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6. On receipt of notice the respondents have entered appearance and submitted reply affidavit on 30th August, 2010 through Mrs. Yogmaya Agnihotri, learned Counsel. She would contend that the applicant committed a misconduct by misbehaving with the senior officers on 30.08.2004, as a result of which, she was charge sheeted vide Charge Memo dated 30.11.2004 and after proper enquiry following the principles of natural justice the penalty has been imposed on the applicant. Initially he was placed under suspension vide order dated 31.08.2004. With regard to engagement of Defence Assistant, it is contended that as per the Rules, the Inquiry Officer permitted the correct Defence Assistant and did not allow an Advocate which was not admissible as per the Rules. During the enquiry, the IO gave all the copies of relevant documents and the applicant verified those documents and the documents submitted by the complainant and other eye witnesses. The applicant was afforded full opportunity of personal hearing and, as such, no error or perversity could be attributed to the penalty order imposed on the applicant. It is further stated that the applicant complained against the Inquiry Officer attributing bias which was considered by the concerned authority and rejected, considering the complaints based on surmises and conjunctures. Further with regard to non-supply of defence documents or additional documents required by the applicant, it was contended that the Inquiry Officer rightly rejected the irrelevant and vague documents which would not support either the case of the prosecution or defence. It is submitted that the applicant wanted to produce only her close relatives as defence witnesses which was not allowed by the IO as their evidence would not be reliable and no independent witnesses could be produced by the applicant. With regard to denial of cross examination of SW-3, SW-4 & SW-5, it is stated that the applicant has cross examined them on 5.01.2007 but for the cross examination of SW-1 & SW-2 though scheduled on 9.02.2007 but the applicant refused to cross examine them on the ground that the applicant was not prepared for the same. She was given the opportunity again to cross examination SW-1 and SW-2 but she declined to do so and as such the IO conducted the enquiry without her cross examining them. In her representation dated 4.07.2007, the applicant has raised certain errors for which the Disciplinary Authority has remitted back IOs report for evaluating the report keeping in mind the errors indicated by her. The Inquiry Officer submitted a fresh report in a well documented and detailed manner. In respect of the contention advanced by the applicants counsel on the disproportionate penalty imposed on her by the Disciplinary Authority, the counsel for the respondent submitted that the major penalty order of reduction to the lower post of PGT (Economics) in the ordinary scale of pay `6500-200-10500 till her retirement with a bar on further promotion was considered proportionate as the order relied on the judgment of the Honble Supreme Court judgment in Mahindra and Mahindra Ltd. versus N. N. Narawade and others [(2005)-3-SCC-134], which has been cited as relevant judgment in the Disciplinary Authoritys order, as per which even the dismissal of the government employees for use of abusive language has been held as proportionate. Therefore, the contention of the applicants counsel that the punishment imposed is disproportionate needs to be rejected. In view of the above contentions, Mrs. Yogmaya Agnihotri would submit that the OA is liable to be dismissed.

11. The undersigned being the Disciplinary Authority after going through the case file, Inquiry Report & submission of the Charged Officer, has observed that the misconduct on the part of Charged Officer has been established. Thus, Smt. Bimla Ahlawat exhibited the conduct of abusive, disorderly behaviour during office hours, which is certainly unbecoming of a KV employee and failed to show due respect to her superiors. This act of her is serious enough and in violation of GOI decision No.23(4) acts and conduct below Rule 3 and Rules 3 (1) (iii) of the CCS (Conduct) Rules 1964 and article 59 (22) of education code for KVs. Smt. Ahlawat deserve a major penalty. The Apex Court has also held, in Mahindra Ltd. Vs. N. B. Narawade [(2005) Supreme Court cases, 134] that dismissal of a workman for use of abusive language cannot be held to be disproportionate. Thus, imposition of penalty of reduction to lower post of P.G.T. (Eco). In the ordinary scale of Rs.6500-200-10500 till her retirement would meet the end of justice.

7. Therefore, this appeal petition is dismissed on merit. It must be noted that the order of the Appellate Authority is silent on two other aspects of the penalty order passed by the Disciplinary Authority viz. (i)bar for further promotion and (ii) the period of suspension to be treated as non-duty.

14. The respondents and even the Disciplinary and Appellate Authorities have relied on the judgment of Hon'ble Apex Court in N.B. Narawade's case (supra) in support of the punishment imposed on the applicant on the ground that dismissal from service has not been considered disproportionate to the proved misconduct whereas in the applicant's case punishment is less than the dissmissal. We may refer to the facts of N.B. Narawade's case (supra) for appropriate appreciation of whether the arguements of the respondents are acceptable. The basic facts revealed that the respondent workman was initially appointed on temporary basis from May, 1978 and was made permanent on 9.8.1981 and was designated as a fitter and an incident which took place on 7.11.1991 wherein it was alleged that the workman used abusive and filthy language against his supervisor, an inquiry was instituted against him and the Inquiry Officer found him guilty of misconduct and on the basis of recommendation his service was terminated. He moved the Labour Court against the said order. The Labour Court by its order dated 5.9.1996 held that the charge-sheet issued to the workman was vague. Hence, a fresh charge-sheet was issued and a fresh inquiry was initiated and the Inquiry Officer came to the conclusion that the alleged misconduct was proved and the workman was dismissed from the service. In the second round, the Labour Court came to the conclusion that from the evidence of witnesses of the company it is clear that the workman had abused his superior on 22nd November, 1991 in filthy language without any provocation. However, in regard to punishment of dismissal imposed on the workman the Labour Court came to the conclusion that the same was harsh and improper hence, deserved to be set aside and substituted the said punishment by directing the respondent's reinstatement with continuity of service but with 2/3rd back wages w.e.f. 5.3.1993. Being aggrieved by the said modification of the punishment the appellant preferred a writ petition before the Single Judge of the High Court of Bombay who by a short order dismissed the same, though held that the misconduct alleged against the workman had been proved. Against the said order the appellant preferred Writ Appeal before the Division bench of the High Court wherein considering the various judgments cited before it came to the conclusion that the power of the Labour Court under Section 11 A in the Industrial Disputes Act or the equivalent provisions of the said Act were not restricted and the court was vested with the jurisdiction to alter the punishment imposed on a workman by the management, if in its opinion, the court was of the view that the punishment was disproportionate with the misconduct proved against the workman and finally held held thus: "It is true that the respondent-workman has been found guilty of the misconduct of using foul, intemperate and abusive language, but this would not in our opinion, be sufficient to warrant the punishment of dismissal......Since the misconduct has been proved and in view of the nature of the past service record, we are of the opinion that depriving the workman of 60% of his back wages would be a punishment commensurate with his past record and the misconduct proved against him. Dismissal from service will be too harsh considering the totality of service, gravity of misconduct and 15 years of service put in by him." On the above basis the Division Bench also dismissed the appeal of the Management. Hence, Management came before the Hon'ble Supreme Court in appeal. While arguing on behalf of the Management Mr. Dushyant A. Dave, learned Senior counsel submitted that on facts the workman had been charge sheeted several times earlier and on every such case of misconduct, Management took a lenient view and imposed minor punishments. He pointed out from the records that in one incident that took place on 6th September, 1988 the workman had assaulted his co-worker by name Shri G.I. Puranik with a galvanized pipe weighing about 2 kg. causing grievous injury and in such a situation, he was only punished with suspension of 4 days. According to the learned counsel the incident of 22.11.1991 was unprovoked incident when his supervisor asked him to do a particular job which was entrusted to him, he allegedly told the supervisor to call the Engineer-in-charge so that he could talk to him rather than the supervisor and when the Engineer came and requested him to carry on with the work he abused the supervisor in a very filthy language in the presence of his subordinates and later on when the Engineer went back to his cabin he followed him to the cabin and again abused him in the presence of a member of the Labour Union in similar language and even threatened him which act of the workman, according to the learned counsel, is subversive of discipline and good behaviour within the premises of the company and would undermine the discipline in the industry. The Hon'ble Apex Court took note that "the learned counsel for the appellant has pointed out from the records that the workman was charge-sheeted more than once on earlier occasions and inspite of the gravity of the offence he was dealt with leniently. He pointed out that in one such earlier instance this workman had assaulted his co-worker with a galvanized pipe causing grievous injury, even then he was punished with 4 days suspension only which according to the learned counsel clearly shows that the Management- appellant is not being vindictive." Taking into consideration the over all facts the Hon'ble Apex Court disagreeing with three courts allowed appeal and upheld the order of dismissal respondent-workman from service. It is noted that facts in the above case is different in the sense that when the workman used abusive language against a superior officer, that too not once but twice, in presence of subordinates and earlier he assaulted co-worker the dismissal was found to be justified. In the instant OA, we are having a case where the applicant using abusive language is but once and she has no preveous misconduct of similar nature. This is the first incident in case of the applicant. In view of the dissimilarity in facts to some extent we would like to distinguish the judgment in N.B. Narawade's case (supra).

20. In the background of the well settled position in law on the doctrine of proportionality, we would refer to the facts of the present case to find out whether the penalty imposed on the applicant is proportionate to the proved misconduct or not? The misconduct which has been held as proved has been embodied in the statement of imputation which we have already extracted in Para 2 within. This would indicate that the applicants misbehaviour, abuse and shouting was triggered in connection with obtaining of approval on legal transfer of her son who was studying in Class-XII from Kendriya Vidyalaya, JNU to Kendriya Vidyalaya Janak Puri. When she was enquired to find out the reason for getting her son transferred from one Kendriya Vidyalaya (KV) to the other within a short period of about two months, the applicant started shouting and uttered abusive language against Shri Ranvir Singh, the Education Officer. The enquiry from the Education Officer was not proactive but inquisitive. Such enquiry by the Education Officer could have been answered in a normal manner by which her request for her sons transfer to KV Janak Puri would have been properly attended to. Subsequently, when Mrs. Siddiqui, Education Officer of KVS Regional Office, Delhi heard the shouting and tried to intervene, she was also abused and shouted with threatening voice. She has abused 3 of them, namely, Ranvir Singh, Education Officer, Smt. Siddiqui, Education Officer and Smt. S. R. Agarwal, Principal, Kendriya Vidyalaya, Paschim Vihar. All these elements in the charge memo have been held as proved by the IO on the basis of evidence received from witnesses and available documentary evidences, more specifically, the statements of witnesses. It is noted that the applicant has no past record of using abusive language against her senior officers. The incident took place on 30.11.2004 and the applicant who joined as PGT (Economics) in 1983, has already put in 21 years of service and has about a decade of service left when the incident took place in November, 2004. On the above proved charges, the applicant was imposed the penalty of reduction to lower post of PGT (Economics) from the post of Vice Principal which she was holding on the date of incident till her retirement with bar for further promotion. The period which she spent under suspension was also treated as not spent on duty. The Appellate Authority while considering her appeal has indicated in his order, as stated within, that while dismissing the appeal he has upheld the penalty of reduction to lower post of PGT (Economics) in the ordinary scale of `6500-200-10500 till her retirement which is commensurate with the proved misconduct. Though the Appellate Authority has not specifically mentioned about barring of her promotion till retirement but as the penalty would be running right up to the date of her retirement, as per the extant rules, the applicant would of course suffer the debarment for consideration of promotion till her retirement. It is noted that the Appellate Authority has not passed any order where he has upheld the decision of the Disciplinary Authority for treating the suspension period as not spent on duty. But as the appeal has been dismissed, it is understood that he has concurred with the order passed by the Disciplinary Authority in treating the suspension period as not spent on duty. Be that as it may, the officer of the applicants rank who has already put in 21 years of service and has reached the level of Vice Principal right from PGT (Economics) in the year 1983 has passed through one more tier of promotion i.e. Selection Grade PGT (Economics) to reach the position of Vice Principal. By the imposition of the punishment, the applicant has slipped back to her position of starting her career as PGT (Economics) i.e. she has been taken 21 years back to the year of her joining post of the PGT (Economics) and the same position would continue till her retirement. This means that the applicant would continue at the starting of the scale of pay as PGT (Economics) right through which, in our considered opinion, is irrational and illogical. On a further scrutiny of the order of punishment, we find that the penalty inflicted is out of proportion and completely defiance of logic. In our considered opinion, the penalty of putting the applicant in the level of PGT (Economics) up to her retirement is absolutely unreasonable, unfair and arbitrary. This only shows some sort of vindictiveness. The Disciplinary and Appellate Authorities while exercising quasi judicial powers are the authorities exercising discretionary power. Their approach should be to reform the charged officer with appropriate punishment so that she could turn a new leaf in future service career. We find there has not been proper consideration of the punishments imposed on the applicant before taking a decision on the quantum of punishment. Though, the decision making process has not been flawed but the decision itself, in our considered view, is shocking to the conscience of the Tribunal. As we have stated within the Honble Supreme Court has held that it is not permissible to use a sledgehammer to crack a nut or to use battle axe where paring knife would suffice. Thus, the punishment imposed on the applicant should have been such that it would given proper impact on her to improve herself to render better behaviour in the future, rather than to impose penalty which would demoralize the officer in the rank of Vice Principal. We, therefore, are of the opinion that the penalty imposed on the applicant is disproportionate to the proved misconduct and is liable to be quashed and set aside. We order accordingly.