JUDGMENT Ranjan Gogoi, J. 1. The substituted petitioners are the legal heirs of one Dipak Kumar Dutta who died during the pendency of the present writ application on 19.8.2002. 2. For the sake of convenience, the deceased is being referred to, hereinafter, as the writ petitioner. This writ petitioner was charge-sheeted by charge memo dated 29th September, 1999. The two charges levelled against the writ petitioner may be extracted as under : "That the said No. 934610133 Constable D. K. Dutta (U/S) of CISF Unit ONGC Jorhat (Sarupathar Sector) who was detailed for duty from 2100 hrs to 0100 hrs on night of 30/31.8.1999 failed to prevent theft of 04 Nos. of production pipes (30 ft each) and two GI pipes worth Rs. 26,000 from KGP-I drill site on the intervening night of 30/31.8.1999. Thus, he exhibited an act of negligence, irresponsibility, violation of rules, indiscipline and unbecoming of member of Armed Force, i.e., CISF. Hence the charge." "That the said No. 934610133 Constable D.K. Dutta (U/S) of CISF Unit ONGC Jorhat (Sarupathar Sector) accepted illegal gratification from a civilian in lien of permitting him to take away 04 Nos. of production pipes (30 ft each) and two GI pipes worth Rs. 26,000 from KGP-1 drill site on 30.8.1999. The above act on the part of Constable D. K. Dutta amounts to corruption, misconduct, indiscipline and unbecoming of a member of Armed Force, i.e., CISF. Hence the charge." 3. The writ petitioner showed cause denying both the charges. Specifically it must be noted that such denial was in respect of the alleged incident of theft itself, inasmuch as it was categorically stated by the writ petitioner in his Written Statement that no such incident of theft, as alleged took place on the date and time mentioned in the charge memo. 4. The reply submitted to the charge memo not having been found to be satisfactory, an Enquiry Officer was appointed to go into the charges levelled. The Enquiry Officer by his report dated 22.3.2000 found both the charges against the writ petitioner to have been proved. The punishment of dismissal from service having been contemplated, a copy of the Enquiry Officer's report was furnished to the delinquent and on consideration of the reply submitted by the deceased-writ petitioner, the disciplinary authority by an order dated 31.3.2000 thought it proper to impose the punishment of dismissal from service. The punishment of dismissal from service having been contemplated, a copy of the Enquiry Officer's report was furnished to the delinquent and on consideration of the reply submitted by the deceased-writ petitioner, the disciplinary authority by an order dated 31.3.2000 thought it proper to impose the punishment of dismissal from service. The appeal filed by the delinquent against the dismissal order having proved unsuccessful, the instant recourse to the writ remedy has been made, assailing the punishment imposed on the basis of the order noticed hereinabove. 5. Mr. K.H. Chouchury, learned counsel appearing for the writ petitioner in his short and precise argument has submitted that the writ petitioner has been found to be guilty of the charges levelled, on the basis of the oral statements of the witnesses examined in support of the charges in which statements, the alleged confession made by one Jalaluddin regarding the commission of theft by him and the payment made to the writ petitioner to remain a silent spectator to the alleged incident, have been narrated. According to the witnesses examined, the culprit Jalaluddin had made the aforesaid confessional statement in their presence and furthermore at the instance of the said Jalaluddin, the stolen property was recovered from a pond in their presence. It is the submission of the learned counsel for the petitioner that Jalaluddin was not examined in spite of being available. As the most vital witness was not examined in the disciplinary proceeding and the delinquent has no opportunity to cross examine and confront the said witness, it is contended that the conduct of the proceedings of enquiry and the impugned findings reached therein are in violation of the basic norms of fairplay and reasonable opportunity. It is further contended that the witnesses examined, who happened to departmental personnel, merely testified as to what was allegedly reported/stated to them by Jalaluddin. Such statements do not constitute legal evidence and in any case, the veracity thereof could only have been tested in the light of the statements of Jalaluddin had the said person been examined. On the said basis, relying on a judgment of the Apex Court in the case of Hardwari Lal v. State of U. P. and Ors., reported in it is contended that the conclusions of guilt and the punishment imposed are liable to be interfered with. On the said basis, relying on a judgment of the Apex Court in the case of Hardwari Lal v. State of U. P. and Ors., reported in it is contended that the conclusions of guilt and the punishment imposed are liable to be interfered with. Learned counsel for the petitioner further submits that the investigation by the police in the criminal case registered in respect of the incident in question has ended in a Final Report. Placing reliance on the report submitted to the police, which has been brought on record by means of an amendment to the pleadings, learned counsel has contended that in the report submitted, on completion of investigation, it has been explicitly recorded that on the basis of the investigation carried out, it could not be ascertained as to whom the stolen goods belonged to and from where these had been stolen. Learned counsel further submits that on the basis of the aforesaid subsequent developments, the writ petitioner ought to be exonerated of the charges levelled. 6. The submissions advanced on behalf of the petitioner have been refuted by the learned CGSC, Smt. N.D. Sarma appearing for the respondents. Learned CGSC contends that the person, who committed the theft in question, i.e., Jalaluddin being in police custody on the date/dates, when the enquiry proceedings were held, no question of examining the aforesaid Jalaluddin as a witness in the disciplinary proceedings could arise. Learned counsel has further contended that the provisions of the Indian Evidence Act would not apply to a departmental proceeding and the charges against the writ petitioner were proved by acceptable evidence and materials. The persons before whom the accused Jalaluddin made a confession were examined and the recovery of the stolen articles, at the instance of the accused Jalaluddin, was also witnessed by the person examined in the course of the disciplinary proceedings. There was, therefore, other vital evidence and materials to connect the delinquent with the charges and it is on a well balanced consideration of such other materials that the findings of enquiry were reached. The final report submitted by the police, it is argued, cannot be determinative of the charges levelled and the findings reached in the enquiry must be judged independently and on the basis of the materials adduced in the proceedings of enquiry. The final report submitted by the police, it is argued, cannot be determinative of the charges levelled and the findings reached in the enquiry must be judged independently and on the basis of the materials adduced in the proceedings of enquiry. It is, therefore, submitted by the learned CGSC that there would be no occasion for this Court to find any fault with the findings of enquiry and the punishment imposed by the disciplinary authority on that basis. 7. The rival submissions advanced on behalf of the parties have been duly noted and considered. The records of the enquiry in original have also been produced and the same has been duly perused. The records produced would go to show that while the witness Siby Joseph was examined on 21.12.1999, the second witness Shri K.B. Baruah was examined on 22.12.1999. The third witness Yakub Ali was examined on 4.1.2000 whereas the fourth witness, the Assistant Commandant Shri Nirvikar was examined on 24.2.2000. The rejoinder affidavit filed by the petitioner enclosing a copy of the bail order granted in favour of Jalaluddin would go to show that the accused Jalaluddin was released on bail by the Court on 4.11.1999. The stand taken by the respondents that Md. Jalaluddin was not available for being examined as a witness in disciplinary proceeding, as he was in custody, therefore, has proved to be incorrect. 8. The witnesses examined in the disciplinary proceeding, in support of the charges, have deposed, more or less, in a similar vein. After the incident had occurred in the intervening night of 30/31.8.1999, Md. Jalaluddin, according to the said witnesses, admitted to have committed the theft in question to which the writ petitioner had allegedly turned a blind eye. According to the witnesses examined, Md. Jalaluddin is reported to have stated before them that while the incident was going on, the writ petitioner was seated in a chair and that it was agreed that he would be paid a total of Rs. 2,000, to facilitate the commission of the crime in question. The witnesses examined have further deposed that at the instance of Jalaluddin, the recovery of the 6 (six) stolen pipes was made from a pond. 2,000, to facilitate the commission of the crime in question. The witnesses examined have further deposed that at the instance of Jalaluddin, the recovery of the 6 (six) stolen pipes was made from a pond. While it is true that the provisions of the Indian Evidence Act would not apply to a departmental proceeding and what is required to be laid in such a proceeding is acceptable evidence, regard must be had to the fact that in appreciating the evidence brought on record in support of the charges, the possible impact that the testimony of Jalaluddin would have had on the evidence laid, had the said person been examined, cannot be visualized. Whether Jalaluddin would have owned up the statements attributed to him by the witnesses examined and would have implicated the delinquent in the same manner as narrated by the witnesses examined, must remain in the realm of uncertainty which would have the effect of throwing a serious doubt on the credibility of the version brought forward by the department. After all, Jalaluddin was a material witness, who could have best proved the charges levelled against the petitioner. He was available for examination as a witness in the departmental proceeding ; yet he was not examined. The respondents have put forward a ground in justification for not examining the said person, i.e., Md. Jalaluddin which, however, has been found to be not correct. It is at this stage that regard must be had to the report submitted by the police on completion of the investigation. While it is true that the report of the police cannot be conclusive of the charges enquired into in a disciplinary proceeding, in the facts of the present case, where the most vital witness in support of the charges was not examined and the grounds cited for such non-examination has been found to be unacceptable, the contents of the police report will have some bearing, at least to satisfy the conscience of the Court in upholding the guilt of the writ petitioner as recorded by the departmental authorities. The contents of the police report to the effect that the accused Jalaluddin had confessed to the commission of theft under coercion would be of particular significance. The contents of the police report to the effect that the accused Jalaluddin had confessed to the commission of theft under coercion would be of particular significance. In such a situation, the conscience of the Court does not permit concurrence with the findings reached in the enquiry and on the ratio of the law laid down by the Apex Court in the case of Hardwari Lal (supra), the enquiry against the writ petitioner must be held to be vitiated. The proceedings of the enquiry including the punishment imposed, therefore, is being interfered with and the impugned order dated 31.3.2000 imposing the punishment of dismissal from service and all further orders dismissing the appeal/representation of the petitioner shall stand set aside and quashed. 9. The grant of relief(s) following the conclusion reached need hardly detain the Court. In view of the decision of the Apex Court in the case of Basudeo Tiwary v. Sido Kanhu University and Ors., reported in all consequential relief's by way of back wages and pension, by treating the petitioner to be in service, shall now be granted to his legal heirs within a time frame of 3 (three) months from the date of receipt of a certified copy of this judgment and order. 10. The writ petition stands allowed, as indicated above. Writ petition allowed