THE HON’BLE SRI JUSTICE C.V. RAMULU W.P. No. 7628 of 2010 O R D E R: This writ petition is filed seeking a Certiorari to call for the records pertaining to proceedings No.V.15014/CISF/TPT/Disc/Maj- 12/Sk.Muzzu/2010/1241 dated 20.3.2010 on the file of 2nd respondent and to quash the same as arbitrary, illegal and without jurisdiction. Under the impugned order dated 20.3.2010, petitioner was removed from service as Constable of CISF Unit, TPT Tuticorin and the period of suspension from 13.10.2009 to 27.11.2009 for 46 days was treated as suspension for all purposes and the petitioner was held not entitled for any further payments than what were already paid as subsistence allowance. Aggrieved thereby, though an appeal is provided, petitioner filed the present writ petition directly without availing the alternative remedy. It appears, while petitioner was working as Constable in CISF Unit, TPT, Tuticorin, he was issued with the following charge: “That CISF No. 921406895 Const. Shaikh Muzzu of CISF Unit TPT Tuticorin while performing security duties at Green Gate (IN) of TPT Tuticorin in B-Shift from 1300 hrs to 2100 hrs on 12.10.09, dishonestly earned a sum of Rs.705/- (Rupees seven hundred and five only) by misusing his official capacity which has been exposed during the anti-corruption checking at Green Gate conducted on 12.10.09 at 2055 hours by DIG/SZ Vigilance Squad headed by Insp/Exe C.Ganesh Pandi. The above said act committed by Constable Shaik Muzzu amounts to gross misconduct, indiscipline and violation of orders unbecoming of a member of the disciplined para-military Force. Hence the charge”. After calling for an explanation from the petitioner and having not satisfied with the same, an enquiry officer was appointed and enquiry was conducted and the enquiry officer submitted a report holding the petitioner guilty of the charge and passed the impugned order. The charge against the petitioner is that he had dishonestly earned a sum of Rs.705/- while performing security duties at Green Gate (IN) of TPT Tuticorin in B-Shift from 1300 hours to 2100 hours on 12.10.2009 and that was exposed during anti-corruption check conducted by the Vigilance Squad. According to the learned counsel for the petitioner, the ‘IN’ and ‘OUT’ gates are visible to the Company Commander, Asst. Commandant Port, INT. However, no- one made any complaint regarding collection of amount at the gate by the petitioner. There is no eye witness to the incident. In fact, the Enquiry Officer submitted a report dated 31.1.2010 holding that the charge against the petitioner was not proved, but respondent No.3 – disciplinary authority issued proceedings dated 12.12.2010 disagreeing with the report of the Enquiry Officer and asking the petitioner to submit explanation as to why a different view shall not be taken on the evidence already recorded. In fact, there is no evidence regarding collection of amount by the petitioner and all the witnesses stated that they have never seen him collecting the amount as such. The charge is as vague as it could be. PW-5 C. Ganesh Pandi – Inspector/Exe., who was in-charge of the Vigilance Team, specifically stated that HC/GD Mohar Singh had thrown money on the railway track and that the amount was seized from the railway track. Even PW- 5 admitted that he had not seen the petitioner while collecting the money. The only allegation against the petitioner was that at the time of search he brought one wrapped newspaper to the notice of the search party. After completion of duty hours, the petitioner found one newspaper wrapped in the electricity signal boxes while he was handing over the same to his Guard Commander. At that time, the search team came to him and seized the wrapped paper. In fact, petitioner himself was not aware of what exactly was inside the wrapped paper. In fact, the Enquiry Officer submitted a complaint in the month of Januagy, 2010 to the Deputy Inspector General, CISF, stating that respondent No.3 compelled him to prove the charges against the petitioner and another person of CISF. This itself goes to show that respondent No.3 was biased against the petitioner. Petitioner never involved in any such misconduct at any point of time. Even assuming that there is any such misconduct, the charge itself is as vague as it could be and nothing is attributed to the petitioner except stating that the petitioner has dishonestly earned Rs.705/- and no witness has said that the petitioner has earned any money dishonestly or accepted the money from anybody by misusing his official capacity. Further, while deferring with the findings of the Enquiry Officer and analyzing the evidence of PW-1, though he noticed that nobody said that in their presence any money was collected, the disciplinary authority recorded a finding that it was the duty of the constable and not of the duty officer to check the entire area and ensure that nothing is abnormal in his area. But the charged official did not inform about the wrapped paper while mounting on duty. Further, he stated that, he had searched near the Electronic access post. In response to the clarification questions by the Enquiry Officer, petitioner – PW-1 stated that the entry of the vehicle was made at the cabin in Green Gate-IN. Further, PW-1 stated that no driver and Khalasi were approaching to make entry and the loaded vehicle challan were checked by HC/Const and after tallying challan collector for making entry. Thereafter, he clarified that the duty of Head Constable was to check vehicles and passes and not making entry of passes and he should be present at Green Gate itself. Further, PW-1 clarified that he was not responsible for any illegal things happened at the gate while he was making entry inside the cabin. PW-2 stated that he did not know what was inside the wrapped paper. He did not know the personnel of the vigilance squad of SZ Head Quarters. He did not know about Rs.135/-, which was recovered from the railway track nearer to his duty post. PW-3 stated that the charged officer was not searched in his presence. He did not know how-much money was recovered from the railway track. He did not receive any information about collection of money at the Green Gate by the charged officer and as per his knowledge there was no source to collect money at Green Gate-IN. He signed the seizure list as demanded by SZ vigilance squad. PWs 4 and 5 also have not stated anything serious against the petitioner. However, evaluating the evidence on its own, the disciplinary authority held as follows: “Hence, the charged member was served the charge memo alleging illegal earning of Rs.705/- . As regards the submission of the charged member about the authority implicating him in a planned manner with false charges, I have found no evidence to substantiate the claim. There is nothing available on record, even in the form of circumstantial background to even distantly presume and conclude that the allegation against the charged member was emanated out of some personal grudge. I found no truth in the averment of the charged member that the disciplinary authority has ignored the role of HC/GD Mohar Singh in throwing the ill gotten money amount to Rs.135/- near the railway track who was his accomplice and performing duty together, in view of the fact that the said HC/GD has already been dealt under rule 36 of CISF Rules 2001 for the misconduct vide charge memorandum No.V-15014/CISF/TPT/Disc/Maj- 14/MS/2009/5308 dated 8.12.2009. Further, his plea that he never violated any law has been proved to be untrue as there was restriction imposed on CISF personnel for keeping pocket money before mounting on duty vide office order No.E-42099/CISF/TPT/O.O/2006/991 dated 12/5/06. As per the above said office order, CISF personnel should not carry more than Rs.10/- and if they carry more than the permitted amount, they should declare the excess amount in the duty register. But the recovery of unaccounted amount of Rs.570/- from the charged member i.e. after deducting the declared amount of Rs.20/- from the total seized amount of Rs.590/-, and the recovery of an amount of Rs.135/- from the spot behind Green Gate (In) where the charged official was performing the security duty, unambiguously proved that the charged official has violated the standing instructions and dishonestly earned money from undisclosed sources while performing security duties. He has failed to advance any substantial evidence to disprove the prosecution charges. As regards the charged member’s argument regarding making an entry in the General Diary about charged member and Const SKM Basha of collecting an amount of Rs.785/- and its recovery, I have gone through the records and found that there is no merit in the contention. It is revealed from the records that a sum of Rs.725/- was recovered during course of anti-corruption checking from the charged official and from the spot near to his duty post and Rs.60/- was recovered from SKM Basha and no mention has been made in the imputation of charge about recovery of Rs.785/- from the charged member. In view of the facts and factual positions evaluated and discussed as above, I hold the charged member guilty of the charge leveled against him. A thorough and judicious evaluation of the case records unambiguously proves that the charged member has dishonestly earned Rs.705/- i.e. Rs.570/- directly and Rs.135/- indirectly in connivance with HC/GD Mohar Singh while performing security duty which tantamount to gross misconduct, indiscipline and violation of instructions unbecoming of a member of the disciplined force. Honesty, sincerety and dedication on duty are vital and essential qualities required to be maintained by a member of the Force. The proven delinquency by the member of the disciplined para-military Force is very serious in nature which entails severe action against him. Therefore, in exercise of the powers conferred on me under Rule 32(1) of CISF Rules 2001 read with Schedule-I, I award the punishment of ‘REMOVAL FROM SERVICE” to No.921406895 Const. Shaik Muzzu of CISF Unit, TPT Tuticorin from the date of receipt of this final order to meet the ends of justice. The period of suspension from 13.10.09 to 27.11.09 for 46 days is treated as suspension for all purpose and he will not be paid anything more than that of what he has already drawn towards subsistence allowance during the period of suspension”. Whereas, learned counsel for the respondents supported the impugned order passed by 2nd respondent and contended that the disciplinary authority, after evaluating the evidence available on record thoroughly held that the petitioner is guilty of the charge framed against him and, therefore, awarded punishment of removal from service. There are no merits in the writ petition and the same is liable to be dismissed. I have gone through the entire evidence recorded by the Enquiry Officer and the impugned proceedings whereunder, while deferring with the enquiry report, the disciplinary authority analysed each and every evidence and came to a different conclusion, holding the petitioner guilty of the charge. The Enquiry Officer has strictly gone by the evidence adduced before him and held that the petitioner was not guilty of the charge as none of the witnesses spoke anything against him. However, the disciplinary authority gave his finding, as noticed above. I am of the opinion that in a given case two views may be possible while evaluating the evidence available on record, but, that itself does not mean that the findings recorded by the Enquiry Officer were bad and that needed a further evaluation by the disciplinary authority. In fact, I am of the opinion that there could not have been any second opinion than what was given by the Enquiry Officer. The disciplinary authority had tried to go by assumptions and presumptions as noticed above to hold the petitioner guilty of the charge. Generally speaking, in a disciplinary proceedings, the sufficiency of evidence need not be gone into, but, in this case, the charge itself is as vague as it could be. Once the charge is that the petitioner dishonestly earned a sum of Rs.705/- by misusing his official capacity, absolutely there is not even hearsay evidence, leave alone any supporting evidence, to prove the said charge. All the witnesses have categorically stated that they have not seen the petitioner accepting any money/gratification illegally from any person. Just an inference was drawn by the disciplinary authority to hold him guilty that he was holding a wrapper in his hand and that contained money. Petitioner has categorically stated that he did not know what exactly the wrapper contained. Undoubtedly, dishonesty and illegal gratification are charges of grave nature and there need not be any substantial evidence, but, however, there shall be some semblance of evidence to prove the same. In the case on hand, no such evidence is available on record to come to the conclusion that the charge against the petitioner has been proved. For all the above reasons, I am of the considered opinion that the charge against the petitioner is not proved and, therefore, the impugned order is liable to be set aside and accordingly set aside. In the result, writ petition is allowed and the respondents are directed to reinstate the petitioner into service with all consequential benefits. JUSTICE C.V. RAMULU. Date: 9-7-2010. MVB.