J.N. Sarma, J.
1. This application under Article 226 of the Constitution of India has been filed to set aside the order of dismissal dated January 8/20, 1988. The petitioner was a Driver in the ONGC. A show cause notice was issued to him on the ground of misconduct as envisaged under the Staff Regulation, where Rule 27 of the Conduct, Discipline and Appeal Regulations, 1976 provides as follows:
'27. Bigamous Marriage:
(1) (a) No employee shall enter into or contract, a marriage with a person having spouse living.
(b) No employee, having a spouse living shall enter into, or contract, a marriage with any person;
Provided that the Commission may permit an employee to enter into or contract, any such marriage as is referred to in Clause (a) or Clause (b) if it is satisfied that:
(i) such marriage is permissible under the personal law applicable. (ii) there are other grounds for so doing'.
2. Schedule to this Regulation provides for the acts and omissions constituting Misconduct. They are quoted as follows:
'1. Insubordination or disobedience, either alone or in combination with others, to any lawful orders of a superior.
2. Use of insolent or impertinent or unparlimentary language in any official correspondence or in any representation including appeal.
3. Bribery, sabotage wilful damage, theft, fraud or dishonesty in connection with the business or property of the Commission.
4. Giving false information regarding one's name, age, qualification or previous service at the time of employment.
5. Habitual late attendance, indebtedness or insolvency, neglect of duty, malingering and wilful or habitual absence from duty, leaving station without leave or without sufficient cause.
6. Approaching higher authorities for personal promotion or any other personal favour or gain through other people.
7. Spreading false rumours of giving false information, gambling, fighting, riotous behaviour, threatening or intimidating, disorderly or indecent behaviour in the Project premises, Office Building or Commission's Township, or any act subversive to discipline.
8. Unathorised Communication of official document or information and disclosure to any unauthorised person of information relating to the operations and business of the Commission.
9. Habitual acceptance of free gifts, carrying on money lending or any other private business without the written permission of the Commission and entering into speculation.
10. Writing of anonymous or pseudonymous letters or associating oneself in writing such letters.
11. Striking work or inciting others to strike work in contravention of the provisions of any law for the time being in force or for joining an illegal strike.
12. Convictions in any Court of law for any criminal offence.
13. Shouting of defamatory or disrespectful slogans or issue or distribution of pamphlets and hand bills containing expression maligning the character of officers or imputing bad motives to them.'
3. Misconduct has been defined in that regulation as follows:
'Misconduct', without prejudice to the general meaning of the said term and the specific provisions made in these Regulations, includes acts and omissions specified in the Schedule annexed to these regulations.'
4. Bigamous marriage is not included in the enumeration in the acts and ommissions constituting misconduct but as the definition in 2(k) is an inclusive definition, the offence of bigamy may constitute misconduct. I am not deciding this aspect of the matter in this case as it is not necessary to do so in the facts and circumstances of the case.
5. Be that as it may, in the inquiry which was held against the petitioner, the petitioner admitted that he married for the second time and on the basis of that, order of dismissal was passed and that also was upheld by the appellate authority vide Annexure-4 and 5. The admitted position in this case is that the misconduct which has been imputed to the petitioner has no effect and/or impact in the discharge of duties by the petitioner. It is also settled law that each and every misconduct is not sufficient and/or adequate to invoke the punishment of dismissal-from employment. It is settled law that the punishment should also be commensurate with the gravity of offence. If a punishment is harsh one and if it is not commensurate with the gravity of offence such a punishment can be quashed inasmuch as it will be violative of Article 14 as well as 21 i.e., source of livelihood.
6. In (1988-I-LLJ-256) (Ranjit Thakur v. Union of India and Ors the Supreme Court considering its earlier decision in (1983-II-LLJ-1) (Bhagat Ram v. State of Himachal Pradesh laid down the law as follows at P. 262:
'Re:contention (d) : Judicial review generally speaking, is not directed against a decision, but is directed against the 'decision making process'. 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 not outrageous defiance of logic, then the sentence would not be immune from correction. Irrationality and perversity are recognised grounds of judicial review. In Council of Civil Service Unions v. Minister for the Civil Service 1984 3 WLR 1174 (HL) Lord Deplock said :'... Judicial Review has I think, developed to a stage today when without reiterating any analysis of the steps by which the development has come about, one can conveniently classify under three heads the grounds upon which administrative action is subject to control by judicial review. The first ground I would call 'illegality', the second 'irrationality' and the third 'procedural impropriety'. That is not to say that further development on a case by case basis may not in course of time add further grounds. I have in mind particularly the possible adoption in the future of the principle of 'proportionality'; which is recognised in the administrative law of several of our fellow members of the European Economic Community...' In Bhagat Ram v. State of Himachal Pradesh (supra) this Court Held: '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.'
The point to note and emphasize is that all powers have legal limits.
In the present case the punishment is so strikingly disproportionate as to call for and justify interference. It cannot be allowed to remain unconnected in judicial review.
7. The question of misconduct came up for consideration before the Supreme Court in Union of India and Ors v. J. Ahmed (1979-I-LLJ-14) wherein the Supreme Court in paragraph 10 has laid down the law as follows at P. 18:
'If a servant conducts himself in a way inconsistent with due and faithful discharge of his duty in service, it is misconduct (See Pearce v. Foster) 1986-17 QBD 536 at. P. 542. A disregard of an essential condition of the contract of service may constitute misconduct (see Laws v. London Chronicle (Indicator Newspapers) 1959 1 WLR 698. This view was adopted in Shardaprasad Onkarprasad Tiwari v. Divisional Supdt., Central Railway, Nagpur Dim., Nagpur, AIR 1961 Bom 150 and Sathbha K. Vaghela v. Moosa Raza, 1969 10 Guj LR 23. The High Court has noted the definition of misconduct in Stroud's Judicial Dictionary which runs as under:
'Misconduct means, misconduct arising from ill motive; acts of negligence, errors of judgment, or innocent mistake, do not constitute such misconduct'. In industrial jurisprudence amongst others, habitual or gross negligence constitute misconduct but in Utkal Machinery Ltd. v. Miss Santhi Patnaik, (1966-I-LLJ- 398), in the absence of Standing Orders governing the employee's undertaking, unsatisfactory work was treated as misconduct in the context of discharge being assailed as punitive. In S. Govinda Menon v. Union of India (1967-II-LLJ-249) (SC), the manner in which a member of the service discharged his quasi judicial function disclosing abuse of power was treated as constituting misconduct for initiating disciplinary proceedings. A single act of omission or error of judgment would ordinarily not constitute misconduct though if such error or omission results in serious or atrocious consequences the same may amount to misconduct as was held by this Court in P.H. Kalyani v. Air France, Calcutta, (1963- I-LLJ-679) wherein it was found that the two mistakes committed by the employee while checking the load-sheets and balance charts would involve possible accident to the aircraft and possible loss of human life and, therefore, the negligence in working in the context of serious consequences was treated as misconduct. It is, however, difficult to believe that lack of efficiency or attainment of highest standards in discharge of duty attached to public office would ipso facto constitute misconduct. There may be negligence in performance of duty and a lapse in performance of duty or error of judgment in evaluating the developing situation may be negligence in discharge of duty but would not constitute misconduct unless the consequence directly attributable to negligence would be such as to be irreparable or the resultant damage would be so heavy that the degree of culpability would be very high. An error can be indicative of negligence and the degree of culpability may indicate the grossness of the negligence. Carelessness can often be productive of more harm than deliberate wickedness or malevolence. Leaving aside the classic example of the sentry who sleeps at his post and allows the enemy to slip through, there are other more familiar (examples) instances of which (are) a Railway cabinman signalling in a train on the same track where there is a stationary train causing headlong collision; a nurse giving intravenous injection which ought to be given intramuscular causing instantaneous death; a pilot overlooking an instrument showing snag in engine and the aircraft crashing causing heavy loss of life. Misplaced sympathy can be a great evil (see Navinchandra Shakerchand Shah v. Manager, Ahmedabad Co-op. Department Stores Ltd., 1978 10 GUJ LR 108 at p. 120). But in any case failure to attain the highest standard of efficiency in performance of duty permitting an interference of negligence would not constitute misconduct nor for the purpose of Rule 13 of the Conduct Rules as would indicate lack of devotion to duty.'
8. In the facts and circumstances of this case, I find that the punishment which has been imposed on the petitioner is a harsh one and the punishment does not bear proper proportion to the allegation of misconduct and it must be deemed to be irrational and perverse. Accordingly, the order of dismissal dated January 8, 1988 Annexure-3 and the two appellate orders dated May 5/7, 1988 Annexure-4 and order dated October 27, 1985 Annexure-5 to the writ application shall stand quashed. The petitioner shall be reinstated in service within a period of 2 (two) months from the date of receipt of the order.
9. Before I part with the record I leave it to the authority to impose other lenient punishment on the petitioner as the petitioner shall not be allowed to go scot free because of the admitted misconduct but the authority shall not impose any punishment of dismissal from service and/or compulsory retirement from service. Stoppage of increment and/or other such punishment may be given to the petitioner.
10. The next question which arises is whether the petitioner shall be given a right to receive his back wages. After hearing learned counsel of both the parties and on perusal of the materials on record I direct that the authority shall pay to the petitioner back wages for a period of 2(two) years only and this deprivation of the back wages for the rest of the period shall also amount to a punishment in the eye of law.
11. It is needless to say that this case shall not be deemed to be a precedent for all cases as I have passed this order in the facts and circumstances of the case. The authority has the power to relax this conduct of bigamous marriage as Rule 22 quoted above gives the power to the authority to give permission to an employee to marry for the second time on ground furnished to the authority.
12. This disposes of the writ application.