WP(C) 285/2003 BEFORE HON’BLE MR. JUSTICE AMITAVA ROY Being aggrieved by his dismissal from service as a disciplinary measure vide ord er dated 15/7/2002 of the Commandant, 11th A.P. Battalion, Dergaon, the petition er is before this Court seeking redress through judicial intervention. I have heard Mr. T.J. Mahanta, learned Counsel for the petitione r and Mr. R.K. Adhikary, learned State Counsel for the official respondents. The petitioner at the relevant point of time while serving as a Constable with the 11th Assam Police Battalion, Dergaon, was required to show ca use under section 7 of the Police Act read with Rule 66 of the Assam Police Manu al Part-II and Article 311 of the Constitution of India on the charge of display ing extreme cowardice and gross negligence of lawful duty. In the show cause not ice dated 12/11/2001, it was alleged that while he as a member of a team of 7 Ba ttalion personnel had been engaged in patrol duty in the forest area under the R angapahar B.O.P. at about 7.30 P.M. on 29/10/2001 they were waylaid by suspected DHD extremists who opened fire on the unit as a result whereof four members of the team died at the spot. While LNK Prafulla Dowarah also sustained injuries in the exchange of fire, the petitioner meekly submitted himself to the extremists without offering any resistance facilitating thereby the seizure of his light m achine gun with which he was then armed. The show cause notice was on the basis of a report on the episode submitted by W/Commander, Camp-Dajungfa, Karbi Anglon g. The petitioner in his reply denied the charges. He admitted that while on patrol duty on that fateful evening, the team was suddenly ambushed and the members th ereof were caught in random firing that followed from all directions. He stated that the extremists were at about 50 to 60 in number. According to him, by this sudden and unforeseen fearful development, he lost his consciousness and by the time he regained his senses he had been dispossessed of the firearm allotted to him. He denied the charge that he intentionally surrendered his weapon to the ex tremists. An enquiry followed in which the Disciplinary Authority examined seven witnesses whereafter the Enquiry Officer submitted his report holding tha t the charge against the petitioner had been proved. A copy of the enquiry repor t having been served on him, he submitted his representation reiterating his def ence as narrated in his first show cause and prayed to be leniently dealt with. The impugned order of dismissal from service followed. The petitioner has questioned the validity of the disciplinary proceeding on the ground of denial of opportunity to cross-examine the witnesses of the disciplin ary authority. He has contended as well that two other members of the same team had been suspended along with him earlier and had been let off with a lesser pun ishment of stoppage of increments only. The petitioner has asserted that the maj or penalty of dismissal from service is shockingly disproportionate to the charg e. The respondents in their affidavit have maintained that the disc iplinary proceeding had been conducted in strict compliance of the Assam Police Manual and as the charge against the petitioner had been proved, he being a memb er of a disciplined force, the penalty of dismissal was rightly imposed. The learned Counsel for the parties have reiterated the above co ntentions. The pleadings on record and the arguments advanced have been dul y analysed. Admittedly the disciplinary proceeding had been conducted in terms o f Rule 66 of the Assam Police Manual Part-III, which lays down the procedure pre scribed to administer the same. In terms of Rule 66(III) a charged officer is en titled to cross-examine the witnesses of the disciplinary authority apart from a dducing evidence in person and also to examine witnesses in support of his defen ce. A perusal of the records of the disciplinary proceeding reveals that as many as six witnesses have been examined by the disciplinary authority. Their record ed deposition does not disclose in clear terms that they were cross-examined by the petitioner. Though this plea was taken by the petitioner in his appeal, the same was considered and rejected by the disciplinary authority. A statement, how ever, has been made by the respondents in their affidavit that such an opportuni ty was granted to the petitioner. Noticeably the aforementioned pleaded stand of the respondents has remained uncontroverted in the instant proceeding. The reco rds reveal that the petitioner was present at the time when the witnesses of the disciplinary authority had been examined and that he had signed the proceedings without any reservation in this regard. In the above view of the matter, this c ontention of the petitioner does not appeal to this Court. Vis-à-vis the allegation of differential treatment, it transpire s from the report on the incident submitted by Sri Mukul Saikia, W/Commander, Ca mp-Dajungfa, Karbi Anglong, on 1/11/2001, that in course of the incident while H avilder Atul Hazarika did not fire a single round from his weapon and escaped fr om the place, Constable Amarendra Narzary failed to fight bravely with the milit ants. On the other hand, the petitioner handed his LMG to the extremists without offering any resistance. In view of the evidence in support of the charge, in t he opinion of this Court, the varying penalty vis-à-vis Atul Hazarika and Amaren dra Narzery compared to that of the petitioner does not per se vitiate the impug ned action. The petitioner admittedly at all relevant times was a member of the disciplined force and was indubitably so when in confrontation with the extr emists armed with an LMG. There is no evidence on record that there was any atte mpt made by him to retaliate against the firing by the extremists. This was more so as four of his teammates had fallen victim to their bullets. The disciplinar y authority being the best judge of the situation and more particularly the leve l and quality of dedication and devotion to service, this Court, in the teeth of the proved charge is not inclined to intervene in the exercise of its power of judicial review even on the penalty imposed. In this view of the matter, the pet ition is rejected. No costs.