The principle of proportionality should be applied in determining the appropriate punishment for disciplinary offences, ensuring that the punishment suits the offence and the offender, and does not shock the conscience.

( 1 ) THE situation in this case is such as to place any decision making authority on the horns of dilemma. On the one hand consistency in the callousness of the petitioner to the call of duty and on the other the pressure of equity and sympathy for the irreparable loss the petitioner would suffer along with the members of his family, if the impugned order is confirmed. The task is rendered rather difficult and uneviable in striking a balance between the two. On a very careful consideration of all aspects, both human and disciplinary, I am of the view that a lesser punishment than what has been awarded would meet the ends of proportionality.

( 2 ) RAMU was appointed as a peon in 1979 in the office of the Munsiff, Kolar. By his irresponsible conduct of remaining unauthorisedly absent, he provoked disciplinary proceedings against him. From 20th November 1979 to 7th December 1979, he remained absent without authorisation from duty and after disciplinary proceedings, he was administered a warning. The second instance was that he remained similarly absent from 23rd August 1982 to 18th December 1982 necessitating an enquiry into his dereliction of duty, which resulted in a penalty of withholding two increments with cumulative effect. Finally one more enquiry which was a sequel to his absence from duty without authorisation from 21st March 1985 and this resulted with the consequence of removal from service on 5th January 1987. The petitioner has questioned the impugned order of dismissal dated 5th January 1987 in this writ petition.

( 3 ) NO discrepancy or irregularity is noticeable in the conduct of the enquiry and the entire disciplinary proceedings. The petitioner has rendered himself culpable on account of his own conduct inconsistent with the requirement of disciplined conduct of a government servant.

( 4 ) WHAT survives for consideration is the short point and that is whether the punishment meted out to the petitioner is too harsh and therefore is not consistent with the principle of proportionality.

( 5 ) THE learned Government Pleader submitted that instruction was sought from the authorities in order to find out whether the authorities would be willing for a lesser punishment than what has been imposed on the petitioner. However she drew blank on account of the firm opinion of the authorities that this is not a case in which the authorities should relent in view of the lapses committed by the petitioner in remaining absent without authorisation on three specific occasions for long periods. The Government Pleader also submitted that the petitioner does not deserve, in the circumstances of the case, any lesser punishment than what has been inflicted upon him.

( 6 ) A principle of far reaching consequence has been laid down in Ranjit Thakur v. Union of India by the Supreme Court (1988-I-LLJ-256), in which the Court was of the opinion that the punishment was so strikingly disproportionate as to call for and justify interference. It would be necessary to reproduce the relevant portion of the judgment in para 3 of the aforesaid decision

"the accused No. 1429055 M. Signalman Ranjit Thakur of 4 Corps' Operating Signal Regiment is charged with - Disobeying a lawful command given by his superior army Act office. In that he at 15. 30 hrs. on 29th March 1985 when section ordered by JC 106251p Sub Ram Singh, the Orderly Officer 41 (2) of the same Regiment, to eat his food did not do so. "

The result of refusal to eat his own food costing the job, the Supreme Court thought, was a punishment strikingly disproportionate and called for interference. An excerpt from the judgment would bear out the principle to be followed by the decision making authority (p. 262) - "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-Material. But the sentence has to suit th

Click Here to Read the rest of this document