Judgment : Respect of the defence of the petitioner that he was on leave on 1. 2003, the date on which the bribe was alleged to have been accepted, on verifying the attendance register has found that the petitioner was on leave on the said date. The relevant portion of the finding of the Enquiry Officer is as follows: "1) In his statement of defence, the charged official has informed that he was on leave on 03.01.2003. This aspect is verified with reference to the attendance registers maintained in the Office of the Assistant Commissioner (CT) Chennai (South) Enforcement, Chennai-6 and the verification revealed the follows: a) In Page No.4 of the Attendance Register for officers, it has been mentioned as jtp on 1. 2007. b) In Page No.51 of the Casual Leave Register, there is entry of Casual leave on 03.01.2007 for kfid kUj;Jtkid miHj;J bry;y which has been attested by the official concerned. Hence the explanation of the official that he was on leave on 03.01.2003 is acceptable." (The date in the above extracts has been wrongly stated by the Enquiry Officer to be 1. 2007 instead of 1. 2003 and the same is not in dispute.) 8. After receiving the report of the Enquiry Officer, the second respondent has issued a memo to the petitioner on 23. 2008, disagreeing with the report of the Enquiry Officer and calling for further explanation from the petitioner. The reason for disagreement given in the said memo is as follows: "Reasons for holding the charge as proved disagreeing with the findings of the Inquiry Officer: Charge No.I: 1. Reasons for obtaining Rs.10, 000/- other than Rs.30,000/-for which receipt was not issued." 9. After considering the further explanation, the second respondent has passed the impugned order dated 4. 2008. For disagreeing with the report of the Enquiry Officer in respect of the altered charge, the second respondent, in the impugned order, has given the following reason: "6. The case relates to the trap and arrest for demand and acceptance of bribe and the Honble Court of Vth Additional Sessions Judge, Chennai 104 have acquitted Thiru A.Muralidharan, Assistant Commercial Tax Officer. However, certain grave irregularities were noticed involving misconduct in the discharge of official duties for which the disciplinary action under rule 17(b) of Tamil Nadu Civil Services (Discipline & Appeal) Rules was initiated by framing a charge. However, certain grave irregularities were noticed involving misconduct in the discharge of official duties for which the disciplinary action under rule 17(b) of Tamil Nadu Civil Services (Discipline & Appeal) Rules was initiated by framing a charge. The explanation as well as the further representation of the charged officer on the charge framed against him are not convincing and satisfactory. Therefore, disagreeing the findings of the Inquiry Officer and not accepting the further representation of the charged officer, the single charge framed against Thiru.A.Muralidharan, Assistant Commercial Tax Officer is held as proved." A reference to the said order makes it clear that no reason has been adduced except to say that the further representation of the petitioner is not convincing and satisfactory. 10. The first respondent, on appeal, has given the following reason for rejecting the appeal: "5. The Government have carefully examined the appeal of Thiru A.Muralidharan, Assistant Commercial Tax Officer, Roving Squad-II, Chennai-6, now ACTO/Superintendent along with the relevant records and the view of the Tamil Nadu Public Service Commission and decided to accept the views of the Tamil Nadu Public Service Commission. The Government accordingly reject the appeal of Thiru A.Muralidharan, Assistant Commercial Tax Officer/Superintendent, as devoid of merits." 11. It is specifically admitted in the counter affidavit filed by the second respondent that in respect of T.S.Balasubramanian, another Assistant Commercial Tax Officer, who was arrayed as second accused in the criminal case and who was also acquitted in the said judgment, punishment of censure was awarded. In fact, a reference to the various portions of the judgment of the Criminal Court shows that the main charge of demand and acceptance of bribe was against him and even that was found to have been not proved and in spite of it, in the disciplinary proceedings, he has been awarded punishment of censure while the petitioner has been awarded punishment of stoppage of increment for one year with cumulative effect and for that the reason given is that the lapse committed by him is different. 12. This aspect has not been considered by the respondents which is violative of Wednesbury Principles and Doctrine of Proportionality, the well established concept of administrative law. It is true that the punishment awarded to the petitioner is not a major punishment, but that is not a material fact for deciding about the concept of proportionality. 12. This aspect has not been considered by the respondents which is violative of Wednesbury Principles and Doctrine of Proportionality, the well established concept of administrative law. It is true that the punishment awarded to the petitioner is not a major punishment, but that is not a material fact for deciding about the concept of proportionality. It is also true that the ultimate finding of the Criminal Court may not be relevant for the purpose of deciding departmental proceedings, but, nevertheless, the factual assertion after narration of evidence of various witnesses in the criminal case certainly has to be taken into consideration for the purpose of deciding as to whether the petitioner was actually involved. As I have stated earlier, the Criminal Court, on evidence, has found that the petitioner was on leave and there was no iota of evidence to show that the petitioner was involved in the demand and acceptance of bribe. Of course, that was also the case in respect of T.S.Balasubramanian, as found by the Criminal Court, and in his case the punishment of censure was awarded, while in the case of the petitioner a punishment of stoppage of increment for one year with cumulative effect has been awarded. Taking note of this clinching aspect, I am of the considered view that awarding of punishment to the petitioner is disproportionate. 13. The Supreme Court in Om Kumar and others v. Union of India, [2001] 2 SCC 386 has explained about the Wednesbury Rule as well as the Proportionality Principle as follows: "26. Lord Greene said in 1948 in the Wednesbury case, [1948] 1 KB 223: [1947] 2 All ER 680 (CA) 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 other of the following conditions were 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 UK and in India to judge the validity of administrative action. These principles were consistently followed in UK and in India to judge the validity of administrative action. It is equally well known that in 1983, Lord Diplock in Council for Civil Services Union v. Minister of Civil Service 1983 (1) AC 768 (called the GCHQ case) summarised 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 that proportionality was a "future possibility". 28. By proportionality, we mean 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 and the administrative authority maintain 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 which they were intended to serve. The legislature and the administrative authority are however given at 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. That is what is meant by proportionality." 14. The judgment relied upon by the learned counsel for the respondents rendered by the Supreme Court in Union of India v. K.Krishnan, AIR 1992 SC 1898 relates to the Post and Telegraph Manual Volume-3 wherein the rule specifically prohibits promotion during the currency of penalty in disciplinary proceedings against an employee. But, on the facts and circumstances of the present case, there was no disciplinary proceeding pending or penalty imposed on the crucial date for inclusion of his name in the Deputy Commercial Tax Officer Panel 2004. Even the criminal case charge sheet was filed only on 11. 2004, while the crucial date for the panel of the year 2004 was 3. 2004. Mere pendency of FIR against the petitioner at that time, namely during the crucial date cannot be taken as a bar for including his name in the panel, especially in the circumstances where ultimately the criminal case has ended in acquittal on 26. 2006. 15. 2004, while the crucial date for the panel of the year 2004 was 3. 2004. Mere pendency of FIR against the petitioner at that time, namely during the crucial date cannot be taken as a bar for including his name in the panel, especially in the circumstances where ultimately the criminal case has ended in acquittal on 26. 2006. 15. In such circumstances, even if the impugned order of punishment is sustained, the petitioner is entitled to be included in the panel of Assistant Commercial Tax Officers fit for promotion as Deputy Commercial Tax Officers for the year 2004, for the disciplinary proceedings commenced by framing of charge under Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules only on 1. 2007, long after the crucial date. Thus, looking from any angle, I am of the considered opinion that the impugned order of punishment imposed on the petitioner is unsustainable and the name of the petitioner is entitled to be included in the panel of Assistant Commercial Tax Officers fit for promotion as Deputy Commercial Tax Officers for the year 2004 and the petitioner is entitled to be considered for promotion as Deputy Commercial Tax Officer on the date when his immediate junior stood promoted, which was on 8. 2004. For the foregoing reasons, the writ petitions stand allowed and the impugned order of punishment imposed on the petitioner by the impugned order dated 4. 2008 stands set aside with a direction to the respondents to include the name of the petitioner in the panel of Assistant Commercial Tax Officers fit for promotion as Deputy Commercial Tax Officers for the year 2004 and give benefit of promotion from the date of promotion of his immediate junior and grant all consequential monetary benefits due to the petitioner within a period of twelve weeks from the date of receipt of a copy of this order. No costs.