Shri Achom Thambalngou Singh vs State of Manipur

Heard Ms. Babita Th., learned counsel for the petitioner. Heard also Mr. H. Samarjit, learned G.A. for the respondents. 2. The petitioner has approached this Court by filing this writ petition under Article 226 of the Constitution seeking quashing of the disciplinary proceedings culminating in the removal of the petitioner from service vide order dated 22.05.2003. 3. The petitioner joined service as a Constable in the Manipur Police on regular basis on 1.9.1982. According to him after he was transferred from Chandel to Imphal East District on 30.12.1999, he had fallen sick from an illness which was later diagnosed as "Delusional Disorder" and had undergone treatment in the Regional Institute of Medical Sciences (RIMS). Because of this mental illness, he could not join his duty. After he recovered from the said illness he applied for joining duty supported by medical certificate issued by the consultant Doctor issued on 9.5.2002 and other documents. The petitioner was then placed under suspension on 7.5.2002 by an order issued by the Superintendent of Police, Imphal East District. However, soon he was reinstated to service and utilised in service due to shortage of manpower without any prejudice to the Departmental Enquiry pending against him vide order dated 26.7.2002 issued by the Superintendent of Police, Imphal East District. 4. The Departmental Enquiry was initiated and the Memorandum of charges were issued to the petitioner in which he was charged of committing misconduct by remaining absent from duty for 846 days w.e.f. 13.1.2000 to 7.5.2002 without authorisation and without informing the superiors of his whereabouts. The petitioner submitted his written statement of defence in which he admitted his absence but also explained that the absence was due to compelling circumstances beyond his control as he was suffering from mental illness for which he had undergone treatment in the RIMS and submitted the relevant medical certificate and documents and pleaded for leniency and for retaining him in service. 5. The Disciplinary Authority not being satisfied with the explanation furnished by the petitioner proceeded with the departmental enquiry by appointing an Enquiry Officer who after the enquiry submitted his report holding that the charges levelled against the petitioner were proved. The Disciplinary authority after furnishing a copy of the enquiry report to the petitioner and after giving him an opportunity as regards the proposed penalty, held that the Disciplinary Authority agreed with the finding in the Enquiry Report and issued the final order of removal of the petitioner from service vide impugned order dated 22.5.2003. 6. That the petitioner has raised various grounds in assailing the aforesaid removal order and the departmental proceedings in this writ petition. However, at the time of hearing Ms. Babita Th., learned counsel for the petitioner had concentrated her assailment mainly on the proportionality of the penalty contending that the penalty imposed on the petitioner is shockingly disproportionate to the charge proved, especially in view of the fact that the petitioner was suffering from a debilitating mental illness which was beyond his control and, accordingly, pleaded that this Court may interfere by converting the said penalty of removal to that of compulsory retirement so that in the end, the petitioner may be able to get retiral and pensionary benefits for the service already rendered by him for more than 20 years before his removal from service. 7. The State respondents contested the writ petition contending, inter alia, that the petitioner had been a habitual absentee. It was also stated that even if the petitioner could not report for duty, he could have informed the authorities through his family members but remained absent more than 2 years without obtaining leave from the competent authority. It was also contended that since the petitioner had admitted to his absence without permission and since there was no irregularity in the departmental proceedings, the writ petition is liable to be dismissed. 8. Ms. Babita, ld. Counsel for the petitioner, in support of her plea, has relied on a common judgment and order rendered by a Division Bench of this Court in W.A. No. 515/2005(GAU)/21 of 2007(IMP) [Ranbir Singh v. Union of India and four others], W.P.(C) No. 547 of 547 of 2001 [Ranbir Singh v. Union of India and four others]. In the aforesaid case, the petitioner therein who was charged of desertion, consuming alcohol while on duty, quarrelling and creating nuisance, was dismissed from service after a departmental enquiry was held. The Court after referring to the decision in Chairman-cum-Managing Director, Coal India Ltd. & Anr. v. Mukul Kumar Choudhuri & Ors., AIR 2010 SC 75 and Surendra Prasad Shukla v. State of Jharkhand, 2011 (8) SCC 536 took the view that Courts have now the jurisdiction to interfere with the order of penalty if the same is disproportionate to the misconduct proved. The Court after taking into consideration the fact that the petitioner therein had put in 14 years of unblemished service till the date of commission of misconduct,held that the punishment of dismissal imposed was disproportionate to the gravity of the charge and, accordingly, converted the penalty of dismissal to compulsory retirement from service and directed grant of consequential benefits instead of remanding the matter to the competent authority in view of the long pendency of the case. 9. Ms. Babita Ld. Counsel submitted that in present case also, the petitioner was absent because of his mental illness which was supported by medical certificates and the absence was not deliberate but under circumstances beyond his control and submitted that the penalty of dismissal imposed is disproportionate to the charge of absence. She also contended that the explanation of the petitioner for his absence was not considered nor rejected by the authorities before imposing the penalty of removal. 10. This submission has been however, objected by the Ld Counsel for the State by holding that in another case decided by another Division Bench of this Court in Writ Petition (C) No. 602 of 2013 [Md. Wahijuddin v. State of Manipur and others], this Court had declined to interfere with the dismissal of the petitioner therein who was found to be absent for only 61 days. It was accordingly, submitted that when this Court had refrained from interfering with a dismissal order due to absence for mere 61 days, there is no reason for this Court to interfere with the removal order when the absence of more than 2 years was proved and also admitted by the petitioner. 11. At the time of hearing, both the ld. Counsel for the petitioner as well as the State Respondents submitted that the substantial issue to be decided in this case can be narrowed down to whether this Court should intervene in the present case as had been done in the case of Ranbir (supra) or decline to do so in view of the decision in Wahijuddin (supra). 12. In view of the aforesaid submissions made, this Court will proceed to examine whether, the penalty of removal imposed on the petitioner is shockingly disproportionate to the charge proved and if so whether this Court may convert the same to compulsory retirement as pleaded or to refuse to do so as had been done in the case of Wahijuddin (supra). 13. As to the applicability of the principle of proportionality in the judicial review of administrative action, more particularly in service jurisprudence in India, it is no more res integra. 14. If we have a cursory glance on the decisions of the Hon''ble Supreme Court of the past, we see early reference of the principle of proportionality in Hind Construction & Engineering Co. Ltd. v. Workmen (1965) 2 SCR 85 : AIR 1965 SC 917 wherein the Hon''ble Supreme Court observed that where the punishment is shockingly disproportionate having regard to the particular conduct and to the past record and if no reasonable employer would ever impose such penalty in like circumstances, the penalty may be interfered with. In Hindustan Steels Ltd. v. A.K. Roy (1969) 3 SCC 513 it was held that there can be no doubt that the right of an employer to discharge or dismiss an employee is no longer absolute as it is subjected to severe restrictions. In cases of both termination of service and dismissal, industrial adjudication is competent to grant relief, in the former case on the ground that the exercise of power was mala fide or colourable and in the latter case if it amounts to victimisation or unfair labour practise or is in violation of the principles of natural justice or is otherwise not legal or justified. In such cases, a tribunal can award by way of relief to the concerned employee either reinstatement or compensation. In Management of the Federation of Indian Chambers of Commerce and Industry v. Workman (1972) 1 SCC 40 the Hon''ble Supreme Court held that it was open to the Tribunal to go into the question whether the punishment was disproportionate to the misconduct complained of as to amount to victimisation and relied on the earlier decision in Hind Construction (supra). The same principle was reiterated in Rama Kant Misra v. State of U.P. (1982) 3 SCC 346 wherein it was held that the punishment must be for misconduct and in order to avoid the charge of vindictiveness, justice, equity and fair-play demand that punishment must always be commensurate with the gravity of the offence charged. Earlier it was considered that the Courts had no power to substitute their own decision in place of that of the management as regards the power to impose penalty. However, with the enactment of Section 11-A of the Industrial Disputes Act, there was change in the scope of the Court to intervene and held that now the labour court has the jurisdiction and power to substitute its measure of punishment in place of the managerial wisdom once it is satisfied that the order of discharge or dismissal was not justified in the facts and circumstances of the case and the Hon''ble Supreme Court in exercise of the jurisdiction under Article 136 over the decision of the labour court can examine whether the labour court has properly approached the matter for exercising or refusing to exercise its power under Section 11-A and reiterated that it is a well recognised principle of jurisprudence which permits penalty to be imposed for misconduct that the penalty must be commensurate with the gravity of the offence charged and it cannot be disproportionately heavy or excessive. In Bhagat Ram v. State of H.P. (1983) 2 SCC 442 the Hon''ble Supreme Court held that though the purpose of holding a departmental enquiry is to impose some penalty, it is equally true that the penalty imposed must be commensurate with the gravity of the misconduct, and that any penalty disproportionate to the gravity of the misconduct would be violative of Article 14 of the Constitution and in exercise of the jurisdiction under Article 136 the Court can make an appropriate order of lesser penalty if remanding the matter to the Tribunal would prolong the dispute which would hardly be fair to or conducive to the interest of the parties. In the aforesaid case, the Hon''ble Supreme Court keeping in view the nature of misconduct, gravity of charge and no consequential loss, the penalty of withholding increments with future effect was imposed by setting aside the termination order. In Ved Prakash Gupta v. Delton Cable India (P) Ltd. (1984) 2 SCC 569 the Hon''ble Supreme Court referring to the Hind Construction (supra) held that the punishment awarded to the appellant therein is shockingly disproportionate regard being had to the charge framed against him and that no responsible employer would ever impose in like circumstances the punishment of dismissal on the employee. 15. It may be noted that the most of the aforesaid cases related to dismissal/removal/termination of services of workmen under the Industrial Disputes Act, 1956. However, this Court is of the view that the principles followed in those cases will have relevance to the present petition. 16. The Hon''ble Supreme Court dealt with the principle of proportionality in a case arising out of a sentencing in a Court Martial in Ranjit Thakur v. Union of India (1987) 4 SCC 611. In the said case, the Hon''ble Supreme Court while explaining the scope of judicial review observed that though the question of the choice and quantum of punishment is within the jurisdiction and discretion of the court-martial, 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. It was further observed 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 of the court even as to sentence is an outrageous defiance of logic, then the sentence would not be immune from correction. The Hon''ble Supreme Court seems to have made the observation as an extended concept of irrationality and perversity which are recognised grounds of judicial review by relying on the decision in Council of Civil Service Unions v. Minister for the Civil Service (1984) 3 WLR 1174 (HL). The Hon''ble Supreme Court also referred to the decision in Bhagat Ram v. State of Himachal Pradesh AIR 1983 SC 454 : (1983) 2 SCC 442 wherein it was held that "It is equally true that the penalty imposed must be commensurate with the gravity of the misconduct, and that any penalty disproportionate to the gravity of the misconduct would be violative of Article 14 of the Constitution." 17. In B.C. Chaturvedi v. Union of India (1995) 6 SCC 749 the Hon''ble Supreme Court after discussing the earlier decisions in Rangaswami v. State of T.N. 1989 Supp (1) SCC 686, State Bank of India v. Samarendra Kishore Endow (1994) 2 SCC 537 etc. reviewed the law and held that the disciplinary authority, and on appeal the appellate authority, being fact-finding authorities have exclusive power to consider the evidence with a view to maintain discipline. They are invested with the discretion to impose appropriate punishment keeping in view the magnitude or gravity of the misconduct. The High Court/Tribunal, while exercising the power of judicial review, cannot normally substitute its own conclusion on penalty and impose some other penalty. However, if the punishment imposed by the disciplinary authority or the appellate authority shocks the conscience of the High Court/Tribunal, it would appropriately mould the relief, either directing the disciplinary/appellate authority to reconsider the penalty imposed, or to shorten the litigation, it may itself, in exceptional and rare cases, impose appropriate punishment with cogent reasons in support thereof. 18. In State of Karnataka v. H. Nagaraj (1998) 9 SCC 671 the Hon''ble Supreme Court held that the principle of proportionality can be invoked regarding punishment only in a case where the punishment was totally irrational in the sense that it was in outrageous defiance of logic or moral standards. H. Nagaraj (supra) made a reference to Union of India v. G. Ganayutham (1997) 7 SCC 463. 19. In Ganayutham (supra) the Hon''ble Supreme Court examined the issue at length about the scope of Judicial Review by applying Wednesbury test and distinguished between the primary and secondary role of the Court while exercising the power of judicial review. In Ganayutham (supra) a central excise official was charged with unauthorized loss of revenue of the Government and after his retirement, the punishment of withdrawal of 50% of his pension and gratuity was imposed which was interfered by the High Court but the Supreme Court reversed the same by holding that in "exceptional and rare case" where the punishment "shocks the conscience of the Court", Court can interfere. Traditionally, judicial review is concerned not with the decision but with the decision making process and is confined to examine the validity, legality of the decision making process and the scope of judicial review is confined to the three grounds, viz., (i) Illegality : This means the decision-maker must understand correctly the law that regulates his decision-making power and must give effect to it. (ii) Irrationality, namely, Wednesbury unreasonableness. (iii) Procedural impropriety. (Tata Cellular v. Union of India, (1994) 6 SCC 651) As to what is meant by Wednesbury unreasonableness, it has been succinctly put by Lord Diplock in the celebrated and oft quoted remarks in Council of Civil Service Unions v. Minister for Civil Service, (1985) 1 AC 374 in the following words: ''By "irrationality" I mean what can now be succinctly referred to as "Wednesbury unreasonableness". (Associated Provincial Picture Houses Ltd. v. Wednesbury Corpn. (1948) 1KB 223) It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at.'' " It was held that the Court would exercise primary role and invoke the principle of proportionality in the cases involving fundamental freedoms, as to whether there was fair balancing of the fundamental freedom and need to put restrictions. However, while discharging secondary role, the Court merely has to apply the Wednesbury test without applying the principle of proportionality. The Hon''ble Supreme Court summed up the legal position as follows. "31. The current position of proportionality in administrative law in England and India can be summarised as follows: (1) To judge the validity of any administrative order or statutory discretion, normally the Wednesbury test is to be applied to find out if the decision was illegal or suffered from procedural improprieties or was one which no sensible decision-maker could, on the material before him and within the framework of the law, have arrived at. The court would consider whether relevant matters had not been taken into account or whether irrelevant matters had been taken into account or whether the action was not bona fide. The court would also consider whether the decision was absurd or perverse. The court would not however go into the correctness of the choice made by the administrator amongst the various alternatives open to him. Nor could the court substitute its decision to that of the administrator. This is the Wednesbury 1992 Supp (2) SCC 237 test. (2) The court would not interfere with the administrator''s decision unless it was illegal or suffered from procedural impropriety or was irrational - in the sense that it was in outrageous defiance of logic or moral standards. The possibility of other tests, including proportionality being brought into English administrative law in future is not ruled out. These are the CCSU9 principles. (3)(a) As per Bugdaycay, Brind 1991 AC 696 : (1991) 1 ALL ER 720 and Smith (1985) 1 SCR 295 (Can) as long as the Convention is not incorporated into English law, the English courts merely exercise a secondary judgment to find out if the decision-maker could have, on the material before him, arrived at the primary judgment in the manner he has done. (3)(b) If the Convention is incorporated in England making available the principle of proportionality, then the English courts will render primary judgment on the validity of the administrative action and find out if the restriction is disproportionate or excessive or is not based upon a fair balancing of the fundamental freedom and the need for the restriction thereupon. (4)(a) The position in our country, in administrative law, where no fundamental freedoms as aforesaid are involved, is that the courts/tribunals will only play a secondary role while the primary judgment as to reasonableness will remain with the executive or administrative authority. The secondary judgment of the court is to be based on Wednesbury and CCSU principles as stated by Lord Greene and Lord Diplock respectively to find if the executive or administrative authority has reasonably arrived at his decision as the primary authority. (4)(b) Whether in the case of administrative or executive action affecting fundamental freedoms, the courts in our country will apply the principle of "proportionality" and assume a primary role, is left open, to be decided in an appropriate case where such action is alleged to offend fundamental freedoms. It will be then necessary to decide whether the courts will have a primary role only if the freedoms under Articles 19, 21 etc. are involved and not for Article 14. Punishment in disciplinary matters: Wednesbury and CCSU tests 32. Finally, we come to the present case. It is not contended before us that any fundamental freedom is affected. We need not therefore go into the question of "proportionality". There is no contention that the punishment imposed is illegal or vitiated by procedural impropriety. As to "irrationality", there is no finding by the Tribunal that the decision is one which no sensible person who weighed the pros and cons could have arrived at nor is there a finding, based on material, that the punishment is in "outrageous" defiance of logic. Neither Wednesbury nor CCSU tests are satisfied. We have still to explain "Ranjit Thakur 1987 4 SCC 611". 33. In Ranjit Thakur 1987 4 SCC 611 this Court interfered with the punishment only after coming to the conclusion that the punishment was in outrageous defiance of logic and was shocking. It was also described as perverse and irrational. In other words, this Court felt that, on facts, Wednesbury and CCSU tests were satisfied........." 20. The primary and secondary role of the Court in exercise of judicial review by the Court was reiterated in Om Kumar v. Union of India, (2001) 2 SCC 386 wherein it was held, "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. But where an administrative action is challenged as "arbitrary" under Article 14 on the basis of Royappa, (1974) 4 SCC 3 (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) 1 SCC 598 (SCC at p. 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 Cellular v. Union of India, (1994) 6 SCC 651 (SCC at pp. 679-80), Indian Express Newspapers Bombay (P) Ltd. v. Union of India, (1985) 1 SCC 641 (SCC at p. 691), Supreme Court Employees'' Welfare Assn. v. Union of India, (1989) 4 SCC 187 (SCC at p. 241) and U.P. Financial Corpn. v. Gem Cap (India) (P). Ltd., (1993) 2 SCC 299 (SCC at p. 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. Proportionality and punishments in service law 69. The principles explained in the last preceding paragraph in respect of Article 14 are now to be applied here where the question of "arbitrariness" of the order of punishment is questioned under Article 14. 70. In this context, we shall only refer to these cases. In Ranjit Thakur v. Union of India, (1987) 4 SCC 611 this Court referred to "proportionality" in the quantum of punishment but the Court observed that the punishment was "shockingly" disproportionate to the misconduct proved. In B.C. Chaturvedi v. Union of India, (1995) 6 SCC 749 this Court stated that the court will not interfere unless the punishment awarded was one which shocked the conscience of the court. Even then, the court would remit the matter back to the authority and would not normally substitute one punishment for the other. However, in rare situations, the court could award an alternative penalty. It was also so stated in Ganayutham, (1997) 7 SC 463. 71. Thus, from the above principles and decided cases, it must be held that where an administrative decision relating to punishment in disciplinary cases is questioned as "arbitrary" under Article 14, the court is confined to Wednesbury principles as a secondary reviewing authority. The court will not apply proportionality as a primary reviewing court because no issue of fundamental freedoms nor of discrimination under Article 14 applies in such a context. The court while reviewing punishment and if it is satisfied that Wednesbury principles are violated, it has normally to remit the matter to the administrator for a fresh decision as to the quantum of punishment. Only in 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. 21. This principle was followed in District Judge, Bahraich v. Munijar Prasad, (2002) 10 SCC 425 in which it was held that the High Court cannot interfere with the quantum of punishment, in the field of administrative law unless it is satisfied that Wednesbury principles are violated, in which case the High Court shall ordinarily remit the matter back to the authority competent to order punishment and punishment of removal awarded after proof of charges was held not liable to be interfered with unless it was "shockingly disproportionate". It was also held so in Devendra Swamy v. Karnataka SRTC, (2002) 9 SCC 644. 22. In Regional Manager, U.P. SRTC, Etawah & Ors. v. Hoti Lal & Anr., (2003) 3 SCC 605, the Hon''ble Supreme Court explained what is to be done by the Court when dealing with the disproportionality of the punishment in the following words, "10. It needs to be emphasized that the court or tribunal while dealing with the quantum of punishment has to record reasons as to why it is felt that the punishment was not commensurate with the proved charges. As has been highlighted in several cases to which reference has been made above, the scope for interference is very limited and restricted to exceptional cases in the indicated circumstances. Unfortunately, in the present case as the quoted extracts of the High Court''s order would go to show, no reasons whatsoever have been indicated as to why the punishment was considered disproportionate. Reasons are live links between the mind of the decision taken to the controversy in question and the decision or conclusion arrived at. Failure to give reasons amounts to denial of justice. [See Alexander Machinery (Dudley) Ltd. v. Crabtree, (1974) 1CR 120 (NIRC).] A mere statement that it is disproportionate would not suffice. A party appearing before a court, as to what it is that the court is addressing its mind. It is not only the amount involved but the mental set-up, the type of duty performed and similar relevant circumstances which go into the decision-making process while considering whether the punishment is proportionate or disproportionate. If the charged employee holds a position of trust where honesty and integrity are inbuilt requirements of functioning, it would not be proper to deal with the matter leniently. Misconduct in such cases has to be dealt with iron hands. Where the person deals with public money or is engaged in financial transactions or acts in a fiduciary capacity, the highest degree of integrity and trustworthiness is a must and unexceptionable. Judged in that background, conclusions of the Division Bench of the High Court do not appear to be proper. We set aside the same and restore order of the learned Single Judge upholding the order of dismissal." 23. The Hon''ble Supreme Court reiterated in Chairman and Managing Director, United Commercial Bank v. P.C. Kakkar, (2003) 4 SCC 364 that 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. The Hon''ble Supreme Court further held that to shorten litigation 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. This approach was followed in Dev Singh v. Punjab Tourism Development Corpn. Ltd., (2003) 8 SCC 9 wherein it was held 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 or is totally disproportionate to the misconduct proved against the delinquent officer, 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 cases and impose appropriate punishment with cogent reasons in support thereof. 24. It may be mentioned that in Kailash Nath Gupta v. Enquiry Officer, (2003) 9 SCC 480 the Hon''ble Supreme Court made a notable observation and permitted interference with the quantum of punishment on the ground that when relevant factors are not taken into consideration which have a bearing on the quantum of punishment, the Court can direct reconsideration or to indicate the punishment to shorten the litigation. It was thus held that, " 9. A Bench of three learned Judges of this Court in B.C. Chaturvedi v. Union of India, (1994) 2 SCC 537 while dealing with the power to interfere with the punishment imposed by the disciplinary authority, in para 17, stated thus: (SCC pp. 761-62) "17. The next question is whether the Tribunal was justified in interfering with the punishment imposed by the disciplinary authority. 10. ..... 11. In the background of what has been stated above, one thing is clear that the power of interference with the quantum of punishment is extremely limited. But when relevant factors are not taken note of, which have some bearing on the quantum of punishment, certainly the Court can direct rereconsideration or in an appropriate case to shorten litigation, indicate the punishment to be awarded. It is stated that there was no occasion in the long past service indicating either irregularity or misconduct of the appellant except the charges which were the subject-matter of his removal from service. The stand of the appellant as indicated above is that though small advances may have become irrecoverable, there is nothing to indicate that the appellant had misappropriated any money or had committed any act of fraud. If any loss has been caused to the Bank (which he quantifies at about Rs. 46,000) that can be recovered from the appellant. As the reading of the various articles of charges go to show, at the most there is some procedural irregularity which cannot be termed to be negligence to warrant the extreme punishment of dismissal from service. 12. These aspects do not appear to have been considered by the High Court in the proper perspective. In the fitness of things, therefore, the High Court should examine these aspects afresh. The consideration shall be limited only to the quantum of punishment and not to any other question.... The writ petition is remitted to the High Court for disposal in the light of what is stated above." 25. In Bhagwan Lal Arya v. Commr. of Police, (2004) 4 SCC 560 the appellant had absented himself for 2 months, 7 days and 17 hours on medical grounds and rules provided that penalty of removal can be imposed only in cases if grave misconduct and continued misconduct indicate incorrigibility and complete unfitness for police service. Under those circumstances, the Hon''ble Supreme Court held that the absence of the appellant on medical grounds with application for leave as well as sanction of leave can under no circumstances be termed as grave misconduct or continued misconduct rendering him unfit for police service. 26. The Hon''ble Supreme Court in Bharat Forge Co. Ltd. v. Uttam Manohar Nakate, (2005) 2 SCC 489 held that past record service can be taken into consideration for deciding proportionality of penalty, but of course, cannot be based on irrational or extraneous factor and certainly not on compassionate ground. It was held that, 6. We have noticed hereinbefore that all the courts have answered the question as regards commission of misconduct by the respondent in one voice... The past record of service, therefore, is a relevant factor for considering as to whether the punishment imposed upon the delinquent employee is shockingly disproportionate or not........... ** ** ** 31. If the punishment is harsh, albeit a lesser punishment may be imposed, but such an order cannot be passed on an irrational or extraneous factor and certainly not on a compassionate ground. 27. In Divisional Controller, KSRTC (NWKRTC) v. A.T. Mane, (2005) 3 SCC 254 the Hon''ble Supreme Court held that on the question of quantum of punishment, one should bear in mind the fact that it is not the amount of money misappropriated that becomes a primary factor for awarding punishment; on the contrary, it is the loss of confidence which is the primary factor to be taken into consideration. In our opinion, when a person is found guilty of misappropriating the corporation''s funds, there is nothing wrong in the corporation losing confidence or faith in such a person and awarding a punishment of dismissal. Referring to the case of Karnataka State Road Transport Corporation, KSRTC (NWKRTC) v. B.S. Hullikatti, (2001) 2 SCC 547 the Hon''ble Supreme Court held in similar circumstances that where the act was either dishonest or was so grossly negligent that the respondent therein was not fit to be retained as a conductor, in such cases there is no place for generosity or misplaced sympathy on the part of the judicial forums and thereby interfere with the quantum of punishment. 28. In Canara Bank v. V.K. Awasthy, (2005) 6 SCC 321 where the Hon''ble Supreme Court was considering the dismissal of a bank official against whom several acts of misconduct unbecoming of a bank official were established showing that the respondent employee failed to discharge his duties with utmost integrity, honesty, devotion and diligence and his acts were prejudicial to the interest of the Bank, declined to interfere on the ground of proportionality. 29. In Union of India v. Ghulam Mohd. Bhat, (2005) 13 SCC 228, the Supreme Court also declined to interfere with the order of removal of a Constable in Central Reserve Police Force who was charged of misconduct on account of overstay beyond sanctioned leave for 315 days without prior permission or sanction from the competent authority. The Court referring to State of U.P. v. Ashok Kumar Singh, (1996) 1 SCC 302 held that an act of indiscipline by such a person needs to be dealt with sternly. It is for the employee concerned to show how that penalty was disproportionate to the proved charges. It was found that no mitigating circumstance was placed by the appellant to show as to how the punishment could be characterised as disproportionate and/or shocking. (vide Mithilesh Singh v. Union of India, (2003) 3 SCC 309). It was observed that one cannot ignore the large number of cases which come to the Court of members of uniformed forces remaining absent from duty without any reasonable explanation. Whenever action is taken, the usual plea taken is of having been ill or some such false pretext, and even fake or false medical certificates are produced in support of such a plea. In the said case it was found that even if it were assumed that the respondent was suffering from depression and was being treated as an outdoor patient, the medical certificates produced by him show that he was restored to normalcy on 4-4-1998, yet he did not choose to report for duty and the Court did not accept the respondent was suffering from mental depression and imbalance. It was also observed that members of the uniformed forces cannot absent themselves on frivolous pleas, having regard to the nature of the duties enjoined on these forces. Such indiscipline, if it goes unpunished, will greatly affect the discipline of the forces. In such forces desertion is a serious matter. Cases of this nature, in whatever manner described, are cases of desertion particularly when there is apprehension of the member of the force being called upon to perform onerous duties in difficult terrains or an order of deputation which he finds inconvenient, is passed. It was observed that the Court cannot take such matters lightly, particularly when it relates to uniformed forces of this country. A member of a uniformed force who overstays his leave by a few days must be able to give a satisfactory explanation. A member of the force who goes on leave and never reports for duties thereafter, cannot be said to be one merely overstaying his leave. He must be treated as a deserter. It was also held that even if the High Court came to the conclusion that the punishment inflicted was grossly disproportionate to the misconduct alleged, it ought to have remitted the matter to the disciplinary authority to reconsider the matter as regards the punishment to be inflicted. 30. In Hombe Gowda Educational Trust v. State of Karnataka, (2006) 1 SCC 430 the Hon''ble Supreme Court revisited the relevant law stated in Krishnakali Tea Estate v. Akhil Bharatiya Chah Mazdoor Sangh 2004 (8) SCC 200 : 2004 AIR SC 4647, Muriadih Colliery v. Bihar Colliery Kamgar Union, (2005) 3 SCC 331 and held that if the Tribunal decides to interfere with punishment it should bear in mind the principle of proportionality between the gravity of the offence and the stringency of the punishment. Referring to V. Ramana v. A.P. SRTC, 2001 (5) ALD 427 : 2002 (92) FLR 427, Andhra High Court the Supreme Court observed that the common thread running through these decisions is that 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. It was further held that 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 and to shorten litigations it may, in exceptional and rare cases, impose appropriate punishment by recording cogent reasons in support thereof. In a 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. The decision in Bharat Forge Co. Ltd. v. Uttam Manohar Nakate, (2005) 2 SCC 489 was also referred to. Regional Manager, Rajasthan SRTC v. Sohan Lal, 2000 (1) SCC 434 was also referred to wherein it was held that it is not the normal jurisdiction of the superior courts to interfere with the quantum of sentence unless it is wholly disproportionate to the misconduct proved. M.P. Electricity Board v. Jagdish Chandra Sharma, 2005 3 SCC 401 was also referred to wherein the Supreme Court considered hitting and injuring to be serious breach of discipline and termination from service was not held to be shockingly disproportionate to the charge proved. Divisional Controller, KSRTC (NWKRTC) v. A.T. Mane, AIR 2004 SC 4761 was also referred to about the loss of confidence which is the primary factor to be taken into consideration. 31. In State of Rajasthan v. Mohd. Ayub Naz, (2006) 1 SCC 589 the Supreme Court was dealing with wilful absence for a period of about 3 years and the employee was removed from service. The interference by the High Court directing that the respondent can be deemed to have retired after rendering of service of 20 years with all retiral benefits which may be available to him was held unwarranted relying on Om Kumar v. Union of India, (2001) 2 SCC 386 wherein it was held that while considering the quantum of punishment/proportionality the role of administrative authority is primary and that of court is secondary, and confined to see if discretion exercised by the administrative authority caused excessive infringement of rights. It was held in the said case that the authorities had not omitted any relevant materials nor any irrelevant fact been taken into account nor any illegality committed by the authority nor was the punishment awarded was shockingly disproportionate. The Supreme Court, held that punishment was awarded after considering all the relevant materials and hence, interference by the High Court on reduction of punishment of removal was not called for. 32. In Commr. of Police v. Syed Hussain, (2006) 3 SCC 173 the Supreme Court was dealing with the removal of a constable who was found guilty for standing surety for a person accused in many as 32 cases involving chain snatching and helping other accused in getting bail. The Court took a grim view considering the nature of duties that a protector of law is required to perform and held that the disciplinary authority cannot be said to have committed an error in imposing the punishment of removal from service upon the respondent and is not violative of the doctrine of proportionality. 33. In U.P. SRTC v. Shivaji, (2006) 13 SCC 637 the Hon''ble Supreme Court invoked the doctrine of proportionality observing that doctrine of irrationality is now giving way to doctrine of proportionality (referring to Commr. of Police v. Syed Hussain, (2006) 3 SCC 173.). For the negligence on the charge of dashing into the barrier and causing injury to a person, the punishment of removal of the driver was set aside by reinstating in service with 25% back wages. 34. In A.P. SRTC v. Raghuda Siva Sankar Prasad, (2007) 1 SCC 222 the Hon''ble Supreme Court reiterated the principle that it is not open to the tribunal and courts to substitute their subjective opinion in place of the one arrived at the domestic tribunal and there is no place for generosity or sympathy on the part of the judicial forums for interfering with the quantum of punishment of removal which cannot be justified. Similarly, the High Court can modify the punishment in exercise of its jurisdiction under Article 226 of the Constitution only when it finds that the punishment imposed is shockingly disproportionate to the charges proved. 35. In Coimbatore District Central Coop. Bank v. Employees Assn., (2007) 4 SCC 669, the Hon''ble Supreme Court dealt in detail the doctrine proportionality in the following words, "Doctrine of proportionality 17. So far as the doctrine of proportionality is concerned, there is no gainsaying that the said doctrine has not only arrived in our legal system but has come to stay. With the rapid growth of administrative law and the need and necessity to control possible abuse of discretionary powers by various administrative authorities, certain principles have been evolved by courts. If an action taken by any authority is contrary to law, improper, irrational or otherwise unreasonable, a court of law can interfere with such action by exercising power of judicial review. One of such modes of exercising power, known to law is the "doctrine of proportionality". 18. "Proportionality" is a principle where the court is concerned with the process, method or manner in which the decision-maker has ordered his priorities, reached a conclusion or arrived at a decision. The very essence of decision-making consists in the attribution of relative importance to the factors and considerations in the case. The doctrine of proportionality thus steps in focus true nature of exercise-the elaboration of a rule of permissible priorities. 19. de Smith states that "proportionality" involves "balancing test" and "necessity test". Whereas the former (balancing test) permits scrutiny of excessive onerous penalties or infringement of rights or interests and a manifest imbalance of relevant considerations, the latter (necessity test) requires infringement of human rights to the least restrictive alternative. [Judicial Review of Administrative Action (1995), pp. 601-05, para 13.085; see also Wade & Forsyth: Administrative Law (2005), p. 366.] 28. Applying the doctrine of proportionality and following CCSU, Venkatachaliah, J. (as His Lordship then was) observed: (SCC p. 620, para 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." (emphasis supplied) Doctrine of proportionality: Whether applicable 29. From the above decisions, it is clear that our legal system also has accepted the doctrine of proportionality. The question, however, is whether in the facts and circumstances of the present case, the High Court was justified in invoking and applying the doctrine of proportionality. In our judgment, the answer must be in the negative. Normally, when disciplinary proceedings have been initiated and finding of fact has been recorded in such inquiry, it cannot be interfered with unless such finding is based on "no evidence" or is perverse, or is such that no reasonable man in the circumstances of the case would have reached such finding...... ....." 34. As observed by this Court in M.P. Gangadharan v. State of Kerala, (2006) 6 SCC 162 the constitutional requirement for judging the question of reasonableness and fairness on the part of the statutory authority must be considered having regard to the factual matrix in each case. It cannot be put in a straitjacket formula. It must be considered keeping in view the doctrine of flexibility. Before an action is struck down, the Court must be satisfied that a case has been made out for exercise of power of judicial review. The Court observed that we are not unmindful of the development of the law that from the doctrine of "Wednesbury unreasonableness", the Court is leaning towards the doctrine of "proportionality". But in a case of this nature, the doctrine of proportionality must also be applied having regard to the purport and object for which the Act was enacted. 36. In State of M.P. v. Hazarilal, (2008) 3 SCC 273 the Supreme Court once again dealt with the scope of judicial review and observed that the doctrine of proportionality has come to stay in our jurisprudence as follows. "8. An authority which is conferred with a statutory discretionary power is bound to take into consideration all the attending facts and circumstances of the case before imposing an order of punishment. While exercising such power, the disciplinary authority must act reasonably and fairly. The respondent occupied the lowest rank of the cadre. He was merely a contingency peon. Continuation of his service in the department would not bring a bad name to the State. He was not convicted for any act involving moral turpitude. He was not punished for any heinous offence. 11. Furthermore, the legal parameters of judicial review have undergone a change. Wednesbury principle of unreasonableness has been replaced by the doctrine of proportionality. (See Indian Airlines Ltd. v. Prabha D. Kanan (2006) 11 SCC 67, State of U.P. v. Sheo Shanker Lal Srivastava, (2006) 3 SCC 276 : AIR 2006 SC 3548 and M.P. Gangadharan v. State of Kerala, (2006) 6 SCC 162.) 12. .... 13. It is interesting to note that distinguishing between the traditional grounds of judicial review and the doctrine of proportionality, Lord Carswell in Tweed, [2007] 1 AC 650 after referring to previous decisions and authorities, observed: (WLR p. 15, para 35) "35. ... ''27. ... The starting point is that there is an overlap between the traditional grounds of review and the approach of proportionality. Most cases would be decided in the same way whichever approach is adopted. But the intensity of review is somewhat greater under the proportionality approach. Making due allowance for important structural differences between various convention rights, which I do not propose to discuss, a few generalisations are perhaps permissible. I would mention three concrete differences without suggesting that my statement is exhaustive. First, the doctrine of proportionality may require the reviewing court to assess the balance which the decision-maker has struck, not merely whether it is within the range of rational or reasonable decisions. Secondly, the proportionality test may go further than the traditional grounds of review inasmuch as it may require attention to be directed to the relative weight accorded to interests and considerations. Thirdly, even the heightened scrutiny test developed in R. V. Ministry of Defence, ex p Smith, [1996] QB 517 is not necessarily appropriate to the protection of human rights." 14. Applying the said principle also, in our opinion, no interference with the impugned judgment is called for. 15. Reliance has been placed by the learned counsel on Coimbatore District Central Coop. Bank v. Employees Assn., (2007) 4 SCC 669 wherein also this Court accepted the applicability of the doctrine of proportionality. Therein this Court has quoted with approval the decision of this Court in Ranjit Thakur v. Union of India, (1987) 4 SCC 611 as also M.P. Gangadharan v. State of Kerala, 2006 (6) SCC 162, which had applied the doctrine of proportionality. 37. The Supreme Court, however, in V.S.P. v. Goparaju Sri Prabhakara Hari Babu, (2008) 5 SCC 569, took the view that the doctrine of proportionality is not very different from the principle of judicial review based on Wednesbury reasonableness. It observed that, " 20. The jurisdiction of the High Court in this regard is rather limited. Its power to interfere with disciplinary matters is circumscribed by well-known factors. It cannot set aside a well-reasoned order only on sympathy or sentiments. (See Maruti Udyog Ltd. v. Ram Lal 2005 (2) SCC 638; State of Bihar v. Amrendra Kumar Mishra, 2006 (12) SCC 561; SBI v. Mahatma Mishra, 2006 (13) SCC 727; State of Karnataka v. Ameerbi, 2007 (11) SCC 681; State of M.P. v. Sanjay Kumar Pathak, 2008 (1) SCC 456 and Uttar Haryana Bijli Vitran Nigam Ltd. v. Surji Devi, 2008 (1) RAJ 644 (SC).) 21. Once it is found that all the procedural requirements have been complied with, the courts would not ordinarily interfere with the quantum of punishment imposed upon a delinquent employee. The superior courts only in some cases may invoke the doctrine of proportionality. If the decision of an employer is found to be within the legal parameters, the jurisdiction would ordinarily not be invoked when the misconduct stands proved. (See Sangfroid Remedies Ltd. v. Union of India AIR 1999 SC 3468.) 22. The High Court in exercise of its jurisdiction under Article 226 of the Constitution of India also cannot, on the basis of sympathy or sentiment, overturn a legal order." In the said case, the respondent was a technician and during the period of probation, in spite of warnings and lenient views taken remained absent for long periods on several occasions and imposition of minor penalties. He was ultimately removed from service on the ground of habitual absence and failure to explain his absence which was challenged as shockingly disproportionate. The Supreme Court found that the respondent was a habitual absentee and did not interfere with the punishment. 38. In State of Meghalaya v. Mecken Singh N. Marak, (2008) 7 SCC 580, the Hon''ble Supreme Court observed that while considering the question of proportionality of sentence the court should also take into consideration, the mental set-up of the delinquent, the type of duty to be performed by him and similar relevant circumstances which go into the decision-making process. If the charged employee holds the position of trust where honesty and integrity are inbuilt requirements of functioning, it would not be proper to deal with the matter leniently. It was held that, "14. In the matter of imposition of sentence, the scope for interference is very limited and restricted to exceptional cases. The jurisdiction of the High Court, to interfere with the quantum of punishment is limited and cannot be exercised without sufficient reasons. The High Court, although has jurisdiction in appropriate case, to consider the question in regard to the quantum of punishment, but it has a limited role to play. It is now well settled that the High Courts, in exercise of powers under Article 226, do not interfere with the quantum of punishment unless there exist sufficient reasons therefor. The punishment imposed by the disciplinary authority or the appellate authority unless shocking to the conscience of the court, cannot be subjected to judicial review. In the impugned order of the High Court no reasons whatsoever have been indicated as to why the punishment was considered disproportionate. Failure to give reasons amounts to denial of justice. The mere statement that it is disproportionate would not suffice. 15. While considering the question of proportionality of sentence imposed on a delinquent at the conclusion of departmental enquiry, the court should also take into consideration, the mental set-up of the delinquent, the type of duty to be performed by him and similar relevant circumstances which go into the decision-making process. If the charged employee holds the position of trust where honesty and integrity are inbuilt requirements of functioning, it would not be proper to deal with the matter leniently. Misconduct, in such cases has to be dealt with iron hands. 16. The respondent belonged to a disciplined force. He was supposed to carry out instructions given to him by his superior. Not only did he flout the instructions, but conducted himself in such a manner that he caused loss of part of pay to be deposited with the exchequer and loss of service revolver with ammunition which could be misused. When a statute gives discretion to the administrator to take a decision, the scope of judicial review would remain limited. The proved charges clearly established that the respondent, who was a police officer failed to discharge his duties with utmost integrity, honesty, devotion and diligence and his acts were prejudicial to the exchequer and society. 17. Even in cases where the punishment imposed by the disciplinary authority is found to be shocking to the conscience of the court, normally the disciplinary authority or the appellate authority should be directed to reconsider the question of imposition of penalty. The High Court in this case, has not only interfered with the punishment imposed by the disciplinary authority in a routine manner but overstepped its jurisdiction by directing the appellate authority to impose any other punishment short of removal. By fettering the discretion of the appellate authority to impose appropriate punishment for serious misconducts committed by the respondent, the High Court totally misdirected itself while exercising jurisdiction under Article 226. Judged in this background, the conclusion of the Division Bench of the High Court cannot be regarded as proper at all. The High Court has interfered with the punishment imposed by the competent authority in a casual manner and, therefore, the appeal will have to be accepted." 39. In State of Punjab v. Dr. P.L. Singla, (2008) 8 SCC 469 it was held that imposition of penalty will depend upon the nature of service, the position held by the employee, the period of absence and the cause/explanation for the absence as held as follows: "14. Where the employee who is unauthorisedly absent does not report back to duty and offer any satisfactory explanation, or where the explanation offered by the employee is not satisfactory, the employer will take recourse to disciplinary action in regard to the unauthorised absence. Such disciplinary proceedings may lead to imposition of punishment ranging from a major penalty like dismissal or removal from service to a minor penalty like withholding of increments without cumulative effect. The extent of penalty will depend upon the nature of service, the position held by the employee, the period of absence and the cause/explanation for the absence. Where the punishment is either dismissal or removal, it may not be necessary to pass any consequential orders relating to the period of unauthorised absence (unless the rules require otherwise). Where the punishment awarded for the unauthorised absence, does not result in severance of employment and the employee continues in service, it will be necessary to pass some consequential order as to how the period of absence should be accounted for and dealt with in the service record. If the unauthorised absence remains unaccounted it will result in break in service, thereby affecting the seniority, pension, pay, etc. of the employee. Any consequential order directing how the period of absence should be accounted, is an accounting and administrative procedure, which does not affect or supersede the order imposing punishment. 40. In Ramvir Singh v. Union of India, (2009) 3 SCC 97 the Hon''ble Supreme Court applied the doctrine of proportionality by referring to in Ranjit Thakur v. Union of India (supra), Union of India v. Narain Singh AIR 1953 P&H 274, Apparel Export Promotion Council v. A.K. Chopra AIR 1999 SC 625, Union of India v. Datta Linga Toshatwad (2005) 13 SCC 709, State Bank of Hyderabad v. P. Kata Rao 2008 (15) SCC 657and held that unless the penalty is disproportionate to the offence as to shock the conscience of the Court, it should not be interfered with. 41. In Coal India Ltd. v. Mukul Kumar Choudhuri, (2009) 15 SCC 620, the Hon''ble Supreme Court by invoking the doctrine of proportionality interfered with the penalty of removal on the ground of absence for six months for reasons beyond his control was held to be harsh and grossly in excess to the allegations. The Hon''ble Court held that one of the tests to be applied while dealing with the question of quantum of punishment would be whether any reasonable employer would have imposed such punishment in like circumstances? And a reasonable employer is expected to take into consideration measure, magnitude and degree of misconduct and all other relevant circumstances and exclude irrelevant matters before imposing punishment. The Hon''ble Court thus held as follows, "16. In Union of India v. G. Ganayutham, (1997) 7 SCC 463 this Court elaborately considered the proportionality in the administrative law in England as well as in our own country. The Court considered some important English decisions viz. Associated Provincial Picture Houses Ltd. v. Wednesbury Corpn., (1948) 1 KB 223, Council of Civil Service Unions v. Minister for Civil Service (1985) AC 374, R. v. Goldstein, (2006) 1 AC 459 and R. v. Secy. of State for the Home Deptt., ex p Brind, (1991) AC 696 and few decisions of this Court viz. Ranjit Thakur v. Union of India (1987) 4 SCC 611, State of Maharashtra v. M.H. Mazumdar (1988) 2 SCC 52, Ex- Naik Sardar Singh v. Union of India AIR 1992 SC 417, Tata Cellular v. Union of India 1996 AIR SC 11, 1994 SCC (6) 651, State of A.P. v. McDowell & Co. (1996) 3 SCC 709 and summed up position of proportionality in administrative law in England and India thus: (G. Ganayutham case7, SCC pp. 478-79, para 31) 19. The doctrine of proportionality is, thus, well-recognised concept of judicial review in our jurisprudence. What is otherwise within the discretionary domain and sole power of the decision-maker to quantify punishment once the charge of misconduct stands proved, such discretionary power is exposed to judicial intervention if exercised in a manner which is out of proportion to the fault. Award of punishment which is grossly in excess to the allegations cannot claim immunity and remains open for interference under limited scope of judicial review. 20. One of the tests to be applied while dealing with the question of quantum of punishment would be: would any reasonable employer have imposed such punishment in like circumstances? Obviously, a reasonable employer is expected to take into consideration measure, magnitude and degree of misconduct and all other relevant circumstances and exclude irrelevant matters before imposing punishment. 21. In a case like the present one where the misconduct of the delinquent was unauthorised absence from duty for six months but upon being charged of such misconduct, he fairly admitted his guilt and explained the reasons for his absence by stating that he did not have any intention nor desired to disobey the order of higher authority or violate any of the Company''s rules and regulations but the reason was purely personal and beyond his control and, as a matter of fact, he sent his resignation which was not accepted, the order of removal cannot be held to be justified, since in our judgment, no reasonable employer would have imposed extreme punishment of removal in like circumstances. The punishment is not only unduly harsh but grossly in excess to the allegations. 22. Ordinarily, we would have sent the matter back to the appropriate authority for reconsideration on the question of punishment but in the facts and circumstances of the present case, this exercise may not be proper. In our view, the demand of justice would be met if Respondent 1 is denied back wages for the entire period by way of punishment for the proved misconduct of unauthorised absence for six months. 23. Consequently, both these appeals are allowed in part. The appellants shall reinstate Respondent 1 forthwith but he will not be entitled to any back wages from the date of his removal until reinstatement. Parties will bear their own costs." 42. In Charanjit Lamba v. Army Southern Command, (2010) 11 SCC 314 the Hon''ble Court after referring to various decisions in this regard held that, "19. That the punishment imposed upon a delinquent should be commensurate to the nature and generally of the misconduct, is not only a requirement of fairness, objectivity, and non-discriminatory treatment which even those form quality (sic) of a misdemeanour are entitled to claim but the same is recognised as being a part of Article 14 of the Constitution. It is also evident from the long line of decisions referred to above that the courts in India have recognised the doctrine of proportionality as one of the ground for judicial review. Having said that we need to remember that the quantum of punishment in disciplinary matters is something that rests primarily with the disciplinary authority. The jurisdiction of a writ court or the Administrative Tribunal for that matter is limited to finding out whether the punishment is so outrageously disproportionate as to be suggestive of lack of good faith." Similarly, it was held in UT of Dadra & Nagar Haveli v. Gulabhia M. Lad, (2010) 5 SCC 775 : (2010) 2 SCC (L&S) 101 that "14. The legal position is fairly well settled that while exercising the power of judicial review, the High Court or a Tribunal cannot interfere with the discretion exercised by the disciplinary authority, and/or on appeal the appellate authority with regard to the imposition of punishment unless such discretion suffers from illegality or material procedural irregularity or that would shock the conscience of the court/tribunal. The exercise of discretion in imposition of punishment by the disciplinary authority or appellate authority is dependent on host of factors such as gravity of misconduct, past conduct, the nature of duties assigned to the delinquent, responsibility of the position that the delinquent holds, previous penalty, if any, and the discipline required to be maintained in the department or establishment he works. Ordinarily the court or a tribunal would not substitute its opinion on reappraisal of facts." 43. In All India Railway Recruitment Board v. K. Shyam Kumar, (2010) 6 SCC 614 the Hon''ble Supreme Court made the observation that proportionality principle has not so far replaced the Wednesbury principle and the time has not been reached to say goodbye to Wednesbury much less its burial. It was held that, "28. The position in English Administrative Law is that both the tests, that is, Wednesbury [1948] 1 KB 223 and proportionality continue to coexist and the proportionality test is more and more applied, when there is violation of human rights and fundamental freedoms and the Wednesbury (supra) principle finds its presence more on the domestic law when there is violation of citizens'' ordinary rights. Proportionality principle has not so far replaced the Wednesbury (supra) principle and the time has not been reached to say goodbye to Wednesbury (supra) much less its burial. 34. With due respect, we are unable to subscribe to that view, which is an overstatement of the English Administrative Law. 35.Wednesbury (supra) principle of unreasonableness as such has not been replaced by the doctrine of proportionality though that test is being applied more and more when violation of human rights is alleged. H.W.R. Wade & C.F. Forsyth in the 10th Edn. Of Administrative Law (2009) has omitted the passage quoted by this Court in Jitender Kumar case, (2008) 2 SCC 161 and stated as follows: "Notwithstanding the apparent persuasiveness of these views the coup de grace has not yet fallen on Wednesbury (supra) unreasonableness. Where a matter falls outside the ambit of the 1998 Act, the doctrine is regularly relied upon by the courts. Reports of its imminent demise are perhaps exaggerated." (emphasis applied) Wednesbury (supra)and Proportionality 36. Wednesbury (supra) applies to a decision which is so reprehensible in its defiance of logic or of accepted moral or ethical standards that no sensible person who had applied his mind to the issue to be decided could have arrived at it. Proportionality as a legal test is capable of being more precise and fastidious than a reasonableness test as well as requiring a more intrusive review of a decision made by a public authority which requires the courts to "assess the balance or equation" struck by the decision-maker. Proportionality test in some jurisdictions is also described as the "least injurious means" or "minimal impairment" test so as to safeguard the fundamental rights of citizens and to ensure a fair balance between individual rights and public interest. Suffice it to say that there has been an overlapping of all these tests in its content and structure, it is difficult to compartmentalise or lay down a straitjacket formula and to say that Wednesbury (supra) has met with its death knell is too tall a statement. Let us, however, recognise the fact that the current trend seems to favour proportionality test but Wednesbury (supra) has not met with its judicial burial and a State burial, with full honours is surely not to happen in the near future. 37. Proportionality requires the court to judge whether action taken was really needed as well as whether it was within the range of courses of action which could reasonably be followed. Proportionality is more concerned with the aims and intention of the decision-maker and whether the decision-maker has achieved more or less the correct balance or equilibrium. The court entrusted with the task of judicial review has to examine whether decision taken by the authority is proportionate i.e. well balanced and harmonious, to this extent the court may indulge in a merit review and if the court finds that the decision is proportionate, it seldom interferes with the decision taken and if it finds that the decision is disproportionate i.e. if the court feels that it is not well balanced or harmonious and does not stand to reason it may tend to interfere. 38. Leyland and Anthony in Textbook on Administrative Law (5th Edn. OUP, 2005) at p. 331 has amply put as follows: "Proportionality works on the assumption that administrative action ought not to go beyond what is necessary to achieve its desired results (in everyday terms, that you should not use a sledgehammer to crack a nut) and in contrast to irrationality is often understood to bring the courts much closer to reviewing the merits of a decision." 39. The courts have to develop an indefeasible and principled approach to proportionality, till that is done there will always be an overlapping between the traditional grounds of review and the principle of proportionality and the cases would continue to be decided in the same manner whichever principle is adopted. Proportionality as the word indicates has reference to variables or comparison, it enables the court to apply the principle with various degrees of intensity and offers a potentially deeper inquiry into the reasons, projected by the decision-maker." 44. In Surendra Prasad Shukla v. State of Jharkhand, (2011) 8 SCC 536 the appellant was found guilty of keeping a robbed car and giving shelter to the accused persons in his house and not informing the matter to the higher authorities, which conduct was held to have tarnished the image of the police force and the punishment of dismissal was imposed. The Hon''ble Supreme Court noted that there was no charge against the appellant that he had in any way aided or abetted the offence under Section 392 IPC or that he knew that his son had stolen the car and yet he did not inform the police. The appellant was guilty of negligence of not having enquired from his son about the car kept in front of the government quarters occupied by him. The Hon''ble Court took into consideration that the appellant had served the Government as a Constable and thereafter as a Head Constable from 7-8-1971 till he was dismissed from service on 28-2-2005 i.e. for 34 years, and for such long service he had earned pension. In that view, the Hon''ble Supreme Court considered that the punishment of dismissal of the appellant from service so as to deprive him of his pension for the service that he had rendered for 34 long years was shockingly disproportionate to the negligence proved against him and accordingly, modified the punishment of dismissal from service to compulsory retirement. 45. However, in Commandant, 22nd Battalion, Central Reserve Police Force, Srinagar, C/O 56/APO and Ors. v. Surinder Kumar, (2011) 10 SCC 244 the Hon''ble Supreme Court considered the act of the personnel in leaving his party without permission while on duty in the operational area for 20 minutes and returning on his own and getting enraged when his superior decided to take him for medical examination when he found him to be in a state of intoxication and he snatched the AK-47 rifle of his superior and pointed the barrel towards him but due to the intervention of another an untoward incident was avoided. The Hon''ble Supreme Court held that these acts of indiscipline were considered to be prejudicial to the good order and discipline and when committed by a member of a disciplined force like CRPF and serious enough to warrant dismissal from service. The Hon''ble Court referred to Union of India v. R.K. Sharma (2001) 9 SCC 592, in which it was held that the punishment should not be merely disproportionate but should be strikingly disproportionate to warrant interference by the High Court under Article 226 of the Constitution and it was only in an extreme case, where on the face of it there is perversity or irrationality that there can be judicial review under Articles 226 or 227 or under Article 32 of the Constitution. 46. In Maharashtra Land Development Corpn. v. State of Maharashtra, (2011) 15 SCC 616 the Hon''ble Supreme Court held that the Wednesbury principle of reasonableness has given way to the doctrine of proportionality. Though the case did not relate to imposition of penalty in a domestic enquiry, yet the scope of doctrine of proportionality was explained. The Hon''ble Court held that, 60. However, the Wednesbury, [1948] 1 KB 223 principle of reasonableness has given way to the doctrine of proportionality. Through his decision in the celebrated case of Council of Civil Service Unions v. Minister for Civil Service [1983] UKHL 6, Lord Diplock widened the grounds of judicial review. He mainly referred to three grounds upon which administrative action is subject to control by judicial review. The first ground being "illegality", the second "irrationality" and the third "procedural impropriety". He also mentioned that by further development on a case-to-case basis, in due course, there may be other grounds for challenge. He particularly emphasised the principles of proportionality. Thus, in a way, Lord Diplock replaced the language of "reasonableness" with that of "proportionality" when he said: (410 G) "By ''irrationality'' I mean what can by now be succinctly referred to as ''Wednesbury 1948 (1) KB 223 unreasonableness''.... It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it." 61. The principle of proportionality envisages that a public authority ought to maintain a sense of proportion between particular goals and the means employed to achieve those goals, so that administrative action impinges on the individual rights to the minimum extent to preserve public interest. Thus implying that administrative action ought to bear a reasonable relationship to the general purpose for which the power has been conferred. The principle of proportionality therefore implies that the court has to necessarily go into the advantages and disadvantages of any administrative action called into question. Unless the impugned administrative action is advantageous and in public interest such an action cannot be upheld. At the core of this principle is the scrutiny of the administrative action to examine whether the power conferred is exercised in proportion to the purpose for which it has been conferred. Thus, any administrative authority while exercising a discretionary power will have to necessarily establish that its decision is balanced and in proportion to the object of the power conferred. 62. This principle has found favour in recent times with this Court, and a number of decisions reflect the shift towards the doctrine of proportionality. In Bhagat Ram v. State of H.P. AIR 1983 SC 454 this Court held that if the penalty imposed is disproportionate to the gravity of the misconduct, it would violate Article 14 of the Constitution. 63. In Ex-Naik Sardar Singh v. Union of India, AIR 1992 SC 417 where instead of one bottle of brandy that was authorised, the delinquent was found carrying four bottles of brandy while going home on leave. He was sentenced to three months'' rigorous imprisonment and dismissal from service which was found by this Court to be disproportionate to the gravity of the offence proved against him. 64. In Coimbatore District Central Coop. Bank v. Employees Assn., (2005) 1 MLJ 656 this Court stated that the doctrine of proportionality has not only arrived in our legal system but is here to stay. With the increasing presence and visibility of administrative law and the need to control possible abuse of discretionary powers by various administrative authorities, certain principles have been evolved by reference to which the action of such authorities can be judged. If any action taken by an authority is contrary to law, improper, irrational or otherwise unreasonable, a court competent to do so can interfere with the same while exercising its power of judicial review. 65. In Charanjit Lamba v. Army Southern Command, AIR 1951 SC 41 it was held that: (SCC p. 320, para 18) "18. ... ''34. The constitutional requirement for judging the question of reasonableness and fairness on the part of the statutory authority must be considered having regard to the factual matrix obtaining in each case. It cannot be put in a straitjacket formula. It must be considered keeping in view the doctrine of flexibility. Before an action is struck down, the court must be satisfied that a case has been made out for exercise of power of judicial review. We are not unmindful of the development of the law that from the doctrine of Wednesbury unreasonableness, the court is leaning towards the doctrine of proportionality.''" 66. The test of proportionality is therefore concerned with the way in which the decision-maker has ordered his priorities, i.e. the attribution of relative importance to the factors in the case. Thus, it is not so much the correctness of the decision that is called into question, but the method to reach the same. In this context, we are to see if the decision of the respondent State in considering the disputed property to be automatically vested with the Government is commensurate with public interests, in a way that affects individual rights in a minimal way." 47. This Court would like to make the observation that in the aforesaid case, the examination by the Hon''ble Supreme Court did not involve fundamental freedom but whether certain land in question was "forest" or "private forest" as referred to in the Maharashtra Private Forests (Acquisition) Act, 1975. On other hand, the Hon''ble Supreme Court held in Ranjit Thakur, 1987 (supra) that where the Court exercises power of judicial review of administrative actions which does not involve fundamental freedom, it plays a secondary role in which case, the doctrine of proportionality will be not be applicable and only when the judicial review involves fundamental freedom that the Court plays a primary role when doctrine of proportionality can be invoked. 48. The Supreme Court applied the doctrine of proportionality in Chandra Kumar Chopra v. Union of India, (2012) 6 SCC 369 by holding that penalty imposed must be commensurate with the gravity of the misconduct, and that any penalty disproportionate to the gravity of the misconduct would be violative of Article 14 of the Constitution referring to Bhagat Ram v. State of H.P., AIR 1983 SC 454. Coal India Ltd. v. Mukul Kumar Choudhuri, 2009 (15) SCC 620 was also referred to wherein it was held that imposition of punishment is subject to judicial intervention if the same is exercised in a manner which is out of proportion to the fault. The test of a reasonable employer was also followed. 49. In S.R. Tewari v. Union of India, (2013) 6 SCC 602 the Hon''ble Supreme Court reiterated the law of proportionality which is to be tested on the anvil of Article 14 of the Constitution by holding that the sentence has to suit the offence and the offender, as follows: "6. Thus, the questions that arise for consideration of this Court are whether the punishment of compulsory retirement awarded by the disciplinary authority is proportionate to the delinquency proved and whether the respondents in the contempt petitions wilfully violated the order dated 5-10- 20125 passed by this Court holding that the punishment should not be given effect to until it is produced before the Court at the time of the next hearing. 24. The question of interference on the quantum of punishment has been considered by this Court in a catena of judgments and it was held that if the punishment awarded is disproportionate to the gravity of the misconduct, it would be arbitrary, and thus, would violate the mandate of Article 14 of the Constitution. In Ranjit Thakur v. Union of India AIR 1987 SC 2386, this Court observed as under: (SCC pp. 620-21, paras 25 & 27) "25. 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. .. ... .. 27. In the present case the punishment is so strikingly disproportionate as to call for and justify interference. It cannot be allowed to remain uncorrected in judicial review." (emphasis supplied) (See also Union of India v. G. Ganayutham 2014 (310) ELT 417 (SC): (1997) 7 SCC 463, State of U.P. v. J.P. Saraswat 2011 (3) SCALE 510, Chandra Kumar Chopra v. Union of India,2012 (6) SCC 369 and High Court of Patna v. Pandey Gajendra Prasad, AIR 2012 SC 2319.) 25. In B.C. Chaturvedi v. Union of India AIR 1996 SC 484, this Court after examining its various earlier decisions observed that in exercise of the power of judicial review, the court cannot "normally" substitute its own conclusion or penalty. However, if the penalty imposed by an authority "shocks the conscience" of the court, it would appropriately mould the relief either directing the authority to reconsider the penalty imposed and in exceptional and rare cases, in order to shorten the litigation, itself impose appropriate punishment with cogent reasons in support thereof. While examining the issue of proportionality, the court can also consider the circumstances under which the misconduct was committed. In a given case, the prevailing circumstances might have forced the accused to act in a certain manner though he had not intended to do so. The court may further examine the effect, if the order is set aside or substituted by some other penalty. However, it is only in very rare cases that the court might, to shorten the litigation, think of substituting its own view as to the quantum of punishment in place of punishment awarded by the competent authority. 26. In V. Ramana v. A.P. SRTC (2005) 7 SCC 338, this Court considered the scope of judicial review as to the quantum of punishment is permissible only if it is found that it is not commensurate with the gravity of the charges and if the Court comes to the conclusion that the scope of judicial review as to the quantum of punishment is permissible only if it is found to be "shocking to the conscience of the court, in the sense that it was in defiance of logic or moral standards." In a normal course, if the punishment imposed is shockingly disproportionate, it would be appropriate to direct the disciplinary authority to reconsider the penalty imposed. However, in order to shorten the litigation, in exceptional and rare cases, the court itself can impose appropriate punishment by recording cogent reasons in support thereof. 27. In State of Meghalaya v. Mecken Singh N. Marak, 2008 (7) SCC 580 this Court observed that: (SCC p. 584, paras 13-14) "......" 28. The role of the court in the matter of departmental proceedings is very limited and the court cannot substitute its own views or findings by replacing the findings arrived at by the authority on detailed appreciation of the evidence on record. In the matter of imposition of sentence, the scope for interference by the court is very limited and restricted to exceptional cases. The punishment imposed by the disciplinary authority or the appellate authority unless shocking to the conscience of the court, cannot be subjected to judicial review. The court has to record reasons as to why the punishment is disproportionate. Failure to give reasons amounts to denial of justice. The mere statement that it is disproportionate would not suffice. (Vide Union of India v. Bodupalli Gopalaswami, 2011 (13) SCC 553 and Sanjay Kumar Singh v. Union of India, 2011 (14) SCC 692.) 29. In Union of India v. R.K. Sharma 2001 Supp (3) SCR 664 : (2001) 9 SCC 592, this Court explained the observations made in Ranjit Thakur observing that if the charge was ridiculous, the punishment was harsh or strikingly disproportionate it would warrant interference. However, the said observations in Ranjit Thakur are not to be taken to mean that a court can, while exercising the power of judicial review, interfere with the punishment merely because it considers the punishment to be disproportionate. It was held that only in extreme cases, which on their face, show perversity or irrationality, there could be judicial review and courts should not interfere merely on compassionate grounds. 30. The findings of fact recorded by a court can be held to be perverse if the findings have been arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant/inadmissible material. The finding may also be said to be perverse if it is "against the weight of evidence", or if the finding so outrageously defies logic as to suffer from the vice of irrationality. If a decision is arrived at on the basis of no evidence or thoroughly unreliable evidence and no reasonable person would act upon it, the order would be perverse. But if there is some evidence on record which is acceptable and which could be relied upon, the conclusions would not be treated as perverse and the findings would not be interfered with. (Vide Rajinder Kumar Kindra v. Delhi Admn. AIR 1984 SC 1805, Kuldeep Singh v. Commr. of Police (1999) 2 SCC 10, Gamini Bala Koteswara Rao v. State of A.P. (2009) 10 SCC 636 and Babu v. State of Kerala (2010) 9 SCC 189.) 31. Hence, where there is evidence of malpractice, gross irregularity or illegality, interference is permissible." 50. In Jai Bhagwan v. Commr. of Police, (2013) 11 SCC 187 the Hon''ble Supreme Court reiterated the law of proportionality by holding that the punishment should not be disproportionate to the misconduct proved. In that case an Assistant Wireless Operator had used rude language against his superior officer, was not found to be in his uniform and took about 10 minutes to open the door of the cabin, was dismissed, which was interfered by the Supreme Court as grossly disproportionate. It was held that, "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 v. Union of India 2013 (6) SCC 602 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 sentence is in defiance of logic, then the quantum of sentence would not be immune from correction. Irrationality and perversity, observed this Court, are recognised grounds of judicial review. "......" 12. Similarly, in Dev Singh v. Punjab Tourism Development Corpn. Ltd, 2008 (8) SCC 469 this Court, following Ranjit Thakur case held: (Dev Singh case, SCC p. 11, para 6) "6. ... 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 cases and impose appropriate punishment with cogent reasons in support thereof. It is also clear from the abovenoted 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." 13. Reference may also be made to the decisions of this Court in Union of India v. G. Ganayutham 2014 (310) ELT 417 : 1997 (7) SCC 463, Sardar Singh v. Union of India, AIR 1992 SC 417 and Om Kumar v. Union of India 2001 (2) SCC 386, which reiterate the same proposition. 14. Coming to the case at hand we are of the view that the punishment of dismissal from service for the kind of misconduct proved against the appellant appears to us to be grossly disproportionate. There is no allegation that the appellant had manhandled the Police Inspector who had gone to check the cabin. Delay of 10 minutes in opening the cabin door, which according to the appellant was open but had got stuck because of humidity leading to expansion of the wooden frame, was not a matter that ought to have led to the appellant''s dismissal after he had served the police force for over 10 years. Even assuming that the version given by the appellant was not acceptable the same did not constitute a misconduct of a kind that would justify the appellant''s dismissal from service leading to forfeiture of his past service. That the appellant was not in uniform may also be breach of discipline calling for administrative action against him but not so severe as to throw him out of the police force. The analogy drawn by the appellant in this case and that of Ram Kishan case is not, therefore, wholly misplaced. The delinquent in that case too was charged with misbehaviour with his superior leading to his dismissal from service which was found by this Court to be disproportionate to the nature of misconduct calling for moderation. 15............. 16. In the totality of these circumstances, we are of the view that while dismissal from service of the appellant is a harsh punishment the order for dismissal could be substituted by an order of reduction to the rank of a constable with the direction that while the appellant shall have the benefit of continuity of service, he shall not be entitled to any arrears of pay or other financial benefits for the period between the date of dismissal and the date of his reinstatement against the lower post of constable. We are conscious of the fact that this Court could in the ordinary course remit the matter back to the disciplinary authority for passing a fresh order of punishment considered proper but we are deliberately avoiding that course. We are doing so because the order of dismissal of the appellant was passed in the year 2001. A remand at this distant point of time is likely to lead to further delay and litigation on the subject which is not in the interest of either party. We have, therefore, upon an anxious thought as to the quantum of punishment that is appropriate taken the unusual but by no means impermissible course of reducing the punishment to the extent indicated above." 51. In Chennai Metropolitan Water Supply & Sewerage Board v. T.T. Murali Babu, (2014) 4 SCC 108 the Hon''ble Supreme Court was dealing with the case of abstention from office. The respondent who was working as a Junior Engineer in Chennai Metropolitan Water Supply and Sewerage Board had remained continuously absent from duty without any intimation to the employer from 28-8-1995 and did not respond to the repeated memoranda/reminders requiring him to explain his unauthorised absence from duty and to rejoin duty. The Supreme Court held that dismissal from service cannot be said to be disproportionate to the misconduct as he was a responsible officer and belated submission of medical certificate did not warrant his unauthorised absence. However, the Court also held that 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 wilful as there may be eventualities due to which an employee may abstain from duty, including compelling circumstances beyond his control like illness, accident, hospitalisation, etc.. In such case the employee cannot be held guilty of failure of devotion to duty or behaviour unbecoming of a government servant. In a departmental proceeding, if allegation of unauthorised absence from duty is made, the disciplinary authority is required to prove that the absence is wilful, in the absence of such finding, the absence will not amount to misconduct and the doctrine of proportionality will be applicable in such cases as observed below. "19. In Bhagwan Lal Arya, 2004 (4) SCC 560 this Court opined that the unauthorised absence was not a grave misconduct inasmuch as the employee had proceeded on leave under compulsion because of his grave condition of health. Be it noted, in the said case, it has also been observed that no reasonable disciplinary authority would term absence on medical grounds with proper medical certificate from government doctors as a grave misconduct. 20. In Jagdish Singh, 2009 (7) SCC 301 the Court took note of the fact that the appellant therein was a sweeper and had remained absent on four spells totalling to fifteen days in all in two months. In that context, the Court observed thus: (SCC p. 304, para 8) "8. The instant case is not a case of habitual absenteeism. The appellant seems to have a good track record from the date he joined service as a sweeper. In his long career of service, he remained absent for fifteen days on four occasions in the months of February and March 2004. This was primarily to sort out the problem of his daughter with her in-laws. The filial bondage and the emotional attachment might have come in his way to apply and obtain leave from the employer. The misconduct that is alleged, in our view, would definitely amount to violation of discipline that is expected of an employee to maintain in the establishment, but may not fit into the category of gross violation of discipline. We hasten to add, if it were to be habitual absenteeism, we would not have ventured to entertain this appeal." 21. If both the decisions are appositely understood, two aspects clearly emerge. In Bhagwan Lal Arya 2004 (4) SCC 560, the Court took note of the fact, that is, production of proper medical certificate from a government medical doctor and opined about the nature of misconduct and in Jagdish Singh, 2009 7 SCC 301 the period of absence, status of the employee and his track record and the explanation offered by him. In the case at hand, the factual score being different, to which we shall later on advert, the aforesaid authorities do not really assist the respondent. 22. The learned counsel for the respondent has commended us to the decision in Krushnakant B. Parmar v. Union of India, 2012 (3) SCC 178 to highlight that in the absence of a finding returned by the inquiry officer or determination by the disciplinary authority that the unauthorised absence was wilful, the charge could not be treated to have been proved. To appreciate the said submission we have carefully perused the said authority. In the said case, the question arose whether "unauthorised absence from duty" did tantamount to "failure of devotion to duty" or "behaviour unbecoming of a government servant" inasmuch as the appellant therein was charge-sheeted for failure to maintain devotion to duty and his behaviour was unbecoming of a government servant. After adverting to the rule position the two-Judge Bench expressed thus: (SCC pp. 181-82, paras 16-18) "16. In the case of the appellant referring to unauthorised absence the disciplinary authority alleged that he failed to maintain devotion to duty and his behaviour was unbecoming of a government servant. The question whether ''unauthorised absence from duty'' amounts to failure of devotion to duty or behaviour unbecoming of a government servant cannot be decided without deciding the question whether absence is wilful or because of compelling circumstances. 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 wilful. Absence from duty without any application or prior permission may amount to unauthorised absence, but it does not always mean wilful. There may be different eventualities due to which an employee may abstain from duty, including compelling circumstances beyond his control like illness, accident, hospitalisation, etc., but in such case the employee cannot be held guilty of failure of devotion to duty or behaviour unbecoming of a government servant. 18. In a departmental proceeding, if allegation of unauthorised absence from duty is made, the disciplinary authority is required to prove that the absence is wilful, in the absence of such finding, the absence will not amount to misconduct." 23. We have quoted in extenso as we are disposed to think that the Court in Krushnakant B. Parmar case, 2012 (3) SCC 178 has, while dealing with the charge of failure of devotion to duty or behaviour unbecoming of a government servant, expressed the afore stated view and further the learned Judges have also opined that there may be compelling circumstances which are beyond the control of an employee. That apart, the facts in the said case were different as the appellant on certain occasions was prevented to sign the attendance register and the absence was intermittent. Quite apart from that, it has been stated therein that it is obligatory on the part of the disciplinary authority to come to a conclusion that the absence is wilful. On an apposite understanding of the judgment Krushnakant B. Parmar case 2012 (3) SCC 178, we are of the opinion that the view expressed in the said case has to be restricted to the facts of the said case regard being had to the rule position, the nature of the charge levelled against the employee and the material that had come on record during the enquiry. It cannot be stated as an absolute proposition in law that whenever there is a long unauthorised absence, it is obligatory on the part of the disciplinary authority to record a finding that the said absence is wilful even if the employee fails to show the compelling circumstances to remain absent. 24. In this context, it is seemly to refer to certain other authorities relating to unauthorised absence and the view expressed by this Court. In State of Punjab v. P.L. Singla, 2008 (8) SCC 469 the Court, dealing with unauthorised absence, has stated thus: (SCC p. 473, para 11) "11. Unauthorised absence (or overstaying leave), is an act of indiscipline. Whenever there is an unauthorised absence by an employee, two courses are open to the employer. The first is to condone the unauthorised absence by accepting the explanation and sanctioning leave for the period of the unauthorised absence in which event the misconduct stood condoned. The second is to treat the unauthorised absence as a misconduct, hold an enquiry and impose a punishment for the misconduct." 25. Again, while dealing with the concept of punishment the Court ruled as follows: (P.L. Singla case 2008 (8) SCC 469, SCC pp. 473-74, para 14) "14. Where the employee who is unauthorisedly absent does not report back to duty and offer any satisfactory explanation, or where the explanation offered by the employee is not satisfactory, the employer will take recourse to disciplinary action in regard to the unauthorised absence. Such disciplinary proceedings may lead to imposition of punishment ranging from a major penalty like dismissal or removal from service to a minor penalty like withholding of increments without cumulative effect. The extent of penalty will depend upon the nature of service, the position held by the employee, the period of absence and the cause/explanation for the absence." 26. In Tushar D. Bhatt v. State of Gujarat (2004) 3 GLR 680, the appellant therein had remained unauthorisedly absent for a period of six months and further had also written threatening letters and conducted some other acts of misconduct. Eventually, the employee was visited with order of dismissal and the High Court had given the stamp of approval to the same. Commenting on the conduct of the appellant the Court stated that he was not justified in remaining unauthorisedly absent from official duty for more than six months because in the interest of discipline of any institution or organisation such an approach and attitude of the employee cannot be countenanced. 27. Thus, the unauthorised absence by an employee, as a misconduct, cannot be put into a straitjacket formula for imposition of punishment. It will depend upon many a factor as has been laid down in P.L. Singla, (2008) 8 SCC 469. 52. In Chhel Singh v. MGB Gramin Bank, (2014) 13 SCC 166, the appellant remained absent for about 10½ months and was removed from service which was challenged as disproportionate to the gravity of the charges. The Hon''ble Supreme Court found that the appellant had taken the plea that he was seriously ill between 11-12-1989 and 24-10-1990, which was beyond his control. He had submitted the copies of medical certificates issued by doctors in support of his claim after rejoining the post. The medical reports were submitted after about 24 days. There was no allegation that the appellant''s unauthorised absence from duty was wilful and deliberate. The inquiry officer has also not held that the appellant''s absence from duty was wilful and deliberate. It was neither a case of the disciplinary authority nor the inquiry officer that the medical reports submitted by the appellant were forged or fabricated or obtained for any consideration though he was not ill during the said period. In absence of such evidence and finding, it was not open to the inquiry officer or the disciplinary authority to disbelieve the medical certificates issued by the doctors without any valid reason and on the ground of 24 days'' delay. Accordingly, the Hon''ble Supreme Court intervened and upheld that decision of the Ld. Single Judge quashing the removal order and directing reinstatement in service. 53. In Union of India v. Diler Singh, (2016) 13 SCC 71 the Hon''ble Court found that the respondent who was a part of the CRPF, a disciplined force had left the campus without prior permission, proceeded to the market, consumed liquor and quarrelled with the civilians, which is not expected of a member of the disciplined force to behave in this manner. The contention that the punishment of removal from service imposed on him to be absolutely disproportionate was rejected by applying the test of proportionality in Om Kumar v. Union of India (2001) 2 SCC 386, Union of India v. G. Ganayutham (1997) 7 SCC 463. Dwarka Prasad Tiwari (2006) 10 SCC 388, was also referred to wherein it was held that 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. It was held that when a member of the disciplined force deviates to such an extent from the discipline and behaves in an untoward manner which is not conceived of, it is difficult to hold that the punishment of dismissal as has been imposed is disproportionate and shocking to the judicial conscience. 54. In Central Industrial Security Force v. Abrar Ali, (2017) 4 SCC 507, the Hon''ble Supreme Court by applying the principle of proportionality converted the order of dismissal to compulsory retirement with the following observation and direction, "19. Though we are of the view that the High Court ought not to have interfered with the order passed by the disciplinary authority, the penalty of dismissal from service is not commensurate with delinquency. The respondent was found guilty of desertion of the Force for a period of five days and not improving his conduct in spite of imposition of penalties on three occasions earlier. For the above delinquencies, the penalty of dismissal from service is excessive and harsh. In our view, the penalty of compulsory retirement would meet the ends of justice. We are informed by the counsel for the appellants that the respondent is entitled for pension as he has completed 10 years of service. In order to avoid any controversy, we direct that the respondent shall be entitled for notional continuity of service till the date of completion of minimum service required to make him eligible for pension. He will not be entitled for payment of salary and allowances for that period." 55. From the conspectus of case laws involving the doctrine of proportionality as referred to above, what can be observed is that the principle of proportionality had been applied by the Hon''ble Supreme Court since the very early period of the Constitutional era, though most of these earlier cases related to labour law pertaining to punishment imposed on the workmen. In such cases, the Hon''ble Supreme Court had taken the view that the punishment must be proportionate to the misconduct and commensurate with the gravity of offence as otherwise, it would amount to victimisation or unfair labour practise as held in Hind Construction & Engineering Co. Ltd., 1965 (supra). In the said case it was held that while the tribunal is not required to consider the propriety or adequacy of the punishment or whether it is excessive or too severe, but where the punishment is shockingly disproportionate, regard being had to the particular conduct and the past record or is such, as no reasonable employer would ever impose in like circumstances, the punishment cannot be sustained. The criteria of reasonable employer was subsequently adopted in Coal India Ltd., 2009 (supra) and followed in Chennai Metropolitan Water Supply & Sewerage Board, 2014 (supra). 56. In Bhagat Ram, 1983 (supra), the Hon''ble Court invoked Article 14 holding that any penalty should not be disproportionate to the gravity of the misconduct as otherwise it would be violative of Article 14 of the Constitution. 57. It has been also held that the sentence has to suit the offence and the offender and it is not to be vindictive or unduly harsh and should not be so disproportionate as to shock the conscience as held in Ranjit Thakur, 1987(supra). In Ranjit Thakur we find that the Hon''ble Supreme Court elaborately discussed the doctrine of proportionality by referring to the Council of Civil Service Union case, (supra) which is now a wellrecognised principle under the Continental legal system. 58. In Om Kumar''s case, 2001 (supra) the Hon''ble Supreme Court 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 in discharging the role as a secondary reviewing authority. It was held that 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. It was further held that the court while reviewing punishment 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. It was held that only in rare cases where there has been long delay in the time taken by the disciplinary proceedings and in the courts, in such extreme or rare cases can the court substitute its own view as to the quantum of punishment. 59. The Supreme Court, however, continued to apply Wednesbury principle of irrationality and perversity which are well recognised grounds of judicial review and held that the principle of proportionality can be invoked regarding punishment only in the case where punishment is totally irrational in the sense it is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it as held in Ganayutham, 1997 (supra). In Ganayutham, the Hon''ble Supreme Court discussed in detail the applicability of the principle of proportionality in administrative law in India and took the view that where no fundamental freedoms are involved the Courts/Tribunal will play a secondary role based on the Wednesbury principle while the primary judgment as to the reasonableness will remain with the executive or the administrative authority. The Hon''ble Supreme Court held that it is only where the administrative or executive order effects the fundamental freedoms, the Court will apply the principle of proportionality by assuming the primary role. Consequently, it was held that if any executive action does not involve fundamental freedom, the principle of proportionality cannot be applied. Thus, it was specifically held that since in the matter relating to imposition of punishment, fundamental freedom is not affected, the principle of proportionality cannot be invoked. However, the criteria of irrationality and perversity which constitute Wednesbury principle would continue to apply. 60. The Supreme Court thus continued to apply the principle that if the punishment shocks the conscience of the Courts or be shockingly disproportionate, it would warrant interference by the Court. However, the Hon''ble Supreme Court in subsequent decisions seemed to have taken a slightly different view by holding that the doctrine of proportionality has come to stay in our legal system. In Coimbatore District Central Co-operative Bank Employee Association, (2007) (supra), it was categorically stated that so far as the doctrine of proportionality there is no gainsaying that the said doctrine has not only arrived in our legal system but also has come to stay, though in a subsequent decision in All India Railway Recruitment Board, 2010 (supra), the Hon''ble Supreme Court seems to have doubted the applicability of the doctrine of proportionality by observing that the Wednesbury principle as such has not been replaced by the doctrine of proportionality. It was further observed that the Courts have yet to develop an indefeasible and principled approach to proportionality and till that is done, there will be always be overlapping between the traditional grounds of review and the principle of proportionality and the case would continue to be decided in the same manner. It was also observed in All India Railway Recruitment Board, that proportionality, as the word indicates has reference to variables or comparison and it enables the court to apply the principle with various degrees of intensity and offers a potentially deeper inquiry into the reasons, projected by the decision-maker. 61. The principle of proportionality seems to have been accepted as part of our legal system in Maharashtra Land Development Corpn., 2011 (supra) wherein it was held that the Wednesbury principle of reasonableness has given way to the doctrine of proportionality. The Hon''ble Supreme Court observed that through his decision in the celebrated case of Council of Civil Service Unions v. Minister for Civil Service, Lord Diplock widened the grounds of judicial review and he mainly referred to three grounds upon which administrative action is subject to control by judicial review. The first ground being "illegality", the second "irrationality" and the third "procedural impropriety". It was also observed that he also mentioned that by further development on a case-to-case basis, in due course, there may be other grounds for challenge. He particularly emphasised the principles of proportionality. It was observed that thus, in a way, Lord Diplock replaced the language of "reasonableness" with that of "proportionality. This was the view taken in Maharashtra Land Development Corpn., 2011 (supra). 62. The concept of proportionality is a new concept developed for determining the scope of protection of the Constitution and it values. It was born in European law countries from where it crossed over to most of the common law countries including India. Proportionality is about the relationship between the means and the goal and both the means and the goal must be worthy and together they are the two components of the test of proportionality. There are three aspects which are to be taken into consideration. The first element is that a link of fit is needed between the objective and the means. The means the administration employs must be derived from the achievement of the objective that the administration seeks. The second element is that the means chosen must injure the individual to the least and the third element is that the means chosen must be worthy in that there is a proper proportion between the means and the goals, which is a "narrow" test, a balancing test. However, sometimes, the "narrow" test blurs the boundaries between proportionality and reasonableness. [See "Judge in a Democracy", Aharon Barak, Princeton University Press, 2006] 63. Even if the doctrine of proportionality can be said to be applicable now in our legal system, from an analysis of the case laws referred to above, the Hon''ble Supreme Court seems to have refrained from assuming the primary role in exercise of the judicial review and continue to discharge the secondary role vis-a-vis the primary role of the administrator or the authority as regards imposition of penalty or punishment in domestic proceedings. The Hon''ble Supreme Court has been consistently holding that the only permissible ground for the courts to intervene is when the punishment is shockingly disproportionate to the proved charge or if it shocks the conscience of the court. 64. However, as mentioned above, these expressions have not been defined or explained in categorical terms. What is the meaning of the expressions "shockingly disproportionate" or "shocks the conscience" of the Court? No Court has defined these expressions and these are inherently elastic concepts not susceptible to a clear and unambiguous meaning. How does one measure the extent or degree of shock that invalidates the administrative action? If "shock" is to be measured by way of a scale, except for the very extreme cases, in the calibration, when can it be stated that it has reached the point or the unit in the scale when it can be said to be shocking so as to render it illegal? Obviously, there is no such legal measuring unit to adjudge the degree of the "shock" to conclude that the punishment is "shockingly" disproportionate. Certainly, it cannot be also left entirely to the individual disposition or predilection or personal temperament of the judge which constitutes the Court to assess the punishment as a "shocking" one. There ought to be some identifiable objective factors or certain identifiable known legal criteria or principles to adjudge whether a punishment is "shocking" or not rather than leave solely to the subjective satisfaction of the Judge. While subjective elements in a judgment of an individual Judge can never be substituted in exercise of discretionary power, it ought to be circumscribed by identifiable and discernible legal criteria or principles so that such subjective elements do not lead to wide range of results and help arrive at conclusions with more certainty and with less variance. 65. The expressions "shocking" and "conscience" are obviously not legal terms. These are generally associated with moral values, beliefs and as a result would tend to vary from person to person, depending on his upbringing, culture, religious inclinations, maturity and depend upon one''s predilections and whole lot of interconnected environments and resultantly would reflect divergent views. Morality and ethics do certainly play an important role in legal conceptions. Therefore, what are outrageously unethical, immoral or illogical will certainly shock the conscience, and are generally illegal. Yet, these expressions used in the legal sense to adjudicate certain legal position cannot be confined to these purely subjective elements of morality and ethics. There ought to be certain identifiable, definable and well recognised legal principle to determine what amounts to "shocking" the "conscience" of the Court. It is in this attempt to discover such identifiable, well recognised legal principles and concepts that this Court had referred to the large number of cases. 66. Black''s Law Dictionary, 10th Edn, has defined "shock the conscience" as to mean "To cause intense ethical or humanitarian discomfort. The phrase is used an equitable standard for gauging whether (1) state action amounts violation of a person''s substantive due process rights (2) a jury''s award is excessive (3) a fine, jail term, or other penalty is disproportionate to the crime, or (4) a contract is unconscionable." "Shock" (noun) means a strong feeling or surprise as a result of something happening, especially something unpleasant; the event that causes this feeling and "shocking" (adjective) is that which offends or upsets. (Oxford Advanced Learner''s Dictionary, 8th Edn.). 67. It may be also stated that the expression "shocks the conscience", used in the context of the criminal and contract act/arbitration laws have different approaches. In dealing with criminal law what shocks the conscience has to be examined from the perspective of the social norm and sense of the community as explained in Shabnam v. State of U.P., (2015) 6 SCC 632. The Hon''ble Supreme Court held that in the rarest of the rare case where it shocks the conscience of the society and which attracts intense and extreme indignation of the community, death sentence may be permissible, "Where innocent minor children, unarmed persons, helpless women and old and infirm persons have been killed in a brutal manner by persons in dominating position, and where after ghastly murder displaying depraved mentality, the accused have shown no remorse, death penalty has been imposed. Where it is established that the accused is a hardened criminal and has committed murder in a diabolic manner and where it is felt that reformation and rehabilitation of such a person is impossible and if let free, he would be a menace to the society, this Court has not hesitated to confirm death sentence. Many a time, in cases of brutal murder, exhibiting depravity and callousness, this Court has acknowledged the need to send a deterrent message to those who may embark on such crimes in future. In some cases involving brutal murders, society''s cry for justice has been taken note of by this Court, amongst other relevant factors." On the other hand, the concept of "shocking the conscience of the court" in commercial law is based on a different consideration. In Associate Builders v. DDA, (2015) 3 SCC 49 the Hon''ble Supreme Court while examining the validity of the award held that it could be set interfered and set aside if the same is against justice or morality as follows: 36. The third ground of public policy is, if an award is against justice or morality. These are two different concepts in law. An award can be said to be against justice only when it shocks the conscience of the court. An illustration of this can be given. A claimant is content with restricting his claim, let us say to Rs 30 lakhs in a statement of claim before the arbitrator and at no point does he seek to claim anything more. The arbitral award ultimately awards him Rs 45 lakhs without any acceptable reason or justification. Obviously, this would shock the conscience of the court and the arbitral award would be liable to be set aside on the ground that it is contrary to "justice". 68. The Court''s approach on the applicability of the concept of "shocks the conscience of the court" and "shockingly disproportionate" while dealing with domestic inquiries and attendant punishment cannot be the same as in criminal law or in commercial law and to understand this, this Court has referred to a large of number of cases as referred to above. 69. One of the tests evolved by the Hon''ble Supreme Court is to be found in Coal India Ltd. v. Mukul Kumar Choudhuri, (supra), which is that of a reasonable employee. The test evolved is whether any reasonable employer would have imposed such a punishment in like circumstances for which "a reasonable employer is expected to take into consideration measure, magnitude and degree of misconduct and all other relevant circumstances and exclude irrelevant matter before imposing punishment." But it may be remembered what the Hon''ble Supreme Court had pointed out in G.B. Mahajan v. Jalgaon Municipal Council, (1991) 3 SCC 91, about a "reasonable man" as follows : "39. Different contexts in which the operation of "reasonableness" as test of validity operates must be kept distinguished. For instance as the arguments in the present case invoke, the administrative law test of ''reasonableness'' as the touchstone of validity of the impugned resolutions is different from the test of the ''reasonable man'' familiar to the law of torts, whom English law figuratively identifies as the "man on the Clapham omnibus". In the latter case the standards of the ''reasonable man'', to the extent such a ''reasonable man'' is court''s creation, is in a manner of saying, a mere transferred epithet. .....41. The administrative law test of reasonableness is not by the standards of the "reasonable man" of the torts law....." 70. Another test would be that, if the finding is so perverse or irrational that no reasonable person would arrive at, it could be considered shocking. The findings of fact can be held to be perverse or irrational if the findings have been arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant/inadmissible material (Wednesbury principle, S.R. Tewari v. Union of India, 2013, Om Kumar, 2001, Kailash Nath Gupta, 2003, Hotilal 2003, Mohd. Ayub Naz, 2006 etc.) 71. Thus even if these expressions, "shockingly disproportionate" or "shocks the conscience of the court" have not been explained in categorical identifiable legal terms to adjudicate the validity of the penalty on the anvil of doctrine of proportionality, the Hon''ble Supreme Court has indicated various parameters to be considered by observing that it would be permissible for Court to examine whether relevant factors have been or not been taken into consideration or irrelevant factors have taken into consideration while adjudging the proportionality of the penalty imposed. 72. The unauthorised absence by an employee as misconduct cannot be put into a straight jacket formula for imposition of punishment as observed in Dr. P.L. Sangla, 2008 (supra). The Hon''ble Supreme Court explained that imposition of punishment will depend on many factors and the extent of penalty will depend on the nature of service, position held by employee, period of absence, cause/explanation for the absence. Therefore, while examining the proportionality of the punishment as to whether it shocks the conscience of the Court, it would be permissible for the Court to examine the aforesaid aspects. 73. Without further dilating on the semantics and theory or scope of the doctrine of proportionality with which, the expressions "shocks the conscience", "shockingly disproportionate", "reasonable man" etc. are associated, the following principles as may be culled out from the cases decided by the Hon''ble Supreme Court may be summarily stated as follows, which may be considered while examining the validity of the penalty or punishment : (1) Interference by the Court is permissible only when the punishment/penalty is shockingly disproportionate to the charge proved or it shocks the conscience of the Court. In other words, the punishment must be totally irrational in the sense that it was in outrageous defiance of logic or moral standards. (Hind Construction, 1965, Ranjit Takur, 1987, B.C. Chaturvedi, 1995, Coal India Ltd., 2009, Chennai Metropolitian, 2014 etc.). (2) A penalty if it amounts to victimisation or unfair labour practise can be said to be shockingly disproportionate and can be set aside. (Hindustan Steels Ltd., 1969, Federation of Indian Chambers of Commerce and Industry, 1972, Rama Kant Misra, 1982). (3) A penalty disproportionate to the gravity of the misconduct would be violative of Article 14 (Bhagat Ram, 1983, S.R. Tewari, 2013). (4) When ascertaining whether such a punishment is shockingly disproportionate or shocks the conscience of the Court, the Court may examine as to whether a reasonable employer would have imposed such a punishment in like circumstances. A reasonable employer is expected to take into consideration measure, magnitude and degree of misconduct (Hind Construction, 1965, Coal India Ltd., 2009). (5) The employer is to take the relevant circumstances into consideration and exclude any irrelevant factors before imposing punishment. (B.C. Chaturvedi, 1996, Kailash Nath Gupta, 2003) (6) Where the punishment is totally irrational in the sense it is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it can be said to be shockingly disproportionate.( Ranjit Takur, 1987, H.Nagraj, 1998) (7) The Court must examine whether the punishment suits the offence and offender as well. In other words, proportionality of the punishment should not seen only from the perspective of the gravity of the charge/offence but also from the perspective of the offender, in which event, the nature of service, position held by the employer, period of absence, cause or explanation for the absence have to be considered. The mental set up of the person, wilfulness of the misconduct are also to be considered. (Ranjit Takur, 1997, Hoti Lal, 2003, Mecken Singh N Marak, 2008, Dr. P.L.Singla, 2008). (8) Mitigating circumstances, if any, must be also considered, and it must not seem to be vindictive but be fair, just and equitable. Past records must be also considered.(Mithilesh Singh, 2003). (9) There is no place for generosity or misplaced sympathy on the part of the judicial forums. (Bharat Forge Co. Ltd., 2005, A.P. SRTC., 2007). (10) The High Court/Tribunal, while exercising the power of judicial review, cannot normally substitute its own conclusion on penalty and impose some other penalty. If the punishment imposed by the disciplinary authority or the appellate authority shocks the conscience of the High Court/Tribunal, it would appropriately mould the relief, either by directing the disciplinary/appellate authority to reconsider the penalty imposed, or to shorten the litigation, it may itself, in exceptional and rare cases, impose appropriate punishment with cogent reasons in support thereof. (Chairman Managing Director, United Commercial Bank, 2003, Dev Singh, 2003) (11) Reasons have to be indicated by the Court to arrive at a conclusion that the penalty is shockingly disproportionate. Failure to give reasons amounts to denial of justice. A mere statement that it is disproportionate would not suffice. (Hoti Lal, 2003) (12) Though the expressions "shockingly disproportionate" or "shocks the conscience of the courts" have not been defined in any of the judgments, various parameters as indicated above, have to be taken into consideration while examining proportionality of the punishment. 74. Keeping the aforesaid principles in mind, this Court would proceed to examine the case at hand. In the present case, the petitioner has been charged with the misconduct of absence for 846 days. The petitioner has not denied the absence. However, he has offered an explanation stating that he was suffering from certain mental illness which was diagnosed as delusional disorder supported by medical certificates and accordingly claimed that his absence was due to reasons beyond his control. If the aforesaid absence for 846 days is to be considered on a stand-alone basis without any reference to the attending circumstances, the order of removal imposed on the petitioner may not seem to be shockingly disproportionate or shock the conscience of the Courts as the petitioner is member of a disciplined force, in which event, there would hardly be any scope for interference by this Court. However, the situation is not merely that of a simple absence for 846 days. The issue involved is also about reason for the absence. It is to be noted that in the inquiry report, the Inquiry Officer mentioned about the reason for the aforesaid absence yet there was no specific finding about the same, in his report in the following words: "That is further revealed that the charged Constable did not record back at his place of posting well in time. Only when he turn up after suspension and served the Summon to him for conducting enquiry against him. On his examination he stated that on 12/1/2000 in the evening, he came at his home to look after his poor family from his place of posting after performing duty. But unluckily, it was so happened that while he arrived at his house, he was suddenly attacked with a serious illness (Delusional) Disorder (chronic Psychosis) and admitted in the RIMS Hospital for a couple of days being attended by medical Officer. It is also proved by Associate Professor of Psychiatry RIMS, Imphal. As he being the lone male member in family, having no other alternative member he could not reach his leave application to the authority concerned. That the above evidence analysed, the charge levelled against the Constable A. Thambalngou Singh is held proved beyond any shadow of doubt as he was physically absent from his place of posting w.e.f. 13/1/2000 to 7/5/2002 i.e. complete 846 days without any leave or permission from the competent authority." The Enquiry Officer, therefore, simply says that on analysis of the evidence, the charge levelled against the petitioner is proved though there is no indication of evaluation or appraisal of the evidence. Nothing has been shown how the evidence was appreciated or analysed, except for the bland statement that on analysis of the evidence, the charge is proved. 75. It is to be noted that though the inquiry officer in his report referred to the illness of chronic psychosis for which he was admitted in the RIMS Hospital and was treated, for which necessary medical certificate issued by the medical officer and other documents were submitted and the petitioner also furnished the reason for the absence, no finding has been given by the inquiry officer as to whether the inquiry officer believed or disbelieved the same or not. There is no finding to the effect that the said explanation furnished by the petitioner was not acceptable nor believable. There is no finding based on reasons that the medical certificate issued by an Associate Professor of the RIMS is not acceptable, believable or not reliable so as to render such evidence unreliable and hence, his explanation not acceptable. The inquiry officer merely comes to the conclusion without making any reference to the credibility of the medical certificate or the explanation given by the petitioner held that the charge levelled against the petitioner is proved beyond any shadow of doubt. There is no discussion or evaluation of the evidence relied upon by the petitioner that he was suffering from mental illness because of which he remained absence. 76. On the basis of the said report, the petitioner was issued the show cause notice for imposing the penalty of removal from service. In response, the petitioner explained that while admitting the absence he stated that the absence was not deliberate and with ulterior motive but due to reasons beyond his control as it was occasioned due to his being afflicted with the illness of chronic psychosis which was supported by medical certificate and other documents which were also submitted at the time of inquiry. He pleaded that since he is only the male member in the family he was not in a position to apply for leave and give information to the authorities in this regard. After considering the said representation submitted by the petitioner on 04.03.2003 the impugned final order was issued on 22nd May, 2003, by the Disciplinary Authority, relevant portions of which are reproduced herein below: "And whereas, the Enquiry Officer Shri N. Gourakishwor Singh, SDPO-Porompat submitted his findings of the enquiry to the undersigned on 10/3/2003 holding the charge levelled against the said delinquent Const. No.821009 A. Thambalngou Singh as proved as the delinquent was physically absent for complete 846 days without any leave or permission form the competent authority i.e. 13/1/2000 to 7/5/2002; And whereas, the delinquent Const. No.821009 A.Thambalngou Singh submitted his response to the last show cause notice to the Disciplinary Authority on 3/4/2003 and he admitted the charge levelled against him but stated that the omission committed by him in the instant case was not a deliberate act with ulterior motive." And whereas, I am satisfied with the findings of the Enquiry Officer; And whereas, I have gone through the response to the Last Show Cause Notice by the delinquent Const. No.821009A.Thambalngou Singh. Nothing new is stated by him & his contention has already been considered & evaluated during the Enquiry. There is no justification or explanation for the inability of the delinquent to apply for leave/inform/seek permission from the authority concerned for 846 days, i.e., more than 2 years; Now, therefore, I, the undersigned in exercise of the power conferred under Rule 66 of A.P. Manual Part III do hereby order to remove the delinquent Const.No.821009 A.Thambalngou Singh from service with immediate effect." 77. Perusal of the impugned order dated 22nd May, 20034 would show that the disciplinary authority merely stated that he is satisfied with the finding of the inquiry officer. Though the petitioner had reiterated his explanation for his absence that he was suffering from mental psychosis in the last show cause statement submitted to the disciplinary authority, the disciplinary authority without giving any reason, cryptically and wrongly recorded that nothing new has been stated by the petitioner and his contention had been already considered and evaluated during the enquiry and there is no justification or explanation for the inability of the petitioner to apply for leave/inform/seek permission from the authority for 846 days proceeded to impose the penalty of removal from service. It is not that there was no justification given by the petitioner. It was given by the petitioner. It was for the authority to accept it or not to accept. Unfortunately, there was no decision by the authority that such a justification was not found acceptable. There was no discussion by the Disciplinary Authority about the credibility or reliability of the medical certificate produced by the petitioner. 78. Though in the impugned order it has been mentioned that what the petitioner had stated had been considered and evaluated during the inquiry, there is nothing to indicate how the Inquiry Officer evaluated the evidence submitted by the petitioner during the enquiry and did not given any finding on merit as regards the credibility of the explanation of the petitioner and the evidences produced by him explaining his absence. Similarly, there has been no such consideration by the disciplinary authority when the impugned removal order dated 22nd May, 2003 was passed as regards the plea of the petitioner and the explanation put forth by the petitioner and the medical certificates and other evidences produced by the petitioner. In other words, what this Court finds is that neither the Enquiry Officer nor the Disciplinary Authority had examined properly a very relevant factor i.e., the explanation furnished by the petitioner for his long absence which he claimed to be was beyond his control as he was suffering from mental illness for which he was undergoing medical treatment from a Government hospital supported by medical certificates. There is no finding that the medical certificates or evidences are fake or false so as to disbelieve the explanation of the petitioner. It is also to be noted that there is nothing to indicate that the police authorities had initiated any process to find out the whereabouts of the petitioner or to declare him a deserter because of the prolonged absence. If the disciplinary authority after considering and evaluating the explanation and evidences submitted by the petitioner had rejected the same and came to the conclusion that the petitioner had wilfully absented himself for a such long period, there would hardly been any scope for interference by this Court. What this Court finds is that a very relevant factor had not really been taken into consideration by the enquiry officer when he submitted the report nor by the disciplinary authority at the time of passing the impugned penalty. It is only when the authority disbelieves the credibility of the explanation and the medical certificates that the authority would be entitled to draw the conclusion that the petitioner had wilfully and unauthorisedly absented himself for a long time. Only when an absence is wilful or deliberate that civil consequence will follow as had been held in Chhel Singh v. MGB Gramin Bank, (supra). 79. This Court would therefore, hold that if the explanation furnished by the petitioner for his absence which he claimed was beyond his control, was not considered, a very relevant material factor had not been taken into consideration, in such an event, imposition of the penalty of removal will seem to be shockingly disproportionate to the offence and offender. For, if the petitioner had been really mentally ill as claimed by him, the absence cannot be said to be wilful or intentional. In that punishing by removing from service for an intentional act will definitively shockingly disproportionate. For the same reason, if the Disciplinary Authority had accepted or not disbelieved the explanation and supporting medical certificates/documents offered by the petitioner, the absence to a great extent would have been justifiable in which event, the penalty of removal for being absent for reasons beyond the control of the petitioner would certainly be "shockingly" disproportionate. As mentioned above, the proportionality of the punishment is to be measured not only with reference to the gravity of the charge or offence, but also with reference to the offender and other factors as discussed above. A very relevant factor was the explanation offered by the petitioner for the absence supported by certain evidences which was not taken into consideration by the authorities. 80. That apart, the nature of service and position held by the employee are also equally important factors to be considered. Though the petitioner belongs to a disciplined force and is required to discharge his duties with utmost sincerely and diligently, the fact remains that he was a constable, holding the lowest position in the hierarchy of the police force and he had certain genuine reasons for his absence. Apart from the aforesaid absence there is no other allegation that the petitioner was involved in any act of moral turpitude or violence or involved in serious act of insubordination and indiscipline, disregarding order of superior authorities, desertion from post, or causing any pecuniary loss or causing harm to any third person or bringing disrepute to the image and prestige of the force or any such act of serious indiscipline. The only charge against the petitioner is absence for a prolonged period without authorisation which he had explained, but which explanation was not considered by the authority. 81. It may be also noted that the petitioner had rendered more than 20 years of service and about 18 years of service before the alleged unauthorised absence. Removal is a penalty which would not only disentitle the petitioner to serve any longer in the police force but also forfeit the pensionary benefits as well, for the service already rendered. Therefore, the punishment of removal imposed upon the petitioner actually entails two kinds of forfeitures. Firstly, there will be immediate discontinuance from service as the petitioner can no longer be a member of the force. Secondly, he will also be deprived of his pensionary and other retiral benefits for the years already rendered. It is to be noted that once an employee completes 10 years of service, the right to receive pension would start accruing and may seek voluntary retirement if he so wishes. This is a valuable right which accrues to an employee on completion of 10 years of service. 82. Thus, with the punishment of removal imposed on the petitioner, the petitioner in fact has been visited with two civil consequences by way of deprivations, i.e., right to continue in service and right to receive any pension and other retiral benefits. There may be a situation where removal from service may not involve any pensionary benefits, as in the case of a person who has not yet completed 10 years of service who thus, cannot claim any pensionary benefit. In such an event, removal of a person who has yet to complete 10 years of service will be visited only with one forfeiture, i.e., right to continue in service. But in the present case, the petitioner is saddled with two forfeitures. This Court is of the view that this is a very material and relevant factor which must be considered by the Disciplinary Authority at the time of imposing penalty, which was not considered in the present case, as to whether the petitioner deserves both the forfeitures. It may be argued that denial of pension is a natural consequence of removal. Though correct, it is a consequence which can be avoided if other penalty of compulsory retirement is imposed, for while the service gets terminated, yet the pensionary benefits are not deprived. 83. Of course, State respondents have stated in their affidavit in opposition that the past service records of the petitioner is not satisfactory as he had been awarded extraordinary leaves on several earlier occasions for unauthorised absence during the period in 1996 and 1998. But, the fact remains that the petitioner was allowed to continue in service in spite of such unauthorised absence. Further, there was no such reference when the show cause notice was given to the petitioner proposing imposition of the penalty of removal nor in the final order of removal. Though the disciplinary authority may be entitled to take into consideration the past service of an employee at the time of imposing punishment, in such event it should be brought to the notice of the employee concerned which has not been done in the present case. In Indu Bhushan Dwivedi v. State of Jharkhand, (2010) 11 SCC 278, the Hon''ble Supreme Court held that, "8. An analysis of the two judgments shows that while recommending or imposing punishment on an employee, who is found guilty of misconduct, the disciplinary/competent authority cannot consider his past adverse record or punishment without giving him an opportunity to explain his position and considering his explanation. However, such an opportunity is not required to be given if the final punishment is lesser than the proposed punishment." 84. Thus, under the facts and circumstances of the case, on taking a holistic view of the matter by taking into consideration all the identifiable legal parameters as discussed above, and considering the fact that the Disciplinary Authority has not taken into account various relevant considerations, this Court would hold that the punishment of removal imposed on the petitioner is "shockingly" disproportionate. 85. Under such circumstance, normally the matter could have been relegated to the disciplinary competent authority to reconsider passing a lesser penalty in lieu of the order of removal. However, considering the fact that the petitioner was removed from service by an order dated 22nd May, 2003 and now more than 14 years have lapsed since his removal from service, it would only prolong agony of the petitioner if the matter is again referred to the disciplinary/competent authority. Accordingly, this Court itself proposes to substitute the penalty of removal with a lesser penalty. 86. Considering the fact that reinstatement of the petitioner is not desirable at this stage after the petitioner had been discontinued from service since 2003, and since the authority had considered it appropriate to discontinue the service of the petitioner, this Court would consider that the petitioner should not be retained in service by imposing the penalty of compulsory retirement in lieu of removal service which would be the appropriate penalty under the facts and circumstances of the case. In that event, the petitioner will no more remain in service and shall be deemed to have been compulsorily retired from service with effect from the date of removal on 22.05.2003, but he will be entitled to retiral and pensionary benefits for the service rendered by him prior to the order of removal which has been now been converted to compulsory retirement. These retiral and pensionary benefits accruing to the petitioner will be worked out by the authorities and given to the petitioner within a period of 2 (two) months from today. 87. Before parting with the case, this Court would like to observe that as far as the judgment and order dated 27.02.2015 passed in W.P.(C) No. 602 of 2013 (Md. Wahijuddin Shah v. State of Manipur &Ors. relied upon the Respondents is concerned, in the said case, the issue of applicability of the doctrine of proportionality as regards the punishment was never raised and hence was not considered and as such, the aforesaid judgment will not be applicable in the present case, which has been decided by applying the doctrine of proportionality. 88. For the reasons discussed above, the present petition stands allowed to the extent indicated above.