Research › Search › Judgment

J&K High Court · body

2016 DIGILAW 408 (JK)

Manzoor Ahmad Ganai v. State of J&K

2016-07-28

N.PAUL VASANTHAKUMAR

body2016
JUDGMENT : N. Paul Vasantha Kumar, J. 1. This writ petition is filed by the petitioner challenging the removal from service made in Order No. 216 of 2007, dated 07.04.2007 passed by the Commandant, JKAP 5th Bn, Srinagar which is affirmed in appeal by order of the appellate authority made in Order No. 94 of 2008, dated 19.03.2008 passed by Deputy Inspector General of Police, Armed, Kashmir Range, Srinagar and for direction to allow the petitioner to resume his normal duty and treat the period of absence from 07.04.2007 till he is allowed to resume his duties as in active service by paying him salary for the said period. The case of the petitioner is that he was appointed as Constable in the 8th Bn of JKAP by order dated 01.12.1995 and he was transferred to 5th Bn by order dated 27.08.1997 and he joined the 8th Bn on 18.10.1997. According to the petitioner he was bed ridden from 27.11.2006 to 13.01.2007 (47 days) and the same was certified by the Medical Officer. For the said absence the petitioner was proceeded and the removal order has been passed. The removal order was affirmed in appeal and challenging the same the writ petition has been filed. 2. It is the contention of the petitioner that departmental enquiry was conducted and the enquiry officer recommended that the period of absence may be treated as Dies non, however, the disciplinary authority, namely the 4th respondent, issued a show cause notice on 17.02.2007 and stated that the recommendations of the enquiry officer does not commensurate with the gravity of offence in view of unauthorized absence/blemished service record. The disciplinary authority directed the petitioner to explain his position as to why he should not be removed from service on account of his absence and in view of his blemished service record within a period of 5 days positively. The petitioner submitted his reply stating that the absence from duty was because of his illness during those days as he was suffering from acute viral hepatitis (jaundice) and was bed ridden and therefore he was advised by the Doctor to take rest which resulted in not joining the duties on time, therefore, the absence cannot at all be attributed to the petitioner as a deliberate attempt. The petitioner also annexed the medical certificate issued by the Medical Officer District Hospital Anantnag, certifying that absence from duty was due to his illness. The petitioner could not report for duty in terms of the request made to re-join duty by order dated 30.11.2006 as he was not physically and medically in a position to resume his duties. After recovery he reported for duty on 13.01.2007. Since the absence was not willful and due to his illness he requested the respondents to treat the absence as dies non and requested for compounding the charges against him accordingly. 3. The disciplinary authority namely the 4th respondent after narrating the facts i.e. 47 days absence, has stated that he has perused the written reply and have come to the conclusion that the petitioner is trying to save his skin by putting up baseless reply that he was suffering from illness and was bed ridden. The petitioner has failed to inform the Battalion headquarters about his illness/whereabouts. On perusal of the service records it reveals that the petitioner is appointee of 01.12.1995 and during his short span of service he has earned three major and nine minor and in all 12 punishments besides 337 days absence from time to time having been treated as dies non on account of absenteeism to reform him but he has not mended his ways and on perusal of his entire service record it transpires that he has been let off on numerous occasions, therefore, he came to the conclusion that the petitioner is a habitual absentee and has no respect for the Rules and Regulations in force. The petitioner has absented from 27.11.2006 to 13.01.2007 without any justifiable reason, the period of unauthorised absence has been proved against him without any shadow of doubt, therefore, he is not fit to serve the department anymore and he is imposed with punishment of removal from service and the period of unauthorised absence from 27.11.2006 to 13.01.2007 (47 days) is treated as dies non on the analogy of no work no pay. 4. 4. The petitioner challenged the said order by filing appeal before the appellate authority, Deputy Inspector General of Police, Armed, Kashmir on 08.05.2007 and during the pendency of the appeal the petitioner preferred SWP No. 1287/2007 and the same was allowed to be withdrawn with liberty to pursue the pending appeal and an observation was made in the order dated 20.09.2007, hoping that the appeal will be disposed of after hearing the petitioner without any delay. The appellate authority failed to pass any order hence the petitioner preferred contempt petition No. 470/2007. In which the statement of facts was filed stating that in terms of the directions of this Court the appeal was disposed of on 19.03.2008 rejecting the appeal and the same was communicated to the 4th respondent on 25.03.2008. The appellate authority, after narrating about the issuance of show cause notice and order passed by the 4th respondent as well as the punishment imposed on prior occasions, rejected the appeal by holding that the medical certificate was not produced by the petitioner in Form-3 at the right time as per rules. 5. The learned counsel appearing or the petitioner argued that the enquiry officer having found that the petitioner's absence was not willful by accepting the medical certificate, recommended to treat the period of absence as dies non, the disciplinary authority ought to have accepted the same, however, the disciplinary authority without stating convincing reasons, issued a show cause notice proposing the punishment of removal from service, thereby he has predetermined the issue to remove the petitioner from service even while issuing the show cause notice, without stating that he is not accepting the enquiry officer's report and taking a different view. The disciplinary authority has not expressed anything about the medical certificate produced by the petitioner to establish the fact that he was bed ridden that too in a Government hospital for the period of absence. The willful intention in not reporting for duty has not been recorded by cogent reasons by the disciplinary authority and the disciplinary authority while imposing the major punishment of removal from service failed to follow the statutory provision namely, Rule 359(H)(2) of the Jammu and Kashmir Police Rules, 1960. The willful intention in not reporting for duty has not been recorded by cogent reasons by the disciplinary authority and the disciplinary authority while imposing the major punishment of removal from service failed to follow the statutory provision namely, Rule 359(H)(2) of the Jammu and Kashmir Police Rules, 1960. He has further argued that though show cause notice was issued to the petitioner and he has explained the circumstances under which he could not report for duty, without extending personal hearing/oral hearing to the petitioner major punishment of removal from service has been ordered which is in violation of the said statutory provision, which fact has not been considered by the appellate authority who also failed to follow the provisions prescribed under [366. Orders on appeals (1) In the case of an appeal against an order imposing and of the penalties specified in clauses (a), (b), (c), (d), (f), (g), (j), and (k) of sub-rule (2) of rule 334 the appellate authority shall consider- (i) whether the facts on which the order was based have been established; (ii) whether the facts established afford sufficient ground for taking action; and (iii) whether the penalty is excessive, adequate or inadequate; and after such consideration shall pass such orders as it thinks proper. Every order passed in appeal shall contain the reasons thereof. A copy of every appellate order and the reason therefor shall be given free of cost to the appellant. (2) No penalty shall be enhanced on passing an order in appeal unless an opportunity is given to the police officer concerned to show cause why such penalty should not be enhanced. (3) In any case in which the appellate authority enhances the penalty, the appellant shall be entitled to submit a second appeal to the next higher authority. The second appeal will, however be admissible only in respect of the additional punishment awarded by the appellate authority. (3) In any case in which the appellate authority enhances the penalty, the appellant shall be entitled to submit a second appeal to the next higher authority. The second appeal will, however be admissible only in respect of the additional punishment awarded by the appellate authority. (4) The appellant may after his first appeal submit a representation to the same appellate authority by which such appeal has been rejected, provided new fact or circumstances are adduced which afford grounds for reconsideration of the case.] Rule 366 of the J&K Police Rules, 1960, particularly on the following namely : "(1) Whether the facts on which the order was based have been established; (2) Whether the facts established afford sufficient ground for taking action; and (3) whether the penalty is excessive, adequate or inadequate;" and after considering all these aspects only the appellate authority shall pass orders by recording reasons. Thus the learned counsel argued that the order of the disciplinary authority as well as the appellate authority is not in consonance with the statutory rules above stated and the orders are liable to be set aside and the petitioner is liable to be re-instated with all benefits. 6. Mr. Bashir Ahmad Dar, learned AAG, appearing for the respondents, on the basis of objections filed, contended that petitioner has managed to obtain the medical certificate issued by the Medical Officer and he has failed to inform the department about his illness by adopting proper procedure i.e. giving medical certificate in Form-3 and 4 and his earlier service is also with a blemish. The petitioner being a member of the disciplined force, is expected to follow the discipline and the same having been breached, the order of removal was passed which was affirmed by the appellate authority. The learned Additional Advocate General further submitted that due to misconduct the petitioner has been removed from the police force and the punishment imposed is also proper. 7. I have considered the rival submissions and perused the Rules and the documents filed. 8. The fact that the petitioner has not reported for duty for 47 days, for which he was proceeded and based on that reasons the order of removal from service is passed, is not disputed. 7. I have considered the rival submissions and perused the Rules and the documents filed. 8. The fact that the petitioner has not reported for duty for 47 days, for which he was proceeded and based on that reasons the order of removal from service is passed, is not disputed. The enquiry officer appointed by the respondents found that 47 days of absence was due to his illness and not willful and he recommended to treat the period of absence as dies non. The 4th respondent, who is the disciplinary authority, has not differed with the findings recorded by the enquiry officer while issuing the show cause notice. The 4th respondent only differed with the punishment recommended by the enquiry officer, stating that the same is not commensurate with the gravity of offence in view of petitioner's blemished service record and proposed the punishment of removal from service. 9. The procedure while punishing a person with dismissal/removal or reduction in rank is governed under the Police Rules, 1960, is mentioned in Rule 359 (11) (1) and (2), which reads thus :- "(11)(1) As laid down in section 126 of the Constitution of Jammu and Kashmir, no officer shall be dismissed or removed by an authority subordinate to that by which he was appointed. (2) No police officer shall be dismissed or removed or reduced in rank until he has been given a reasonable opportunity of showing cause orally and also in writing against the action proposed to be taken in regard to him, provided that this clause shall not apply :- (a) where a person is dismissed or removed or reduced in rank on the ground of conduct which led to his conviction on a criminal charge; (b) where an authority empowered to dismiss or remove an officer or to reduce him in rank is satisfied that for some reason to be recorded by that authority in writing it is not reasonably practicable to give to that person an opportunity of showing cause; or (c) where the Sadar-i-Riyasat is satisfied that in the interest of the security of the State it is not expedient to give to that officer such an opportunity." On perusal of the above rule it is evident that no Police officer shall be dismissed or removed or reduced in rank until he has been given a reasonable opportunity of showing cause orally and also in writing against the action proposed to be taken in regard to him, unless the officer is convicted for a criminal charge or it is not reasonably practicable to give that person an opportunity of showing cause or if the Governor is satisfied that in the interest of the security of the State it is not expedient to give to that officer such an opportunity. 10. The petitioner's case is not coming with the exceptions, namely, (a), (b) or (c) stated supra. The very fact that show cause notice was issued to the petitioner by the 4th respondent, the petitioner cannot be removed from service by invoking clauses (a), (b) or (c) supra. The said rule mandates that dismissal, removal from service or reduction in rank can be passed against a police officer only on giving reasonable opportunity of oral hearing apart from giving opportunity to give any reasons in writing. Admittedly in this case only one mode was adopted by the 4th respondent i.e. issuing show cause notice and seeking reply in writing. The petitioner was not given oral hearing when the statutory provision mandates that he has to be heard in person. The said procedure is admittedly not followed. Admittedly in this case only one mode was adopted by the 4th respondent i.e. issuing show cause notice and seeking reply in writing. The petitioner was not given oral hearing when the statutory provision mandates that he has to be heard in person. The said procedure is admittedly not followed. Hence there is statutory violation committed by the 4th respondent, disciplinary authority, while passing the order of removal. It is a settled principle of law that when a statute says a particular thing to be done in a particular manner, that thing shall be done in that manner and not in any other manner. The same is expressly held in Taylor v. Taylor (1876) 1 Ch. D 426 which was followed in the decision of Privy Council in the decision reported in AIR 1936 PC 253 (2) (Nazir Ahmed v. King Emperor), AIR 1961 SC 1527 (Deep Chand v. State of Rajasthan), AIR 1964 SC 358 (State of U.P. v. Singhara Singh) and 1999(3) SCC 422 (Babu Verghese v. Bar Council of Kerala). The crux of the judgments cited supra, is that "where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all". 11. The appellate authority is also bound to follow the mandatory provisions contained in Rule 366, particularly clause (1), which reads thus :- "Orders of appeals : (1) In the case of an appeal against an order imposing and of the penalties specified in clauses (a), (b), (c), (d), (f), (g), (j), and (k) of sub-rule (2) of rule 334 the appellate authority shall consider :- (i) Whether the facts on which the order was based have been established; (ii) Whether the facts established afford sufficient ground for taking action; and (iii) Whether the penalty is excessive, adequate or inadequate, and after such consideration shall pass such orders as it thinks proper. Every order passed in appeal shall contain the reasons thereof. A copy of every appellate order and the reason therefor shall be given free of cost to the appellant." 12. On perusal of the said Rule it is evident that the Appellate Authority must record reasons for affirming the order of the original authority by recording reasons as to whether the facts on which order was passed have been established, whether the punishment imposed is excessive or adequate. On perusal of the said Rule it is evident that the Appellate Authority must record reasons for affirming the order of the original authority by recording reasons as to whether the facts on which order was passed have been established, whether the punishment imposed is excessive or adequate. The Hon'ble the Supreme Court in the decision reported in AIR 1986 SC 1040 , (R.P. Bhat v. Union of India) considered similar provision i.e. to be followed by the appellate authority under Rule 27 (2) of the Central Civil Services (Classification, Control and Appeal Rules, 1965 and in paragraph Nos. 3 to 5 held thus :- "3. Having heard the parties, we are satisfied that in disposing of the appeal the Director-General has not applied his mind to the requirements of r. 27(2) of the Rules, the relevant provisions of which read as follows : "27(2). In the case of an appeal against an order imposing any of the penalties specified in Rule 11 or enhancing any penalty imposed under the said Rules, the appellate authority shall consider. (a) whether the procedure laid down in these rules has been complied with and if not, whether such non-compliance has resulted in the violation of any provisions of the Constitution of India or in the failure of justice; (b) whether the findings of the disciplinary authority are warranted by the evidence on the record; and (c) whether the penalty or the enhanced penalty imposed is adequate, inadequate or severe; and pass orders-(i) confirming, enhancing, reducing or setting aside the penalty; or (ii) remitting the case to the authority which imposed or enhanced the penalty or to any other authority with such direction as it may deem fit in the circumstances of the case." 4. The word "consider" in rule 27 (2) implies due application of mind. It is clear upon the terms of r. 27(2) that the appellate authority is required to consider (1) whether the procedure laid down in the Rules has been complied with; and if not, whether such non-compliance has resulted in violation of any provisions of the Constitution or in failure of justice; (2) whether the findings of the disciplinary authority are warranted by the evidence on record; and (3) whether the penalty imposed is adequate; and thereafter pass orders confirming, enhancing etc. the penalty, or may remit back the case to the authority which imposed the same. the penalty, or may remit back the case to the authority which imposed the same. Rule 27(2) casts a duty on the appellate authority to consider the relevant factors set forth in clauses (a), (b) and (c) thereof. 5. There is no indication in the impugned order that the Director-General was satisfied as to whether the procedure laid down in the Rules had been complied with; and if not, whether such non-compliance had resulted in violation of any of the provisions of the Constitution or in failure of justice. We regret to find that the Director-General has also not given any finding on the crucial question as to whether the findings of the disciplinary authority were warranted by the evidence on record. It seems that he only applied his mind to the requirement of cl. (c) of r. 27(2), viz. whether the penalty imposed was adequate or justified in the facts and circumstances of the present case. There being non-compliance with the requirements of r. 27(2) of the Rules, the impugned order passed by the Director-General is liable to be set aside." The said decision is followed in (2006) 4 SCC 713 (Narinder Mohan Arya v. United India Insurance Company Limited & Ors). Even otherwise the authority vested with the power to determine the rights of others must record reasons for arriving at his conclusion by independently applying his mind. The said issue is no longer res-integra. The Hon'ble the Supreme Court in the decision reported in AIR 1990 SC 1984 , (S.N. Mukherji v. Union of India) in paragraph 35 has held thus :- "35. Reasons, when recorded by an administrative authority in an order passed by it while exercising quasi-judicial functions, would no doubt facilitate the exercise of its jurisdiction by the appellate or supervisory authority. But the other considerations, referred to above, which have also weighed with this Court in holding that an administrative authority must record reasons for its decision, are of no less significance. These considerations show that the recording of reasons by an administrative authority serves a salutary purpose, namely, it excludes chances of arbitrariness and ensures a degree of fairness in the process of decision-making. The said purpose would apply equally to all decisions and its application cannot be confined to decisions which are subject to appeal, revision or judicial review. These considerations show that the recording of reasons by an administrative authority serves a salutary purpose, namely, it excludes chances of arbitrariness and ensures a degree of fairness in the process of decision-making. The said purpose would apply equally to all decisions and its application cannot be confined to decisions which are subject to appeal, revision or judicial review. In our opinion, therefore, the requirement that reasons be recorded should govern the decisions of an administrative authority exercising quasi-judicial functions irrespective of the fact whether the decision is subject to appeal, revision or judicial review. It may, however, be added that it is not required that the reasons should be as elaborate as in the decision of a Court of law. The extent and nature of the reasons would depend on particular facts and circumstances. What is necessary is that the reasons are clear and explicit so as to indicate that the authority has given due consideration to the points in controversy. The need for recording of reasons is greater in a case where the order is passed at the original stage. The appellate or revisional authority, if it affirms such an order, need not give separate reasons if the appellate or revisional authority agreed with the reasons contained in the order under challenge." Hon'ble the Supreme Court in the decision reported in (2010) 2 SCC 497 (G. Vallikumari v. Andhra Education Society & Ors.) held thus : ".......The requirement of recording reasons by every quasi-judicial or even an administrative authority entrusted with the task of passing an order adversely affecting an individual and communication thereof to the affected person is one of the recognized facets of the rules of natural justice and violation thereof has the effect of vitiating the order passed by the authority concerned." 13. One more aspect to be considered by the 4th respondent as well as the appellate authority is that whether the absence of the petitioner was willful to impose a major punishment of removal from service. This issue was already considered by Hon'ble the Supreme Court in the decision reported in (2012) 3 SCC 178 (Krushnakant B. Parmar v. Union of India), and it was held that for punishing a person for unauthorized absence, willful absence must be proved and if the person has absented due to compelling circumstances, his absence cannot be held to be willful. In the decision reported in AIR 2015 SC 598 (Chhel Singh v. M.G.B. Gramin Bank Pali & Ors.), a similar issue was considered by Hon'ble the Supreme Court. In the said case for not reporting for duty from 11.12.1989 to 24.10.1990, charge was framed and the defence of the employee was that he was seriously ill during the said period which was beyond his control and he could not report for duty. The stand of the department was that the employee on leave on health reasons should submit medical certificate while joining duty and he has submitted the same with delay. Not accepting the plea, the employee was removed from service. The Writ Court set aside the order of removal and directed the respondents to re-instate the employee in service with all consequential benefits. The Bank challenged the said order before the Division Bench and the appeal was allowed, against which the employee preferred civil appeal and Hon'ble the Supreme Court reversed the order of the Division Bench and upheld the order of the Writ Court. In para 15 and 16 it is held thus :- "15........We find that the main allegation is absence from duty from 11.12.89 to 24.10.90 (approximately 10 and = months), for which no prior permission was obtained from the competent authority. In his reply, the appellant has taken the plea that he was seriously ill between 11.12.89 and 24.10.90, which was beyond his control; he never intended to contravene any of the provisions of the service regulations. He submitted the copies of medical certificates issued by Doctors in support of his claim after rejoining the post. The medical reports were submitted after about 24 days. There was no allegation that the appellant's unauthorized absence from duty was willful and deliberate. The Inquiry Officer has also not held that appellant's absence from duty was willful and deliberate. It is neither case of the Disciplinary Authority nor the Inquiry Officer that the medical reports submitted by the appellant were forged or fabricated or obtained for any consideration though he was not ill during the said period. In absence of such evidence and finding, it was not open to the Inquiry Officer or the Disciplinary Authority to disbelieve the medical certificates issued by the Doctors without any valid reason and on the ground of 24 days delay. 16. In absence of such evidence and finding, it was not open to the Inquiry Officer or the Disciplinary Authority to disbelieve the medical certificates issued by the Doctors without any valid reason and on the ground of 24 days delay. 16. In view of the observation made above, the order passed by the Division Bench of the High Court cannot be upheld. We, accordingly, set aside the impugned judgment and order dated 10th May, 2012 passed by the Division Bench of the High Court in D.B. Civil Special Appeal (Writ) No. 850 of 2009 and upheld the order passed by the learned Single Judge dated 31st March, 2009 in S.B. Civil Appeal Writ Petition No. 1702 of 1995. The respondents are directed to implement the direction and order dated 31st March, 2009 issued by the learned Single Judge within four weeks from the date of receipt of copy of this judgment." 14. In this case, in the departmental enquiry the willful absence was not proved, however, the disciplinary authority, without recording the willful absence, based on the record of service, imposed the punishment of removal of service. Same is the case with regard to the appellate authority. The removal from service being a major punishment and having regard to the fact that petitioner absented for 47 days and having regard to his defence that he was bed ridden due to his illness which is also established by a medical certificate issued by the Medical Officer of a Government hospital, the same has to be properly appreciated by the original authority as well as by the appellate authority. The same was ignored only on the ground that medical certificate produced was not in the format. Having regard to the fact that mandatory provisions contained in Rule 359(H)(2) have not been followed, the order of removal from service passed by the 4th respondent cannot be sustained. Consequently the order of the Appellate Authority, which is also vitiated, is liable to be set aside. 15. Having regard to the fact that mandatory provisions contained in Rule 359(H)(2) have not been followed, the order of removal from service passed by the 4th respondent cannot be sustained. Consequently the order of the Appellate Authority, which is also vitiated, is liable to be set aside. 15. On the above finding, the order of the 4th respondent, affirmed in appeal by the 3rd respondent, which are challenged in this writ petition, are quashed and liberty is granted to the 4th respondent to follow the mandate contained in Rule 359 (H)(2) of the Jammu and Kashmir Police Rules, 1960, i.e. extending personal hearing to the petitioner and find out as to whether 47 days absence of the petitioner was willful and if same is not willful, to decide the matter accordingly. The 4th respondent is directed to do the needful and pass fresh order within a period of 8 weeks from the date of receipt of copy of this order. 16. Since the removal from service has been set aside, the petitioner is liable to be re-instated. However, salary and other benefits payable from the date of removal up to the date of his re-instatement shall be decided depending upon the fresh orders to be passed by the 4th respondent, as directed above. It is made clear that while considering the matter afresh the 4th respondent is bound to consider the following judgments of Hon'ble the Supreme Court :- In the decision reported in (1987) 4 SCC 611 (Ranjit Thakur v. Union of India & Ors.), the Hon'ble Supreme Court in paragraph Nos. 25 and 27 held thus :- "25... 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. Irrationality and perversity are recognised grounds of judicial review. In Council of Civil Service Unions v. Minister for the Civil Service, [1984] 3 Weekly Law Reports 1174 (HL) Lord Deplock said : ".......Judicial Review has I think developed to a stage today when without reiterating any analysis of the steps by which the development has come about, one can conveniently classify under three heads the grounds upon which administrative action is subject to control by judicial review. The first ground 1 would call 'illegality', the second 'irrationality' and the third 'procedural impropriety'. That is not to say that further development on a case by case basis may not in course of time add further grounds. I have in mind particularly the possible adoption in the future of the principle of 'proportionality' which is recognised in the administrative law of several of our fellow members of the European Economic Community;....... 27. In the present case the punishment is so strikingly disproportionate as to call for and justify interference. It cannot be allowed to remain uncorrected injudicial review." In the decision reported in (2009) 15 SCC 620 , (Chairman-cum-Managing Director, Coal India Ltd. & Anr. v. Mukul Kumar Choudhuri & Ors.), Hon'ble the Supreme Court in paragraph Nos. 19, 20 and 21 held thus :- "19. The doctrine of proportionality is, thus, well recognized concept of judicial review in our jurisprudence. What is otherwise within the discretionary domain and sole power of the decision maker to quantify punishment once the charge of misconduct stands proved, such discretionary power is exposed to judicial intervention if exercised in a manner which is out of proportion to the fault. Award of punishment which is grossly in access to the allegations cannot claim immunity and remains open for interference under limited scope of judicial review. 20. One of the tests to be applied while dealing with the question of quantum of punishment would be : would any reasonable employer have imposed such punishment in like circumstances? Obviously, a reasonable employer is expected to take into consideration measure, magnitude and degree of misconduct and all other relevant circumstances and exclude irrelevant matters before imposing punishment. 21. 20. One of the tests to be applied while dealing with the question of quantum of punishment would be : would any reasonable employer have imposed such punishment in like circumstances? Obviously, a reasonable employer is expected to take into consideration measure, magnitude and degree of misconduct and all other relevant circumstances and exclude irrelevant matters before imposing punishment. 21. In a case like the present one where the misconduct of the delinquent was unauthorized absence from duty for six months but upon being charged of such misconduct, he fairly admitted his guilt and explained the reasons for his absence by stating that he did not have any intention nor desired to disobey the order of higher authority or violate any of the Company's Rules and Regulations but the reason was purely personal and beyond his control and, as a matter of fact, he sent his resignation which was not accepted, the order of removal cannot be held to be justified, since in our judgment, no reasonable employer would have imposed extreme punishment of removal in like circumstances. The punishment is not only unduly harsh but grossly in excess to the allegations." In the decision reported in (2011) 13 SCC 553 (Union of India & Ors. v. Bodupalli Gopalaswami), in paragraph 28, Hon'ble the Supreme Court held thus :- "...........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 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......" No costs.