KESHOTE, J. - (1.) THIS special appeal under Section 18 of the Rajasthan High Court Ordinance, 1949 is directed by the appellants against the judgment dated 9. 12. 2002 of the learned Single Judge in S. B. Civil Writ Petition No. 3955/1999. Under that judgment the learned Single Judge partly allowed the writ petition filed by the petitioner respondent in the matter of the disciplinary proceedings.
(2.) THE petitioner respondent in the writ petition prayed for following prayers, "it is, therefore, most respectfully prayed that your Lordships may be pleased to allow this writ petition and may further be pleaded:- (i) to quash the impugned orders dated 13. 01. 1999 and - 05. 1999 (Annexures & respectively) with all consequential benefits in favour of the petitioner; (ii) to issue a writ of mandamus commanding the respondents to reinstate the petitioner in service and to allow and pay him all consequential service benefits to the petitioner forthwith; (iii) to issue any other writ/order direction or declaration which this Hon'ble Court deems just fit and proper in the facts and circumstances of the case in favour of the petitioner; (iv) to allow the cost of this writ petition. " Reply to the writ petition filed by the appellants denying the averments made in the writ petition. It has further been pleaded that on the basis of the charge sheet served upon the petitioner respondent by the appellants purported to have been issued under Rule 16 of the Rajasthan Civil Services (Classification, Control & Appeals) Rules, 1958 (hereinafter shall be referred to as `the Rules, 1958'), a departmental enquiry was held and after affording full opportunity of defence and hearing to the deliquent employee, the respondent herein, the enquiry officer submitted his report to the disciplinary authority and the disciplinary authority after taking into consideration the entire record of the enquiry officer, gave a show cause notice to the respondent and the enquiry report was enclosed thereto. Thereafter penalty of removal of service has been imposed upon the petitioner respondent. The petitioner respondent filed a departmental appeal in the matter but therein he remained unsuccessful. Before the learned Single Judge the learned counsel who appeared for the petitioner respondent, advanced only contention that extreme penalty of removal looking to the nature of the charge is highly disproportionate and it deserves to be modified. In support of his contention, reliance has been placed by the learned counsel on the decision of this Court in R. S. R. T. C. vs. Shri Ram Yadav (1 ). The learned counsel for the appellant supported the orders passed by the disciplinary and the appellate authority. On behalf of the appellants the counsel has placed reliance on the following decision, 1. D. R. Arme Institution vs. Educational Appellate Tribunal (2); 2. State of U. P. vs. Nand Kishore (3); 3. State of Rajasthan vs. Sujata Mehta (4); 4. U. O. I. vs. Narain Singh (5); 5. Regional Manager vs. S. Mohammed Gaffar (6); 6. State of U. P. vs. Ashok Kumar Singh (7); 7. AEP Council vs. A. K. Chaupra Shri Virendra Lodha, the learned counsel for the appellants, assailing the judgment of the learned single Judge, contended that it is settled proposition of law in service jurisprudence that in the matter of quantum of punishment this court under Article 226 of the Constitution of India may not interfere. In his submission it is exclusively within the domain of the disciplinary and the appellate authority to decide on proved misconduct what penalty has to be inflicted upon the deliquent employee/officer. This court sitting under Article 226 of the Constitution of India in the matter of quantum of the punishment cannot substitute its own punishment. In the case where the court sitting under Article 226 of the Constitution of India finds that the penalty inflicted upon the delinquent officer/employee by the disciplinary or the appellate authority shocking to its conscience in that case also it is not open to substitute its own penalty. The matter may be remanded to the disciplinary or appellate authority to consider on the question of quantum of punishment and pass the appropriate order. In his submission it is not the case where the penalty of removal imposed upon the petitioner respondent in the facts of this case can be said to be shockingly to the conscience of the court. The petitioner respondent was the constable in the Police Department where much more standard of discipline is necessary. He remained absent wilfully for a long period and thus penalty of removal inflicted upon him on proof of the misconduct, is not shockingly disproportionate to the guilt for which he was charged. In support of his contention Shri Virendra Lodha has placed for our consideration those very authorities which were cited on behalf of the appellants before the learned Single Judge. Lastly it is contended that the learned Single Judge has taken a very lenient view in the matter of imposition of penalty upon the delinquent employee/officer. The petitioner respondent herein, looking to his conduct remaining wilfully absent from time to time he was not fit to be retained in services. Retention in service of this employee is ultimately a loss to the public or a burden on the State exchequer. It is urged even if the lenient view is taken, he may not be ordered to be reinstated back in service. The penalty may be ordered for his compulsory retirement.
(3.) SHRI Rajendra Soni, the learned counsel for the petitioner respondent supported the judgment of the learned Single Judge and submitted that he has given cogent and convincing reasons to interfere in that part of the order of the disciplinary authority under which the penalty of removal from services has been inflicted upon the delinquent employees, the petitioner respondent herein. In his submission this Court under Article 226 of the Constitution of India exercising its extra ordinary equitable jurisdiction and where it is satisfied on the facts that the penalty given to the delinquent employee/officer on the proved misconduct levelled against him is shockingly disproportionate to the guilt for which he was charged, it can substitute proper penalty and that what precisely has been done in the present case, in which the court may not interfere in the appeal. We have given our anxious and thoughtful consideration to the rival contentions made by the learned counsel for the parties. ;