WP(C) 3185/2008 BEFORE THE HON’BLE MRS JUSTICE ANIMA HAZARIKA Heard Mr. S Bora, learned counsel for the petitioner. Also heard Mr. S Das, learned State counsel for the respondents. 2. Invoking power under Article 226 of the Constitution of India, i nstant writ application has been filed by the petitioner praying for quashing th e impugned order dated 30.7.2001 (Annexure-III) passed by the Commandant, 7th A. P. Battalion, (for short ’APBn’) Charaikhola, Kokrajhar whereby the petitioner w as removed from service with immediate effect and the order dated 30.5.2003 (Ann exure-VII) passed by the Appellate Authority rejecting the appeal submitted by t he petitioner as well as the impugned judgment and order dated 11.5.2005 (Annexu re-VIII) passed by the Assam Administrative Tribunal, Guwahati in Appeal Case No .49 ATA/03. 3. The petitioner’s case in brief is narrated hereinbelow: The petitioner while working as Constable in 7th APBn at Charaik hola, on 16.4.2000, at about 6 pm, after finishing roll call went to the Athiaba ri Bazar taking due permission from the Platoon Commander alongwith Constable Kh agen Pachani. In the bazar they were informed by some people that their colleagu e Bakul Rabha, Constable No.623 developed affairs with one Rita Chetri, daughter of Smti. Dhanmaya Chetri and the ’Nepali’ people would not tolerate that. They took the petitioner and Sri Khagen Pachani to the house of Dhanmaya Chetri where in the petitioner and his colleague expressed their ignorance about the fact. Bu t the ’Nepali’ people gathered there started assaulting the petitioner and his c olleague. As a result of such assault, Khagen Pachani sustained head injury and started bleeding. However, the petitioner somehow managed to escape from the pla ce of occurrence and rushed to the camp. He informed his colleagues in the camp about the incident. After hearing about the incident, some constables of the cam p went to the bazar to save aforesaid Khagen Pachani from the clutch of the peop le. But when they proceeded to the spot, they found large crowd of ’Nepali’ comm unity were coming towards the camp in highly agitated mood. They started assault ing the people and in that process some people sustained injury. Later on, Dhan maya Chetri lodged an FIR at Serfunguri Police Station, which was registered as Serfunguri PS Case No.50/2000 under Sections 456/323/354/379/34 IPC. Pursuant to the Serfanguri PS Case No.50/2000, petitioner and the other constables were sus pended vide order dated 17.4.2000 issued by respondent No.3. But after submissio n of the show cause reply on 15.5.2000, the suspension order was vacated and the petitioner was allowed to resume duty vide order dated 21.5.2000. During the pe ndency of the criminal proceeding, the petitioner was served with a show cause n otice alongwith the statement of allegations in the departmental proceeding init iated against the petitioner by the department. The statement of allegations rea d as follows: STATEMENT OF ALLEGATION While Const.189 Kamal Baruah was on the posted strength of No.1 pln. dep loyed at Athiabari Bazar he involved in criminal misconduct in that he alongwith Const. 529 Khagen Pachani went out from the camp after evening Roll-call on 16. 4.2000 without obtaining the permission from P.C. of the platoon and went to the house of one Smti Dhanmaya Chetry, W/o Lt. Krishna Bah. Chetry of Athiabari Baz ar at around 6-40 p.m. On arrival at her house he and constable 529 Khagen Pacha ni had proposed to Smti Dhanmaya Chetry about the marriage of her daughter namel y Miss Rita Chetry age about 14 yrs. with another Constable of this platoon viz. Const.623 Bakul Rava but Smti Dhanmaya Chetry did not agree to the said proposa l. This caused an altercation between these two Constables and Smti Dhanmaya Che try. In the meantime, a group of Nepali youths of that locality intervened in th is matter and a scuffle took place wherein Const.529 Khagen Pachani was rounded up by the local people. C/N-189 Kamal Baruah could manage to escape from the sce ne and went to the camp to inform the matter. Once again Const.189 Kamal Baruah along with Const.468 Rajesh Ray return ed to the Athiabari Bazar with their issued ’303’ Rifle and ammunition without p rior permission from the P.C. of the platoon. Later on, Const.224 Rajek Ali and few other Constable of the same platoon also arrived to the PO. By this time con st.529 Khagen Pachani was also freed by the locals. He alongwith all the Bn pers onnel as mentioned above had jointly started vandalism and caused damage to the kutcha walls of few houses of Nepali people including the household articles. Th e following 4 Nepali persons were also assaulted by him and other constables cau sing bodily injury to them. 1) Shri Pushpa Bh. Chetry, 2) Shri Ram Bh. Newar, 3) Shri Kul Bh. Sonar, 4) Shri Hari Bh. Chetry. Therefore, he is charged with gross misconduct indiscipline act for creating van dalism in Athiabari market and causing bodily injury to the local people. 4. The petitioner after receipt of the statements of allegations af orementioned submitted his reply denying his involvement and requested the autho rity not to proceed with the departmental proceeding till disposal of the crimin al case registered as GR Case No.274/2000. However, the departmental proceeding was proceeded with, which as per the petitioner was in gross violation of princi ples of natural justice and the rules framed under Assam Services (Discipline an d Appeal) Rules, 1964 (’1964 Rules’ for short) as well as Police Act (Act V of 1 861) read with the Rules of Assam Police Manual, inasmuch as, mandatory provisio ns were not followed. The petitioner was neither heard nor allowed to defend his case; even he was not allowed to inspect the documents, produce his witness and also was not allowed to cross-examine the prosecution witnesses. The enquiry wa s completed without following mandatory provisions of rules and even the enquiry report was not furnished to the petitioner to make any representation against t he finding of the Enquiry Officer. Thereafter, the finding of the Enquiry Office r and the removal order dated 30.7.2001 were furnished together to the petitione r in utter disregard of the mandatory provisions of the aforesaid rules. The pet itioner was not given any scope to submit any reply/representation against the e nquiry report, which caused grave prejudice to the petitioner. 5. In the meanwhile, vide judgment and order dated 24.1.2002, petit ioner along with his other colleagues were acquitted by the learned Additional C hief Judicial Magistrate, Kokrajhar in GR Case No.274/2000 arising out of the Se rfanguri PS Case No.50/2000. It has been brought to the notice of this Court by the learned counsel appearing for the petitioner that the witnesses, who partici pated in the departmental proceeding and in the criminal trial, were substantial ly same set of persons. 6. Against the order of removal from service vide order dated 30.7. 2001 passed by the Disciplinary Authority, a statutory appeal under 1964 Rules w as taken to the Appellate Authority whereof violation of rules and natural justi ce in the disciplinary proceeding were averred in the memorandum of Appeal. It i s submitted that the Appellate Authority failed to consider the appeal as requir ed under the law. In the present case, while upholding the order of dismissal fr om service by the Disciplinary Authority, there is no indication in the appellat e order as to whether the Appellate Authority was satisfied that the procedure l aid down in the Rules had been complied with and if not, whether such non-compli ance has resulted in violation of any of the provisions of Rules or in failure o f justice. The Appellate Authority had also not given any finding on the crucial question as to whether the findings of the Disciplinary Authority were warrante d by the evidence on records. Learned counsel for the petitioner therefore submi tted that there being non-compliance with the requirements of Rules as provided under 1964 Rules, the impugned order passed by the Appellate Authority is liable to be set aside and quashed. 7. Being aggrieved with the order passed by the Appellate Authority while affirming the order of dismissal from service, the petitioner preferred a n appeal being appeal case No.49ATA/03 before the Assam Administrative Tribunal, Guwahati (’Tribunal’ for short). The said appeal was heard on 11.05.2005 by the learned Tribunal. The learned Tribunal while upholding both the initial order o f dismissal from service and the appellate order, did not consider the fact of n on-compliance of mandatory provisions of 1964 Rules by the Disciplinary Authorit y as well as Appellate Authority whereby the award of punishment of removal from service was inflicted and thus the petitioner’s further submission is that the Tribunal failed in its duty to give reasons which is also equally bad being in v iolation of fair play in action in the matter of disciplinary proceeding. Hence, the instant writ petition challenging the order dated 30.7.2001 passed by the D isciplinary Authority and affirmed by the Appellate Authority on 30.5.2003 inclu ding the order dated 11.5.2005 passed by the learned Assam Administrative Tribun al dismissing the appeal in Appeal Case No.49 ATA/03. 8. Mr. Bora, learned counsel for the petitioner submits that findin g of the Enquiry Officer on the basis of the evidence adduced cannot be sustaine d in law, inasmuch as, it was clearly revealed during the enquiry proceeding tha t it was the Platoon Commander, who failed to control the constables under his c harge and the charge of moving out of the camp without permission is not borne o ut from the evidence of the witnesses. Learned counsel further submits that it i s only to rescue a colleague who was being assaulted by a mob, one of their coll eague resorted to fire once in the air and this mitigating circumstance ought to have been noticed and considered by the Enquiry Officer. The learned counsel fu rther submits that order inflicting penalty is a very cryptic one without any di scussion as to the finding of the enquiry since the Disciplinary Authority had a lso taken note of the pendency of the criminal case at the time of passing of th e order of removal. The impugned order is, therefore, liable to be set aside si nce the delinquent petitioner has been acquitted subsequently in the criminal tr ial. It is further contended that punishment of removal in the face of the alleg ation is disproportionate to the charges. 9. Learned counsel for the petitioner has submitted that the learne d trial Court while passing the judgment and order dated 24.1.2002 has clearly s tated that considering the evidence adduced by the prosecution there is no evide nce to show that the accused persons committed offence as alleged in the FIR and on the basis of the evidence so adduced by the prosecution, learned court held that accused persons are not guilty of offence under Sections 456/323/354/379/34 IPC and acquitted them. Learned counsel for the petitioner would therefore urge that the criminal court considering the identical and similar facts and charges as well as was evidences adduced in the departmental enquiry acquitted the peti tioner. Therefore, it would be unjust and oppressive on the part of the authorit y to accept the finding of guilt recorded by the Enquiry Officer because of clea n acquittal given by the criminal court. Therefore, urged Mr. Bora that the inte rference by this Court is called for, inasmuch as, similarly situated person has been considered by the court after perusal of the record produced by the State counsel. 10. Mr. Das, learned State counsel appearing for the respondent, on the other hand, supporting the order of removal has submitted that a detail affi davit-in-opposition has been filed by respondent No.3 wherein it has been specif ically contended that the petitioner was allowed sufficient opportunities to def end himself during the course of the enquiry. It has also been contended therein that there is no bar under the law to initiate and proceed with the departmenta l enquiry during the pendency of the criminal case. It is also denied that the r espondent authority completed the departmental enquiry without observing the pro per procedure as laid down under the Rules, rather all the Rules were strictly a dhered to and reasonable opportunities were given to the delinquent constable to defend himself during the enquiry. The learned State counsel has also produced the record of the case. 11. Heard the learned counsel appearing for the parties at length. A lso perused the materials available on record. In the present case, in hand, it is noticed that the delinquent constable rushed out of the camp to rescue a coll eague, who was assaulted by a mob and one of his colleague fired once in the air to disperse the mob. None amongst the gathering had suffered gun shot injury. I t is also noticed that there is no finding with regard to the charge that the co nstables went out of the camp without permission. More so, PW-1 has clearly stat ed that the Platoon Commander was at fault as he was unable to control the const ables under his command. The penalty order of removal was issued without any dis cussion on the finding of the enquiry given by the Enquiry Officer. There is no discussion on the mitigating circumstances and the conduct of the writ petitione r, who went out of the camp to rescue a colleague from the clutches of a mob. A ny reasonable person might have done the same as has been done by the petitioner and this material fact was not considered and/or discussed by the Disciplinary Authority while imposing the penalty vide order dated 30.7.2001. 12. It is also seen that in the criminal prosecution initiated on th e same set of facts and on similar charges, the petitioner and the other accused were acquitted by the criminal court on 24.1.2002 after discussing the evidence in detail. The learned trial Court while acquitting the petitioner has specific ally stated that there is no evidence to show that the accused persons committed the offence as alleged in the FIR. Learned counsel for the petitioner placed re liance on a decision of the Apex Court in GM Tank -vs- State of Gujrat and Ors, reported in (2006) 5 SCC 446 wherein at para 30 it was held as follows: &............The same witnesses were examined in the criminal case and the crim inal court on the examination came to the conclusion that the prosecution has no t proved the guilt alleged against the appellant beyond any reasonable doubt and acquitted the appellant by its judicial pronouncement with the finding that the charge has not been proved. It is also to be noticed that the judicial pronounc ement was made after a regular trial and on hot contest. Under these circumstanc es, it would be unjust and unfair and rather oppressive to allow the findings recorded in the departmental proceeding to stand. I have gone though the decision referred to hereinabove. It appe ars that the present case is squarely covered by the decision rendered by the Ap ex Court in GM Tank (supra). Mr. Bora has submitted that in case of Rajesh Roy, who was also a constable and was accompanied by the petitioner to set their coll eague Khagen Pachani free from the clutches of the mob and said Rajesh Roy fired a gun shot in the air and vide judgment and order dated 14.3.2008 passed in WP( C) No.4181/2002 this Court has set aside the order of removal of said Rajesh Roy and the petitioner being similarly situated deserves similar treatment. In this regard, Mr. Bora has placed reliance to the decision rendered by the Apex Court in Lt. Governor of Delhi and others -vs- Dharampal and others, reported in (199 0) 4 SCC 13 wherein the Apex Court granted similar relief to the appellants, gra nted earlier to their colleagues, by holding that they being similarly situated with identical claim they also deserve the same relief and passed order of reins tatement accordingly by allowing the appeal. 13. In the present case in hand, it must also be noticed that consid ering the nature of the charge, order of penalty also appears to be unduly harsh as the mitigating circumstances have not been considered by the authority. Cons idering the facts and circumstances of the case and also the decisions cited her einabove, I am of the opinion that proceeding leading to infliction of the impug ned penalty is vitiated for not following the Rules under the 1964 Rules and als o for not providing a copy of enquiry report to the petitioner, so as to enable him to make an effective representation. The same has thus caused grave injustic e to the petitioner. 14. In view of the above discussion and considering the facts and ci rcumstances of the case, prayer made in the writ petition is allowed. The order of removal dated 30.7.2001 passed against the writ petitioner by the Disciplinar y Authority, order dated 30.5.2003 passed by the Appellate Authority and the ord er dated 11.5.2005 passed by the Tribunal are set aside and quashed. The petitio ner is ordered to be re-instated in service. 15. It is, however, made clear that since the petitioner had not ren dered any service pursuant to the order of removal, it may not be justified in t he facts and circumstances of the case to order payment of his entire back wages . In the circumstances, it is left to the discretion of the authorities to decid e the appropriate quantum of back wages payable to the petitioner for the period in which he remained out of service. The authority shall pass necessary order a s per relevant Rules applicable in this case. 16. Considering the facts and circumstances of the case, there shall be no order as to cost.