JUDGMENT By Court: The petitioner has approached this Court seeking quashing of orders dated 05.02.2004, 28.05.2004 and 17.12.2004. 2. The brief facts of the case are that, the petitioner was appointed as Assistant in the respondent-bank in the year, 1979. A show-cause notice was issued to the petitioner on 25.06.2001 to which he replied on 21.07.2001. Another show-cause notice was issued to the petitioner on 23.04.2002 which was replied by the petitioner on 20.06.2002. However, as the reply submitted by the petitioner was not found satisfactory, a departmental proceeding was initiated against the petitioner by issuing a Charge-Memo on 04.06.2003. The enquiry report was submitted on 16.10.2003 and a second show-cause notice was issued to the petitioner on 15.11.2003. Thereafter, the order of compulsory retirement was passed on 05.02.2004 and the appeal preferred by the petitioner was dismissed on 28.05.2004. The revisional authority has also dismissed the revision preferred by the petitioner by order dated 17.12.2004. 3. A counter-affidavit has been filed stating as under:- “6. That there is no illegality in passing the punishment order dated 5.2.2004 as contained in Annexure-9 because all the procedural and legal formalities have been applied in relation to issuance of show cause, charges, enquiry and punishment as per the provision of Regulations 4(h) of Bank of India Officer Employees (Discipline and Appeal) Regulation 1976. 7. That the petitioner has annexed almost all the relevant document/order which the respondents had passed time to time in connection with the disciplinary action taken against the petitioner. Initially the respondents have issued several show cause notice as contained in Annexure-1, 3 and 4 of the writ application and reply thereto was given by the petitioner, those were considered without being prejudiced from any corner and thereafter when a prima-facie case was made out, then only the Article of charges as contained in Annexure-6 was issued. 8. That it is stated that enquiry officer has considered all the plea raised by the petitioner and the connected documents produced by the presenting officer of the Bank and thereafter he came to the finding on 16.10.2003 wherein he found both the Articles of charges proved vide Annexure-7. 9. 8. That it is stated that enquiry officer has considered all the plea raised by the petitioner and the connected documents produced by the presenting officer of the Bank and thereafter he came to the finding on 16.10.2003 wherein he found both the Articles of charges proved vide Annexure-7. 9. That it is stated that after the issuance of the petitioner was provided an opportunity to represent before the Disciplinary Authority and the copy of the report of the enquiry officer was also served to him and in response thereto the petitioner submitted the final representation vide Annex-8 dated 3.12.2003. Finally after considering Annexure-8 the disciplinary authority (i.e. Res. No. 3) issued the punishment order dated 5.2.2004 whereby and whereunder punishment has been awarded upto reduction of one increment for three years without cumulative effect and the compulsory retirement. Those punishment order have been passed in accordance with guidelines issued by the Bank of India time to time and after following the principles of the natural justice. 10. That the Appellate authority and the Reviewing authority vide their order dated 28.05.2004 and 17.12.2004 respectively considered the entire materials on records and found the punishment order legally correct hence did not interfere in the punishment order. The petitioner could not bring any mitigating circumstance or any fresh grounds to warrant the interference by the Appellate or Reviewing authority. That as per the discipline maintained by the Bank and the law laid down for dealing the officers i.e. Regulation of 1976 no harsh order has been passed rather in the given situation it was incumbent upon the authorities to retire the petitioner compulsorily.” 4. Heard the learned counsel appearing for the parties and perused the documents on record. 5. The learned counsel appearing for the petitioner submits that, a charge for failure to balance “stamps and stamped documents in hand” was framed against the petitioner however, during the enquriy no shortage of stamps and stamped documents was found. A second charge for retaining Rs. 600/-for 57 days which the petitioner deposited in the bank was also framed however, there was no charge of misappropriation of either 'stamps and stamped documents' or of Rs. 600/-framed against the petitioner and therefore, the finding recorded by the Disciplinary Authority that a “ Punishment of compulsory retirement” is warranted in the case, is erroneous and therefore, interference is required in the matter. 600/-framed against the petitioner and therefore, the finding recorded by the Disciplinary Authority that a “ Punishment of compulsory retirement” is warranted in the case, is erroneous and therefore, interference is required in the matter. The learned counsel for the petitioner has further submitted that even on proved charge of misconduct, the penalty of compulsory retirement is excessive and disproportionate. 6. As against the above, Mr. A. Allam, the learned Senior Counsel appearing for the respondent-bank has contended that, though a specific charge of misappropriation has not been framed against the petitioner, the retention of Rs. 600/-for 57 days would amount to temporary misappropriation. The learned Senior counsel has further submitted that the petitioner has taken contradictory defence at different stages. The enquiry was conducted in a fair manner and the petitioner was afforded reasonable opportunity to defend himself and therefore, the matter does not require any interference by the Court. 7. I find that following charges were framed against the petitioner:- Article of Charge No. 1 That, at Simaria Branch you failed to balance “Stamps & Stamped Documents in Hand” periodically resulting in shortage of Rs. 782=55 (Rupees Seven Hundred Eighty Two and Paise Fifty Five only). You, thus made false reporting to the then Regional Office vide BPR-1 for the month of July/August 2000 and November 2000 showing SSDH as balance whereas the same was not balance. You did not account for the shortage and suppressed the factual position. You have thus failed to discharge your duties with utmost honesty, integrity, devotion and diligence and also failed to protect the interest of the Bank. Article of Charge No. 2 That, you withdrew Rs. 600/-(Rupees Six Hundred only) to the debit of P/L-Postage on 04.03.2002 at Jhumri Telaiya Branch and kept the amount with you for 57 days till 30.04.2002 on which date you returned the amount, only after you were reminded by the Manager, Jhumri Telaiya Branch vide letter dated 23.04.2002. You have thus failed to discharge your duties with utmost honesty and integrity. “ 8. The disciplinary authority has recorded as under:- “I find that these documents, which were not available at the time of investigation in June 2002 and were found after 32 months in September 2003 is not convincing. However, since the composition of the recovery of shortfall is of various types of defaced documents, adhesive stamps and also includes an amount of Rs. However, since the composition of the recovery of shortfall is of various types of defaced documents, adhesive stamps and also includes an amount of Rs. 22/-+79/-= 101.00/ being vouchers not passed for the stamps consumed during November, 2000 to January, 2001, I accept the findings of the Inquiring Authority and concur with him in this respect. However as regards balancing of stamps documents the Investigating Officer (MW-2) has mentioned that No record of balancing was found at the branch (ME-9). Again the witnesses MW-1 and M.W.4 confirmed, that balancing was never done regularly, in their depositions. Even when you were allowed by the Inquiring Authority to verify the branch record you could not produce any evidence about balancing of books. Apart from the above, it is a recorded fact that cost of stamped documents consumed in 30 loan cases financed during November 2000 to January 2001 was not recovered which clearly suggests that proper and periodical balancing was not done.” 9. I find that the above is the only ground indicated by the disciplinary authority for concurring with the findings recorded by the enquiry officer however, a perusal of charge no. 1 would indicate that the charge was framed only for the months of July/August, 2000 and November, 2000 and not for the month of November, 2000 to January, 2001. Therefore, I am of the view that the disciplinary authority could not have considered the period from November, 2000 to January, 2001 for recording his concurrence with the findings recorded by the enquiry officer. Further, the enquiry officer has concluded that only a part of charge no. 1 stood proved i.e., except for shortage of stamped and stamped documents and the disciplinary authority has accepted this finding. 10. The charge no. 2 refers to withdrawal of Rs. 600/-on 04.03.2002 which was deposited by the petitioner, on being reminded by the Manager, Jhumri Telaiya Branch on 30.04.2002. I find that no charge of misappropriation has been framed against the petitioner. Some amount which was withdrawn by the petitioner on 04.03.2002 has been deposited by him on 30.04.2002. The retention of an amount of Rs. 600/-which was later on found Rs. 517/-can be an unintentional mistake on the part of the petitioner. I find that no charge of misappropriation has been framed against the petitioner. Some amount which was withdrawn by the petitioner on 04.03.2002 has been deposited by him on 30.04.2002. The retention of an amount of Rs. 600/-which was later on found Rs. 517/-can be an unintentional mistake on the part of the petitioner. Even the department has not alleged misappropriation on the part of the petitioner and therefore, in view of the specific charge framed against the petitioner, the submission of the learned Senior counsel for the respondents that, such retention would amount to temporary misappropriation is not tenable. 11. The learned Senior counsel appearing for the respondent-bank has next contended that this is a case of “loss of confidence” in the petitioner. I do not find any pleading in this regard in the present proceeding. The plea of “loss of confidence” has to be specifically averred/pleaded and it has to be brought to the notice of the delinquent employee so that, the delinquent employee can reply to the same. I do not find any pleading in this regard. Neither during the course of departmental enquiry nor in the orders passed by the departmental authorities, such a plea on behalf of the department has been raised and therefore, I am not inclined to entertain such a plea at this stage. 12. Coming to the question of the gravity of the misconduct and the quantum of punishment, I am of the view that in absence of any other incident of past misconduct and in view of the fact that no specific charge for misappropriation was framed against the petitioner, the impugned order of penalty indicates that the Disciplinary Authority had left his senses on “leave”. 13. I find that the appellate authority recorded that, though on enquiry no shortage was found, it was not believable and therefore, the charge stood proved. The conclusion arrived at by the appellate authority is clearly erroneous. 13. I find that the appellate authority recorded that, though on enquiry no shortage was found, it was not believable and therefore, the charge stood proved. The conclusion arrived at by the appellate authority is clearly erroneous. The appellate authority has recorded as under:- “(ii)...............“Moreover, though Internal Auditors in their report dated 21.11.2000 have remarked “Yes” about existence of SSDH register, the fact that your could not trace out the same during your visit to the branch on 04.09.2003, the same could not be produced before the Investigating Officer (MW-2) and deposition of your successor (MW-1), Investigating Officer (MW-2) and present manager of the Branch (MW-4) about nonexistence of such a register in the Branch compels me to take the view that no such register was being maintained in the Branch. (iii) You have stated that SSDH traced out by you are used in our Bank only and cannot be purchased or sold in the market for further use. This statement does in no way mitigate the charge proved in departmental enquiry. However, it would be worth noting here that the Stamped Documents, which were not available during the investigation in June, 2002, resurfaced all on a sudden when you, along with your D.R., happened to visit Simaria Branch on 04.09.2003, after a gap of 15 months, that too when the I.A. permitted you to visit Simaria Branch for inspection of documents as per your request.” 14. In “Ranjit Thakur Vs. Union of India & Ors.” reported in (1987) 4 SCC 611 , the Hon'ble Supreme Court has held that even on proved charges of disobedience of order of superior officer to eat food, sentence of one year and thereafter, dismissal from service with added disqualification of being declared unfit for, in future, civil employment was disproportionately excessive. The Hon'ble Supreme Court has held as under:- 25. “Judicial review generally speaking, is not directed against a decision, but is directed against the “decision-making process”. The question of the choice and quantum of punishment is within the jurisdiction and discretion of the court-martial. But the sentence has to suit the offence and the offender. It should not be vindictive or unduly harsh. It should not be so disproportionate to the offence as to shock the conscience and amount in itself to conclusive evidence of bias. The question of the choice and quantum of punishment is within the jurisdiction and discretion of the court-martial. But the sentence has to suit the offence and the offender. It should not be vindictive or unduly harsh. It should not be so disproportionate to the offence as to shock the conscience and amount in itself to conclusive evidence of bias. The doctrine of proportionality, as part of the concept of judicial review, would ensure that even on an aspect which is, otherwise, within the exclusive province of the court-martial, if the decision of the court even as to sentence is an outrageous defiance of logic, then the sentence would not be immune from correction. Irrationality and perversity are recognised grounds of judicial review...........” 15. In “Dev Singh Vs. Punjab Tourism Development Corporation Ltd. and Another”, reported in (2003) 8 SCC 9 , a case where official file was misplaced and for that the employee was proceeded in departmental enquiry and he was dismissed from service, the Hon'ble Supreme Court interfered with the order of penalty and observed thus:- 6.“A perusal of the above judgments clearly shows that a court sitting in appeal against a punishment imposed in the disciplinary proceedings will not normally substitute its own conclusion on penalty, however, if the punishment imposed by the disciplinary authority or the appellate authority shocks the conscience of the court, then the court would appropriately mould the relief either by directing the disciplinary/appropriate authority to reconsider the penalty imposed or to shorten the litigation it may make an exception in rare cases and impose appropriate punishment with cogent reasons in support thereof. It is also clear from the abovenoted judgments of this Court, if the punishment imposed by the disciplinary authority is totally disproportionate to the misconduct proved against the delinquent officer, then the court would interfere in such a case.” 16. Accordingly, the impugned orders dated 05.02.2004, 28.05.2004 and 17.12.2004 are quashed. The matter is remitted back to the Disciplinary Authority for taking a decision afresh on the quantum of punishment. 17. The writ petition is allowed in the aforesaid terms.