JUDGMENT : J.B. Pardiwala, J. 1. By this writ application under Article 226 of the Constitution of India, the petitioner - a former Branch Manager of the Punjab National Bank, has prayed for the following reliefs: "8(A) Your Lordships may be pleased to issue appropriate writ, order or direction and be pleased to quash and set aside the impugned order dated 11.8.2012 passed by respondent No. 1 as well as order dated 22.2.2012 passed by respondent No. 2, in the interest of justice. (B) Your Lordships may be pleased to stay the implementation, operation and execution of the impugned order dated 11.8.2012 passed by respondent No. 1 as well as order dated 22.2.2012 passed by respondent No. 2 pending the admission, hearing and final disposal of this petition. (C) Your Lordships may be pleased to grant such other and further relief be granted as may be thought fit in the circumstances." 2. The facts of this case may be summarized as under: "2.1 The petitioner was serving as a Manager (Incumbent In-charge) at the Sanjivani Road Branch of the Punjab National Bank. While serving as the Manager, a departmental charge-sheet dated 17th May, 2006 was issued alleging that he had collected Rs. 10 lac in all in cash from the branch office of the Bank situated at the Shastri Park Branch and Mahalaxmi Branch respectively for the office use under the debit of remittance in the transit head. It is alleged that thereafter, he unauthorizedly absented himself from his duties without depositing the said amount at his branch. It is alleged that thereby he was guilty of the embezzlement of funds of the Bank. 2.2 The Inquiry Officer reached to the conclusion that the charge was established. The disciplinary authority considered the report of the Inquiry Officer, and after hearing the petitioner, passed an order of compulsory retirement dated 20th January, 2007 in terms of the Regulation 4(h) of the Punjab National Bank Office Employees (Discipline and Appeal) Regulations, 1977. 2.3 It appears that the petitioner challenged the order of the disciplinary authority by way of filing the Special Civil Application No. 27232 of 2007 before this Court. A learned Single Judge of this Court by order dated 22nd September, 2008 rejected the writ application. 2.3 It appears that the petitioner challenged the order of the disciplinary authority by way of filing the Special Civil Application No. 27232 of 2007 before this Court. A learned Single Judge of this Court by order dated 22nd September, 2008 rejected the writ application. 2.4 Being dissatisfied, the petitioner preferred a Letters Patent Appeal No. 1223 of 2009 before the Division Bench and the Division Bench, vide order dated 14th September, 2009, allowed the same directing the Inquiry Officer to conduct a de novo inquiry from the stage of adducing the defence evidence. I may quote the order passed by the Division Bench referred to above: "Appeal admitted. Upon joint request by learned advocates for the parties, the appeal is taken up for final hearing as only a narrow question is involved. This appeal arises out of the judgment and order rendered in Special Civil Application No. 27232 of 2007 dated 22.9.2008. The appellant was working as Branch Manager with the respondent Bank. It was noticed by the Bank that some misconduct is committed by the appellant and therefore he was departmentally proceeded against. In the departmental proceedings, the delinquent wanted to examine certain defence witnesses and produce certain documents. The Enquiry Officer refused to grant such permission on the ground that the documents and the witnesses were beyond the purview of the charge-sheet. Ultimately, the delinquent was held to be guilty of the charges levelled against him and was punished with dismissal from service. The said order of the Disciplinary Authority was challenged before the Appellate Authority where a plea was taken that prejudice is caused to the defence of the delinquent by not taking on record the documents and not permitting the delinquent to examine the witnesses to prove his defence. The Appellate Authority, however, reduced the punishment from dismissal to compulsory retirement by order dated 20.1.2007. Against that order, the appellant preferred Special Civil Application No. 27232 of 2007 which came to be dismissed by order dated 22.9.2008. The question that this Court is required now to answer would be whether the documents sought to be produced by the delinquent and the witnesses sought to be examined by the delinquent to establish his defence, on being not permitted by the Enquiry Officer, resulted into any prejudice to the delinquent and whether it vitiated the proceedings. We have heard learned advocate Ms. We have heard learned advocate Ms. Pahwa for the appellant and Mr. Chetan Pandya for the respondent. A reading of the order of the Enquiry Officer makes it clear that certain documents were sought to be produced by the delinquent and the delinquent wanted to examine certain witnesses. It also makes clear that the same was not permitted as it was found by the Enquiry Officer to be out of the purview of the charge-sheet. A reading of the order of the Appellate Authority makes it clear that this plea was raised before the Appellate Authority as well. Learned advocate Mr. Pandya relied on a decision in the case of Debotosh Pal Choudhury vs. Punjab National Bank and Others, 2002 (8) SCC 68 to contend that this was the legitimate order of the Enquiry Officer and cannot be said to have caused any prejudice to the defence of the delinquent. In the instant case the delinquent has taken a plea in his defence relying on the documents sought to be produced and the witnesses sought to be examined. It is not that this was sought to be done by the delinquent as an afterthought at a belated stage and therefore the said judgment would not be applicable to the facts of the present case as in that case the defence sought to examine the witnesses and to adduce oral evidence at a later stage. We fail to appreciate how the Enquiry Officer could have anticipated what the defence is going to depose before him and without doing that, how he could have come to the conclusion that the deposition of the witnesses would be beyond the purview of the charge-sheet. This he could have observed only after the witness is examined and he comes to know that what is deposed by the witness/witnesses is beyond the purview of the scope of charge-sheet or enquiry. Denying examination of the witnesses at the threshold is certainly denying the delinquent a right of being heard and if in any proceedings the principles of natural justice are violated, the proceedings would stand vitiated. In light of this, we are of the view that the appeal deserves to be allowed by setting aside the orders under challenge and remand the matter to the Enquiry Officer with a direction to hold the enquiry de novo from the stage of adducing the defence evidence. Ordered accordingly. In light of this, we are of the view that the appeal deserves to be allowed by setting aside the orders under challenge and remand the matter to the Enquiry Officer with a direction to hold the enquiry de novo from the stage of adducing the defence evidence. Ordered accordingly. With the aforesaid observations, the appeal is allowed. No costs." 2.5 Despite giving an opportunity to the petitioner to examine the defence, still the petitioner was not able to avail the opportunity. The disciplinary authority passed a fresh order dated 22nd February, 2012 observing as under: "Considering the nature and gravity of the irregularities/lapses proved on the part of Shri Parmar, the Disciplinary Authority vide order dated 20.01.2007 imposed upon Shri Parmar the Major Penalty of Compulsory Retirement in terms of Regulation 4(h) of PNB Officer Employees (Discipline and Appeal) Regulations, 1977. Accordingly, Shri G.R. Parmar was compulsorily retired from the bank's service. Shri G.R. Parmar filed a Letters Patent Appeal No. 1223 of 2009 in Special Civil Application No. 27232 of 2007 before the Hon. High Court of Gujarat at Ahmedabad challenging the punishment of compulsory retirement from Bank's service passed by the Disciplinary Authority. The Hon. High Court of Gujarat by its order dated 14.09.2010 ordered that the appeal deserves to be allowed by setting aside the orders under challenge and remand the matter to the Enquiry Officer with a direction to hold the enquiry de novo from the stage of adducing the defence evidence. To comply the above orders of the Hon. High Court it was decided to remand the matter to the Enquiry Officer with a direction to hold the enquiry from the stage of adducing the defence evidence and hold an enquiry under Punjab National Bank Officer Employees (Discipline & Appeal) Regulations, 1977 (Clause 6). Accordingly, Shri V.K. Ravindran, Senior Manager was appointed as Enquiry Officer to look into the imputation of lapses against Shri Parmar vide order dated 09.03.11 of the Disciplinary Authority. Further, due to transfer of Shri V.K. Ravindran, the Disciplinary Authority vide order dated 08.09.2011 had appointed Shri D.S. Mehta, Senior Manager as Enquiry Officer and to comply the orders of the Hon. High Court order dated 14.09.2010. Further, due to transfer of Shri V.K. Ravindran, the Disciplinary Authority vide order dated 08.09.2011 had appointed Shri D.S. Mehta, Senior Manager as Enquiry Officer and to comply the orders of the Hon. High Court order dated 14.09.2010. The Enquiry Officer conducted the enquiry proceedings denovo from the stage of adducing the defence evidence and gave the opportunity to the defence in terms of Regulation 6 of PNB Officer Employees' (Discipline & Appeal) Regulations, 1977. Enquiry Officer submitted his report dated 07.02.12 after having considered the charge sheet, evidences produced by the management as well as defence and their written briefs. In his report he found as under: On 28.03.2006, Charged Officer received an amount of Rs. 7.00 lacs in cash from BO: Shastri Park, Ahmedabad and an amount of Rs. 3.00 lacs in cash from BO: Mahalaxmi Paldi, Ahmedabad under remittance in transit to BO: Sanjivani Road, Ahmedabad and on 28.03.2006 he did not deposit the said sum of Rs. 10.00 lacs so received by him from these two branches at BO: Sanjivani Road, Ahmedabad. It is also proved that CO unauthorisedly absented himself from his duties from 29.03.2006 till his suspension from service. The copy of enquiry report dated 07.02.2012 was forwarded to the charged officer for making his submissions on Enquiry Report, if any, Shri Parmar submitted his submissions vide his letter dated 20.02.2012. In his submissions, Shri Parmar has submitted mainly as under: (i) The Enquiry Officer did not follow the procedure as laid down in Regulation 6. (ii) The report of the Enquiry Officer is not self sufficient. (iii) The enquiry officer has not considered the evidences produced by the defence. (iv) CO was on duty on 28.03.06 and there is no charge against the Charged Officer that he remained absent unauthorisedly from 29.03.2006. (v) EO is not justified in importing evidence from the previous enquiry. I have considered the charges levelled against the charged officer, the enquiry proceedings, the evidences produced by the Management and defence, written briefs, Enquiry Report submitted by the Enquiry Officer and the submission by the Charged Officer thereon and find that the charges as contained in the Charge sheet dated 18.05.2006 are proved and I concur with the findings of the Enquiry Officer. Keeping in view the nature and the gravity of the charges against Shri G.R. Parmar, I decide to impose upon him the Major penalty of Compulsory Retirement in terms of Regulation 4(h) of Punjab National Bank Officer Employees' (Discipline & Appeal) Regulations, 1977. Further, he will not be entitled to any pay or allowances for the period of suspension other than subsistence allowance." 2.6 Being dissatisfied, the petitioner preferred an appeal before the General Manager and the appeal was also ordered to be dismissed vide order dated 11th December, 2012. The appellate authority dismissed the appeal observing as under: "7.7 The witnesses of the defence side are to be arranged by the appellant. The EO is to allow their appearance for the sake of justice. In the instance case, the EO issued notices to the witnesses. The list of witnesses are prepared by the management and it is for the management representative (PO) to take a final decision whether a particular witness is to be produced before the enquiry or otherwise. The appellant has no jurisdiction to comment on production of witnesses by the Manager. The appellant has been provided all the available documents by the PO. 7.8 The appellant has demanded the pre-recorded statement before the Police authorities, which was beyond the purview of the EO, However, the EO has requested the police authorities to provide the same, which was made available to appellant on 12.01.2012. There is no such clause as 10(b) (iii) in PNB Officer Employees (Discipline & Appeal) Regulations, 1977. Therefore, there is no violation of PNB Officer Employees (Discipline & Appeal) Regulations, 1977. 7.9 The departmental enquiry is a quasi judicial procedure, as such the action of outside agency does not affect the departmental enquiry. 7.10 No comment is to be offered from Disciplinary Authority side as it is irrelevant. They are unable to comments on any matter which is handled by an outside agency. 7.11 The issue raised by the appellant pertains to enquiry which has already been looked into by the Enquiry Officer. 7.12 The Enquiry Officer was appointed to look into all the aspect in the enquiry and he had submitted his report after considering all the aspect including the aspect pointed out by the appellant. 7.13 The Disciplinary Authority, while deciding the case was looked into all the required aspect in the case. 7.12 The Enquiry Officer was appointed to look into all the aspect in the enquiry and he had submitted his report after considering all the aspect including the aspect pointed out by the appellant. 7.13 The Disciplinary Authority, while deciding the case was looked into all the required aspect in the case. 7.14 The points raised by the appellant is not valid as any remark given by any authority in past is in general terms and it has no link to this charge sheet. Therefore the appellant cannot absolve himself. 8 In view of the foregoing, I do not find any merit in the points raised by Shri Parmar in his appeal and penalty has been imposed on the basis of proven charges and do not find any reason to interfere with the orders of the Disciplinary Authority. I, therefore, reject the appeal and confirm the penalty imposed by the Disciplinary Authority." 2.7 Being dissatisfied with the orders passed by the disciplinary authority as well as the appellate authority, the petitioner has filed the present writ application." 3. Ms. Pahwa, the learned counsel appearing for the petitioner vehemently submitted that this Court had directed the respondents to hold a de novo inquiry after giving an opportunity to the petitioner of adducing evidence in defence including examination of the defence witnesses. Ms. Pahwa submitted that had submitted a list of the defence witnesses which included the name of Smt. Meenaben Parikh to whom the cash was handed over in the course of the business. She submitted that her client was unable to examine Meenaben, as Meenaben was not available. Since Meenaben had lost her brother-in-law, she was out of town. She submitted that the Inquiry Officer, in such circumstances, ought to have given some more time to produce Meenaben, and examine her as the defence witness. She submitted that the action on the part of the authorities, in not granting more time and opportunity to examine Meenaben, caused serious prejudice to the petitioner. She submitted that Meenaben, in her statement before the police had made herself very clear that the amount of Rs. 10 lac was paid by the petitioner to her as the same was sanctioned in her favour as a cash credit facility. 4. Ms. She submitted that Meenaben, in her statement before the police had made herself very clear that the amount of Rs. 10 lac was paid by the petitioner to her as the same was sanctioned in her favour as a cash credit facility. 4. Ms. Pahwa submitted that assuming for the moment that there was some irregularity in the procedure adopted by the petitioner, still it could not be said that her client was guilty of misappropriation or embezzlement of funds. She submitted that the amount was not used by her client for his personal gain. She submitted that the case is not one of wrongful loss to the Bank and wrongful gain to the petitioner. 5. Ms. Pahwa lastly submitted that the authority ought not to have imposed the punishment of compulsory retirement, more particularly, having regard to the fact that the petitioner had put in more than twenty five years of service and that too unblemished. She submitted that the penalty could not be said to be in commensurate with the gravity of the charge. 6. On the other hand, this writ application has been vehemently opposed by Mr. Chetan Pandya, the learned counsel appearing for the respondent - Bank. He submitted that ample opportunity was given to the petitioner to examine Meenaben as his defence witness, but the petitioner was unable to produce her before the Inquiry Officer, and examine her as the defence witness. He submitted that in such circumstances, it cannot be said that no opportunity was given to the petitioner. He submitted that the petitioner acted in a very irresponsible and highhanded manner unbecoming of a Branch Manager of a Nationalized Bank. He submitted that the petitioner handed over the cash without depositing the same in his branch and taking it on record. He thereafter unauthorizedly absented himself from his duties. He submitted that the petitioner could not have handed over the amount other than at the premises of the Bank, more particularly, when the amount was in transit. The petitioner made payment of loan of Rs. 10 lac without first depositing in the account of the borrower, and thereby, committed breach of the norms of the Bank. 7. On behalf of the Bank, an affidavit-in-reply has been filed duly affirmed by the Manager (HRD) inter alia stating as under: "4. The petitioner made payment of loan of Rs. 10 lac without first depositing in the account of the borrower, and thereby, committed breach of the norms of the Bank. 7. On behalf of the Bank, an affidavit-in-reply has been filed duly affirmed by the Manager (HRD) inter alia stating as under: "4. I say that even though the petitioner was given enough opportunity to produce the documents and an oral witness in defense, the petitioner has failed to avail the opportunity granted after the order was passed by this Hon'ble Court in Letters Patent Appeal No. 1223 of 2009. I say that the petitioner could not secure presence of his witnesses. I say that therefore, the statements recorded by the police authorities were taken in record and were considered while adjudicating disciplinary proceedings. I say that none of the statements more particularly annexed with the petition at Annexure-S to the petition suggest that the petitioner adhered to the bank's rules, regulations and protected the bank's interest and/or suggested that the petitioner had followed the procedure required under the banking norms. On the contrary, the statements specifically suggest that the petitioner had handed over the cash without depositing the same amount in his branch and taking it on record and had unauthorised absented from his duties. Therefore, the petition is required to be rejected as Disciplinary Authority as well as the Appellate Authority have taken into consideration the evidence on record which is to be seen on the principles of preponderance of possibility and not beyond reasonable doubt. I say that the petitioner could not be able to show that the petitioner did not breach the banking rules, regulations and norms and/or he has followed the banking norms while discharging his duty and had protected the interest of the bank. Therefore also, the petition is required to be rejected. 6. With reference to paragraphs 3.1 to 3.5 of the petition, I say that the petitioner had handed over the amount of Rs. 10 lakhs to Smt. Meenaben Parikh, the Proprietor of M/s. Shree Vinayak Trading Company without depositing the said amount to the Sanjivani Branch, Ahmedabad and following the banking norms. I say that the bank witness Shri J.K. Patel had denied the allegations made by the petitioner. 10 lakhs to Smt. Meenaben Parikh, the Proprietor of M/s. Shree Vinayak Trading Company without depositing the said amount to the Sanjivani Branch, Ahmedabad and following the banking norms. I say that the bank witness Shri J.K. Patel had denied the allegations made by the petitioner. I crave leave to refer to and rely upon the Inquiry Officer who did not allow the petitioner to produce his witness and produce the documents. I say that as ordered by this Hon'ble Court in the Letters Patent Appeal No. 1223 of 2009, the petitioner was given an opportunity. However, the petitioner could not secure the presence of his witness. 7. With reference to paragraph 3.6 of the petition, I submit that after withdrawing and/or collecting an amount of Rs. 10 lakhs from Shastri Park and Mahalaxmi Road Branches of the respondent Bank, the petitioner did not come to the Sanjivani Road Branch and did not complete the procedure required under the banking norms. It is specifically denied that the petitioner reached his office and directed that the cheque of Rs. 14.50 lakhs is available for debiting to the borrower's account and the remittance amount is also required to be adjusted after making residual payment of Rs. 4.50 lakhs. It is also denied that since the computer was slow, the cheque could not be passed before the end of the day. I deny that the petitioner parted with the loan file and cheque to Shri Chopra, Senior Regional Manager without making any inventory on the same on 28/03/2006. I say that the petitioner was not present. However, Shri Chopra, Senior Regional Manager had come to the branch on account of the complaint made by the officials of the bank that the petitioner has absented from his duty without depositing the amount collected by him from other branches and the Senior Regional Manager had to take into the custody the requisite documents. I deny that the customer was present in the branch on 28/03/2006. I deny that since the borrower had returned the amount between 29/03/2006 to 31/03/2006, there is no embezzlement of the fund by the petitioner. I deny that the petitioner was present in the branch after collecting the amount from the said two branches. I deny that the customer was present in the branch on 28/03/2006. I deny that since the borrower had returned the amount between 29/03/2006 to 31/03/2006, there is no embezzlement of the fund by the petitioner. I deny that the petitioner was present in the branch after collecting the amount from the said two branches. I deny that thereafter because of the mental pressure created by the respondents, the petitioner became sick and informed about the sickness of the petitioner to the respondents through his daughter and sent a certificate of sickness under UPC and therefore, the charge of absenteeism is also not proved. I say that if the documents produced at Annexure-N is seen, it creates about the genuine claim of the petitioner as the petitioner has taken treatment fro Ayurvedic Doctor that too from 29.03.2006 and same does not say about any visit on 28/03/2006 and the certificate issued by the Doctor subsequent to the receipt of the suspension order i.e. 05/04/2006. Therefore, it appears that the petitioner has created these documents to show that on account of sickness, he was absent from duty. True and correct fact is that since the petitioner was caught embezzling of fund and remained absent unauthorized. 8. With reference to paragraph 3.7 of the petition, I deny that the Inquiry Officer did not consider the statement made by Meenaben and her husband before the police authority. I say that not only the Inquiry Officer but the Disciplinary Authority had also considered these statements. I say that even these submissions do not support the petitioner and it supports the case of the bank that the petitioner had given an amount of Rs. 10 lakhs to the borrower at Paldi without depositing the said amount in the Sanjivani Road Branch and without following due procedure and without securing the interest of the bank. I say that the witnesses confirmed that the petitioner had paid Rs. 10 lakhs to the borrower at Paldi against the cheque of Rs. 14.50 lakhs without completing the norms of the bank and depositing the said amount with the Sanjivani Road branch as same were collected from other two branches under the transit head. I say that the witnesses confirmed that the petitioner had paid Rs. 10 lakhs to the borrower at Paldi against the cheque of Rs. 14.50 lakhs without completing the norms of the bank and depositing the said amount with the Sanjivani Road branch as same were collected from other two branches under the transit head. Therefore, it was obligatory on the part of the petitioner to complete the transaction first by depositing the said amount in its account and thereafter only it could have been given to the borrower after following the norms of the bank. The petitioner ought not to have handed over the amount other than at branch place; more particularly when the amount was in transit. I say that the petitioner had made payment of Rs. 10 lakhs even before debiting the loan amount in the accounts of the borrower and thereby had breached the norms of the bank at the threat of the bank's interests. Thus the petitioner had acted against the interest of the bank. 9. With reference to paragraphs 3.8 to 3.9 of the petition, I deny that the Inquiry Officer and the Disciplinary Authority did not consider the statements given by the borrower and the police report. I say that neither the statements nor the police report support the case of the petitioner that the petitioner had followed the banking norms. I say that since the Inquiry Officer and the Disciplinary Authority had held the petitioner guilty, the petitioner is making bald allegations that witness statements have not been considered. I say that even the police report suggests that the petitioner did not follow the banking norms while making payment to the borrower. I deny that the Disciplinary Authority as well as the Appellate Authority did not consider that the Inquiry Officer has conducted the inquiry in violation of the order passed by this Hon'ble Court and in violation of the rules of inquiry and in violation of the principles of natural justice. I say that the petitioner did not object the decision of the Inquiry Officer to consider the statements of the borrowers given to the police to be taken into consideration and inquiry and therefore, now the petitioner cannot take objections against the same at a belated stage. 10. With reference to paragraph 4(a) of the petition, I say that it was the petitioner to procure presence of his witnesses. 10. With reference to paragraph 4(a) of the petition, I say that it was the petitioner to procure presence of his witnesses. I say that the dates were given as desired by the petitioner and even though the witness were contacted on phone and requests were made to them as also the notices were served in time, Neither the witness remained present before the Inquiry Officer nor was any request being made on behalf of the witnesses to adjourn the proceedings or to accommodate the witnesses and/or for specific date. I say that the petitioner did not make any effort to secure presence of the witnesses and had agreed to the suggestion made by the Inquiry Officer to consider the statements given before the police authority. The petitioner has agreed to the suggestions and to consider statements given before the police authority which have been taken on record and have been considered at the inquiry proceedings. I say that the petitioner did not challenge the decision of the Inquiry Officer and had willingly participated in the proceedings. The petitioner was given every opportunity to present his defence witnesses. The enquiry conducted by the Enquiry Officer is legal and is in terms of the principles of natural justice. 11. With reference to paragraph 4(b) of the petition, I say that not only the Inquiry Officer but also the Disciplinary Authority had also considered the statement of the petitioner's witness given before the police authority and taken into record. I say that the statements given before the police authority does not suggest that the petitioner had followed the banking norms and had deposited the amount collected from the said two branches namely Shastri Park Branch and Mahalaxmi Branch at Paldi of the respondent under the transit head. I say that the petitioner was to first deposit the amount with his branch and after debiting the cheque only he could have handed over the amount to the borrower. I say that the petitioner ought not to have parted with the money before fulfilling the mandatory requirement under the banking law and the procedure laid down by the respondent bank. The petitioner knowing fully well that and with all responsibility did not adhere to the banking practice, procedure and guidelines of the respondent No. 2 and thereby had committed serious misconduct. The petitioner knowing fully well that and with all responsibility did not adhere to the banking practice, procedure and guidelines of the respondent No. 2 and thereby had committed serious misconduct. I deny that the finding of the Inquiry Officer is perverse and requires to be interfered with by the Hon'ble Court as being illegal, arbitrary and bad in law. 15. With reference to paragraph 4(f) of the petition, I say that the standard of proof under the criminal law jurisprudence and in the service jurisprudence are not the same. Under the criminal law the standard of proof is beyond reasonable doubt coupled with the intention mentioned etc whereas in the service law the standard of proof is profoundness of probabilities and also to be seen whether any rules, regulations and/or instructions issued by the higher authorities are breached voluntarily or by utter negligence. In the present case, the petitioner deliberately and willfully did not adhere to the banking procedure, rules, regulations and instructions of borrowing cash from one branch to another branch. The cash withdrawn and/or collected from one branch was under the transit head and it was incumbent and after debiting the cheque and clearance of the same and after proper entries in the records only he ought to have parted the money to the borrower. Merely sanctioning of cash credit facility and/or term loan to the borrower does not authorize the Manager to part with the money without following due procedure of the bank. I say that the borrower had made payment to escape from the prosecution which is also crystal clear from the borrower's statement. I say that even the report given by the Investigation Officer also makes it crystal clear that since the bank was to take disciplinary actions against the petitioner compelled the borrower to return the amount and it is also stated in the report that the petitioner has not deposited the cash withdrawn from other branch under the transit head in spite of a day and so as to the deficit of Rs. 10 lakhs in the bank account. Under these circumstances, the petitioner compelled the borrower to return the amount given by the petitioner unauthorized. 10 lakhs in the bank account. Under these circumstances, the petitioner compelled the borrower to return the amount given by the petitioner unauthorized. It is also stated in the report that the petitioner was to make payment to the borrower in the bank, however, had parted with the same in breach of the banking norms and the department inquiry is being initiated against the petitioner for the breach. I deny that neither the inquiry officer nor the Disciplinary Authority was considered the defence statement given before the police and the police report and therefore, the impugned orders of the Appellate Authority as well as the Disciplinary Authority require to be quashed and set aside by this Hon'ble Court. 16. With reference to paragraph 4(g) of the petition, I deny that the charge of embezzlement is not proved in view of the fact that the money is deposited by M/s. Shree Vinayak Trading Company. I say that there was no reason for the petitioner to hand over the cash to the borrower without depositing the same in his branch as the money was collected under the transit head. The petitioner ought to have handed over the cash to the borrower only after completing required formalities howsoever urgency expressed by the borrower. Therefore, it is presumed that the petitioner had parted with money to the borrower for his personal use and/or he had gained benefit by not following the banking norms at the cost of bank's interest. I deny that there is no embezzlement of the funds as the amount was returned within 3 days by the borrower. I say that even if the amount is returned within 3 days by the borrower, the fact remains that the amount was given to the borrower without following due procedure of banking norms and that satisfied the ingredients and/or definition of embezzlement even it would be of a temporary embezzlement it remains that the fund was diverted from the bank to the borrower without following due procedure of the bank and the same was used by the borrower with the connivance of the petitioner and therefore, it cannot be said that the charge of embezzlement is not proved. It was dishonest misappropriation at the hands of the petitioner and he diverted the fund knowing fully well his action is de-horse the banking procedure and requirement and therefore, the charge of embezzlement is proved. It was dishonest misappropriation at the hands of the petitioner and he diverted the fund knowing fully well his action is de-horse the banking procedure and requirement and therefore, the charge of embezzlement is proved. I say that even in the case of theft, in spite of recovery of articles, the offence of theft remains as it is. Merely recovery of the articles or money just being theft does not reverse the offence of theft and discharge the accused. Therefore, merely the amount is being repaid by the borrower does not absolve the petitioner from the charge or embezzlement of the funds of the bank. I deny that the petitioner has not misappropriated the money of the bank and had not used it for personal gain. I deny that the money was given in routine business transaction to facilitate the customer and therefore, the charge against the petitioner is not proved. I deny that the Inquiry Officer did not consider the above aspect stated in the defence brief. I deny that the order passed by the Disciplinary Authority in pursuance of inquiry report and order passed by the Appellate Authority confirming the order is illegal, arbitrary and bad in law and same deserves to be quashed and set aside by this Hon'ble Court." 8. Having heard the learned counsel appearing for the parties and having considered the materials on record, the only question that falls for my consideration is whether the authority committed any error in passing the order of compulsory retirement. 9. The statement of the Article of charge against the petitioner reads as under: "Shri G.R. Parmar, while working as Manager (Incumbent Incharge) at BO: Sanjivani Road, Ahmedabad is alleged to have committed the following lapses/irregularities:- Article I He received/collected huge amount in cash from BO: Shastri Park and BO: Mahalaxmi, Paldi for office use under debit of their Remittance in Transit head and thereafter unauthorisedly absented himself from his duties without depositing the said amount at his branch, thereby, making embezzlement of bank's funds. Thus, Sh. G.R. Parmar failed to take all possible steps to ensure and protect the interest of the bank and did not discharge his duties with utmost integrity, honesty, devotion and diligence, which constitute misconduct in terms of Regulation 3(1), 13(1) read with Regulation 24 of Punjab National Bank Officer Employees' (Conduct) Regulations, 1977. " 10. Thus, Sh. G.R. Parmar failed to take all possible steps to ensure and protect the interest of the bank and did not discharge his duties with utmost integrity, honesty, devotion and diligence, which constitute misconduct in terms of Regulation 3(1), 13(1) read with Regulation 24 of Punjab National Bank Officer Employees' (Conduct) Regulations, 1977. " 10. The charge reads as under: "Charge No. 1 On 28.03.2006, Sh. Parmar submitted a request to the Manager, BO: Shastri Park, Ahmedabad for remittance of Rs. 7 lacs in cash to meet the requirement of BO: Sanjivani Road, Ahmedabad and himself received/collected the amount of Rs. 7 lacs from BO: Shastri Park, Ahmedabad to the debit of their remittance in Transit head. On the same day, he submitted another request to the Manager, BO: Mahalaxmi, Paldi for remittance of Rs. 3 lacs to meet the requirement of BO: Sanjivani Road, Ahmedabad and himself collected/received the amount of Rs. 3 lacs from BO: Mahalaxmi, Paldi to the debit of their remittance in Transit head. On 28.03.2006 Sh. Parmar did not deposit at BO: Sanjivani Road, Ahmedabad the said aggregate amount of Rs. 10 lacs received by him in cash for office use from the said two branches and unauthorisedly absented himself from his duties thereby making embezzlement of banks' funds." 11. I take note of the fact that the charge, referred to above, as such has not been denied by the petitioner. However, the only argument canvassed is that even if the entire charge is believed to be true, still it cannot be said that the petitioner was guilty of embezzlement of the funds of the Bank. 12. The learned counsel invited my attention to the meaning of the term "embezzlement" as explained in Law Lexicon: "Embezzle, Divert funds fraudulently to one's own use "when a clerk or a servant, or person employed in the capacity of a clerk or servant, commits theft by converting any chattel, money or valuable security delivered to or received, or taken into possession by him for or in the name or on account of his master or employer, his offence is called is "embezzlement" (Steph. Cr. Law Ch. 36 see Theft). Dishonest misappropriation of property by a person, who comes in possession thereof lawfully. [S. 126 Expln. III (C) Indian Evidence Act]. Cr. Law Ch. 36 see Theft). Dishonest misappropriation of property by a person, who comes in possession thereof lawfully. [S. 126 Expln. III (C) Indian Evidence Act]. Embezzlement and larceny or theft, Embezzlement is a fraudulent appropriate of another's property by a person to whom it has been entrusted or into whose hands it has lawfully come. It differs from Larceny or theft in that the original taking of the property was lawful or with the consent of the owner, while in larceny or theft the felonious intent must have existed at the time of the taking." 13. The offence of criminal breach of trust, as defined under Section 405 of the Indian Penal Code, is similar to the offence of embezzlement under the English Law. The following ingredients are necessary to attract the operation of Section 405: "(a) The accused must be entrusted with property or dominion over the property. (b) The person so entrusted (i.e., the accused) must:- (i) Dishonesty misappropriate, or convert to his own use, that property. (ii) Dishonesty use or dispose of that property or willfully suffer any other person to do so in violation of:- (1) Any direction of law, prescribing the mode, in which such trust is to be discharged. (2) Any legal contract made touching the discharge of such trust." 14. It appears from the materials on record that the Bank also lodged a criminal complaint in writing against the petitioner addressed to the Police Inspector of the concerned police station for the offence of criminal breach of trust as referred to above. However, after a preliminary inquiry, and more particularly, having regard to the statement of Meenaben i.e. the borrower of the amount in question, the police thought fit not to register the F.I.R. and it appears that the Bank also did not pursue the matter further so far as the criminal prosecution is concerned. In such circumstances, I need not go into the issue whether any offence of criminal breach of trust could be said to have been committed or not. At the same time, mere use of the word embezzlement, by itself, could not be said to have caused any prejudice to the petitioner. In such circumstances, I need not go into the issue whether any offence of criminal breach of trust could be said to have been committed or not. At the same time, mere use of the word embezzlement, by itself, could not be said to have caused any prejudice to the petitioner. Of course, the argument in the case in hand is that there could not have been a charge-sheet of embezzlement because the money was not retained or used by the petitioner in any manner, although the disbursement of the amount was not in accordance with the rules and regulations. Perhaps, the Bank understood the same as an embezzlement. However, the charge was very clear and the petitioner also understood the same, and therefore, it could not be said that on account of a defective charge, the inquiry should be held to be vitiated. 15. Let me for the time being accept the argument of the learned counsel appearing for the petitioner. Still there is no escape from the fact that the petitioner acted or discharged his duties in a very irresponsible manner and that too being a Branch Manager of a Nationalized Bank. It is just very unpalatable to accept that the petitioner could have handed over Rs. 10 lac to the borrower in transit without first depositing the same in his branch having borrowed the same from the other two branches i.e. Shastri Park and Mahalaxmi at Paldi, Ahmedabad respectively. 16. In my view, the authorities were justified in initiating the inquiry and passing an order of compulsory retirement. 17. So far as the argument as regards the violation of the principles of natural justice is concerned, I am of the view that after this Court ordered the Inquiry Officer to conduct a de novo inquiry with a view to permit the petitioner to adduce evidence in defence, more particularly, to examine the defence witness, the petitioner was unable to examine Meenaben, despite being given adequate opportunity to do so. In such circumstances, it cannot be said that no opportunity was given. 18. Let me test the argument of the learned counsel slightly from a different perspective. Let me assume that Meenaben would have deposed as a defence witness, and would also have reiterated what she had stated before the police. Meenaben would have at best deposed that the money was received by her from the petitioner. 18. Let me test the argument of the learned counsel slightly from a different perspective. Let me assume that Meenaben would have deposed as a defence witness, and would also have reiterated what she had stated before the police. Meenaben would have at best deposed that the money was received by her from the petitioner. Besides that Meenaben could not have deposed anything i.e. whether the petitioner had acted in accordance with the rules and regulations of the Bank. The norms of the Bank could not have been explained by Meenaben. The only idea to examine Meenaben could be to establish that there was no misappropriation or embezzlement of the funds of the Bank. Therefore, the examination of Meenaben otherwise also would not have helped the petitioner. There is no good or reasonable explanation coming forth from the petitioner as to why he acted in such a manner. Why he had to borrow the money in cash from the two branches with haste and then pay the same directly in transit to the borrower without first depositing the money in his Bank i.e. in his branch and thereafter disbursing the same in favour of the borrower. It appears to me from the materials on record that the petitioner saw to it that the borrower deposits the money within three days from the date of disbursement with a view to save himself from the criminal prosecution. 19. In the matter of B.C. Chaturvedi vs. Union of India and Others, (1995) 6 SCC 749 , the Supreme Court in paragraphs 12, 17 and 18 held as under: "12. Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. Power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the eye of the Court. When an inquiry is conducted on charges of misconduct by a public servant, the Court/Tribunal is concerned to determine whether the inquiry was held by a competent officer or whether rules of natural justice are complied with. Whether the findings or conclusions are based on some evidence, the authority entrusted with the power to hold inquiry has jurisdiction, power and authority to reach a finding of fact or conclusion. But that finding must be based on some evidence. Whether the findings or conclusions are based on some evidence, the authority entrusted with the power to hold inquiry has jurisdiction, power and authority to reach a finding of fact or conclusion. But that finding must be based on some evidence. Neither the technical rules of Evidence Act nor of proof of fact or evidence as defined therein, apply to disciplinary proceeding. When the authority accepts that evidence and conclusion receives support therefrom, the disciplinary authority is entitled to hold that the delinquent officer is guilty of the charge. The Court/Tribunal in its power of judicial review does not act as appellate authority to re-appreciate the evidence and to arrive at its own independent findings on the evidence. The Court/Tribunal may interfere where the authority held the proceedings against the delinquent officer in a manner inconsistent with the rules of natural justice or in violation of statutory rules prescribing the mode of inquiry or whether the conclusion or finding reached by the disciplinary authority is based on no evidence. If the conclusion or finding be such as no reasonable person would have ever reached, the Court/Tribunal may interfere with the conclusion or the finding, and mould the relief so as to make it appropriate to the facts of each case. 17. The next question is whether the Tribunal was justified in interfering with the punishment imposed by the disciplinary authority. A Constitution Bench of this Court in State of Orissa vs. Bidyabhushan Mohapatra held that having regard to the gravity of the established misconduct, the punishing authority had the power and jurisdiction to impose punishment. The penalty was not open to review by the High Court under Article 226. If the High Court reached a finding that there was some evidence to reach the conclusion, it became un-assessable. The order of the Governor who had jurisdiction and unrestricted power to determine the appropriate punishment was final. The High Court had no jurisdiction to direct the Governor to review the penalty. It was further held that if the order was supported on any finding as to substantial misconduct for which punishment "can lawfully be imposed", it was not for the Court to consider whether that ground alone would have weighed with the authority in dismissing the public servant. It was further held that if the order was supported on any finding as to substantial misconduct for which punishment "can lawfully be imposed", it was not for the Court to consider whether that ground alone would have weighed with the authority in dismissing the public servant. The Court had no jurisdiction, if the findings prima facie made out a case of misconduct, to direct the Governor to reconsider the order of penalty. This view was reiterated in Union of India vs. Sardar Bahadur. It is true that in Bhagat Ram vs. State of Himachal Pradesh, a Bench of two Judge of this Court, while holding that the High Court did not function as a court of appeal, concluded that when the finding was utterly perverse, the High Court could always interfere with the same. In that case, the finding was that the appellant was to supervise felling of the trees which were not hammer marked. The Government had recovered from the contractor the loss caused to it by illicit felling of trees. Under those circumstances, this Court held that the finding of guilt was perverse and unsupported by evidence. The ratio, therefore, is not an authority to conclude that in every case the Court/Tribunal is empowered to interfere with the punishment imposed by the disciplinary authority. In Rangaswami vs. State of Tamil Nadu, a Bench of three Judges of this Court, while considering the power to interfere with the order of punishment, held that this Court, while exercising the jurisdiction under Article 136 of the Constitution, is empowered to alter or interfere with the penalty; and the Tribunal had no power to substitute its own discretion for that of the authority. It would be seen that this Court did not appear to have intended to lay down that in no case, the High Court/Tribunal has the power to alter the penalty imposed by the disciplinary or the appellate authority. The controversy was again canvassed in State Bank of India's case, where the Court elaborately reviewed the case law on the scope of judicial review and powers of the Tribunal in disciplinary matters and nature of punishment. On the facts in that case, since the appellate authority had not adverted to the relevant facts, it was remitted to the appellate authority to impose appropriate punishment. 18. On the facts in that case, since the appellate authority had not adverted to the relevant facts, it was remitted to the appellate authority to impose appropriate punishment. 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." 20. In Apparel Export Promotion Council vs. A.K. Chopra, (1999) 1 SCC 759 , the Supreme Court reiterated the otherwise well settled principles of law on the scope of judicial review of disciplinary action taken by the employer and laid down the following propositions:- "It is a settled position that in departmental proceedings, the disciplinary authority is the sole judge of facts and in case an appeal is presented to the appellate authority, the appellate authority has also the power/and jurisdiction to re-appreciate the evidence and come to its own conclusion, on facts, being the sole fact-finding authorities. Once findings of fact, based on appreciation of evidence are recorded, the High Court in writ jurisdiction may not normally interfere with those factual findings unless it finds that the recorded findings were based either on no evidence or that the findings were wholly perverse and/or legally untenable. The adequacy or inadequacy of the evidence is not permitted to be canvassed before the High Court. Since the High Court does not sit as an appellate authority over the factual findings recorded during departmental proceedings, while exercising the power of judicial review, the High Court cannot, normally speaking, substitute its own conclusion, with regard to the guilt of the delinquent, for that of the departmental authorities. Since the High Court does not sit as an appellate authority over the factual findings recorded during departmental proceedings, while exercising the power of judicial review, the High Court cannot, normally speaking, substitute its own conclusion, with regard to the guilt of the delinquent, for that of the departmental authorities. Even in so far as imposition of penalty or punishment is concerned, unless the punishment or penalty imposed by the disciplinary or the departmental appellate authority, is either impermissible or such that it shocks the conscience of the High Court, it should not normally substitute its own opinion and impose some other punishment or penalty. Further, it is a well-settled principle that even though judicial review of administrative action must remain flexible and its dimension not closed, yet the court, in exercise of the power of judicial review, is not concerned with the correctness of the findings of fact on the basis of which the orders are made so long as those findings are reasonably supported by evidence and have been arrived at through proceedings which cannot be faulted with for procedural illegalities or irregularities which vitiate the process by which the decision was arrived at. Judicial review, is directed not against the decision, but is confined to the examination of the decision-making process. Judicial review, not being an appeal from a decision, but a review of the manner in which the decision was arrived at, the court, while exercising the power of judicial review, must remain conscious of the fact that if the decision has been arrived at by the administrative authority after following the principles established by law and the rules of natural justice and the individual has received a fair treatment to meet the case against him, the court cannot substitute its judgment for that of the administrative authority on a matter which fell squarely within the sphere of jurisdiction of that authority." 21. In Om Kumar vs. Union of India, AIR 2000 SC 3689 , the Supreme Court traced the history of the principle of proportionality, referred to the propositions culled out in Union of India vs. C.G. Ganayutham, AIR 1997 SC 3387 , noticed the decision of the House of Lords in R. vs. Chief Constable of Sussesc Exp. In Om Kumar vs. Union of India, AIR 2000 SC 3689 , the Supreme Court traced the history of the principle of proportionality, referred to the propositions culled out in Union of India vs. C.G. Ganayutham, AIR 1997 SC 3387 , noticed the decision of the House of Lords in R. vs. Chief Constable of Sussesc Exp. International Trader's Ferry Ltd. (1999) 1 All ER 129, wherein the principles of Wednesbury and proportionality were almost equated and held that where the decision of an administrative authority is attacked being arbitrary, the principle of secondary review will have to be kept in mind. Paragraphs 28, 29, 66 to 71 of this judgment which theortises the law on the subject are reproduced 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." "29. The above principle of proportionality has been applied by the European Court to protect the rights guaranteed under the European Convention for the Protection of Human Rights and Fundamental Freedoms, 1950 and in particular, for considering whether restrictions imposed were restrictions which were necessary - within Articles 8 to 11 of the said Convention (corresponding to our Article 19(1) and to find out whether the restrictions imposed on fundamental freedoms were more excessive than required. (Handyside vs. UK (1976) 1 EHR 737) Articles 2 and 5 of the Convention contain provisions similar to Article 21 of our Constitution relating to life and liberty. The European Court has applied the principle of proportionality also to questions of discrimination under Article 14 of the Convention (corresponding to Article 14 of our Constitution). (Handyside vs. UK (1976) 1 EHR 737) Articles 2 and 5 of the Convention contain provisions similar to Article 21 of our Constitution relating to life and liberty. The European Court has applied the principle of proportionality also to questions of discrimination under Article 14 of the Convention (corresponding to Article 14 of our Constitution). (See European Administrative Law by J. Schwaze, 1992. Pp. 677-866)." "66. It is clear from the above discussion that in India where administrative action is challenged under Article 14 as being discriminatory, equals are treated unequally or un-equals are treated equally, the question is for the constitutional Courts as primary reviewing Courts to consider correctness of the level of discrimination applied and whether it is excessive and whether it has a nexus with the objective intended to be achieved by the Administrator. Here the Court deals with the merits of the balancing action of the Administrator and is in essence, applying proportionality and is a primary reviewing authority." "67. But where, an administrative action is challenged as arbitrary under Article 14 on the basis of Royappa (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 vs. Jalgaon Municipal Council, (1991) 3 SCC 91 : 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 G.B. Mahajan vs. Jalgaon Municipal Council, (1991) 3 SCC 91 : 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 vs. Union of India, (1994) 6 SCC 651 : 1994 AIR SCW 3344 : AIR 1996 SC 11 , Indian Express Newspapers vs. Union of India, (1985) 1 SCC 641 : AIR 1986 SC 515, Supreme Court Employees' Welfare Association vs. Union of India, (1989) 4 SCC 187 : AIR 1990 SC 334 : 1990 Lab IC 324 and U.P. Financial Corporation vs. GEM CAP (India) Pvt. Ltd. (1993) 2 SCC 299 : 1993 SC 1435, while judging whether the administrative action is arbitrary under Art. 14 (i.e. otherwise than being discriminatory), this Court has confined itself to a Wednesbury review always." "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 because 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 rate cases where there has been long delay in the time taken by the disciplinary proceedings and in the time taken in the Courts and (in) such extreme or rate cases can the Court substitute its own view as to the quantum of punishment." 22. In Regional Manager U.P. SRTC vs. Hoti Lal, (2003) 3 SCC 605 , the Supreme Court outlined the mode to be adopted for determining whether the punishment imposed by the disciplinary authority is shockingly disproportionate and observed as under: "The Court or tribunal while dealing with the quantum of punishment has to record reasons as to why it is felt that the punishment was not commensurate with the proved charges. The scope for interference is very limited and restricted to exceptional cases. The scope for interference is very limited and restricted to exceptional cases. In the impugned order of the High Court no reasons whatsoever have been indicated as to why the punishment was considered disproportionate. Failure to give reasons amounts to denial of justice. A mere statement that it is disproportionate would not suffice. It is not only the amount involved but the mental set-up, the type of duty performed and similar relevant circumstances which go in to the decision-making process while considering whether the punishment is proportionate or disproportionate. If the charged employee holds a position of trust where honesty and integrity are inbuilt requirements of functioning, it would not be proper to deal with the matter leniently. Misconduct in such cases has to be dealt with iron hands. Where the person deals with public money or is engaged in financial transactions or acts in a fiduciary capacity, the highest degree of integrity and trustworthiness is a must and unexceptional." (Underlining is ours) 23. In Director General, RPF vs. Ch. Sai Babu, (2003) 4 SCC 331 , the Supreme Court reiterated that the High Court should ordinarily not interfere with the discretion exercised by the disciplinary authority in the matter of imposition of punishment and observed: "Normally, the punishment imposed by a disciplinary authority should not be disturbed by the High Court or a tribunal except in appropriate cases that too only after reaching a conclusion that the punishment imposed is grossly or shockingly disproportionate, after examining all the relevant factors including the nature of the charges proved, the past conduct, penalty imposed earlier, the nature of duties assigned having due regard to their sensitiveness, exactness expected and discipline required to be maintained, and the department/establishment in which the delinquent person concerned works." 24. A Division Bench of this Court has, in an unreported decision rendered in the matter of J.H. Joshi vs. State of Gujarat, Special Civil Application No. 5691 of 2002, decided on 10th May 2005, observed as under: "The doctrine of proportionality and Wednesbury rule evolved in England in Council of Civil Services Union vs. Minister for Civil Services, (1983) 1 AC 768 and Associated Provincial Picture Houses Limited vs. Wednesbury Corporation, 1948 2 All ER 680 have been applied by the Courts in India in various decisions. In Union of India vs. C.G. Ganayutham, AIR 1997 SC 3387 , the Supreme Court considered the ambit and scope of the doctrine of proportionality and Wednesbury rule in the light of various judicial pronouncements and laid down the following propositions: "(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 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 principles. (3)(a) As per Bugdaycay, Brind and Smith, as long as the European Human Rights Convention (Contention) 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 are involved, is that the Courts/Tribunals will only play a secondary role while the primary judgment as to reasonableness will remain with the executive or administrative authority. (4)(a) The position in our country in administrative law, where no fundamental freedoms are involved, is that the Courts/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 the 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." 25. I may also refer to and rely upon the decision of the Supreme Court in the case of State of Patiala and Others vs. S.K. Sharma, AIR 1996 (2) SC 1669. The Supreme Court has explained certain basic principles of natural justice keeping in view the context of disciplinary inquiry and orders of punishment imposed by an employer upon the employee. In para 32, the principles have been summarized as under: "We may summarise the principles emerging from the above discussion. These are by no means intended to be exhaustive and are evolved keeping in view the context of disciplinary enquiries and orders of punishment imposed by an employer upon the employee: (1) An order passed imposing a punishment on an employee consequent upon a disciplinary/ departmental enquiry in violation of the rules/regulations/statutory provisions governing such enquiries should not be set aside automatically. The Court or the Tribunal should enquire whether (a) the provision violated is of a substantive nature or (b) whether it is procedural in character. (2) A substantive provision has normally to be complied with as explained hereinbefore and the theory of substantial compliance or the test of prejudice would not be applicable in such a case. (3) In the case of violation of a procedural provision, the position is this: procedural provisions are generally meant for affording a reasonable and adequate opportunity to the delinquent officer/employee. They are, generally speaking, conceived in his interest. Violation of any and every procedural provision cannot be said to automatically vitiate the enquiry held or order passed. (3) In the case of violation of a procedural provision, the position is this: procedural provisions are generally meant for affording a reasonable and adequate opportunity to the delinquent officer/employee. They are, generally speaking, conceived in his interest. Violation of any and every procedural provision cannot be said to automatically vitiate the enquiry held or order passed. Except cases falling under no notice, no opportunity and no hearing categories, the complaint of violation of procedural provision should be examined from the point of view of prejudice, viz. whether such violation has prejudiced the delinquent officer/employee in defending himself properly and effectively. If it is found that he has been so prejudiced, appropriate orders have to be made to repair and remedy the prejudice including setting aside the enquiry and/or the order of punishment. If no prejudice is established to have resulted therefrom, it is obvious, no interference is called for. In this connection, it may be remembered that there may be certain procedural provisions which are of a fundamental character, whose violation is by itself proof of The Court may not insist on proof of prejudice in such cases. As explained in the body of the judgment, take a case where there is a provision g expressly providing that after the evidence of the employer/government is over, the employee shall be given an opportunity to lead defence in his evidence, and in a given case, the enquiry officer does not give that opportunity in spite of the delinquent officer/employee asking for it. The prejudice is self-evident. No proof of prejudice as such need be called for in such a case. To repeat, the test is one of prejudice, i.e., whether the person has received a fair hearing considering all things. Now, this very aspect can also be looked at from the point of view of directory and mandatory provisions, if one is so inclined. The principle stated under (4) herein-below is only another way of looking at the same aspect as is dealt with herein and not a different or distinct principle. (4)(a) In the case of a procedural provision which is not of a mandatory characters the complaint of violation has to be examined from the standpoint of substantial compliance. Be that as it may the order passed in violation of such a provision can be set aside only where such violation has occasioned prejudice to the delinquent employee. (4)(a) In the case of a procedural provision which is not of a mandatory characters the complaint of violation has to be examined from the standpoint of substantial compliance. Be that as it may the order passed in violation of such a provision can be set aside only where such violation has occasioned prejudice to the delinquent employee. (b) In the case of violation of a procedural provisional which is of a mandatory character, it has to be ascertained whether the provision is conceived in the interest of the person proceeded against or in public interest. If it is found to be the former, then it must be seen whether the delinquent officer has waived the said requirements either expressly or by his conduct. If he is found to have waived its then the order of punishment cannot be set aside on the ground of said violation. If, on the other hand, it is found that the delinquent officer/employee has not it or that the provision could no be waived by him, then the Court or Tribunal should make appropriate directions [include the setting aside of the order of punishment], keeping in mind the approach adopted by the Constitution Bench in B. Karunkar (1994 AIR SCW 1050). The ultimate test is always the same viz. test of prejudice or the test of fair hearing, as it may be called. (5) Where the enquiry is not governed by any rules/regulations/statutory provisions and the only obligation is to observe the principles of natural justice - or, for that matter, wherever such principles are held to be implied by the very nature and impact of the order/action the Court or the Tribunal should make a distinction between a total violation of natural justice [Rule of audi alteram] and violation of a facet of the said rule, as explained in the body of the judgment. In other words, a distinction must be made between no opportunity and no adequate opportunity, i.e. between no notice/no hearing, no fair hearing. (a) In the case of former, the order passed would undoubtedly be invalid [one may call it "void" or a nullity if one chooses to]. In such cases, normally, liberty will be reserved for the Authority to take proceedings afresh according to law, i.e. in accordance with the said rule [audi alteram partem]. (a) In the case of former, the order passed would undoubtedly be invalid [one may call it "void" or a nullity if one chooses to]. In such cases, normally, liberty will be reserved for the Authority to take proceedings afresh according to law, i.e. in accordance with the said rule [audi alteram partem]. (b) But in the latter case, the effect of violation [of a facet of the rule of audi alteram] has to be examined from the standpoint of prejudice; in other word in other words, what the Court or Tribunal has to see is whether in the totality of the circumstances, the delinquent officer/employee did or did not have a fair hearing and the orders to be made shall depend upon the answer to the said query. [It is made clear that this principle (No. 5) does not apply in the case of rule against bias, the test in which behalf are laid down elsewhere.] (6) While applying the rule of audi alteram partem [the primary principle of natural justice] the Court/Tribunal/Authority must always bear in mind the ultimate and over-riding objective underlying the said rule, viz. to ensure a fair hearing and to ensure that there is no failure of justice. It is this objective which should guide them in applying the rule to varying situations that arise before them. (7) There may be situations where the interests of state or public interest may call for a curtailing of the rule of audi alteram partem. In such situations, the Court may have to balance public/State interest with the requirement of natural justice and arrive at an appropriate decision." 26. I have reached to the conclusion, and more particularly, considering the fact that the petitioner was holding the post of a Branch Manager of a Nationalized Bank who ought to have discharged his duties with utmost diligence and sense of responsibility, no fault could be found with the authorities in initiating the departmental inquiry, and thereafter, on the basis of the report of the Inquiry Officer and other materials imposing the penalty of compulsory retirement. After all, being a Branch Manager of a Nationalized Bank, the petitioner was dealing with public money. His overall conduct, after the disbursement of the amount also, was very unnatural and points a finger towards his culpable mental state. 27. For the foregoing reasons, this writ application fails and is hereby rejected. After all, being a Branch Manager of a Nationalized Bank, the petitioner was dealing with public money. His overall conduct, after the disbursement of the amount also, was very unnatural and points a finger towards his culpable mental state. 27. For the foregoing reasons, this writ application fails and is hereby rejected. Notice is discharged.