JUDGMENT : Pramath Patnaik, J. W.P. (S) No. 6211 of 2010 In the instant writ application, the petitioner has inter alia prayed for quashing the order as communicated vide letter dated 06.10.2010 whereby the request for setting aside the order of break in service passed vide order dated 07.08.2002 was rejected. 2. The facts, in brief, is that the while the petitioner was posted at Divisional Jail, Madhubani, vide letter dated 07.07.2001, he was entrusted to adduce evidence in the Court of S.D.J.M., Dhanbad, and accordingly, he proceeded to Dhanbad. However, on return, he fell ill, therefore, he submitted application dated 28.07.2001 for grant of earned leave for four months and later on again on 19.11.2001 submitted application for grant of leave for further four months for purpose of making pairvi for his own case bearing P.S. Case No. 14 of 2000 in Buxar Town. But the Inspector General of Prison, Bihar without giving any show cause notice or being heard, issued office order dated 07.08.2002 whereby period from 08.07.2001 to 04.03.2002 (total 240 days) were sanctioned as leave without pay treating the said period as break in service. Being aggrieved the petitioner submitted representation dated 22.12.2009 for setting aside order dated 07.08.2002, which was rejected vide order dated 06.10.2010. 3. Learned counsel for the petitioner submitted with vehemence that respondent no. 4, after thorough enquiry came to the conclusion that the order dated 07.08.2002 passed against the petitioner awarding him punishment of break in service without asking any explanation and initiating any departmental proceeding is not justified and accordingly vide order dated 26.06.2010 recommended the Home Department, Jharkhand repelling the order of break in service of the petitioner passed by the Inspector General of Prison dated 07.08.2002. Learned counsel for the petitioner further submitted it is not the case where the delinquent proceeded on leave without any intimation and after discharging his duties to attend the Court at Dhanbad he proceeded on leave after due intimation due to his illness. But without considering the order passed by respondent no. 4 and the fact that major punishment of break in service has been awarded in utter violation of principles of natural justice, respondent no. 3 rejected the representation of the petitioner vide communication dated 06.10.2010. But without considering the order passed by respondent no. 4 and the fact that major punishment of break in service has been awarded in utter violation of principles of natural justice, respondent no. 3 rejected the representation of the petitioner vide communication dated 06.10.2010. It has further been submitted that there are sufficient earned leave in the account of the petitioner and moreover, when the leave was sanctioned there was no question of awarding punishment of break in service and such punishment amounts to double punishment for one cause. 4. Controverting the averments made in the writ application, learned counsel for the respondents submitted that though the petitioner claimed that he intimated and applied for leave on 28.07.2001 and 19.11.2001 but on inquriy, it came to surface that there is no such application for grant/extension of leave by the delinquent/petitioner, hence, the impugned order does not warrant interference. 5. In view of the submissions, advanced by learned counsel for the parties, it appears that after attending the official duty at S.D.J.M. Court at Dhanbad, on return, the petitioner fell ill, and accordingly he submitted application dated 28.07.2001 for grant of earned leave and also intimated his authorities telephonically. This fact finds mention in order dated 25.06.2010 passed by respondent no. 4 vide Annexure 4 to the writ application and even he recommended for deletion of that part of order whereby it is ordered that it will be treated as break in service. But the respondent no. 3 without assigning any cogent reason passed a cryptic order without mentioning the reason for disagreeing with the recommendation of respondent no. 4 and passed impugned order dated 6.10.2010. It further appears that on the one hand the respondents-authorities sanctioned the leave treating it as extraordinary leave/leave without pay and on the other hand passed the order treating it as break in service, which certainly shall have adverse impact on the service benefits e.g. promotional avenues, retiral benefits/pensionary benefits etc., without affording any opportunity to put forth his case. In such condition, the petitioner ought to have been afforded opportunity of hearing to defend his case. The respondents-authorities cannot blow hot and cold at the same time. 6. Generally, the writ Court precludes from substituting/amending the punishment. In such condition, the petitioner ought to have been afforded opportunity of hearing to defend his case. The respondents-authorities cannot blow hot and cold at the same time. 6. Generally, the writ Court precludes from substituting/amending the punishment. But, in the facts of the case, it would be apposite to quash the impugned order dated 06.10.2010, in particular, that part of the order whereby it is ordered that it will be treated as break in service. 7. Accordingly, W.P. (S) 6211 of 2010 stands allowed in part and it is held that petitioner's service shall not be treated as break in service. W.P. (S) No. 6274 of 2010 8. In this writ application, the petitioner has inter alia prayed for quashing order dated 29.05.2010 whereby the petitioner was awarded punishment of (a). forfeiture of three annual increments with non-cumulative effect (b).censure and (c) he will not be given independent charge of any Sub-Jail and further nothing will be paid to him except what has been paid during the period of suspension. 9. The facts, in brief, is that while the petitioner was posted as Assistant Jailor, Sub-Jail, Chas, he was put under suspension vide order dated 17.04.1998 on the charge of keeping an under-trial prisoner, Mantu Singh, outside the jail for the whole day unauthorizedly. Pursuant to that a departmental proceeding was initiated against him. Being aggrieved, the petitioner knocked the door of this Court by filing C.W.J.C No. 1280 of 1998(R), which was disposed of with a direction to conclude the departmental proceeding within two months. Accordingly, the disciplinary authority proceeded and passed order of punishment dated 26.08.1998, against which, the petitioner preferred appeal. But, when nothing was done on the said appeal, the petitioner again moved this Court by filing C.W.J.C No. 2654 of 1998(R), which was disposed of vide order dated 30.08.2003 finding the punishment order is not in commensurate with the gravity of offence and remanded the matter back to appropriate authority for passing fresh after affording adequate opportunity to the petitioner. Accordingly, petitioner appeared before respondent no. 3 and submitted his written statement stating therein that said under-trial prisoner was sent to Sub-Divisional Hospital, Chas for treatment as per the advice of the Jail Doctor and that in a similarly situated case of sending the under-trial prisoner Ranveer Yadav to Hospital, the authority vide order dated 10.01.1990 passed order of warning only. 3 and submitted his written statement stating therein that said under-trial prisoner was sent to Sub-Divisional Hospital, Chas for treatment as per the advice of the Jail Doctor and that in a similarly situated case of sending the under-trial prisoner Ranveer Yadav to Hospital, the authority vide order dated 10.01.1990 passed order of warning only. However, the respondent no. 3 passed order dated 29.05.2010, which is impugned in this writ application. 10. Learned counsel for the petitioner submitted that in the departmental proceeding, it was taken into consideration that the said under trial prisoner was sent to Sub-Divisional Hospital, Chas for treatment as per the advice of the Jail Doctor and it cannot be said to be a misconduct. It has further been submitted that petitioner has been subjected to hostile discrimination in view of the fact that in a similarly situated case, the authority had exonerated the delinquent by giving warning only but the petitioner was awarded major punishment. It has further been submitted that impugned order has been passed de hors the Rule and in derogation of order passed by this Hon'ble Court in C.W.J.C No. 2654 of 1998(R), wherein this Hon'ble Court has given a specific finding that the impugned punishment is not in commensurate with the gravity of offence. It has further been emphatically submitted that even punishment no. 3 is not envisaged in the service law or rule. 11. Controverting the submissions advanced by learned counsel for the petitioner, learned counsel for the respondents-State submitted that on the allegation of keeping under trial prisoner, Mantu Singh outside the jail for the whole day unauthorizedly, a departmental proceeding was initiated against the petitioner, in which, there were total 18 charges levelled against the petitioner and full opportunity was given to the delinquent petitioner to defend his case but the delinquent failed to persuade the conducting officer and out of 18 charges 10 charges were proved, 02 were partially proved; 04 of them were not proved and rest 02 could not be concluded because of unavailability of record, which were to be handed over by the delinquent. It has further been submitted that in passing the impugned order dated 06.10.2010, the respondents have shown leniency and commuted the punishment order. 12. It has further been submitted that in passing the impugned order dated 06.10.2010, the respondents have shown leniency and commuted the punishment order. 12. Admittedly, in the case at hand, there is no procedural proceeding in conducting the departmental proceeding and the petitioner time and again came before this Court invoking extraordinary jurisdiction of this Court under Article 226 of Constitution of India for redressal of his grievances. In the departmental proceeding, the conducting officer after appreciating all the materials available on record found 10 charges proved out of 18 charges. 13. In the case at hand, in view of the seriousness of allegation and misconduct committed by the petitioner, the power of judicial review cannot be applied and moreover the fact finding given by the enquiry officer based upon the materials on record cannot be interfered with, as has been held by Hon'ble Supreme Court in the case of State of Uttar Pradesh and Another Vs. Man Mohan Nath Sinha & Another as reported in (2009) 8 SCC 310 , specially at paragraph 15, which is quoted herein below: “15.The legal position is well settled that the power of judicial review is not directed against the decision but is confined to the decision-making process. The court does not sit in judgment on merits of the decision. It is not open to the High Court to reappreciate and reappraise the evidence led before the inquiry officer and examine the findings recorded by the inquiry officer as a court of appeal and reach its own conclusions. .............. ” Applying the aforesaid principles of Hon'ble Apex Court, as indicated herein above, I find no reason to interfere with the impugned order. 14. In C.W.J.C No. 2654 of 1998(R), the matter was remanded back on the question of quantum of punishment and the respondent no. 3 after considering all aspects of the matter, commuted the order of punishment. Hence, on the count also, I find no reason to interfere with the impugned order. 15. So far as punishment no. 3, which speaks that he will not be given independent charge of any sub-jail, is concerned since it is not envisaged in the Rules, it would be apposite to quash that part of impugned punishment. W.P. (S) No. 6011 & 6274 of 2010 16. 15. So far as punishment no. 3, which speaks that he will not be given independent charge of any sub-jail, is concerned since it is not envisaged in the Rules, it would be apposite to quash that part of impugned punishment. W.P. (S) No. 6011 & 6274 of 2010 16. In the net result, W.P. (S) No. 6011 of 2010 is allowed in part to the extent that period spent on leave shall only be treated as extra-ordinary leave and it shall not be treated as break in service. However, the impugned order of punishment dated 29.05.2010, which is the subject matter of W.P. (S) 6274 of 2010, is modified to the extent that punishment with regard to giving independent charge of any sub-jail is quashed. With the aforesaid modification, W.P. (S) No. 6274 of 2010 stands disposed of. W.P. (S) No. 6274 of 2010 stands disposed of. W.P. (S) No. 6211 of 2010 partly allowed.