 of the Constitution of India can have a power of judicial review to set aside the finding and punishment awarded by the administrative authorities. 42. In a case like instant, the Court can review only the “decision making procedure” and not the “decision” of the authority. The Court, not being a Court of Appeal, is not competent to substitute its own view on factual aspect of the case. 43. The Court can review to correct errors of law or fundamental procedural requirements which may lead to manifest injustice and can interfere with the impugned order in “exceptional circumstances” (Vide Union of India v. Parma Nanda, AIR 1989 SC 1185 ; State Bank of India v. Samarendra Kishore Endow, (1994) 2 SCC 537 ; State of Punjab v. Surjit Singh, (1996) 8 SCC 350 ; State of U.P. v. Ashok Kumar Singh, AIR 1996 SC 736 ; State of U.P. v. Nand Kishore Shukla and another, AIR 1996 SC 1561 ; Transport Commissioner, Madras v. Thiru ARK Moorthy, (1995) 1 SCC 332 ; Rae Bareily Kshetriya Gramin Bank v. Bhola Nath Singh and others, AIR 1997 SC 1908 ; State of Punjab v. Bakshish Singh, AIR 1997 SC 2696 ; Yoginath D.Bagde v. State of Maharashtra and another, (1999) 7 SCC 739 ; Union of India v. Lt. Gen. Gen. R.S.Kadyan and others, AIR 2000 SC 2513 ; Food Corporation of India v. A. Prahalada Rao and another, AIR 2001 SC 51 ; Kumaon Mandal Vikas Nigam Ltd. v. Girja Shankar Pant and others, AIR 2001 SC 24 ; N.R. Nair v. Union of India and others, AIR 2001 SC 2337 ; Union of India v. Ashutosh Kumar Srivastava, (2002) 1 SCC 188 ; and Lalit Popli v. Canara Bank, (2003) 3 SCC 583 . 44. In State of Tamil Nadu v. S.Subramaniam, AlR 1996 SC 1232, the Apex Court held that as the High Court has power of judicial review of the administrative action on complaint relating to service conditions of the employee, it is within the exclusive domain of the disciplinary authority to consider the evidence on record and to record findings whether the charge stood proved or not. It is equally settled law that technical rules of evidence have no application in the disciplinary proceedings and the authority is to consider the material on record. In judicial review, the Court “has no power to trench on the jurisdiction to appreciate the evidence and to arrive at its own conclusion. Judicial review is not an appeal from a decision but a review of the matter in which the decision is made. It is meant to ensure that the delinquent receives fair treatment and not to ensure that the conclusion, which the authority reaches, is necessarily correct in view of the Court or the Tribunal. When the conclusion reaches by the authority is based on evidence, the Court or the Tribunal is devoid of power to re-appreciate the evidence and would come to its own conclusion on the proved charges. The only consideration the Court /Tribunal has, in its judicial review, is to consider whether the conclusion is based on the evidence on record that support the finding, or whether the conclusion is based on no evidence.” 45. In General Court Martial and others v. Col. Aniltej Singh Dhaliwal, AIR 1998 SC 983 , the Hon’ble Supreme Court has held that the High Court, in its limited power of exercise of judicial review, may interfere by appreciating the evidence only if there is an omission on the part of the Inquiry Officer or the Disciplinary Authority to consider the relevant evidence. Aniltej Singh Dhaliwal, AIR 1998 SC 983 , the Hon’ble Supreme Court has held that the High Court, in its limited power of exercise of judicial review, may interfere by appreciating the evidence only if there is an omission on the part of the Inquiry Officer or the Disciplinary Authority to consider the relevant evidence. Similarly, in Rajendra Kumar Kindra v. Delhi Administration, (1984) 4 SCC 635 , the Court observed as under : “It is equally well settled that where a quasi-judicial Tribunal or arbitrator records findings based on no legal evidence and the findings are either his ipse dixit or based on conjectures and surmises, the enquiry suffers from the additional infirmity of non-application of mind and stands vitiated... Viewed from either angle, the conclusion of the Inquiry Officer... are wholly pervasive and hence unsustainable. The High Court, in our opinion, was clearly in error in declining to examine the contention that the findings were perverse on the short, specious and wholly untenable ground that the matter depends on appraisal of evidence. Between appraisal of evidence and total lack of evidence, there is an appreciable difference which could never be lost sight of and the High Court ought not to have short-circuited the writ petition.” 46. In R.S. Saini v. State of Punjab, (1999) 8 SCC 90 , the Apex Court noted as follows : “We will have to bear in mind the rule that the Court while exercising writ jurisdiction will not reverse a finding of the inquiry authority on the ground that the evidence adduced before it is insufficient. If there is some evidence to reasonably support the conclusion of the inquiry authority, it is not the function of the Court to review the evidence and to arrive at its own independent finding. The inquiring authority is the sole judge of the fact so long as there is some legal evidence to substantiate the finding and the adequacy or reliability of the evidence is not a matter which can be permitted to be canvassed before the Court in writ proceedings.” 47. The inquiring authority is the sole judge of the fact so long as there is some legal evidence to substantiate the finding and the adequacy or reliability of the evidence is not a matter which can be permitted to be canvassed before the Court in writ proceedings.” 47. Even the issue of interference on quantum of punishment has also been considered by the Hon’ble Supreme Court in a catena of judgments and it was held that if the punishment awarded is disproportionate to the gravity of the misconduct, it would be arbitrary and thus would violate the mandate of Article 14 of the Constitution. Thus, being illegal, it cannot be enforced. (Vide Bhagat Ram v. State of Himachal Pradesh, AIR 1983 SC 454 ; S.K.Giri v. Home Secretary, Ministry of Home Affairs and others, 1995 Suppl (3) SCC 519; Union of India v. Giriraj Sharma, AIR 1994 SC 215 ; Bishan Singh and others v. State of Punjab, (1996) 10 SCC 461 ; Ranjit Thakur v. Union of India and others, AIR 1987 SC 2386 ; and B.C.Chaturvedi v. Union of India and others, AIR 1995 SC 484). 48. In Ranjeet Thakur (supra), the Hon’ble Apex Court observed as under : “But the sentence has to suit the offence and the offender. It should not be vindictive or unduly harsh. It should not be so disproportionate to the offence as to shock the conscience and amount in itself to conclusive evidence of bias. The doctrine of proportionality, as part of the concept of judicial review, would ensure that even on the aspect, which is otherwise, within the exclusive province of the Court Martial, if the decision of the Court even as to sentence is an outrageous defiance of logic, then the sentence would not be immune from correction. In the present case, the punishment is so stringently disproportionate as to call for and justify interference. It cannot be allowed to remain uncorrected in judicial review.” 49. The said judgment has been approved and followed by the Apex Court in Union of India v. G. Ganayutham, AIR 1997 SC 3387 , and after examining elaborately the concept of reasonableness, rationality and proportionality, the same view has been reiterated. 50. It cannot be allowed to remain uncorrected in judicial review.” 49. The said judgment has been approved and followed by the Apex Court in Union of India v. G. Ganayutham, AIR 1997 SC 3387 , and after examining elaborately the concept of reasonableness, rationality and proportionality, the same view has been reiterated. 50. In B.C. Charturvedi (supra), after examining various earlier decisions of the Supreme Court, the Court observed that in exercise of the powers of judicial review, the Court cannot “normally” substitute its own conclusion or penalty. However, if the penalty imposed by an Authority “shocks the conscience” of the Court, it would appropriately mould the relief either directing the Authority to reconsider the penalty imposed and in exceptional and rare cases, in order to shorten the litigation, itself “impose appropriate punishment with cogent reasons in support thereof." While examining the issue of proportionality, Court can also consider the circumstances under which the misconduct was committed. In a given case, the prevailing circumstances might have forced him to do so, though he had no intention to do so. [Vide Giriraj Sharma (supra)]. The Court may further examine the effect, if order is set aside or substituted by some other minor penalty. 51. In Regional Manager, U.P.S.R.T.C. v. Hoti Lal, (2003) 3 SCC 605 , the Hon’ble Supreme Court held that judicial review of the quantum of punishment is not warranted by a writ Court unless it is held to be arbitrary. While deciding the said case, the Hon’ble Supreme Court placed reliance upon it earlier judgment in Om Kumar v. Union of India, (2001) 2 SCC 386 . 52. Thus, in view of the above, the legal position can be summarized that the judicial review in a disciplinary proceedings is permissible only in exceptional circumstances wherein the Court comes to the conclusion that the matter suffers from errors of law or decision is wrong for not following the fundamental procedural requirement, which have led to manifest injustice. The quantum of punishment cannot be interfered with and substituted by the Court like an Appellate Authority unless it shocks the judicial conscience being disproportionate to the misconduct and for that, reasons have to be recorded as to how the punishment is found to be not commensurate to the delinquency. Thus, punishment itself should be held to be arbitrary before interfering with it by the writ Court. 53. Thus, punishment itself should be held to be arbitrary before interfering with it by the writ Court. 53. In the present case as weeded out from the record that it cannot be held that the petitioner has not maintained discipline in service or he has committed an offence which relates to the performance of his service. Admittedly, incident alleged to have been of 1981 when the petitioner along with her two sisters stayed in the night at Deluxe Retiring Room at Allahabad after payment of Rs. 60/- as rent, therefore, it cannot be inferred that petitioner was occupied the said room un-authorisedly. Petitioner was placed under suspension and then dismissed from service and subsequently the appeal filed by the petitioner was also dismissed as the Court has perused the procedure Rules 9 and 10. From the record it is clear that the proceedings initiated against the petitioner is in clear violation of principle of natural justice and the petitioner was not giving the copy of the enquiry report prior to imposing the punishment by the disciplinary authority which is in my opinion in clear violation of Rule 10 of the Railway Servants (Discipline and Appeal) Rules, 1963. Further it has to be seen that charge-sheet has been given for violation of Rule 3 as quoted above, from the three things in Rule 3, (1) maintain absolute integrity, (2) maintain devotion to duty, (3) do nothing which is unbecoming to a railway servant or government servant. In the opinion of the Court, in any view of the matter the three criteria given in Rule 3 will not be applicable in the case of the petitioner. It does not amount to not maintaining absolute integrity, not maintaining devotion to duty and this conduct cannot be said to be unbecoming of a railway servant. Therefore, unless and until it is a misconduct it cannot be said that the petitioner has violated any provision of the Conduct Rules. In any view of the matter if the authorities were of the opinion that the petitioner has violated any provision of Service Rules some minor punishment should have been awarded. But as in view of the definition of the misconduct it cannot be said that the act of the petitioner was in any way misconduct as defined. In any view of the matter if the authorities were of the opinion that the petitioner has violated any provision of Service Rules some minor punishment should have been awarded. But as in view of the definition of the misconduct it cannot be said that the act of the petitioner was in any way misconduct as defined. It is not the case of the respondents that except this action of the petitioner any point of time there was any complaint against the petitioner regarding discharging of his official duty. It is also clear from the record that petitioner has not been afforded proper opportunity which was necessary to follow the principle of natural justice. The Court has perused the various provisions. From the perusal of the various provisions under which the offence alleged against petitioner is stated to be covered, in my opinion, Rule 3 does not apply in the present case. 54. As regards, the punishment in B.C. Chaturvedi’s case (supra) the Apex Court has clearly observed that in exercise of powers of judicial review the Court cannot substitute its own conclusion and penalty. However, if the penalty imposed by an authority shocks the conscience of the Court, it would appropriately mould the relief. In exceptional cases, the Court can reconsider penalty imposed in exceptional and rare cases and in order to shorten the litigation itself impose appropriate punishment with cogent reasons in support thereof. 55. In V. Ramana v. A.P. S.R.T.C. and others, 2006 SCC (L&S) 69, the Court has again discussed regarding the scope of judicial review. The Apex Court has held that scope of interference with quantum of punishment has been the subject matter of various decision of this Court. Such interference cannot be a routine matter. In para 7 of the said judgment, the Apex Court has observed as follows : 7. Lord Greene said in 1948 in the famous Wednesbury 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 irrelevant factors were considered; or the decision was one which no reasonable person could have taken. 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 irrelevant factors were considered; or the decision was one which no reasonable person could have taken. These principles were consistently followed in the UK and in India to judge the validity of administrative action. It is equally well known that in 1983, Lord Diplock in Council of Civil Service Unions v. Minister for Civil Service (called the CCSU case) summarized 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 the “proportionality” was a “future possibility”. 56. In Damoh Panna Sagar Rural Regional Bank and another v. Munna Lal Jain, JT 2005 (1) SC 70 the Apex Court has again taken the similar view. The Apex Court has held that if the punishment imposed by the disciplinary authority or the appellate authority shocks conscience of the Court, it would appropriately mould the relief. Further to shorten litigation it may, in exceptional and rare cases, impose appropriate punishment by recording cogent reasons in support thereof. It has further held that in normal course if the punishment imposed is shockingly disproportionate, it would be appropriate to direct the disciplinary authority or the appellate authority to re-consider the penalty imposed. However, the principle of “strict scrutiny” or “proportionality” and primary review came to be explained in R. v. Secy. of State for the Home Department ex p Brind, (1991)1 AC 696. That case related to directions given by the Home Secretary under the Broadcasting Act, 1981 requiring BBC and IBA to refrain from broadcasting certain matters through persons who represented organizations 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 organizations. It did not however, for example, preclude the broad casting by such persons through the medium of a film, provided there was a “voice-over” account, paraphrasing what they said. The applicant’s claim was based directly on the European Convention of Human Rights. The extent of prohibition was linked with the direct statement made by the members of organizations. It did not however, for example, preclude the broad casting by such persons through the medium of a film, provided there was a “voice-over” account, paraphrasing what they said. The applicant’s claim was based directly on the European Convention of Human Rights. Lord Bridge noticed that the Convention rights were not still expressly engrafted into English law but stated that freedom of expression was basic to the common law and that, even in the absence of the Convention, English Courts could go into the question. “..............whether the Secretary of State, in the exercise of his discretion, could reasonably impose the restriction he has imposed on the broadcasting organizations” and that the Courts were “not perfectly entitled to start from the premise that any restrictions 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. 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 primary review. However, the Courts would exercise a right of secondary review based only on Wednesbury principles in cases 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. 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.” 57. In B.C. Chaturvedi v. Union of India (supra) it was observed by the Apex Court that “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.” 58. In Union of India v. G. Ganayutham (supra), the Apex Court in para 31 has observed as follows : “31. The current position of proportionality in administrative law in England and India can be summarized 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 the 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 test. 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 administrator’s decision unless it was illegal or suffered from procedural impropriety or was irrational—in the sense that it was in outrageous defiance of logic or moral standards. The possibility of other tests including proportionality being brought into English administrative law in future is not ruled out. These are the CCSU principles. (3)(a) As per Bugdaycay, Brind and Smith 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. (4)(a) The position in our country, in administrative law, where no fundamental freedom 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 nor for Article 14. 59. 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 nor for Article 14. 59. But where an administrative action is challenged as arbitrary’ under Article 14, 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 will in his primary role, whether he has acted illegally or has omitted relevant factors from consideration or has taken irrelevant factors into consideration or whether his view is one which no reasonable person could have taken. 60. In view of the above principles and decided cases, it must be held that where 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. If the Court is satisfied that settled 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. 61. In view of the aforesaid proposition of law, discussed above, there is no doubt to this effect that this Court while exercising power under Article 226 of the Constitution of India can only interfere when the Court comes to the conclusion that the punishment awarded is highly disproportionate and the same shocks the conscience of the Court in the sense that it was in defiance of logic or moral standards. From the perusal of the record, it clearly goes to show that the charges levelled against the petitioner does not come under the definition of misconduct’ as defined above. From the perusal of Rule 3 of the Conduct Rules, 1966, in my opinion, this also does not cover the charges levelled against the petitioner. From the perusal of the record, it clearly goes to show that the charges levelled against the petitioner does not come under the definition of misconduct’ as defined above. From the perusal of Rule 3 of the Conduct Rules, 1966, in my opinion, this also does not cover the charges levelled against the petitioner. The act of the petitioner does not come in relation to the performance of the petitioner in service. 62. Another point for consideration by this Court is that the disciplinary proceeding was initiated against the petitioner in the year 1981 for contravening the Rules 3(1), (2) and (3) of the Railway Conduct Rules, 1966. The services of the petitioner were terminated on 17.7.1982. Petitioner filed an appeal. Appeal too was dismissed and the Industrial Court has also dismissed the petition filed by the petitioner vide its order dated 2.3.1998. From 1998, the writ petition is pending before this Court. From the perusal of the aforesaid Conduct Rules, it is clear that there is no violation of the Conduct Rules in service by the petitioner, therefore, in my opinion, the punishment awarded is totally improper and disproportionate. 63. In view of the aforesaid facts and circumstances and in view of the definition of ‘misconduct’, I am of the opinion that awarding punishment of dismissal from service to petitioner is wholly disproportionate and cannot be sustained as this Court is of the view that complaint and allegations do not constitute a misconduct. 64. As discussed above, it is well settled principle of law by this Court as well as by Apex Court that generally this Court should not consider regarding quantum of punishment as it is total discretion of the administrative authority, but as in the present case, the alleged incident is of 1981. In an Apex Court judgement, reported in 2005 AIR SCW 5690, P.V. Mahadevan v. M.D. Tamilnadu Housing Board, the Apex Court has quashed the disciplinary enquiry only on the ground that petitioner had already suffered mental agony and sufferings due to pendency of legal proceedings in Court. Apex Court in para 16 has observed as follows : "16. Under the circumstances, we are of the opinion that allowing the respondent to proceed further with the departmental proceedings at this distance of time will be very prejudicial to the appellant. Apex Court in para 16 has observed as follows : "16. Under the circumstances, we are of the opinion that allowing the respondent to proceed further with the departmental proceedings at this distance of time will be very prejudicial to the appellant. Keeping a higher government official under charges of corruption and disputed integrity would cause unbearable mental agony and distress to the officer concerned. The protracted disciplinary enquiry against a government employee should, therefore, be avoided not only in the interest of the government employee but in public interest and also in the interest of inspiring confidence in the minds of the government employees. At this stage, it is necessary to draw the curtain and to put an end to the enquiry. The appellant had already suffered enough and more on account of the disciplinary proceedings. As a matter of fact, the mental agony and sufferings of the appellant due to the protracted disciplinary proceedings would be much more than the punishment. For the mistakes committed by the department in the procedure for initiating the disciplinary proceedings, the appellant should not be made to suffer." 65. In Canara Bank and others v. Swapan Kumar Pani and others, JT 2006 (3) SC 472, the Apex Court has gone to this extent and quashed the High Court order by which the High Court had granted a liberty to the Bank to initiate a fresh enquiry. In that case, some charges were against bank employee, a charge-sheet was given in 1987, of an act committed in 1985. He was exonerated in the year 1989, then again a charge-sheet was issued in the year 1996 in that circumstances, when the High Court has quashed and given a liberty to the Bank for issuance of fresh charge-sheet, the Apex Court has quashed the said liberty given by the High Court only on the ground that there was delay in initiation of the proceedings. For the same set of charges, the charge-sheet is being given third time and the Apex Court has further held that if the High Court was of the opinion that new material purported to have been found were not sufficient for initiation of the enquiry in question, we fail to understand as to on what basis liberty was given to the Bank to initiate fresh enquiry more so when the misconduct, if any, was committed in the year 1985. 66. 66. In a latest decision of the Apex Court reported in JT 2006 (4) SC 469, M.V. Bijlani v. Union of India and others, the Apex Court has substituted the punishment only on the ground that there was a delay in initiation of disciplinary proceedings as the incident in that case was of 1969-70. In Bijlani’s case (supra), the charge against the delinquent for non-maintenance of ACE-8 Register and non-supervision of working of the line. The Apex Court has held that as the enquiry officer or the appellate authority has not held that whether the appellant was required to prepare the ACE-8 register and the disciplinary proceeding being a quasi-judicial in nature, there should be such evidence to prove the charge. The report of the enquiry officer is to be based on a relevant consideration of record. Taking into all the facts and circumstances of that case, the Apex Court in spite of holding that jurisdiction of the Court in judicial review is very limited but instead of remitting back the matter to the disciplinary authority, has substituted the punishment only on the ground of delay. 67. As observed in the present case, it is borne out from the record that the incident is of 1981 and the petitioner was dismissed from service upon charges, which cannot be said to be commensurate her misconduct in service. From 1981, petitioner is out of job due to the inaction of the respondents. From the perusal of the Service Rules, it is also clear that assuming without admitting this fact, if the charges levelled against the petitioner is treated to be true it does not amount to misconduct. There is no finding by any authority that petitioner has violated any provision of Service Rules during his official duty and she has not maintained proper integrity, which was required to be maintained. From the record, it is also clear that petitioner was not afforded an opportunity to the effect that enquiry report was admittedly given to the petitioner after the order of the disciplinary authority. It is also not disputed that enquiry officer and disciplinary authority are different. It is also clear that as it does not constitute any misconduct, as such, in my opinion, the punishment of termination and dismissal cannot be awarded. It is also not disputed that enquiry officer and disciplinary authority are different. It is also clear that as it does not constitute any misconduct, as such, in my opinion, the punishment of termination and dismissal cannot be awarded. The petitioner had made to suffer for a minor lapse for a period of 25 years, therefore, in my opinion it will be a case in which for non-compliance of the necessary provision, matter is to be remanded for the purposes of fresh enquiry. But it is a case in which it will not be proper and in the interest of justice to remand the case. 68. In view of the aforesaid fact, in my opinion, it is a case in which this Court while exercising the power under Article 226 of the Constitution of India treating to be a rare case, it will not serve any fruitful purpose to remit the matter to the disciplinary authority for awarding any other punishment. Though this Court in exercising the powers under Article 226 of the Constitution of India should not substitute the punishment but in the facts and circumstances of the present case, treating this case to be an exceptional, as there is nothing against the petitioner and the alleged act does not include any act relating to service of the petitioner and the complaint does not constitute a misconduct, as such, this Court is setting aside the order of termination dated 17.7.1982 (Annexure 9 to the writ petition) and order dated 21.5.1984 passed by the Divisional Railway Manager, Allahabad (Annexure SA-6 to the supplementary affidavit) and the Award dated 2.3.1998 passed by the Labour Court, Kanpur (Annexure II-A of the amendment application). 69. In the facts and circumstances of the present case, as narrated above, this Court without remitting the matter to the disciplinary authority while exercising the powers under Article 226 of the Constitution of India itself substituting the punishment to the petitioner. Justice will be served if a punishment to the petitioner to the tune of withholding 50% of back wages is awarded from the date of dismissal till the date of reinstatement. 70. In view of the aforesaid fact, the writ petition is allowed. Justice will be served if a punishment to the petitioner to the tune of withholding 50% of back wages is awarded from the date of dismissal till the date of reinstatement. 70. In view of the aforesaid fact, the writ petition is allowed. The order of termination dated 17.7.1982 (Annexure 9 to the writ petition) and order dated 21.5.1984 passed by the Divisional Railway Manager, Allahabad (Annexure SA-6 to the supplementary affidavit) and the Award dated 2.3.1998 passed by the Labour Court, Kanpur (Annexure-II-A of the amendment application) are hereby quashed. The consequence of the said order would have been to remit the matter to the disciplinary authority. But as stated above, the petitioner is made to suffer for nothing from 1981 due to the pendency of the proceeding, the petitioner has suffered a lot, as such, I hereby direct that petitioner may be reinstated in service forthwith but keeping in view of the facts and circumstances of the present case, as the petitioner has not worked, I direct that she will be entitled only 50% of the wages from the date of dismissal till the date of reinstatement. 71. There shall be no order as to costs. ———