JUDGMENT : Re : FMA 4509 of 2019 1. Although this judgment and order is being pronounced by the Presiding Judge of this Court, it is a product of collaboration between the two members of this bench. 2. The appellant before us is a formal head watchman of the respondent Food Corporation of India (the respondent). He challenges the disciplinary proceeding against him. He was charge-sheeted, an enquiry proceeding was started and resulted in an order of dismissal passed by the disciplinary authority on 3rd February, 2016. The appellate authority affirmed this order on 15th April, 2014. The punishment imposed on the appellant was dismissal from service. 3. The charge against him was that the then Depot Officer of the respondent, its labourers, outsiders residing illegally inside the depot premises and the security guard, misappropriated a huge stock of food grain from the depot as well as from their respective sheds and working point. 29533.58 Qtls wheat, 10858.50 Qtls of rice and 18144 pcs of empty gunnies were removed. The financial loss was Rs. 8,37,63,029/-. 4. Mr. Dhar, learned Senior Advocate appearing for the respondent showed us the duties that are to be performed by the head watchman 5. According to the respondent as the head watchman the appellant had the duty and responsibility of ensuring that the stock of food grain stored in the warehouse was not pilfered and that in discharge of his duty he ought to have been careful and watchful. He did not discharge this duty. Hence, the appellant was jointly liable with the others for this huge loss. 6. On the other hand the appellant’s version is that it was not his duty to keep watch of the stored goods. He was the head watchman and his duty was only to supervise the labourers. 7. The enquiry was carried out following due procedure and the order of punishment was made. 8. We are conscious of the powers of the Court in relation to proceeding challenging disciplinary proceedings. In a writ application the writ Court is not to act as a Court of appeal. If there is any glaring error or evidence of misconduct in the disciplinary order or in the conduct of the proceedings the Court can interfere. The Court can also interfere if the punishment is so disproportionate so as to shock the conscience of the Court. If there is any glaring error or evidence of misconduct in the disciplinary order or in the conduct of the proceedings the Court can interfere. The Court can also interfere if the punishment is so disproportionate so as to shock the conscience of the Court. We are also conscious that plain and simple errors in the adjudication order are not a ground for interference. If an order is most unreasonable or totally irrational outrageous in defiance of logic or is absolutely perverse or based on no evidence or in breach of principles of natural justice, the Court can interfere. 9. We give credit to Mr. Dhar for arguing this case show thoroughly and in the best interest of the respondent. 10. But we notice some infirmities in the proceeding. 11. In the charge there is no specific description of the period during which misappropriation was made. No date and time is mentioned. No period of time is identified. No details of misappropriation have been provided. If a particular point of time or period of time was specified and it was shown that the appellant was on duty at that particular time, the task of proving the charge against the appellant could have become much easier for the respondent. There is no such description in the heads of charges. 12. Furthermore, we notice that after the entire fact finding process the enquiry officer has made the following observation “on view of the justification by the defense direct involvement of C.O. 9, C.O. 10 and C.O 11 in misappropriation of staff is not proved.” 13. Now in the light of this finding, was there any justification for imposition of any punishment? But Mr. Dhar, learned Senior Advocate appearing for the respondent tried to justify the punishment imposed by saying that by direct involvement the enquiry officer did not refer to the “connivance” of the appellant in the misappropriation of food-grains.” We do not accept this contention. If the appellant was guilty of connivance with the other alleged offenders in the misappropriation of food grains that finding ought to have been specifically entered by the enquiry officer. But we show a little leniency to the enquiry officer by observing that he may not have been fully acquainted with the niceties of the english language and could not express himself fully. 14. But we show a little leniency to the enquiry officer by observing that he may not have been fully acquainted with the niceties of the english language and could not express himself fully. 14. We find from the record that out of the person charged a few of them have been exonerated by the appellate authority after having been proved guilty on similar facts and findings. 15. We also accept Mr. Dhar’s contention that in this kind of a large scale of misappropriation at the time of commission the act may not be discovered. Discovery may be made later on. It is difficult to produce direct evidence to prove theft, misappropriation etc. and that the Court should rely on circumstantial evidence. 16. In view of the magnitude of the loss and the fact that the appellant was enjoying a responsible position with the respondent fixing responsibility on him was certainly not out of place. 17. But the question is whether punishment was proportionate to the charges as proved against him? 18. In view of the findings above made by the enquiry officer we do not think that the proof furnished against the appellant warranted his dismissal. A lesser punishment ought to have been imposed upon him. 19. Mr. Dhar cited the judgment in Chief Executive officer, Krishna District Cooperative Central Bank limited and Anr. Vs. K. hanumantha Rao & Anr. reported in (2017) 2 Supreme Court Cases 528. It is true that that case pertained to a supervisor of a bank charged with misappropriation or conniving in the misappropriation of bank funds. But in that case the supervisor that as held by the Supreme Court had a specific duty to see that there was no misappropriation of fund. The case was proved against him to the entire satisfaction of the Court. In that judgment the Supreme Court referring to (Kendriya Vidyalaya Sangthan –Vs. J. Hussain ( 2013 10 SCC 106 : (2013) 2 SCC (L&S) 833) extracted and relied on the following passage from that judgement in paragraph 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-recognized concept of judicial review in our jurisprudence. “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-recognized concept of judicial review in our jurisprudence. The punishment should appear to be so disproportionate that it shocks the judicial conscience. (see State of Jharkhand Vs. Kamal Prasad.) It would also be apt to extract the following observations in this behalf from the judgment of this Court in Kendriya Vidyalaya Sangthan Vs. J. Hussain. (SCC pp. 110-12, paras 810) 8. the order of appellant 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). 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. It is, however, to be borne in mind that this principle would be attracted, which is in tune with the doctrine of Wednesbury 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 of the Civil Service 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, 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 and 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. 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. 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.” 20. We also refer to (2013) 10 Supreme Court Cases 106 (Deputy Commissioner, Kendriya Vidyalaya Sangthan & Ors. Vs. J. Hussain), (1994) 3 Supreme Court Cases 357 (Union of India & Ors. –Vs. Upendra Singh), (2006) 5 Supreme Court Cases 377 (Y.P. Sarabhai-Vs.- Union Bank of India & Anr.), (2017) 2 Supreme Court Cases 528 (Chief Executive officer, Krishna District Cooperative Central Bank limited and Anr. Vs. K. hanumantha Rao & Anr.), (2008) 7 Supreme Court Cases 585 (DLF Universal Limited –vs. Ekta Seth & Anr.). 21. –Vs. Upendra Singh), (2006) 5 Supreme Court Cases 377 (Y.P. Sarabhai-Vs.- Union Bank of India & Anr.), (2017) 2 Supreme Court Cases 528 (Chief Executive officer, Krishna District Cooperative Central Bank limited and Anr. Vs. K. hanumantha Rao & Anr.), (2008) 7 Supreme Court Cases 585 (DLF Universal Limited –vs. Ekta Seth & Anr.). 21. Considering the nature of the charge, the number of persons accused in the charge-sheet, the punishment imposed on the other persons charged, the facts proved against the appellant and the facts which were not established against him, we find that the punishment of dismissal from service was unreasonable and too harsh. It is so disproportionate that it moves the conscience of the Court. 22. In that view of the matter, the appeal is allowed in part. 23. The impugned judgment and order dated 6th June, 2006 is set aside. 24. The order of the disciplinary authority including that of the appellate authority is sustained only the punishment imposed is set aside. 25. We remand the matter back to the appellate authority to review the punishment considering the observations made above. The appellate authority is free to impose any punishment in the facts and circumstances of the case, except a punishment resulting in dismissal from service or removal from service. 26. The appellate authority will review this punishment within a period of eight weeks of communication of this order. For this purpose hearing need not be given to the parties. 27. The appeal FMA 4509 of 2016 is disposed of. Re : FMA 4510 of 2016 FMA 4511 of 2016 FMA 4512 of 2016 FMA 4513 of 2016 28. The facts and circumstances in these appeals are identical to those in the appeal decided by us (FMA 4509 of 2016). 29. We pass the same order in each of three appeals. The appeals (FMA 4510 of 2016, FMA 4511 of 2016, FMA 4512 of 2016 and 4513 of 2016) are disposed of.