IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH JUDGMENT Smt.Narani Devi Vs. State of Rajasthan & Others (D.B. Civil Special Appeal (Writ) NO.141/2002) D. B. Civil Special Appeal under Ordinance 18 of the Rajasthan High Court Ordinance,1949 against the judgment dated 12-12-2001 of learned Single Judge in SB Civil Writ Petition No.5710/2001. Date of Judgment: September 08, 2008. PRESENT HON'BLE MR. JUSTICE SHIV KUMAR SHARMA HON'BLE MR. JUSTICE MAHESH BHAGWATI Mr. R.C.Joshi, for the appellant. Mr. S.S.Sharma, Govt.Advocate for the State. BY THE COURT:(PER HON'BLE Shiv Kumar Sharma,J.) Heard learned counsel for the parties. 2. Appellant is the wife of late Jai Ram, who was Constable in 3rd Batalion RAC Bikaner and died on February 19, 2000 after prolonged sickness. When the appellant approached the office of RAC for grant of family pension, she was informed that she was not entitled to family pension since her husband was dismissed from service vide order dated July 21, 1998. The appellant filed writ petition in the court of learned Single Judge with the following prayer:- (i) to quash and set aside the order dated July 21, 1998 passed by the Commandant 3rd Battalion RAC Bikaner. (ii) To convert the punishment of dismissal into compulsory retirement without consequential benefits including family pension to the petitioner. 3. Contextual facts depict as under:- (a) The allegation incorporated in the memo issued to Jai Ram by Commandant, 3rd Battalion were that he absented from his duty for 266 days w.e.f. December 14, 1996 to September 6, 1997. (b) In reply to the memo Jai Ram stated that he was absent because of mental disease. He was sent for treatment by Assistant Commandant on December 8, 1996 and his treatment continued upto January 9, 1997. Since the disease was not properly cured, Jai Ram switched over to Desi treatment. Jai Ram was admitted in Mental Hospital on May 10, 1997. (c) Jai Ram was Football player and while playing football he suffered head injuries on January 5, 1992 that resulted into his mental sickness. After the treatment in PBM Hospital Bikaner, he stayed at Bikaner for 135 days. (d) Commandant III Battalion sanctioned the leave of Jai Ram w.e.f. December 14, 1996 to September 5, 1997 treated it as extra ordinary leave. (e) After coming to know the dismissal order of Jai Ram, appellant (widow of Jai Ram) filed departmental appeal against the dismissal order on September 7, 2000. After dismissal of appeal the appellant preferred the writ petition which was dismissed by learned Single Judge as indicated herein above. 4. Having considered the submissions canvassed before us and on scanning the material on record, we find that punishment imposed on late Jai Ram is disproportionate to the alleged misconduct. Jai Ram was a Football player and on account of head injury, sustained during practice, he became mentally sick. There is sufficient material available on record, which demonstrates that Jai Ram remained absent from duty on account of his illness. He made attempt to justify his absence from duty but his certificates were not properly considered and he was dismissed from service. The penalty of removal from service was imposed on Jai Ram shocks our judicial conscience. Learned Single Judge did not properly consider the question of proportionality of the punishment. As already noticed, Commandant 3rd Battalion sanctioned the leave of Jai Ram w.e.f. December 14, 1996 to September 5, 1997, treated it as extraordinary leave. Therefore, the question of removal from service did not arise. In our opinion, the ends of justice would be met if the penalty of removal from service be substituted to that of penalty of compulsory retirement. 5. It is well settled that Disciplinary and Appellate Authorities, being fact finding authorities have exclusive power to consider the evidence with a view to maintain discipline. They are invested with the discretion to impose appropriate punishment keeping in view the magnitude or gravity of the misconduct. The High Court while exercising the power of judicial review, cannot normally substitute its own conclusion on penalty and impose some other penalty. However, if the punishment imposed by the Disciplinary and Appellate Authorities shocks the conscience of the High Court, it would appropriately mould the relief either directing the Disciplinary/ Appellate Authority to reconsider the penalty imposed, or to shorten the litigation, it may itself, in exceptional and rare cases, impose appropriate punishment with cogent reasons in support thereof. 6. Division Bench of this Court in Union of India Vs. Ummed Singh [2001(3) RLR 316] considered the ratio indicated in B.C. Chaturvedi Vs. Union of India (1995)6 SCC 749, and reduced the punishment of removal from the service to that of compulsory retirement. 7. For these reasons, we in order to shorten the litigation and to avoid any further legal expenses from both the sides feel just and proper to reduce the punishment of removal of appellant from service to that of compulsory retirement. 8. That takes us to the objection raised on behalf of State of Rajasthan that writ petition on behalf of deceased husband was not maintainable by the wife of the deceased. We find no substance in the submission. Since the matter relates to family pension of the appellant, she has every right to assail the order of punishment passed during the life time of her husband. 9. As a result of above discussion, instant appeal stands allowed as indicated above but without any order as to costs. (Mahesh Bhagwati),J.(Shiv Kumar Sharma)J. arn/