JUDGMENT :

S.N. Prasad, J.

1. This writ petition is under Articles 226 and 227 of the Constitution of India assailing the order dated 27.11.2013 passed by the Odisha Administrative Tribunal, Cuttack Bench, Cuttack O.A.No.401(C) of 2011 whereby and where under the petitioner has been dismissed from service in exercise of power conferred under Rule 836 of the Orissa Police Rules.

2. Brief facts of the case is that the petitioner while working as Cipoy in the Orissa State Armed Police, 7th Battalion, Bhubaneswar w.e.f. 5.4.1985 awarded nine Black Marks during the service period, hence the disciplinary authority initiated a proceeding against him bearing No.30 of 2000 and in exercise of powers conferred under Rule 836 of the Orissa Police Rules petitioner has been dismissed from service.

3. Learned counsel representing the petitioner at the outset has submitted that he is not arguing on the merit of the issue, rather he has tried to impress upon the Court regarding the provision of Rule 836 of the Orissa Police Rules that in case of award of nine Black Marks the consequence would be reduction in rank or compulsory retirement or removed or dismissal, in view thereof, it has been submitted that when there is other punishments apart from punishment of dismissal, consideration may be made for reversing the punishment of dismissal to that of punishment of compulsory retirement so that the petitioner may get his pension since he has performed regular duty for period of 17 years.

He further submits that the main intent of the provision of Rule 836 of the Orissa Police Rules is to get rid of the incumbent when nine black marks have been award, even accepting the entire allegations against him is correct which is unauthorized absence, as such the order of dismissal is harse taking into consideration that he has already put 17 years of service and in case of dismissal from service he will be deprived of getting pensionary benefits.

4. Learned counsel representing the State of Odisha has submitted on merit that there is no error in conducting departmental proceeding and the authorities after taking into consideration of nine black marks imposed punishment upon him and exercising the power under Rule 836 of the Orissa Police Rules, he has been dismissed from service and as such on merit the petitioner has got no case.

So far as reversion of punishment from dismissal to that of compulsory retirement, it has been fairly submitted by the learned Additional Government Advocate that it is up to the Court to consider it.

5. We have heard learned counsel for the parties and perused the documents available on record.

6. It is not in dispute that High Court sitting under Article 226 of the Constitution of India cannot pass order regarding quantum of punishment unless there exists sufficient reason and unless shocking to the conscience of the Court of the sovereign and impropriety of the punishments.

So far as the contention of the petitioner that the order of dismissal be reversed to the order of compulsory retirement so that the petitioner may get pension, we are of the opinion that merely on sympathy the order of punishment cannot be reversed. So far as the quantum of punishment is concerned, the Hon’ble Apex Court in Union of India and another v. S.S.Ahluwalia, (2007) 7 SCC 257 has held that if the conscience of the Court is shocked as to the severity or inappropriateness of the punishment imposed, it can remand the matter back for fresh consideration to the disciplinary authority concerned.

The Hon’ble Apex Court in another judgment rendered in Ishwar Chandra Jayaswal v. Union of India and others, (2014) 2 SCC 748 has been pleased to held at para-5 as follows:

“It is now well settled that it is open to the Court, in all circumstances, to consider whether the punishment imposed on the delinquent workman or officer, as the case may be, is commensurate with the Articles of Charge levelled against him. There is a deluge of decisions on this question and we do n