Gauhati High Court
Union Of India & 4 Ors vs Shri Gopal Chandra Kalita on 15 May, 2017
Author: Manojit Bhuyan
Bench: Manojit Bhuyan
WA NO.110 of 2017
BEFORE
HON'BLE THE CHIEF JUSTICE MR. AJIT SINGH
HON'BLE MR. JUSTICE MANOJIT BHUYAN
15.5.2017
(Ajit Singh, C.J.)
Mr.D.C Borah, learned Central Government Counsel for the
appellants. None appears for the respondent.
Heard on admission.
This intra Court appeal has been preferred by the Union of India challenging the impugned Judgment and order dated 12/08/2015 passed by the learned Single Judge of this High Court whereby he has allowed respondent's WP(C) No. 5399/2008.
2. Respondent - Gopal Chandra Kalita, a Constable in the Central Industrial Security Force - was charged with the allegation that when he was discharging his duties as a Constable in the Central Industrial Security Force, while his Unit was deployed in the Oil and Natural Gas Commission at Nazira, he was detailed to shift duty of Cable PTL at the D.S.A.B Rig from 1700-2100 hours on 17/12/2005 and from 0500-0900 hours on 18/12/2005. After his 2nd shift duty was over at 9 AM on 18/12/2005, the theft of 30 meter length power cable was detected from the patrolling area and the lock in the Lube Oil Store was also found broken for attempted theft. Subsequently, a disciplinary proceeding was initiated against him, which was drawn up on 30/12/2005 under Rule 36 of the Central Industrial Security Force Rules, 2001. The respondent was charged with gross misconduct, indiscipline, negligence and dereliction of duty.
3. The respondent submitted his reply denying the charge levelled against him and contended that the cables were kept under cover and Page 1 of 4 therefore, the same got undetected during his shift duty although they could have been stolen only at night and not during his 2nd shift duty from 0500 hours to 0900 on 18/12/2005. As regards the first shift duty until 9 PM on 17/12/2005, the respondent had stated that since the "OK" report was given by the Post Commander, the possibility of the theft in the first shift duty was wholly ruled out.
4. Being dissatisfied with the explanation, an enquiry was ordered and notice was given to the respondent on 21/01/2006 by the Inquiry Officer to attend the enquiry and apply for defence assistance with the consent of the nominated persons. The respondent prayed for appointment of Head Constable G. Venkatachalam of the Central Industrial Security Force Unit, NLC, Neiveli. But since the named Defence Assistant was posted at Kerala, the prayer was rejected and the petitioner was made to defend his case personally without any Defence Assistant.
5. During the enquiry, 5 witnesses were examined and one Inspector from the Central Industrial Security Force was examined as Court Witness. The respondent did not adduce any defence evidence. Upon conclusion of the enquiry, the Inquiry Officer found the respondent guilty as charged. The disciplinary authority, therefore, vide order dated 5.5.2006, imposed a punishment of reduction of pay by to two (2) stages for a period of two (2) years with stoppage of increment during the period of reduction. The respondent preferred an appeal before the appellate authority against the said order of punishment which was dismissed by the appellate authority on 20/1/2007. Being aggrieved, the respondent preferred the writ petition, which has been allowed by the learned Single Judge by the impugned judgement holding the enquiry being vitiated.
6. The learned Single Judge has held that during the enquiry, no evidence at all surfaced up to show that the theft occurred during the Page 2 of 4 shift duty of the respondent and there was every likelihood that the theft took place prior to his shift duty which could only be detected after the completion of shift duty. The learned Single Judge has also held that the enquiry is vitiated in as much as no proper defence assistance was provided to the respondent after refusing his prayer for appointing the Defence Assistant of his choice.
7. After hearing the learned Counsel for the parties and perusing the records, we are of the considered view that the learned Single Judge has rightly passed the impugned judgement and order by quashing the orders of the disciplinary authority as well as the Appellate Authority while allowing the writ petition. This we say so because the Inquiry Officer ought to have informed the respondent of his right to engage a new Defence Assistant while rejecting his prayer to engage the Defence Assistant of his choice. The respondent ought to have been given an opportunity to defend his case properly before the Inquiry Officer by engaging a Defence Assistant and refusal to do so, has vitiated the enquiry.
8. Besides, the learned Single Judge has also rightly held that there was no evidence at all to even remotely suggest that the theft as alleged occurred during the shift duty of the respondent. Mere by the fact that the theft was discovered after the completion of shift duty of the respondent and for the fact that he gave an "OK" report after his duty hours were over, does not go to show that the theft occurred during his shift duty. It is clear from the evidence that the stolen cables were hidden under a shed and as such there was every possibility that the respondent could not detect the said theft during his shift. But this would not prove the charge levelled against him or make his contention unbelievable. It is a well-settled principle that in an enquiry, the charges are not to be proved beyond reasonable doubt, but with the preponderance of probability. In the instant case also there was every Page 3 of 4 likelihood that the theft occurred prior to the shift of the respondent which got undetected during his shift duty. As such, we agree with the views of the learned Single Judge.
9. For the aforesaid reasons, we do not find sufficient merit in the instant appeal and accordingly the same stands dismissed summarily.
JUDGE CHIEF JUSTICE
Skd
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