CHAKRADHARI SHARAN SINGH, J.:–This writ application under Article 226 of the Constitution of India has been preferred against the order dated 01.08.2001 (Annexure-3) passed by the Commandant, Bihar Military Police-6, Muzaffarpur, whereby and whereunder, the writ petitioner who was a constable in Bihar Military Police, has been dismissed from service on the ground of misconduct, with the further stipulation that the petitioner will not be entitled for any emoluments other than subsistence allowance for the period during which he remained under suspension. 2. The matter relates to the occurrence dated 18.12.2000 when the petitioner was on law and order duty at Pahsol Bazar under Katra Police Station of Muzaffarpur District. At the relevant point of time i.e., from 16:00 hours to 18:00 hours, the petitioner was on Sentry duty when a group of extremists attacked the Police Picket at about 16:30 hours and robbed of the sophisticated weapon and ammunitions. 3. For the said occurrence, a departmental proceeding was initiated with the issuance of a charge-sheet against the petitioner bearing Memo No. 280 dated 22.01.2001 (Annexure-1). It was alleged in the charge-sheet that in spite of being in possession of automatic weapon like S.L.R., the petitioner while on Sentry duty did not act with promptitude. Further allegation against him is that had he been cautious and alert, the extremists would not have caused the attack on the police picket. It was further alleged in the charge sheet that the petitioner engaged himself in gossip with the local people while on duty because of which the extremists attacked the picket and snatched the weapon from them. 4. It was further alleged in the charge sheet that the petitioner engaged himself in gossip with the local people while on duty because of which the extremists attacked the picket and snatched the weapon from them. 4. The disciplinary enquiry was entrusted to the Deputy Superintendent of Police, Bihar Military Police-13, Darbhanga, who after completion of the enquiry submitted his report with the following findings: eurC; lapkyu ds dze esa miyCèk lk{; ,oa izn'khZ ds voyksdu ls vkjksfir }kjk tks ?kVuk ds le; larjh fM;qVh ij Fks] mxzokfn;ksa ds geyk ,oa vpkud larjh dks dCtk esa ys fy;k x;k] fiQj Hkh vkjksfir us ,d jkmUM iQk;j fd;k ysfdu xksyh mij dh vksj pyh x;hA rst gfFk;kj ls vkjksfir ds xnZu ij ^^okj** fd;s tkus ij vkjksfir dks NksM+ nsus ds fy, foo'k dj fn;k x;k vkSj mlds ckn vkjksfir tku cpkus ds fy, 29 pØ xksyh ds lkFk ?kk;y fLFkfr esa vyx pys x;sA mijksDr lk{; tkWp inkfèkdkjh ds c;ku ls Li"V gSA lkFk gh lkFk niQk Hkh ugha ckaVk x;k Fkk ftl dkj.k ls Hkh vkjksfir dks lg;ksx ugha fey ldkA miyCèk lk{; ls ;g Hkh Li"V gS fd fidsV ij mifLFkr 'ks"k inkfèkdkjh ,oa toku rS;kj ugha FksA miyCèk lk{; ls ;g ifjyf{kr gksrk gS fd vkjksfir us mxzokfn;ksa ds vpkud geys ij vius drZO; fuokZg dk iz;kl vo'; fd;k vkSj blh Øe esa muds }kjk ,d pØ xksyh Hkh pyk;h x;h vkSj ?kk;y gksus ds dkj.k vkxs dk;ZokbZ esa liQy ugha gks lds fiQj Hkh vius ikl ds 29 pØ xksyh dks cpkus esa Hkh liQy gq,A ijUrq miyCèk lk{; ls ;g Hkh ifjyf{kr gS fd vkjksfir iwjh rjg geyk ds iwoZ lrdZ ugha Fks vkSj ;g vlkoèkkuh mudh ykijokgh dks n'kkZrk gS vkSj blds fy, eSa mUgsa vkjksfir nks"kh ikrk gw¡A** 5. The said enquiry report was submitted on 14.05.2001 (Annexure-2). 6. Thereafter vide letter dated 25.06.2001, (Annexure-A to counter affidavit of Respondent nos. 3 and 4), the disciplinary authority i.e., the Commandant, Bihar Military Police-6, Muzaffarpur, enclosing a copy of the report of the Enquiry Officer, asked the petitioner to submit his reply to the second show-cause as to why he should not be dismissed from service. The petitioner in his response submitted his reply contending, inter alia, that there was no material worth evidence available on record to suggest that the petitioner engaged himself in gossip with the local people while on duty. The petitioner in his response submitted his reply contending, inter alia, that there was no material worth evidence available on record to suggest that the petitioner engaged himself in gossip with the local people while on duty. Referring to the report of the Enquiry Officer, the petitioner contended that in fact he struggled when the occurrence was taking place as evident from the enquiry report itself. 7. Thereafter, the order dated 01.08.2001 (Annexure-3) came to be passed by the Commandant, Bihar Military Police-6, Muzaffarpur, dismissing the petitioner from service. The disciplinary authority passed the impugned order of dismissal from service placing reliance on the report of the Enquiry Officer and the supervision report made in the criminal case instituted for the said occurrence. The disciplinary authority recorded that the petitioner was not alert and was negligent towards his duty. 8. The appeal against the order of the disciplinary authority was preferred before the Deputy Inspector General of Police, Bihar Military Police, Muzaffarpur, which was dismissed vide Memo No. 1274 dated 27.09.2001 (Annexure-5). A memorial preferred against the orders of the disciplinary authority and the appellate authority was also dismissed by the Inspector General of Military Police, Bihar, vide his letter dated 06.07.2002 (Annexure-6). It is in this background that the orders of the disciplinary authority, Appellate Authority and Director General-cum-Inspector General of Police dated 01.08.2001, 27.09.2001 and 06.07.2002 respectively are under challenge in the present writ proceeding. 9. Challenging the impugned action of the respondents, learned counsel for the petitioner submits that the other guards deputed with the petitioner at the place of occurrence were very important witnesses but they were not examined to substantiate the charge made against the petitioner. He submits that non-examination of these persons as witness vitiates the action under challenge. He further contends that the witnesses examined for the prosecution are hear-say witnesses and on the basis of their evidence, petitioner’s guilt cannot be sustained. It is further submitted that the nature of allegation against the petitioner is such that it could have been established, even on the standards of preponderance of probabilities, by examining such witnesses who were present there at the time of occurrence. Learned counsel has emphatically submitted that the report of the Enquiry Officer is, in fact, in favour of the petitioner. Learned counsel has emphatically submitted that the report of the Enquiry Officer is, in fact, in favour of the petitioner. The report in unequivocal terms, on the basis of the enquiry conducted, suggests that the petitioner in fact attempted to discharge his duties in course of which he opened fire also but as he was attacked by sharp-edged weapon, he was compelled to leave the place in order to save his life. He further submits that the finding of the enquiry officer, even to the extent that the petitioner was not fully vigilant is based on no evidence and such finding is, therefore, perverse. 10. Learned counsel for the petitioner submits that in any case, the conduct of the petitioner does not constitute the misconduct on the basis of the findings of the Enquiry Officer and, therefore, imposition of punishment of dismissal from service in the facts and circumstances of the case is not justified. 11. So far as the procedural fairness in the disciplinary enquiry is concerned, I do not find any infirmity on the basis of the pleadings in the writ petition. After framing of charge and service thereof on the petitioner, the petitioner had an opportunity to file his written statement of defence. In course of enquiry, the prosecution witnesses were examined in his presence and were cross-examined also. After submission of the report of the Enquiry Officer, the petitioner was given opportunity to file a second show-cause notice on proposed punishment of dismissal from service. 12. The issue however which needs to be considered in this case is as to whether the act or inaction on the part of the writ petitioner amounts to misconduct so as to attract the most harsh punishment of dismissal from service. This aspect is required to be considered, taking into account the contents of charge framed against the petitioner and the finding of the Enquiry Officer thereon. As per the charge as contained in memo no. 280 dated 02.01.2000 (Annexure-1), the petitioner remained a „mute spectator? when the group of extremists attacked the police picket. From the charge-sheet it appears that the allegation against the petitioner is that he should have been alert and vigilant and had he been alert and vigilant, the extremists would not have attacked the guard. 280 dated 02.01.2000 (Annexure-1), the petitioner remained a „mute spectator? when the group of extremists attacked the police picket. From the charge-sheet it appears that the allegation against the petitioner is that he should have been alert and vigilant and had he been alert and vigilant, the extremists would not have attacked the guard. Further charge against the petitioner is that he engaged himself in gossip with the local people because of which the extremists could easily attack and snatch the weapon. 13. The charge as framed against the petitioner cannot be said to have been proved on the basis of the report of the Enquiry Officer. It is not the report of the Enquiry Officer that the petitioner remained a ‘mute spectator’ at the time of such occurrence; on the other hand the finding of the Enquiry Officer is to the following effect:– “It is evident from the evidence available on record that the delinquent definitely attempted to discharge his duties after sudden attack by the extremists and in course of that he even opened one round of fire and could not succeed in further action as he was injured, though he was able to secure safety of 29 rounds of ammunition. But on the basis of evidence available on record, it is also evident that the delinquent was not fully vigilant before the attack and this inattentiveness shows his carelessness and I hold him guilty for the same” (Translation of last two sentences of the findings recorded by the Enquiry Officer quoted in Para-4 above). 14. On reading of the findings of the Enquiry Officer, I find that the act of the petitioner cannot be said to constitute misconduct so as to attract punishment of dismissal from service. 15. The Supreme Court in case of State of Punjab Vs. Ex. Constable Ram Singh (1992) 4 SCC 54 ; placing reliance on the earlier judgment reported in (1979) 2 SCC 286 , Union of India Vs. J. Ahmed; defined the term misconduct in following terms:– “A survey of these rules would show that disciplinary proceeding can be held against a member of the service for any act or omission which renders him liable to a penalty and such penalty can be imposed for good and sufficient reasons. All India Services (Conduct) Rules, 1954, prescribe a code of conduct for members of service. All India Services (Conduct) Rules, 1954, prescribe a code of conduct for members of service. Discipline and Appeal Rules provide for disciplinary action and imposition of penalties. Sub-rule (2) of Rule 16 of the Retirement Rules contemplates a situation where a member of service against whom disciplinary proceeding is pending is likely to retire and the proceedings may be thwarted and provides for his retention in service beyond the date of his retirement till the completion of the inquiry, provided the delinquent officer is under suspension on a charge of misconduct.” 16. In case of Inspector Prem Chand Vs. Government of NCT of Delhi and Others, the Supreme Court had to again deal with the term ‘misconduct’ with reference to disciplinary action and laid down as follows” “It is not in dispute that a disciplinary proceeding was initiated against the appellant in terms of the provisions of the Delhi Police (Punishment and Appeal) Rules, 1980. It was, therefore, necessary for the disciplinary authority to arrive at a finding of fact that the appellant was guilty of an unlawful behaviour in relation to discharge of his duties in service, which was wilful in character. No such finding was arrived at. An error of judgment, as noticed hereinbefore, per se is not a misconduct. A negligence simpliciter also would not be a misconduct. In Union of India Vs. J. Ahmed whereupon Mr. Sharan himself has placed reliance, this Court held so stating: (SCC pp. 292-93, para 11) “11. Code of conduct as set out in the Conduct Rules clearly indicates the conduct expected of a member of the service. It would follow that conduct which is blameworthy for the government servant in the context of Conduct Rules would be misconduct. If a servant conducts himself in a way inconsistent with due and faithful discharge of his duty in service, it is misconduct (see Pierce Vs. foster). A disregard of an essential condition of the contract of service may constitute misconduct [see laws Vs. London Chronicle (Indicator Newspapers)]. This view was adopted in Shardaprasad Onkarprasad Tiwari Vs. Divisional Supdt,. Central Rly., Nagpur Division, Nagpur and Satubha K. Vaghela Vs. Moosa Raza. The High Court has noted the definition of misconduct in Stroud’s Judicial Dictionary which runs as under: ‘Misconduct means, misconduct arising from ill motive; acts of negligence, errors of judgment, or innocent mistake, do not constitute such misconduct’.” 17. Divisional Supdt,. Central Rly., Nagpur Division, Nagpur and Satubha K. Vaghela Vs. Moosa Raza. The High Court has noted the definition of misconduct in Stroud’s Judicial Dictionary which runs as under: ‘Misconduct means, misconduct arising from ill motive; acts of negligence, errors of judgment, or innocent mistake, do not constitute such misconduct’.” 17. In view of the above, an error of Judgment, per se is not a misconduct and a negligence simpliciter also would not constitute a misconduct. Similarly, an innocent mistake also does not constitute misconduct. In the present case, as has been noted above, as per the finding of the enquiry officer himself, the petitioner attempted to discharge his duties and could not take further action as he got injured. There is vague reference to carelessness / negligence on the part of the petitioner. There is no finding of any dereliction of duty on his part. 18. In the facts and circumstances above mentioned and in the light of the findings of the Enquiry Officer, I find the punishment of dismissal to be shockingly disproportionate to the act / inaction proved against the petitioner by the Enquiry Officer. The order of dismissal as contained in Annexure-3 dated 01.08.2001 is, accordingly, set aside. The appellate order dated 27.09.2001 and the revisional order dated 06.07.2002 are also set aside. The matter is remanded back to the disciplinary authority to consider the petitioner’s case on the quantum of punishment. 19. The disciplinary authority, namely, Commandant, Bihar Military Police-6, Muzaffarpur, must take a final decision in the matter within a period of three months from the date of receipt / production of a copy of this order. 20. This application is, accordingly, allowed to the extent above. 21. No order as to costs.