WP(C) 4493/2007 BEFORE THE HON’BLE MR JUSTICE B.K. SHARMA By means of this writ petition, the petitioner has challenged Annexure - P/7 dated 07.10.2006 by which pursuant to a departmental proceeding initiated ag ainst him, he has been imposed with the penalty of dismissal from service. The p etitioner is also aggrieved by Annexure-P/9 dated 02.01.2007 by which a departm ental appeal preferred by the petitioner against the said order of dismissal fro m service, has been dismissed. The petitioner while was serving as Constable (General Duty) was placed under suspension by Annexure-P/2 order dated 03.07.06. Thereafter a memorandum o f charge sheet dated 11.07.06 (Annexure-P/3) was served on him on the following charges: Article-I That the said No. 913228541 CT/GD Annu Rai of E Coy, 165 Bn. CRPF while function ing as Constable (GD) committed an act of misconduct/ misbehaviour in his capaci ty as a member of the Force U/S 11 (1) of CRPF Act 1949, in that he outraged the modesty of a monor girl named Puja aged about 10 years while on duty on 03.07.0 6 while his platoon was deployed in Assam Medical College Hospital, Dibrughar. Alongwith the charge sheet the statement of imputation of misconduct in support of the Article of charges was also enclosed and the same is reproduced below: Article-I That a platoon of E/165 Bn. CRPF under Command of SI/GD Sideshwar Sawain was dep loyed at Assam Medical College Hospital, Dibrughar from 0600 hrs. to 1400 hrs. o n 03.07.2006 No. 913228541 CT/GD Anuu Rai of E. Coy, 165 Bn. CRPF who was at tha t time placed near the Nephrology Department entered into the office of Staff Nu rse where he found a ten year girl, daughter of Staff Nurse, sitting alone. He t ouched her on the face, kissed her and brought out his genital organs from his p ant and asked her whether she has seen that and to take it in her hand, hereby o utraged the modesty of a minor girl by committing an act of misconduct/ misbehav iour in his capacity as a member of the Force U/s. 11 (1) of CRPF Act, 1949 whic h is prejudicial to good order and discipline of the Force. In due course the petitioner submitted his written statement of defence. The dis ciplinary authority being not satisfied with the defence plea appointed enquiry officer who conducted the enquiry proceeding. On conclusion of the proceeding, t he enquiry officer submitted the report holding the petitioner to be guilty of t he charge levelled against him. The petitioner was furnished with the copy of th e enquiry report vide letter dated 21.09.06 (Anenxure-P/5) asking him to make re presentation against the enquiry report. On submission of the representation against the enquiry report, the disciplinary authority by its aforesaid Annexure-P/7 impugned order dated 07.10.06 dismissed the petitioner from service. The disciplinary authority passed the order taking into account the entire evidence on record and defence plea including the repre sentation submitted by the petitioner against the enquiry report. The operative part of the enquiry report and the order passed by the disciplinary authority ar e quoted below: OPINION OF THE ENQUIRY OFFICER 1. That No. 913228541C. Annu Rai while he was on duty at AMC, hospital, Dib rughar outraged the modesty of a minor girl Kumari Puja daughter of Shri Kamal K umar Saikia by showing his male organ and asking her to such it. 2. That as per the version of witness No. I, II, IV, V, VI, VII that No. 91 3228541C. Annu Rai misbehaved with the minor girl Kumari Puja in a lonely room a nd confessed in the Police Station during enquiry. Although the two high officia ls were present in the Police Station he told nothing in his defence and he in t he presence of witness No. II asked apology from the mother of Kumari Puja, i.e. Smt. Mandira Saikia by touching her feet. 3. That the No. 913228541C. Annu Rai in his written statement of defence ha s told that he closed the chain of his pant after being told by the mother of K umari Puja, i.e. Smti. Mandira Saikia. He was not aware that chain of the pant w as opened. Whereas at the time of preliminary enquiry he agreed that his chain o f pant was open before going to the room. 4. That the delinquent had left the place of his duty without leaving any C ommander to that place with is clear from his own statement and statement of the witnesses No. I & II. 5. Therefore, the charges labelled against the delinquent are proved. 8. After careful consideration of all pros and cons of the case, I have reached the conclusion that Article I of the charge framed against No. 913228541 CT/GD Annu Rai of E/165 Bn. Has been proved. On 03.07.2006 he outraged the modesty of a minor girl named Puja while he was on duty in Assam Medical College Hospital, Dibrughar. He has committed an act of misconduct/ misbehaviour in his capacity a s a member of the Force U/s. 11(1) of CRPF Act, 1949 which is prejudicial to goo d order and discipline of the Force. 9. Personnel of a disciplined Force like CRFP are required to display a hig h order of discipline. Such an act of misconduct is not expected from a member o f CRPF. Considering the proven charge, he deserves stringent punishment. He is n ot a fit person to be retained in the Force. Therefore, in exercise of the power s vested in me under Section 11(1) of CRPF Act, 1949 read with Rule 27 of CRPF R ules, 1955, I impose the punishment of Dismissal from service on the said No. 913228541 CT/GD Annu Rai of E/165 Bn. CRPF w.e.f. 07.10.2006 and accordingly he is struck off strength of this unit from the same date. His suspension period wi th effect from 03.07.2006 (FN) to the date of issue of this order i.e. 07.10.200 6 is treated as such and he will not be entitled to any more amount than what ha s been paid to him as subsistence allowance for the said period. Being aggrieved by the said order of penalty, the petitioner preferred a departm ental appeal interalia contending that there was no evidence to sustain the orde r of penalty and that he was falsely implicated in the alleged incident. The app ellate authority in consideration of all the points urged in the appeal passed i ts detailed order dated 02.01.07 (Annexure-P/9) dismissed the appeal. In the app ellate order, the appellate authority has discussed the entire evidence on recor d and the grounds urged in the appeal. In the writ petition filed by the petitioner towards assailing the aforesaid imp ugned orders, it has been stated that the said orders are liable to be interfere d with on the following grounds: (a) That the proceedings started on the basis of a complaint lodged by the fathe r of the girl without appreciating the veracity of the same. (b) The witnesses Hav. Debendar Rangdole, S.I., S. Soiyan, Constable Dinath deni ed the alleged charge against the petitioner. (c) No defence assistance was provided. (d) The enquiry was conducted hurriedly and in perfunctory manner. (e) There is gross violation of the principles of natural justice and administra tive fair-play. (f) No adequate opportunity was provided to the petitioner to put his case of de fence and cross examine the departmental and other witnesses. The respondents have filed their counter affidavit denying the aforesaid content ions raised in the writ petition. It has been stated that due opportunities were provided to the petitioner to defend his case. It has been stated that the enqu iry officer and the disciplinary authority in consideration of the entire eviden ce on record have held the petitioner to be guilty of the charges and the disci plinary authority having regard to the fact that the petitioner was the member o f the disciplined force, imposed the penalty of dismissal from service. It has a lso been stated that the appellate authority considered the entire evidence on r ecord and dealing with the grounds urged in appeal, dismissed the appeal and the re is n o infirmity in such dismissal of the appeal. Mr. Bhowmik, learned counsel for the petitioner submits that the petitio ner having not been provided with the assistance of defence counsel, the entire enquiry proceeding was vitiated and accordingly the impugned orders are not sust ainable in law. He further submits that the statement made by the witnesses bein g contradictory and the petitioner having been made a scapegoat of the situation , the impugned orders are liable to be set aside and quashed. Countering the above arguments made by the learned counsel for the petit ioner, Mr. C. Baruah, learned CGSC on the other hand has submitted that the peti tioner having committed a most heinous crime and that too on a minor girl, is no t liable to be dealt with leniently. Referring to the records pertaining to the departmental proceeding produced by him, he submits that on the basis of the evi dence on record the charges having been established in the enquiry, the discipli nary authority rightly passed the impugned order of dismissal from service. He h as also submitted that the appellate authority has passed the appellate order in consideration of the entire material on record. He submits that having regard t o the facts and circumstances involved in the case, the writ court will be reluc tant to interfere with the impugned orders. I have considered the submissions made by the learned counsel for the pa rties and the materials on record. I have also carefully considered the enquiry proceeding file. The charge against the petitioner has been noted above. The charge is a serious one. Having regard to the submission made by the learned counsel for the petitioner regarding deprivation of defence assistance in the enquiry proceedin g, I have verified the enquiry proceeding file on perusal of which I do not find that the petitioner had ever made any request for engagement of defence counsel . On the other hand, the disciplinary authority had examined its witnesses as pe r the list of witnesses and documents furnished to the petitioner alongwith the memorandum of charge sheet. The petitioner also duly cross examined all the witn esses and at no point of time made any grievance regarding non-availability of d efence assistance. There is nothing to show that the petitioner had ever made an y demand for engagement of defence counsel. On perusal of the enquiry proceeding file, there is absolutely no manner of doubt that a fair procedure was followed in which the petitioner duly partic ipated without any reservation. Prior to the regular departmental enquiry, a pre liminary enquiry was conducted in which the petitioner admitted his guilt. Leavi ng aside the preliminary enquiry, even in the regular enquiry the witnesses duly proved the charges levelled against the petitioner. All these aspects of the ma tter have been elaborately discussed by the enquiry officer in his enquiry repor t which has also been discussed by the disciplinary authority in the impugned or der of penalty. As noted above, the appellate authority has also discussed the e ntire evidence on record and also the defence plea and thereafter has disposed o f appeal upholding the order of penalty imposed on the petitioner. Mr. Bhowmik, learned counsel for the petitioner submits that having rega rd to the facts and circumstances involved in the case, lesser penalty needs to be imposed for the ends of justice even if the petitioner is held to be guilty o f the charge. I am afraid such a submission is totally misplaced. The offence co mmitted by the petitioner is a heinous one and the disciplinary authority consid ering the gravity of the same, rightly imposed the penalty of dismissal from ser vice. Moreover, it is not for the writ court in exercising the power judicial r eview under Article 226 of the Constitution of India to substitute its own penal ty in lieu of the penalty imposed by the disciplinary authority. Needless to say that the writ court in exercising the power judicial re view under Article 226 of the Constitution of India also cannot sit on appeal ov er the evidence and findings recorded by the enquiry authority, disciplinary aut hority and appellate authority like a super appellate authority. In a department al proceeding, it is the preponderance of probability, unlike the criminal proce eding in which charges are required to be established beyond all reasonable doub t. In the instant case, the evidence against the petitioner is overwhelming to e stablish the guilt and accordingly the authority has passed the impugned orders. I see no reason to interfere with the same. In view of the above, the writ petition is dismissed leaving the parties to bear their own costs. At this stage, Mr. Bhowmik, learned counsel for the petitioner upon refe rence to an application filed by the petitioner to the departmental authority a fter dismissal from service, submits that the order of penalty which is dismissa l from service is required to be substituted with that of removal from service w hich will entitle the petitioner to get further employment. I leave this aspect of the matter to the respondent authority, if any appropriate appeal is made by the petitioner.