JUDGMENT : L. Mohapatra, J. - The prayer in the writ application is for quashing the report of the Inquiry Officer dated 30/31st December, 1985 (Annexure-3), order of the Disciplinary Authority dated 16.4.1987 (Annexure-4), order of the Appellate Authority dated 14.10.1987 (Annexure-6) and order of the Reviewing Authority dated 7.12.1998 (Annexure-9) directing removal of the Petitioner from service in pursuance of the disciplinary proceeding. 2. The Petitioner at the relevant time was serving as an Assistant Engineer (Civil) in Talcher Unit of Fertilizer Corporation of India Ltd. and while working as such, a departmental proceeding was initiated against him. Five charges were framed in the departmental 'proceeding and on conclusion of the proceeding the Petitioner was exonerated from charge No. 3 whereas he was found guilty of the charge Nos. 1, 2, 4 and 5. On the basis of the said inquiry report, the Disciplinary Authority imposed penalty of removal of the Petitioner from service only on the basis of findings in respect of charge Nos. 1, 2 and 4 whereas the findings of the Inquiry Officer with regard to charge No. 5 was not accepted on the ground that there was no sufficient evidence to prove or disprove the said charge. Against the order of removal from service, the Petitioner preferred an appeal and the Appellate Authority rejected the appeal thereby confirming the order of the Disciplinary Authority. Challenging the order of the Appellate Authority, the Petitioner approached this Court in O.J.C. No. 3512 of 1987. The said writ application was disposed of on 11.1.1990 directing the Petitioner to file a review before the Reviewing Authority. After disposal of the said writ application, the Petitioner filed a review before the Board of Directors of the Corporation on several grounds, but the review was rejected on 12.9.1990. Challenging the order of the Reviewing Authority, the Petitioner again approached this Court in O.J.C. No. 4057 of 1990 and the said writ application was allowed by judgment and order dated 17.9.1992. The order of punishment was set aside and the matter was remitted back to the Disciplinary Authority for fresh consideration. The Corporation challenged the order of this Court dated 17.9.1992 before the Hon'ble the Supreme Court in Civil Appeal No. 1499 of 1993. The said Civil Appeal was allowed on 31.01.1996 and the matter was again remitted back to this Court for reconsideration. The Corporation challenged the order of this Court dated 17.9.1992 before the Hon'ble the Supreme Court in Civil Appeal No. 1499 of 1993. The said Civil Appeal was allowed on 31.01.1996 and the matter was again remitted back to this Court for reconsideration. After receipt of the record on remand, this Court by order dated 25.8.1998 disposed of the writ application remitting the matter back to the Reviewing Authority again. The Reviewing Authority by order dated 07.12.1998 in pursuance of the order of this Court in O.J.C. No. 4057 of 1990 rejected the review petition. Challenging the second order of the Reviewing Authority passed in pursuance of the order passed by this Court in the aforesaid case, this writ application has been filed. 3. Shri S.K. Padhi, the learned senior Counsel appearing for the Petitioner assails the orders passed by the Inquiry Officer, Disciplinary Authority and Reviewing Authority on the ground that out of the five charges, the Petitioner was not found guilty of charge No. 3 whereas in respect of other charges, he was found guilty by the Inquiry Officer. The Disciplinary Authority dropped charge No. 5 having not been proved and, therefore, the Petitioner has been found guilty of charge Nos. 1, 2 and 4 not only by the Disciplinary Authority but also by the Reviewing Authority. According to Shri Padhi, the learned senior counsel appearing for the Petitioner, charge Nos. 1 and 4 are of similar nature and on reading of the said two charges it is clear that the Petitioner was not in charge of the said work and he had been asked to only measure the work done. There were two contracts between the Corporation and contractor and the payments were made under the new contract resulting in excess payment to the contractor and pecuniary loss to the Corporation, It was further submitted so far as payment in relation to the work executed is concerned, the Petitioner had no role to play and the proposal for payment has been cleared and sanctioned by several higher authorities, who have not been made responsible for the pecuniary loss alleged to have been sustained by the Corporation. Since the basis of the charge is with regard to excess payments to the contractor resulting in pecuniary loss to the Corporation, the Petitioner should have been exonerated of the charges since he had no role to pay so far as payment to the contractors is concerned. So far as charge No. 2 is concerned, it was contended that in view of findings in respect of charge No. 3, it cannot be said that charge No. 2 has been established. Shri Nanda, the learned Counsel appearing for the Corporation submitted that the Fertilizer Corporation at Talcher has been closed long since. On merits of the case it was submitted by the learned Counsel Shri Nanda that the charges having been proved in course of inquiry and the same having been accepted by the Disciplinary Authority as well as the Appellate and Reviewing Authority, there is no scope to interfere with the finding of the Inquiry Officer. On the question of quantum of punishment, it was also contended by the learned Counsel for the Corporation that this Court cannot substitute a punishment, the same being within domain of the Disciplinary Authority and, therefore, there being materials collected during course of inquiry with regard to involvement of the Petitioner in excess payment to the contractor resulting in pecuniary loss to the Corporation, this Court may not interfere with the finding of Inquiry Officer and the orders passed by the Disciplinary Authority, Appellate Authority and the Reviewing Authority. 4. As is evident from the record, five charges were framed against the Petitioner out of which he was found guilty in respect of charge Nos. 1, 2, 4 and 5 by the Inquiry Officer. The Disciplinary Authority dropped charge No. 5, but accepted the finding of the Inquiry Officer in relation to charge Nos. 1, 2 and 4. Charge No. 1 is that the Petitioner while functioning as Assistant Foreman (Civil) during the period from September, 1978 to June, 1981 committed serious misconduct in recording false measurements in MB No. 840 in respect of cutting of 120 pockets and thereby gave undue pecuniary advantage of Rs. 6,000/- to the contractor, M/s. Bharat Painters, Cuttack with consequent loss to the Corporation. 6,000/- to the contractor, M/s. Bharat Painters, Cuttack with consequent loss to the Corporation. Charge No. 2 is that during the aforesaid period the Petitioner failed to ensure use of metallic concrete hardner in the required proportionate quantity in the metallic flooring on 2nd, 3rd and 5th floor of the Coal Preparation Plant building as per the laid down specifications. This not only resulted in sub-standard work having been done by the contractor but also undue and wrongful payment to the contractor at full items rates. Accordingly the Petitioner exhibited lack of devotion to duty thereby violating the Employees' (Conduct, Discipline and Appeal) Rules, 1972. Charge No. 4 is that during the aforesaid period and while functioning in the aforesaid office, the Petitioner recorded false measurements relating to ground floor flooring of the Coal Preparation Plant building in M.B. No. 840 and thereby caused undue pecuniary gain of about Rs. 85,565/- to the contractor with consequent loss to the Corporation. 5. As it appears from the inquiry report (Annexure-3) that there were two contracts such as Miscellaneous Plant Civil Works at FCI, Talcher awarded to M/s. Bharat Painters, Cuttack vide work order dated 11.9.78 covered under the contract agreement No. 257 effective from 26.9.78 with time of completion within one year and Miscellaneous Civil Works in factory area Talcher awarded vide work order dated 18.12.79 covered by agreement No. 314 effective from 6.12.79. Therefore, there was gap of two months between expiry of the first contract and commencement of the second contract. The question for consideration before the Inquiry Officer was as to whether the work executed during this gap of two months is to be covered under agreement No. 257 or agreement No. 314. So far as charge No. 1 is concerned, on analysis of evidence, the Inquiry Officer found that the work under agreement No. 257 continued even after expiry of its term till agreement No. 314 came into operation. So far as cutting of pockets and measurement thereof are concerned, the Inquiry Officer held that 120 pockets had been cut under the old contract which were measured and paid on the basis of rates under the new contract thereby resulting in excess payment of Rs. 6,000/- to the contractor and consequential loss of the said amount to the Corporation. So far as cutting of pockets and measurement thereof are concerned, the Inquiry Officer held that 120 pockets had been cut under the old contract which were measured and paid on the basis of rates under the new contract thereby resulting in excess payment of Rs. 6,000/- to the contractor and consequential loss of the said amount to the Corporation. So far as measurement of the 120 pockets is concerned, the Inquiry Officer held that the widening of the pockets is not reflected in the measurements recorded by the Petitioner and therefore, the only fact that has been proved in respect of charge No. 1 is the payment made in respect of these 120 pockets under the subsequent agreement though the work was covered under the earlier agreement. So far as charge No. 2 is concerned, the Inquiry Officer found that though the Petitioner was not directly in charge of execution of the work and one Jayagopalan was in charge, during the relevant period Jayagopalan, who was senior to the Petitioner being absent, the Petitioner had supervised the work and, therefore, was responsible for the sub-standard work done by the contractor during the said period. So far as charge No. 4 is concerned, a similar view was taken by the Inquiry Officer so far as charge No. 1 is concerned. 6. On perusal of the inquiry report, we also find from paragraph-11.1.3 that for the relevant period no evidence has come on record that the Petitioner was given the charge of supervising the work in the Coal Preparation Plant Building and all indications go to show that Jayagopalan was directly in-charge of supervision, being the concerned Assistant Engineer. By the time the disciplinary proceeding was started it further appears that Jayagopalan had abandoned the job and his whereabouts were not known. The Inquiry Officer himself was not very sure as to how the Petitioner can be made responsible for application of cement slurry twice or against the prescribed specifications. Though this observation is made in respect of charge No. 3, which was not proved, it is clear from the observation made by the Inquiry Officer that it is Jayagopalan, who was in charge of supervision of the work and at one point of time the Petitioner having assisted him was asked to supervise in his absence. Though this observation is made in respect of charge No. 3, which was not proved, it is clear from the observation made by the Inquiry Officer that it is Jayagopalan, who was in charge of supervision of the work and at one point of time the Petitioner having assisted him was asked to supervise in his absence. Ordinarily in such cases what instructions had been given by Jayagopalan would not be known to a person who is entrusted with charge of supervising the work and this aspect of the Petitioner's case appears to have been overlooked not only by the Inquiry Officer but also by the higher authorities. Therefore, so far as charge No. 2 is concerned, the innocence of the Petitioner cannot be ruled out. 7. So far as charge Nos. 1 and 4 are concerned, those relate to payment in respect of the work executed under the subsequent contract though the same had been executed under the earlier contract. In this regard it will not be out of place to observe that the Petitioner had been entrusted with the job of supervising the work and measuring the same. There is no dispute that during the relevant period he not only supervised the work but also measured the work and entered the measurements in the MB Book. If the Petitioner committed any mistake in the MB Book resulting in payments under the subsequent contract, it is not understood as to how it escaped the notice of the higher authorities, who cleared the same and directed for payment. All those Officers, who were involved in processing the bills and directing payment, were equally responsible as that of the Petitioner. Unfortunately none of them has been proceeded with departmentally and the Petitioner alone had been proceeded. The mistake in the Measurement Book may be a bona fide mistake and in absence of any material, it is difficult to hold that the mistake was deliberate in order to show favour to the contractor. There is no finding in the enquiry report that the Petitioner consciously and deliberately made such entries in the Measurement Book in order to show favour to the contractor. We are therefore of the view that the finding of the Inquiry Officer in respect of charge Nos. 1 and 4 only relates to the mistake committed by him which is neither found to be deliberate nor intentional. We are therefore of the view that the finding of the Inquiry Officer in respect of charge Nos. 1 and 4 only relates to the mistake committed by him which is neither found to be deliberate nor intentional. So far as charge No. 2 is concerned, as stated earlier, the Inquiry Officer has himself found in respect of charge No. 3 that it is Jayagopalan was in charge of supervision of the work and it would not be possible on the part of the Petitioner to know what instructions were issued with regard to nature of work to be done by the contractor by the said Supervisor Jayagopalan. Under these circumstances, the question that arises for consideration is that for such mistake, whether the order of punishment of removing the Petitioner from service is shockingly disproportionate or not. 8. The learned Counsel for the Corporation submitted that the High Court cannot substitute a punishment, the same being within the domain of the employer and, therefore, even if the Court comes to a conclusion that the punishment is disproportionate, it can only to remit the matter back to the employer for reconsideration. Reliance was placed by the learned Counsel on a decision of the Hon'ble Supreme Court in the case of Sanchalakshri and Another Vs. Vijayakumar Raghuvirprasad Mehta and Another. In the reported case the Hon'ble Supreme Court on consideration of the nature of allegation found the penalty of dismissal from service justified and did not interfere with the punishment. Another decision of the Supreme Court in the case of Management of Port Land Esatate Vs. P. Suresh Babu and Another, relied upon by the opposite parties indicates the scope of interference on the question of punishment. In the said case on facts the Court did not interfere with the punishment. In the case of Uttaranchal Transport Corporation v. Saniay Kumar Nautiyal reported in (2009) 1 SCC 129 considering the nature of allegation, which had been proved in course of the proceeding, the Hon'ble Supreme Court was of the view that the punishment imposed was not disproportionate and, therefore, the High Court was not justified in interfering with the punishment. In the case of Praveen Bhatia v. Union of India and Ors. In the case of Praveen Bhatia v. Union of India and Ors. reported in (2009) 1 SCC 801 the Hon'ble Supreme Court held that the power of the court to interfere with the quantum of punishment is extremely restricted and the court can direct reconsideration only when relevant factors have not been considered. In very rare cases, court may also indicate punishment which ought to be imposed. The learned Counsel for the Petitioner on the other hand, relied on a decision of the Supreme Court in the case of Dev Singh v. Punjab Tourism Development Corporation Ltd. and Anr. reported In (2003) 8 Supreme Court Cases 9. In the said decision the Hon'ble Supreme Court held that if the punishment imposed by disciplinary authority or appellate authority shocks judicial conscience, court can mould the relief. Another decision relied upon by the learned Counsel for the Petitioner is Indian Airlines Ltd. Vs. Prabha D. Kanan. In the said case it was held that keeping in view the situational changes and particularly, out sourcing of the sovereign activities by the State, the Court has expanded the scope of judicial review. It includes the misdirection in law, posing a wrong question or irrelevant question and failure to consider relevant question. On certain grounds judicial review on facts is also permissible. Doctrine of unreasonableness has now given way to doctrine of proportionality. On analysis of the above decisions, it is apparent that when the Court comes to a conclusion that the punishment awarded appears to be disproportionate to the act alleged to have been done by the delinquent officer, ordinarily Court should not alter the punishment but remit the matter back to the disciplinary authority or the appellate authority for reconsideration. However, in very rare cases the court can suggest a punishment. So far as the present case is concerned, having come to a conclusion that the punishment of removal from service appears to be disproportionate even accepting that the Petitioner had committed mistake in making wrong entries in the Measurement Book, we could have remitted the matter back to the disciplinary authority or appellate authority for reconsideration of the quantum of punishment. However, as stated earlier, FCI Unit at Talcher has been closed long since. Neither the disciplinary authority nor the appellate authority is available to reconsider the punishment. However, as stated earlier, FCI Unit at Talcher has been closed long since. Neither the disciplinary authority nor the appellate authority is available to reconsider the punishment. We are therefore of the view it is one of such rare cases where the matter cannot be remitted back for reconsideration and the court has to impose the punishment proportionate to the charge proved in course of the departmental proceeding. The charges proved against the Petitioner show pecuniary loss to the Corporation to the extent of a sum of Rs. 6,000/-(Rupees six thousand) respect of charge No. 1 and further sum of Rs. 85,565/-(Rupees eighty five thousand five hundred sixty five) in respect of charge No. 4. So far as charge No. 2 is concerned, we have already expressed that there is no material on record to show that the Petitioner was aware of any instruction given by Jayagopalan regarding the manner in which the work is to be executed and, therefore, he could not be made entirely responsible for the sub-standard work done by the contractor. We are therefore of the view that such pecuniary loss can be recovered from the Petitioner by way of punishment and accordingly, the punishment of recovery of the said amount with interest at the rate of. 9% per annum from the dues of the Petitioner would meet the ends of justice. 9. We accordingly allow the writ application in part, quash the order of removal from service and direct recovery of the aforesaid amount with interest at the rate of 9% per annum from the dues of the Petitioner.