# Pramod Kumar v. Union Of India

- **Citation:** (2026) 4 ILRA 736
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2026-04-06
- **Case number:** Writ A No. 2968 of 2010
- **Bench:** Irshad Ali
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/pramod-kumar-v-union-of-india-54472
- **Pages:** 12

## Text

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736 INDIAN LAW REPORTS ALLAHABAD SERIES
Pensions v. Alapan Bandyopadhyay in the correct perspective, without reference to the bundle of
facts constituting the cause of action for filing O.A. No. 1619 of 2021 before the Kolkata Bench of
the Tribunal founded on the cause of action referred to in Rule 6(2) of the Procedure Rules that
decides the place of filing of an O.A."

17. In view of the above categorical law laid down by Hon'ble Supreme Court, we have no
hesitation in coming to the conclusion that as the order impugned has been passed by the Principal
Bench of the Tribunal, New Delhi, this Court would lack territorial jurisdiction to hear challenge to
the said order.

18. So far as the judgements cited by counsel for the petitioners are concerned, the same have
no application to the subject matter of the present case as in the case of Parashotam Dass (Supra),
the only issue before the Hon'ble Supreme Court was maintainability of writ petition under Article
226 of the Constitution of India against orders passed by the Armed Forces Tribunal.

19. The judgement in the case of Paritosh Kumar (Supra) deals with the dispute pertaining
to the maintainability of proceedings before the Principal Seat and Bench. The judgement in the
case of U.P. Rashtriya Chini Mills Limited (Supra) pertains to Article 226(2) of the Constitution
of India qua which in the case of Alapan Bandyopadhyay (Supra), Hon'ble Supreme Court has
clearly ruled that the said aspect need not be gone into.

20. Similarly, the judgement in the case of Nasiruddin (Supra), also inter-alia deals with
maintainability of matters between Principal Seat and the Bench.

21. Judgement in the case of Sakhroo Ram (Supra) of the Madhya Pradesh High Court deals
with a case where appellate jurisdiction for several States is conferred on one authority situated at
other State, which is not the case here.

22. In view of above discussion, following the judgement in the case of Alapan
Bandyopadhyay (Supra), it is held that the writ petition filed by the petitioners for lack of
territorial jurisdiction is not maintainable before this Court. The same is, therefore, dismissed,
leaving it open for the petitioners to approach appropriate forum in accordance with law.
----------
(2026) 4 ILRA 736
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 06.04.2026

BEFORE

THE HON'BLE IRSHAD ALI, J.

Writ A No. 2968 of 2010

Pramod Kumar ...Petitioner
Versus
Union Of India ...Respondent
4 All. Pramod Kumar Vs. Union of India
737
Issue for Consideration
(1) Applicability of doctrine of proportionality in the matter of removal order passed on the charges of absent
from duty.
(2) Effect of non supply of enquiry report and not issuing show cause notice before passing the removal
order.
(3) Permissibility of awarding dwell punishment under the service jurisprudence

Headnotes
(A) Service law - Removal from service - Constable in CISE - Disciplinary proceeding - Quantum
of punishment - Doctrine of proportionality - Applicability - Due to serious illness of mother and
due to dislocation of right elbow of himself, the petitioner sought leave -However during illness,
the charge sheet was issued - Charge of absent from duty was leveled - Reply was submitted,
but was not considered - Enquiry was conducted exparte - No opportunity to defend including
cross examine the witnesses was given - Effect: (E-1)
Held: Fairness and reasonableness in the action of the State whether in a criminal proceeding or otherwise
are the hallmark of Article 14 of the Constitution of India. The doctrine of proportionality is one of the grounds
on the basis whereof the power of judicial review could be exercised - The punishment awarded to the
petitioner is disproportionate to the charges levelled against him as well as the absence from duties was on
the medical grounds, which was to be taken into consideration while passing the order of removal. [Para 26
and 29]
Further held: Non supply of enquiry report with the show cause notice is violation of principle of natural
justice and the order based on non-supply enquiry report with the show cause suffers from illegality and is not
sustainable in the eye of law. [Para 33]
(B) Service jurisprudence - Dwell punishment - Deduction of salary and removal from service for
the same charges were awarded - Permissibility: (E-1)
Held: The punishment awarded to the petitioner is dwell in nature, one by deducting salary and another by
initiating disciplinary proceeding and removal from service, both cannot be initiated against an employee, by
the respondents. Once salary was deducted there was no justification to initiate disciplinary proceeding on the
same charges - This action of the respondents are wholly illegal, arbitrary and per se illegal. [Para 34 and 37]

Case Law Cited
Sheel Kumar Roy vs. Secretary, Ministry of Defence & others, (2007)s12 SCC 462; Dr. Sunil Kumar Singh vs.
Bihar Legislative Council and others, (2026) 2 SCC 364; Sheel Kumar Roy vs. Secretary, Ministry of Defence &
Others, (2007) 12 SCC 462; Ex-Naik Sardar Singh vs. Union of India, (1991) 3 SCC 213; Ranjit Thakur vs.
Union of India, (1987) 4 SCC 611; Modern Dental College & Research Centre vs. State of M.P., (2016) 7 SCC
353; Union of India and others vs. Mohd. Ramzan Khan, AIR 1991 SC 471; Writ A No. 4233 of 2014, Santosh
Kumar vs. State of U.P. and others decided on 24.04.2019 - referred to.

List of Acts
Constitution of India - Article 14.

List of Keywords
Removal from service, Medical treatment, Leave, Illness, Charge sheet, Opportunity of hearing, Exarte order,
Wilful, Misconduct, Inquiry proceeding, Fairness, Cross examination, genuineness of illness, Medical rebuttal,
Non-speaking order, Principle of natural justice, Non application of mind,, Irrelevant consideration, Disregard
of relevant material, Imposition of disproportionate punishment, Quantum of punishment, Doctrine of
proportionality, Outrageous defiance of logic, Sentence, Immune from correction, Irrationality, Perversity,
Judicial review, Error apparent on the face of the record, Punishment of rigorous imprisonment, Arbitrary,
Vitiated in law, Dwell punishment, Deduction of salary in the absence from duties, Justification.

Case Arising From
Impugned removal order dated 28.05.2007 passed by the Disciplinary Authority and order dated 04.02.2008
passed by the appellate authority and order dated 12.01.2009 passed by the revisional authority.
738 INDIAN LAW REPORTS ALLAHABAD SERIES
Appearances for Parties
Advs. for the Appellant: Padmesh Jain, Ashok Kumar, Colonel Ashok Kumar, L K Pathak, Radhika Singh,
Rohit Kumar, Yatish Gupta, Richa Mishra.
Advs. for the Respondents: A.S.G., I.H. Farooqui, Raj Kumar Singh

(Delivered by Hon'ble Irshad Ali, J.)

1. Mrs. Radhika Singh has filed her Vakalatnama on behalf of the petitioner, which is taken on
record.

2. Heard Mrs. Radhika Singh along with Mrs. Richa Mishra, learned counsel for the petitioner
and Shri Raj Kumar Singh, learned counsel for all the respondents.

3. Mrs. Radhika Singh has filed written submission in the matter.

4. The present writ petition has been filed under Article 226 of the Constitution of India
challenging the impugned order dated 28.05.2007, Annexure No.1 to the writ petition, passed by
the Disciplinary Authority, whereby the petitioner has been removed from service, an appeal was
filed against the order of removal, which has also been dismissed, vide order dated 04.02.2008,
Annexure No.2 to the writ petition. Against the order passed in appeal, revision was filed before the
revisional authority i.e. opposite party no.3, which has also been rejected, vide order dated
12.01.2009, Annexure no.3 to the writ petition.

5. Factual matrix of the case is that the petitioner was appointed as a Constable in CISE
(Central Industrial Security Force) on 18.06.1994 and had rendered about 13 years of long and
satisfactory service. During the course of service in 1998, the petitioner's mother, aged about 65
years, fell seriously ill and remained under continuous treatment from time to time, including
during the years 2003-2004. On compelling family circumstances, the petitioner sought transfer in
the year 2001, however, the same was not considered . Instead, he was transferred from
Hoshangabad to Anpara and thereafter to Varanasi Airport, vide order dated 30.11.2004. Despite
the recommendation of Airport Commandant dated 14.0.8.2005 for immediate need of the
petitioner, so that he could manage the treatment of his ailing and aged mother, ignored by the
authorities, compelling the petitioner to avail leave during the period of 2001-2004, including leave
without pay. The petitioner himself suffered serious ailments and remained on medical rest from
08.10.2005 to 12.10.2005 and thereafter continued to remain under medical treatment.
Subsequently, due to the serious illness of his mother, the petitioner applied for leave w.e.f.
30.01.2006, which was also denied despite the opportunity of leave. In July, 2006, the petitioner
again suffered a serious injury (dislocation of right elbow) and remained under continuous medical
treatment from 14.07.2006 and advised rest on 25.07.2006 and further he was treated on
05.08.2006 and ultimately declared medically fit only on 25.01.2007.

6. During the period of illness a charge sheet was issued to the petitioner on 25.07.2006, which
was served upon the petitioner on 21.01.2007. The petitioner submitted his reply on 23.02.2007 and
further, vide representation dated 25.02.2007 and 27.02.2007 supplemented his reply. Inquiry was
conducted with predetermination manner and effectively exparte order without giving opportunity
4 All. Pramod Kumar Vs. Union of India
739
of hearing to the petitioner was passed. The entire disciplinary action arose from 8.10.2005 to
12.10.2005 (5 days), 13.10.2005 to 27.12.2005 ( 76 days) and 30.01.2006 to 27.04.2006 (88 days).

7. The aforesaid medical leave were neither wilful or deliberate, but were occasioned due to
compelling circumstances of the petitioner and his mother. The petitioner submitted medical
certificate in reply given by him.

8. Without taking into consideration the reply submitted by the petitioner, an order of removal
dated 28.05.2007 (Annexure No.1 to the writ petition) has been passed, which reveals that why
ignorance, the petitioner has taken medical leave and has submitted medical documents, it proceed
to treat the entire period of absence as misconduct without properly appreciating the medical
condition and without assigning cogent reasons for discarding the medical evidence. The order
further indicates that notices were allegedly sent and even affixed, which itself casts serious doubt
on proper and effective service and consequently on the fairness of the inquiry proceedings.
Against the order of removal dated 28.05.2007 an appeal was filed, which has also been rejected,
vide order dated 04. 02.2008 and revision filed against order, has also been dismissed, vide order
dated 12.01.2009.

9. Submission of learned counsel for the petitioner is that copy of the inquiry report was not
supplied to the petitioner along with show cause notice issued to him and this fact has been
admitted in the impugned order of dismissal as well as in the order of appeal as well as in the
revision. By stating that along with notice inquiry report was sent to the residential address of the
petitioner, which could not be served upon him. The statement of fact in this regard has been made
in paragraph 8 of the rejoinder affidavit, which has been replied in paragraphs 6 and 7 of the
supplementary counter affidavit and there is no denial in regard to the statement of the fact made in
rejoinder affidavit. Only statement of fact was made that in spite of best effort the notice could not
be served due to nonavailability of the petitioner at the address given. However, the statement of
fact made in the order of removal clearly indicate that notice was sent at the residential address of
the petitioner at Lucknow, which was not served with the remark that it was incumbent upon the
disciplinary authority to serve notice along with the inquiry report to the petitioner while he was on
service.

10. It is further evident that inquiry was conducted exparte w.e.f. 17.01.2007 whereas the
petitioner was served with relevant document only on 21.01.2007- 27.1.2007 clearly demonstrate
denial of opportunity to the petitioner.

11. It is specifically stated that whenever the petitioner appeared before the Inquiry Officer, no
effective opportunity to defend including cross examination of the witness was granted and the
enquiry proceedings were conducted in predetermined mind. It is further submitted that the
disclosure a serious procedural illegality in as much as the Inquiry Officer submitted a report on
26.2.2007 immediately after receiving the petitioner's reply dated 25.2.2007, which clearly indicate
that the reply was not considered and inquiry report was pre decided, therefore the proceedings
vitiated on coconut of non application of mind and colorable exercise of power.
740 INDIAN LAW REPORTS ALLAHABAD SERIES

12. Mrs. Radhika Singh, learned counsel for the petitioner next submitted that it is admitted
position that copy of the enquiry report was not supplied to the petitioner and no show cause notice
in regard to the proceeding of punishment was issued before passing the order of removal on
28.05.2007. Whereby mandatory requirement of reasonable opportunity was denied to the
petitioner. She next submits that the impugned order further proceeds on presumptions rather than
evidence that questions the genuineness of illness without any medical rebuttal or expert opinion
which had already been separately punished by deducting salary for the leave granted to the
petitioner.

13. She next submits that in the counter affidavit attempted to justify the impugned action by
alleging that the petitioner is a habitual absentee. However, such reliance on past conduct is wholly
impermissible in law when the same does not form part of the charge sheet. The petitioner in his
rejoinder affidavit has categorically denied the proper service of notices and specifically stated that
Hindi version of charge sheet and inquiry notice never effected upon the petitioner and the alleged
service of his native place cannot be treated as valid service, when he was posted elsewhere.

14. The appellate authority in its order dated 04.02.2008 and the revisional authority vide
order dated 12.01.2009 have also failed to consider the aforesaid material irregularities and have
passed cryptic and non-speaking orders in a mechanical manner, whereby affirming the illegality
committed by the disciplinary authority.

15. She next submits that punishment imposed upon the petitioner is shockingly
disproportionate misconduct pertains only to absence under compelling medical and family
circumstances, yet the petitioner has been inflicted with the extreme penalty of removal from
service, which amounts to civil death. It is settled law that absence from duty does not amount to
misconduct unless it is wilful and deliberate, and even otherwise, the punishment must be
commensurate with the gravity of misconduct. In the present case, the penalty imposed is wholly
excessive, arbitrary and violative of the doctrine of proportionality.

16. She next submits that the petitioner had rendered long and satisfactory service since 1994
and had earned rewards and appreciations during his service career, which have not been
considered by the authorities while imposing the extreme punishment.

17. She next submits that from combined reading of the writ petition, counter affidavit and
rejoinder affidavit, it is evident that the impugned orders suffer from violation of principles of
natural justice, non application of mind, reliance on irrelevant considerations, disregard of relevant
material and imposition of disproportionate punishment.

18. On the other hand in support of submissions rendered by Ms. Radhika Singh, she placed
reliance in the case of Sheel Kumar Roy v. Secretary, Ministry of Defence & others (2007)12 SCC
462 and has placed reliance on paragraphs 4, 16, 17, 18, 19, and 22.

19. She further placed reliance in the case of Dr. Sunil Kumar Singh v. Bihar Legislative
Council and others:(2026)2 SCC 364. She placed reliance on paragraphs no. 41, 42, 43, 44, 45, 46
and 47.
4 All. Pramod Kumar Vs. Union of India
741

20. Shri Raj Kumar Singh, learned counsel for the respondents submits that the disciplinary
authority has tried to serve enquiry report and show cause notice but due to non availability of the
petitioner, the same could not be served. He further submits that the impugned order of removal,
appellate order as well as revisional order do not suffer from any infirmity and just and valid order.
He next submits that the reply to the averment made in paragraph 8 of the rejoinder affidavit,
supplementary counter affidavit was filed and it was denied that the petitioner has not receive show
cause notice along with enquiry report due to nonavailability of his address. Enquiry report was
served in the impugned order of removal there is recital that the petitioner submitted representation
against the show cause notice and enquiry report, therefore, the averment made in paragraph 8 of
the rejoinder affidavit, are incorrect and not admissible in the eye of law.

21. I have heard learned counsel for the parties and perused the material on record as well as
the judgement relied upon by learned counsel for the petitioner as well as by Shri Raj Kumar
Singh, learned counsel for the respondents on the point of doctrine as of proportionality denial of
paragraphs 39 and 40 of the writ petition.

22. I have heard learned counsel for the petitioner as well as Shri Raj Kumar Singh, learned
counsel for the respondents and perused the judgment relied upon by learned counsel for the
parties. For deciding controversy involved in the present writ petition relevant paragraph of the
judgment are being quoted below:-

The relevant paragraphs 4, 16, 17, 18, 19, and 22 of Sheel Kumar Roy v. Secretary, Ministry
of Defence & Others: (2007) 12 SCC 462 is reproduced herein below for the kind perusal of this
Hon'ble Court:

"4. The medical recategorisation which was to take place on or about 21-10-1987 was
delayed. He continued to be on medical leave and was categorised to be in CEE category for six
months.

Thereafter he went on leave as a part of annual leave, but he allegedly overstayed for
about 96 days. Some punishment was imposed on him by an order dated 5-12-1989. He prior to
joining his present posting, was posted in another unit on 20-1-1990. ?? was allegedly found fit to
join his duties. He was again summarily tried and awarded three days' pay fine despite the fact that
his medical recategorisation had not been done timely. He was admitted to Medical Hospital,
Ambala from 13-5-1990 to 7-6-1990 for medical recategorisation. He was granted casual leave for
the period of 7-6-1990 to 18-6-1990 to visit his family, but he allegedly overstayed his leave again
for 20 days, even though there is nothing to show as to whether he had been declared fit for joining
his duties or not There is also nothing on record to show that any action was taken against him in
respect thereof but admittedly he was admitted to Medical Hospital. Ambala for medical
recategorisation. He was transferred to Command Hospital (Western Command) on 16-7-1990.

16. In any event, the respondents themselves should have explained in their counteraffidavit as to why the recommendations of the court of enquiry were not accepted. Once it is held
that for the period of the purported absence in question or a part thereof he had not been
absconding but was admitted in Military Hospital. Ambala Cantt, the matter deserved a deeper
scrutiny at the hands of the competent authority. The movement orders in respect of the appellant
who had been described as a patient clearly shows that he was admitted in Ambala Cantt Hospital
742 INDIAN LAW REPORTS ALLAHABAD SERIES
on 11-7-1990. The movement order furthermore shows that he was also transferred to Chandigarh
Hospital.

17. Fairness and reasonableness in the action of the State whether in a criminal
proceeding or otherwise are the hallmark of Article 14 of the Constitution of India. The doctrine of
proportionality is one of the grounds on the basis whereof the power of judicial review could be
exercised. It was so held in Ex-Naik Sardar Singh v. Union of India [(1991) 3 SCC 213].

18. We may also notice that in Ranjit Thakur v. Union of India [(1987) 4 SCC 611] this
Court held: (SCC p. 620, para 25)

"25 The question of the choice and quantum of punishment is within the jurisdiction and
discretion of the court martial. But the sentence has to suit the offence and the offender. It should
not be vindictive or unduly harsh. It should not be so disproportionate to the offence as to shock the
conscience and amount in itself to conclusive evidence of bias. The doctrine of proportionality, as
part of the concept of judicial review, would ensure that even on an aspect which is, otherwise,
within the exclusive province of the court martial, if the decision of the court even as to sentence is
an outrageous defiance of logic, then the sentence would not be immune from correction.
Irrationality and perversity are recognised grounds of judicial review."

19. We although agree with the learned Additional Solicitor General that it is legally
permissible to award more than one punishment in terms of Section 71 of the Act but we may notice
that Section 39(a) specifically deals with the misconduct in respect of absence without leave. It is
one thing to say that legally it is permissible to impose more than one punishments but then also it
is another thing that in exercising the said power all attending situations which fell for
consideration by the punishing authority in regard to the quantum thereof would not be taken into
consideration. It is clear that the Commanding Officer in the summary court-martial proceedings
failed to take into consideration the relevant fact and, thus, committed an error apparent on the
face of the record. We are also of the opinion that in a case of this nature, imposition of both
punishment of rigorous imprisonment for six years as also dismissal from service was wholly
arbitrary in nature. It is also vitiated in law as all relevant facts were not taken into consideration.

22. Once it is held that arbitrariness of the Commanding Officer in the matter of holding
the appellant and awarding punishment upon him is apparent on the face of the record, the
impugned order must be held to be wholly unsustainable."

The relevant paragraphs 41, 42, 43, 44, 45, 46 and 47 of Dr Sunil Kumar Singh v. Bihar
Legislative Council and Others: (2026) 2 SCC 364 is reproduced herein below for the kind perusal
of this Hon'ble Court:

"(i) Service and Labour Laws

41. This Court has time and again highlighted the importance of proportionality when
dealing with the question of punishment or disciplinary action for misconduct at the workplace,
whether it be in public service or private organisations The nature of the misconduct, the
circumstances of the occurrence, the history and effect of the incident are all factors which ought to
be taken into consideration.

42. For example, in Dev Singh v. Punjab Tourism Dev Corpn. Ltd [Dev Singh v. Punjab
Tourism Dev Corpn. Ltd.. (2003) 8 SCC 9 2003 SCC (L&S) 1198]. a public servant was penalised
with dismissal from service for the offence of misplacing and losing an official file. This Court, in
appeal, considered the facts that the employee was serving the Corporation for twenty years with a
4 All. Pramod Kumar Vs. Union of India
743
previously unblemished record, the misconduct was not deliberate or motivated, and the file was
not shown to be of grave importance or sensitivity, reduced the punishment to withholding of
increment of the employee. On the other hand, in a case involving a delinquent employee who did
not join duty upon transfer, the Court considered his extended absence of over 233 days and his
refusal to visit the appointed doctor to substantiate his claim for medical absence, and concluded
that the punishment of removal from service was proportionate to the misdemeanour [LIC v. R
Dhandapani, (2006) 13 SCC 613 (2008) 2 SCC (L&S) 150]

43. Thus, service laws in India are riddled with such like precedents, mandating
employers, including the Government, to take all circumstances into account and undertake
proportionate action against such offences.

(ii) Administrative law

44. also places great importance on approaching decision-making with proportionality.
For instance, blacklisting from government tender auctions, which is a harsh punishment is
considered proportionate in dire cases, such as where the contractor has embezzled funds in
collusion with government employees. [Kulja Industries Ltd. v. Western Telecom Project BSNL,
(2014) 14 SCC 731] However, this Court has also protected contract awardees from withdrawal of
the contract on mere hypertechnical grounds [City & Industrial Development Corpn of
Maharashtra Ltd. v. Shishir Realty (P) Ltd., (2022) 16 SCC 527]

45. Even beyond government auction, proportionality ought to go to the root of decisionmaking by the Government The litmus test that needs to be administered is whether the harshest or
strongest measure is necessarily required to be implemented in a given case In a situation where a
lessee was in default of lease premium, rent. and interest due to underdeveloped surroundings, this
Court held that the harsh step of resumption of the land as well as forfeiture of the already paid
sum would be too harsh, when recovery proceedings are available. [Teri Oat Estates (P) Ltd. v.
State (UT of Chandigarh), (2004) 2 SCC 130] On the other hand, this Court has also upheld the
stronger step taken by the Railway Recruitment Board for re-test of limited candidates, when there
wax evidence of paper leaking and mass-cheating [All India Railway Recruitment Board v. K
Shyam Kumar, (2010) 6 SCC 614 (2010) 2 SCC (L&S) 293]

(iii) Constitutional law

46. Constitutional law is perhaps the area of law where the term "proportionality" is used
most commonly. This is so because the proportionality test, initially identified in Modern Dental
College & Research Centre v. State of M.P [Modern Dental College & Research Centre v. State of
M.P. (2016) 7 SCC 353 7 SCEC 1]? is widely used to consider the vires of legislative as well as
executive actions.

47. The test of proportionality, thus, applies to cases where action is brought to protect
the right guaranteed by the Constitution or other laws It largely seeks to identify whether the
restriction sought to be placed on the right is proportionate to the objective sought to be achieved
by the restriction. It often belies a comparison between the importance of the public purpose of the
restriction on one hand and the public right on the other hand."

23. On perusal of the judgement referred herein above, it is apparent on record that the supply
of enquiry report along with show cause notice is relevant material to be considered in deciding the
controversy involved in the case.
744 INDIAN LAW REPORTS ALLAHABAD SERIES

24. The medical re-categorization which was to take place on or about 21.10.1987 was
delayed. He continued to be on medical leave and was categorized to be in CEE category for six
months. Thereafter he went on leave as a part of annual leave, but he allegedly overstayed for about
96 days. some punishment was imposed on him by an order dated 5.12.1989. He prior to joining his
present posting, was posted in another unit on 20.1.1990. He was alleged found fit to join his
duties. He was again summarily tied and awarded three days' pay fine despite the fact that his
medical re-categorization had not been done timely. He was admitted to Medical Hospital, Ambala
from 13.5.1990 to 7.6.1990 for medical re-categorization. He was granted casual leave for the
period of 7.6.1990 to 18.6.1990 to visit his family, but he allegedly overstayed his leave again for
20 days, even though there is nothing to show as to whether he had been declared fit for joining his
duties or not. There is also nothing on record to show that any action was taken against him in
respect thereof but admittedly he was admitted to Medical Hospital, Ambala for medical recategorization. He was transferred to Command Hospital (Western Command) on 16.7.1990.

25. In any event, the respondents themselves should have explained in their counter affidavit
as to why the recommendations of the court of enquiry were not accepted. Once it is held that for
the period of the purported absence in question or a part thereof he had not been absconding but
was admitted in Military Hospital, Ambala Cantt., the matter deserved a deeper scrutiny at the
hands of the competent authority. The movement orders in respect of the appellant who had been
described as a patient clearly shows that he was admitted in Ambala Cantt. Hospital on 11.7.1990.
The movement order further more shows that he was also transferred to Cahndigarh Hospital.

26. Fairness and reasonableness in the action of the State whether in a criminal proceeding or
otherwise are the hallmark of Article 14 of the Constitution of India. The doctrine of
proportionality is one of the grounds on the basis whereof the power of judicial review could be
exercised. It was so held in Ex-Naik Sardar Singh v. Union of India [(1991)3 SCC 213].

27. It may also be noticed that in the case of Ranjit Thakur V. Union of India [(1987) 4 SCC
611] this Court held on Supreme Court Cases para 25, the question of the choice and quantum of
punishment is within the jurisdiction and discretion of the court martial. But the sentence has to suit
the offence and the offender. It should not be vindictive or unduly harsh. It should not be so
disproportionate to the offence as to shock the conscience and amount in itself to conclusive
evidence of bias. The doctrine of proportionality, as part of the concept of judicial review, would
ensure that even on an aspect which is, otherwise, within the exclusive province of the court
martial, if the decision of the court even as to sentence is an outrageous defiance of logic, then the
sentence would not be immune from correction. Irrationality and perversity are recognized grounds
of judicial review.

28. It is one thing to say that legally it is permissible to impose more than one punishments but
then also it is another thing that in exercising the said power all attending situations which fell for
consideration by the punishing authority in regard to the quantum thereof would not be taken into
consideration. It is clear that the Commanding Officer in the summary court-martial proceedings
failed to take into consideration the relevant fact and, thus, committed an error apparent on the face
of the record. We are also of the opinion that in a case of this nature, imposition of both punishment
4 All. Pramod Kumar Vs. Union of India
745
of rigorous imprisonment for six years as also dismissal from service was wholly arbitrary in
nature. It is also vitiated in law as all relevant facts were not taken into consideration.

29. In the present case also the punishment awarded to the petitioner is disproportionate to the
charges levelled against him as well as the absence from duties was on the medical grounds, which
was to be taken into consideration while passing the order of removal. Due to non consideration of
this aspect of the matter the order vitiates in law, are taken into consideration while passing the
impugned order.

30. In another judgment Sunil Kumar Singh (supra) the Hon'ble Supreme Court has
considered the case of Dev Singh v. Punjab Tourism Dev Corpn. Ltd., wherein a public servant was
penalised with dismissal from service for the offence of misplacing and losing an official file. This
Court, in appeal, considered the facts that the employee was serving the Corporation for twenty
years with a previously unblemished record, the misconduct was not deliberate or motivated, and
the file was not shown to be of grave importance or sensitivity, reduced the punishment to
withholding of increment of the employee. The Court further considers that in case involving a
delinquent employee who did not join duty upon transfer, the Court considered his extended
absence of over 233 days and his refusal to visit the appointed doctor to substantiate his claim for
medical absence, and concluded that the punishment of removal from service was proportionate to
the misdemeanor. The service laws in India are riddled with such like precedents, mandating
employers, including the Government, to take all circumstances into account and undertake
proportionate action against such offences.

31. Even beyond government auction, proportionality ought to go to the root of decision
making by the Government. The litmus test that needs to be administered is whether the harshest or
strongest measure is necessarily required to be implemented in a given case. In a situation where a
lessee was in default of lease premium, rent, and interest due to underdeveloped surroundings, this
Court held that the harsh step of resumption of the land as well as forfeiture of the already paid sum
would be too harsh, when recovery proceedings are available. On the other hand the Court has also
upheld the stronger step taken by the Railway Recruitment Board for re-test of limited candidates,
when there was evidence of paper leaking and mass-cheating.

32. The Constitutional law is perhaps the area of law where the term "proportionality" is used
most commonly. This is so because the proportionality test, initially identified in Modern Dental
College & Research Centre v. State of M.P. (2016) 7 SCC 353. The test of proportionality, thus,
applies to cases where action is brought to protect the right guaranteed by the Constitution or other
law. It largely seeks to identify whether the restriction sought to be placed on the right is
proportionate to the objective sought to be achieved by the restriction. It often belies a comparison
between the importance of the public purpose of the restriction on one hand and the public right on
the other hand.

33. This judgment fully considers the proportionality of the charges and its punishment. The
punishment should not be disproportionate to the charges. In the case of Union of India and others
Vs. Mohd. Ramzan Khan reported in AIR 1991 Supreme Court 471. The Hon'ble Supreme Court
has held that non supply of enquiry report with the show cause notice is violation of principle of
746 INDIAN LAW REPORTS ALLAHABAD SERIES
natural justice and the order based on non-supply enquiry report with the show cause suffers from
illegality and is not sustainable in the eye of law.

34. In the present case dwell punishment has been awarded one by deduction of salary in
the absence from duties and removal from service cannot be awarded to the petitioner. Once
also punishment was awarded by deducting salary from the petitioner, therefore disciplinary
proceedings would not have been initiated against the petitioner. This action of the
respondents are wholly illegal, arbitrary and per se illegal.

35. The argument advanced by Shri Raj Kumar Singh by producing a judgment of this
Court in Writ A No. 4233 of 2-14, Constable 339/381 C.P. Santosh Kumar Vs. State of U.P.
and others, decided on 24.04.2019. Submission advanced by Shri Raj Kumar Singh is that the
charges are not disproportionate to the matter involved, therefore on the proportionality of
the charges is commensurate to the charges levelled. The judgement relied upon is
distinguishable in nature as already considered in the judgment rendered by the Hon'ble
Supreme Court of India which are reproduced herein above of the judgement which are liable
to be considered in regard to the disproportionality of charges. Therefore the judgment
placed reliance upon is distinguishable in nature and not applicable to the facts and
circumstances of the present case.

36. In view of punishment awarded to the petitioner is disproportionate to the charges levelled
against him.

37. The punishment awarded to the petitioner is dwell in nature, one by deducting salary and
another by initiating disciplinary proceeding and removal from service, both cannot be initiated
against an employee, by the respondents. Once salary was deducted there was no justification to
initiate disciplinary proceeding on the same charges.

38. It is the admitted case of the party that enquiry report as well as show cause notice was not
served upon the petitioner nor was given opportunity to file reply to the show cause notice, issued
to the petitioner, therefore, the impugned orders dated 28.05.2007, 04.02.2008 and 12.01.2009
suffer from violation of principle of natural justice and are liable to be set aside by this Court.

39. In view of the reasons recorded above, the appellate court as well as the revisional court
have also not considered the aforesaid aspect of the matter, and have passed the orders without
considering the relevant material on record.

40. In view of the reasons recorded above, and facts and circumstances of the case, the
impugned orders dated 28.05.2007, 04.02.2008 and 12.01.2009 are hereby set aside. The writ
petition succeeds and is allowed.

41. However, the petitioner shall be permitted to join the post in as much as the arrears of
salary with effect from 28.05.2007 till date and shall be paid regular salary month by month after
reinstatement in service.
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4 All. Suresh Bahadur Singh Kaushik Vs. The State of U.P. & Ors.
747
(2026) 4 ILRA 747
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 09.04.2026

BEFORE

THE HON'BLE IRSHAD ALI, J.

Writ A No. 7914 of 2009

Suresh Bahadur Singh Kaushik ...Petitioner
Versus
The State of U.P. & Ors. ...Respondents

Issue for Consideration
(1) Validity of punishment order passed without fixing date, time and place for oral inquiry and cross
examination of witnesses.
(2) Applicability of U.P. Government Servant (Conduct) Rules, 1956 to the teachers of U.P. Basic Education.
(3) Entitlement of the delinquent employee to be restored on his post on declaration of punishment order
illegal, though he was retired during the pendency of writ petition filed against punishment order.

Headnotes
(A) Service law - Punishment - Reversion from the post of Assistant Teacher, Junior Basic
School to the same post in Primary School - Inquiry proceeding - Charge of working as
Journalist in news paper was leveled - Reply to show cause notice was submitted - However, no
date, time or place was fixed for oral inquiry and cross examination of witnesses - Effect -
Applicability of the Rules, 1956 also felt into consideration: (E-1)
Held: After submission of reply to the show cause notice, no date, time or place was fixed for oral inquiry and
cross examination of witnesses relied upon, therefore, the inquiry proceeding vitiates in law and is not
sustainable in the eyes of law. [Para 14]
Held further: Entire order is based upon premise that the Rules, 1956 as applicable to U.P. Government
Servants would apply to the teachers under U.P. Basic Education also.