JUDGMENT : 1. By way of present petition, the petitioner has challenged the punishment order dated 12.11.2011 passed by the Deputy Commissioner (Admin), Bhavnagar Municipal Corporation and prayed inter alia, that:- "8(A) Quash and set aside the punishment order dated 12.11.2011, Annexure-A to this petition and direct the respondent authority to grant all the consequential benefits to the petitioner, and (B) Direct the respondent authority to treat the period of suspension of the petitioner from 4.6.2019 to 14.11.2011 as duty period for all purposes, including for the purpose of pay and pension, and (C) Pending admission and final disposal of this petition the Honourable Court may be pleased to stay the operation, implementation and execution of the punishment order dated 12.11.2011, Annexure-A to this petition, and (D) Award the cost of this petition, and (E) Grant any other relief or pass any other order which the Honourable Court may consider as just and proper in the facts and circumstances of the case. 2. The brief facts giving rise to present petition are that the petitioner was serving as Field Worker with the respondent corporation and during his service period, she was promoted on the post of Superior Field Worker. During the course of her employment, on 3.6.2009 when she was on duty, she had taken blood sample of one minor son of the complainant Roopalben, who was suffering from cold, cough and fever, by using Safety-pin instead of Lancet. After blood was taken by the petitioner, a minor son was suffering from pain. Therefore, the complainant - mother of the minor boy had given a complaint against the petitioner that while collecting the blood sample of her son, the petitioner used the Safetypin instead of Lancet, which is normally used for the purpose of collecting the blood sample and thereby, she had shown her carelessness. On the basis of such complaint, the petitioner was put under suspension by the authority, on 4.6.2009. 2.1 In this regard, a chargesheet dated 22.9.2009 came to be served upon the petitioner and the departmental inquiry was conducted, as per the rules and regulations. The petitioner has filed her written statement before the inquiry officer and also appointed a person for defence. 2.1 In this regard, a chargesheet dated 22.9.2009 came to be served upon the petitioner and the departmental inquiry was conducted, as per the rules and regulations. The petitioner has filed her written statement before the inquiry officer and also appointed a person for defence. During the course of inquiry, the inquiry officer has submitted a report dated 18.8.2011, wherein the inquiry officer has come to the conclusion that the charge levelled against the petitioner is not properly established any carelessness or any dereliction in the duty or any fault on the part of the petitioner. Though this clear findings recorded by the inquiry officer that the charge was not established against the petitioner, the respondent authority has imposed a penalty of stoppage of two increments from future effect vide punishment order dated 12.11.2011. The said punishment order dated 12.11.2011 of the respondent is under challenge in present petition. 3. I have heard Ms. Prachi Upadhyay learned Counsel for Mr. Vaibhav Vyas, learned advocate for the petitioner and Mr. Nikunt K. Raval, learned Counsel for the respondent-Bhavnagar Municipal Corporation. 4. Ms. Prachi Upadhyay, learned advocate for the petitioner has drawn the attention of this Court to the specific finding recorded by the authority that there was no cogent and reliable material before the authority to come to a conclusion that there is any carelessness or any material against the present petitioner, which shows that she has not taken proper care while collecting the blood sample. She has further submitted that neither the boy nor his parents are examined during the departmental inquiry, therefore, even if it is presumed that the blood sample of the boy was taken by the petitioner, then also there is nothing on record to show that the same was taken by a safety-pin instead of lancet. 4.1 Ms. Prachi Upadhyay, learned Counsel for the petitioner has relied upon the judgment of the Hon'ble Apex Court in the case of Om Kumar and others vs. Union of India reported in (2001) 2 SCC 386 and in the case of Union of India and others vs. Dwarka Prasad Tiwari reported in (2006) 10 SCC 388 . 4.2 In view of the above, Ms. Upadhyay, learned Counsel for the petitioner urges before this Court that present petition may be allowed and the order of punishment may be quashed and set aside. 5. On the other hand, Mr. 4.2 In view of the above, Ms. Upadhyay, learned Counsel for the petitioner urges before this Court that present petition may be allowed and the order of punishment may be quashed and set aside. 5. On the other hand, Mr. Raval, learned Counsel for the respondent has emphasized upon the averments made in the affidavit-in-reply and submitted that the petitioner has shown recklessness and carelessness, while collecting the blood sample of the minor son of the complainant. He has further submitted that without using proper medical equipment, she has collected the blood sample and therefore, she has shown the negligence and carelessness and therefore, the authority has rightly passed the order of stoppage of two increments with future effect. 5.1 Mr. Raval, learned Counsel for the respondent has further submitted that the respondent Bhavnagar Municipal Corporation has filed its affidavit-in-reply and objected the petition by stating that the petitioner has taken blood sample with Safety-pin and thereby the petitioner has put the life of the minor in danger and therefore, she has shown recklessness and carelessness and therefore, the charge framed against the petitioner is within the powers and in accordance with the procedure. He has further submitted that as per the rules, the inquiry was conducted and after going through the inquiry report and after going through the evidence, the authority has rightly passed the order of punishment of stoppage of two increments with future effects, while reinstating the petitioner and there is no any disproportionate punishment was imposed against present petitioner and therefore, no interference to be called for in the present petition. 6. I have perused the record and material placed on record. In present case, the petitioner has produced all relevant documents including show-cause-notice and the reply filed by the petitioner before the authority and the findings recorded by the authority. Considering all these documents, it appears that the charge levelled against the petitioner and the punishment which is imposed upon the petitioner is harsh in nature and in future she has to suffer great monetary loss. I have also gone through the statement of Dr. Sinha and on the basis of that the inquiry officer has recorded the findings that there is nothing to show that the petitioner has committed any mistake while collecting blood sample by using any unauthorized means. I have also gone through the statement of Dr. Sinha and on the basis of that the inquiry officer has recorded the findings that there is nothing to show that the petitioner has committed any mistake while collecting blood sample by using any unauthorized means. In this regard, the authority has rightly passed the order but at the time of reinstatement, the order of punishment to the fact that stoppage of two increment with future effect was imposed, which is disproportionate to the charge. Hence, in my opinion the impugned order of the punishment requires to be interfered with. 7. At this stage, it is appropriate to take into account the decision relied upon by learned Counsel for the petitioner of Hon'ble Apex Court in case of Om Kumar (supra), wherein Hon'ble Apex Court has held as under:- "23. It was argued at great length by learned senior counsel Sri K. Parasaran and Dr. Rajeev Dhawan that the question as to the quantum of punishment to be imposed was for the competent authority and that the Courts would not normally interfere with the same unless the punishment was grossly disproportionate. The punishments awarded satisfied the Wednesbury rules. On the other hand, learned Amicus Curiae argued that, on the facts of the case, the cases of these two officers justify reference to the Vigilance Commissioner. 24. We agree that the question of the quantum of punishment in disciplinary matters is primarily for the disciplinary authority and the jurisdiction of the High Courts under Article 226 of the Constitution or of the Administrative Tribunals is limited and is confined to the applicability of one or other of the well known principles known as Wednesbury principles. (See Associated Provincial Picture Houses v. Wednesbury Corporation (1948) 1 KB 223. This Court had occasion to lay down the narrow scope of the jurisdiction in several cases. The applicability of the principle of 'proportionality' in Administrative law was considered exhaustively in Union of India v. Ganayutham, [1997] 7 SCC 463 where the primary role of the administrator and the secondary role of the Courts in matters not involving fundamental freedoms, was explained. 26. Lord Greene said in 1948 in the Wednesbury case that when a statute gave discretion to an administrator to take a decision, the scope of judicial review would remain limited. 26. Lord Greene said in 1948 in the Wednesbury case that when a statute gave discretion to an administrator to take a decision, the scope of judicial review would remain limited. He said that interference was not permissible unless one or other of the following conditions were satisfied-namely the order was contrary to law, or relevant factors were not considered, or irrelevant factors were considered; or the decision was one which no reasonable person could have taken. These principles were consistently followed in UK and in India to judge the validity of administrative action. It is equally well known that in 1983, Lord Diplock in Council for Civil Services Union v. Minister of Civil Services, (1983) 1 AC 768 (called the GCHQ case) summarised the principles of judicial review of administrative action as based upon one or other of the following-viz. Illegality, procedural irregularity and irrationality. He, however, opined that 'proportionality' was a 'future possibility.' 27. The principle originated in Prussia in the nineteenth Century and has since been adopted in Germany, France and other European countries. The European Court of Justice at Luxembourg and the European Court of Human Rights at Strasbourg have applied the principle while judging the validity of administrative action. But even long before that, the Indian Supreme Court had applied the principle of 'proportionality' to legislative action since 1950, as stated in detail 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 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 v. UK, (1976) I EHR p. 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. Schwarze, 1992, pp. 677-866. 34. In USA, in City of Boerne v. Flares. [1997] 521 U.S. 507, the principle of proportionality has been applied to legislation by stating that "there must be congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end". 35. Thus, the principle that legislation relating to restrictions on fundamental freedoms could be tested on the anvil of 'proportionality' has never been doubted in India. This is called 'primary' review by the Courts of the validity of legislation which offended fundamental freedoms. 36. In Administrative Law, the principle of 'proportionality' has been applied in several European Countries. But, in England, it was considered a future possibility in the GCHQ case by Lord Diplock. In India, as stated below, it has always been applied to administrative action affecting fundamental freedoms. 37. The development of the principle of 'strict Scrutiny" or 'proportionality' in Administrative Law in England is, however, recent. Administrative action was traditionally being tested on Wednesbury grounds. But in the last few years, administrative action affecting the freedom of expression or liberty has been declared invalid in several cases applying the principle of 'strict scrutiny'. In the case of these freedoms, Wednesbury principles are no longer applied. Administrative action was traditionally being tested on Wednesbury grounds. But in the last few years, administrative action affecting the freedom of expression or liberty has been declared invalid in several cases applying the principle of 'strict scrutiny'. In the case of these freedoms, Wednesbury principles are no longer applied. The Courts in England could not expressly apply proportionality in the absence of the Convention but tried to safeguard the rights zealously by treating the said rights as basic to the Common Law and the Courts then applied the strict scrutiny test. In the Scatcher Case Alt. General v. Guardian Newspapers Ltd., (No.2) (1990) 1 AC 109 (at pp. 283-284), Lord Goff stated that there was no inconsistency between the Convention and the Common Law. In Derbyshire Country Council v. Times Newspapers Ltd., (1993) AC 534, Lord Keith treated freedom of expression as part of Common Law, Recently, in R v. Secretary of State for Home Department, Ex P. Simms, [1999] 3 All ER 400 (H.L.), the right of a prisoner to grant an interview to a journalist was upheld treating the right as part of the Common Law. Lord Hobhouse held the policy of the administrator was disproportionate. The need for a more intense and anxious judicial scrutiny in administrative decisions which engage fundamental human rights was re-emphasised in R v. Lord Saville Ex. pt., [1999] 4 All ER 860 870, 872 CCA. In all these cases, the English Courts applied the 'strict scrutiny' test rather than describe the test as one of 'proportionality'. But, in any event, in respect of these rights 'Wednesbury' rule has ceased to apply. 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. 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 rare cases where there has been long delay in the time taken by the disciplinary proceedings and in the time taken in the Courts, and such extreme or rare cases can the Court substitute its own view as to the quantum of punishment. 72. In the light of the above discussion, we shall now deal with the cases of the two officers and test, on Wednesbury grounds and as a Court of Secondary review the punishments could be interfered with as being arbitrary. 73. So far as Sri Om Kumar is concerned, learned senior counsel Sri K. Parasaran has taken us through the entire record including the Report of Justice O. Chinnappa Reddy holding that there is a prima facie case, the Report of the Inquiry Officer which is adverse to the Officer, the recommendation of the UPSC which is favourable to him and to the order of the disciplinary authority which has not accepted the recommendation of the UPSC. On facts, the disciplinary authority felt that misconduct was proved as held by the Inquiry Officer. However, it felt that the officer deserved only 'censure' because of two mitigating factors: (i) the complicated stage at which Sri Om Kumar was required to handle the case and (ii) absence of malafides. Question is whether the punishment requires upward revision. 7.1 It is also relevant to have a glance of the decision of the Hon'ble Apex Court in case of Union of India (supra), which is relied upon by learned Counsel for the petitioner. In the said decision Hon'ble Apex Court has held as under:- "Head Note B. Service Law - Penalty/Punishment Quantum Court's interference-Scope - Normally, only where the punishment is shockingly disproportionate to the misconduct, court may direct the authority concerned to reconsider the punishment imposed - Judicial review of the administrative decision is limited to deficiency in decision-making process -Administrative Law - Judicial review - Scope The court's interference with the quantum of punishment cannot be a routine matter. The court should not interfere with the administrator's decision unless it was illogical or suffers from procedural impropriety or was shocking to the conscience of the court, in the sense that it was in defiance of logic or moral standards. In view of what has been stated in Wednesbury case the court would not go into the correctness of the choice made by the administrator open to him and the court should not substitute its decision to that of the administrator. The scope of judicial review is limited to the deficiency in decision-making process and not the decision. Unless the punishment imposed by the disciplinary authority or the Appellate Authority shocks the conscience of the Court/Tribunal, there is no scope for interference. Further, to shorten litigations it may, in exceptional and rare cases, impose appropriate punishment by recording cogent reasons in support thereof. In the normal course if the punishment imposed is shockingly disproportionate it would be appropriate to direct the disciplinary authority or the Appellate Authority to reconsider the penalty imposed. 10. The scope of interference with quantum of punishment has been the subject-matter of various decisions of this Court. Such interference cannot be a routine matter. 11. Lord Greene said in 1948 in the famous Wednesbury case that when a statute gave discretion to an administrator to take a decision, the scope of judicial review would remain limited. He said that interference was not permissible unless one or the other of the following conditions was satisfied, namely, the order was contrary to law, or relevant factors were not considered, or irrelevant factors were considered; or the decision was one which no reasonable person could have taken. These principles were consistently followed in the UK and in India to judge the validity of administrative action. It is equally well known that in 1983, Lord Diplock in Council of Civil Service Unions v. Minister for the Civil Service (called the CCSU case) summarised the principles of judicial review of administrative b action as based upon one or the other of the following viz. illegality, procedural irregularity and irrationality. He, however, opined that "proportionality" was a "future possibility". 16. To put it differently unless the punishment imposed by the disciplinary authority or the Appellate Authority shocks the conscience of the Court/Tribunal, there is no scope for interference. illegality, procedural irregularity and irrationality. He, however, opined that "proportionality" was a "future possibility". 16. To put it differently unless the punishment imposed by the disciplinary authority or the Appellate Authority shocks the conscience of the Court/Tribunal, there is no scope for interference. Further, to shorten litigations it may, in exceptional and rare cases, impose appropriate punishment by recording cogent reasons in support thereof. In the normal course if the punishment imposed is shockingly disproportionate it would be appropriate to direct the disciplinary authority or the Appellate Authority to reconsider the penalty imposed. 18. The High Court, as rightly submitted by learned counsel for the Union of India, has not indicated any reason for coming to the conclusion that the punishment was shockingly disproportionate. The High Court only g stated that the defence of the respondent Dwarka Prasad was not duly considered. If that was really so, the High Court would have interfered on that ground but that has not been done. The High Court's order, therefore, reflects non-application of mind. The impugned order of the High Court is set aside. The matter is remitted to the High Court rehear the writ petition restricted to the question of quantum of punishment. the appeal filed by the respondent Dwarka Prasad is without merit in view of the fact that his statement at different stages during the departmental proceedings indicates that he has accepted that he himself was responsible for the incident." 8. In view of the aforesaid facts and in view of the decisions of the Hon'ble Apex Court mentioned hereinabove, since the fact of taking blood from safetypin by the petitioner was not proved in the departmental inquiry, present petition requires to be allowed. Further, there is specific findings recorded by the authority that there was no cogent and reliable material before the authority to come to a conclusion that there is any carelessness or any material against the present petitioner. 9. In view of above discussion, I am of the opinion that the punishment order dated 12.11.2011 passed by the respondent authority requires to be quashed and set aside. 10. Accordingly present petition is hereby allowed. The order of punishment dated 12.11.2011 passed by the respondent authority is hereby quashed and set aside. 11. 9. In view of above discussion, I am of the opinion that the punishment order dated 12.11.2011 passed by the respondent authority requires to be quashed and set aside. 10. Accordingly present petition is hereby allowed. The order of punishment dated 12.11.2011 passed by the respondent authority is hereby quashed and set aside. 11. In view of the fact that the petitioner is already retired from service, the concerned authority is hereby directed to pay all retiral benefits of the petitioner by re-calculating the pension, on the basis of the increment, which she is entitled for and during this period whatever monitory loss caused to the petitioner will be paid by the concerned authority to the petitioner, within period of three months from the date of receipt of copy of present order. 12. With the aforesaid direction, present petition is hereby allowed. Rule is made absolute to the aforesaid extent. No order as to costs. Direct service is permitted.