Judgment : By impugned G.O. (D) No. 219, Health and Family Welfare Department, dated 12. 1986, the petitioner, a Doctor, accused to have unauthorisedly absent from duty, without prior permission or proper sanction of leave from the competent authority, has been removed from service. Her application for review has been rejected by another order in G.O. (D) No.384, Health and Family Welfare Department, dated 4. 1998. Both the orders are under challenge in this writ petition. 2. Facts leading to the Writ Petition are as follows: The petitioner joined the Tamil Nadu Medical Service on 11. 1970 as Assistant Surgeon. In the year 1989, she was posted to work as Tutor in Obstetrics and Gynaeology, in Coimbatore Medical College. Initially, she applied for 30 days leave from 28. 1989 to 19. 1989. Due to ill-health and family circumstances, she could not report for duty from 20.9.1989 onwards. Then she extended her leave by applying for extraordinary leave for 6 months from 20.9.1989, by her leave application dated 20.10.1989. By Memo dated 10. 1989, the Director of Medical Education, Chennai, second respondent herein, refused her request for extraordinary leave, stating that due to administrative reasons, the same could not be granted and directed the petitioner to rejoin duty within 4 days, failing which, she was threatened with disciplinary action. 3. The petitioner hasfurther submitted that she got her name registered with the Overseas Manpower Corporation Limited., Madras (Government of Tamil Nadu Undertaking). The Corporation, by its letter dated 17. 1989, applied to the State Government for issuing “No objection Certificate” to the petitioner, as she was selected by the/Ministry of Health, Saudi Arabia as a Specialist Doctor. The petitioner, by her letter dated 27. 1989 also, directly applied to the 1st respondent for issuing “No Objection Certificate” and the same was recommended by the then Minister for Revenue. After recovery from her illness, she proceeded to Saudi Arabia hoping that the 1st respondent would issue the “No objection Certificate”, as has been done in several other cases. 4. The petitioner has further submitted that only when her relative informed her through a letter, she came to know that her leave application has been refused. Therefore, by letter dated 20.10.1989, the petitioner intimated the she could not rejoin duty and once again prayed for sanction of extraordinary leave. Periodically, she had sent leave applications and the same were refused. 5. Therefore, by letter dated 20.10.1989, the petitioner intimated the she could not rejoin duty and once again prayed for sanction of extraordinary leave. Periodically, she had sent leave applications and the same were refused. 5. While that be so, on 14. 1991, the Director of Medical Education, Chennai, issued a charge memo, alleging that, (i) That she unauthorisedly absented from duty from 20.9.1989, without permission or proper sanction of leave from the competent authority and (ii) That she disobeyed the orders of the Director of Medical Education in not rejoining duty as directed in office ref. no.93529/E3/2/89, dated 10. 1989 and subsequently in office memo, dated 9. 1990. By letter, dated 17. 1991, the petitioner denied the charges levelled against her and asked for personal hearing. Since she was away from India, the enquiry officer proceeded with the enquiry and concluded the same as ex parte. Without prejudice to the disciplinary action initiated against her, the Director of Medical Education, Madras, in his proceedings, dated 7. 1995, issued posting orders to the petitioner posting her as Tutor in O.P., at Chengleput Medical College Hospital and she joined duty. On the basis of the findings recorded by the enquiry officer, the first respondent imposed a penalty of removal from service, after obtaining the views from the Tamil Nadu Public Service Commission, dated 10. 1995, which recommended a punishment of removal to be awarded to the petitioner. The review petition dated 211. 1997 submitted to the Government was rejected by G.O.(D) No.384, Health and Family Welfare Department dated 4. 1998, on the ground that the review was not preferred in time. 6. Assailing the impugned orders, Mr. K. Venkataramani, learned senior counsel for the petitioner submitted that as per the procedure contemplated in Rule 17(b) of the Tamil Nadu Civil Services (Classification, Control and Appeal) Rules (in short “the rules”), the allegation of unauthorized absence should be proved in a manner known to law and unless the enquiry officer comes to a conclusion on evidence let in the oral enquiry that he cannot hold the charges as proved merely on the ground that the delinquent did not appear in the enquiry. 7. Learned senior counsel submitted that in the absence of examination of witnesses, or consideration of the documents referred in the charge memo, dated 14. 7. Learned senior counsel submitted that in the absence of examination of witnesses, or consideration of the documents referred in the charge memo, dated 14. 1991, the findings recorded by the enquiry officer, as to the guilt of the petitioner, is without any basis and it is violation of the procedure contemplated under Rule 17(b) of the said rules. 8. Referring to the enquiry report, learned senior counsel submitted that there is absolutely no discussion in the enquiry report, regarding the charges, the evidence for and against the delinquent, and therefore, the said report ought not to have been acted upon by the disciplinary authority. In this context, he relied on a decision in Anil Kumar v. Presiding Officer AIR 1985 SC 1121 ; (1985) 3 SCC 378 :1986-1-LLJ-101. .9. Inviting the attention of this Court to the opinion of the Tamil Nadu Public Service Commission, dated 10. 1995, which began with the statement that, “there is no procedural flaw”, learned senior counsel for the petitioner submitted that the Tamil Ndu Public Service Commission has failed to exercise his statutory duty to assess the evidence on record before giving its opinion on the punishment to be imposed by the first respondent. 10. Learned senior counsel for the petitioner further submitted that the disciplinary authority, while inflicting the penalty, had taken on record, the petitioner had gone abroad on employment. When that does not form part either the charges or recorded in the enquiry report, the Disciplinary Authority is precluded from taking into account the extraneous matters for imposing a grave penalty of removal from service. In support of his contention, he relied on a decision of the Supreme Court in M.V. Bijilani v. Union of India (2006) 5 SCC 88 . 11. Learned senior counsel for the petitioner submitted that the only reason, which influenced the mind of the enquiry officer, is the absence of the petitioner and even assuming that the delinquent did not appear in the oral enquiry officer to arrive at a conclusion as to how the charges are proved on the basis of the documents referred to in the charge memo or by considering the oral evidence let in, if any. In this context, he relied on an unreported judgment in W.A.No.614 of 1986, dated 8. 1996. 12. In this context, he relied on an unreported judgment in W.A.No.614 of 1986, dated 8. 1996. 12. Learned senior counsel for the petitioner submitted that if the Court comes to the conclusion that there is no procedural flaw in finalizing the disciplinary proceedings, the course open to the Court could be to remand the matter to the disciplinary authority to start afresh from the stage where the defect had crept in. But, having regard to the fact that the petitioner had already attained the stage of superannuation and put in 18 years of unblemished service in Medical Department and taking into consideration the time consumed in the litigation, prayed for interference in the quantum of penalty and sought for conversion of the penalty of removal into that of compulsory retirement, so that, the petitioner would be able to get her retiral benefits under Rule 39 of the Tamil Nadu Pension Rules. As regards the power of the Court to interfere in appropriate cases, he relied on a decision in Shri Bhagwan Lal Arya v. Commissioner Police, Delhi and Others AIR 2004 SC 2131 : (2004) 4 SCC 560 . .13. Per contra, Mr. V. Manoharan, learned Government Advocate submitted that the fact that the petitioner had gone abroad and absented from duty from 20.9.1989, cannot be disputed. When the aid fact is apparent on the fact of the record, merely because, the enquiry officer had failed to record the evidence, that would not curtain the power of the fact finding authority, viz., the disciplinary authority to arrive at a reasonable conclusion on the basis of available records, as to whether the charges as proved or not. He therefore, submitted that the disciplinary authority has not considered any extraneous or irrelevant matters for holding the charges as proved and therefore, there is no procedural infirmity. 14. Learned Government Advocate further submitted that the petitioner was not granted prior permission to proceed on leave and without the sanction of the authorities, she had gone to Saudi Arabia to take up some other assignment and thus, failed to discharge her duties, ignoring the public interest, she had abruptly left the government service for her own personal gain and such misconduct is proved on records and therefore, penalty of removal from service, is appropriate. 15. 15. Learned Government Advocate further submitted that the decisions relied on by the learned senior counsel for the petitioner are not applicable to the facts of this case, as the petitioner herself had admitted that she had gone abroad, hoping that the respondent would issue “No objection Certificate.” When absence is admitted there is no need to let in oral or documentary evidence, even though the some proceedings were referred to in the some proceedings were referred to in the charge memo. For the above said reasons, he prayed for dismissal of the Writ Petition. 16. Heard in the learned counsel for the parties and perused the materials available on record. 17. The charges levelled against the petitioner in memo, dated 14. 1991, by the Director of Medical Education, Chennai, are as follows: “(i) That she unauthorisedly absented from duty from 20.9.1989 without permission or proper sanction of leave from the competent authority, and (ii) That she disobeyed the orders of the Director of Medical Education in not rejoining duty as directed in this office ref. no.93529/E3/2/89, dated 10. 1989 and subsequently in this office memo, dated 9. 1990.” 18. It is an admitted case of the petitioner that she got her name registered for overseas assignment with Manpower Corporation Limited., (Government of Tamil Nadu Undertaking) and the said Corporation, by its letter dated 17. 1989, has applied to the State Government for issuing “No objection Certificate” to be granted to the petitioner, as she was selected by the Ministry of Health, Saudi Arabia as a Specialist Doctor. The petitioner, by her letter dated 27. 1989, has directly applied to the 1st respondent for issuing “No objection Certificate” and the same was stated to have been recommended by the then Minister for Revenue. It is the case of the petitioner that after recovery from illness, she proceeded to Saudi Arabia hoping that the 1st respondent would issue the “No objection Certificate” as has been done in several other cases. 19. It is the further case of the petitioner that due to ill-health and family circumstances, she could not report for duty from 20.9.1989 onwards and that she had requested for leave. Leave application had been rejected and that the Director of Medical Education, Chennai, second respondent herein, by Memo dated 10. 19. It is the further case of the petitioner that due to ill-health and family circumstances, she could not report for duty from 20.9.1989 onwards and that she had requested for leave. Leave application had been rejected and that the Director of Medical Education, Chennai, second respondent herein, by Memo dated 10. 1989, directed the petition to rejoin duty within 4 days and also cautioned her that departmental action would be initiated if she had failed to do so. It is evident from her letter, dated 20.10.1989 and pleadings that she was away from India and therefore, she could not rejoin duty. 20. As per the procedure contemplated in Rule 17(b) of the rules, a delinquent shall be required, within a reasonable time to put in a written statement of his defence and to state whether he desires an oral inquiry or to be heard in person or both. An oral inquiry shall be held if such an inquiry is desired by the person charged or is directed by the authority concerned. Even if a person charged has waived an oral inquiry, such inquiry shall be held by the authority concerned in respect of charges which are not admittedly the person charged and which can be proved only through the evidence of witnesses. At that inquiry, oral evidence shall be heard as to such of the allegations as are not admitted, and the person charged shall be entitled to cross-examine the witnesses to give evidence in person and to have such witnesses called, as he may wish, provided that the officer conducting the inquiry may, for special and sufficient reason to be recorded in writing, refuse to call a witness. 21. In the case on hand, the petitioner was directed to appear before the enquiry officer on 12. 1991. The summons fixing the enquiry date on 12. 1991 was sent to the petitioner by Registered Post with Acknowledgement due on 211. 1991 and the same was received by one Brinda Newman for the petitioner. Subsequently, the petitioner was directed to appear on 1. 1992. The enquiry summons was sent by a Special Messenger and received by an adult member, i.e., brother of delinquent officer on 1. 1993. But, she did not appear on the said date. Again the enquiry was fixed on 7. 1992 and the summons sent by Registered Post with Acknowledgement Due on 26. 1992. The enquiry summons was sent by a Special Messenger and received by an adult member, i.e., brother of delinquent officer on 1. 1993. But, she did not appear on the said date. Again the enquiry was fixed on 7. 1992 and the summons sent by Registered Post with Acknowledgement Due on 26. 1992, was returned by the postal authorities with remarks “Left” The same thing had happened for the next hearing date, i.e., on 1. 1993. 22. Again, another enquiry date was fixed on 12. 1993. Though the enquiry summons was received by one adult member of the delinquent officer, Selvameena Murugssan on 12. 1993, the petitioner did not appear on he said date. Finally, the petitioner was directed to appear before the enquiry on 20.9.1994. In this regard, the enquiry summons was sent by a Special Messenger and the Special Messenger has stated that he was informed that the delinquent officer has vacated the house and the present address was not known. Hence, the Special Messenger had pasted the summons in the said address of the delinquent officer on 19. 1994, after obtaining signature from a Witness. However, the petitioner did not attend for enquiry on 20.9.1994. 23. Thus, it could be seen from the proceedings of the enquiry officer that though the oral enquiry had commenced on 12. 1991 and in spite of several summons, there was no reply from the petitioner and that she had not shown any interest in responding to any one of the summons. Therefore, the enquiry officer has held that when sufficient opportunity was given to the petitioner to defend her case, she had not chosen to participate in the oral enquiry and accordingly, found that the charges as proved. 24. In Anil Kumar v. Presiding Officer (supra), the charges levelled against the appellant therein were that, (i) he neglected his duty and failed to execute the repair work for several days, and (ii) he refused the lawful orders of the Assistant Engineer and left the place, which was considered as a serious case of misconduct, negligence of duty and indiscipline. After the domestic enquiry, he was terminated from service. The Labour Court rejected the claim of the appellant under Section 11-A of the Industrial Disputes Act. The verdict of the Labour Court was confirmed by the High Court. After the domestic enquiry, he was terminated from service. The Labour Court rejected the claim of the appellant under Section 11-A of the Industrial Disputes Act. The verdict of the Labour Court was confirmed by the High Court. While testing the correctness of the order, the Supreme Court, at Paragraphs 5 and 5 of the judgment, held as follows at pp. 102 and 103 of LLJ: “5…It is well-settled that a disciplinary enquiry has to be a quasi-judicial enquiry held according to the principles of natural justice and the Enquiry Officer has a duty to act judicially. The Enquiry Officer did not apply his mind to the evidence. Save setting pot the names of the witnesses, he did not discuss the evidence. He merely recorded his ipse dixit that the charges are proved. He did not assign a single reason why the evidence produced by the appellant did not appeal to him or was considered not creditworthy. He did not permit a peep into his mind as to why the evidence produced by the management appealed to him in preference to the evidence produced by the appellant. An enquiry report in a quasi-judicial enquiry must show the reasons for the conclusion. It cannot be an ipse Dixie of the Enquiry Officer. It has to be a speaking order in the sense that the conclusion is supported by reasons. This is too well-settled to be supported by a precedent. In Madhya Pradesh Industries Ltd. V. Union of India AIR 1966 SC 671 : (1966) 1 SCR 466 , this Court observed that a speaking order will at best be a reasonable and at its worst be atleast a plausible one. The public should not be deprived of this only safeguard. Similarly in Mahabir Prasad v. State of Uttar Pradesh AIR 1970 SC 1302 : (1970) 1 SCC 764 : (1971) 1 SCR 201 , this Court reiterated that satisfactory decision of a disputed claim may be reached only if it be supported by the most cogent reasons that appealed to the authority. It should, all the more be so where the quasi-judicial enquiry, may result in deprivation of livelihood or attach a stigma to the character. In this case the inquiry report is merely an order sheet which merely produces the stage through which the inquiry passed. It should, all the more be so where the quasi-judicial enquiry, may result in deprivation of livelihood or attach a stigma to the character. In this case the inquiry report is merely an order sheet which merely produces the stage through which the inquiry passed. It clearly disclosed a total non-application of mind and it is this report on which the General Manager acted in terminating the service of the appellant. There could not have been a gross case of non-application of mind and it is such an enquiry which was found favour with the Labour Court and the High Court. 6. Where a disciplinary enquiry affects the livelihood and is likely to cast a sigma and it has to be held in accordance with the principles of natural justice, the minimum expectation is that the report must be a reasoned one. The Court then may not enter into the adequacy or sufficiency of evidence. But where the evidence is annexed to an order sheet and no correlation is established between the two showing application of mind, we are constrained to observe that it is not an enquiry report at all. Therefore, no enquiry on this case worth the name and the order of termination based on such proceeding disclosing non-application of mind would be unsustainable.” 25. In Anil Kumar v. Presiding Officer (supra), the enquiry officer did not apply his mind to the evidence, excepting to state the names of the witnesses and that without any discussion of their evidence, he had recorded the charges as proved. He did not assign a single reason as to why the evidence produced by the appellant therein, did not appeal to him or was considered not credit-worthy. He did not even applied his mind as to why the evidence produced by the management appealed to him in preference to the evidence produced by the appellant. Therefore, in that context, the Supreme Court held that an enquiry report in quasi-judicial enquiry must show the reasons for its conclusion. In the said case, termination was ordered on the basis of the enquiry report, which did not consider the defence of the appellant. Therefore, in that context, the Supreme Court held that an enquiry report in quasi-judicial enquiry must show the reasons for its conclusion. In the said case, termination was ordered on the basis of the enquiry report, which did not consider the defence of the appellant. But in the case on hand, the conclusion of the inquiry authority as to the guilt of the petitioner, has been arrived at by cogent reasons, taking into consideration the records, which proved her absence and the defence put up by the petitioner, was also found to be false. Therefore, this Court is of the view that the decision In Anil Kumar v. Presiding Officer (supra) is inapposite to the facts of this case. 26. In W.A. No.614 of 1986, dated 8. 1996, the appellant therein was charged for (i) refusal to carry out the Government jobs and insubordination towards superior officials, (ii) Inciting co-workers not to carry out the jobs. The charges were based on several complaints received with regard to the manner of working of the appellant. Per contra, the appellant claimed that action was taken against him, because he was a Trade Union Worker. In that case, the appellant was given a notice to appear for the oral enquiry, where two witnesses were sought to be examined. Instead of participating in the enquiry, he challenged the power of the enquiry officer, using intemperate language. Without recording the oral evidence of the two witnesses, the enquiry officer proceeded to record his findings on the basis of the written complaints. Finding that the procedure adopted by the enquiry officer as a grave error, the Division Bench quashed the order of removal and remitted the matter to the enquiry officer to proceed further, after giving notice to the appellant. 27. In the case on hand, no doubt, the enquiry officer has not recorded the findings on the basis of the documents, which form part of the charge memo or by examination of any witness, but the disciplinary authority on the consideration of the evidence, statement of defence and further representation, has found that family problem was not the reason for her absence, but she had gone abroad on employment during her long absence. Even the petitioner has admitted that she had gone to Saudi Arabia, hoping that “No Objection Certificate” would be issued by the Government and that by her letter, dated 20.10.1989, she had clearly stated that she was away from India. 28. Leave applications submitted by the petitioner right from 20.9.1989 have been refused and by Memo dated 10. 1989 of the Director of Medical Education, Chennai, second respondent herein, the petitioner was directed to rejoin duty immediately. Therefore, it is clear that there is no prior permission or proper sanction of leave from the competent authority from 20.9.1989 onwards. 29. It is well settled that the report of the Inquiry Officer is intended to assist the Disciplinary Authority in coming to a conclusion about the guilt of delinquent. The findings of the Inquiry Officer or recommendations are only advisory in character and not binding on disciplinary Authority, who can disagree with them and come to his own assessment of evidence on the basis of records. On receipt of report and record of inquiry, the disciplinary Authority will have to examine them carefully, dispassionately and after satisfying itself as to whether the delinquent was given a reasonable opportunity to defend himself, has to record its findings in respect of each Article of Charge, saying whether in his opinion, it stands proved or not. However, if the disciplinary Authority disagrees with the findings of the Inquiry Officer on any Article of Charge, he can, while recording his own findings, also record reasons for disagreement. 30. In Union of India v. H.C. Goel AIR 1964 SC 364 , the Constitutional Bench of the Supreme Court, at Paragraph 19, held as follows: “Findings of facts recorded by an enquiry officer entrusted with the work of holding a departmental enquiry into misconduct of a Government servant under Rule 55 of the Civil Services (Classification, Control and Appeal) Rules are not binding on the Government. The Government is competent to take a different view on evidence adduced against the Government servant and proceed on the basis that the conclusions of fact recorded by the enquiry officer were unsound and erroneous. The Government is competent to take a different view on evidence adduced against the Government servant and proceed on the basis that the conclusions of fact recorded by the enquiry officer were unsound and erroneous. Consequently where the enquiry officer has made a report in favour of the Government servant but the Government taking a contrary view issues a second notice which subsequently results in the dismissal of the Government servant, the action of the Government cannot be said to be in contravention of the constitutional safeguards afforded by Article 31 1(1) and (2) of the Constitution.” .31. The said judgment was considered by the Supreme Court in a later decision in Railway Board, New Delhi v. N. Singh AIR 1969 SC 966 : (1969) 1 SCC 502 : 1969-11-LLJ-743. In the said case, in a departmental enquiry against a railway employee, the enquiry committee disbelieved the evidence of witnesses and came to the conclusion that the charge was not proved beyond reasonable doubt, the General Manager, who was the disciplinary authority however, did not agree and accepted the evidence of witnesses and held the employee guilty of the charge. The Supreme Court, while considering the above aspect, at Paragraph 5, held that at p.746 of LLJ: .“It was open to the General Manager to do so and he was not bound by the conclusion reached by the enquiry Committee. The finding of the Disciplinary Authority could not be said to be unsupported by evidence nor could it be said that no reasonable person could have reached such a finding. The conclusion reached by the Disciplinary Authority should prevail.” 32. Power of the disciplinary authority to differ with the findings recorded decisions by the enquiry officer is settled in a catena of the decisions of the Supreme Court in Punjab National Bank v. Kunj Behari Misra AIR 1998 SC 2713 : (1998) 7 SCC 84 : 1998-II-LLJ-809, State Bank of India v. K.P.Narayanan Kutty AIR 2003 SC 1100 : (2003) 2 SCC 449 : 2003-II-LLJ-1 and Ranjit Singh v. Union of India (2006) 4 SCC 153 :2006-II-LLJ-908. .33. .33. Therefore, even if the enquiry officer has not recorded its findings on the basis of the materials sought to be adduced as evidence that will not foreclose the power of the disciplinary authority in coming to a reasonable conclusion as to the guilt of the delinquent on the basis of the records, so long as, they are not extraneous or irrelevant to the charges. It is not in dispute that the petitioner had gone abroad during the above said period without leave or permission from the competent authority. There were also clear instructions from the Director of Medical Education, Madras to re-join duty which she could not do so, as she was in a foreign country. In her statement of defence the petitioner had contended the her mother-in-law had met with an accident and that her presence was necessary to look after till recovery. She had also assured to rejoin duty after six months. The said reason is obviously false as she was very much employed in a foreign country. 34. When the admitted position reveals that the petitioner was not present in India, this Court, having regard to the settled position that the enquiry report is intended mainly to assist the disciplinary authority in coming to a reasonable conclusion, non-consideration of the documentary or oral evidence, by the enquiry officer, would not vitiate the enquiry proceedings. If there are adequate materials on record, enabling the disciplinary authority to examine them independently, for arriving at a reasonable conclusion, still he can examine them, not withstanding the fact whether the enquiry officer has held the charges as proved or not. Even if the enquiry officer had failed to consider the documents referred to in the charge memo, still it is open to the disciplinary authority to independently apply his mind to the same and come to reasonable conclusion. 35. No doubt, the enquiry officer has proceeded on the premise that the petitioner did not appear for the enquiry, inspite of several summons and therefore, there was no defence and accordingly, held that the charge as proved. The case of the learned senior counsel for the petitioner can be accepted, if the disciplinary authority had merely acted upon such findings, without there being any discussion on evidence. The case of the learned senior counsel for the petitioner can be accepted, if the disciplinary authority had merely acted upon such findings, without there being any discussion on evidence. But on the other hand, the disciplinary authority had considered the material on record, as well as falsity of the petitioner’s case that she was to attend her mother-in-law, who met with an accident and has come to the conclusion that the charge as proved. .36. When power is conferred on time disciplinary authority to disagree with the findings recorded by the enquiry officer and to arrive at a reasonable conclusion on the basis of the records, which admittedly revealed that she was away from India without leave or permission from the competent authority, the findings recorded by the disciplinary authority, the findings recorded by the disciplinary authority cannot he termed as perverse or a case of no evidence. 37. Consideration of the records pertaining to the very charge of unauthorized absence, cannot be said to be extraneous or irrelevant for the conclusion arrived at by the disciplinary authority cannot be said to be perverse or a case of no evidence and therefore, the decision relied on by the learned counsel for the petitioner in W.A. No.614 of 1986, dated 8. 1996, with due respect, may not be appropriate to the facts of this case. 38. Another contention raised by the petitioner is that the opinion of the TNPSC, which began with the statement that “there is no procedural flaw in the enquiry” is a failure to exercise their duty. Perusal of the opinion shows that the commission had proceeded on the premise that inspite of several opportunities given to the petitioner to appear before the enquiry officer, she has failed to defend the charges. It is well settled that the opinion of the Commission is only advisory in nature and it is not binding on the disciplinary authority. Therefore, even if the Commission has not considered the propriety of the enquiry, that would not curtail the power of the disciplinary authority to examine the records and come at a conclusion. 39. The next point to be considered is whether the penalty of removal from service awarded to the petitioner commensurate with the misconduct of the unauthorized absence and failure to rejoin duty. 39. The next point to be considered is whether the penalty of removal from service awarded to the petitioner commensurate with the misconduct of the unauthorized absence and failure to rejoin duty. In this context, let me consider some of the decisions relied on by the learned counsel for the petitioner. 40. In Union of India v. K.G. Soni (2007) 7 MLJ 907: 2006-III-LLJ-802, the delinquent-respondent was a Store Assistant in Bank The alleged misconduct on his part was that he contracted a second marriage and he did not disclose it to the authorities. While considering the proportionality of punishment, the Supreme Court observed that the Court should not interfere with the administrator’s (employer’s) decision (In the matter of punishment), unless it was illogical or shockingly disproportionate, or suffer from any procedural impropriety. The scope of judicial review was limited to the deficiency in decision-making process and not the decision. 41. In the above reported judgment, the Supreme Court held that, (2007) 7 MLJ 907 at p.910 of MLJ: “15. unless the punishment imposed by the Disciplinary Authority or the Appellate Authority shocks the conscience of the Court/Tribunal, there is no scope for interference. Further to shorten litigations it may, in exceptional and rare cases, impose appropriate punishment by recording cogent reasons in support thereof. In a normal course if the punishment imposed is shockingly disproportionate, it would be appropriate to direct the Disciplinary Authority or the Appellate Authority to reconsider the penalty imposed.” 42. In Shri Bhagwan Lal Arya v. Commissioner of Police, Delhi and Others (supra), a Police Constable had absented himself for two months, seven days and seventeen hours on medical grounds. The Supreme Court observed that the punishment of dismissal/removal from service can be awarded only for the acts of grave nature or as cumulative effect of continued misconduct proving incorrigibility of complete unfitness for police service and merely one incident of absence and that too because of bad health, supported by medical certificate, cannot become the basis for awarding such a punishment. Having found that the absence was not willful and considering the fact that the appellant therein was out of employment for 12 years, as a result of which, the entire family suffered very much, the Supreme Court set aside the order of removal and ordered for reinstatement in service, subject to the contention that the period during which, the appellant therein remained absent from duty and the period calculated upto the date on which the appellant reports back to duty, pursuant to the above judgment, shall not be counted as a period spent on duty. 43. It could be seen from the judgment that the absence was for a short period, besides it was also found not willful. But in the case on hand, the absence of the petitioner was wholly unauthorized and she had taken up an assignment in a foreign country for her own purpose, ignoring her duties and responsibilities in India. 44. In Director General of Police v. Kuppusamy 2006 (4) CTC 416 , the allegation levelled against the respondent therein was that he demolished a horse shed, causing damage to the tune of Rs.50,000/-. On perusal of the materials, this Court found that horse shed demolished by the delinquent Policeman was in a dilapidated condition. Moreover, the respondent therein was aged 50 years at the time of dismissal. That apart, he was immobile and was confined to bed due to an accident. The mitigating circumstances stated supra were (sic) taken into consideration by this Tribunal and in such circumstances, this Court has confirmed the order of the Tribunal, which modified the penalty of dismissal into that of compulsory retirement. Therefore, Director General of Police v. Kuppusamy (supra) case cannot be made applicable to the facts of this case. 45. In Om Kumar v. Union of India AIR 2000 SC 3689 : (2001) 2 SCC 236, the Supreme Court explained the power of the Courts to interfere with the punishment on the “Doctrine of Proportionality”, with reference to “Wednesbury’s Principles”. At Paragraphs 28, 30, 53, 54, 66, 67, 68 and 71, held as follows: “By proportionality”, it is meant that the question whether, while regulating exercise of fundamental rights, the appropriate or least-restrictive choice of measures has been made by the legislature or the administrator so as to achieve the object of the legislation or the purpose of the administrative order, as the case may be. Under the principle, the Court will see that the legislature a proper balance between the adverse effects which the legislation or the administrative order may have on the rights, liberties or interests of persons keeping in mind the purpose where they were intended to serve.” The legislature and the administrative authority are, however, given an area of discretion or a range of choices but as to whether the choice made infringes the rights excessively or not is for the Court to decide. That is what is meant by proportionality. (para 28) The administrative action in our country, has to be tested on the principle of “proportionality”, just as it is done in the case of the main legislation. This, in fact, is being done by our Courts. Administrative action in India affecting fundamental freedoms has always been tested on the anvil of “proportionality” in the last fifty years even though it has not been expressly stated that the principle that is applied is the “proportionality” principle. (Paras 30, 53 and 54). In India where administrative action is challenged under Article 14 as being discriminatory, equals are treated unequally or unequals are treated equally, the question is for the Constitutional Courts as primary reviewing Courts to consider correctness of the level of discrimination applied and whether it is excessive and whether it has a nexus with the objective intended to be achieved by the administrator. Here the Court deals with the merits of the balancing action of the administrator and is in essence, applying “proportionality” and is a primary reviewing authority. But where an administrative action is challenged as “arbitrary” under Article 14 on the basis of Royappa (as in cases where punishments in disciplinary cases are challenged), the question will be whether the administrative order is “rational” or “reasonable” and the test then is the Wednesbury test. The Courts would then be confined only to a secondary role and will only have to see whether the administrator has done well in his primary role, whether he has acted illegally or has omitted relevant factors from consideration or has taken irrelevant factors into consideration or whether his view is one which no reasonable person could have taken. If his action does not satisfy these rules, it is to be treated as arbitrary. (para 66 and 67). If his action does not satisfy these rules, it is to be treated as arbitrary. (para 66 and 67). Thus, when administrative action is attacked as discriminatory under Article 14, the principle of primary review is for the Courts by applying proportionality. However, where an administrative decision relating to punishment in disciplinary cases lis questioned as “arbitrary” under Article 14, the Court is confined to Wednesbury principles as a secondary reviewing authority. The Court will not apply proportionality as a primary reviewing Court because no issue of fundamental freedoms nor of discrimination under Article 14 applies in such a context. The Court while reviewing punishment and if it is satisfied that Wednesbury principles are violated, it has normally to remit the matter to the administrator for a fresh decision as to the quantum of punishment. Only in extreme and rare cases where there has been long delay in the time taken by the disciplinary proceedings and in the time taken in the Courts, can be Court substitute its own view as to the quantum of punishment. (para 68 and 71).” 46. In B.C.Chaturvedi v. Union of India and Other AIR 1996 SC 484 : (1995) 6 SCC 749 : 1996-I-LLJ-1231, it was observed at p.1237 of LLJ: “18. A review of the above legal position would establish that the disciplinary authority, and on appeal the appellate authority, being fact finding authorities have exclusive power to consider the evidence with a view to maintain discipline. They are invested with the discretion to impose appropriate punishment keeping in view the magnitude or gravity of the misconduct. The High Court/Tribunal, while exercising the power of judicial review, cannot normally substitute its own conclusion on penalty and impose some other penalty if the punishment Imposed by the disciplinary authority or the appellate authority shocks the conscience of the High Court/Tribunal, it would appropriately would the relief, either directing the disciplinary/appellate authority to reconsider the penalty imposed or to shorten the 1litigation it may itself, in exceptional and rare cases, impose appropriate punishment with cogent reasons in support thereof.” 47. In Union of India and Another v. G. Gariayutham AIR 1997 SC 3387 : (1997) 7 SCC 463 : 2001-II-LLJ-648, this Court summed up the position relating to proportionality in paragraph 28, which read as follows at p. 657 of LLJ. “28. In Union of India and Another v. G. Gariayutham AIR 1997 SC 3387 : (1997) 7 SCC 463 : 2001-II-LLJ-648, this Court summed up the position relating to proportionality in paragraph 28, which read as follows at p. 657 of LLJ. “28. The current position of proportionality in administrative law in England and India can be summarized as follows: .(i) 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 (1948) 1 KB 223) 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 (1985 AC 374) principles. (3) As per Bugdaycay (1987 AC 514), Brind (1991) 1 AC 696 and Smith (1996) 1 AHER 257 as long as the convention is not incorporated into English law/the English Courts merely exercise a secondary judgment to find out if the decision maker could have on the material before him, arrived at the primary judgment in the manner he has done. .(3) (b) If the Convention is incorporated in England making available the principle of proportionality, then the English Courts will render primary judgment on the validity of the administrative action and find out if the restriction is disproportionate or excessive is not based upon a fair balancing of the fundamental freedom and the need for the restriction thereupon. .(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 is not based upon a fair balancing of the fundamental freedom and the need for the restriction thereupon. (4)(a) The position in our country, in administrative law, where no fundamental freedoms as aforesaid are involved, is that the Courts/Tribunals will only play a secondary role while the primary judgment as to reasonableness will remain with the executive or administrative authority. The secondary judgment of the Court is to be based on Wednesbury and CCSU principles as stated by LORD GREEN 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 Article 12, 21 etc. are involved and not for Article 14.” 48. In Director General R.P.F. and Others v. Ch. Sai Babu AIR 2003 SC 1437 : (2003) 4 SCC 331 , the Supreme Court, again while considering the scope of judicial review on the punishment imposed by the disciplinary authority, at Paragraph 6, held that, “6…..Normally, the punishment imposed by disciplinary authority should not be disturbed by High Court or Tribunal except in appropriate cases that too only after reaching a conclusion that the punishment imposed is grossly or shockingly disproportionate, after examining all the relevant factors, including nature of charges proved against, the past conduct, penalty imposed earlier, the nature of duties assigned having due regard to their sensitiveness, exactness expected of and discipline required to be maintained, and the department/establishment in which the concerned delinquent person works.” .49. In Union of India v. Narain Singh AIR 2002 SC 2102 : (2002) 5 SCC 11 , the Supreme Court held that, .“Once the Court came to the conclusion that the charges were proved and were of a serious nature, it was not the function of the Court to interfere with the quantum of punishment. The Division Bench was wrong in holding that factors viz. (a) the person is coming from which place (b) his family background, and (c) his service record etc. were to be kept in mind. The Division Bench was also wrong in holding that if a poor person pleads guilty to the misconduct then extreme penalty of dismissal is uncalled for. Courts must not lightly interfere with sentences passed after a properly conducted enquiry where the guilt is proved.” .50. In Damoh Panna Sagar Rural Regional Bank and Another v. Munna Lal Jain AIR 2005 SC 584 : (2005) 10 SCC 84 : 2005-I-LLJ-730, the supreme Court, held as follows: .“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. The Court should not interfere with the administrator’s decision unless it is illogical or suffers from procedural impropriety or is shocking to the conscience of the Court, in the sense that it is in defiance of logic or moral standards. Unless the punishment imposed by the disciplinary authority or the appellate authority shocks the conscience of the Court/Tribunal, there is no scope for interference. Further, to shorten litigations it may, in exceptional and rare cases, impose appropriate punishment by recording cogent reasons in support thereof.” 51. In Coimbatore District Central Coop. Bank v. Employees Assn., (2007) 4 SC 669, the Supreme Court, at Paragraphs 13, held as follows: “13. ‘Proportionality’ is a principle where the Court is concerned with the process, method or manner in which the decision-maker has ordered his priorities, reached a conclusion or arrived at a decision. In Coimbatore District Central Coop. Bank v. Employees Assn., (2007) 4 SC 669, the Supreme Court, at Paragraphs 13, held as follows: “13. ‘Proportionality’ is a principle where the Court is concerned with the process, method or manner in which the decision-maker has ordered his priorities, reached a conclusion or arrived at a decision. The very essence of decision making consists in the attribution of relative importance to the factors and considerations in the case, The doctrine of proportionality thus steps in focus true nature of exercise – the elaboration of a rule of permissible priorities, DE SMITH states that “proportionality” involves “balancing test” and ‘necessity test’. Whereas the former (‘balancing test’) permits scrutiny of excessive onerous penalties or infringement of rights or interests and a manifest imbalance of relevant considerations, the latter (‘necessity test’) requires infringement of human rights to the least restrictive alternative.” 52. In the case on hand, the petitioner is a qualified gynecologist. In her ambition to work in a foreign country, she had proceeded on leave without prior permission. She had applied for 30 days leave from 28. 1989 to 19. 1989 on account of her ill-health. She should have joined duty on 20.9.1989. Prior to that, she had registered her employment particulars with the Overseas Employment Corporation (Government of Tamil Nadu under-taking). Though the Chairman and Managing Director of the Overseas Manpower Corporation in their letter, dated 17. 1989, requested the Commissioner and Secretary to Government, Health and Family Welfare Department, Madras to issue “No Objection Certificate” for obtaining passport and sanction deputation for a period of three years, so as to enable her to take up an assignment of Saudi Arabia, no Orders were issued by the Government. The petitioner has also requested a deputation order from the Government. But without obtaining any orders from the Government. But without obtaining any orders from the Government, proceeded on her own accord, without prior permission and after one month, when she was away from India, submitted a letter, dated 20.10.1989, replying to the memos, dated 10. 1989 and 10. 1989 of the Director of Medical Education, Madras stating that she could not rejoin duty and sought for extraordinary leave which was applied for six months from 20.9.1989, by her application dated 20.10.1989. 1989 and 10. 1989 of the Director of Medical Education, Madras stating that she could not rejoin duty and sought for extraordinary leave which was applied for six months from 20.9.1989, by her application dated 20.10.1989. Therefore, it is abundantly clear that petitioner, without considering the nature of duties and responsibilities attached to her office, had given priority to her private interest into consideration. It is needless to say that if a Doctor remains unauthorisedly absent in a hospital, or if a lecturer remains absent in an educational institution, the interest of the patients/students, would certainly be affected. Consequently, the department or the institution would have to make alternative arrangements and that would certainly cause administrative inconvenience. 53. Considering the primary duties attached to a professional and taking into consideration the public interest vis-à-vis private interest, this Court is unable to subscribe to the contention of the petitioner that the punishment of removal from service is disproportionate to the gravity of the Charges, Looking at from another angle, if the punishment of removal is modified into that of compulsory retirement and that the petitioner is allowed to receive the retiral benefits, then any professional like the petitioner can simply go abroad, earn better wages, come back to India and seek for intervention of this Court or the authorities for modification of the penalty into that of compulsory retirement and avail all the retiral benefits. Testing the quantum of penalty on the doctrine of Wednesbury’s Principles, as laid down by the Supreme Court in various decisions, this Court is of the considered view that if that is permitted, it would be nothing but a misplaced sympathy on a Government servant, who has willfully absented himself from discharging his duties and responsibilities and therefore, the penalty imposed on the petitioner, is not shockingly disproportionate in the charges, warranting interference. 54. For the above said reasons, the writ petition is dismissed.