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2015 DIGILAW 667 (ORI)

Niroj Kumar Das v. United Bank of India

2015-12-01

B.R.SARANGI

body2015
JUDGMENT : B.R. Sarangi, J. 1. The petitioner, who was working as Branch Manager, Alligonda branch of United Bank of India, has filed this petition Seeking to quash the order of punishment of removal from service dated 30.11.2007 communicated on 08.12.2007 in Annexure-8 and confirmation thereof by the appellate authority-opposite party No. 2 vide order dated 25.03.2008 communicated on 26.03.2008 in Annexure-10 and further seeking for a direction to opposite parties to reinstate him in service with financial benefits with retrospective effect. The short fact of the case, in hand, is that the petitioner was posted as Manager in Alligonda branch of United Bank of India, pursuant to which, he joined on 01.05.2006. While he was so continuing, on 01.07.2006, one Sunil Pradhan came and requested him to encash a cheque drawn on ICICI bank amounting to Rs. 4,390/-. As Sri Pradhan did not have any account with the Bank, he requested him to open a savings bank account and to get the cheque encashed. Accordingly, Sri Pradhan opened savings bank account by following due formalities and the encashed amount was credited to his savings bank account. After coming to know about the fact that the cheque has been encashed, Sri Pradhan came to the bank on 21.07.2006, requested the petitioner to close the account and also filed an application to that effect. As the branch was a loss-making branch the petitioner credited the interest amount to the SB account of Sri Pradhan by debiting the same from P/L account of the branch. After doing that, the petitioner again transferred the amount back to the P/L account. Thus, transaction of paper has been shown in order to make" the branch a profit-making branch. But the account was closed and the amount as due to Sri Pradhan was paid to him on 22.7.2006. A preliminary inquiry was conducted by one Sri Hrusikesh Sahoo, in which Sri Niranjan Nayak deposed regarding transaction of Sri Pradhan with the bank. The statement was recorded on 08.08.2006 in presence of Sri Raghunath Muduli. The petitioner was transferred to Bihar region as a Reliving Officer and he was relieved from Alligonda branch on 05.01.2007 enabling him to join in the new place of posting. The petitioner was communicated with a letter to submit his explanation regarding the irregularities committed by him during his tenure at Alligonda branch. The petitioner was transferred to Bihar region as a Reliving Officer and he was relieved from Alligonda branch on 05.01.2007 enabling him to join in the new place of posting. The petitioner was communicated with a letter to submit his explanation regarding the irregularities committed by him during his tenure at Alligonda branch. One of the allegations is relating to opening and closing of SB account of Sri Pradhan. It is stated that Sri Pradhan was not eligible to get such huge interest in his said account, but the amount has been credited which was noticed by Head Cashier, consequently reversed the entry which tantamount to attempt to fraud. The petitioner submitted his reply that he had never any intention to commit fraud and all his actions were aimed only to make the branch a profit-making one. So far as the allegation that on being detected by the Head Cashier, he had reversed the amount, the petitioner clarified that the fact is not correct as revealed from the statement of the Head Cashier given on 08.08.2006 before Sri Raghunath Muduli. Having not satisfied with the explanation, a set of charges was framed against the petitioner containing almost same allegations as raised in letter dated 07.02.2007 with an additional charge that during his tenure at Alligonda branch, the petitioner had allowed overdrawing in his O.D. account against the permissible limit for cash withdrawal on five occasion without intimation to the Regional Office. Accordingly, the petitioner was directed to submit his explanations within 10 days from the date of receipt of the letter dated 05.06.2007. The memorandum of charges dated 05.06.2007 did not contain the list of documents and the list of witnesses to be examined on behalf of the Bank. Therefore, another letter was issued on the very same day intimating the list of documents, but the letter was silent about the witnesses to be examined on behalf of the Bank. In any case, the petitioner submitted his reply and denied the allegation that he had tried to defraud the bank is based on wrong perception and ill founded facts. Therefore, another letter was issued on the very same day intimating the list of documents, but the letter was silent about the witnesses to be examined on behalf of the Bank. In any case, the petitioner submitted his reply and denied the allegation that he had tried to defraud the bank is based on wrong perception and ill founded facts. As regards the charge of allowing over drawing in his O.D. account, it is submitted by the petitioner that the same was done as his T.A. bills, were kept pending with the Regional Office and he was in urgent need of money for the treatment of his father, who was suffering from paralysis and all the over drawals were intimated to the Regional Office in the D.P. Statement. Sri Ajaya Kumar Mohapatra, Senior Manager, D & IR Division, UBI Head Office was appointed as Enquiry Officer and Sri Hrusikesh Sahoo, Manager (Vigilance) UBI, Orissa-I Regional Office was appointed as presenting Officer to conduct the enquiry vide letter dated 20.07.2007 and to present the case on behalf of the bank in the enquiry. Accordingly, the Enquiry Officer intimated the petitioner in letter dated 25.07.2007 to appear before him for conducting the Enquiry on 17.08.2007. On 17.08.2007, though the bank cited no witnesses in the charge sheet, on that date, one Sri Raghunatha Muduli was examined as the Management witness and the statement of Sri Niranjan Nayak dated 28.07.2006, though no cited as a document, the list of documents was exhibited and proved through him and accordingly, the enquiry was conducted on 18.08.2007. On conclusion of the enquiry proceedings, the petitioner was supplied with the Presenting Officer's brief by the Enquiry Officer in the letter dated 03.09.2007 with a direction to submit his defence brief within seven days from the date of receipt of the letter. The petitioner submitted his reply and has categorically stated that no motive can be attributed to him. He pointed out that from the evidence it has not been proved that he had asked the Head Cashier to pay the amount in cash. Since Sri Dilip Kumar Ghosh, Asst. General Manager (RRB & Lead Bank), who was the disciplinary authority, has retired from service, the Asst. General Manager (Personnel & Services) opposite party No. 3 has been nominated to act as the disciplinary authority on 04.10.2007. Since Sri Dilip Kumar Ghosh, Asst. General Manager (RRB & Lead Bank), who was the disciplinary authority, has retired from service, the Asst. General Manager (Personnel & Services) opposite party No. 3 has been nominated to act as the disciplinary authority on 04.10.2007. The disciplinary authority-opposite party No. 3 supplied the report of the Enquiry Officer to the petitioner calling upon him to submit his reply within seven days. Accordingly, the petitioner submitted his reply on 08.11.2007 and categorically stated that from the report of the Enquiry Officer, it has been proved that the bank has not sustained any loss on account of the petitioner, but the disciplinary authority passed the final order of punishment as per the provision of UBI Officer employees' (Discipline & Appeal) Regulations, 1976 on 08.12.2007 imposing a major 'penalty of compulsory retirement relying upon the statement of the then. Head Cashier, Sri Niranjan Nayak. Though such orders were passed on 30.1.2007, the same was communicated to the petitioner on 08.12.2007. Being aggrieved by the said order, the petitioner preferred an appeal before the appellate authority-opposite party No. 2 on 08.01.2008, but the appeal was rejected relying upon the statement of the then, Head Cashier, Sri Nayak on 25.03.2008. Hence this writ petition. 2. Mr. A.K. Mishra, learned Senior Counsel for the petitioner strenuously urged that relying upon the statement of the then Head Cashier, Sri Niranjan Nayak, the punishment of compulsory retirement has been imposed on the petitioner which was confirmed by the appellate-authority. But such statement was neither cited as document nor Sri Niranjan Nayak, was examined or cross-examined as witness in the inquiry proceeding. Therefore, the reliance placed on the statement of Sri Niranjan Nayak, basing upon which the punishment was imposed, cannot sustain in the eye of law. Even if the entire transaction is taken into consideration, there was no loss caused to the Bank at any point of time nor any motive is attributed to the petitioner to commit such alleged fraud. The finding of the Enquiry Officer so far as charge Nos. 2 and 3 are concerned, has been proved partially, meaning thereby, the element of malice has not been proved and ignoring the said fact, the disciplinary authority had stated that all the charges have been proved and the punishment has been awarded, which is disproportionate to the gravity of charges alleged against the petitioner. 2 and 3 are concerned, has been proved partially, meaning thereby, the element of malice has not been proved and ignoring the said fact, the disciplinary authority had stated that all the charges have been proved and the punishment has been awarded, which is disproportionate to the gravity of charges alleged against the petitioner. The intention of the petitioner was to make the branch a profitable one on the basis of the transfer-price system, if that was not correct for not adhering to bank norms, for that purpose, punishment of compulsory retirement is absolutely disproportionate, which is not commensurate with the allegation made against him. To substantiate his contention he has relied upon the judgment of this Court in Hare Krishna Jena v. The Addl. Superintendent of Police and others, 1985 (I) OLR 438 and Bilaspur Raipur Kshetriya Gramin Bank and another v. Madanlal Tandem, AIR 2015 SC 2876 . 3. Mr. H.M. Dhal, learned counsel for opposite parties states that three charges have been levelled against the petitioner, out of those charges, charge No. 1 was fully proved. So far as the charge Nos. 2 and 3 are concerned, those are partially proved. Therefore, no prima facie case has been made out by the petitioner and a reasoned order haying been passed by disciplinary authority as well as appellate authority in accordance with the UBI Officer Employees' (Discipline & Appeal) Regulations, 1976, this Court should not interfere with the same. So far as the statement of Sri Niranjan Nayak is concerned, the copy of the same having been-provided to the petitioner, the contention raised that the statement of the Sri Niranjan Nayak was utilized on behalf of the bank, is not correct. 4. From the facts pleaded above, it is to be examined as to whether the statement of Sri Niranjan Nayak, Head Cashier has been supplied along with the charge framed against the petitioner. 5. From the materials available on record, it appears that Sri Pradhan came and requested the petitioner to open a SB account to encash a cheque drawn on ICICI Bank amounting to Rs. 4,390/-. Since Sri Pradhan had no account with the bank, he was requested by the petitioner to open a SB account and get the cheque encashed. Consequently, Sri Pradhan opened a SB Account with the petitioner bank after observing all formalities and the amount in question was credited to his account. 4,390/-. Since Sri Pradhan had no account with the bank, he was requested by the petitioner to open a SB account and get the cheque encashed. Consequently, Sri Pradhan opened a SB Account with the petitioner bank after observing all formalities and the amount in question was credited to his account. Thereafter, the petitioner encashed the said amount and coming to know about the fact that the cheque has been encashed, Sri Pradhan came to the bank on 21.07.2006 and requested the petitioner to close the account and filed an application to that effect. The branch being a loss-making branch, the petitioner credited an interest to the SB account of Sri Pradhan by debiting the same from P/L account of the branch and after doing that the petitioner again transferred the amount back to the P/L account. Such transaction has been done to make a profit-making branch and he had no motive or intention behind it to cause any loss to the bank itself and as such, the bank has not sustained any financial loss on account of such transaction. The petitioner has closed the account by paying the amount due to Sri Pradhan on 22.07.2006, but behind his back a preliminary enquiry was conducted by one Sri Hrusikesh Sahoo, in which Sri Niranjan Nayak, Head Cashier made his deposition with regard to transaction of Sri Pradhan with the bank and such statement has been made on 08.08.2006 in presence of Sri Raghunath Muduli. The statement of Sri Niranjan Nayak has neither been incorporated in the memorandum of charge dated 05.06 2007 nor in subsequent letter communicated in the very same day along with the list of documents and list of witnesses to be examined on behalf of the bank. The subsequent letter dated 05.06.2007 also does not indicate the list of witnesses to be examined on behalf of the bank. But ultimately, the punishment was imposed on the statement of Sri Nayak in the preliminary enquiry conducted by Sri Hrusikesh Sahoo and the statement of Sri Nayak recorded on 08.08.2006, but the said statement has not been incorporated in the list of documents but has been pressed info service through Sri Raghunath Muduli who has been examined as witness on behalf of the bank. The bank has not given the list of witnesses either in charge sheet or in subsequent letter communicated on the very same day i.e. on 05.06.2007, thereby, the petitioner has not been given an opportunity to examine and cross-examine Sri Niranjan Nayak on the statement recorded on 28.06.2006 basing upon which the punishment has been imposed by the authority. 6. The statement of Sri Niranjan Nayak recorded by Sri Hrisikesh Sahoo during preliminary enquiry on 28.07.2006 formed the basis for the disciplinary proceeding and as such statement of Sri Niranjan Nayak which was recorded during preliminary inquiry on 28.07.2006 has either been supplied in the list of documents along with charge sheet nor he has been examined as a witness in course of enquiry, but the same has been recorded in presence of Raghunath Muduli, who has been examined as Management witness. The bank has not cited any witness, in the charge sheet. No doubt as it has been contended on behalf of the opposite parties that the charges contained a synopsis of the allegations. In order to submit his show cause, the delinquent was entitled to know precisely and specifically what were the allegations on the basis of which preliminary enquiry was initiated. At the same time the petitioner is also entitle to know the allegations which were made by the witnesses during the preliminary enquiry. Law did not oblige him to remain in the dark. To exercise, his right effectively, he is entitled to an adequate opportunity and that in the circumstances, obliged the authority to furnish copies of the statements of witnesses recorded during the preliminary enquiry and the names of the witnesses to be examined along with the charge sheet which were essential for the filing of the show cause and an effective cross-examination of the witnesses. The petitioner was also entitled to copies of relevant documents relied upon and names of the witnesses by way of his defence. The statement of Sri Niranjan Nayak dated 28.07.2008 recorded in preliminary enquiry is a vital document, but the same has not been supplied to the petitioner along with the charge sheet nor the names of the witnesses have been provided along with the charge sheet. The statement of Sri Niranjan Nayak dated 28.07.2008 recorded in preliminary enquiry is a vital document, but the same has not been supplied to the petitioner along with the charge sheet nor the names of the witnesses have been provided along with the charge sheet. Similar question came up for consideration before the Apex Court in State of Madhya Pradesh v. Chintaman Sadshiva Yaishampayar, AIR 1961 SC 1623 ; Union of India v. T.R. Varma, AIR 1957 SC 882 ; State of Punjab v. Bhagat Ram, AIR 1974 SC 2335 . This Court in Hare Krishna Jena (supra) in paragraph-8 has considered the aforementioned judgments which is as follows: "8. The law on this aspect is well settled. In State of Madhya Pradesh v. Chintaman Sadshiva Valshampayar, AIR 1961 SC 1623 , the complaint was: firstly that Chintaman was not supplied with a copy of the application on the strength of which the preliminary enquiry was started against him and secondly, the statements of Rajab Ali and Noor Bhai were not supplied to him. The Constitution Bench of the Supreme court observed: "Failure to supply the said copies to the respondent made it almost impossible for the respondent to submit the said two witnesses to an effective cross-examination; and that in substance deprived the respondent of a reasonable opportunity to meet the charge." On the denial of the copy of the application on the strength of which the preliminary enquiry was commenced, their Lordships observed: "Like the prior statements of Rajab Ali and Noor Bhai this document has been improperly characterised as secret and withheld from the respondent. If he had been given the documents which he had called for, the respondent would have been able to cross-examine the witnesses adequately, and in their absence be suffered from a handicap which in the result denied him a reasonable opportunity which is guaranteed to him under Article 311 (2)." Their Lordships then drawing attention to the observations of Vankatarama Aiyar, J. in Union of India v. T.R. Varma, AIR 1957 SC 882 , observed: "Stating it broadly and without intending it to be exhaustive it may be observed that rules of natural justice require that a party should have the opportunity of adducing all relevant evidence on which he relies, that the evidence of the opponent should be taken in his presence, and that he should be given the opportunity of cross-examining the witnesses examined by that party, and that no materials should be relief on against him without his being given an opportunity of explaining them." "It is hardly necessary to emphasize that the right to cross-examine the witnesses who give evidence against him is a very valuable right, and if it appears that effective exercise of this right has been prevented by the enquiry officer by not giving to the officer relevant documents to which he is entitled, that inevitably would be that the enquiry had not been held in accordance with rules of natural justice...." In the State of Punjab v. Bhagat Ram, AIR 1974 SC 2335 , the Supreme Court observed that it was unjust and unfair to deny the Government servant copies of statements of witnesses examined during investigation and produced at the enquiry in support of the charges levelled against the Government servant. A synopsis did not satisfy the requirements of giving the Government servant a reasonable opportunity of showing cause against the action proposed to be taken. Though the Government Servant was given an opportunity to cross-examine the witnesses unless the statements were given to him, he would not be able to have an effective and useful cross-examination." 7. Similar view has also been taken by the apex Court in Bilaspur Raipur Kshetriya Gramin Bank (supra). Though the Government Servant was given an opportunity to cross-examine the witnesses unless the statements were given to him, he would not be able to have an effective and useful cross-examination." 7. Similar view has also been taken by the apex Court in Bilaspur Raipur Kshetriya Gramin Bank (supra). In view of the fact and law discussed above, it is contended that failure to supply the notice of the statement of Sri Niranjan Nayak, Cashier which has been recorded in the preliminary enquiry by Sri Hrusikesh Sahoo in presence of Sri Raghunath Muduli to the petitioner and to present Sri Nayak for examination and cross-examination, the petitioner has been denied adequate opportunity to meet the charges which is not fair play in action of the authority. Therefore, there is gross violation of the constitutional guarantee which renders the decision a nullity. The order in appeal upholding a void decision and the further order on the memorial are also infected. 8. Mr. A.K. Mishra, learned counsel appearing for the petitioner strenuously urged that due to the steps taken by the petitioner if any loss has been caused to the bank, in that case the delinquent officer is liable for punishment. When nature of allegation made against the petitioner in the charge sheet itself, clearly indicates that no loss has been caused to the bank at any point of time, rather the petitioner has taken bona-fide steps to show a loss making branch as profit-making one Such transaction may be in contravention of the bank's norms, but that ipso facto cannot be a ground to impose a major penalty such as compulsory retirement from the bank service by the disciplinary authority which is confirmed by the appellate authority, rather being a model employer, the opposite party ought to have imposed such penalty so that the petitioner would have rectified himself, but without giving such opportunity for rectification, imposing harsh punishment of removal from service will grossly dislocate the entire family set up of the petitioner causing great prejudice to him. 9. In U.P. State Road Transport Corporation and others v. A.K. Parul, AIR 1999 SC 1552 , the Apex Court in paragraph-3 held as follows: "3. 9. In U.P. State Road Transport Corporation and others v. A.K. Parul, AIR 1999 SC 1552 , the Apex Court in paragraph-3 held as follows: "3. ...This Court consistently has been the view that while exercising judicial review the Courts shall not normally interfere with the punishment imposed by the authorities and this will be more so when the Court finds the charges were proved. The interference with the punishment on the facts of this case cannot be sustained. In State Bank of India v. Samarendra Kishore Endow, (1994) 2 SCC 537 : 1994 AIR SCW 1465, this Court held that imposition of proper punishment is within the discretion and judgment of the disciplinary authority. It may be open to the appellate authority to interfere with it, but not to the High Court or to the Administrative Tribunal for the reasons that the jurisdiction of the Tribunal is similar to the powers of the High Court under Article 226." 10. The reference made to U.P. State Road Transport Corporation v. Subash Chandra Sharma and others, AIR 2000 SC 1163 is disputed by learned counsel for the opposite party stating that the principle settled therein related to punishment awarded in a-way shockingly disproportionate to the nature of the charge found proved against the delinquent in which event the High Court should not exercise its power under Article 226 of the Constitution of India. 11. In view of the decisions referred to above, there is no iota of doubt that while exercising power of judicial review under Article 226, this Court shall not normally interfere with the punishment imposed by the authority nor shall it interfere with the quantum of punishment imposed by the authority. It is within the domain of the appellate authority to interfere with such quantum of punishment but not a court or tribunal. 12. The scope of judicial review in the matter of imposition of penalty as a result of disciplinary proceeding is very limited. This Court can interfere with the punishment only if it finds the same to be shockingly disproportionate to the charges proved. In such a case, the Court is to remit the matter back to the disciplinary authority for reconsideration of punishment. Of course in appropriate cases, in order to avoid delay the Court can itself impose lesser punishment. This Court can interfere with the punishment only if it finds the same to be shockingly disproportionate to the charges proved. In such a case, the Court is to remit the matter back to the disciplinary authority for reconsideration of punishment. Of course in appropriate cases, in order to avoid delay the Court can itself impose lesser punishment. (See : AIR 2007 SC 2954 : You One Maharia-JV through You One Engineering and Construction Company Ltd. and another v. National Highways Authority of India). 13. The question of interference with the quantum of punishment has been considered by the Supreme Court in catena of judgments, and it was held that if the punishment awarded is disproportionate to the charge of misconduct, it would be arbitrary and thus, would violate the mandate of Article 14 of the Constitution (See : Bhagat Ram v. State of Himachal Pradesh & Others, AIR 1983 SC 454 , Ranjit Thakur v. Union of India and Others, AIR 1987 SC 2386 , Union of India and Others v. Giriraj Sharma, AIR 1994 SC 215 B.C. Chaturvedi v. Union of India and Others, AIR 1996 SC 484 . 14. In the case of Ranjit Thakur (supra), the Apex Court observed as under:- "But the sentence has to suit the offence and the offender. It should not be vindictive or unduly harsh. It should not be 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 out ranges defiance of logic, then the sentence would not be immune from correction. Irrationality and perversity are recognized grounds of judicial review." 15. In the case of B.C. Chaturvedi (supra), after examining earlier decisions, the Supreme Court observed that in exercise of the powers of judicial review, the Court cannot "normally" substitute its own conclusion or penalty. However, if the penalty imposed by an authority "shocks the conscience" of the Court, it would appropriately mould the relief either directing the authority to reconsider the penalty imposed and in exceptional and rare cases, in order to shorten the litigation, itself impose appropriate punishment with cogent reasons in support thereof. 16. However, if the penalty imposed by an authority "shocks the conscience" of the Court, it would appropriately mould the relief either directing the authority to reconsider the penalty imposed and in exceptional and rare cases, in order to shorten the litigation, itself impose appropriate punishment with cogent reasons in support thereof. 16. In the case of Union of India and Others v. G. Ganayutham, AIR 1997 SC 3387 , the Supreme Court considered the entire law on the subject and observed: "In such association, unless the Court/Tribunal opines in its secondary role, that the administrator was, on the material before him, irrational according to Wednesbury or CCSU then, the matter has to be remitted back to the appropriate authority for reconsideration. It is only in very rare cases as pointed out in B.C. Chaturvedi's case that the Court might, to shorten litigation think of substituting its own view as to the quantum of punishment in the place of the punishment awarded by the competent authority. 17. What is the appropriate quantum of punishment to be awarded to a delinquent is a matter that primarily rests at the discretion of the disciplinary authority. An authority sitting in appeal over any such order of punishment is by all means entitled to examine the issue regarding the quantum of punishment inasmuch as it is entitled to examine whether the charges have been satisfactorily proved. But when any such order is challenged before a Service Tribunal or the High Court the exercise of discretion by the competent authority in determining the awarding punishment is generally respected except where the same is found to be so outrageously disproportionate to the charges of misconduct and the Court considers it to be arbitrary and wholly unreasonable. The superior Courts and the Tribunal invoke the doctrine of proportionality which has been gradually accepted as one of the facets of judicial review. Where punishment is excessive or disproportionate to the offence so as to shock the conscience of the Court and is unacceptable even then Courts should be slow and generally reluctant to interfere with the quantum of punishment. The law on the subject is well settled by a series of decisions rendered by this Court. 18. Where punishment is excessive or disproportionate to the offence so as to shock the conscience of the Court and is unacceptable even then Courts should be slow and generally reluctant to interfere with the quantum of punishment. The law on the subject is well settled by a series of decisions rendered by this Court. 18. In Ranjit Thakur v. Union of India, (1987) 4 SCC 611 : AIR 1987 SC 2386 , the Apex Court held that 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 even as to the sentence is in defiance of logic, then the quantum of sentence would not be immune from correction. Irrationality and perversity, observed this Court, are recognized grounds of judicial review. The following passage is apposite in this regard. "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 even as to sentence is an in defiance of logic, then the quantum of sentence would not be immune from correction. Irrationality and perversity are recognized grounds of judicial review." 19. Similarly, in Dev Singh v. Punjab Tourism Development Corporation Limited, (2003) 8 SCC 9 : AIR 2003 SC 3712 : 2003 AIR SCW 4222, the Supreme Court, following Ranjit Thakur's case (supra) held:- "A court sitting in an 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 above noted 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." 20. It is also clear from the above noted 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." 20. Reference may also be made to the decisions of the Supreme Court in Union of India v. Ganayutham, (1997) 7 SCC 463 : AIR 1997 SC 3387 : 1997 AIR SGW 3464, Ex-Naik Sardar Singh v. Union of India, (1991) 3 SCC 213 : AIR 1992 SC 417 : 1992 AIR SCW 4 and Om Kumar v. Union of India, (2001) 2 SCC 386 : AIR 2000 SC 3689 : 2000 AIR SCW 4361 and Jai Bhagwan v. Commissioner of Police and Others, AIR 2013 SC 2908 , which reiterate the same proposition. 21. The above view of the apex court was referred to by this Court in Sudarsan Giri v. Union of India and Others, 2010 (I) OLR 472 and Panchunath Samal v. Union of India and Others, 2015 (Supp.1) OLR 1022. 22. For the foregoing discussions and the law cited above, this Court is of the view that imposition of punishment of compulsory retirement from service for the kind of misconduct alleged relying on the statement of Niranjan Nayak recorded during preliminary enquiry, which has not been supplied to the petitioner, appears to be grossly disproportionate, which cannot sustain in the eye of law. Having regard to the facts and circumstances and the constitutional infirmities, this Court is of the considered opinion that it would be unjust and unfair to refuse the relief. Therefore, this court would accordingly quash Annexure-8, the order of the disciplinary authority imposing punishment of compulsory retirement. With the foundation crashing, the order passed in appeal by the appellate authority also falls to the ground. The writ petition is accordingly allowed. The petitioner shall be deemed to be continuing in service and shall be entitled to all the consequential benefits. Petition Allowed.