ORDER
N. Pandey, J.
1. Heard both sides.
2. This writ petition has been filed for quashing the order dated 28-8-1997 (Annexure-1) passed by the Commandant General, Homeguards. Bihar, Patna, whereby while rejecting the appeal, he enhanced the punishment from reversion to dismissal from service.
A prayer has also been made to quash the order of the disciplinary authority dated 23-11-1989 (Annexure 2) whereby after considering the inquiry report, he recorded an order of reversion against the petitioner.
3. The petitioner at the relevant time was working as Inspector, Homeguards. While he was posted at Khagar, an application was filed by some of the Homeguards Jawans alleging that the petitioner used to charge some illegal money from the Jawans in order to post them at suitable places. On the basis of such allegation, a regular proceeding was started and the petitioner was placed under suspension Ultimately, the Conducting Officer having found the petitioner guilty, submitted a report on 26-7-1986 recommending punishment. On receipt of the report, the petitioner was given second show cause which was accordingly submitted. The disciplinary authority, as would appear from Annexure 2, on considering the inquiry report as wall as snow cause of the petitioner granted a penalty of reversion from the post of Inspector to the post of Company Commander for a period of three years.
4. The petitioner feeling aggrieved against the said order, filed a statutory appeal before the Commandant-General, Bihar, Homeguards, which was ultimately disposed of by the impugned order.
5. Mr. Mukherji, learned Senior Counsel for the petitioner, besides addressing the Court ort the merit of the case also raised a question with regard to the jurisdiction of the appellate authority to raise punishment while bearing the appeal if the delinquent employee. He further contended that there is no provision under the Bihar & Orissa Police Manual authorising the appellate authority to raise punishment while disposing of the appeal. In support of his contention, Mr. Mukherji placed reliance on a decision of the apex Court in the case of Makeshwar Nath Srivastava v. State of Bihar and Ors. , which says that in absence of any provision of law or any rule conferring on the Government, an appellate authority has no power to pass an order of dismissal. Therefore, in absence of any specific provision, under the Police Manual, the general principle must prevail, namely, that an appellate authority in an appeal by an aggrieved parry, may either dismiss his/her appeal or allow it wholly or partly of set aside or modify the order challenged under the appeal.
6. A counter-affidavit has been filed on behalf of the State but no provision has been shown to satisfy that an appellate authority while hearing an appeal can enhance the punishment.
7. In my view, taking into consideration the above solitary question, the order of the appellate authority cannot sustain. But having regard to the allegation as well as specific finding of the the Inquiring Officer, I am not inclined to interfere with the order of the Disciplinary Authority, contained in Annexure 2 dated 23-11-1989 whereby petitioner was reverted from the post of Inspector to the post of Company Commander. Because the materials on record certainly reveal that such type of allegations are generally made by the constables. That apart, the Conducting Officer after examining the relevant materials and evidence of the witnesses, found the petitioner guilty. Therefore, I am not inclined to interfere with the same.
8. In the result, this writ petition partly succeeds and the impugned order of the appellate authority stands quashed. But it is partly dismissed so far as the prayer of the petitioner for quashing the order of the disciplinary authority is concerned.