JUDGMENT Hon’ble V.K. Shukla, J.—Yogendra Ram Chaurasia, petitioner has approached this Court with request to quash the order dated 28.1.2011 passed by the Commanding Officer, 100 U.R Batttalion N.C.C., Varanasi proceeding to dispense with the services of the petitioner as well as order dated 26.4.2011 passed on behalf of the Additional Director General, N.C. Directorate, U.P. Lucknow dismissing the appeal preferred on behalf of the petitioner. 2. Petitioner was appointed as Lascar Class IV post with -the respondents authority on 30.4.1994. Petitioner was posted at diffeferrt Batallion and lastly was posted on 11.6.2008 at 100 U.P. Battalion, Varanasi. While petitioner was performing duty, he has been placed under suspension on 19.6.2010 followed by departmental Charge-sheet on the same date. Charges levelled against the petitioner was to the effect that petitioner had submitted forged claim for reimbursement of medical bill expense on account of medical treatment of the wife of the petitioner for amounts of Rs. 15,928, Rs. 16,695 and Rs. 3,580 respectively. The charge-sheet recorded fact to the effect that the cash memo issued by M/s. Calson Pharmaceutical, Khajuri Road, Pandeypur, Varanasi was forged as no shop in the said name presently existed nor did there exist any permission for running of such shop. It has further recorded that a document for an amount of Rs. 3,580 issued by M/s. Shivam Medical Store, Akath Tiraha, Ghazlpur Road, Varanasi was neither a cash memo nor a bill and as such no payment was liable to be made against the same. Further during the course of preliminary enquiry, petitioner has misbehaved with superior officials. In respect to the aforementioned Charge-sheet dated 19.6.2010, the petitioner submitted his detailed reply on 23.6.2010. Petitioner was subjected to departmental inquiry and thereafter, inquiry officer submitted his report on 18.9.2010 holding the petitioner guilty of the charges levelled against him.Thereafter, copy of the inquiry report was supplied to the petitioner alongwith show-cause notice. Thereafter, petitioner submitted his reply on 11.1.2011 and then order was passed on 28.1.2011 by the Commanding Officer, 100 U.P. Battalion, N.C.C. Varanasi dispensing with the services of the petitioner. Thereafter, petitioner preferred appeal before the Additional Director General, N.C. Directorate, U.P Lucknow and same has also been dismissed. At this juncture petitioner is before this Court. Thereafter, petitioner submitted his reply on 11.1.2011 and then order was passed on 28.1.2011 by the Commanding Officer, 100 U.P. Battalion, N.C.C. Varanasi dispensing with the services of the petitioner. Thereafter, petitioner preferred appeal before the Additional Director General, N.C. Directorate, U.P Lucknow and same has also been dismissed. At this juncture petitioner is before this Court. Counter-affidavit has been filed disputing the averment mentioned in the writ petition and rejoinder-affidavit has been filed disputing the averment mentioned in the counter-affidavit After pleadings mentioned above have been exchanged, thereafter, present writ petition has been taken up for final hearing/disposal with the consent of the parties. 3. Sri. R.S. Ram, learned counsel for the petitioner contended with Vehemence that in the present case charges levelled against the petitioner could not have been brought home by the authority concerned on the basis of evidence led and on mere surmises and conjecture petitioner has been awarded punishment of dismissal from the service which is not at all commensurate to the charges mentioned and in view of this orders passed are liable to be quashed. 4. Countering the said submission, learned Additional Chief Standing Counsel Sri Ravi Shankar Prasad on the other hand contended that from the evidence available on record, charges have been brought home and in exercise of authority of judicial review, this Court cannot at all appreciate the evidence in question, as such writ petition deserves to be dismissed. 5. After respective arguments have been advanced, factual situation which has so emerged in the present case is that petitioner had been charge-sheeted on two counts, (i) petitioner had submitted forged medical bill for an amount of Rs. 15,928, Rs. 16,695 issued by M/s. Calson Pharmaceutical, Khajuri Road, Pandeypur, Varanasi and bill for an amount of Rs. 3580 issued by Shivam Medical Store, Akath Tirana, Ghazipur Road, Varanasi, whereas the shop M/s. Calson were never existed and bill issued by Shivam Medical Store same was neither cash memo nor bill, (ii) the petitioner during course of preliminary inquiry he has misbehaved with superior officer. Enquiry Officer submitted his report as follows : Charge No. 1 : This charge basically pertains to preferring of false and fraudulent medical claim by Mr. Yogendra Ram Chaurasia suspended Lascar of 100 U.P. Bn. NCC, Varanasi in respect of treatment of his wife Smt. Malti Devi. Enquiry Officer submitted his report as follows : Charge No. 1 : This charge basically pertains to preferring of false and fraudulent medical claim by Mr. Yogendra Ram Chaurasia suspended Lascar of 100 U.P. Bn. NCC, Varanasi in respect of treatment of his wife Smt. Malti Devi. (i) The under stated evidences prove/establish non-existence of medical shop by the name of Calson Pharmaceuticals located at Khajuri Road, Pandeypur, Varanasi. (aa) Letter No. 2009-10/5144 dated 13.11.2009 signed by C.M.O. Varanasi enclosed as Appx-C (ab) In letter No. Yogendra/100/NCC dt. 15.9.2010 the CMO Varanasi has endorsed his report on the same letter at the bottom right comer alongwith his stamp and signature dt. 9.12.2010 enclosed as appx ‘D’ (ac) Report submitted by the Police Chauki, Orderly Bazar, Varanasi enclosed as Appx ‘E’ (ad) Certificate Parshad (Ward Councillor) Varanasi dated 15.12.2009 enclosed as Appex “F” (ae) Para 3 (three) of statement of J.C. 529998 Sub Bhubneshwar Prasad of 100 UP Bn. NCC, Varanasi statement enclosed. (af) Answer to question No. 2 of Sri Yogendra Ram Chaurasia in the statement of No. 221 Wg. Cdr. V.P. Agrawal, CO 7 Air Sqn NCC, Varanasi statement enclosed. (ii) The total of the Estimates amount to Rs. 3584 of Shivam Medical Store Akhta Tiraha, Pahariya, Varanasi have been enclosed alongwith the medical claim in respect of wife of Shri Yogendra Ram Chaurasia. these are neither proper medical bills nor cash memos. The same are enclosed as evidence as Appx ‘G’. Hence the charge is proved beyond doubt. (iii) the factual reality or correctness of the fact that the medical bills/cash memos with respect to the hospitalization of wife of Shri Yogendra Ram Chaurasia pertains to her pre or post hospitalization, could not be established. Letter of Dr. S.P. Yadav in this regard is enclosed as appx “H”. Therefore, this sub-charge is not proved. Charge No. 2. This charge basically pertans to indiscipline, mis-behaviour and misconduct of Shri Yogendra Ram Chaurasia suspended Lascar of 100 of U.P. Bn. NCC, Varanasi during Court of Inquiry conducted by No. 22154 Wg. Cdr. V.P. Agrawal, CO 7 Air Sqn NCC, Varanasi to establish prima facie case against him prior to the commencement of this departmental inquiry. (i) Evaluation of statement of No. 221543 Wg. Cdr. V.P. Agrawal, CO 7 UP Air Sqn NCC, Varanasi (para 3 in particular) statement enclosed. NCC, Varanasi during Court of Inquiry conducted by No. 22154 Wg. Cdr. V.P. Agrawal, CO 7 Air Sqn NCC, Varanasi to establish prima facie case against him prior to the commencement of this departmental inquiry. (i) Evaluation of statement of No. 221543 Wg. Cdr. V.P. Agrawal, CO 7 UP Air Sqn NCC, Varanasi (para 3 in particular) statement enclosed. (ii) Evaluation of statement JC529998 Sub Bhubneshwar Prasad of 100 UP Bn. NCC, Varanasi (para 4 in particular) statement enclosed. (iii) Evaluation of statement JC-1560044 K NB subn V.S. Ram of 97 UP Bn. NCC, Varanasi (in reply to question No. 1 by Presenting Officer in his own statement) statement enclosed. (iv) Own statement of Sri Yogendra Ram Chaurasia during the Court of Inquiry conducted by No. 22154 Wg. Cdr. V.P. Agrawal, CO 7 Air Sqn N.C.C., Varanasi, Enclosed as Appx ‘L” (v) Hence the said charge is proved/established beyond doubt. 6. Before this Court much stress has been laid on the fact that medical bill submitted for reimbursement issued by M/s. Calson Pharmaceutical, Khajuri Road, Pandeypur, Varanasi was that of non-existent shop and receipt given by Shivam Medical Store, Akath Tiraha, Ghazipur Road, Varanasi, was neither a cash memo or bill and said fact in question is duly substantiated by the finding returned In the inquiry. 7. Record in question reflects that in order to find out as to whether M/s. Calson Pharmaceutical, Khajuri Road, Pandeypur, Varanasi and Shivam Medical Store, Akath Tirana, Ghazipur Road, Varanasi existed or not. On 15.9.2010 letter has been written by Lt Col. S.K. Rai to Chief Medical Officer, Varanasi and therein precise query was made, which is as follows: Ref. M/s. Calson Pharmaceuticals 88/474 Khajuri Road, Pandeypur, Varanasi. Ref to you letter No. Au. Ni/License/2009-10/5144 dt. 13 Nov 2009. Photo copy enclosed. Vide your above quoted letter it has been mentioned that Calson Pharmaceutical was issued with a licence with effect from 23 Jul, 1996. It is very humbly requested that me following aspects be clarified at the earlier so that the on going departmental inquiry against Shri Yogendra Ram Chaurasis (Suspended Lascar) of 100 U.P. BA. NCC., Varanasi be completed at the earliest. (a) The license issued to Calson Pharmaceutical with effect from 25 Jul, 1998 was valid till which date? (b) Whether crnot the licence of Calson Pharmaceuticals has been renewed ? If yes. NCC., Varanasi be completed at the earliest. (a) The license issued to Calson Pharmaceutical with effect from 25 Jul, 1998 was valid till which date? (b) Whether crnot the licence of Calson Pharmaceuticals has been renewed ? If yes. then on which date the said license has been renewed and up till when? © Whether Calson Pharmaceuticals existed on ground on 28Feb, 2009 or not? On the said front Chief Medical Officer at no point of time submitted any report as to whether on 28.2.2009 said shop in question existed or not and to the contrary proceeded to make note on 9.12.2010 that validity of firm is for five years, and in case renewal is not done in time, then said firm cannot be accepted to be valid. Precise query which has been put up by Lt. Col. S.K. Rai on 15.9.2010, has not at all been answered by the Chief Medical Officer, Varanasi. Coupled with this, this much Is also reflected in the present case that in order to verify this fact, as to whether M/s. Calson Pharmaceutical, Khajuri Road, Pandeypur, Varanasi existed or not on the relevant date, one Subedar Bhubneshwar Kutiyal had been asked by the Presiding Officer of the Court of inquiry, to find out as to whether there existed aforementioned shop or not and he made spot inspection and made statement of fact that he could not find out the aforesaid shop, as was mentioned in the aforesaid receipt and one of the shop keeper told him that said shop has been closed since moje_than4O-raonths and said shop in question will not be open now as licence in question has been cancelled.This particular piece of evidence dearly reflected that earlier there existed a shop in the name of M/s. Calson Pharmaceutical, Khajuri Road, Pandeypur, Varanasi, but the relevant issue was as to whether on the relevant date when the petitioner claims to have purchased the medicines/aforementioned shop in question existed or not. 8. 8. Inquiry Officer at the relevant point of time when he has proceeded to conclude that the charge In question is proved and established, for the said purpose has placed reliance on letter sent to the Chief Medical Officer on 13.11.2009, note made by the Chief Medical Officer dated 15.9.2010, report submitted by the police Chauki, Ordely Bazar, Varanasi, certificate of Parshad (Ward Councelor) Varanasi dated 15.12.2009, statement of Sub Bhubaneshwar Prasad and Answer to question No. 2 of Sri Yogendra Ram Chaurasia and the statement of Wg. Cdr V.P. Agarwal. This much has also been accepted that in-spite of summons and letter sent to Sri Jagdish Tripathi Prasad (Ward Councelor), Municipal Corporation, Varanasi, Dr. S.P. Yadav, Shiv Surgical Nursing Home, Aktha, Pahariya, Varanasi, Chief Medial bfficer, Varanasi and Station House Officer, Police Chauki, Orderly Bazar, Varanasi no one ever appeared to substantiate the factum of report given by them as to whether on the relevant date when receipt has been issued, the shop in question was there on the spot or not This is not in dispute that there has been a shop in the name of M/s. Calson Pharmaceutical, Khajuri Road, Pandeypur, Varanasi, as is evident from the record, but at the relevant point of time when respective receipt has been issued as to whether shop in question existed or not and the said shop was being run without valid license is essentially question of fact. Inquiry has been conducted and therein finding has been returned that said bills are forged and decision has been taken. The core issue as to whether M/s. Calson Pharmaceutical, Khajuri Road, Pandeypur, Varanasi existed or not on the relevant date has not at all been answered and opinion has been formed that said charges have been proved. 9. Authorities have recorded conclusion of charge No. 1 having been proved, on the basis of letter of Chief Medical Officer dated 13.11.2009; note made by Chief Medical Officer dated 9.12.2010; report submitted by police, report submitted by Counsellor; statement of Bhuneshwer Prasad. The conclusion drawn cannot be subscribed, for the simple reason, that report of Chief Medical Officer only substantiated the fact, that licence period had come to an end and as such continuance of shop, cannot be accepted as valid. Report of Counsellor and local police only certified that currently there did not exist any shop. The conclusion drawn cannot be subscribed, for the simple reason, that report of Chief Medical Officer only substantiated the fact, that licence period had come to an end and as such continuance of shop, cannot be accepted as valid. Report of Counsellor and local police only certified that currently there did not exist any shop. All these persons, inspite of being asked to appear as witness; never appeared as witness to substantiate the plea, as to on what basis said opinion has been formed by them, and further if they would have appeared they could have been confronted with the fact, as to whether at the relevant time, said shop in question existed or not Reliance on such reports is as such of no avail. 10. Statement of Subedar Bhubaneshwar Prasad did mention that there existed shop, but same has been closed more than 10 months back even Subedar Bhubaneshwar Prasad did not mention of the specific date of closure of the shop. Once there was no positive evidence available on record as to at what point of time said shop has been closed and in view of the fact when said amount has not been paid to the petitioner and said medicines have been certified having been used by patient then to say that there is misconduct on the part of the petitioner cannot be accepted in the backdrop of present case specially when no finding has been returned qua the specific date of closure of shop. The said charge in question has not at all been brought home. 11. Accordingly as far as charge No. 1 is concerned, same is not at all substantiated. As far as Charge No. 2 is concerned, same basically pertains to indiscipline committed by the petitioner during the course of enquiry. This much is clearly reflected from the inquiry report, which has been so submitted based on oral evidence and documentary evidence as available on record that no element of respect has been shown by the petitioner at the point when he has been dealing with the superior officer, and with his colleagues. This fact is fully fortified from the statement made by Lt. Commander V.P. Agarwal, Subedar Bhuneshwar Prasad, Subedar V.S. Ram and his own statement and from the questions put by petitioner to Sri. Wg. Cdr. V.P. Agrawal. This fact is fully fortified from the statement made by Lt. Commander V.P. Agarwal, Subedar Bhuneshwar Prasad, Subedar V.S. Ram and his own statement and from the questions put by petitioner to Sri. Wg. Cdr. V.P. Agrawal. Petitioner has not only misbehaved but refused to sign and even left the enquiry in between without any permission. Behaviour of the petitioner has not at all been proper in the proceedings in question and as such charge No. 2 stands proved. In view of this, Charge No. 1 in the opinion of the Court is not at all substantiated and Charge No. 2 is substantiated by documentary evidence, as well as oral evidence. 12. Once Charge No. 1 has not been substantiated and charge No. 2 is being affirmed by this Court also, then this Court is of the firm opinion, that punishment should be awarded commensurate to his misconduct in question, as the sentence has to suit the offence and offender. Apex Court in the case of Ranjit Thakur v. Union of India, AIR 1957 SC 2396, has taken the view that sentence should not be disproportionate to the offence, and amount in itself to conclusive evidence of bias. Apex Court in the case of Ram Kishan v. UOI, AIR 1996 SC 255 , wherein Apex Court, when abusive language was alleged to be used against superior, proceeded to mention that it must be understood in the environment in which that person was situated and the circumstances surrounding the event that led to use of abusive language. No straight jacket formula can be evolved, and punishment from dismissal from service has been held to be harsh. In the present case, charge No. 1 has failed and for Charge No. 2, this Court is of the opinion that in the facts of case imposting ultimate punishment of/dismissal from service would be too harsh, but being member of a force, he should learn discipline and ought to have behaved in a disciplined manner, as such the orders passed namely order dated 28.1.2011 and 26.4.2011 are hereby quashed and set aside. Respondents are directed to pass fresh order, on the sentence front, keeping in view the overall fact and situation of the case. Said exercise be undertaken within 2 months from the date of supply of certified copy of order. With these observations, writ petition is allowed.