WP(C) 43/2008 BEFORE HON’BLE MR JUSTICE B.K. SHARMA The petitioner while was serving as Constable in the CISF Unit, ONGC Naz ira was placed under suspension 01.09.2003. Thereafter he was charge sheeted und er Rule 36 of the CISF Rule, 2001 vide memorandum of charge dated 24.09.2003 wit h the following charge: ARTICLE- 1 That No. 834150087 Constable Jaibir Sigh of Lakwa Sector, CISF Unit, NOGC Nazira has exhibited gross misconduct, indiscipline and an act unbecoming to be a memb er of an Armed Force in that while he was posted in SLAA Rig, outpost of Lakwa S ector, he involved in a scuffle with his senior HC (CG) R. Kasivalu and abused h im uttering slang language holding a dreaded knife which provoked him to the ext ent that HC (GD) R. Kasivalu assaulted constable Jaibir Singh with a lathi. In due course and upon denial of the charge levelled against the petitioner, an enquiry was conducted in which the charge against the petitioner was held prove d. However, while holding so, the enquiry officer in his report dated 27.11.2003 held that the charge of keeping Khukri or giving threat with the same had not b een proved. It was held that during hot altercation between the petitioner and t he other Constable Shri R. Kasivalu the petitioner had used filthy language as a result of which out of anger said Shri R. Kasivalu had beaten up the petitione r with wire cutter and later by short stick. For a ready reference the conclusio n and summary as recorded by the enquiry officer in his report is reproduced bel ow: CONCLUSION The statement of witnesses and documents sumitted by them, the statement of cons table Jaibir Singh (suspended) and documents submitted by said force member it b ecame clear that on 01.09.2003 in the Lakwa sector of SLAA Rig at CISF Unit ONGC , Nazira there was hot altercation between Head Constable R. Kashi Belu and cons table Jaibir Singh in the Bunk house regarding the non-working of fan; during wh ich constable Jaibir Singh told Head Constable R. Kashi Belu that he would repor t to the post commander and used filthy language and thus abeted, which became t he cause of the quarrel. Hearing this Head constable R. Kashi Belu became angry and threw the wire cutter in his hand on the head of constable Jaibir Singh and beaten the said constable with short stick and to save himself from departmental punishment altered his statement. Constable Jaibir Singh had neither Khukri nor he could give any threatening because in the injured condition he was immediate ly sent to Lakwa dispensary by the post commander. And this way constable Jaibir Singh (Charged official) had used filthy language. But, keeping Khukri and givi ng threat with Khukri is not proved. SUMMARY After deep study of the entire case file the enquiry officer has got that the ch arted force member Force No. 834150087 constable Jaibir Singh (suspended) Lakwa Sector Unit of ONGC Nazira, the charges levelled against him vide letter No. V-1 5014/CISF/ONGC/(N)/Disc./ Major-18/2003-5288 dated 17.10.2003 on the basis of pr osecution witnesses Force No. 883430060 Insp/Ex. A.N. Tewari, Lakwa Sector depar tmental witness No. 01 and the documents produced by him vide Exhibit No. 02, Fo rce No. 7014300491 Sub-Insp/ Ex. P.L. Parikh departmental witness No. 02, Force No. 831550107 Head constable R. Kashi Belu departmental witness No. 03, Force No . 76428027 Head Constable B.A. Choudhury Departmental witness No. 04, Force No. 011140030 constable R.N. Yadav departmental witness No. 05, Force No. 964320688 Head Constable Dilip Dutta departmental witness No. 06 and documents produced by him Exhibit - 01 G.D. Entry extract recorded by Force No. 812320231 Head Consta ble L.R. Nair Lakwa Sector Control room on 01.09.2003 after receiving informatio n from constable D.K. Rajak (Asuchna) from ONGC Sibsagar Hospital and the docume nts produced by charged force member Force No. 834150087 Constable Jaibir Singh (suspended) vide Exhibit 01, 02, 03, 04, 05, 06, 07, 08, 09, 10 and 11; the fact of constable Jaibir Singh keeping Khukhri or giving threat with Khukhri has not been proved but during hot altercation between Head constable R. Kashi Belu and him he used filthy language which abetted and became the cause of the quarrel. As a result of which out of anger Head Constable R. Kashi Belu beaten constable Jaibir Singh with wire cutter and later with the short stick. Thereafter, the charge levelled vide Memorandum of charge letter No. V-1 50141/CISF/ ONGC (N)/ Disc/ Major/ 18/2003-5288 dated 17.10.2003 are proved. On the basis of the aforesaid report, the disciplinary authority, i.e. Deputy In spector General passed the order dated 08.01.2004 imposing on the petitioner the extreme penalty of removal from service. In the order while discussing the evid ence on record, following findings have been recorded: PW-2 No. 701430049 SP(Exe) P.L. Pareck has deposed that he was performing duty as post Commander about one month in SLAA Rig, Lakwa Sector. He deposed that on 01.09.2003 at about 1220 hrs. HC(GC) B.A. Choudhury whose duty was in Main Gate of LSAA Rig from 0900 hrs. to 1300 hrs. told him that a scuffle had been going o n between HC(GD) R. Kasivalu and Constable Jaibir Singh (charged official) in th e bunk house. Then he went to the bunk house and saw that HC (GD) R. Kaivalu was beating to charged official Constable Jaibir Singh with short lathi then he bro ught down constable Jaibir Singh from upper bunker and sent him to Lakwa Hospita l with Constable R.N. Yadav and Constable Jogender Tyagi for treatment as the ch arged official got injury. The PW-2 further stated that this information had bee n set to control Rool Lakwa at about 1230 hrs. on 01.09.2003/ PW-2 has confirmed his earlier statement dated 01.09.2003 which has been examined by the charged o fficial during the course of enquiry. PW-3 No. 831550107, HC (GC) R.Kasivalu had deposed that he was detailed for duty on 01.09.2003 from 1300 hrs. to 1700 hrs. in C shift at SLAA Rig of Lakwa Secto r. After completion of duty on 31.08.2003 from 0100 hrs. to 0500 hrs. he slept u pto 800 hrs. on 01.09.2003 hut he was not able to sleep due to hot temperature. On perusal of the enquiry report what is further found is that there was some altercation between Shri R. Kasivalu and the petitioner in respect of work ing of a ceiling fan as a consequence of which the petitioner was assaulted by S hri Kasivalu with lathi etc. due to which the petitioner sustained injuries and had to be hospitalised where he remained about seven days. After holding that the petitioner was guilty of the charge No. 1 and tha t the said charge was established, the disciplinary authority imposed the extrem e penalty of removal from service. Being aggrieved, the petitioner preferred an appeal which was also rejected by order dated 31.03.2004. The appellate order makes the following reading: (ii) That on 01.09.2009 after completion of night of shift duty the appellant w as taking rest in bunk House of SLAA Rig. At about 1000 hrs. HC(GD) R. Kasivalu tried to repair the fan of said bunk house for which the appellant was feeling d isturbed for sleeping. The appellant asked HC(GD) R. Kasivalu not to disturb him and on this HC(GD) R. Kasivalu started beating him with a short lathi. Meanwh ile, the post Commander SI/ Exp. L. Parek rushed to the spot and snatched the sh ort lathi from HD (GD) R. Kasivalu and made him out from the bunk house. Thereaf ter, the appellant was taken to Lakwa dispensary for treatment and after getting first-aid, he was referred to ONGC Hospital Sivsagar for better treatment. Subs equently, the appellant was referred to Aditya diagnostic & Hospital, Dibrugarh from ONGC Hospital Sivsagar and he was admitted in the said Hospital for 8 days . Though there is no denial that the appellant was beaten up by HC/GD R. Kaisuvalu the co-accused in the instant case and the appellant was treated by th e doctors for the injuries sustained by him during the coure of scuffle, yet the involvement of the appellant in a scuffle with his senior i.e. HC(GD) R. Kasiva lu has been stablished from the statement of PW-2, SI/Exe. P.L. Pareek, PW-3, HC (GD) R. Kasivalu, PW-4 HC(GD) B.A. Choudhury, PW-2 has categorically deposed in his statement that on 01.09.2003 at about 1220 hrs. PW-4 had informed him that P W-3 and the appellant was quarrelling with each other in the bunk house . The appellate authority further found on evidence that the reason of the scuffl e between Shri R. Kasivalu and the petitioner was the fan of the bunk house and its direction. It is in evidence that Shri Kasivalu played aggressive role. I have heard Mr. G.P. Bhomik, learned counsel for the petitioner as well as Mr. N. Baruah, learned CGC. Learned counsel for the petitioner submits that even if the enquiry report and t he impugned orders of the disciplinary authority and the appellate order are tak en on their face value, the charge quoted above was not established in the enqui ry. On the other hand, Mr. Baruah, learned CGC referring to the deposition of PW 3, submits that the petitioner having played the aggressive role, the other del inquent, namely Shri R. Kasivalu, also played offensive role and as a consequen ce of which the petitioner had to sustain bodily injuries because of which he wa s hospitalised for treatment. The charge against the petitioner as quoted above, was that of involvement in sc uffle with his senior, namely Shri R. Kasivalu and abusing him with slang langua ge holding dreaded knife which consequently provoked Shri R. Kasivalu to assaul t the petitioner with lathi. On perusal of the enquiry report and the findings r ecorded therein which has been quoted above, what is seen is that the charge tha t the petitioner had carried dreaded knife and threatened with the same was not proved. Only charge that can be said to have been established is the altercation between Shri R. Kasivalu and the petitioner and yet the enquiry officer held th e charge to have been established against the petitioner in full. The enquiry of ficer himself having stated that the petitioner did not carry any dreaded knife and/or threatened Shri R. Kasivalu with the same, I am of the considered opinion that the petitioner could not have been held guilty of the charge. Likewise, the disciplinary authority even after recording the evidence in the i mpugned order that witnesses had seen beating the petitioner by Shri R. Kasivalu , held the petitioner guilty of the charge without recording any findings as to whether the petitioner in fact had carried a Khukhri or had threatened Shri R. K asivalu with the same. The enquiry officer while describing the evidence on record has recorded the cat egorical findings that only eye witness of the incident was Sub-Inspector, Shri P.L. Pareek and Head Constable, A.B. Choudhury. Apart from that no members had s een the occurrence. The enquiry officer has recorded the clear findings that abo ut the charge of keeping a Khukhri by the petitioner and attack by the same to Shri R. Kasivalu, none had deposed about the same. The enquiry officer in his fi ndings has also recorded that there was altercation between Shri R. Kasivalu and the petitioner in bunk house regarding non working of the fan. Thus, the whole incident occurred during hot summer due to non working of the fan over which the re was some dispute between Shri R. Kasivalu and the petitioner. It is pursuant to that, the other delinquent Shri R. Kasivalu played the aggressive role and b eaten up the petitioner which resulted his hospitalisation for seven days. Even if the petitioner had provoked Shri R. Kasivalu as a consequence of which a ltercation took place and even otherwise also if in fact the altercation took p lace because of utterance of some words by the petitioner, in absence of further role played by the petitioner, I am of the considered opinion that because of t he misconduct followed on the part of the other fellow Head constable, the petit ioner could not have imposed with the extreme penalty of removal from service. As noted above, the charge against the petitioner having not been established en tirely, the enquiry officer, disciplinary authority and the appellate authority could not have held the same to have been proved in its entirety. The most impor tant aspect of the matter is that the charge of carrying Khukhri and threatening Shri R. Kasivalu with the same was not established in the enquiry was lost sigh t of all the authorities while holding the charge to have been established. In view of the above, the impugned order of penalty dated 08.01.2004 stands set aside and quashed. Consequently the appellate order dated 31.03.2004 also stands set aside and quashed. The petitioner initially after removal from service by order dated 08.01.2004 a pproached the Allahabad High Court by way of a writ petition. The writ petition was dismissed on 30.04.2007 on the ground of lack of territorial jurisdiction. I t was only thereafter he filed the instant writ petition. Although the impugned orders have been set aside and quashed, I make it clear th at the petitioner will not be entitled to back wages. The disciplinary authority will be entitled to impose any lesser penalty for the charge of using filthy la nguage against Head Constable Shri R. Kasivalu which may be stoppage of incremen ts etc. In view of the judgment and order, the petitioner shall be reinstated in service forthwith. The consequential order that will now follow, shall be passed in ter ms of the observations made above. Writ petition is partly allowed to the extent indicated above. There shall be no order as to costs.