WP(C) 2720/2006 BEFORE THE HON’BLE MR JUSTICE IA ANSARI Heard Mr. R Ali, learned counsel for the petitioner, and Ms. HM Phukan, learned Government Advocate, for the respondent. 2. The petitioner, a constable in the Assam Police Force, was posted at a S ULFA Camp, Basanaghat, in the district of Morigaon, for guarding the said Camp a long with two other constables, namely, Ainul Haque and Kuladhar Bordoloi. On 20 -03-2003, at about 5 pm, 1 (one) SLR, which is a prohibited arm, issued to the p etitioner, was found missing from the said Camp. At the time, when the fact that the SLR was missing in the Camp, was noticed, the petitioner was absent from th e Camp without any intimation to any one and without any permission from appropr iate authority. A disciplinary proceeding was accordingly initiated against the petitioner on the following charges: i) SLR being No. 16261667 issued to the petitioner was found missing from t he SULFA Camp, Basanghat, Morigaon. ii) Unauthorised absence from the said Camp at the time of incident leaving the SLR negligently in the Camp. 3. The inquiry, which was held, found the petitioner guilty of the charges levelled against him. The inquiry report was accepted by the disciplinary author ity and, in consequence thereof, the petitioner was dismissed from service. Thou gh the petitioner preferred an appeal, the appeal was also turned down. Aggrieve d by his dismissal from service, the petitioner has filed this writ petition, un der Article 226 of the Constitution of India, seeking, inter alia, issuance of a ppropriate writ(s) setting aside the order, dated 27-08-2005, whereby the petiti oner was ordered to be removed from the service with immediate effect and also t he order, dated 25-04-2006, whereby the petitioner’s appeal has been turned down . 4. At the time of hearing of this writ petition, nothing could be pointed o ut, on behalf of the petitioner, to show that the finding of guilt, reached agai nst the petitioner, in the disciplinary proceeding, was incorrect or untenable i n law. In fact, what has been put under challenge, at the time of hearing of thi s writ petition, is the legality of the imposition of penalty removing the petit ioner from service on the ground that the penalty imposed is disproportionate to the nature of misconduct. In other words, the petitioner does not challenge, at the time of hearing, the correctness of the findings reached on the charges fra med against him. What has been challenged is the nature and extent of penalty, t he challenge being on the ground that the dismissal from service is disproportio nate to the misconduct. 5. The question, therefore, which is required to be decided, in this writ p etition, is as to whether the penalty imposed is disproportionate to the nature of misconduct, which the petitioner has been found guilty of. 6. With regard to the above, it is important to note that the power of the High Court under Article 226 is circumscribed in matters of judicial review of p unishment imposed by a disciplinary authority inasmuch as it is basically for th e disciplinary authority to choose appropriate penalty. Unless penalty imposed o n a Government employee is against law, or so grossly disproportionate that it s hocks the conscience of the Court, no interference with the penalty, imposed on a person found guilty of a charge of misconduct, is permissible. 7. In fact, how far a High Court can interfere, while exercising powers und er Article 226, in matters of penalty imposed by a disciplinary authority, was c onsidered in B. C. Chaturvedi v. Union of India and others, reported in (1995) 6 SCC 749, and, having considered a catena of authorities, what the Supreme Cour t held was that the disciplinary authority, and, on appeal, the appellate author ity, being fact-finding authorities, have exclusive power to consider the materi als with a view to maintain discipline. They are the ones vested with the discre tion to impose appropriate punishment keeping in view the gravity of the miscond uct. The High Court, while exercising the power of judicial review, cannot, ordi narily, substitute its own conclusion on penalty and impose some other penalty. If the punishment imposed by the disciplinary authority or the appellate authori ty shocks the conscience of the High Court, it would appropriately mould the rel ief by either directing the disciplinary/appellate authority to reconsider the p enalty imposed or, to shorten the litigation, it may itself, ’in exceptional and rare cases’, impose appropriate punishment with cogent reasons in support there of. 8. What follows from the above discussion is that if is for the disciplinar y authority and, on appeal, for the appellate authority, to decide, they being t he fact finding authorities, as to what penalty is warranted in a given case. Or dinarily, the High Court, in exercise of its power of judicial review, would not substitute, on a given penalty, its own conclusion and its chosen penalty merel y because the High Court considers the penalth, chosen by the High Court, as mor e appropriate. However, if the penalty imposed shocks the conscience of the Cour t, it shall remand the matter to the disciplinary/appellate authority, as the ca se may be, to reconsider the penalty imposed; and it is in ’exceptional and rare cases’ that a High Court may, in order to shorten the litigation, impose appro priate punishment by showing cogent reasons in support of the punishment chosen by the High Court. 9. It may, now, be noted that what a High Court really does, when it interf eres with a penalty imposed by a disciplinary authority, is that it (the High Co urt) decides the \proportionality\ of the penalty imposed by a disciplinary auth ority. The concept of proportionality, in the realm of administrative law, has b een summed up in Union of India and another vs. G. Ganayutham, reported in (1997 ) 7 SCC 463. To judge the validity of any administrative order or statutory d iscretion, normally, the Wednesbury tests shall be applied to find out if the de cision was illegal or suffered from procedural improprieties or was one, which n o sensible decision-maker, on the basis of materials before him and acting withi n the framework of the law, could have arrived at. The Court would determine whe ther relevant matters had not been taken into account or whether irrelevant matt ers had been taken into account or whether the action was not bona fide. The Cou rt would also consider whether the decision was absurd or perverse. The Court wo uld not ever go into the correctness of the choice made by the administrator amo ngst the various alternatives open to him. Nor could the Court substitute its de cision in place of that of the administrator. This is the Wednesbury test. The C ourt would not interfere with the administrator’s decision unless it was illegal or suffered from procedural impropriety or was irrational in the sense that it was in outrageous defiance of logic or moral standards. (See Union of India and another vs. G. Ganayutham, reported in (1997) 7 SCC 463.) 10. The decision, in B.C. Chaturvedi (supra), also takes note of the fact th at when an administrator’s decision, in matters of penalty, is not challenged on the ground of denial of fundamental rights, the role of the Court or the Tribun al, as the case may be, would that of a ’secondary reviewing authority’ in the s ense that the Court or the Tribunal, in such a case, would not only examine whet her all the relevant factors were taken into account, but also whether any irrel evant factor was taken into account. If the administrator’s decision does not su ffer from non-consideration of relevant factors or does not suffer from consider ation of any irrelevant factor, the decision of the administrator, even in matte rs of penalty, cannot be reviewed and varied by the secondary reviewing authorit y, such as, the Court or the Tribunal. The Court may, however, examine if the de cision was absurd or perverse or irrational in the sense that it was in outrageo us defiance of logic or moral standards. If, however, the administrator has seve ral choices of penalty to be imposed, his exercise of choice would not, ordinari ly, be interfered with by the Court or the Tribunal unless the administrator’s d ecision fails the tests as indicated above. In other words, when the role of the Court is of the secondary reviewing authority, the test of reasonableness, as p ointed out in Wednesbury and CCSU, would be applied. If the Court, on reviewing the question of punishment, is satisfied that the Wednesbury’s principles are vi olated, it would, ordinarily, remit the matter to the administrator for a fresh decision as to the quantum of punishment and it is only in rare cases, where the re has been long delay, because of the time already taken by the disciplinary pr oceedings and/or because of the time taken in the Courts, can the Court substitu te its own view as to the quantum of punishment. 11. In short, when the role of the Court is secondary, the Court will, norma lly, remit the matter to the administrator for a fresh decision on the quantum o f punishment and it is in rare cases that the court will substitute its own view s on the question of quantum of punishment, the basic test being that if the aut hority concerned has taken into consideration a fact, which was irrelevant in de termining the question of penalty, then, interference is possible and, similarly , if the authority concerned, while determining the quantum of penalty, has not taken into consideration a relevant fact, then, too, interference is permissible . If, however, the authority concerned has not taken into account any irrelevant fact and has not omitted to take into account any relevant fact, then, interfer ence is not possible unless the penalty imposed is biased. In other words, if no ne of the said two factors exists in a given case and the penalty imposed is als o not biased or barred by law, interference may not be possible, particularly, w hen, in the given set of facts, the administrator has several choices of punishm ents and he chooses to adopt one of such choices. For the Supreme Court, however , the scope is wider inasmuch as Article 142 empowers the Supreme Court, as indi cated in BC Chaturvedi (supra), \to do complete justice\; whereas no such power is available to the High Courts. However, even when the High Court takes the vie w that the punishment imposed is disproportionate to misconduct, it is necessary for the High court to assign reasons. In the absence of reasons, there can be n o interference with the penalty imposed, for, such interference would be nothing but arbitrary. Reference may be made to Depot Manager, APSRTC v. P. P. Basga an d another, reported in AIR 1999 SCW 4753. 12. What, thus, crystallizes from the above discussion is that while conside ring the question of \proportionality\ of punishment imposed by an administrativ e authority, such as, the present one, the power of judicial review is, basicall y, confined to the review of the decision-making process. If the decision has be en reached on the basis of the materials on record, such a decision will not be, ordinarily, interfered with. If there are two views possible in a given set of facts and the administrator has adopted one of such views, the High court will n ot substitute its own view in the place of the view of the administrator. When a finding of guilt is found to be correct, then, the penalty shall not be, normal ly, interfered with unless the sentence or penalty imposed is shockingly disprop ortionate to the nature and gravity of the misconduct or so irrational that no r ational mind will accept the same or if the penalty is biased or perverse, i. e. wholly contrary to the materials on record. 13. In the case at hand, there is no discernible material on record to indic ate that the penalty has been imposed, in the present case, out of any bias. Wha t is, therefore, required to be determined is whether the penalty is disproporti onate to the nature and gravity of the misconduct? While considering this aspec t of the matter, one must bear in mind that it is primarily, for the controlling authority to decide, in the case of a disciplined force, such as, the present o ne, as to what penalty shall be imposed on a person, found guilty of a charge, s o that the requisite discipline is maintained. The choice of the administrator c annot, except in the circumstances stated above, be interfered with. 14. It needs to be, now, noted that the petitioner was a member of a discipl ined force. His duty was to guard a Camp, where surrendered militants had been k ept. The petitioner, however, disappeared from the said Camp without obtaining a ny permission from, or intimation to, the appropriate authority. Apart from the fact that the petitioner’s absence was wholly unauthorized, the SLR, issued to h im, was also not taken care of by the petitioner and the same was taken away by some unknown extremist. Even at the time, when the SLR was found missing, the pe titioner too was missing. In such circumstances, the very purpose of recruiting the petitioner, as a member of the police force and putting him, as a guard, on a sensitive duty, proved futile. If the petitioner is let off leniently, the dis cipline in the force, whose member the petitioner was, would become impossible t o be maintained and the casualty would be the very concept of good governance. 15. In the face of such serious misconduct, as has been committed by the pet itioner, it cannot be said that the order of his removal from service is disprop ortionate to the gravity of the misconduct committed by him. This Court, therefo re, finds no reason to interfere with the penalty imposed on the petitioner. 16. Because of what have been discussed and pointed out above, this Court do es not find any merit in this writ petition. The writ petition, therefore, fails and the same shall accordingly stand dismissed. 17. No order as to costs.