WP(C) 6274/2006 BEFORE THE HON’BLE MRS JUSTICE ANIMA HAZARIKA Heard Mr. S Bora, learned counsel for the petitioner. Also heard Mr. S Das, learned State counsel for the respondents. 2. Invoking power under Article 226 of the Constitution of India, i nstant writ application has been filed by the petitioner praying for quashing th e impugned order dated 25.7.2001 (Annexure-III) passed by the Commandant 7th A.P . Battalion (for short ’APBn’), Charaikhola, Kokrajhar whereby the petitioner w as removed from service with immediate effect and the order dated 30.5.2003 (Ann exure-VII) passed by the Appellate Authority rejecting the appeal submitted by t he petitioner as well as the impugned judgment and order dated 11.5.2005 (Annexu re-VIII) passed by the Assam Administrative Tribunal, Guwahati in Appeal Case No .50 ATA/03. 3. The petitioner’s case in brief is narrated hereinbelow: The petitioner while working as Constable in 7th APBn at Charai khola, on 16.4.2000, at about 6 pm, after finishing roll call went to the Athiab ari Bazar taking due permission from the Platoon Commander alongwith Constable K amal Barua. In the bazar, they were informed by some people that their colleague Bakul Rabha, Constable No.623 developed affairs with one Rita Chetri, daughter of Smti. Dhanmaya Chetri and the ’Nepali’ people would not tolerate that. They t ook the petitioner and Sri Kamal Barua to the house of Dhanmaya Chetri wherein t he petitioner and his colleague expressed their ignorance about the fact. But th e ’Nepali’ people gathered there started assaulting the petitioner and his colle ague. As a result of such assault, petitioner sustained head injury and started bleeding. However, Kamal Barua somehow managed to escape from the place of occur rence and rushed to the camp. He informed his colleagues in the camp about the i ncident. After hearing about the incident, some constables of the camp went to t he bazar to save the petitioner from the clutch of the people. But when they pro ceeded to the spot, they found large crowd of ’Nepali’ community were coming tow ards the camp in highly agitated mood. They started assaulting the people and in that process some people sustained injury. Later on, Dhanmaya Chetri lodged an FIR at Serfunguri Police Station, which was registered as Serfunguri PS Case No .50/2000 under Sections 456/323/354/379/34 IPC. Pursuant to the Serfanguri PS Ca se No.50/2000, petitioner and the other constables were suspended vide order dat ed 17.4.2000 issued by respondent No.3. But after submission of the show cause r eply on 15.5.2000, the suspension order was vacated and the petitioner was allow ed to resume duty vide order dated 21.5.2000. During the pendency of the crimina l proceeding, the petitioner was served with a show cause notice along with the statement of allegations in the departmental proceeding initiated against the pe titioner by the department. The statement of allegations read as follows: STATEMENT OF ALLEGATION While Const.529 Khagen Pachani was on the posted with No.1 pln. deployed at Athiabari Bazar he alongwith Const.189 Kamal Baruah went to the house of one Smti Dhanmaya Chetry, W/o Lt. Krishna Bah. Chetry of Athiabari Bazar at around 6-45 p.m. on 16.4.2000 and demanded her to produce her minor daughter Miss Rita Chetry age about 14 years, to arrange her marriage with another Constable of his platoon namely Const.623 Bakul Rava but she did not agree to his proposal. Ther eafter a scuffle took place between these two constables and local youths and Co nst.529 Khagen Pachani was rounded up by the local youths. Const.189 Kamal Barua h could manage to escape from the scene and again returned to the P.O. with Cons t.468 Rajesh Ray and others. On arrival at the P.O. Const. 529 Khagen Pachani al ong with the other constables as mentioned above had started vandalism where the walls of the some houses of that locality were damaged including the house hold articles of those houses. Non only that but all of them had assaulted the follo wing persons of that locality causing bodily injuries. 1) Shri Pushpa Bh. Chetry, 2) Shri Ram Bh. Newar, 3) Shri Kul Bh. Sonar, 4) Shri Hari Bh. Chetry. Therefore, he is charged with indiscipline act, gross misconduct and cre ating vandalism in Athiabari Bazar and causing injury to local people at around 6-45 P.M. on 16.4.2000. 4. The petitioner after receipt of the statements of allegations af orementioned submitted his reply denying his involvement and requested the autho rity not to proceed with the departmental proceeding till disposal of the crimin al case registered as GR Case No.274/2000. However, the departmental proceeding was proceeded with, which as per the petitioner was in gross violation of princi ples of natural justice and the Rules framed under Assam Services (Discipline an d Appeal) Rules, 1964 (’1964 Rules’ for short) as well as Police Act (Act V of 1 861) read with the Rules of Assam Police Manual, inasmuch as, mandatory provisio ns were not followed. The petitioner was neither heard nor allowed to defend his case; even he was not allowed to inspect the documents, produce his witness and also was not allowed to cross-examine the prosecution witnesses. The enquiry wa s completed without following mandatory provisions of Rules and even the enquiry report was not furnished to the petitioner to make any representation against t he finding of the Enquiry Officer. Thereafter, the finding of the Enquiry Office r and the removal order dated 25.7.2001 were furnished together to the petitione r in utter disregard of the mandatory provisions of the aforesaid rules. The pet itioner was not given any scope to submit any reply/representation against the e nquiry report, which caused grave prejudice to the petitioner. 5. In the meanwhile, vide judgment and order dated 24.1.2002, petit ioner along with his other colleagues were acquitted by the learned Additional C hief Judicial Magistrate, Kokrajhar in GR Case No.274/2000 arising out of the Se rfanguri PS Case No.50/2000. It has been brought to the notice of this Court by the learned counsel appearing for the petitioner that the witnesses, who partici pated in the departmental proceeding and in the criminal trial, were substantial ly same set of persons. 6. Against the order of removal from service vide order dated 25.7. 2001 passed by the Disciplinary Authority, a statutory appeal under 1964 Rules w as taken to the Appellate Authority whereof violation of rules and natural justi ce in the disciplinary proceeding were averred in the memorandum of Appeal. It i s submitted that the Appellate Authority failed to consider the appeal as requir ed under the law. In the present case, while upholding the order of dismissal fr om service by the Disciplinary Authority there is no indication in the appellate order as to whether the Appellate Authority was satisfied that the procedure la id down in the Rules had been complied with and if not, whether such non-complia nce has resulted in violation of any of the provisions of Rules or in failure of justice. The Appellate Authority had also not given any finding on the crucial question as to whether the findings of the Disciplinary Authority were warranted by the evidence on records. Learned counsel for the petitioner therefore submit ted that there being non-compliance with the requirements of Rules as provided u nder 1964 Rules the impugned order passed by the Appellate Authority is liable t o be set aside and quashed. 7. Being aggrieved with the order passed by the Appellate Authority while affirming the order of dismissal from service, the petitioner preferred a n appeal being appeal case No.50ATA/03 before the Assam Administrative Tribunal, Guwahati (’Tribunal’ for short). The said appeal was heard on 11.05.2005 by the learned Tribunal. The learned Tribunal while upholding both the initial order o f dismissal from service and the appellate order, did not consider the fact of n on-compliance of mandatory provisions of 1964 Rules by the Disciplinary Authorit y as well as Appellate Authority whereby the award of punishment of removal from service was inflicted and thus the petitioner’s further submission is that the Tribunal failed in its duty to give reasons which is also equally bad being in v iolation of fair play in action in the matter of disciplinary proceeding. Hence, the instant writ petition challenging the order dated 25.7.2001 passed by the D isciplinary Authority and affirmed by the Appellate Authority on 30.5.2003 inclu ding the order dated 11.5.2005 passed by the learned Assam Administrative Tribun al dismissing the appeal in Appeal Case No.50 ATA/03. 8. Mr. Bora, learned counsel for the petitioner submits that findin g of the Enquiry Officer on the basis of the evidence adduced cannot be sustaine d in law, inasmuch as, it was clearly revealed during the enquiry proceeding tha t it was the Platoon Commander, who failed to control the constables under his c harge and the charge of moving out of the camp without permission is not borne o ut from the evidence of the witnesses. Learned counsel further submits that it i s only to rescue a colleague, who was being assaulted by a mob, one of their col league resorted to fire once in the air and this mitigating circumstance ought t o have been noticed and considered by the Enquiry Officer. The learned counsel f urther submits that order inflicting penalty is a very cryptic one without any d iscussion as to the finding of the enquiry since the Disciplinary Authority had also taken note of the pendency of the criminal case at the time of passing of t he order of removal. The impugned order is, therefore, liable to be set aside s ince the delinquent petitioner has been acquitted subsequently in the criminal t rial. It is further contended that punishment of removal in the face of the alle gation is disproportionate to the charges. 9. Learned counsel for the petitioner has submitted that the learne d trial Court while passing the judgment and order dated 24.1.2002 has clearly s tated that considering the evidence adduced by the prosecution there is no evide nce to show that the accused persons committed offence as alleged in the FIR and on the basis of the evidence so adduced by the prosecution, learned court held that accused persons are not guilty of offence under Sections 456/323/354/379/34 IPC and acquitted them. Learned counsel for the petitioner would therefore urge that the criminal court considering the identical and similar facts and charges as well as evidences adduced in the departmental enquiry acquitted the petition er. Therefore, it would be unjust and oppressive on the part of the authority to accept the finding of guilt recorded by the Enquiry Officer because of clean ac quittal given by the criminal court. Therefore, urged Mr. Bora that the interfer ence by this Court is called for, inasmuch as, similarly situated person has bee n considered by the court after perusal of the record produced by the State coun sel. 10. Mr. Das, learned State counsel appearing for the respondent, on the other hand, supporting the order of removal has submitted that the petitione r was allowed sufficient opportunities to defend himself during the course of th e enquiry. It has also been contended that there is no bar under the law to init iate and proceed with the departmental enquiry during the pendency of the crimin al case. He has further denied the allegation that the respondent authority comp leted the departmental enquiry without observing the proper procedure as laid do wn under the Rules, rather all the Rules, were strictly adhered to and reasonabl e opportunities were given to the delinquent constable to defend himself during the enquiry. The learned State counsel has also produced the record of the case. 11. Heard the learned counsel appearing for the parties at length. A lso perused the materials available on record. In the present case, in hand, it is noticed that the delinquent constable was assaulted by a mob and one of his c olleague fired once in the air to disperse the mob. None amongst the gathering h ad suffered gun shot injury. It is also noticed that there is no finding with re gard to the charge that the constables went out of the camp without permission. More so, PW-1 has clearly stated that the Platoon Commander was at fault as he w as unable to control the constables under his command. The penalty order of remo val was issued without any discussion on the finding of the enquiry given by the Enquiry Officer. There is no discussion on the mitigating circumstances and the conduct of the writ petitioner, who was assaulted by the ’Nepali’ people withou t any fault on his part and as a result, he sustained head injury and started bl eeding and to rescue him from the clutches of the mob, other constables/his coll eagues had to rush to the place of occurrence. This material fact was not considered and/or discussed by the Disciplinary Authority while imposing the penalty vide order dated 25.7.2001. 12. It is also seen that in the criminal prosecution initiated on th e same set of facts and on similar charges, the petitioner and the other accused were acquitted by the criminal court on 24.1.2002 after discussing the evidence in detail. The learned trial Court while acquitting the petitioner has specific ally stated that there is no evidence to show that the accused persons committed the offence as alleged in the FIR. Learned counsel for the petitioner placed re liance on a decision of the Apex Court in GM Tank -vs- State of Gujrat and Ors, reported in (2006) 5 SCC 446 wherein at para 30 it was held as follows: &............The same witnesses were examined in the criminal case and the criminal court on the examination came to the conclusion that the prosecutio n has not proved the guilt alleged against the appellant beyond any reasonable d oubt and acquitted the appellant by its judicial pronouncement with the finding that the charge has not been proved. It is also to be noticed that the judicial pronouncement was made after a regular trial and on hot contest. Under these cir cumstances, it would be unjust and unfair and rather oppressive to allow the f indings recorded in the departmental proceeding to stand. I have gone though the decision referred to hereinabove. It appe ars that the present case is squarely covered by the decision rendered by the Ap ex Court in GM Tank (supra). Mr. Bora has submitted that in case of Rajesh Roy, who was also a constable and was accompanied by Kamal Baruah to set their collea gue, i.e. the petitioner free from the clutches of the mob and said Rajesh Roy f ired a gun shot in the air and vide judgment and order dated 14.3.2008 passed in WP(C) No.4181/2002 this Court has set aside the order of removal of said Rajesh Roy and the petitioner being similarly situated deserves similar treatment. In this regard, Mr. Bora has placed reliance to the decision rendered by the Apex C ourt in Lt. Governor of Delhi and others -vs- Dharampal and others, reported in (1990) 4 SCC 13 wherein the Apex Court granted similar relief to the appellants, granted earlier to their colleagues, by holding that they being similarly situa ted with identical claim they also deserve the same relief and passed order of r einstatement accordingly by allowing the appeal. 13. In the present case in hand, it must also be noticed that consid ering the nature of the charge, order of penalty also appears to be unduly harsh as the mitigating circumstances have not been considered by the authority. Cons idering the facts and circumstances of the case and also the decisions cited her einabove, I am of the opinion that proceeding leading to infliction of the impug ned penalty is vitiated for not following the Rules under the 1964 Rules and als o for not providing a copy of enquiry report to the petitioner so as to enable h im to make an effective representation. The same has thus caused grave injustice to the petitioner. 14. In view of the above discussion and considering the facts and ci rcumstances of the case, prayer made in the writ petition is allowed. The order of removal dated 25.7.2001 passed against the writ petitioner by the Disciplinar y Authority, order dated 30.5.2003 passed by the Appellate Authority and the ord er dated 11.5.2005 passed by the Tribunal are set aside and quashed. The petitio ner is ordered to be re-instated in service. 15. It is, however, made clear that since the petitioner had not ren dered any service pursuant to the order of removal, it may not be justified in t he facts and circumstances of the case to order payment of his entire back wages . In the circumstances, it is left to the discretion of the authorities to decid e the appropriate quantum of back wages payable to the petitioner for the period in which he remained out of service. The authority shall pass necessary order a s per relevant Rules applicable in this case. 16. Considering the facts and circumstances of the case, there shall be no order as to cost.