JUDGMENT : Pramath Patnaik, J. 1. In the accompanied writ application, the petitioner has inter alia prayed for quashing the order dated 11.09.1998 passed by the respondent no.4, the Superintendent of Police, Gumla inflicting the punishment of dismissal of the petitioner from services and for quashing the order dated 10.03.2004 pertaining to dismissal of the appeal by the Deputy Inspector General of Police, South Chotanagpur Range, Ranchi, respondent no.3 and the petitioner has further prayed for direction to the respondents to reinstate him in services with all consequential service benefits. 2. Shorn of unnecessary details, the facts as emanated from the writ application, is that the petitioner was appointed as Police Constable on 20.12.1988 in the district of Lohardaga. During course of his service, the petitioner was transferred to the district of Gumla. While continuing as such in the district of Gumla, memo of charge was framed against the petitioner vide memo dated 01.06.1998 vide Annexure-3. The charges levelled against the petitioner runs as under: “On 24.05.1998, when the petitioner was posted on duty at village Ataria within Gumla Police Station on 25.05.1998 at 11.10 a.m. the petitioner reported his sickness and then by office letter no.185520 the petitioner was sent to Sadar Hospital, Gumla. This shows negligence of duty of the petitioner as the petitioner submitted his sick report after allotment of the duty. The petitioner was therefore put under suspension by district order no.696/1998.” Thereafter, a departmental proceeding was initiated and the enquiry officer submitted his report holding the petitioner guilty of the charges as per Annexure-4 to the writ petition. Thereafter, second show cause notice was issued to the petitioner on 20.07.1998 vide Annexure-5. Pursuant thereto, the disciplinary authority dismissed the petitioner from services and the said decision was communicated to the petitioner vide memo dated 11.09.1998 as per Annexure-1 to the writ petition. Being aggrieved by the order of the disciplinary authority, the petitioner preferred appeal before the respondent no.3, vide Annexure-6 to the writ petition and the appeal preferred by the petitioner has been rejected by the respondent no.3 vide Annexure-2 to the writ petition. Being aggrieved by the order of the disciplinary as well as the appellate authority, the petitioner left with no alternative, has invoked the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India for redressal of grievances. 3. Being aggrieved by the order of the disciplinary as well as the appellate authority, the petitioner left with no alternative, has invoked the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India for redressal of grievances. 3. Learned counsel for the petitioner submitted with vehemence that the alleged charges levelled against the petitioner i.e. reporting of sick, does not come under the purview of misconduct, therefore, charges levelled against the petitioner is non est in the eye of law. Hence, the entire departmental proceeding initiated against the petitioner is vitiated, on the ground of vague and untenable allegations. Learned counsel for the petitioner further submits that on perusal of enquiry report it would be revealed that the enquiry officer has reported that the petitioner is guilty of the charges. The enquiry officer is required to say as to whether charge is proved or not but he cannot arrogate the power of disciplinary authority to say that the charged employee is guilty. Learned counsel for the petitioner further submits that the decision of the disciplinary authority as well as the appellate authority under the provisions enshrined in Rule 826 of the Bihar/Jharkhand Police Manual, suffers from non application of mind. The disciplinary authority has passed the impugned order only on the basis of previous records of service of the petitioner which is not the part of the charge, therefore, the impugned order is not legally sustainable. Learned counsel for the petitioner further submits that the grounds taken in the appeal by the petitioner vide Annexure-6 to the writ petition has not been considered by the appellate authority in right perspective and cryptic and non speaking order has been passed by the appellate authority which cannot sustained in view of the decision of the Hon’ble Apex Court reported in (2013) 6 SCC 530 (para-19). Learned counsel for the petitioner further submits that delay of six years in filing the writ application by the petitioner should not come in the way of imposition of capital punishment, otherwise it would amount to miscarriage of justice. 4. Repelling the contentions raised in the writ petition, a counter affidavit has been filed on behalf of respondent no.4. Learned counsel for the petitioner further submits that delay of six years in filing the writ application by the petitioner should not come in the way of imposition of capital punishment, otherwise it would amount to miscarriage of justice. 4. Repelling the contentions raised in the writ petition, a counter affidavit has been filed on behalf of respondent no.4. In the counter affidavit, it has been inter alia submitted that petitioner had gone to Ataria village and returned from there on 25.05.1998 and make a report to Officer-in-charge, Gumla Police Station that he is not felling well and is sick and thereafter from Gumla Police Station an order was sent to Sadar Hospital, Gumla for his treatment, but the petitioner left from Gumla Hospital without informing the Doctor, who was treating him and came to Police Line, Gumla and was suspended vide order dated 25.05.1998 as per Annexure-to the counter affidavit. Thereafter, a departmental proceeding was initiated vide departmental proceeding no.95 of 1998 and the charges were framed against the petitioner and a copy of charge along with extract from his service book was also sent to the petitioner vide memo dated 01.06.1998 through registered post. 5. Learned counsel for the State during course of hearing has referred to the judgment of the Hon’ble Apex Court reported in (2009) 8 SCC 310 (State of Uttar Pradesh and Another Vs. Man Mohan Nath Sinha & Another) (para 15 and 16). By referring to the aforesaid judgment, learned counsel for the respondents submits that the respondents have justified in passing the impugned orders. 6. Having heard the learned counsel for the parties at length and upon perusal of the records, I am of the considered view that the petitioner has been able to make out a case for interference due to the following facts and reasons: (I) In the case in hand, on perusal of the charge dated 01.06.1998 and the findings of the enquiry officer, it would be apparent that the petitioner was ailing and the factum of his illness has surfaced in the enquiry report. Finally, the disciplinary authority dismissed the petitioner from services which has been confirmed by the appellate authority but from perusal of the impugned order it would appear that the disciplinary authority has taken into consideration the past service conduct of the petitioner while determining the quantum of punishment though the same was not part of charges. In this regard it would be profitable to quote Rule 826 of the Bihar/Jharkhand Police Manual which stipulates as under: “Rule 826. Discrimination necessary in awarding punishments.-The punishment awarded should be in conformity with the gravity of offence with which the officer is charged and offences involving moral turpitude shall be carefully discriminated from smaller wrong doings. It should also be borne in mind that the previous record of service of the officer concerned, if it is not already included in the charge of the proceeding shall not be taken into account for determining the quantum of punishment. The objective of awarding punishment is firstly to keep a record of the wrong doings of the officer and secondly as a measure of correction to alert him to improve his work and conduct. Several punishments awarded in one lot such as during inspections which do not provide an opportunity to the delinquent officer to improve himself are not likely to be helpful. In any case, the punishment cannot be awarded without carefully considering the defence of the delinquent officer. Before issuing orders of minor punishment, it is necessary to apprise the delinquent of the substance of the charges against him and he should be given adequate opportunity for defence. After this has been ensured, the punishment can be awarded. However in the case of major punishments (see Rule 828) formal proceedings in P.M. Form no.178 will have to be drawn up.” On perusal of the aforesaid provision there is no doubt that Rule 826 of the Police Manual envisages that the previous record of the service cannot be taken into account unless it would included in the memo of charges. Since the previous record of the petitioner has been taken into account without making it as a part of charge, obviously there has been departure from the compliance of Rule 826 of the Police Manual. (II) Another procedural irregularity which is quite discernable is that the enquiry officer in the enquiry report has found the petitioner guilty. Since the previous record of the petitioner has been taken into account without making it as a part of charge, obviously there has been departure from the compliance of Rule 826 of the Police Manual. (II) Another procedural irregularity which is quite discernable is that the enquiry officer in the enquiry report has found the petitioner guilty. The duty of the enquiry officer to act in a very impartial manner to give a finding as to whether the charges which has been levelled are proved or not? The finding as to whether the petitioner is guilty of the charges is left to the exclusive domain of the disciplinary authority. But in the instant case, the enquiry officer has usurped the power of the disciplinary authority by recording its finding that the petitioner is guilty and the disciplinary authority has given the second show cause notice to the petitioner solely basing on the report of the enquiry officer, therefore, on this score, the findings of the enquiry officer and subsequent decision of the disciplinary authority are assailable. (III) The appellate authority vide order dated 10.03.2004, as per Annexure2 to the writ petition, has passed the order in a very cryptic manner without due consideration of the grounds taken in the appeal. The impugned order passed by the appellate authority being cryptic and non reasoned and non speaking is liable to be set at naught, in view of the decision of the Hon’ble Apex Court in case of Chairman, Life Insurance Corporation of India and Ors. vs. A. Masilamani reported in (2013) 6 SCC 530 , wherein at paragraph 19, it has been held as under: “19. The word “consider” is of great significance. The dictionary meaning of the same is, “to think over”, “to regard as”, or “deem to be”. Hence, there is a clear connotation to the effect that there must be active application of mind. In other words, the term “consider” postulates consideration of all relevant aspects of a matter. Thus, formation of opinion by the statutory authority should reflect intense application of mind with reference to the material available on record. The order of the authority itself should reveal such application of mind. The appellate authority cannot simply adopt the language employed by the disciplinary authority and proceed to affirm its order (Vide Indian Oil Corpn. Thus, formation of opinion by the statutory authority should reflect intense application of mind with reference to the material available on record. The order of the authority itself should reveal such application of mind. The appellate authority cannot simply adopt the language employed by the disciplinary authority and proceed to affirm its order (Vide Indian Oil Corpn. Ltd. v. Santosh Kumar and Bhikhubhai Vithalabhai Patel v. State of Gujarat).” (IV) It is no doubt true that the petitioner was serving in a disciplined force and any kind of dereliction of duty or absence cannot be tolerated in a disciplined force, but the ground of sickness of the petitioner, which ought to have been taken note of by the disciplinary as well as the appellate authority while awarding the punishment, because prior to passing of the impugned order of punishment the petitioner has rendered almost 10 years of services. By virtue of passing of the impugned order, benefits of past services are totally obliterated and the petitioner would be deprived of getting any financial benefits. Therefore, the punishment inflicted by the disciplinary authority appears to be grossly disproportionate to the magnitude of offence committed by the petitioner and the punishment appears to be not commensurate with the misconduct/proved charges of the petitioner, therefore, the case of the petitioner warrants reconsideration by the respondents for award of punishment befitting to the magnitude of proved charges. It is no more res integra that the Court should be slow to interfere in the order of punishment on the quantum of punishment unless it is shockingly disproportionate to the proved misconduct. (V) The Hon’ble Apex Court, on the point of doctrine of proportionality in case of Chairman-cum-Managing Director, Coal India Limited and Another vs. Mukul Kumar Choudhuri and Ors reported in (2009) 15 SCC 620 has held that “it is not permissible to use a ‘sledgehammer to crack a nut’. As has been said many a time; ‘where paring knife suffices, battle axe is precluded’. Therefore, as has been held by the Hon’ble Apex Court in catena of decisions, the Court will not interfere with the order of punishment, unless the punishment which shocks the conscience of the Court. 7. As has been said many a time; ‘where paring knife suffices, battle axe is precluded’. Therefore, as has been held by the Hon’ble Apex Court in catena of decisions, the Court will not interfere with the order of punishment, unless the punishment which shocks the conscience of the Court. 7. In view of the reasons stated in the foregoing paragraphs, the impugned order dated 11.09.1998 passed by the respondent no.4, vide Annexure-1 and the order of the appellate authority dated 10.03.2004 vide Annexure-2 are hereby quashed and set aside. 8. But the case in hand, on perusal of the charges, the enquiry report and the punishment by the disciplinary authority as well as the appellate authority, it can be safely concluded that the punishment as has been awarded by the disciplinary authority warrants interference because of disproportionate punishment. Since the matter falls exclusively within the domain of the competent authority i.e. disciplinary authority, it would be appropriate to remit the matter to the disciplinary authority to consider the matter afresh on the quantum of punishment, who shall pass an appropriate order in accordance with law within a period of three months from the date of communication of the order. 9. With the aforesaid direction, the writ petition stands disposed of.