WP(C) 6448/2006 BEFORE THE HON’BLE MR. JUSTICE B.K. SHARMA The petitioner while was serving as a member of the Assam Police Force was taken up for a disciplinary proceeding by way of issuance of charge s heet dated 24.6.2006. The charges against him are as follows: 1. on 23.4.06 while you were in Magazine Guard duty you have taken exce ss drinks and threatening the other constables on duty and created nuisance and thereby you are charged with gross misconduct and negligence of duty. 2. During your duty hours you have been found under influence of liquor and unit Doctor opined that you are heavy influence of alcohol. Hence you are charged with (1) Disobedience to lawful orders and gross indiscipline and misconduct & negligence in duty. On receipt of the charge sheet, the petitioner submitted his rep ly dated 4.7.2006 while admitting that he was under influence of liquor, but he denied excess consumption of the same and creating nuisance. He also denied diso bedience of lawful orders and gross indiscipline and misconduct and negligence i n duty. In due course, departmental enquiry was conducted and on the bas is of the finding of the Enquiry Officer, the petitioner was dismissed from serv ice by the impugned order dated 16.11.2006 (Annexure-7) passed by the Commandant , 11 Assam Police Battalion, Dergaon. I have heard Mr. D. Kakoti, learned counsel for the petitioner a s well as Mr. B.J. Ghosh, learned State Counsel. Referring to the fact that the petitioner being a State level Fo otball player represented the Assam Police in various football tournaments and l ong 23 years of service rendered by him, learned counsel for the petitioner subm its that even if the charge of consumption of liquor for a single day said to ha ve been established in the departmental enquiry is accepted, the petitioner ough t not to have been dismissed from service and instead lesser penalty should have been imposed commensurating to the gravity of the offence. He submits that it i s not a case of misappropriation of any government fund and other such gross mis conduct. For a single instance of consumption of liquor on the particular day, t he petitioner ought not to have been dismissed from service with the resultant e ffect of financial hardship not only for him but to his entire family. Mr. Ghosh, learned State Counsel, referring to the records of th e disciplinary proceeding has submitted that the effect of consumption of liquor on the particular day having been admitted by the petitioner, this Court will b e reluctant to sit on appeal over the findings recorded by the Enquiry Officer a nd the Disciplinary Authority. As regards the quantum of punishment and on being pointed out that the services of the petitioner could have been dispensed with by way of compulsory retirement, which would have entitled him retirement and ot her pensionary benefit for the services he had rendered, he submits that the mat ter will be require consideration in reference to gravity of the misconduct. On perusal of the enquiry proceeding file, it is found that by t he certificate dated 23.4.2006, the Sr. medical & Health Officer, 11 Assam Polic e Batalion, Dergaon had certified consumption of liquor by the petitioner. Howev er, the said Doctor was not examined nor the document was exhibited in the enqui ry proceeding. As regards statements of other witnesses numbering 3 as against 5 listed witnesses, the same are only to the effect of consumption of liquor by t he petitioner and not to creation of nuisance. There is no indication as to whet her the petitioner was given any chance to cross examine the said witnesses, alt hough it was recorded that the petitioner declined to cross examine the said wit nesses. The records do not reveal that the petitioner was apprised of his right to engage any defence counsel. The petitioner appeared in the proceeding as was directed by the superior officers with the same plea of consumption of little am ount of liquor on that fateful day. It was all along the plea of the petitioner that for the particular offence on a single day, he should not have been dismiss ed from service. Considering the fact that the petitioner, at the time of dismiss al from service had 23 years of service to his credit with the burden of his fam ily and the fact that although one of the charges against him was insubordinatio n, but there was no finding to that effect, I am of the considered opinion that dismissal from service for the single offence of consumption of little amount of liquor on the particular day could have been viewed a little sympathetically by way of imposing a penalty other than the extreme penalty of dismissal from serv ice with the resultant forfeiture of pensionalry and other retirement benefit. Considering the matter in its entirety, I dispose of the writ pe tition remanding the matter back to the Disciplinary Authority to take a pragmat ic approach in the matter towards reconsideration of the case of the petitioner as to whether the petitioner could be provided some protection by way of compuls ory retirement or by imposing any other penalty other than dismissal or removal from service, which will entitle him to pensionary and other service benefits. Let the entire exercise be carried out as expeditiously as possi ble, preferably within 31.12.2011. Facilitating the above exercise, the petitioner may also file an application to the Disciplinary Authority, who in turn shall examine the same a nd pass appropriate order consistently with the observations made above. The writ petition is disposed of.