V. H. BHAIRAVIA, J. ( 1 ) THE petitioner has invoked extra ordinary jurisdiction of this court under Art. 226 of the Constitution of India, challenging the order of his removal from service as District Health Officer as it is illegal, ultra vires and violates Arts. 14 and 16 of the Constitution of India. ( 2 ) THE short facts leading to the present petition as emerges from the record are as under :- the petitioner was working as District Health Officer at Mehsana in the year 1982-83. It is submitted that the District Panchayat Health Committee had proposed to purchase some medicines and instruments for Health Department vide its Resolutions nos. 75 and 85 passed in the month of May and July 1982 respectively authorising chairman of the District Panchyat Health Committee and the District Health Officer. Said resolutions are at Annexure O. It is pertinent to note here that petitioner was not the district Health Officer at Mehsana at the relevent time of passing the resolutions annexure O. It is submitted that the petitioner took charge of District Health Officer at mehsana on 9th August, 1982. However after taking charge of District Health Officer, it is stated that in pursuance to the resolutions, the petitioner prepared a note on 23/8/1982 of purchase and submitted the same to the District Development Officer for approval. The said note was approved by the District Development Officer as well as President of district Panchayat. Thereafter tenders were invited from the agencies. Tender notice is at annexure P. It is stated that the Purchase Committee was appointed consisting of chairman of Health Committee, District Health Officer, Additional District Health officer and Administrative Officer of Family Planning and in presence of these members, the tenders were opened. It is submitted that accepted tenders of the agencies were submitted to the District Development Officer and the President of District Panchayat for approval. On getting approval from them, the orders were placed accordingly for purchasing medicines and necessary instruments and accordingly medicines and instrument were purchased from the approved agencies as per tenders. The bills of purchase of materials received by the District Health Commitee were also sent to the district Accounts Officer and after getting approval from District Development Officer, payments of the bills were made to the traders. The bills of purchase of materials received by the District Health Commitee were also sent to the district Accounts Officer and after getting approval from District Development Officer, payments of the bills were made to the traders. It is submitted that District Health Officer has no independent funds, nor District Health Officer has any financial power in the matter. Whatever purchase made is by the Purchase Committee of the District Health centre. It is submitted that this purchase of medicines and instruments for Mehsana district Health Centre was subsequently approved by the District Panchayat and report in this regard was also sent to respondent-Government. However it is submitted that in the year 1985-86, the respondent found some irregularities in purchase of medicines and instruments in the year 1982-83 and therefore Departmental Inquiry was initiated against the petitioner. It is revealed from the record that by this time, the petitioner was already transferred from Mehsana to Baroda as Professor and Health Officer in Family Planning, district Health Centre. Further it reveals that simmultaneously, some Preliminary Inquiry was also held regarding alleged irregularities in purchasing medicines and instruments in the year 1978-79, while petitioner was holding the charge of District Health Officer, bharuch. A chargesheet was issued against the petitioner for the above irregularities alongwith the show cause notice Annexure B and D respectively. Chargesheet Annexure b is pertaining to alleged irregularities committed by the petitioner, while he was working as District Health Officer, Bharuch and the show cause notice Annexure D dt 9/3/1987 is pertaining to the allegation in respect of alleged irregularities committed by the petitioner, while he was working as District Health Officer at Mehsana. The petitioner submitted his reply to both- the chargesheet and to the show cause notice at Annexure C and E respectively. It is submitted that no inquiry was ordered to be initiated in the charges C and B though the charges were identical and explained in both show cause notice annexure B and D were also identical. However regular inquiry into the charge alleged in the chargesheet (annexure D) in respect of irregularities committed when he was working as District Health Officer, Mehsana was ordered to be held and accordingly Inquiry commissioner was appointed and the Inquiry Commissioner has submitted his report at annexure M. In the report, the Inquiry Commissioner held charges alleged in the chargesheet against the petitioner to be proved. The said report was submitted to the government and the Government has on relying upon the said report of the Inquiry officer, decided to remove the petitioner from service and accordingly after getting approval from GPSC the petitioner has been served with the order of removal from service with effect from 16th January, 1988 Annexure N in the compillation of the petition. Hence this petition. No affidavit in reply is Filed by the Deptt. ( 3 ) MR. Tripalhi, learned counsel for the petitioner submitted that the order of removal annexure N is bad in law as the charges levelled against the petitioner was held to be proved on no evidence and against the principles of natural justice. Mr. Tripathi submitted that the Inquiry Commissioner has failed to consider the reply submitted by the petitioner and there is non-application of mind in deciding the charges. Lastly Mr. Tripathi submitted that punishment of removal from the service of the petitioner is disproportionate and too harsh in comparison to the charges levelled against the petitioner. It is submitted that the respondent has not filed affidavit-in-reply denying contentions of the petitioner in the petition and therefore the contention taken by the petitioner in the petition should be accepted. Mr. Tripathi has relied upon the following authorities :- (1) M/s Bareilly Electricity Supply Co. Ltd. vs. The Workman and others, AIR 1972 Supreme Court Page 330. (2) Union of India and another vs. Tulsiram Patel, AIR 1985 Supreme Court page 1416. (3) H. P. Thakore vs. State of Gujarat and Ors. G. L. R. 20 Page 109. (4) Parma Nanda vs. State of Haryana and others, AIR 1989 SC 1185 . (5) State of Maharashtra and another vs. Madhukar Narayan Mardikar, AIR 1991 SC 207 . ( 4 ) MISS Doshit, learned AGP appearing on behalf of respondent that it is well settled law that it is not open for this court to look into report and findings of the Inquiry commissioner and to reappreciate the evidence on record. ( 5 ) HAVING regard to the facts and circumstances of the case, it is not possible for this court to agree with the above contention of Miss. Doshit While exercising extra ordinary jurisdiction under Art. 226 of the Constitution of India, the power is not limited to only removing illegalities and technalities. ( 5 ) HAVING regard to the facts and circumstances of the case, it is not possible for this court to agree with the above contention of Miss. Doshit While exercising extra ordinary jurisdiction under Art. 226 of the Constitution of India, the power is not limited to only removing illegalities and technalities. The High Court while exercising its discretionary jurisdiction under Art. 226 of the Constitution of India, finds that there has been miscarriage of justice, the court is competent to remove miscarriage of justice. ( 6 ) IN the case of Raghubir Sharon vs. State of Bihar, report in 1964 SCR P. 336, the supreme Court has observed as under :- that every High Court as the Highest Court exercising criminal jurisdiction in a State has inherent power to make any order for the purpose of securing the ends of justice. This power extends to expunction or ordering expunction of irrelevant passeges from a judgment of order or a Subordinate Court and would be exercised by it in appropriate cases for securing the ends of justice. Being an extraordinary power it will, however, not be pressed in aid except for remedying a flagrant abuse by a subordinate court of its power such as by passing comment upon a matter not relevant to the controversy before it and which is unwarranted or is likely to harm or prejudice another. The departmental Disciplinary proceeding is in the nature of quasi-judicial proceedings and that may be resulted into removal or dismisal of the delinquent from service amounting to economic death warrant Deprivation of bread or livelihood of the delinquent is a right of the delinquent, though by alleged due process of law is not final. It is always subject to review by the highest court of the territory, like power of confirming capital punishment of the convict, because it is an economic death sentence awarded to the delinquent for the charges proved against him by not judicial officer. The procedure laid down in the Gujarat Discipline and Appeals Rules read with the relevant provision of art. 311 of the Constitution of India is not mere formality, The Disciplinary Authority is required to follow in its true spirit and strictly in its technical sense but in order to give full security of justice to the delinquent that he will not be subjected to any injustice at the hands of Disciplinary Authority. 311 of the Constitution of India is not mere formality, The Disciplinary Authority is required to follow in its true spirit and strictly in its technical sense but in order to give full security of justice to the delinquent that he will not be subjected to any injustice at the hands of Disciplinary Authority. The Disciplinary proceeding is a quasi-judicial proceeding and Disciplinary Authority is required to act judiciously and not as a bureaucrate boss of the delinquent The delinquent should not be left on the sweet-will or mercy of the Inquiry Officer and the Disciplinary Authority should not have accepted the report of the inquiry officer as a gospel truth. Power of the High Court under Arts. 226 and 227 is not only to fill up the deep holes into impugned order but also to repair the cracks in the order which is brought under challenge by the delinquent. That does not mean microscopic search of cracks but cracks apparent on the surface of impugned order I itself carry the message of miscarriage of justice. In that event, the High Court cannot j deny to interfere with the finding arrived at by the Inquiry Officer under the pretext of not open to do so. If it is in the opinion of the Court that the Disciplinary Authority has failed to apply his mind, the finding of the Inquiry Officer and mechanically or with bureaucrate spirit acted upon the inquiry report, which may result into economic death of the delinquent, the High Court is competent to review the decision of extreme penalty of dismissal under Art. 226 of the Constitution of India, before it is executed against the delinquent. In the case of Shankar Das vs. Union of India and another reported in AIR 1985 Supreme Court 772, the Supreme Court observed as under :- it is to be lamented that despite these observations of the learned Magistrate the government chose to dismiss the appellant in a huff without applying its mind to the penalty which could appropriately be imposed upon him in so far as his service career was concerned. Clause (a) of the second proviso to Article 311 (2) to the Constitution confers on the Government the power to dismiss a person from service "on the ground of conduct which has led to his conviction on a criminal charge. Clause (a) of the second proviso to Article 311 (2) to the Constitution confers on the Government the power to dismiss a person from service "on the ground of conduct which has led to his conviction on a criminal charge. " But that power like every other power has to be exercised fairly, justly and reasonably. Surely, the Constitution does not contemplate that a Government servant who is convicted for parking his scooter in a no-parking area should be dismissed from service. He may perhaps not be entitled to be heard on the question of penalty since Cl. (a) of the second proviso to An. 311 (2) makes the provisions of that article inapplicable when a penalty is to be imposed on a Government servant on the ground of conduct which has led to his conviction on a criminal charge. But the right to impose a penalty carries with it the duty to act justly. Considering the facts of this case, there can be no two opinions that the penalty of dismissal from service imposed upon the appellant is whimsical. In the instant case, the court would be justified in assessing the charge and penalty imposed by the Disciplinary Authority for the following four charges levelled in chargesheet Annexure D against the petitioner :- (1) As against the prevailing rate contract the petitioner preferred to purchase from open market by inviting tenders and in the process he had paid Rs. 1,00,768-85 Paise more to the supplliers causing loss thereby to the public exchequer. (2) As against the Resolution of the Government of Gujarat in the Industries, mines and Power Department dated 18/6/1981 to purchase the Khadi and other materials from the Khadi and Gramodyog Stores as approved by the government and incorporated in G. R. Dated 18/6/1981, the petitioner preferred to purchase from open market by inviting fresh tenders resulting in excess payment of Rs. 82,880- at the cost of the public at large. (3) The petitioner in violation of the budgetary norms has spent Rs. 19,14,859/- as against Rs. 12. 00 Lacs and thereby abused his authority in the matter of financial administration. (4) In some case where the rate of one supplier was received sequel to the tender the price of such offer has not been compared with the price prevailing in the market. A comparison with the market price could have resulted in economy to the Government. 12. 00 Lacs and thereby abused his authority in the matter of financial administration. (4) In some case where the rate of one supplier was received sequel to the tender the price of such offer has not been compared with the price prevailing in the market. A comparison with the market price could have resulted in economy to the Government. The petitioner has been chargesheeted for the above four irregularities committed by him in purchasing medicines and instruments from open market by inviting tenders and thus it has been alleged that petitioner has remained negligent in his duty which has resulted into monatary loss to the Government. This act of the petitioner amounts to misconduct within the meaning of Sec. 3 of the Gujarat Disciplinary and Appeals Rules. The petitioner has submitted his explanation inter alia contending that the purchase in question was made by the Purchase Committee of the District Panchayat Committee and the petitioner-District Health Officer was not alone responsible for the said purchase. Perusal of the explanation given by the petitioner goes to show that petitioner has not committed any irregularity stated in charge (1) and therefore, it is unsustainable. It has been submitted by Mr. Tripathi that allegation regarding ignoring rate Rate Contract circular, no such circular is made available to the petitioner for comparison despite repeated demands made by the petitioner, nor it was allowed to even see at the time of recording the evidence by the Inquiry Officer. In support of this submission, Mr. Tripathi relied upon the view taken by the Supreme Court in the case of M/s. Bareilly Electricity company Limited vs. The Workman and others, reported in AIR 1972 SC 330 , wherein it has been held in para 14 as under :-THE application of principle of natural justice does not imply that what is not evidence can be acted upon that no materials can be relied upon to establish a contested fact which are not spoken to by persons who are competent to speak about them and are subjected to cross examination by the party against whom they are sought to be used. If a letter or other document is produced to establish some fact which is relevant to the enquiry the writer must be produced to establish some fact which is relevant to the enquiry the writer must be produced or his affidavit in respect thereof be filed and opportunity afforded to the opposite party who challenges this fact. This is both in accordance with principles of natural justice as also according to the procedure under Order III civil Procedure Code and the Evidence Act, both of which incorporate these general principles. ( 7 ) IN view of this, charge (1) is unsustainable as it is against the principles of natural justice. However, though the petitioner is not sole responsible for the purchase of medicines and instruments, he has taken much pain in explaining the justification of purchase for his Department. It has also been submitted that Purchase Committeed which is validly constituted, has purchased these medicines and instruments and therefore, whole committee is jointly responsible for this, despite that, disciplinary actions have been taken against the petitioner. It has also been submitted that the petitioner had also submitted his explanation to the chargesheet Annexure B dt. 8/8/1986 pertaining to the alleged irregularities committed while he was working as District Health Officer at bharuch and similar chargesheet was also filed against the petitioner but no action has been taken with regard to that Chargesheet. So far as other charges (2), (3), and (4) are concerned, the petitioner has given detailed explanation about superior quality of materials, they have purchased and in this regard, a reply was also submitted by the petitioner and it seems that Inquiry Commissioner has failed to consider the same and it is a non-application of mind in appreciating his evidence. This court is very conscious regarding its limitation in reappreciating the evidence adduced on record. Perusal of explanation given by the petitioner and also the inquiry report of the Inquiry Officer goes to show that either the Inquiry Commissioner has failed to apply his mind in not accepting the explanation given by the petitioner with regard to each and every charges. The Inquiry commissioner has merely acted as bureaucrate and in high handed manner. The Inquiry commissioner has not taken any strain and pain in dealing with the explanation. The Inquiry commissioner has merely acted as bureaucrate and in high handed manner. The Inquiry commissioner has not taken any strain and pain in dealing with the explanation. If it is found that there is non- application of mind in giving finding to the charges and apparently it has resulted in miscarriage of justice to the delinquent, the court is duty bound to remove that miscarriage of justice and to do justice by saying that the Inquiry commissioner is a quasi-judicial authority and therefore he is required to consider the whole explanation of the delinquent given in the matter. In my opinion, the inquiry report holding petitioner guilty for the charges levelled against the petitioner is base on no evidence, and finding are perverse and therefore, it is not sustainable in the eye of law. Not only that but the petitioner himself is not responsible for the alleged irregularities. Whatever decision taken by the District Health Committee with regard to Purchase of medicines and instruments is taken by the Committee itself and subsequently the order is placed by the District Panchayat Purchases Committee. The petitioner is not the authority who is vested with the financial powers. On that ground also, the inquiry and disciplinary proceedings are initiated under wrong notion and the decision is taken without application of mind. Further, incidently it may be inferred that punishment of removal of the petitioner from service who is a qualified Doctor and who has served with the department since more than 20 years, is too harsh. In the case of H. P. Thakore vs. State of Gujarat and ors. , reported in 20 GLR at page 109, it has been held as under :"before imposing the economic death penalty of dismissal or removal from service a disciplinary authority is bound to apply his mind to the three vital considerations, namely (1) as regards the nature and magnitude of the established charge, (2) as regards the desirability or otherwise of retaining the government servant in service in the context of the charges found provided him, and (3) as to what a penalty of dismissal or removal would prove adequate. Be it administration of criminal law or the exercise of disciplinary jurisdiction in departmental proceedings, punishment is not and cannot be the end in itself. Punishment for the sake of punishment cannot be the motto. Be it administration of criminal law or the exercise of disciplinary jurisdiction in departmental proceedings, punishment is not and cannot be the end in itself. Punishment for the sake of punishment cannot be the motto. "the petitioner is thrown away by a stock of pen for no fault of his. In courts opinion, the petitioner has not committed any misconduct which would not attact involvement of moral turpitude. The Disciplinary Authority has failed to consider the view expressed by this court in the above H. P. Thakores case (supra), while imposing punishment under sec. 9 of the Gujarat Disciplinary and Appeals Rules, 1972. In the result, the petition is allowed. Order of removal Annexure N dt. l6th January 1988 is quashed and set aside. Respondents are directed to reinstate the petitioner in service with full back- wages and all other consequential benefits including seniority and promotion. The respondent is directed to reinstate the petitioner in service within forth-night from the date of receipt of writ of this court and all the arrears be paid to the petitioner within eight weeks from the date of receipt of the writ of this court. ( 8 ) AT this stage, Miss. Doshit, learned AGP submitted that court cannot straight way pass the order of payment of arrears of salary without veryfying from the petitioner as the petitioner is a qualified Doctor; he might have not remained idle pending this petition and he must have some other source of income by way of private practice. ( 9 ) MR. Tripathi, learned advocate for the petitioner had emphathetically submitted that petitioner was not engaged in any employment, nor he was engaged in any private practice since his he was engaged in any private practice since I is removal from service. Considering the facts and circumstances of the case, statement made by Mr. Tripathi, learned counsel for the petitioner at the bar and considering the agony suffered and injustice caused to the petitioner, rendering him jobless for pretty long time for no fault of his and also mental tortured suffered, this is a fit case where the petitioner should be awarded costs of this petition. The respondents are therefore directed to pay costs of Rs. 1,500/- (Rs. one thousand five hundred only) to the petitioner towards costs of this petition. Rule is made absolute accordingly. .