P. N. Nag,j. ( 1 ) THE petitioner in this writ petition has challenged his order of dismissal from service dated 10/10/1986 passed by respondent No. 3 and the order of confirmation by the appellate authority respondent No. 4 dated 20/1/1988. ( 2 ) THE relevant facts set out in the writ petition tire that on account of the allegations that the petilioner, who was working as Junior Engineer with respondent No. 1 Municipal Corporation of Delhi did not book an authorised construction made in the premises No. l366/v, Maliwara, during his tenure in the City Zone. with the result he has displayed a lack of absolute integrity and devotion to duty. he was liable for the extreme disciplinary penalty of dismissal from service. The petitioner was posted as Junior Engineer in the City Zone Department of the respondent No. l w. e. f. 20/4/1981 and Ward V, Maliwara falls within the area allotted to him. He remained there till 2/11/1982 when he relinquished hischarge on being suspended in connection with a charge in a different case. ( 3 ) AFTER the relinquishment of the charge, the petitioner received the Statement of Charge framed against him on 24/12/1983 (annexure 5) which reads as under:- "that the said Shri Avniash Chander Gupta while functioning as JE (B) City Zone during the year 1982 committed gross misconduct and failed to maintain absolute integrity and devotion to duty inasmuch as he with malafide intention did not book the huge u/c commercial complex in premises No. l366/v, Maliwara during his tenure. The unauthorised construction of 4 storeyed market at GF, FF, SF and 3rd floor Bwas booked by his successor vide show cause notice No-58407 vide file No. 388/uc/cz dated 9/11/82. Shri Avinash Chander Gupta thereby contravened Rule 3 of e CCS (Conduct) Rules, 1964 as amended from time to time and made applicable to the employee of the Municipal Corporation of Delhi. " ( 4 ) THE statement of allegation on the basis of which charge has been framed against the petitioner has been incorporated in Annexure P-6 from which it is revealed that on the basis of a complaint made to the Commissioner that an unauthorised construction has taken place in premises No. 1366. Baidwara. " ( 4 ) THE statement of allegation on the basis of which charge has been framed against the petitioner has been incorporated in Annexure P-6 from which it is revealed that on the basis of a complaint made to the Commissioner that an unauthorised construction has taken place in premises No. 1366. Baidwara. Maliwara, Delhi in the City Zone, the site was inspected by a Junior Engineer from Coordination cell on 23/12/1982 who reported that the owner/builder had structurally completed the u/c consisting of 10 shops at GF, 7 rooms at FF,6 rooms at SF, 7 rooms at 3rd floor, one hall,latrine and bath at 4th floor. Balconies attached from GF to 4th floor were also completed. The u/c of stair case leading from FG to 4th floor had also taken place. Plastering work on the wall at 3rd floor and 4th floor was inprogress at the time of inspection. The unauthorised construction was started in the property in the month of October 1982 when the petitioner was the incharge of this area and did not take action against the unauthorised construction. Thereafter one Shri Ram Kishore, JE (B) was posted in that area, who vide FIR No-37932 dated 9/11/1982 booked the unauthorised construction and was also charge sheeted. ( 5 ) THE Enquiry Officer submitted his report dated 26/8/1985 holding that the negligence and dereliction of duly of a very serious order stood proved against the petitioner. The charge of maintaining absolute integrity was not proved as, according to the Enquiry Officer, there was no direct evidence to substantiate this part of charge. In this report, the charges against Shri H. C. Singhal and Shri Ram Kishore, who were also charge sheeted for violating Rule 3 of CCS (Conduct) Rules, 1964, also stood proved against them. ( 6 ) ON the basis of the Enquiry Report penalty of dismissal from service was imposed by respondent vide order dated 10/10/1986. which was confirmed by the Appellate Authority vide order dated 20/1/1988 (Annexure P-1 and P-2 ). ( 6 ) ON the basis of the Enquiry Report penalty of dismissal from service was imposed by respondent vide order dated 10/10/1986. which was confirmed by the Appellate Authority vide order dated 20/1/1988 (Annexure P-1 and P-2 ). ( 7 ) THE petitioner has challenged the order of his dismissal from service as will as the appellate order rejecting the appeal on the grounds that the charge against the petitioner docs not stand proved, the report of the Enquiry Officer was perverse as the inspection report dated 23/12/1982 of Shri S. S. Jolly, docs not show that the unauthorised construction took place during the period when the petitioner was posted in that area. The petitioner has set out facts in the petition and also a chart in the additional affidavit dated9/5/1988 indicating therein the construction as existed according to the house tax survey of 1970-71 and on the dates of inspection by Shri Ram Kishore (9/11/1982) and by Shri P. K. Jain (8/12/1982 ). By the said chart, the petitioner has tried to demonstrate that on the date of inspection by Shri Ram Kishore, there was an addition of one room on the ground floor and one room on the 2nd floor. However, on the date of inspection by Shri P. K. Jain on 8/12/1982 there was an addition of 5 rooms on the ground floor, I room on the first floor, 2 rooms on the second floor, 5 rooms on the third floor and one hall and toilet on fourth floor in comparison to the structure existing in 1970-71. From this an attempt has been made to show that it cannot be said as to when the new construction has taken place and that the construction was going on when even Ram Kishore and P. K. Jain inspected the premises on 9/11/1982 and 8/12/1982 respectively and the petitioner was no longer posted there. Further, the construction might have taken place at any time after 1970-71 and no construction work took place during his tenure as Junior Engineer in Ward V, Maliwara and no complaint was made to him. Again, the construction in fact is not a new construction. This building is situated in a very congested locality and the nature of construction is not such that it would easily have been visible from the street abutting the building. Again, the construction in fact is not a new construction. This building is situated in a very congested locality and the nature of construction is not such that it would easily have been visible from the street abutting the building. ( 8 ) IN pursuance of the order dated 12/4/1988 passed by this Court, the petitioner has placed on record copies of the statements of Shri Ram Kishore and Shri S. S. Jolly and their reports. ( 9 ) IN the counter affidavit, the stand taken by the respondents is that no court has the power to re-assess or re-calculate the findings of the domestic enquiry and therefore the Findings of the Enquiry Officer cannot be challenged. The petitioner has been dismissed from service after complying with the principles of natural justice and according to the report of the Enquiry Officer, the charges of negligence and dereliction of duly of very serious nature against the petitioner stand proved and the dismissal of the petitioner from service is perfectly justified in law. It is prima facie apparent on record that the owner/builder of the property in question carried out the unauthorised construction in the shape of additions alterations etc. which were in contravention of the provisions of Building Bye-Laws and the D. M. C. Act. 1957 and the petitioner has failed to take action or bring it to the notice of the higher authorities till he was transferred from that area and even subsequent to it when he handed over the charge to Shri Ram Kishore, J. E. , his successor. ( 10 ) MR. Talwar, leaned counsel for the petitioner, strenuously urged that the report of the Enquiry Officer is perverse as the Enquiry Officer has failed to take note of the statement and cross-examination of Shri S. S. Jolly, Assistant Engineer (Civil) (annexure P-15 ). The report dated 14/4/1986 submitted by Mr. Jolly is Annexure P-14 and his statement is annexure P-15. Heavy reliance has been placed by the Enquiry Officer on such report and statement of Shri Jolly. ( 11 ) THERE is a good deal of force in the submission of Mr. Talwar. The report dated 14/4/1986 submitted by Mr. Jolly is Annexure P-14 and his statement is annexure P-15. Heavy reliance has been placed by the Enquiry Officer on such report and statement of Shri Jolly. ( 11 ) THERE is a good deal of force in the submission of Mr. Talwar. ( 12 ) IN the report dated 14/4/1986 of Shri Jolly Asstt Engineer at annexure P-14 it has categorically been slated that it is not possible to ascertain that at whose instance this deviated unauthorised construction took place - either of the petitioner or Shri Ram Kishore. In cross-examination (annexure P-15) Shri Jolly has clearly admitted that he didnot consult the house tax record for the purpose of verification of extent of accommodation in the instant case. He has denied that he has any document in support of his report nor such report is made on the basis of public enquiry. Only verbal local enquiry was made at the site which revealed that the construction started in October, 1983. ( 13 ) IN the face of this statement if taken into consideration, the inference drawn by the Enquiry Officer perhaps could have been different. The Enquiry Officer unfortunately has not take note of this aspect of the matter which goes to the root of the case. ( 14 ) THERE cannot be any dispute that the penalty of dismissal is of very serious nature and deprives a person from his livelihood and the matter should not have been taken so casually by the authorities concerned, more particularly when the report on the basis of which the charges against the petitioner have been found out to be proved, can lead to contrary inference. However, at this belated stage quashing of the enquiry report will not only cause lot of inconvenience to the Department and further prolong the agony of the petitioner coupled with the fact that this court in the writ petition does not sit as a court of appeal, I am as such refraining from setting aside such report and consequential order of dismissal, but this factor is a strong factor for awarding lesser penalty as would be discussed hereinafter. ( 15 ) COUNSEL for the respondents, however, submitted whether or not there was sufficient evidence against the delinquent officer to justify his dismissal from service is matter on which the Court cannot embark. ( 15 ) COUNSEL for the respondents, however, submitted whether or not there was sufficient evidence against the delinquent officer to justify his dismissal from service is matter on which the Court cannot embark. He has relied upon a decision reported as K. L. Shinde v. State of Mysore ( AIR 1976 SC 1080 ) wherein it has been observed that the departmental proceedings do not stand on the same footing as criminal prosecution in which high degree of proof is required. Departmental proceedings are not strictly governed by the rules of evidence as contained in the Evidence Act. The submission in fact made by counsel for the respondents is that this court cannot appraise or re-appraise the evidence and find out whether or not there is sufficient evidence against the delinquent official and this aspect of the matter is exclusively within the purview of the Enquiry Officer and not of the Court. ( 16 ) IN this context it is sufficient to say that it is not a case of the re-appreciation of evidence or to find out whether there was sufficient evidence against the delinquent to justify his dismissal but this is a case where there has been found non application of mind by theenquiry Officer inasmuch as he has failed to take into consideration the statement and the report of Shri Jolly (Annexures P-14 and P-15), as stated above and this should be considered, as a mitigating circumstance for awarding penalty to the petitioner. ( 17 ) IN Kartar Singh Gerwal v. State of Punjab (1992 - I JT - SC - 124), the Supreme Court has substituted the order of dismissal from service by compulsory retirement in view of the fact that they found that the evidence in support of the charges which led to the dismissal was not very strong. However, they held that have stated so not with a view to reappraise the evidence but to judge whether the circumstances justified the severest punishment. ( 18 ) IN Shri Bhagat Ram v. State of Himachal Pradesh and others (1983- ISLR 626) the Supreme Court has observed that it is equally true that the penalty imposed must be commensurate with the gravity of the misconduct, and that any penalty disproportionateto the gravity of the misconduct would violative of Art. 14 of the Constitution. ( 18 ) IN Shri Bhagat Ram v. State of Himachal Pradesh and others (1983- ISLR 626) the Supreme Court has observed that it is equally true that the penalty imposed must be commensurate with the gravity of the misconduct, and that any penalty disproportionateto the gravity of the misconduct would violative of Art. 14 of the Constitution. ( 19 ) IN my opinion, in these peculiar facts and circumstances of the case, the penalty of dismissal is not warranted. The enquiry officer has failed to take into consideration the vital aspect of the report and statement of Shri Jolly and also other facts, which shows his non-application of mind. The other mitigating circumstances for reducing the penalty are that although the original charge framed against the petitioner was that he had failed to maintain absolute integrity but that charge had not been proved, according to the Enquiry Officer, and only charge of negligence and dereliction of duty of serious nature had been proved against him. There has been no allegation against him that he has received any consideration for helping the builder to raise unauthorised construction. ( 20 ) APART from this fact. I may note that the petitioner is a young man and diploma holder and the penalty of dismissal will debar him from getting any job in Government service in future. It may also be observed that although charge against Shri Ram Kishore was proved but he has been lightly dealt with by the department ilself in the matter of awarding penalty, although lie was placed in the same position. ( 21 ) HAVING regard to all these circumstances the ends of justice will be met in case the petitioner s penally of dismissal from service is converted into minor penalty of stoppage of two increments with cumulative effect. However, he shall not be entitled to any salary from the date of termination till the date of re-instalement, ( 22 ) IN the light of what is discussed above the writ petition is partly allowed. Order of dismissal from service dated 10/10/1986 confirmed by the appellate authority are quashed and the punishment of penalty of dismissal is converted into the penalty of stoppage of two annual increments with cumulative effect and is accordingly imposed on the petitioner. Order of dismissal from service dated 10/10/1986 confirmed by the appellate authority are quashed and the punishment of penalty of dismissal is converted into the penalty of stoppage of two annual increments with cumulative effect and is accordingly imposed on the petitioner. The respondent is directed to re-instale the petitioner forthwith, He shall not be entitled to pay and allowance from the date of termination till the date of reinstatement. ( 23 ) IN the circumstances, there is no order as to costs.