ORDER T. Nandakumar Singh, J. 1. None appears for the petitioner. Heard Ms. Sundari, learned GA appearing for the respondents. By this writ petition, the petitioner is assailing (1) the order of the Superintendent of Police, Bishnupur, (Mr. P. Doungel) i.e., respondent No. 4, dated 31-10-1994 for dismissing the petitioner only on the charge that the petitioner had unauthorizedly absented for 36 days i.e. for the absence w.e.f. 9-3-1994 to 5-4-1994 and 14 4-1994 to 21-4-1994 and (ii) order dated 2-3-2005 for dismissing the appeal against the dismissal order dated 31-10-1994 passed by the same person, i.e. Mr. P. Doungel, IPS, in the capacity of appellate authority, i.e., Dy. I.G. of Police (Range-III). 2. It is clear from the records that the appellate authority who passed the order dated 2.3.2005 is the same person who passed the dismissal order dated 31.10.1994. It is stated in the writ petition that the petitioner was initially placed under suspension for the unauthorized one day's absence; subsequently departmental enquiry had been initiated for the unauthorized absence of (1) 9.3.1994 to 5.4.1994 and (2) 14.4.1994 to 21.4.1994. Pursuant to the said departmental enquiry, Mr. P. Doungel, Superintendent of Police, Bishnupur passed order dated 31.10.1994 for dismissing the petitioner from service for the unauthorized absence of 36 days. As stated above, the appeal filed against the said dismissal order dated 31.10.1994 was also disposed of by the same person, i.e. Mr. P. Doungel, in the capacity of an appellate authority against his own order, i.e. 31.10.1994. From the record, it is crystal clear that there is clear violation of the principles of natural justice and also maxim 'NEMO DEBET ESSE JUDEX IN PROPIA SUA CAUSA' (the same person in a higher/appellate position cannot sit over his own order passed earlier in a lower post) is also applicable in the instant case. Therefore, only on this score the order of Mr. Doungel, dated 2.3.2005 for dismissing the appeal of the petitioner against the dismissal order dated 31.10.1994 is required to be interfered with. 3. The scope of interference with the quantum of punishment has been the subject-matter of various decisions of the Apex Court. It is fairly well settled that Wednesbury Test is to be applied while this Court is exercising the power of judicial review of punishment (the quantum of punishment) imposed by the authority. 3. The scope of interference with the quantum of punishment has been the subject-matter of various decisions of the Apex Court. It is fairly well settled that Wednesbury Test is to be applied while this Court is exercising the power of judicial review of punishment (the quantum of punishment) imposed by the authority. While applying the Wednesbury test, the Court would be confined only to the secondary role and will have to see whether the administrator has done well in his primary role of deciding the quantum of punishment. While exercising the secondary role under Wednesbury test, Court has to see whether the authority, in exercise of his primary role has acted illegally or has omitted the relevant factors from consideration or whether his view is the one which no reasonable person could have taken. It is now no more res-integra that the Court normally interferes with the quantum of punishment if the punishment (quantum) imposed by the authority or by the appellate authority shocks the conscience of the Court. Regarding this settled position of law it would be suffice to refer to the decisions of the Apex Court in B.C. Chaturvedi v. Union of India, (1995) 6 SCC 749 : ( AIR 1996 SC 484 ). The Apex Court (Constitution Bench) in E.P. Royappa v. State of T.N., (1974) 4 SCC 3 : ( AIR 1974 SC 555 ) held that where an administrative action is challenged as arbitrary, (as in the cases where the punishment in disciplinary cases are challenged) the question will be whether the administrative order is rational or reasonable and test then is Wednesbury test. In Wednesbury test while exercising the secondary role, Court has to see whether the punishment (quantum of punishment) imposed by the administrative authority is the one which no reasonable person could have taken. Now the question, if the dismissal of the petitioner from service for unauthorized absence of 36 days would be the one which no reasonable person could have taken. In the present case, as stated above, procedure for imposing punishment is one which no reasonable person could have adopted inasmuch as one cannot be the appellate authority of his own order. In the present case as stated above, Mr. Doungel, has acted as appellate authority against his own order. 4. The Apex Court in B.C. Chaturvedi's case (supra) observed as follows:-- 18. In the present case as stated above, Mr. Doungel, has acted as appellate authority against his own order. 4. The Apex Court in B.C. Chaturvedi's case (supra) observed as follows:-- 18. A review of the above legal position would establish that the disciplinary authority, and on appeal the Appellate Authority, being fact-finding authorities have exclusive power to consider the evidence with a view to maintain discipline. They are invested with the discretion to impose appropriate punishment keeping in view the magnitude or gravity of the misconduct. The High Court/Tribunal, while exercising the power of judicial review, cannot normally substitute its own conclusion on penalty and impose some other penalty. If the punishment imposed by the disciplinary authority or the Appellate Authority shocks the conscience of the High Court/Tribunal, it would appropriately mould the relief, either directing the disciplinary/Appellate Authority to reconsider the penalty imposed, or to shorten the litigation, it may itself, in exceptional and rare cases, impose appropriate punishment with cogent reasons in support thereof. 5. The Apex Court in Union of India v. G. Ganayutham, (1997) 7 SCC 463 : ( AIR 1997 SC 3387 ) held 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 (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. 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) 1 AC 374 principles. (3)(a) As per Bugdaycay (1987 AC 514), Brind (1991(1) AC 696) and Smith (1996(1) All ER 257) as long as the Convention is not incorporated into English law, the English Courts merely exercise a secondary judgment to find out if the decision-maker could have, on the material before him, arrived at the primary judgment in the manner he has done. (3)(b) If the Convention is incorporated in England making available the principle of proportionality, then the English Courts will render primary judgment on the validity of the administrative action and find out 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 freedoms as aforesaid are involved, is that the Court's/Tribunals will only play a secondary role while the primary judgment as to reasonableness will remain with the executive or administrative authority. The secondary judgment of the Court is to be based on Wednesbury and CCSU principles as stated by Lord Greene and Lord Diplock respectively to find if the executive or administrative authority has reasonably arrived at his decision as the primary authority. (4)(b) Whether in the case of administrative or executive action affecting fundamental freedoms, the Courts in our country will apply the principle of 'proportionality' and assume a primary role, is left open, to be decided in an appropriate case where such action is alleged to offend fundamental freedoms. It will be then necessary to decide whether the Courts will have a primary role only if the freedoms under Articles 19, 21 etc. are involved and not for Article 14. 32. Finally, we come to the present case. It is not contended before us that any fundamental freedom is affected. We need not therefore go into the question of 'proportionality'. are involved and not for Article 14. 32. Finally, we come to the present case. It is not contended before us that any fundamental freedom is affected. We need not therefore go into the question of 'proportionality'. There is no contention that the punishment imposed is illegal or vitiated by procedural impropriety. As to "irrationality", there is no finding by the Tribunal that the decision is one which no sensible person who weighed the pros and cons could have arrived at nor is there a finding, based on material, that the punishment is in "outrageous" defiance of logic. Neither Wednesbury nor CCSU tests are satisfied. We have still to explain "Ranjit Thakur v. Union of India, (1987) 4 SCC 611 : ( AIR 1987 SC 2386 ). (Emphasis in original) 6. The Apex Court in Canara Bank v. V.K. Awasthy, (2005) 6 SCC 321 : ( AIR 2005 SC 2090 ), after consideration of the earlier decisions of the Apex Court regarding the power of judicial review of the quantum of punishment held as follows:- 23. The scope of interference with quantum of punishment has been the subject-matter of various decisions of this Court. Such interference cannot be a routine matter. 24. Lord Greene said in 1948 in the famous Wednesbury case Associated Provincial Picture Houses v. Wednesbury Corpn. (1948) 1 KB 223) 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. 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 for Civil Services Union v. Minister of Civil Service, (1984) 3 All ER 935 (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 that 'proportionality' was a "future possibility". 25. In Om Kumar v. Union of India, (2001) 2 SCC 386 : ( AIR 2000 SC 3689 ), this Court observed, inter alia, as follows:-- 27. He, however, opined that 'proportionality' was a "future possibility". 25. In Om Kumar v. Union of India, (2001) 2 SCC 386 : ( AIR 2000 SC 3689 ), this Court observed, inter alia, as follows:-- 27. The principle originated in Prussia in the nineteenth century and has since been adopted in Germany, France and other European countries. The European Court of Justice at Luxembourg and the European Court of Human Rights at Strasbourg have applied the principle while judging the validity of administrative action. But even long before that, the Indian Supreme Court has applied the principle of "proportionality" to legislative action since 1950, as stated in detail below. 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 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. That is what is meant by proportionality. (SCC pp. 399-400, paras 27-28). 37. The development of the principle of "strict scrutiny" or 'proportionality' in administrative law in England is, however, recent. Administrative action was traditionally being tested on Wednesbury grounds. But in the last few years, administrative action affecting the freedom of expression or liberty has been declared invalid in several cases applying the principle of "strict scrutiny". In the case of these freedoms, Wednesbury principles are no longer applied. The Courts in England could not expressly apply proportionality in the absence of the convention but tried to safeguard the rights zealously by treating the said rights as basic to the common law and the Courts then applied the strict scrutiny test. In the case of these freedoms, Wednesbury principles are no longer applied. The Courts in England could not expressly apply proportionality in the absence of the convention but tried to safeguard the rights zealously by treating the said rights as basic to the common law and the Courts then applied the strict scrutiny test. In Attorney General v. Guardian Newspapers Ltd. (No. 2) (1990) 1 AC 109 (Spycatcher case (AC at pp 283-84), Lord Goff stated that there was no inconsistency between the convention and the common law. In Derbyshire County Council v. Times Newspapers Ltd., 1993 AC 534 Lord Keith treated freedom of expression as part of common law. Recently, in R. v. Secy. of State for Home Dept., ex p. Simms, (1999) 3 All ER 400 (HL), the right of a prisoner to grant an interview to a journalist was upheld treating the right as part of the common law. Lord Hobhouse held that the policy of the administrator was disproportionate. The need for a more intense and anxious judicial scrutiny in administrative decisions which engage fundamental human rights was re-emphasised in R. v. Lord Saville ex p., (1999) 4 All ER 860 CA, at pp. 870, 872. In all these cases, the English Courts applied the "strict scrutiny" test rather than describe the test as one of 'proportionality'. But, in any event, in respect of these rights "Wednesbury" rule has ceased to apply. 38. However, the principle of "strict scrutiny" or 'proportionality' and primary review came to be explained in R. v. Secy. of State for the Home Dept. 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 the organizations. It did not however, for example, preclude the broadcasting 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 the organizations. It did not however, for example, preclude the broadcasting 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 (see p. 748-49). ......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 restriction 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 (ibid pp. 750-51). 39. In the famous passage, the seeds of the principle of primary and secondary review by Court 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 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. (SCC pp 402-04, paras 37-39) .......... 67. But where an administrative action is challenged as "arbitrary" under Article 14 on the basis of E.P. Royappa v. State of T.N. (1974) 4 SCC 3 : ( AIR 1974 SC 555 ) (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. In G.B. Mahajan v. Jalgaon Municipal Council, (1991) 3 SCC 91 (SCC at p. 111) : ( AIR 1991 SC 1153 ) Venkatachaliah, J. (as he then was) pointed out that 'reasonableness' of the administrator under Article 14 in the context of administrative law has to be judged from the stand point of Wednesbury rules. In Tata Cellular v. Union of India, (1994) 6 SCC 651 (SCC at pp. 679-80) : ( AIR 1996 SC 11 ), Indian Express Newspapers Bombay (P) Ltd. v. Union of India, (1985) 1 SCC 641 (SCC at p. 691) : (AIR 1986 SC 515), Supreme Court Employees' Welfare Assn. v. Union of India, (1989) 4 SCC 187 (SCC at p. 241) : ( AIR 1990 SC 334 ) and U.P. Financial Corpn. v. Gem Cap (India) (P) Ltd., (1993) 2 SCC 299 (SCC at p. 307) : ( AIR 1993 SC 1435 ) while judging whether the administrative action is 'arbitrary' under Article 14 (i.e. otherwise then being discriminatory), this Court has confined itself to a Wednesbury review always. (SCC p. 411, para 67). .......... 69. v. Gem Cap (India) (P) Ltd., (1993) 2 SCC 299 (SCC at p. 307) : ( AIR 1993 SC 1435 ) while judging whether the administrative action is 'arbitrary' under Article 14 (i.e. otherwise then being discriminatory), this Court has confined itself to a Wednesbury review always. (SCC p. 411, para 67). .......... 69. The principles explained in the last preceding paragraph in respect of Article 14 are now to be applied here where the question of "arbitrariness" of the order of punishment is questioned under Article 14. (SCC p. 411, para 69) ........ 71. Thus, from 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 be cause 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 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. (SCC p. 412, para 71) (Emphasis in original) 7. From the above discussion, this Court has to see whether the dismissal of the petitioner from service for the unauthorized absence of 36 days would be one which no reasonable person would have taken. This Court taking into consideration of the procedures adopted in imposing punishment and also the number of unauthorized absence, i.e. for 36 days, is of considered view that major punishment of dismissal from service imposed to the petitioner is the one, which no reasonable person could have taken and also that the major penalty of dismissal from service imposed to the petitioner for unauthorized absence of only 36 days in the given case, shocks the conscience of this Court. The maxim 'FIAT JUSTITIA RUAT ET COELUM' (justice should be done even if heaven falls) is applicable in the instant case. Therefore, the punishment imposed to the petitioner is called for interference. The maxim 'FIAT JUSTITIA RUAT ET COELUM' (justice should be done even if heaven falls) is applicable in the instant case. Therefore, the punishment imposed to the petitioner is called for interference. Accordingly, the impugned orders dated 31.10.1994 and 2.3.2005 are hereby quashed. From the record it is clear that there was considerable delay in filing the present writ petition and there is also no record that the petitioner was not otherwise employed during the period i.e. from the date of dismissal from his service till date. In such circumstance, this Court is of considered view that it would be appropriate to direct the respondents to reinstate the petitioner to service without any back wages and also the period from the date of dismissal to the date of reinstatement will be taken into consideration only for pensionary benefit and not for any other purposes. Order for reinstating the petitioner to service shall be issued within a period of 4 (four) months from the date of receipt of certified copy of this order. With the above observation and direction the writ petition is allowed. Registry is directed to inform the order of this Court to the petitioner. Petition allowed