WP(C) 4648/2003 BEFORE THE HON’BLE MR JUSTICE B. K. SHARMA JUDGEMENT AND ORDER (ORAL) Heard Mr. K.K. Phukan, learned counsel for the petitioner as well as Mr. D.Barua, learned CGC for the respondents. 2. The petitioner, while was serving as Constable in the Central Industrial Security Force (for short CISF), was served with the Memorandum of Charge Sheet dated 16.5.2000 levelling the following charges :- Article of charge-I That No. 934610072 Constable L.R. Tai of CISF Unit, IOC Guwahati having already a spouse living, developed immoral relations with an unmarried woman named Smt. Anu Bora claiming her to be his wife and stayed with her in a hired accommodatio n of Smt. Lata Barman in Jaya Nagar near Kali Mandir Noonmati from Nov 1999 to F eb 2000. In doing so, No. 934610072 Constable L.R. Tai failed to maintain a resp onsible and decent standard of conduct in his private life besides bringing disc redit to his service through his misdemeanour. This misconduct is violative of R ule 3 & 21 of CCS (Conduct) Rules, 1964. Thus, the above act on the part of abov e named individual tantamounts to gross misconduct, indiscipline, violation of r ules and unbecoming of a member of the Force. Article of charge-II That No. 934610072 Constable L.R. Tai of CISF Unit, IOC, Guwahati who was grante d outliving permission with HRA with effect from Nov 1999, started staying in a Coy Barrack with effect from 15.02.2000 at his own volition and continued to cla im HRA from Feb 2000 till date deliberately defrauding the department. Thus, the above act on the part of above named individual tantamounts to gross misconduct , indiscipline, violation of rules and regulations and unbecoming of a member of the Force. 3. In response to the said charge sheet, the petitioner submitted his writt en statement of defence dated 23.5.2000 denying the charges. As regard the charg e No.II, it was stated that there was some mistake on his part in not informing the authority about his living in the Coy Barrack w.e.f. 15.2.2000, because of w hich he had received HRA for two months i.e. for the months of March and April, 2000. However, the required information was furnished in the month of April, 200 0. Accordingly, in the written statement, the petitioner volunteered to refund t he amount pertaining to HRA which he had drawn for two months. 4. As regards the charge No.I, it was his plea that he used to say in a hir ed accommodation belonging to one Shri A. Rahman and there after he shifted to a nother rented accommodation belonging to Smt. Lata Barman. He used to stay there along with his wife, 3 sons and 1 daughter. According to the petitioner, the pa rticular lady with him the charge of maintaining illicit relationship was levele d was known to him from her childhood being the resident of the same locality an d being a known person, she used to come to his house and stay there extending h elping hands to his wife. The petitioner denied having any illicit relationship with the said lady. 5. In due course, the disciplinary authority ordered for a departmental enq uiry in which the Disciplinary Authority examined 10(ten) witnesses. The petitio ner examined himself. On conclusion of the enquiry, the Inquiry Officer by his E nquiry Report dated 26.9.2000 held that both the charges leveled against the pet itioner had been established. Thereafter, the disciplinary authority by his impu gned order dated 30.10.2000 (Annexure-VI) imposed on the petitioner, the penalty of removal from service with immediate effect. Being aggrieved, the petitioner preferred an appeal which was also dismissed by Annexure-VII order dated 19.7.20 01. Thereafter, the petitioner approached this Court by filling the instant writ petition. 6. Mr. K.K. Phukan, learned counsel for the petitioner submits that the cha rge against the petitioner of maintaining illicit relationship with the particul ar lady having not been established in the enquiry, the extreme penalty of remov al from service could not have been imposed. In this connection, he has exclusiv ely referred to the evidence on record. As regard the charge of illegal drawal o f HRA, he submits that while it is true that the petitioner had drawn HRA for tw o months but at the same time, it is also an admitted fact that it is the petiti oner, who had himself apprised the authority about shifting to barrack disentitl ing him to HRA. Referring to the plea of the petitioner that it was an inadverte nt mistake on the part of the petitioner, Mr. Phukan, learned counsel for the pe titioner submits that by the said written statement, the petitioner had also vol unteered for returning the HRA he had drawn for two months. Be it stated here th at the amount in question has already been recovered from the petitioner. 7. Mr. D. Barua, learned CGC, on the other hand submits that the petitioner having maintained an illicit relationship with another lady during the subsiste nce of his earlier marriage with 3 (three) sons and 1 (one) daughter, he was rig htly taken up for a departmental proceeding and when it was found that the charg e of maintaining illicit relationship with another lady had been established, th e disciplinary authority rightly imposed the penalty of removal from service, ke eping in mind that the petitioner belonged to a disciplined force. As regard the charge of illegal drawal of HRA, he submits that it was incumbent on the part o f the petitioner not to draw HRA as he was not entitle to the same. He submits t hat such drawal on the part of the petitioner was unbecoming of a member of the disciplined force and consequently the disciplinary authority on the basis of th e materials, held that both the charges had been established against the petitio ner and consequently imposed the penalty of removal from service. 8. I have considered the rival submissions made by the learned counsel for the parties and the entire materials on record including the departmental procee ding file which has been produced by Mr. D. Barua, learned CGC. 9. As regard the charge No.2 of deliberately defrauding the department by c laiming HRA for two months, the explanation furnished by the petitioner in his w ritten statement has been notice above. In the written statement, the petitioner had admitted that he started living in the Barrack w.e.f. 15.2.2000 but the sam e was not intimated to the authority immediately, as a consequence of which he h ad been granted HRA for two months i.e. March and April, 2000. However, the fact remains that the petitioner himself reported the matter of his shifting to the barrack w.e.f 15.2.2000, as a consequence of which, payment of HRA was stopped from May, 2000. The intimation was furnished by the petitioner in the month of A pril, 2000. In addition, the petitioner also volunteered for refund of the HRA h e had drawn for the aforesaid two months. 10. It is not a case of defrauding the department per se with continued draw al of HRA illegally. He was required to inform the authority upon his shifting t o the barrack on 15.2.2000 but instead the intimation was furnished in April, 20 00. If only this charge of negligence and / or misconduct is attributed to the p etitioner and said to have been established and the other charge of maintaining illicit relationship with a lady is left aside, the question necessarily will ar ise as to whether such negligence and / or misconduct would attract the extreme penalty of removal from service. This aspect of the matter will have to be consi dered in the light of the findings to be arrived at in respect of charge No.1. 11. As noted above, the disciplinary authority examined 10(ten) witnesses wh ile the petitioner examined himself. Witness No.10 is the lady with whom the pet itioner allegedly maintained illicit relationship. Witness No.11 is the petition er. In their respective depositions, they have made contradictory statements. Wh ile the witness No. 10 i.e. the lady, in her deposition maintained that the peti tioner had married her in a particular temple and thereafter used to live with h im as husband and wife, the petitioner in his deposition stated that there was n o illicit relationship with the lady and that she being known to his family from her childhood, she used to come to his house and render helping hands to his wi fe. 12. Witness No. 1, 2, 3, 4 & 5 in their depositions basically dealt with the position relating to stay of the petitioner in the rented accommodation and the reafter in the barrack. They also stated in their depositions that in the month of March, 2000, one unknown lady met the petitioner in the particular hospital a nd that though the lady had told them that she was married with the petitioner b ut they informed the lady that the petitioner was already a married person. Wit ness No.4 in his deposition stated about meeting the lady in the month of March, 2000 who allegedly enquired about the petitioner. 13. From the above depositions, nothing is established in respect of the cha rge of maintaining an illicit /immoral relationship with a lady. Merely because the witnesses had met the particular lady who enquired about the petitioner, the same by itself cannot lead to the inference that the petitioner had an illicit/ immoral relationship with that particular lady. 14. Mr. D. Barua, learned CGC has emphasized on the depositions made by the other witnesses so as to contend that from their depositions, an inference can b e drawn that the petitioner used to live with the lady as husband and wife and t hereby maintained an illicit relationship with the lady, although he was already a married person. 15. Witness No. 6, Smt. Kalpana Kalita in her deposition stated that the pa rticular lady had told her that she had married the petitioner and that she had seen both of them together. She in her deposition further stated about furnishin g of information by the lady to her that they got married at Basistha Temple. Th us, this witness in her deposition did not state anything that can said to be fr om her own knowledge. Whatever, she had stated was the information allegedly fur nished to her by the lady. From her statement, the charge of maintaining illicit relationship with the particular lady is also not established. 16. Witness No. 7, Smt. Sita Talukdar, is also a reported witness, who in he r deposition stated the version of the particular lady that she had married the petitioner in a temple by exchanging garlands. This witness of her own did not n otice anything, but stated in the enquiry proceeding whatever was allegedly divu lged to her by the lady. 17. Witness No. 8, Smt. Lata Barman, is the land lady, in whose house the pe titioner stayed for a while. She in her deposition stated that the petitioner us ed to live in her rented house along with the lady. In between, the petitioner’s two sons came and stayed along with them. After 3 (three) days, one of the sons left and a week thereafter, the wife of the petitioner along with their daughte r came to the rented house and took the petitioner back to their native place. I nterestingly, this witness in her deposition stated about casual furnishing of i nformation by the lady to her that she had married the petitioner. 18. The question that necessarily arises for consideration is as to whether the statement of Smt. Lata Barman will go to establish that the petitioner had m aintained an illicit relationship with the lady. While it is true that this witn ess in her deposition stated about the petitioners staying with the lady but the same will also have to be considered in the touch stone of the deposition made by the petitioner, which could not be dislodged in the cross examination (in fac t, no cross examination was made) that the particular lady was known to him from his childhood and that he used to render help to his wife. He also stated in hi s deposition that the lady used to come to his house in presence of his wife and other family members. Another important aspect of the matter is that the witnes s in her deposition stated about furnishing of only casual information by the l ady that she had married the petitioner. This aspect of the matter will also hav e to be considered in the perspective of there being no charge of entering into another marital tie during the subsistence of the first marriage. 19. Witness No. 9, Smt. Tarulata Nath, in her deposition stated about furnis hing of information by the lady to her that she had married the petitioner. Thus , there is not a single witness examined by the disciplinary authority, who had any first hand knowledge of maintaining illicit relationship with the lady by th e petitioner. If we carefully consider the statements of these witnesses, at bes t the fact of petitioner’s meeting the lady or the lady coming to his house, is only established. But there is absolutely nothing to indicate that the petitione r had maintained an illicit / immoral relationship with the lady. 20. Witness No.10, is the lady, who in her deposition stated about her marri age with the petitioner in the particular temple by offering garlands, about whi ch other witnesses referred to above had also stated in their depositions. Howev er, those statements are not on the basis of their first hand information but ar e only based on the information allegedly furnished by the lady. If a marriage r eally took place, it is hard to believe that no witnesses and / or well wishers were present in the marriage, who could have deposed that the marriage, in fact, took place. It would not be safe to believe the lady’s version that her marriag e with the petitioner took place in the particular temple. It is in this context , Mr. Phukan, learned counsel for the petitioner has submitted that if a marriag e really took place, the disciplinary authority could have easily established th e same by examining the relevant witnesses including the person who performed th e marriage. 21. On being asked as to whether the disciplinary authority should believe t he version of the lady alone and not the version of the petitioner, Mr. D. Barua , learned CGC fairly admits that while appreciating the evidence, both the versi ons will have to be considered. However, he submits that if the lady’s version i s considered in the light of the depositions made by the other witnesses, the fa ct that the petitioner had been living with her in a rented house, is clearly es tablished, which will go to show that the petitioner had maintained an illicit r elationship with the lady. 22. According to the petitioner, the particular lady was known to him from h is childhood as they belong to the same place. It is also his version that she u sed to come to his house and offer helping hands to his wife. He in his depositi on categorically denied that he had maintained an illicit relationship with the lady and that he had ever married her. As noted above, the statement made by the petitioner went unrefuted in absence of any cross examination. 23. As regards the statement of the lady (witness No.10), she was put to cro ss examination by the petitioner. When she was asked as to why she did not discl ose to anybody about her alleged marriage with the petitioner, her reply was tha t she was asked not to disclose the same by the petitioner but on being pointed out that the marriage could be recognized even otherwise also on the basis of Ve rmillion, which was allegedly put in her forehead, there was no explanation. In the particular question as to whether she could prove that the petitioner had br ought her to the particular rented house, the reply of the lady was in the negat ive. However, she stated that she was brought from her native place. As regards her alleged pregnancy etc, she in his cross examination stated that she had no d ocuments to prove the termination of pregnancy. When she was asked to as to whet her she had made any enquiry to know about the petitioner, her reply was in a ne gative. However, she stated that she was informed by the petitioner that he was a member of the CISF and was a bachelor. 24. From the above evidence, it cannot be said that the 1st charge against t he petitioner of maintaining illicit relationship with the particular lady is es tablished. 25. Mr. D. Barua, learned CGC, during the course of argument, submitted that the writ Court exercising its power of judicial review under Article 226 of the Constitution of India, cannot sit on appeal over the findings recorded by the I nquiry Officer and the Disciplinary Authority. He also submitted that the writ C ourt would be reluctant to make a scrutiny of the evidence on record. However, w hen the plea of the petitioner and the arguments advances by Mr. Phukan, learned counsel for the petitioner are that, it is a case of no evidence and / or a cas e of perverse finding, the same will have to be appreciated in reference to the evidence. While doing so, what is found is that it is a case of no evidence to e stablish the charge No.1 against the petitioner. To that extent, the findings of the Inquiry Officer is a perverse finding. 26. If it is held that the charge No.1 against the petitioner has not been e stablished and the charge No.2 has been established to the extent indicated, the question necessarily arise is as to whether for establishing the charge No.2 to the extent indicated above, the petitioner should be meted out with extreme pen alty of removal from service. Although, normally such matters are to be left to the discretion of the disciplinary authority to decide for imposition of anothe r penalty but considering the fact that the petitioner was removed from service about 11 years back, I am of the considered opinion that the matter needs to be given a finality here itself instead of remanding the matter back to the discipl inary authority for imposition of a suitable penalty, on the basis of the charge No.2 which has been established to the extent indicated above. 27. Considering the matter in its entirety and having regard to the extent o f misconduct on the part of the petitioner in respect of the charge No.2, I am o f the considered opinion that the ends of justice would be met if a penalty of s toppage of 2 (two) increments without cumulative effect is imposed on the petiti oner in substitution of penalty of removal from service imposed vide the impugne d order dated 30.10.2000 (Annexure-VI) and affirmed by the appellate authority v ide Annexure-VIII order dated 19.7.2001. To that extent, the impugned orders sta nd set aside and quashed. 28. Upon setting aside the order of removal from service with the imposition of penalty of stoppage of two increments from the date of imposition of the ord er of penalty of removal from service i.e. 30.10.2000, the petitioner shall now be reinstated in service maintaining continuity in service for all the purposes other than any back wages. The petitioner being out of employment from the date of imposition of penalty of removal from service and considering the matter in i ts entirety including the fact that he has been imposed with the penalty of stop page of two increments for the omission attributed to the charge No.2, the petit ioner would not be entitled to any back wages for the period of absence. 29. Now, the Disciplinary Authority shall pass appropriate order consistentl y with the findings and directions made above. Let the order be passed as expedi tiously as possible, but in any rate, not later than one month. 30. Writ petition is allowed to the extent indicated above. There shall be n o order as to costs.