Garg, J.
1. This writ petition under Article 226 of the Constitution of India has been filed by the petitioner on 20.6.1991 against the respondents with the prayer that by an appropriate writ, order or direction, the order dated 5.9.1983 (Annex. R/1) passed by the Chief Security Officer, Northern Railway, Baroda House, New Delhi by which the petitioner was removed from service and the appellate order dated 5.3.1985 (Annex. 10) passed by the respondent No. 2 Director General by which the appeal of the petitioner against order of removal (Annex. R/1) was dismissed, be quashed and set aside.
2. The case of the petitioner as put forward by him in this writ petition is as follows :-
The petitioner was employee in capacity as Rakshak in the. Railway Protection Force of respondents and he was at the relevant time posted at Jodhpur.
The case of the petitioner is that on 15.1.1981, he received a message about the illness of his wife and thereafter, he went to his village, but without obtaining prior permission from the concerned officer for leaving headquarter and when he reached his house, he found that his wife was seriously ill and therefore, he took his wife to the hospital for treatment. Thereafter, he immediately went to his office for reporting duty, but he was not allowed to do so by the concerned officer.
The further case of the petitioner is that in the meantime, he was falsely implicated in a criminal case No. 10/81 registered at Railway Police Station, Jodhpur under Section 379 IPC, but anticipatory bail was granted to him by the learned Sessions Judge, Jodhpur vide order dated 30.1.1981 (Annex. 1). Thus, he was never arrested by the Railway Police.
The further case of the petitioner is that a charge-sheet was served on him under the provisions of the Railway Protection Force Act, 1959 (hereinafter referred to as 'theAct of 1959) and the Rules framed therein and a copy of the charge-sheet is marked as Annex. 2. The charge which was levelled against petitioner is as follows :-
'RK Ram Chander s/o Hamira Ram of 56 Coy, Jodhpur Post, is charged for not reporting duty on 15.1.81 and for unauthorised absence from 15.1.81 to 1.1.81 and also for serious misconduct and indiscipline in that he concealed the fact about his arrest by GRP oft 31.1.81.'
A reply to the said charge was filed by the petitioner before the Enquiry Officer and after enquiry, the impugned order of removal Annex. R/1 dated 5.9.1983 was passed against the petitioner by the Chief Security Officer, Northern Railway, Baroda House, New Delhi in the following manner :-
'It is evident from the statements of prosecution witnesses namely S/Shri B.L. Meena CC :56 Coy : Jodhpur, Sr. RK. Kishan Singh that RK Ram Chander was detailed for duty in washing line Jodhpur in 8/- to 16/- hrs. on 15.1.81 but he did not turn up and absented himself without any authority and information upto 1.2.81 SHO/GRP Jodhpur Sh. Bhagwan Sahai further confirmed that RK Ram Chander was arrested on 31.1.81 in case crime No. 10/81 dated 14.1.81 under Section 379 IPC and he was released on bail as the Sessions Court had ordered to release him on anticipatory bail. The RK however concealed the fact of his arrest as is clear from the evidence on record. Thus the charges of unauthorised absence from 15.1.81 to 1.2.81 and of serious misconduct and indiscipline in that he concealed the fact of his arrest by GRP on 31.1.81 are proved beyond doubt against RK Ram Chander. The under signed has, therefore, no other alternative but to impose the penalty of removal from service as proposed. RK Ram Chander is therefore removed from service with immediate effect for the aforesaid charges which have been proved beyond doubt.'
Aggrieved from the said order of removal Annex.R/1 dated 5.9.1983, the petitioner preferred an appeal before the appellate authority and his appeal was dismissed by the respondent No. 2 Director General through order dated 5.3.1985 (Annex. 10).
Aggrieved from both the orders Annex. R/1 and Annex. 10, the petitioner has preferred this writ petition.
In this writ petition, it has been contended by the learned counsel for the petitioner :-
(i) That since the petitioner was not arrested by the Railway Police on 31.1.1981 as he was released on anticipatory bail by the learned Sessions Judge, Jodhpur through order Annex. 1, therefore, the findings contained in both the impugned orders Annex. R/1 and Annex. 10 pertaining to that aspect are palpably wrong and if they are excluded, the punishment awarded to the petitioner should be treated as disproportionate to the charge levelled against him.
(ii) That the main charge against the petitioner was that he remained absent from duty from 15.1.1981 to 1.2.1981 without taking prior permission and for that, the case of the petitioner is that he had to go to his village as his wife was ill and, in these circumstances, it has been prayed that the order of removal from service Annex. R/1 be quashed and set aside and instead of removal from service, some other penalty may be imposed against the petitioner.
A reply to the writ petition was filed by the respondents.
3. I have heard the learned counsel appearing for the petitioner and the learned counsel appearing for the respondents and gone through the materials available on record.
4. During the course of arguments, the fact that the petitioner was never arrested by the Railway Police has been accepted even by the learned counsel appearing for the respondents and thus, the fact that the petitioner was never arrested by the Railway Police should be treated as established and when this being the position, mentioning of fact in the order Annex. R/1 that the petitioner was arrested by GRP on 31.1.1981 in criminal case No. 10/81 under Section 379 IPC is a wrong finding and similarly, such finding, if confirmed by the appellate authority through order Annex. 10, cannot be accepted.
5. Thereafter, the main charge, which was found proved against the petitioner, is that he remained absent from duty without obtaining prior permission from the concerned officer for the period from 15.1.1981 to 1.2.1981.
6. The question that arises for consideration is whether for the above charge, the punishment of removal from service can be said to be proportionate to that charge or not.
7. In Indian Oil Corporation Ltd. v. Ashok Kumar Arora (1), the Hon'ble Supreme Court while considering the question as to whether the High Courts could in exercise of their powers of judicial review interfere with the punishment imposed by a disciplinary authority pointed out :-
'At the outset, it needs to be mentioned that the High Court in such cases of departmental enquiries and the findings recorded therein does not exercise the powers of appellate court/Authority. The jurisdiction of the High Court in such cases is very limited for instance where it is found that the domestic enquiry is vitiated because of non-observance of principles of natural justice, denial of reasonable opportunity, findings are based on no evidence, and or the punishment is totally disproportionate to the proved misconduct of an employee.'
8. Thus, if the punishment awarded is found disproportionate to the proved misconduct, in such cases, the High Court can interfere with the punishment awarded by the disciplinary authorities.
9. It may be stated here that the punishment or penalty to be imposed must be commensurate with the gravity of the misconduct. A disproportionate penalty would be violative of Article 14 of the Constitution of India.
10. In the present case, the petitioner remained absent from duty for near about 15 days without taking prior permission of the concerned officer and for that, the punishment of removal from service from every point of view appears to be disproportionate to the charge proved against the petitioner and that punishment is sufficient to shock the conscience of this Court and in other words, can be termed as evidence of bias.
11. Therefore, it is a fit case for interference by this Court under Article 226 of the Constitution of India with the punishment-awarded to the petitioner by the disciplinary authorities as the punishment is disproportionate to the charge proved against the petitioner and thus, the order of removal Annex. R/1, which was confirmed by the appellate authority through order Annex. 10 cannot be sustained and liable to be quashed and set aside.
12. The next question for consideration is what punishment should be awarded to the petitioner in place of removal from service.
13. In Syed Zaheer Hussain v. Union of India and Ors. (2), the Hon'ble Supreme Court on account of absence for seven days, found the dismissal from service disproportionate to the charge proved and in that case, the appellant was ordered to be reinstated in service with 50% back wages.
14. In the present case, looking to the entire facts and circumstances of the case and the law laid down by the Hon'ble Supreme Court in the case of Syed Zaheer Hussain (supra), the punishment of dismissal from service appears to be too harsh and on the contrary it is required to be substituted by appropriate lesser punishment and ends of justice would be met if instead of punishment of removal from service, the punishment of withholding of two annual grade increments without cumulative effect is imposed against the petitioner and the petitioner is reinstated in service with continuity and with all other benefits save and except withdrawing 50% of back wages from the date of dismissal till today.
For the reasons stated above, this writ petition is allowed in the manner that the order of removal dated 5.9.1983 (Annex. R/1) passed by the Chief Security Officer, Northern Railway, Baroda House, New Delhi and the appellate order dated 5.3.1985 (Annex. 10) passed by the respondent No. 2 Director General are quashed and set aside and instead of punishment of removal from service, the punishment of withholding of two annual grade increments without cumulative effect is imposed against the petitioner and the respondents are directed to reinstate the petitioner in service with immediate effect and the petitioner shall be entitled to continuity in service and all other benefits save and except withdrawing 50% of back wages from the date of dismissal i.e. 5.9.1983 till today.
No order as to costs.