JUDGMENT S. N. PRASAD, J. - This writ petition is under Article 226 and 227 of the Constitution of India, wherein the Office Order dated 30.04.2005 (Annexure-1) has been passed by the Sr. Manager (M), South Kaliapani, whereby and where under the petitioner has been compulsorily retired from service and also the appellate order dated 26.11.2005 by which the order dated 30.04.2005 has been affirmed, have been assailed. 2. Brief facts of the case of the petitioner is that while working as Jack Hammer Operator, South Kaliapani under the administrative control of the opposite parties, he became seriously ill and bed ridden from 1.10.2003 to 16.05.2004, so he could not be able to submit the leave application from 8.10.2003 to 15.10.2003 as he remained bed ridden and was not removable from bed, from 16.10.2003 he suffered from other serious complication for which he was taken to Kaliapani Hospital where he was treated till 16.05.2004. The petitioner had produced Medical Certificates from 8.10.2003 to 15.10.2003 and from 16.10.2003 to 16.05.2004, at the time of joining his duties on 17.05.2004. The opposite parties have initiated disciplinary proceeding against the petitioner for unauthorized absence from duties w.e.f. 8.10.2003 to 16.05.2004 and asked him to reply, the petitioner has submitted his written statement of defence but the authorities being not satisfied with the response has subjected the petitioner to face the departmental enquiry, the disciplinary authority has issued an order on 29.04.2005, imposed penalty upon him to retire compulsorily from the Orissa Mining Corporation Ltd. (in short OMC Ltd.) with immediate effect and treating the period of his unauthorized absence from duties as such in accordance with Rule 11 read with Rule-14th of the Orissa Mining Corporation Services (Classification, Control and Appeal) Rules, 1976. The petitioner, being aggrieved with the order of the disciplinary authority has preferred an appeal but the appellate authority has declined to interfere with the same by rejecting the appeal vide order dated 26.11.2005, the petitioner being aggrieved with both the orders is before this Court by way of the instant writ petition. The petitioner has taken the ground for challenging the orders are that the punishment imposed is disproportionate to the irregularities committed. The petitioner has taken the ground for challenging the orders are that the punishment imposed is disproportionate to the irregularities committed. The irregularities is his first instance, the unauthorized absence is beyond his control, he has tried to satisfy the Enquiry Officer by giving the Medical Report showing the reason of not attending the office but the same has not properly been dealt with and also the enquiry report has been assailed by submitting that there is no finding in the same to the effect that the absence was willful. 3. Learned counsel for the opposite parties has appeared and filed detail counter affidavit. He has submitted that the petitioner has found to be unauthorized absence from duty which is gross misconduct under the discipline and appeal rule of the Corporation. He has been given ample opportunity to defend himself but he has avoided to appear in most of the times, he has submitted the medical certificate of his ailment showing the reason of absence but the same has not been believed by the Enquiry Officer and by rejecting it the charge has been found to be proved. The petitioner has been given the finding of the enquiry report to explain by submitting his response to the second show cause and after following the due procedure as laid down under the discipline and appeal rule, the order of punishment of compulsory retirement has been passed. He further submits that there is no legality in the order, as such the same may not be interfered with. Heard the learned counsel for the parties and perused the documents available on record. 4. At the outset, it needs to mention here that this Court has directed for production of the original record pertaining to the departmental proceeding initiated against the petitioner and in pursuance of the said direction, the original record has been produced by the opposite party-Corporation and this Court after perusing the original record and also appreciating the rival submission of the parties is disposing of the writ petition hereunder as; The factual aspect which is not in dispute in this case is that the petitioner while working as Jack Hammer Operation under administrative control of the opposite parties, he remained absence from duty from 01.10.2003 to 16.05.2004 i.e. for a period of about 7 (seven) months. The petitioner has been dealt with by initiating a departmental proceeding, the Enquiry Officer has found the charge proved against him of misconduct and accordingly the order of compulsory retirement has been passed which has also been affirmed by the appellate authority. The petitioner while assailing these two orders has raised two points i.e. punishment imposed is disproportionate to the irregularities and also the finding given by the Enquiry Officer is not to be relied upon, in view of the fact that there is no specific finding to the effect that unauthorized absence was willful. 5. This Court before going into the merit of the issue has thought it proper to discuss with respect to the jurisdiction of this Court of judicial review of an order passed in the departmental proceeding under the writ jurisdiction of a High Court under Article 226 of the Constitution of India. It is not in dispute that the jurisdiction of the High Court sitting under Article 226 of the Constitution of India in exercising the power of the judicial review upon the punishment imposed in a departmental proceeding is very limited, the same can be exercised in certain circumstances as has been held by the Hon ble Supreme Court in the case of Union of India and Others Vrs. P. Gunasekaran, AIR 2015 SC 545 , the Hon ble Apex Court has been pleased to laid down a guideline in order to make interference and not to make interference in which circumstances with the order of punishment which is being quoted herein below:- “13. Despite the well-settled position, it is painfully disturbing to note that the High Court has acted as an appellate authority in the disciplinary proceedings, re-appreciating even the evidence before the enquiry officer. The finding on Charge No.1 was accepted by the disciplinary authority and was also endorsed by the Central Administrative Tribunal. In disciplinary proceedings, the High Court is not and cannot act as a second court of first appeal. The High Court, in exercise of its powers under Art.226/227 of the Constitution of India, shall not venture into reappreciation of the evidence. In disciplinary proceedings, the High Court is not and cannot act as a second court of first appeal. The High Court, in exercise of its powers under Art.226/227 of the Constitution of India, shall not venture into reappreciation of the evidence. The High Court can only see whether: a. The enquiry is held by a competent authority; b. The enquiry is held according to the procedure prescribed in that behalf; c. There is violation of the principles of natural justice in conducting the proceedings; d. The authorities have disabled themselves from reaching a fair conclusion by some considerations extraneous to the evidence and merits of the case; e. The authorities have allowed themselves to be influenced by irrelevant or extraneous considerations; f. The conclusion, on the very face of it, is so wholly arbitrary and capricious that no reasonable person could ever have arrived at such conclusion; g. The disciplinary authority had erroneously failed to admit the admissible and material evidence; h. The disciplinary authority had erroneously admitted inadmissible evidence which influenced the finding; i. The finding of fact is based on no evidence. Under Article 226 / 227 of the Constitution of India, the High Court shall not: (i) Re-appreciate the evidence; (ii) Interfere with the conclusions in the enquiry, in case the same has been conducted in a accordance with law; (iii) Go into the adequacy of the evidence; (iv) Go into the reliability of the evidence; (v) Interfere, if there be some legal evidence on which findings can be based. (vi) Correct the error of fact however grave it may appear to be; (vii) Go into the proportionality of punishment unless it shocks its conscience.” It has also been held by the Hon ble Supreme Court regarding the power of interference by the High Court sitting under Article 226 of the Constitution of India, if the punishment is disproportionate to the offence committed. Reference in this regard may be made to the judgment rendered by the Hon ble Supreme Court in the cases of Dev Singh vrs. Punjab Tourism Development Corporation Ltd. reported in (2003) 8 SCC 9 , it has been held at para-6 and Chief Executive Officer, Krishna District Cooperative Central Bank Ltd. and another vrs. K. Hanumantha Rao and another reported in (2017) 2 SCC 528 , wherein it has been held at para-7, which are being quoted herein below respectively:- 6. Punjab Tourism Development Corporation Ltd. reported in (2003) 8 SCC 9 , it has been held at para-6 and Chief Executive Officer, Krishna District Cooperative Central Bank Ltd. and another vrs. K. Hanumantha Rao and another reported in (2017) 2 SCC 528 , wherein it has been held at para-7, which are being quoted herein below respectively:- 6. “A perusal of the above judgments clearly shows that a court sitting in appeal against a punishment imposed in the disciplinary proceedings will not normally substitute its own conclusion on penalty, however, if the punishment imposed by the disciplinary authority or the appellate authority shocks the conscience of the court, then the court would appropriately mould the relief either by directing the disciplinary/appropriate authority to reconsider the penalty imposed or to shorten the litigation it may make an exception in rare case and impose appropriate punishment with cogent reason in support thereof. It is also clear from the above noted judgments of this Court, if the punishment imposed by the disciplinary authority is totally disproportionate to the misconduct proved against the delinquent officer, then the court would interfere in such a case. “7. xxx xxx xxx xxx 7.2. xxx xxx It is trite that Courts, while exercising their power of judicial review over such matters, do not sit as the appellate authority. Decision qua the nature and quantum is the prerogative of the disciplinary authority. It is not the function of the High Court to decide the same. It is only in exceptional circumstances, where it is found that the punishment/penalty awarded by the disciplinary authority/ employer is wholly disproportionate, that too to an extent that it shakes the conscience of the Court, that the Court steps in and interferes. 7.2.1. No doubt, the award of punishment, which is grossly in excess to the allegations, cannot claim immunity and remains open for interference under limited scope for judicial review. This limited power of judicial review to interfere with the penalty is based on the doctrine of proportionality which is a well recognised concept of judicial review in our jurisprudence. The punishment should appear to be so disproportionate that it shocks the judicial conscience, State of Jharkhand & Ors. v. Kamal Prasad & Ors., (2014) 7 SCC 223 . This limited power of judicial review to interfere with the penalty is based on the doctrine of proportionality which is a well recognised concept of judicial review in our jurisprudence. The punishment should appear to be so disproportionate that it shocks the judicial conscience, State of Jharkhand & Ors. v. Kamal Prasad & Ors., (2014) 7 SCC 223 . It would also be apt to extract the following observations in this behalf from the judgment of this Court in Deputy Commissioner, Kendriya Vidyalaya Sangthan & Ors. v. J. Hussain, (2013) 10 SCC 106 at para-8 to 10, wherein it has been held: “8. The order of the appellate authority while having a relook at the case would, obviously, examine as to whether the punishment imposed by the disciplinary authority is reasonable or not. If the appellate authority is of the opinion that the case warrants lesser penalty, it can reduce the penalty so imposed by the disciplinary authority. Such a power which vests with the appellate authority departmentally is ordinarily not available to the court or a tribunal. The court while undertaking judicial review of the matter is not supposed to substitute its own opinion on reappraisal of facts. (See UT of Dadra & Nagar Haveli v. Gulabhia M. Lad [ (2010) 5 SCC 775 : (2010) 2 SCC (L&S) 101] . In exercise of power of judicial review, however, the court can interfere with the punishment imposed when it is found to be totally irrational or is outrageous in defiance of logic. This limited scope of judicial review is permissible and interference is available only when the punishment is shockingly disproportionate, suggesting lack of good faith. Otherwise, merely because in the opinion of the court lesser punishment would have been more appropriate, cannot be a ground to interfere with the discretion of the departmental authorities. 9. When the punishment is found to be outrageously disproportionate to the nature of charge, principle of proportionality comes into play. Otherwise, merely because in the opinion of the court lesser punishment would have been more appropriate, cannot be a ground to interfere with the discretion of the departmental authorities. 9. When the punishment is found to be outrageously disproportionate to the nature of charge, principle of proportionality comes into play. It is, however, to be borne in mind that this principle would be attracted, which is in tune with the doctrine of Wednesbury [Associated Provincial Picture Houses Ltd. v. Wednesbury Corpn., (1948) 1 KB 223 : (1947) 2 All ER 680 (CA)] rule of reasonableness, only when in the facts and circumstances of the case, penalty imposed is so disproportionate to the nature of charge that it shocks the conscience of the court and the court is forced to believe that it is totally unreasonable and arbitrary. This principle of proportionality was propounded by Lord Diplock in Council of Civil Service Unions v. Minister for the Civil Service [1985 AC 374 : (1984) 3 WLR 1174 : (1984) 3 All ER 935 (HL)] in the following words: (AC p. 410 D-E) “... Judicial review has I think developed to a stage today when without reiterating any analysis of the steps by which the development has come about, one can conveniently classify under three heads of the grounds upon which administrative action is subject to control by judicial review. The first ground I would call „illegality , the second „irrationality and the third „procedural impropriety . This is not to say that further development on a case by case basis may not in course of time add further grounds. I have in mind particularly the possible adoption in the future of the principle of „proportionality .” 10. An imprimatur to the aforesaid principle was accorded by this Court as well in Ranjit Thakur v. Union of India [ (1987) 4 SCC 611 : 1988 SCC (L&S) 1 : (1987) 5 ATC 113] . Speaking for the Court, Venkatachaliah, J. (as he then was) emphasising that “all powers have legal limits” invoked the aforesaid doctrine in the following words: (SCC p. 620, para 25) “25...The question of the choice and quantum of punishment is within the jurisdiction and discretion of the court martial. But the sentence has to suit the offence and the offender. It should not be vindictive or unduly harsh. But the sentence has to suit the offence and the offender. It should not be vindictive or unduly harsh. It should not be so disproportionate to the offence as to shock the conscience and amount in itself to conclusive evidence of bias. The doctrine of proportionality, as part of the concept of judicial review, would ensure that even on an aspect which is, otherwise, within the exclusive province of the court martial, if the decision of the court even as to sentence is an outrageous defiance of logic, then the sentence would not be immune from correction. Irrationality and perversity are recognised grounds of judicial review.” In another judgment rendered by the Hon ble Supreme Court in the case of Jai Bhagwan vrs. Commissioner of Police and others reported in (2013) 11 SCC 187 , wherein it has been held at para-10 and 11, which is being reproduced herein below:- “10. What is the appropriate quantum of punishment to be awarded to a delinquent is a matter that primarily rests in the discretion of the disciplinary authority. An authority sitting in appeal over any such order of punishment is by all means entitled to examine the issue regarding the quantum of punishment as much as it is entitled to examine whether the charges have been satisfactorily proved. But when any such order is challenged before a Service Tribunal or the High Court the exercise of discretion by the competent authority in determining and awarding punishment is generally respected except where the same is found to be so outrageously disproportionate to the gravity of the misconduct that the Court considers it be arbitrary in that it is wholly unreasonable. The superior courts and the Tribunal invoke the doctrine of proportionality which has been gradually accepted as one of the facets of judicial review. A punishment that is so excessive or disproportionate to the offence as to shock the conscience of the Court is seen as unacceptable even when courts are slow and generally reluctant to interfere with the quantum of punishment. The law on the subject is well settled by a series of decisions rendered by this Court. We remain content with reference to only some of them. 11. In Ranjit Thakur vrs. The law on the subject is well settled by a series of decisions rendered by this Court. We remain content with reference to only some of them. 11. In Ranjit Thakur vrs. Union of India, (1987) 4 SCC 611 , this Court held that the doctrine of proportionality, as part of the concept of judicial review, would ensure that even on an aspect which is, otherwise, within the exclusive province of the court martial. If the decision even as to the sentences is in defiance of logic, then the quantum of sentence would not be immune from correction. Irrationality and perversity, observed this Court, are recognized grounds of judicial review. The following passage is apposite in this regard. 25………… The doctrine of proportionality, as part of the concept of judicial review, would ensure that even on an aspect which is, otherwise, within the exclusive province of the court martial, if the decision even as to the sentences is an outrageous defiance of logic, then the [quantum of] sentence would not be immune from correction. Irrationality and perversity, observed this Court, are recognized grounds of judicial review.” It is evident from the proposition laid down in the judgments referred hereinabove, which relates to the power of the High Court to interfere in the order of punishment, in case it is found to be disproportionate that the said power can be exercised by the High Court if it hits the conscience of the Court. 6. The first argument of the petitioner is to be assessed by this Court in the light of the proposition laid down by the Hon ble Supreme Court. The factual aspect which is not in dispute in this case is that the petitioner who was holding a post of Mazdoor category, an allegation has been leveled against him of his unauthorized absence for a period of about 7 months. It is also not in dispute that it was the first instance of the petitioner of absenting unauthorized leave during his entire service career and as such it is to be seen in the light of this aspect as to whether the punishment of compulsory retirement is proportionate to the offence committed or it is disproportionate. It is also not in dispute that it was the first instance of the petitioner of absenting unauthorized leave during his entire service career and as such it is to be seen in the light of this aspect as to whether the punishment of compulsory retirement is proportionate to the offence committed or it is disproportionate. This is also to be seen in the light of the arguments advanced on behalf of the petitioner that the finding given by the Enquiry Officer is not sustainable for the reason that the plea taken by him in his defence regarding unauthorized absence is his medical ailment and to that effect Medical Certificate has also been annexed which is on record and it is also being corroborated from the finding of the Enquiry Report which this Court has gathered from the original record produced by the opposite party-Corporation. 7. It is evident from the finding of the enquiry report that the O.P.D. Certificate given by the petitioner of the hospital has been disbelieved, even though the Senior Medical Officer has deposed in favour of the petitioner by corroborating his stand of attending the Hospital on different dates. The reason given by the Enquiry Officer for not relying upon the deposition of the Senior Medical Officer is that he does not remember the things clearly or tries to mislead the authorities. This Court has thought it proper to reproduce the finding of the Enquiry Officer, for better appreciation of facts, which is being quoted herein below:- “The Medical fitness certificate issued by Medical Officer, Central Hospital, Kaliapani shows that Sri Daitary Mukhi was under treatment from 16.10.2003 to 16.05.2004 (a copy at Annexure „F ). Further querry from Sr. Medical Officer, Central Hospital, Kaliapani reveals the O.P.D. No.20064 and was suffering from Hypertensioni Hemiplegia (Rt.), for which he attended the hosipital on 16.10.2003. 11.11.2003. 22.12.2003, 22.1.2004, 22.3.2004 and 16.5.2004, he was issued with the medicines- Betaloc Losar(A) and Alprax (0.5) copy at annexure „G „H . From the above report of Sr. M.O., we may derive that Sri Mukhi either does not remember the things clearly or tries to mislead the authority. On the contrary, fabrication of the report of Sr. 11.11.2003. 22.12.2003, 22.1.2004, 22.3.2004 and 16.5.2004, he was issued with the medicines- Betaloc Losar(A) and Alprax (0.5) copy at annexure „G „H . From the above report of Sr. M.O., we may derive that Sri Mukhi either does not remember the things clearly or tries to mislead the authority. On the contrary, fabrication of the report of Sr. M.O. defend the issue of Medical Certificate by him cannot be ruled out since the delinquent cannot dig his own hole, ON the other hand, Sri Mukhi has absented from duty not solely due to his illness but due to his lack of interest in performing his duty as a Jack Hammer Operator. He opted for other post in the Corporation for which he might not have been found suitable/qualified in the post but instead blames the Manager (M), Kathpal for issue of adverse remark in the CCR. 1. Sri Daitary Mukhi, J.H.O., S. Kaliapani Mines has absented from duty unauthorisedly i.e. without submitting application to the competent authority from 8.10.2003. 2. In his submission dt. 10.08.2004 to G.M. (P & A), it was stated that he was under treatment at Kaliapani Hospital from 8.10.2003 but as per Medical certificate issued by M.O., Kaliapani Hospital, Sri Mukhi reported on 16.10.2003. 3. Though Sri Mukhi attended hospital at Kaliapani on five different dates i.e. 16.10.2003, 11.11.2003, 22.12.2003, 22.1.2004, 22.03.2004 he has not approached any authority of the Mines as regards his absence/leave. Thus he is totally callous towards his duties-responsibilities. 4. He is not interested to perform duties as a Jack Hammer Operator any further. 5. His past record on attendance/absence/leave need to be further examined which will reveal the habit.” Thus it is evident that the Senior Medical Officer has corroborated the stand of the petitioner of his medical ailment by corroborating the fact that he has attended the Hospital on different dates i.e. on 16.10.2003. 11.11.2003. 22.12.2003, 22.1.2004, 22.3.2004 and 16.5.2004, although Outdoor Patient Department has been allotted O.P.D. No.20064. The Enquiry Officer is not disputing the O.P.D. number which has been allotted to the Central Corporation but he disbelieved the statement given by the Sr. Medical Officer by saying that he does not remember clearly but tries to mislead the authorities but what led the authorities to come to this finding is lacking in the finding part of the enquiry report. 8. Medical Officer by saying that he does not remember clearly but tries to mislead the authorities but what led the authorities to come to this finding is lacking in the finding part of the enquiry report. 8. Learned counsel for the Corporation has tried to impress upon the Court by referring to one Medical Certificate issued by one Dr. Harihar Prasad Pati, who has found the petitioner medically fit to resume the duty from 16.10.2003 and on the strength of this, it has been submitted that the plea taken by the petitioner of his being treated in the Central Hospital can be relied upon but this argument is not having its force for the reason that there is no finding with respect to the Medical Certificate given by one Dr. Harihar Prasad Pati in the enquiry report. 9. This Court is of the view that merely on account of the fact that one Doctor has given certificate to resume the duty from 16.10.2003 that does not mean that a person cannot be ill on the same date. Moreover, there is no reference of the said certificate in the finding of the enquiry report and as such the argument advanced on behalf of the opposite party-Corporation by putting reliance upon the said certificate is not acceptable to this Court. 10. The finding also does not disclose that the absence is willful or not, which the requirement of law is as has been held by the Hon ble Supreme Court in the case of Krushnakant B. Parmar vrs. Union of India, reported in (2012) 3 SCC 178 at para-17 and 18, that in case of unauthorized absence, a specific finding is to be given by the Finding Officer with respect to the fact that the absence is willful, then only the punishment on that account will be said to be in accordance with law and if there is no finding to that effect, the punishment imposed on that account is not sustainable in the eye of law. For ready reference, the same is being quoted herein below:- “17. If the absence is the result of compelling circumstances under which it was not possible to report or perform duty, such absence cannot be held to be willful, Absence from duty without any application or prior permission may amount to unauthorized absence, but it does not always mean willful. For ready reference, the same is being quoted herein below:- “17. If the absence is the result of compelling circumstances under which it was not possible to report or perform duty, such absence cannot be held to be willful, Absence from duty without any application or prior permission may amount to unauthorized absence, but it does not always mean willful. There may be different eventualities due to which an employee may abstain from duty, including compelling circumstances beyond his control like illness, accident, hospitalization etc., but in such case the employee cannot be held guilty of failure of devotion to duty or behavior unbecoming of a government servant. 18. In a departmental proceeding, if allegation of unauthorized absence from duty is made, the disciplinary authority is required to prove that the absence is willful, in the absence of such finding, the absence will not amount to misconduct.” In the light of this aspect and also taking into consideration, the ratio laid down by the Hon ble Supreme Court regarding the quantum of punishment, it is the considered view of this Court that the petitioner was found to be absent from 6-7 months about and save and except this absence, there was no allegation that he was habitual absentee from the duty, hence the finding given by the Enquiry Officer that he is no more interested in discharging duty, seems to be unreasonable, dispensing with an employee from service by inflicting the punishment of compulsory retirement will amount to the capital punishment because in the instant case, the petitioner will even not be in a position to get his post-retiral benefits since he has not completed qualifying period of service to get the as such the punishment imposed cannot be said to be proportionate to the offence committed, since the petitioner has merely discharged his duty for less than a period of 10 years and dispensing the service of an employee on account of unauthorized absence on the basis of the finding given by the Enquiry Officer which is not in consonance of the ratio laid down in the cases referred above. 11. In view thereof, the order of the disciplinary authority as well as the appellate authority under Annexure-1 dated 30.04.2005 and Annexure-3 dated 26.11.2005 respectively are quashed. 11. In view thereof, the order of the disciplinary authority as well as the appellate authority under Annexure-1 dated 30.04.2005 and Annexure-3 dated 26.11.2005 respectively are quashed. In the result, the matter is remitted before the authority for passing fresh order in accordance with law in the light of the observation made hereinabove within a reasonable period preferably within period of eight weeks from the date of receipt of copy of this order. Ordered accordingly.