ORDER : Rohit Arya, J. 1. Petitioner taking exception to the order (Annexure P/1) dated 5/12/2014 passed by the disciplinary Authority-respondent no.4 imposing major penalty of dismissal from service; order dated 22/4/15 (Annexure P/2) passed by the appellate Authority-respondent no.3 substituting the penalty of compulsory retirement for dismissal from service, as well as, to the rejection of mercy appeal by respondent no.2 vide order dated 17/7/15, has filed the instant petition under Articles 226 and 227 of the Constitution of India. 2. Facts necessary for disposal of this petition are in narrow compass. 3. Petitioner, while serving as a Head Constable, on 8/5/2014 was assigned the duty of custody of accused Pradeep Rathore with the assistance of other three constables namely Kanti Raj (Constable No. 37), Naresh Singh (Constable No. 166) and Wasim Akhtar (Constable No. 1890). On the aforesaid day, at about 9 am, accused Pradeep Rathore was taken to J.A. Hospital for admission from Central Jail, Gwalior. The accused had undergone surgical operation on 9/5/14 and thereafter was shifted to General Ward. The petitioner and said three constables continued to be in charge of custody of the accused. On 13/5/2014, during the period 3 am to 6 am, accused Pradeep Rathore fled away from the General Ward. As a result, apart from registration of case against Pradeep Rathore as Crime Case No. 328/14 for the offences punishable under sections 224 and 225 of the IPC, respondent no.4 took a decision to initiate disciplinary proceedings against the petitioner and the three constables. Accordingly, charge-sheet was issued to all the four persons and reply was solicited. Upon consideration of the reply, on 10/7/14, the disciplinary Authority decided to appoint Presenting Officer and Inquiry Officer for enquiry. Thereafter, a joint enquiry was held. The Enquiry Officer found that at the relevant time, Naresh Singh (Constable No. 166) was on duty and due to his lapse or negligence, the accused had fled away. He had not informed either the fellow constables or the Head Constable before going to respond the call of nature, during which period, the accused had fled away i.e. between 3 am to 6 am. Under these circumstances, neither the other two constables, nor the petitioner/head constable could be held responsible for the act of fleeing away of accused Pradeep Rathore. Under these circumstances, neither the other two constables, nor the petitioner/head constable could be held responsible for the act of fleeing away of accused Pradeep Rathore. Consequently, the Enquiry Officer did not find the charge levelled against the petitioner as proved, as well as, the other two constables but found the charges proved against Naresh Singh. Thereafter, he was dismissed from service. 4. The disciplinary Authority, however, upon appreciation of the evidence and other material placed on record, concluded that findings recorded by the Enquiry Officer were not on correct appreciation of evidence and, therefore, opined that the findings are erroneous and consequently recorded its disagreement thereupon and issued notice (Annexure P/9) dated 30/9/14 to the petitioner and other two constables. Reply thereto was submitted by the petitioner on 6/10/14. Upon consideration of the reply, the impugned punishment order was passed dismissing the petitioner from service, which has been modified by the appellate Authority substituting penalty of compulsory retirement for the same. 5. Learned counsel for the petitioner has raised following contentions:- (i) Before the proceedings were initiated under Rule 18 of the M.P. Civil Services (Classification, Control and Appeal) Rules, 1966 (for short "the Rules of 1966"), neither the Governor nor the competent Authority has passed any order for joint enquiry. Therefore, the enquiry so held stands vitiated. In this regard, learned counsel has referred to judgments in the cases of Jagdish v. State of M.P. & Others 2009(2) MPLJ 458 , Jeevanram v. State of M.P. & Others 2010 (4) MPLJ SN 4 and the order passed in W.P. No. 4962/2007 Vinay Sharma v. State of MP &Ors. (ii) The disagreement note suggests that the disciplinary Authority had already made up its mind and notices so issued in fact and in effect tantamount to post-decisional hearing. Hence, the impugned punishment based thereupon is bad in law. In this regard, learned counsel has relied upon Nilu v. M.P. State Electricity Board 2009 (2) MPLJ 632 . (iii) Petitioner has been subjected to discrimination in the matter of punishment, as on identical charges, other two constables namely Kanti Raj (Constable No.37) and Wasim Akhtar (Constable No. 1890) have been let off with penalty of with-holding one increment with cumulative effect, though Naresh Singh (Constable No. 166) has been visited with penalty of dismissal. (iii) Petitioner has been subjected to discrimination in the matter of punishment, as on identical charges, other two constables namely Kanti Raj (Constable No.37) and Wasim Akhtar (Constable No. 1890) have been let off with penalty of with-holding one increment with cumulative effect, though Naresh Singh (Constable No. 166) has been visited with penalty of dismissal. In this regard, learned counsel has relied upon judgment of the Apex Court in the case of State of Uttar Pradesh and others v. Raj Pal Singh (2010) 5 SCC 783. (iv) The appellate Authority has not applied its mind to the facts in hand while passing the impugned order (Annexure P/2). In this regard, learned counsel has relied upon judgment of Hon'ble the Supreme Court in the case of Kranti Associates (P) Ltd. v. Masood Ahmed Khan, (2010) 9 SCC 496 . (v) Even otherwise, by applying the Wednesbury principles of reasonableness and doctrine of proportionality, the punishment of compulsory retirement is disproportionate to the allegations levelled against the petitioner. The Authorities have not taken into consideration the measure, magnitude and degree of misconduct and further that no element of motive or mens rea or moral turpitude was involved. In this regard, reliance has been placed upon judgment of the Apex Court in the case of Chennai Metropolitan Water Supply And Sewerage Board and Others v. T.T. Murali Babu (2014)2 SCC 108. 6. Per contra Ms. Sudha Shrivastava, learned Panel Lawyer has made the following submissions:- (i) Respondent no.4 is un-disputedly the disciplinary Authority and competent to impose major penalties including dismissal. On the orders of respondent no.4, charge-sheets have been issued to the petitioner and other three constables. The replies submitted by them have been considered by respondent no.4 and it was decided by him to institute enquiry by appointing Enquiry Officer and Presenting Officer vide order dated 10/7/14. As such, there is no lack of authority in respondent no.4 in the matter of ordering such enquiry for common proceedings under Rule 18 of the Rules of 1966 as the provision contained therein authorizes the Authority competent to impose penalty of dismissal to order for joint enquiry. Hence, no exception can be taken to the joint enquiry held against the petitioner and other three constables. Hence, no exception can be taken to the joint enquiry held against the petitioner and other three constables. Even otherwise, there is no prejudice caused to the petitioner in the matter of enquiry held against him along with the three constables, as full opportunity was afforded and enquiry was held strictly in accordance with the procedure prescribed under Rule 14 of the Rules of 1966. (ii) The disagreement note prepared by the disciplinary Authority and notice issued to the petitioner no where indicated any proposed punishment so that it can be said that the Authority had expressed its mind to impose punishment and, therefore, contention advanced by learned counsel for the petitioner that the aforesaid notice was only a formality and tantamount to post - decisional hearing is misconceived and misdirected. In fact the disagreement note reflects proper application of mind and appreciation of evidence placed on record. Thereafter sufficient opportunity was given to the petitioner to respond to the views of disciplinary Authority on disagreement. (iii) The petitioner was holding the post of Head Constable, a higher Officer having control and supervision over the constables attached with him for the purpose of ensuring safe custody of accused Pradeep Rathore during his stay at J.A. Hospital, where he had undergone surgical operation. It was the duty of the petitioner not only to have a watch on the movement of accused Pradeep Rathore, but also to ensure full and effective co-ordination among the constables in the matter of periodical duty assigned for effective check on custody of the accused. Petitioner since was found lacking in his duty being an Officer-incharge and had not taken reasonable precautions which led to escape of the accused, therefore, major penalty has been imposed upon him. Petitioner cannot claim discrimination with constables Kanti Raj (Constable No. 3) and Wasim Akhtar (Constable No. 1890), who otherwise were newly recruited constables on compassionate grounds and did not have much experience in service. Therefore, no plea of parity can be raised. (iv) The disciplinary Authority and the appellate Authority both have applied their mind to the entire record, as well as, the contention raised by the petitioner and thereafter passed the impugned orders. Petitioner has not pointed out any such plea which has not been considered in the impugned orders, warranting interference under Article 226; an equitable jurisdiction with limited scope of judicial review. Petitioner has not pointed out any such plea which has not been considered in the impugned orders, warranting interference under Article 226; an equitable jurisdiction with limited scope of judicial review. (v) Considering the gravity of charges amounting to dereliction of duty and serious misconduct, the punishment of compulsory retirement, by no stretch of imagination, can be said to be disproportionate. Consequently, it is submitted that the petition sans merit and be dismissed. 7. Heard, counsel for the parties. 8. It is not in dispute that respondent no.4-Senior Superintendent of Police is the disciplinary Authority and competent to impose penalty of dismissal in relation to Head Constables and Constables. Respondent no.4 has served the charge-sheet upon the petitioner and other three constables and upon consideration of the reply has taken a decision to constitute enquiry against the petitioner, as well as, three constables and, accordingly, appointed the Presenting Officer and the Enquiry Officer. As such, the joint enquiry held against the petitioner cannot be faulted with, disputing the authority of respondent no.4. The judgment relied upon by the counsel for the petitioner in the case of Jagdish (Supra) is clearly distinguishable on facts. In that case, though the appointing Authority in relation to the petitioner therein i.e. Excise Officer was the State Government, but the Excise Commissioner had taken a decision to hold the joint enquiry and, therefore, he was not found to be competent to inflict the penalty of dismissal and, accordingly, the order of joint enquiry was quashed. The other judgment cited by the petitioner in the case of Vinay Sharma (Supra) is also of no assistance to the petitioner as the facts are again distinguishable. The Enquiry Officer did not find the charges proved against the petitioner, as well as, Constables Kantiraj and Wasim Akhtar while the same were found proved against Constable Naresh Singh. The disciplinary Authority/respondent no.4 while disagreeing with the findings of the Enquiry Officer has given reasons for the same. It be noted that respondent no.4 had not indicated the proposed penalty in the notice served upon the petitioner along with copy of the enquiry report. Law in this regard is well settled. The Hon'ble Supreme Court and various High Courts have taken exception to the notice issued by disciplinary Authority upon disagreement with the enquiry report, if the notice indicated the punishment likely to be imposed, christening the same as "post-decisional hearing". Law in this regard is well settled. The Hon'ble Supreme Court and various High Courts have taken exception to the notice issued by disciplinary Authority upon disagreement with the enquiry report, if the notice indicated the punishment likely to be imposed, christening the same as "post-decisional hearing". Under these circumstances, the principles of natural justice were found to have been violated. In this regard, learned counsel has placed reliance on the judgments rendered in the case of Punjab National Bank v. Kunj Behari Mishra ( AIR 1998 SC 2713 ) and Nilu (Supra). However, such is not the case in hand, as there is no mention of proposed penalty in the notice served upon the petitioner. Consequently, the contention that the impugned notice tantamount to postdecisional hearing cannot be countenanced and the same is, accordingly, rejected. 9. Now, the question arises as to whether the complaint of petitioner that he has been subjected to hostile discrimination in the matter of imposition of penalty, violating his fundamental rights under Articles 14 and 16 of the Constitution of India, is justified and/or further whether the penalty imposed is disproportionate to the charges levelled against him ? 10. Before addressing upon the aforesaid question, it is apposite to consider the charge levelled against the petitioner. The same are quoted below:- 1& canh iznhi jkBkSj dh lqj{kk esa ykijokgh cjrus ds QyLo:i vfHkj{kk ls Hkkxus dk volj nsdj vius dRrZO;ksa ds izfr ?kksj ykijokgh ,oa mnklhurk iznf'kZr djukA 2& mijksDrkuqlkj d`R; dj flfoy lsok vkpj.k fu;eksa ,oa iqfyl jsX;qysa'ku ds iSjk&64 dk mYya?ku djukA 11. As such, the allegation is that of negligence and dereliction of duty in violation of Para 64 of the Police Regulations. Identical charges were framed against the other three constables namely Kanti Raj, Naresh Singh and Wasim Akhtar, a joint enquiry was held and a common set of evidence was placed. However, conclusion arrived at by the disciplinary Authority in relation to petitioner was dismissal from service for the reason that petitioner being Head Constable did not exercise proper supervision and control on the other constables which led to escape of the accused. Naresh Singh who was on duty between 3 to 6 am near the bed where the accused was handcuffed had gone to respond the call of nature without intimating the other Constables. Therefore, he was held guilty of the charge and penalty of dismissal was inflicted. Naresh Singh who was on duty between 3 to 6 am near the bed where the accused was handcuffed had gone to respond the call of nature without intimating the other Constables. Therefore, he was held guilty of the charge and penalty of dismissal was inflicted. Whereas, the other two constables namely Kantiraj and Wasim Akhtar were visited with penalty of with-holding of one increment with cumulative effect, purportedly for the reason that they were recently recruited on compassionate grounds and were having lesser experience in service. However, the punishment of dismissal from service in respect of the petitioner has been converted into compulsory retirement by the appellate Authority. 12. In the matters relating to departmental enquiries, the disciplinary Authority is in seisin with the entire material placed on record such as preparation of charges, service of charge sheet, enquiry held and punishment imposed. Therefore, the appreciation and assessment of material brought on record by the department and the delinquent is within the exclusive domain of the disciplinary Authority and the same cannot be faulted unless the conclusions so drawn by the disciplinary Authority suffer from the vices of (i) Jurisdiction; (ii) perversity of approach when relevant materials are ignored and irrelevant materials are considered while recording the finding; (iii) the conclusions so arrived at by the disciplinary Authority are such which no man of common prudence shall arrive at and (iv) the conclusions otherwise are lacking in bonafides applying the principles of Wednesbury reasonableness. Moreover, the jurisdiction of this Court, under Articles 226 and 227 of the Constitution in such matters is required to be exercised with care, caution and circumspection, as this Court cannot sit in appeal over the judgment of the disciplinary Authority. 13. Now, turning to the facts in hand, admittedly petitioner was a Head Constable and was required to exercise effective control and co-ordination amongst the other three constables to ensure safe custody of the accused while he was hospitalized. Petitioner cannot seek parity with constables Kantiraj and Wasim Akhtar for the reasons stated above. Hence, the complaint of discrimination is devoid of merit and substance and the same cannot be countenanced. The judgment cited by the learned counsel in the case of Raj Pal Singh (Supra) is of no assistance to the petitioner being distinguishable on facts. Petitioner cannot seek parity with constables Kantiraj and Wasim Akhtar for the reasons stated above. Hence, the complaint of discrimination is devoid of merit and substance and the same cannot be countenanced. The judgment cited by the learned counsel in the case of Raj Pal Singh (Supra) is of no assistance to the petitioner being distinguishable on facts. However, the question whether the penalty as imposed is disproportionate to the charges framed against the petitioner on the touchstone of doctrine of proportionality is required to be addressed. 14. The doctrine of proportionality is a well recognised concept of judicial review in our jurisprudence. It is true that it is within the discretionary domain and exclusive power of the Authority making a decision to quantify the punishment once charge of misconduct is proved, but such discretionary power becomes vulnerable and exposed to judicial intervention if exercised in a manner which is found to be out of proportion to the charges found proved i.e. if the punishment is in excess to the gravity of offence. Considerations like measure, magnitude and degree of misconduct are some of the relevant factors on which the punishment imposed is tested under the principles of doctrine of proportionality. The aforesaid principle of law clearly suggests that the proportionality is concerned with the way in which the disciplinary Authority has ordered its priorities while making decision. Attributions of relevance and importance to the factors that weighed with the Authority while passing the decision, precisely provide the factual matrix to the Courts to assess the decision as primary review while applying the principle of proportionality; in other words, it is a balancing test. The balancing test means scrutiny of excessive and onerous penalties manifesting imbalance of relevant considerations. 15. The Hon'ble Supreme Court in the case of Om Kumar and others v. Union of India ( (2001)2 SCC 386 has lucidly explained the distinction between scope of interference in judicial review of administrative action where challenge is made on the ground of discrimination under Article 14 of the Constitution and where challenge is made to an administrative action as arbitrary, irrational or unreasonable. The Courts apply the principle of primary review known as doctrine of proportionality where the administrative action is challenged under Article 14 as being discriminatory and in such case the question before the Courts is to consider the correctness of the level of discrimination applied and whether it is excessive and whether it has nexus with the objective intended to be achieved by the administrator. In paragraph 28 of the aforesaid judgment, the Hon'ble Apex Court has elucidated the concept of proportionality as under:- "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." In paragraphs 66 to 68, the concept of primary and secondary review and the applicability of Wednesbury test therein has been couched by the Apex Courts in the following words:- "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 unequals 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. 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 v. Jalgaon Municipal Council, [1991] 3 SCC 91, at 111. 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's Cellular v. Union of India, [1994] 6 SCC 651 (at PP. 679-680); Indian Express Newspapers v. Union of India, [1985] 1 SCC 641 at 691), Supreme Court Employees' Welfare Association v. Union of India and Anr., [1989] 4 SCC 187, at. 241 and U.P. Financial Corporation v. GEM CAP (India) Pvt. Ltd, [1993] 2 SCC 299, at 307, while Judging whether the administrative action is 'arbitrary' under Article 14 (i.e. Otherwise then being discriminatory, this Court has confined itself to a Wednesbury review always. 68. Thus, when administrative action is attacked as discriminatory under Article 14, the principle of primary review is for the Courts by applying proportionality. However, where administrative action is questioned as 'arbitrary' under Article 14, the principle of secondary review based on Wednesbury principles applies." 16. Now, bearing in mind the aforesaid principles of law and looking to the factual matrix in hand, it is clear that petitioner- Head Constable and three constables were subjected to departmental enquiry on identical charges. The enquiry officer found the charges proved only against constable Naresh Singh while the petitioner and other two constables namely Kanti Raj and Wasim Akhtar were exonerated of the charges. The enquiry officer found the charges proved only against constable Naresh Singh while the petitioner and other two constables namely Kanti Raj and Wasim Akhtar were exonerated of the charges. Charges against constable Naresh were found proved for the reason that he was on duty between 3 am to 6 am and supposed to sit beside the bed where the accused was handcuffed, but he did not inform the other two constables or the petitioner before going to respond to the call of nature. Due to paucity of space to sit in the ward, other constables and petitioner were in the Verandah. Under these circumstances, the accused had fled away. Therefore, for the act of omission of constable Naresh Singh, petitioner was not held responsible by the enquiry officer. The disciplinary Authority dismissed Naresh Singh from services and let off the other two constables with lesser penalty of with-holding of one increment with cumulative effect on the ground that they were newly recruited on compassionate grounds. The disciplinary Authority, as a matter of fact, did not attribute any motive or element of mens rea to the petitioner facilitating the accused to escape. Instead what weighed with the disciplinary Authority is that the petitioner was a Head Constable and was required to have supervisory control over the constables. Under such circumstances, lapse was attributed to the petitioner and, accordingly, disciplinary Authority has imposed the punishment of dismissal from service upon him, which has been later converted to compulsory retirement. In the opinion of this Court, the Authority ought to have considered the measure, magnitude and degree of misconduct and the fact that constable Naresh was to sit near the bed where the accused was handcuffed. Further, from 9th to 13th May, 2014, during which period the accused had remained hospitalized, no lapse or negligence was attributed to the petitioner. Therefore, for the act of negligence and omission of Naresh, the punishment imposed on the petitioner of compulsory retirement depriving him of his service tenure has attributes of disproportionate penalty, moreso in view of the fact that during his service tenure the petitioner is reported to have earned as many as 170 awards. As such, the penalty imposed upon the petitioner has shocked the conscience of this Court. As such, the penalty imposed upon the petitioner has shocked the conscience of this Court. Therefore, though this Court can exercise the jurisdiction for substitution of lesser penalty to strike a balance and equity in view of Article 14, it is considered apposite to remand the case to the appellate Authority for imposition of lesser penalty upon the petitioner ensuring that he completes his service tenure and retires on reaching the age of superannuation in normal course. 17. Consequently, the order passed by the appellate Authority is quashed. Matter is remanded to the appellate Authority to pass a fresh order within four weeks from receipt of certified copy of this order, after providing audience to the petitioner, in the light of observations made here-in-above. Accordingly, the petition stands partly allowed.