WP(C) 105/2003 BEFORE HON’BLE MR. JUSTICE HRISHIKESH ROY Heard Mr. P.J. Saikia, learned counsel for the petitioner. Also heard Ms . V.L. Sinha, learned Addl. Sr. Govt. Advocate who represents the respondents. 2. The petitioner who was serving as an Armed Branch Constable in the Assam Police challenges the order dated 13.12.99 (Annexure -D), whereby he has been d ismissed from service in pursuant to a disciplinary proceeding. The petitioner a lso challenges the order dated 17.11.01 (Annexure-F) passed by the Appellate Aut hority, whereby the inflicted penalty has been approved, by dismissing his Appea l. 3. Following an incident on 16.9.98 evening during an anti-insurgency opera tion launched by the Police, which led to fatal injuries on the O.C. of Duliajan P.S. S.I. Khagen Konwar and S.I. Pranab Buragohain ,who were shot by Motor cycl e riding extremists, a preliminary enquiry was conducted. In the report dated 19 .9.98, the Supdt. of Police, Dibrugarh recorded the following preliminary findin g :- (1) Inspite of concrete information of movement of extremist no Police Personn el in ambush was alert to combat with situation. (2) No Police personnel in ambush retaliate the firing in spite all were with ar ms. (3) No Police Personnel tried to nab the culprits who could have caught them eas ily. (4) All police personnel except of Manoj Baruah of Joydeep Dutta and C/Kula Baru a left the place of occurrence in cowardice manner even leaving the injured pers onnel neglected and untouched. 4. When the above preliminary report was submitted, the petitioner and seve ral other policemen involved in the operation were placed under suspension. Ther eafter a departmental proceeding was drawn up against the petitioner, and a show cause notice dated 3.10.98 was issued to him with two charges containing the fo llowing statement of allegation:- STATEMENT OF ALLEGATION ABC. 311 Mabidur Islam was posted at Duliajan P.S. on 24.7.97 for discha rging his duties as Constable under O.C. Duliajan P.S. On 16.9.98 while he alon g with S.I. Khagen Konwar, O.C. Dul;ianjan P.S., S.I. Pranab Buragohain, S.I. Ha resh Kr. Buragohain , 5 UB Constables and 3 AB Consta bles armed with Rifles and Pistols etc. were checking vehicles/ two wheelers in anti- insurgency operation at Madhapur Tinali at about 5-40 P.M. of the death two unidentified youths com ing from Duliajan side riding in Yamaha Motorcycle (No. AS-001E-3711) was stoppe d by O.C. Duliajan P.S. S.I. Khagen Konwar and S.I. Pranab Buragohain with two c onstables namely UBC. 1392 Nakul Kardong and UBC.1456 Siba Gogoi. Both the rid ers got down from the motor cycle and opened fire on the police party as a resul t of which S.I. Khagen Konwar sustained grievous bullet injuries and S.I. Pranab Buragohain succumbed to the injuries later on. At that time ABC. 311 Mobidur Is lam along with S.I. Haresh Kr. Borgohain and two armed constables standing at a distance of about 15 metres from the place of occurrence for protection of check ing party, but he failed to retaliate immediately without returning fire a singl e shot due to which the assailants could manage to escape on foot leaving behind the motor cycle which amounts to gross negligence of lawful duties, gross misco nduct and dereliction of duties and thereby he is charged with. Secondly, while both th injured officers was lying on the ground, ABC 31 1 Mobidur Islam instead of taking any initiative for removing them for treatment , he immediately left the place of occurrence along with S.I. Haresh Kr. Borgoha in and few constables of the ambush party by the vehicle bearing No. AS-06A-3055 (Venet) out of fear. This reflects his serious negligence of lawful duties and cowardice and as such undesirable to retain in the discipline force and thereby he is charged with. Secondly, while both the injured officers were lying on the ground, you, instead of taking any initiative, for removing them for treatment immediately, you have left the P.O. along with S.I. Haresh Kr. Borgohain and few consts. Of t he ambush party by the vehicle(No. AS-06A-3055 (Venet) out of fear. This also re flects your serious negligence of lawful duties and cowardice and as such undesi rable to retain in the force and thereby you are charged with. 5.1 In his reply dated 9.10.98, in response to the first charge of not shoot ing back at the extremists, the delinquent claimed that during the ambush operat ion he was posted at a distance of 70/80 yards from the Madhapur Trijunction loc ation where the shooting had taken place and due to the distance, darkness and l ack of visibility , he could not shoot back at the extremists. 5.2 As regards the second charge of fleeing the place of occurrence without rendering any assistance to the injured policemen, the delinquent replied that h e rushed to the spot where the 2 police S.I’s had fallen after they were shot an d on instruction of the injured O.C. Khagen Konwar who in the meantime was lifte d on to police Gypsy vehicle for being taken to the Duliajan Hospital, the delin quent along with ABC/Tritha Das, ABC/Swadhin Borpatra and S.I. Haresh Kr. Borgo hain got into the 2nd police vehicle venette and piloted the Gypsy with the inju red policemen towards the hospital. On the way the Venette party informed about the shooting incident at the Duliajan P.S. and then proceeded to the Duliajan Ho spital to help the injured victims. The delinquent specifically replied that he rode in the Venette vehicle as directed by the injured O.C. of the Duliajan P.S. Konwar and he did not flee from the place of occurrence, as was alleged. 6. As the reply was found to be unsatisfactory, an enquiry was ordered and in the Enquiry Report prepared on 4.5.99 by the Addl. S.P. Imran Hussain Bora, i t was recorded that the first charge against the delinquent has been proved. 7. The Disciplinary Authority considered the act of the delinquent to be gr oss negligence of duty and accordingly ordered for his dismissal from service. 8.1 The learned counsel for the petitioner Mr. P.J. Saikia contends that the disciplinary proceeding is vitiated as there was no material evidence to conclu de that charge has been proved and therefore punishment inflicted on the basis o f such perverse finding cannot be sustained. . 8.2 The enquiry proceeding is further challenged by contending that there wa s no Presenting Officer for the enquiry and it is submitted that the Enquiry Off icer himself played the role of the Presenting Officer without affording a defen ce assistant to the delinquent and therefore Mr. Saikia submits that the delinqu ent was denied of a fair opportunity to defend the charges. 8.3 Mr. Saikia points out that several witnesses were introduced in the enqu iry proceeding, who were not cited in the list of witnesses and on this ground t he enquiry is contended to be vitiated in law. 8.4 The learned counsel further submits that there was no consideration of t he reply and the defence presented by the delinquent by the Enquiry Officer or b y the Disciplinary Authority. 8.5 Lastly, it is contended that the Enquiry Officer did not afford any oppo rtunity to the delinquent to cross-examine the prosecution witnesses. 9. Ms. V.L. Sinha, learned Addl. Sr. Govt. Advocate, per contra, submits th at the delinquent being an Armed Branch Constable was a trained person and was e xpected to show appropriate initiative in the face of extremists fire and since he failed to retaliate even by single reply shot and failed to assist the injure d policemen, he is not a fit person to be retained in service. 10. The learned counsel for the petitioner has taken the pain to take the Co urt through the testimony of all the ten prosecution witnesses. It is seen that none of them said anything incriminatory against the delinquent. It was the spec ific stand of the delinquent that on orders of the injured O.C. of Duliajan P.S. , he boarded the Venette police van with others to escort the police Gypsy carry ing the injured to the Duliajan Hospital. In the face of this specific plea, the evidence of PW-6 Bijoy Sankar Dubey who drove the Venette van was of utmost sig nificance to demonstrate whether the delinquent fled away from the scene of the ambush or whether he proceeded along with other police personnel in the Venette van to the Duliajan Hospital. It is pointed out by Mr. Saikia that the Driver of the police Venette had stated during the enquiry that he does not know who got down from his vehicle at the hospital. Accordingly, it is submitted by the couns el that the presence of the delinquent in the police Venette has not been ruled out by the relevant witness i.e. the Driver who drove the vehicle. 11. It is also submitted that in the absence a Presenting Officer, the provi sions of Sub-Rule- 5 of Rule-9 of the Assam Services (Discipline and Appeal) Rul es, 1964 (hereinafter referred to as the Rules ) have been infringed and on thi s ground itself the enquiry proceeding is contended to be vitiated in law. In su pport of his contention, the learned counsel relies upon two decisions of this C ourt in Dr. Rajyamalla Buzarbarua vs. The Assam Administrative Tribunal and othe rs reported in (1983) 1 GLR (NOC) 71 and Mutum Shantikumar Singh vs. Union of In dia & ors reported in 2005 (1) GLT 413. 12.1 The Court in Dr. Rajyamalla Buzarbarua (supra) has held that in the ab sence of any Presenting Officer it has to be accepted that no case was presented before the Enquiry Officer and on this basis the Court held that when the case against the delinquent has not been presented, and the Enquiry Officer himself q uestioned the witnesses and conducted the proceeding, the enquiry would be vitia ted in law. 12.2 In the case of Mutum Shantikumar Singh(supra) the provisions of Rule -27 of the CRPF Rules 1955 were interpreted in the context of a disciplinary pro ceeding and this Court declared that to ensure compliance with the rules of natu ral justice and fair procedure, the Presenting Officer must be appointed in a di sciplinary proceeding, although it was seen that Rule-27 of the CRPF Rules , n either prescribe nor exclude the appointment of a Presenting Officer. But the ne cessity of having a Presenting Officer was considered to be in consonance with t he requirement of ensuring natural justice and fair procedure, to prove charges against the delinquent. 13. On reading of the penalty order passed by the Disciplinary Authority on 13.12.99, it is apparent that unproved charges relevant to the second allegation were also taken into account for ordering the dismissal as it has been conclude d that the delinquent did not chase the extremists and he failed to render assis tance for shifting the injured victim to the hospital. When only the first charg e of not firing a single return shot at the extremists was proved in the enquiry , it is not understood as to how the Disciplinary Authority took note of the lap se alleged in the second charge against the delinquent. 14. It is also seen that none of the witnesses including PW-6 who was the dr iver of the police Venette had said anything incriminating against the delinquen t and therefore there is no option but to declare that the conclusion reached by the Enquiry Officer are perverse conclusion, without any evidence to support s uch conclusion. 15. Since there was no Presenting Officer or Defence Assistant and the Enqui ry Officer himself conducted the proceeding, the enquiry proceeding is found to be unfair as it is apparent that the delinquent was not afforded a fair opportun ity to defend the charges nor his version of the incident was taken into account by the Enquiry Officer. 16. In the above circumstances, this Court is constrained to hold that the e nquiry finding dated 4.5.99 is vitiated in law. Consequently the penalty based o n such vitiated enquiry cannot be sustained. Accordingly, the impugned penalty d ated 13.12.99 and the Appellate Order dated 17.11.2001 are set aside and quashed . 17. The petitioner be reinstated in service without any back wages as the St ate has not received any service from the delinquent in the interregnum. 18. The petition stands allowed to the extent indicated.