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2006 DIGILAW 553 (GAU)

Paban Kalita v. State of Assam

2006-06-08

B.K.SHARMA

body2006
B.K.SHARMA, J.— The petitioner in the rank of Driver/ Lance Naik, who has been dismissed from service pursuant to a departmental proceeding drawn up against him, has made a challenge to the same on ground of procedural irregularity in conducting the enquiry, perverse finding of the Enquiry Officer based on which the penalty of dismissal from service has been imposed and discrimination in the matter of awarding the penalty. 2. The petitioner, while was serving as Driver/Lance Naik, was taken up for a departmental proceeding by way of a first show cause notice dated 25.9.1998. The proceeding was numbered as D.P. No.5/ 1993. The charge levelled against him reads as follows: "That while you were attached to Patacharkuchi P.S. with unit vehicle No. ASP-808 you drove the unit vehicle No ASP-808 on 28.6.93 at 11.45 P.M. in which UBSI Surendra Nath Sarma 2) UBC/1398 Lohit Doimary of Patacharkuchi P.S. 3) NK/172 Jogen Ch. Nath 4) C/366 Aban Borgohain 5) C/577 Padmadhar Medhi 6) C/641 Moneswar Boro and 7) C/636 Tapan Ch. Das of 7th A.P. Bn camping at Patacharkuchi P.S. travelled from Patacharkuchi Police Station to Pathsala side on National Highway No.31. On that night of 28/29.6.93 you found one Ambassador Car near Janata High School Pathsala at 2 A.M. and stopped the said car which was coming from Guwahati side and you produced the driver and the document of the car before SI (UB) Surendra Nath Sarma. You also took Rs. 15,000.00 (Rupees fifteen thousand) only from the occupant of the car Md. Hussain Ali Sheikh, S/o Late Johuruddin Ali Sheikh of village Dharamsala under Dhubri P.S. On 29.6.93 before Shri M.K. Rai, APS, SDPO, Bajali at Patacharkuchi P.S. you confessed that you took Rs. 2,000.00 (Rupees two thousand) only from the victim Md. Hussain Ali Sheikh. But after a while you confessed before the SDPO Bajali at Patacharkuchi P.S. that you took Rs. 15,000.00 (Rupees fifteen thousand) only from Md. Hussain Ali Sheikh on the previous night and refunded Rs. 10,000.00 (Rupees ten thousand) only to Md. Hussain Ali Sheikh in present of the SDPO Bajali and the following persons namely, SI Surendra Nath Sarma 2) UBC/1398 Lohit Doimari 3) NK/172 Jogen Chandra Nath 4) C/366 Aban Borgohain 5) C/ 577 Padmadhar Medhi 6) C/641 Moneswar Boro and 7) C/636 Tapan Ch. Das. You did not report to SI Surendra Nath Sarma about your collecting Rs. Hussain Ali Sheikh in present of the SDPO Bajali and the following persons namely, SI Surendra Nath Sarma 2) UBC/1398 Lohit Doimari 3) NK/172 Jogen Chandra Nath 4) C/366 Aban Borgohain 5) C/ 577 Padmadhar Medhi 6) C/641 Moneswar Boro and 7) C/636 Tapan Ch. Das. You did not report to SI Surendra Nath Sarma about your collecting Rs. 15,000.00 (Rupees fifteen thousand) only from Md. Hussain Ali Sheikh with whom you were doing duty at that time. You are therefore charged with gross misconduct, remiss and negligence in duty which render you unfit to be retained in service." 3. In response to the show cause notice, the petitioner submitted his reply denying the charge. For a ready reference, the reply furnished by the petitioner is reproduced below:- "To Hon'ble Superintendent of Police, Barpeta, Assam. Dated Barpeta the 9th Feb/1995 Ref:- Departmental Proceeding No. 5/93 Sub :- Reply to the show cause notice. Respective Sir, I have the honour to lay the following few lines for favour of your kind information and sympathetic consideration. 1) That on the night of 28.6.93 at about 11.45 A.M. I was with UBSI Sri Surendra Nath Sarma and six other police persons of APBn and we by the vehicle No. ASP-808 were patrolling in the National Highway. It was raining night. On our way we found one Ambassador car coming from Gauhati side. The incharge UBSI Sri Surendra Nath Sarma directed to stop the car. The car was stopped and SI Sarma asked to bring the driver with the documents. The documents were checked by Sri Sarma and after enquiry the driver of the car was allowed to move the vehicle. This things being done by Sri Sarma and whatever was discussed with the driver of the car was all done by him. I was on my vehicle at that time. So, I did not hear anything what was verified and discussed. Thereafter we were informed through a Bus that the O/C of Patacharkuchi P.S. has directed to return to police station. We then return to P.S. and after arriving there I along with O/C and staff went to Nityananda for raid, we returned to P.S. early in the morning. 2) That the allegation of taking Rs. 15,0007 - from the occupant of the car Md. Hussain Ali near Janata School on the National Highway by me, is not at all true and fact. 2) That the allegation of taking Rs. 15,0007 - from the occupant of the car Md. Hussain Ali near Janata School on the National Highway by me, is not at all true and fact. The incharge UBSI Sri Sarma & the staff were present there and he enquired the driver and verified the documents. I even did not take to any person. Further, it is also not a fact that I confessed before the learned SDPO Bajali about taking of Ks. 15,000/- on the night from Md. Hussain Ali and refunding him Rs. 10,000/- 1 was simply asked by the learned SDPO Bajali whether I known anything of Rs. 15,000/- and then I clarified the position that I did not know anything of the money and UBSI Sri Sarma will know if anything such business was happened. That I know nothing about taking my money from Md. Hussain Ali, I ever could not understand why I have been brought under such allegations. UBSI Sri Sarma and other personnel were present and whatever was asked to the persons of that Ambassador was all done by Sri Sarma. 3) That I have not neglected my duty nor I have done anything wrong on that night. I simply drove the vehicle as did whatever I was instructed by Sri Sarma. The allegation raised against me is completely false and vague, I further assure your honour that I know nothing about taking money, nor I have been asked by any officer about the fact. But later on I have been implicated in such a false allegation. That Sir, I am a poor man having family members. I am maintaining my family with my service only. I never neglected my duty nor 1 did anything wrong, what I did, I did according to the instructions of the officers. Hope your honour will consider my submissions sympathetically and do the justice. It is therefore prayed that your honour would be being enough to accept my submissions and exonerate me from the allegations and drop the departmental proceeding initiated against me. And for this act of your kindness I am in duty bound shall ever pray. Yours faithfully, Sd/- Illegible" 4. The departmental proceeding prolonged from 1993 and eventually, the petitioner was imposed with the penalty of dismissal from service on the basis of the enquiry report furnished by the Enquiry Officer. And for this act of your kindness I am in duty bound shall ever pray. Yours faithfully, Sd/- Illegible" 4. The departmental proceeding prolonged from 1993 and eventually, the petitioner was imposed with the penalty of dismissal from service on the basis of the enquiry report furnished by the Enquiry Officer. Be it stated here that the enquiry report was signed by the Enquiry Officer on 23/12, but there is no indication of the year. This has been verified from the departmental proceeding file. 5. After the submission of the enquiry report, the petitioner was asked to make his representation against the finding recorded by the Enquiry Officer. The petitioner was so asked by letter dated 29.12.2000 and it was conveyed that on the basis of the finding of the enquiry Officer and other materials on record, it was proposed to award the major penalty to the petitioner. 6. The petitioner by his representation dated 5.1.2001 reiterated his stand that he was not involved in the incident. He contended that he beings driver of the vehicle could not have been involved in the incident. He once again stated, as to how the party was led by Sub-Inspector Sri Surendra Nath Sarma and consisted by 6 other police personnel and engaged in patrolling duty. 7. After submission of the reply, he has been dismissed from service by order dated 21.6.2001. The order reads as follows :- "Ref: D/P No. 5/93 initiated against D/LNK. 1735 Paban Kalita of this DBF. The reply of the second show cause furnished by the delinquent is perused and well thought over. He has not produced any material which may strengthen his case of not awarding a major penalty. The enquiry report, replies of delinquent are perused and considered to be fit case to award major penalty. The delinquent is dismissed from service as per rule 66 of Part-Ill A.P.M. However, he shall have the opportunity to appeal to the appellate authority. Sd/- GP Singh, IPS, Superintendent of Police Barpeta, Assam." 8. Being aggrieved by the order of penalty, the petitioner preferred a departmental appeal and the same has also been dismissed by order dated 4.7.2002. Thereafter, the petitioner preferred an appeal before the Assam Administrative Tribunal, which was registered as Case No. 40ATA2002. The Tribunal has also dismissed the appeal by its judgment and order dated 17.4.2004. Hence, this writ petition. 9. Thereafter, the petitioner preferred an appeal before the Assam Administrative Tribunal, which was registered as Case No. 40ATA2002. The Tribunal has also dismissed the appeal by its judgment and order dated 17.4.2004. Hence, this writ petition. 9. The respondents have not chosen to file counter-affidavit. The departmental proceeding file was also not furnished to the learned State counsel representing the respondents. However, the same along with the departmental proceeding file being D.P. No. 4/93 in respect of Shri Surendra Nath Sarma, S.I. of Police was called by order dated 9.5.2006. Pursuant to the direction of this Court, the respondents have furnished the departmental proceeding file in respect of the petitioner being D.P. File No. 5/93. The D.P. No. 4/ 93 concerning S.I. Sri Surendra Nath Sarma has not been produced as the same, according to the respondents, is not traceable in the office. According to the learned counsel for the petitioner, the respondents failed to produce D.P. No. 4/93 before the Tribunal also, although the same was called for. 10. It will be pertinent to mention here that S.I. Surendra Nath Sarma was also taken up for departmental proceeding vide D.P. No. 4/93 relating to the same very incident for which the petitioner was taken up for departmental proceeding. This file was considered necessary in view of the plea of the petitioner that he was a mere driver of the vehicle under control and authority of the SI Surendra Nath Sarma, the leader of the patrol party and that he was not involved in the incident and also that SI Surendra Nath Sarma, who was also taken for departmental proceeding for the same very incident, has been awarded only with a minor penalty of stoppage of two increments without cumulative effect. 11. I have heard Mr. C.C. Deka, learned counsel for the petitioner. I have also heard Ms. R. Chakraborty, learned State counsel representing the respondents. 12. Mr. Deka argued that the petitioner has been made a victim of the circumstances to -find out a way out, to protect the superior officer who was actually involved in the incident, even if any. Pointing out to procedural irregularity in conducting the enquiry, Mr. I have also heard Ms. R. Chakraborty, learned State counsel representing the respondents. 12. Mr. Deka argued that the petitioner has been made a victim of the circumstances to -find out a way out, to protect the superior officer who was actually involved in the incident, even if any. Pointing out to procedural irregularity in conducting the enquiry, Mr. Deka submitted that the petitioner having not been afforded with the opportunity to engage his defence counsel and the enquiry having been conducted by the Enquiry Officer of the Assam Police Service, discharging the dual role of an Enquiry Officer as well as the Presenting Officer, the entire proceeding is vitiated. He also submitted that the Enquiry Officer on the face of the enquiry report, took into consideration the materials which never formed part of the enquiry proceeding and the petitioner having not been afforded with any opportunity to have his say in respect of those materials, the enquiry report based on those materials is not sustainable in law. 13. Apart from the procedural irregularity on which the learned counsel for the petitioner emphasized, it was also submitted that the penalty imposed is grossly disproportionate and discriminatory inasmuch another delinquent with much more responsibility has been awarded only a minor penalty of stoppage of two increments without cumulative effect. Mr. Deka also found fault with the approach of the tribunal in passing the impugned judgment and order. He submitted that the Tribunal being the Court of first instance ought to have gone into the facts and materials so as to find out the correctness or otherwise of the charge levelled against petitioner but instead, it adopted the mechanical approach to uphold the extreme penalty of dismissal imposed on the petitioner. 14. Ms. R. Chakraborty, learned State counsel, on the other hand, submitted that the petitioner being involved in the offence which does not behove of the member of the disciplined force, has been rightly awarded with the penalty of dismissal. As regards the procedural irregularity in conducting the enquiry, she submitted that no prejudice to the defence of the petitioner having been established, such procedural irregularity, even if any, by itself will not render the departmental proceeding illegal. As regards the procedural irregularity in conducting the enquiry, she submitted that no prejudice to the defence of the petitioner having been established, such procedural irregularity, even if any, by itself will not render the departmental proceeding illegal. As regards the discrimination in the matter of awarding the penalty, she submitted that having regard to the gravity of the offence, the petitioner has been rightly awarded with the penalty of dismissal and that no interference is called for to the same. As regards the impugned judgment and order passed by the Tribunal, she submitted that the Tribunal having discussed the matter in detail, the writ court would be reluctant to interfere with the findings recorded by it upholding the decision of the authorities. 15. I have given my anxious consideration to the submissions advanced by the learned counsel for the parties. I have also gone through the entire materials available in the departmental proceeding file and based on that, I record my findings as below :- PROCEDURAL IRREGULARITY 16. The first ground of attack made by the petitioner is in respect of the procedural irregularity in conducting the departmental enquiry. Upon verification of the departmental proceeding file, it appears that the Enquiry Officer conducted the enquiry all by himself without there being any Presenting Officer to place the case of the disciplinary authority. The petitioner was also not afforded with the opportunity of engaging a defence counsel. He was not also apprised of his right to engage a defence counsel. That was all the more necessary in view of the fact that the petitioner was merely a driver without any legal background. Coupled with this, the charge sheet also did not contain the list of documents and witnesses based on which the charge against the petitioner was sought to be established. 17. On a bare perusal of the enquiry report, it will be seen that the Enquiry Officer appointed by the disciplinary authority placed reliance on certain documents which never formed part of the departmental enquiry and about which the petitioner was never apprised. The Enquiry Officer placed reliance on certain documents appearing at Page Nos. 3,4,5,6,9 and 10 of a particular file which according to him, supported the charge made against the petitioner. The Enquiry Officer placed reliance on certain documents appearing at Page Nos. 3,4,5,6,9 and 10 of a particular file which according to him, supported the charge made against the petitioner. He also placed reliance on report submitted by the jurisdictional S.D.P.O. In addition, the enquiry report reveals that the Enquiry Officer also consulted some papers stating the same to be relevant, like the copy of the report submitted by ASI one Shri Phulendra Patgiri in Page No. 2, extract copy of the G.D. Entry in Page 5 and 9, copy of report in Page 16 etc. in the concerned file, towards holding that all those documents supported the charge brought against the petitioner. 18. There is nothing on record to show that all those documents were exhibited in the enquiry after apprising the petitioner about the existence of the same and giving him opportunity to have his defence in respect of those documents. If the Enquiry Officer wanted to rely upon those documents, he ought to have supplied copies thereof to the petitioner giving him a right to cross examine the authors of those documents. Apart from this illegality committed in conducting the enquiry, it was not the duty of the Enquiry Officer to find out adverse materials against the petitioner, unless the materials were brought on record on behalf of the disciplinary authority. However, mis established procedure in conducting the departmental enquiry was not followed. Such irregularity so substantial in nature cannot withstand the test of prejudice caused to the petitioner. 19. Needless to emphasize that in the event of placing reliance on any adverse materials appearing against the delinquent, those materials must be brought on record for the enquiry proceeding giving an opportunity to the delinquent to examine those materials and than, to have his say against those materials. He is also entitled to cross examine the authors of those documents, if the documents are exhibited in the enquiry proceeding. However, not to speak of supplying the documents to the petitioner, the same were not even exhibited and the petitioner was not given any opportunity to cross examine the authors of those documents and yet, the Enquiry Officer placed reliance on those documents so as to hold that the same supports the charge against the petitioner. However, not to speak of supplying the documents to the petitioner, the same were not even exhibited and the petitioner was not given any opportunity to cross examine the authors of those documents and yet, the Enquiry Officer placed reliance on those documents so as to hold that the same supports the charge against the petitioner. This is in this context, the list of documents and witnesses must accompany the charge sheet entitling the delinquent to note before hand as to which are the documents and who are the witnesses likely to make use of against him in the enquiry proceeding. 20. In the instant case, apart from the fact that the list of documents and witnesses was not furnished to the petitioner, the Enquiry Officer also placed reliance on the aforementioned documents without, however, affording any opportunity to the petitioner to have his say in the matter. This illegality committed by the Enquiry Officer in conducting the enquiry coupled with the fact that there was no Presenting Officer on behalf of the disciplinary authority to examine and exhibit the witnesses and the documents respectively and also that the petitioner was not afforded with any opportunity to engage defence counsel and was not even apprised of his right to engage a defence counsel, which was more so necessary considering the fact that the petitioner was a mere driver, vitiated the proceeding. THE EVIDENCE ON RECORD 21. Apart from the aforementioned documents on which the Enquiry Officer placed reliance, he has also recorded his finding towards establishing the charge against the petitioner placing reliance on the statements of the 5 (five) witnesses as mentioned in the enquiry report. Surprisingly, the enquiry proceeding file has revealed that apart from the witnesses mentioned in the enquiry report, there are two more witnesses, who also deposed in the enquiry. They are- i) Sri Kamala Kanta Kalita, Inspector of Police and ii) Sri Phulendra Patgiri, ASI of Police. The request of the petitioner to examine the patrol party leader SI Surendra Nath Sarma was not acceded to by the Enquiry Officer on the ground that he was also involved in the same incident and a separate proceeding was drawn up against him. A presumption was drawn that since the said Sri Sarma was delinquent relating to the same incident, so he might state against the petitioner to get rid of the charge against him. A presumption was drawn that since the said Sri Sarma was delinquent relating to the same incident, so he might state against the petitioner to get rid of the charge against him. The Enquiry Officer proceeded to hold that said Sri Sarma's statement might also be arbitrary. 22. Another ground assigned by the Enquiry Officer not to examine Sri Sarma is that since the petitioner could not prove his case by way of cross examining the witnesses, there was no necessity to examine Sri Sarma. Such reasoning on the part of the Enquiry Officer is arbitrary and unreasonable. First of all, he ought to have requested the disciplinary authority for a decision regarding examining Sri Sarma as a witness and he could not have decided the same of his own and that too, with the aforementioned reasons. Thus, on this count also, the proceeding was vitiated. SI Sri Sarma was the prime witness as he was also involved in the same incident and a separate proceeding was drawn up against him. The petitioner wanted to examine him in the context of his defence that he was not involved in the incident and it was Sri Sarma, who was the leader of the patrolling party. From this factual aspect of the matter also, it is clearly established that the Enquiry Officer not only conducted the enquiry all by himself without any assistance of any Presenting Officer representing the disciplinary authority but also took the decision in the matter which in fact, required the decision of the disciplinary authority. 23. Out of the 5 witnesses, whose depositions have been discussed by the Enquiry Officer, Witnesses No. 3, 4 and 5 did not say anything against the petitioner. This is evident from the enquiry report itself and as per the verification, made by me going through the enquiry proceeding file. In their statement made before the Enquiry Officer, they even did not obliquely raise any accusing finger against the petitioner. 24. Witness No. 1 Sri Min Kumar Roy is a reported witness and he had no personal knowledge about the incident. Although this witness referred to the statement of the alleged victim Md. Hussain Ali Seikh (Witness No. 2), but the Witness No. 2 in his deposition, did not say anything directly against the petitioner, but only stated that the person who allegedly took the money from him had cat-like-eyes. Although this witness referred to the statement of the alleged victim Md. Hussain Ali Seikh (Witness No. 2), but the Witness No. 2 in his deposition, did not say anything directly against the petitioner, but only stated that the person who allegedly took the money from him had cat-like-eyes. That by itself, by no stress of imagination can lead to the identity of the petitioner. This witness could have identified the petitioner during his deposition but he did not do so. Thus, from his statement, it was never established that it was the petitioner, who took the money from him. Interestingly, this witness also did not lodge any complaint with the police making any allegation against the petitioner. 25. There is another aspect of the matter. Out of the 7 witnesses examined by the disciplinary authority, as mentioned above, the Enquiry Officer referred to the depositions of only 5 witnesses. I have gone through the statement made by other two witnesses namely, Sri Kamala Kanta Kalita, Inspector of Police and Sri Phulendra Patgiri, ASI of Police. They did not attribute any guilt against the petitioner, rather said that they did not know anything about the incident. It is not understood as to why no credence was given to the depositions of these two witnesses. Not only that, even they have not been referred to in the enquiry report. Thus, out of the 7 witnesses, 5 witnesses supported the defence of the petitioner that he was not involved in the incident inasmuch as none of them stated anything against the petitioner. 26. Witness No. 4 LNK/172 Sri Jogen Chandra Nayak, whom the Enquiry Officer has wrongly named as J. Nath, categorically stated in his deposition that he did not see the petitioner taking any money from the person concerned in the ambassador Car. Thus, on the face of the deposition of the 5 witnesses, the charge against the petitioner cannot be said to be established. Further, as discussed above, Witness No. 1 namely, Sri Min Kumar Roy, a retired Assam Police Service official is a reported witness. Thus, on the face of the deposition of the 5 witnesses, the charge against the petitioner cannot be said to be established. Further, as discussed above, Witness No. 1 namely, Sri Min Kumar Roy, a retired Assam Police Service official is a reported witness. When the other witnesses did not depose anything against the petitioner, the testimony of the reported witness could not have been the sole basis holding the charge against the petitioner to have been established, more particularly, when the victim himself i.e: Witness No. 2 Sri Hussain AH Seikh did not pinpoint anything against the petitioner. He only stated that the person concerned, who extorted the money from him had the cat like eyes. This description by itself cannot establish the charge against the petitioner unless something more convincing materials are brought on record. 27. Surprisingly, the Enquiry Officer has not discussed anything in his report about the deposition made by the petitioner towards his defence, except stating that since he has denied the charge, his statement need not be elaborated. I have gone through the defence statement of the petitioner in which he categorically denied the charge. He clearly stated that he was not at all involved in the incident and that on being asked by the S.D.P.O. he had stated that he did not know anything about extortion of money. Interestingly, he was not cross-examined and naturally so, when there was no Presenting Officer. Thus, his statement went unrefuted and yet admission on his part was sought to be attributed. 28. It may very well be argued that it is not the function of the writ Court to appreciate the evidence on record like that of appellate authority, but at the same time, there is no gainsaying that the finding recorded by the Enquiry Officer can not be interfered with, if such finding is perverse and is based on no evidence at all. To return such a finding, at least a cursory look will have to be given to the evidence on record and upon such a look, it is found that the findings recorded by the Enquiry Officer is utterly perverse. To return such a finding, at least a cursory look will have to be given to the evidence on record and upon such a look, it is found that the findings recorded by the Enquiry Officer is utterly perverse. Coupled with this, the materials on which the Enquiry Officer placed reliance having not been exhibited during the proceeding and the petitioner having not been afforded with any opportunity to prove his say against those materials, the prejudice caused to the petitioner in his defence is well established. 29. It has been held by the Apex Court in State of Assam Vs. Mahendra Kumar Das, reported in (1970) 1 SCC 709 , the Enquiry Officer is not permitted to collect any material from outside sources during the conduct of the enquiry. Further, as has been observed by the Apex Court in Narinder Mohan Arya Vs. United India Insurance Co., reported in (2006) 4 SCC 713 , suspicion or presumption cannot take the place of proof even in a domestic enquiry. The writ Court is entitled to interfere with the findings of the fact of any Tribunal or authority in certain circumstances. Instant case is one of the same. 30. It will be appropriate to mention here that although the report of the ASI Sri Phulendra Patgiri was relied upon without exhibiting the same in the enquiry and furnishing copy thereof to the petitioner, but the author of the same in his deposition did not attribute anything against the petitioner. Independent of the finding of the Enquiry Officer on the basis of the report furnished by Sri Phulendra Patgiri, I have verified the said report dated 29.6.1993 and the report does not pinpoint anything against the petitioner. OF AWARDING PUNISHMENT 31. It is the case of the petitioner that he was a mere driver of the patrolling party vehicle and said Sri S.N. Sarma, SI of Police, being the leader of the patrolling party, which was consisted of 7 police personnel, it is unbelievable that the petitioner could extort money from the alleged victim. A separate proceeding was drawn up against said SI of Police by way of DP No. 4/93. It is on record that Sri Sarma has been awarded with the penalty of stoppage of two increments without cumulative effect. A separate proceeding was drawn up against said SI of Police by way of DP No. 4/93. It is on record that Sri Sarma has been awarded with the penalty of stoppage of two increments without cumulative effect. It is in this context, the petitioner apart from urging that he was not at all involved in the incident, also urged that when Sri Sarma with more responsibility, being the leader of the patrolling party, has been absolved of the charge and has been awarded only a minor penalty of stoppage of two increments without cumulative effect, the petitioner being only a driver of the patrolling party vehicle could not have been awarded the extreme penalty of dismissal from service. 32. To verify the above aspect of the matter, the disciplinary proceeding file pertaining to Sri Sarma was called for but unfortunately, the learned State counsel has been furnished with the instructions that the said file is not traceable. The learned counsel for the petitioner submitted that the file could not be produced even before the Tribunal, although was called for. If the incident in which the petitioner was allegedly involved is to be believed, it was more serious against the leader of the patrolling party, the SI of Police Sri Surendra Nath Sarma. However, he has been let off with the minor penalty of stoppage of two increments without cumulative effect. But on the other hand, in spite of all the above procedural illegality and perverse finding of the Enquiry Officer holding the charge against the petitioner to have been established, he has been awarded with the extreme penalty of dismissal from service. Is it because the petitioner belonged to the lower echelon of the service and that SI Sri Surendra Nath Sarma was his superior authority and thus the petitioner was picked up as an easy escape goat ? The scrutiny of the materials on record, as discussed above, gives such an impression. While Sri Surendra Nath Sarma, SI of Police is enjoying the service life with all service benefits, the petitioner, his subordinate, has been dismissed from service. DEPARTMENTAL APPELLATE ORDER 33. The appeal preferred by the appellant before the departmental appellate authority has been dismissed by order dated 4.7.2002. While Sri Surendra Nath Sarma, SI of Police is enjoying the service life with all service benefits, the petitioner, his subordinate, has been dismissed from service. DEPARTMENTAL APPELLATE ORDER 33. The appeal preferred by the appellant before the departmental appellate authority has been dismissed by order dated 4.7.2002. Although the appellate authority mentioned about the grounds urged in the appeal which included the ground of findings being not based on materials on record and vitiated by gross discrepancy and that the penalty awarded to the petitioner was discriminatory in nature, the appellate authority brushed aside those grounds and disposed of the appeal upholding the other of penalty on the ground that the charge drawn up against the petitioner was very serious and that, there is no discrepancy in the findings recorded by the Enquiry Officer, without, however, discussing anything as to on what basis such a finding could be given by the appellate authority. On the face of it, the appellate order is a non-speaking one. While it is true that the appellate authority need not give detail reasons but at the same time, the aforesaid discrepancies cast a duty on the appellate authority to discuss in more detail about the grounds urged by the petitioner and as to how and why those grounds were not sustainable. The Apex Court in the case of Narinder Mohan Arya (supra), has emphasized on the desirability of a speaking order by the appellate authority. 34. The Assam Administrative Tribunal also in its impugned judgment and order dated 17.4,2004 adopted a mechanical approach. The entire conclusion has been recorded in Para-6 and 7 of the impugned judgment and order which are re-produced below :- "6. We have further noticed that the Enquiry Officer gave due weight to each of the witnesses who were examined and cross- examined before him. On the contrary the appellant has failed to prove either by oral evidence or by record that he did not extort money from Md. Hussain Ali Seikh on the date of occurrence. Again the consideration that the appellant is the only earning member of his family cannot be a ground for waiving his misconduct like that of extorting money from a common public that is too being a member of a disciplined force who are being entrusted for the safety and security of the life and property of the public. Again the consideration that the appellant is the only earning member of his family cannot be a ground for waiving his misconduct like that of extorting money from a common public that is too being a member of a disciplined force who are being entrusted for the safety and security of the life and property of the public. The appellant if was so concerned about the future or fate of his family he should have thought about the consequences before hand and should have desisted himself from committing the misconduct. What is more the Disciplinary Authority or even the victim could have instituted a criminal prosecution against him for the crime that he committed and in that case he could have even been sentenced for imprisonment. 7. We thus find absolutely nothing to interfere with the findings of the Enquiry Officer or the orders passed by the Disciplinary Authority as well as the Departmental Appellate authority. To us, the appeal is therefore liable to be dismissed in limine." 35. In view of the revelations made from the records about which detailed discussions have been made above, the Tribunal could not have held that the Enquiry Officer gave due weightage to each of the witnesses. It is really surprising as to how the Tribunal could shift the burden to the petitioner to prove that he did not extort the money from the alleged victim. It was the duty of the disciplinary authority to establish the charge and not the petitioner to prove the charge negatively. The petitioner categorically denied extortion of the money from the alleged victim and on the face of such denial, it was incumbent on the part of the disciplinary authority to establish the charge against him by adducing appropriate evidence following due procedure required to be followed in a departmental enquiry. Thus, the finding recorded by the Tribunal is not at all based on evidence on record about which discussions have been made above. Consequently, the impugned judgment and order passed by the Tribunal is also not sustainable. 36. Thus, the finding recorded by the Tribunal is not at all based on evidence on record about which discussions have been made above. Consequently, the impugned judgment and order passed by the Tribunal is also not sustainable. 36. For all the foregoing reasons and discussions, I have no hesitation to set aside and quash the order dated 21.6.2001 imposing the penalty of dismissal from service on the petitioner; the order dated 4.7.2002 passed by the departmental appellate authority dismissing the appeal preferred by the petitioner and upholding the order of penalty and the judgment and order dated 17.4.2004 passed by the Assam Administrative Tribunal in Case No. 40ATA2002. Consequently, the petitioner shall be deemed to be in service all throughout and shall be re-instated in service forthwith, if in the meantime, he has not retired from service on attaining the age of superannuation. However, it is made clear that the petitioner shall not be entitled to any backwages, but the entire period of absence from duty from the date of dismissal till he is re-instated in service or till the date of retirement, whichever is applicable, shall be treated as on duty for all other purposes including the notional fixation of pay, pensionery and other service benefits. 37. Writ petition stands allowed to the extent indicated above, however, without any order as to costs.