UNION OF INDIA Vs. SARAN NARZARY

JUDGEMENT

(1.) This instant intra-Court appeal is directed against the judgment and final order dtd. 18/1/2018 passed by the learned Single Bench in WP(C) No.4241/2009 whereby, the writ petition was accepted and the order of penalty dtd. 30/9/2008 whereby the respondent/writ petitioner was removed from service pursuant to a disciplinary proceeding was quashed. The departmental inquiry against the respondent [hereinafter referred to as the Delinquent Officer (DO)] was initiated through charge memo dtd. 26/6/2008. The substance of charges attributed to the respondent DO was that he, while proceeding on 15 days casual leave from 6/6/2008 onwards, was found in possession of 23 live rounds of 5.56 Insas Rifle at the Jammu Railway station when search was taken by the RPF and local police officials of his luggage. Another allegation was leveled that the respondent DO did not furnish the information to his higher authorities either in 31 Bn or 151 Bn regarding illegal retention of 23 live rounds of 5.56 Insas Rifle. The enquiry was concluded holding that both the charges were proved beyond reasonable doubt.

(2.) Accepting the finding of the inquiry report dtd. 28/8/2008, the Commandant, being the disciplinary authority passed the order dtd. 30/9/2008, inflicting upon the respondent, punishment of removal from service. The said order was challenged by the respondent by filing the captioned writ petition mainly on two grounds. Firstly, the department failed to lead any cogent evidence whatsoever so as to substantiate the charges. None of 6(six) prosecution witnesses examined during inquiry was a witness to the recovery of the live rounds allegedly effected from the baggage of the respondent DO. The RTO Inspector Khawja Abdul Islam who was present during the alleged recovery was not examined in evidence. The second contention advanced on behalf of the respondent DO was that he was unfamiliar with Hindi language and that the enquiry was held in Hindi without providing any defence assistance and thus, the DO was deprived from the opportunity to cross-examine the witnesses and was also unable to defend himself properly. Thus, the disciplinary proceedings were questioned on the ground of being unfair and arbitrary and in violation of the principles of natural justice.The learned Single Bench, examined the entire material available on record and concluded that the enquiry was held in gross deference to the requirement of Rule 27 of the CRPF Rules, 1955 inasmuch as, defence assistance was not provided to the DO who was having rudimentary knowledge of Hindi being a Boro tribe person from interior Assam and that he was prevented from a fair opportunity of defending himself as provided under Rule 27(c) of the CRPF Rules, 1955. Further conclusion was drawn by the learned Single Bench that the inquiry report dtd. 28/8/2008 did not indicate that the I.O. based his conclusions with the reference to any piece of material evidence recorded by him during the inquiry. Paragraphs 11 and 12 of the impugned judgment are germane for deciding the instant appeal and hence the same are reproduced hereinbelow for the sake of ready reference:-

(3.) Criticizing the aforesaid finding in this intra-Court writ appeal, learned Dy.S.G.I. Shri R.K.D. Choudhury vehemently and fervently argued that the standard of proof required to bring home the charges in a disciplinary proceeding cannot be equated with that required to bring home the charges in a criminal trial. As per Shri Choudhury, the charges in disciplinary proceedings can be proved by mere preponderance of probabilities. It was his contention that the evidence of six witnesses who were examined during the inquiry, was sufficient to bring home the charges. He urged that the learned Single Bench was not justified in re-appreciating the evidence and substituting its own conclusions upon the conclusions drawn in the inquiry report. He urged that the impugned order which is based on re-appreciation of evidence, is liable to be set aside.