WP(C) 2868/2004 BEFORE HON’BLE MR. JUSTICE B.K. SHARMA 1. The petitioner who was removed from service pursuant to a depart mental proceeding has filed this writ petition challenging the order of removal from service and the subsequent appellate order and revisional order upholding the said order of removal from service. 2. The petitioner while was serving as Constable in the CISF and posted in CISF Unit in OIL, Duliajan was served with memorandum of charge sheet dated 10.0 8.2001 levelling the following charges: Article -I That said No. 922332843 Constable R.P. Menna of CISF Unit OIL Duliajan h as exhibited gross misconduct, indiscipline and willful breach of Rules and regu lations in that which he was posted at Moran contingent indulged himself in quar rel with No. 944500349 Constable A.T. Banerjee, in coy Office and later scuffled with his senior No. 732310493 HC/GD M.K. Panda in front of Unit Quarter Guard o n 30.07.2002 at about 1130 hrs. Hence this charge. Article -II That the aforesaid No. 922332843 Constable R.P. Meena while posted at Mo ran Contingent has exhibited gross misconduct and indiscipline, act of insubordi nation in that, he remained absent at 1600 hrs at Game Parade and Evening Roll C all at 1800 hrs on 30.07.2002. Further he misbehaved with Dy. Commandant, CISF ( Sector Commander) Moran Sector during surprise check Roll Call at 2215 hrs. on 3 0.07.2002 in presence of others. Hence the charge. Article -III That No. 922332843 Constable R.P. Meena has exhibited gross misconduct, act high ly prejudicial to discipline and reputation of the Force conduct unbecoming a me mber of the Armed Force in that he left the Unit line on 31.07.2002 without perm ission from any Competent Authority. Later at about 1535 hrs. on 31.07.2002 he c reated nuisance at public place for which he was arrested by local police and ta ken at Police custody by Officer-in-Charge, Demow Police Station, Sivasagar. Article -IV That the aforesaid No. 922332843 Constable R.P. Meena persistently maintaining b ad records of service in that he has been awarded 07 (seven) statutory penalties during the service and developed incorrigible habit of committing various indis cipline activities. To the contrary he has committed more serious misconduct at mentioned in Article I to III. 3. Alongwith the said charge sheet a statement of imputation of misconduct and misbehaviour in support of the Articles of charges was also enclosed. For a ready reference, the said statement is also reproduced below. STATEMENT OF IMPUTATIONS OF MISCONDUCT OF MISBEHAVIOUR IN SUPPORT OF ARTICLES O F CHARGES FRAMED AGAINST NO. 922332843 CONSTABLE R.P. MEENA OF CISF UNIT OIL DUL IAJAN (ASSAM) Article -I That the aforesaid No. 922332843 Constable R.P. Meena of CISF Unit OIL Duliajan while posted at Moran Contingent has exhibited gross misconduct in that the indu lged himself in hot arguments which Copy writtern Constable A.T. Banerjee and qu arreled with him unnecessarily on the issue of forwarding his application of TA /DA claim. On being heard the loud noise, No. 732310493 Head Constable M.K. Pand a arrised there and intervened in the matter to solve the problem by saying if h e had any problem he could put forward his problem to Coy Commander or Sector Co mmander. On this, Constable R.P. Meena got provoked and caught hold the collar o f uniform of HC/GD M.K. Panda and later scuffled with HC/GD M.K. Panda in front of quarter guard in presence of No. 814510281 HC/GD Madan Lal and No. 944501153 Constable D.N. Yadav. Later HC/GD M.K. Panda managed to escape by any means from the grip of Const. R.P. Meena and went towards Coy Office. The above act on the part of No. 922332843 Constable R.P. Meena constitutes gros s misconduct, indiscipline and willful breach of Rules & regulation of the Force . Hence the charge. Article-II That aforesaid No. 922332843 Constable R.P. Meena of CISF Unit OIL Duliajan whi le deployed at Moran contingent exhibited gross misconduct in that he failed to make himself present during Game Parade at 1600 hrs and thereafter in evening Ro ll Call held at 1800 hrs on 30.07.2002 without prior permission from or intimati on of Competent Authority and remained absent unauthorizedly. Further while brie fing/checking Roll /call was being conducted by Dy. Commandant CISF Moran at abo ut 2215 hrs on 30.07.2002, he unnecessarily indulged himself in argument and fur ther misbehaved with Dy. Commandant. Reports to the above incidents have been re gistered in the General Diary of Moran Sector. The above act on the part of No. 922332843 Constable R.P. Meena amounts to gross misconduct, indiscipline and an act of insubordination. Hence the charge. Article-III That aforesaid No. 922332843 Constable R.P. Meena has exhibited gross mi sconduct in that he left the Unit line on 31.07.2002 without any permission from and intimation to the Competent Authority. Later at about 1535 hrs. on 31.07.20 02, he created nuisance in the public place under the influence of liquor. In or der to tackle the situation, Officer in-Charge of Police Station Demow Police St ation arrested him while he was found creating nuisance in a drunken state. At a bout 1955 hrs. a telephonic message was received from police station at CISF Con trol room, Moran to the effect that Constable R.P. Meena has been kept under Pol ice Custody, on the basis of complaint lodged by public. Officer in-charge, Demo w Police Station referred Cosntable R.P. Meena to PHC Demow for medical examinat ion wherein Doctor found him under intoxication of alcohol. He was thereafter re leased from police station on the written request made by Coy. Commander, CISF M oran Sector and brought to the Sector Line CISF under escort. The above act on the part of No. 922332843 Constable R.P. Meena accounts to gross misconduct, act highly prejudicial to discipline and reputation of the Force and conduct unbecoming a member of Force. Hence the charge. Article IV That the afodresaid No. 922332843 Constable R.P. Meena has been keeping persistently bad record of service and he has been awarded 07 (seven) statutory punishments during his service in the past for various acts of indiscipline as u nder: 1) Withholding of next increment for a period of one year without cumulati ve effect for misbehaviour and assault to Constable Suresh Kumar on 18.12.1995, vide order dated 08.02.1996 of Asstt. Commandant, CISF DSP Durgapur. 2) Three days pay fine for creating nuisance his ’A’ shift duty on 06.02. 1996, vide order dated 27/29-04-1996 Asstt. Commandant, CISF Unit DSP Durgapur. 3) Censure for misbehaviour with a civil lady namely Shila during his ’B’ shift duty at hospital gate on 06.01.1996 vide order dated 27/29-04-1996 of Ast t. Commandant, CISF Unit DSP Durgapur. 4) Withholding of one increment for a period of one year without cumulativ e effect for leaving the Unit line on 31.12.1995/ 01.01.1996 without any permis sion or information of the Competent Authority and abusing local Police at Jhari a in intoxicated condition of liquor and for the same offence police kept him un der their custody vide order dated 27/29-04-1996 of Asstt. Commandant, CISF Unit DSP Durgapur. 5) Withholding of one increment for one year without cumulative effect fo r absent from his duty post and misbehaved with a lady in market vide order date d 21.10.1997 of Commandant, CISF Unit, IISCO Burnpur. 6) Withholding of one increment for a period of one year without cumulati ve effect for violating Rule & regulations and Discipline of the Force vide orde r dated 10.04.1998 of Asstt. Commandant IISCO Burnpur. 7) Censure for indulging himself in quarrel with Constable Bimal Sherpa o n 29.05.2002 vide order dated 15.06.2001 of Asstt. Commdant IISCO Burpur. Thus in spite of getting number of punishments and repeated opportunities to men d his conduct and discipline, he has utterly failed to show any improvement and has rather developed incorrigible havit of committing acts of indiscipline which is highly unbecoming of a member of Armed Force of Union of India. Hence , the charges. 4. After issuance of the charge sheet, the petitioner by his written statem ent dated 24.08.2002 denied the charges and pleaded complete exoneration from t he same. 5. The disciplinary authority being not satisfied with the written statemen t of defence, held an enquiry by appointing an enquiry officer. In the enquiry the witnesses were examined and certain documents were also exhibited. On conclu sion of the enquiry, the enquiry officer by his report dated 29.10.02 recorded the findings as follows Findings: Based upon the statements deposed and the evidences adduced during the course of Enquiry, I the undersigned is in the opinion that the charge framed against CIS F No. 922332843 Const. R.P. Menna of CISF Unit OIL Duliajan Assam mentioned in t he Article 1 in which Ct. Meena intended to indulge himself in quarrel with No. 944500349 Const. AT Banerjee in the Coy Office and later scuffled with his senio r No. 732310493 H/C MK Panda in front of Quarter Guard at Moran No. 30.07.2002 i s proved. That Const. R.P. Meen remained absent of Evening Roll Call at 1800 hrs o n 30.07.2002 and further misbehaved with the Dy. Comdt./ Moran during surprise r oll call at 2215 hrs. on 30.07.2002 mentioned in Article II except the particula r portion of absent from game parade is proved. That Const. R.P. Meena left Unit lien on 31.07.2002 without permission f rom any competent authority and later at about 1545 hrs on 31.07.2002 been detai ned at Demow P.S. on the charge at creating nuisance in the public under intoxic ated condition at liquor motioned in the article III is proved. That Conts. R.P. Meena, persistently maintaining a bad records of servi ce in that he has been awarded seven statutory penalties during the service life and developed incorrigible habits of committing various indiscipline activity to the contrary he has committed more serious misconduct as mentioned in Article IV is proved. 6. If we go by the components of the four charges levelled against the pe titioner, they can be identified as follows: Article I i) Indulging in quarrel with constable AT Banerjee in Copy office ii) Later on indulged in scuffle with his senior H/C GD M.K. Panda on 30.07.2002 at about 1130 hrs. Article II i) The petitioner while was posted at Moran contingent committed gross misconduc t, act of insubordination by remaining absent at 1600 hrs at Game parade and eve ning Roll Call at 1800 hrs on 30.07.2002. ii) Further he also misbehaved with Deputy Commandant, CISF, Moran during surpri se check Roll Call at 2015 hrs on 30.07.2002 in presence of others. Article-III i) The petitioner exhibited gross misconduct, acted in a manner highly prejucial to the discipline and reputation of the force and conducted himself which was u nbecoming of a member of Armed Force inasmuch he left the Unit line on 13.07.200 2 without permission from the competent authority. ii) Later on at about 1535 hrs. of the same date, he created nuisance at public place for which he was arrested by local police and taken to police custody by o fficer in-Charge of Demow Police Station, Sivsagar. Article-IV i) The petitioner persistently maintained bad records of service inasmuch as dur ing his service carrier he was imposed with 7 (seven) penalties. ii) The petitioner developed incorrigible habit of committing various indiscipli ned activities and committed serious misconduct as indicated in Article of Charg es- I, II and III. 7. The enquiry officer in his report dated 29.10.2002 held the Article of C harge -I to have been proved. So far as the Article of Charge-II is concerned, s ame is said to have been established except the component of charge relating to absence from Game parade. As regards the Article of Charge -III and IV, the enq uiry officer held the petitioner guilty of the same. 8. The petitioner was furnished with the copy of the enquiry report giving him the opportunity to make representation against the same. Accordingly, the pe titioner made his Annexure-IV representation. 9. The disciplinary authority in consideration of the enquiry report, repre sentation and the evidence on record, passed the Annexure-V final order dated 31 .12.2002 imposing the penalty of removal from service. Being aggrieved, the peti tioner preferred an appeal which was also dismissed by Annexure-VI appellate ord er dated 04.04.2003. Thereafter the petitioner preferred the revision petition b efore the departmental revisional authority which was also rejected by Annexure- VII revisonal order dated 18.07.2003. Hence, this writ petition. 10. According to the petitioner, the charges levelled against him could not have been held to be established by the enquiry officer on the basis of the evid ence adduced during the enquiry proceeding. It is the case of the petitioner th at on a scrutiny of the evidence, there is nothing to show that the charges leve lled against the petitioner have been established. Another contention advanced b y the petitioner is that the authority while imposing the penalty of removal fro m service ought not have taken into consideration the Article of Charge -IV inas much as the petitioner had already been imposed with penalties as enumerated in the said Article of Charge. 11. The respondents have filed their counter affidavit denying the contentio ns raised in the writ petition. It has been stated in the affidavit that the en quiry was conducted following the procedure and the principles involved in condu cting the departmental proceeding and that the petitioner was provided with all reasonable opportunity of being heard. It has been contended that the authoritie s having held the petitioner guilty of the charges on the basis of which the pen alty of removal from service was imposed, the writ court exercising the power of judicial review under Article 226 of the Constitution of India will not sit on appeal over such findings and/or reappreciate the evidence like an appellate cou rt. 12. I have heard Mr. D. Senapati, learned counsel for the petitioner as well as Mr. R. Sarma, learned Asstt. S.G.I. Mr. Senapati referring to the findings r ecorded in the enquiry report and the evidence on record, has submitted that the said findings on the face of it is perverse and based on no evidence at all. Ac cording to him none of the charges have been established and thus, the disciplin ary authority could not have imposed the penalty of removal from service on the basis of the said evidence on record. In this connection he has specifically ref erred to the observation made by the enquiry officer under head Discussion/ Anal ysis and Assessment of the Evidences. 13. Countering the above argument, Mr. R. Sarma, learned Asstt. S.G.I. submi ts that in a departmental proceeding the charges are not required to be establis hed applying the principle of criminal law, but what is required to be establish ed is the preponderance of probability. According to him, the evidences and the materials on the basis of which a definite opinion can be formed, the disciplina ry authority rightly imposed the penalty of removal from service. Emphasizing t he discipline in the disciplined Force like CISF and referring to the earlier pe nalties imposed on the petitioner, Mr. Mr. R. Sarma submits that the petitioner during his 10 (ten) years service career was imposed with 7 (seven) penalties. H e further submits that under the circumstances, the disciplinary authority righ tly came to the conclusion that the petitioner is not a fit person to be retaine d in service and accordingly imposed with the penalty of removal from service wh ich is not required to be interfered with by the writ court by exercising the po wer of judicial review. 14. I have considered the submissions made by the learned counsel for the pa rties and the materials on record. I have also gone through the entire disciplin ary proceeding file including the evidences on record. The various components of the four charges levelled against the petitioner have been noted above. As rega rds the first component in the Article of Charge-I, the enquiry officer has held that the petitioner had intended to indulge himself in quarrel with another con stable, namely Shri A.T. Banerjee. The charge was to the effect that the petitio ner indulged himself in quarrel with constable Banerjee. On the other hand the f indings recorded by the enquiry officer is that the petitioner had intended to i ndulge himself in quarrel. Intention to indulge in quarrel and the actual engage ment in quarrel are two definite and different things. There being no finding to the effect that in fact the petitioner indulged in quarrel with constable AT Ba nerjee, I am of the considered opinion that the enquiry officer could not have h eld the petitioner guilty of both the components of the Article of Charge-I. As regards the second component of Charge -II, the enquiry officer held the petitio ner guilty of the same. 15. Learned counsel for the petitioner upon reference to the evidence on rec ord, has submitted that there being no evidence of scuffle between the petitione r and the H/C M.K. Panda, the enquiry officer could not have held the petitioner guilty of the second component of the charge. On perusal of the entire eviden ce on record, what I find is that there was scuffle like situation with H/C M.K . Panda. It is in the evidence that the petitioner spoke to M.K. Panda in a ver y loud voice using unparliamentary words and threw the register on the table. T he scuffle was preceded by gesture shown by the petitioner to pick up quarrel w ith constable AT Banerjee. However, as stated above, no such quarrel took place inasmuch as in the meantime H/C M.K. Panda arrived at the spot to sort out the dispute. The evidence has disclosed that the petitioner reacted adversely on fu rnishing reply to his superior H/C Panda. This particular incident has been des cribed as scuffle in the second component of the Charge-I. 16. As regards the first component of Charge-II, the enquiry officer on the basis of the evidence on record, has held that the same was not established, how ever, the second component, i.e. absence in the evening Roll Call without prior permission and during the check Roll Call the petitioner unnecessarily indulged himself in argument with Deputy Commandant, it is in the evidence that during th e check Roll Call the petitioner indulged himself in argument with the Deputy Co mmandant by stating that when his superior authority could not do anything, the Deputy Commandant was nothing to him. He also scolded the Deputy Commandant by saying that he would drag him to the Supreme Court. Thus, it is established that there was misbehaviour on his part towards Deputy Commandant. 17. So far as the Article of Charge-III is concerned, it is an admitted posi tion that he went out of the Unit without any permission from the competent auth ority. However, learned counsel for the petitioner submits that the petitioner had taken oral permission form his immediate controlling authority. He also sub mits that there being no evidence of the fact that he had created public nuisa nce after going out of the Unit, the enquiry officer could not have made him gui lty of both the components of Charge-III. 18. It is in the evidence that the petitioner had gone out of the Unit witho ut permission. The controlling officer in his deposition categorically stated t hat no permission was granted to the petitioner to go out of the Unit. The petit ioner in his cross examination repeatedly asked the controlling officer that he had given permission to go out of the Unit, but the said controlling officer stu ck to his deposition in chief. As regards the submissions made by the learned c ounsel for the petitioner that there is no evidence to show that the petitioner after going out of the Unit had crated public nuisance, it is very much in the e vidence that because of the public nuisance created by the petitioner he was tak en to Demow Police Station, Sivsagar where he was kept for about 45 minutes. The S.I. of the Police Station in his deposition stated about taking the petitioner to the Police Station. The said S.I. also stated in his deposition that he had arrived at the spot where people gathered and told about the nuisance created by the petitioner in public place. 19. Before initiation of the departmental proceeding in question, the petit ioner in his service career had been imposed with 7 (seven) penalties as describ ed in the statement of Imputation of Misconduct and Article of Charge-IV. While framing the three Charges against the petitioner, the authority duly took note t he past records of the petitioner and accordingly framed Article of Charge-IV to bring to the notice of the petitioner about his past misconduct. It is not the case of taking the petitioner by surprise by imposing the penalty of removal f rom service taking into account his past misconduct. The petitioner was informed well ahead that the disciplinary authority had also considered his past miscond ucts. Accordingly, Article of Charge-IV was also framed indicating therein the p revious service records of the petitioner and the punishments imposed on him. 20. The enquiry proceeding file has revealed that the petitioner was given a ll opportunity of being heard and he had thoroughly cross examined all the witne sses during the enquiry proceeding. After the enquiry report was submitted, the petitioner made his Annexure-IV representation dated nil. Thereafter, the disci plinary authority passed the final order dated 31.12.2002 imposing the penalty o f removal from service. The disciplinary authority in its long and elaborate ord er duly took note of the Article of Charges and evidence on record, pleas of the petitioner and thereafter came to the conclusion that the petitioner was not a fit person to remain in service and accordingly imposed with the penalty of remo val from service. 21. Being aggrieved, the petitioner preferred a departmental appeal and the same was dismissed by Annexure-VI appellate order dated 04.04.2003. Like that of the disciplinary authority, the appellate authority in its elaborate order deal t with all the Article of Charges and the evidence on record. In paragraph 4.2 o f the appellate order, it has been observed thus: 4.2 Besides it has been established that the Charged Official during short s pan of 10 (ten) yeas of service has been awarded 07 (seven) statutory punishment s for various acts of indiscipline and misconduct like Misbehaviour and assault to his colleague, creating nuisance during duty hours, misbehaviour with Civil l ady on two occasions, absent from Unit line, quarreling and abusing with local p olice under the influence of liquor, willful breach of Rules & regulations and q uarreling with colleagues. In spite of getting opportunities to mend his conduct , he has utterly failed to show any improvement and has rather developed incorri gible habit and rendered himself unsuitable for being a disciplined member of th e Armed Force of the Union. His recalcitrance had gone to such an extent that he has never realized his fault at a later stage and every time he continued to di splay highly indiscipline act and showed his conduct incorrigible. The specific charges framed against the charged official have been categorically proved, exc ept the particular portion of being absent in Game parade as framed in Article o f Charge-II but the other part of the charge of Article II has been proved. The charges have been proved without any shadow of doubt on the basis of corrobora tive statements of PWs I to IX and prosecution exhibits viz Exhibit -2 /PW-II, E xhibit-3/PW-IV, Exhibit-I/PW-II, Exhibit-5/PW-VIII, Exhibit-6/PW-VIII, Exhibit-7 /PW-VIII, Exhibit-8/PW-I and Exhibit-9/PW-I. 22. After the aforesaid appellate order, the