JUDGMENT Sengupta, J. The learned State Administrative Tribunal had dismissed the applicant's challenge against the order of dismissal from services by the impugned judgment and order dated 23rd November, 2006, hence the present application has been filed being aggrieved by the same. The applicant in the present application, has added new fact and the same were not originally stated at the time of disciplinary proceedings. We, therefore, wish not to look into the same. The briefly stated fact is as follows: The applicant was a constable having No. 1084 under State Armed Police, 10th Battalion, Debgram, District-Jalpaiguri. On or about 9th March, 1988 he was served with a charge-sheet with the allegation of misconduct, the summary of which is stated hereunder: 2. On 5th December, 1997 after completion of his duty at 22.45 hrs. he went to Talpukur Prostitute Quarter for sexual enjoyment with driver Dulal Mandal of Vehicle No. WGY-418 of DIUR (AP), North Bengal, Siliguri, at about 23.00 hrs. with his service revolver, where he picked up quarrel with some miscreants in drunken condition. The miscreants injured him with sharp weapons and snatched away his service revolver No. 161/1357 along with 24 rounds ammunitions and other articles. 3. In the process, he had demonstrated his gross negligence, dereliction in duty and indisciplined conduct and thereby he had tarnished the image of entire police department in the eyes of public in this chargesheet, copy of which was served upon him, five witnesses were cited to prove the charges and six documents were relied on. The applicant apart from denying the charges specifically stated that after he was released from duty he had gone out for search of food at the police barrack at Barrackpur. There was no arrangement for supply of food to on duty security guard and there was no hotel nearby, remaining open. Since he has gone in that area for the first time he had to rely on the driver of the car of the said officer and the driver took him by the said car to the places unknown to him, while he was searching for food, he was confronted and overpowered by some miscreants and bodily wounded by three miscreants with sharp-cutting weapons. He fell down while resisting them and even became unconscious and the miscreants snatched away his service revolver and ammunitions. He fell down while resisting them and even became unconscious and the miscreants snatched away his service revolver and ammunitions. This has happened because of the aforesaid reason and it was not his dereliction and negligence of duty. Despite alarm being raised no one including the said driver came forward to rescue him. 4. The disciplinary authority, Commandant, SAP 10th Battalion, Debgram, Jalpaiguri not being satisfied with the explanation decided to appoint Enquiry Officer and one Smt. C.S. Lepcha, Assistant Commandant, same Battalion and same place was appointed Enquiry Officer. 5. At the time of hearing we called for the original records of this case. It appears therefrom that the Enquiry Officer submitted two reports, one on 4th April, 2000 and another on 8th November, 2000. The first report appears not to have been accepted and was returned by the disciplinary authority for submitting fresh report examining on the point of issue of revolver to the petitioner. The second report was submitted on 8th November, 2000 after enquiring into aforesaid issue. The petitioner without objection participated in the subsequent proceedings. In the records we find that two more names of the witnesses were written in ink in the chargesheet where as supply copy shows that there were five witnesses. Therefore, we are of the firm view that subsequently names of the two witnesses were included in the original records though they were not mentioned originally. 6. From the enquiry report dated 8th November, 2000 we find that the statements of eight witnesses were relied on. The report of the Enquiry Officer, however, recorded that the allegation of visiting Talpukur Prostitute Quarter at that night for sexual enjoyment was not proved, however he was found in that area in drunken condition and he picked up quarrel with some miscreants and as a result whereof the said arms and ammunitions were snatched away by the miscreants which result in criminal prosecution. Therefore, according to the Enquiry Officer two allegations of misconduct have been proved. 7. It appears from the original records that the disciplinary authority independently had gone through oral and documentary evidence, and also report of the Enquiry Officer. After analysing and discussing everything he independently found that the applicant was in uniform while visiting the prostitute area, drank liquor and picked up quarrel and fought with the miscreants and in the process arms and ammunitions were lost. After analysing and discussing everything he independently found that the applicant was in uniform while visiting the prostitute area, drank liquor and picked up quarrel and fought with the miscreants and in the process arms and ammunitions were lost. Therefore, he issued second show-cause notice asking applicant to reply to the same which was done. Ultimately not being satisfied with the explanation order of dismissal was passed and the appellant preferred departmental appeal unsuccessfully. It appears that the appellate authority did not oppose findings of the disciplinary authority and upheld the punishment. 8. Learned Tribunal found that there has been no procedural lapses and the evidences were there. The learned Tribunal did not interfere with the findings nor accepted the grounds viz. there has been no proof of the charges and further punishment is disproportionate to the misconduct. 9. Learned Counsel, Ms. Husan Ara Begum, appearing for the petitioner submits that the learned Tribunal is extremely casual and perfunctory in its approach to deal with the matter. It did not think fit to look into the fact that the Enquiry Officer did not find the main charges against the petitioner having been proved, meaning thereby the applicant visited Talpukur prostitute area for sexual enjoyment. She says that findings of picking up quarrel with some miscreants or the arms and ammunitions being snatched away ought not to be considered, as such an incident was beyond control of the applicant as he had gone out for search of food at almost mid-night and having found no hotel and restaurant nearby he was searching for hotel in that area which was completely unknown to him. Accidentally, those miscreants accosted and there was a scuffle and fight amongst them naturally resistance by him and in the process he was injured by sharp-cutting weapons viz. daggers and choppers and those miscreants left him in the pool of blood and he was lying unconscious by the side of a drain for sometime. This statement of defence was not at all considered nor even discussed by the Enquiry Officer. Therefore, this alleged negligence in the matter of loss of arms and ammunition is totally unfounded. 10. Mr. Ajay Dutta, learned Counsel for the State, submits that there were eight witnesses who have proved the charges with the standard of preponderance of probability. This statement of defence was not at all considered nor even discussed by the Enquiry Officer. Therefore, this alleged negligence in the matter of loss of arms and ammunition is totally unfounded. 10. Mr. Ajay Dutta, learned Counsel for the State, submits that there were eight witnesses who have proved the charges with the standard of preponderance of probability. It is true that the charges of sexual enjoyment was not proved but it has been proved even beyond any reasonable doubt that he visited prostitute area. As a member of disciplined armed forces one should not go out casually in uniform and he should have deposited his arms and ammunitions in the nearest Police Station before he went out for searching food and that too in plain clothes. Therefore, the learned Tribunal has rightly rejected the petitioner's application directed against the order of dismissal. The learned Tribunal has followed correct principle of law and applied the same on the facts and circumstances of this case. Hence, this judgment and order of the learned Tribunal should not be interfered with. 11. We have gone through the original records brought before us. While going through the same we have noticed the following, irregularities: 12. In the supply copy of the charge-sheet only names of five persons are mentioned as witnesses, whereas at the time of disciplinary proceedings eight witnesses were examined. We think that citing and bringing three more witnesses in the proceedings does not render the same vitiated particularly when the petitioner participated in the same without any objection. We find disciplinary authority, while examining everything neither accepted nor rejected the report of the Enquiry Officer. He had gone through the records including of his own and came to his own findings that the applicant had visited the Talpukur prostitute area in drunken condition and in uniform. He had also picked up quarrels with some miscreants and lost his service revolver. Therefore, these charges are good enough to dispense with his services. It does not appear that the disciplinary authority before embarking upon his own finding he did serve any notice. We are of the view that disciplinary authority ought not to have undertaken independent enquiry without discarding report of Enquiry Officer either expressly or impliedly. Thereafter, he issued second show-cause notice basing on his own findings and also relying on report of Enquiry Officer. We are of the view that disciplinary authority ought not to have undertaken independent enquiry without discarding report of Enquiry Officer either expressly or impliedly. Thereafter, he issued second show-cause notice basing on his own findings and also relying on report of Enquiry Officer. In our view it has become serious procedural lapses. It seems to us now exercise of disciplinary proceedings appointing independent Enquiry Officer is wholly redundant and useless. On this ground alone we feel that the order of punishment is not sustainable as disciplinary authority has virtually become Enquiry Officer. 13. Even if we take into account the report of the Enquiry Officer then we find that the allegations of his misconduct and dereliction in duty is recorded to have been proved on the basis of surmise and conjecture. The primary allegation of his visiting prostitute area for sexual enjoyment has not been established admittedly. It appears from the report of the Enquiry Officer that apart from the said driver Dulal Nandi, P.W.4 there was no eye witness to corroborate the fact of visit of the applicant to the prostitute area. We have gone through the oral evidence of Dulal Nandi and we find that Dulal Nandi has merely said that he accompanied the applicant by the car in search of hotel outside the police barrack and the applicant got down from the car in search of hotel or restaurant and after waiting for some time having found delay in his return he did not wait and went back with the car. He bad not said that the petitioner had gone to prostitute area for alcoholic drinks. The story of his visit of prostitute area has been revealed by subsequent enquiry made by some police officers who are said to have visited some place which was spotted as prostituted area. He is said to have talked to some prostitutes who are alleged to have told him that the applicant visited that place but did not solicit for sexual enjoyment but he drank alcohol. Incidentally those prostitutes were not brought as witnesses before the Enquiry Officer. It appears further that the statement made under Section 164 of the Criminal Procedure Code by some accused persons in the criminal prosecution under the Arms Act and Indian Penal Code who are in custody has been relied on. Incidentally those prostitutes were not brought as witnesses before the Enquiry Officer. It appears further that the statement made under Section 164 of the Criminal Procedure Code by some accused persons in the criminal prosecution under the Arms Act and Indian Penal Code who are in custody has been relied on. The statement goes on to record that he had gone to the prostitute area and he had drunk and picked up quarrel with the miscreants and in the process he was injured by them. It is surprising that the Enquiry Officer has made the accomplice as a trustworthy person for recording misconduct of the applicant. This, in our view, is beyond all rules of natural justice. It is a settled position of law that statement of an accused under Section 164 of the Code can only be relied as against him and cannot be relied on for the purpose of recording guilt against the third party. This statement under Section 164 of the Code could have been a material for making further investigation and for bringing additional evidence independent of the statement under Section 164. We notice findings of disciplinary authority is substantially different from that of Enquiry Officer. The former found that the applicant was in uniform at the time of incident, while latter did not find this. It is said that he was in drunken condition, there is no evidence in this matter. 14. In the charge-sheet there is no mention that the applicant was in full uniform. In the charge-sheet there is no mention that he failed and neglected to deposit the arms and ammunition before going out for food. Thus, it appears to us charge was something, while recording guilt on different thing. It is not understood why the statement made in the defence was not at all considered and discussed and why it was rejected. Unfortunately, the learned Tribunal did not make any endeavour to call for the records and did not scrutinise the aforesaid lapses in detail. 15. Under such circumstances, we are unable to sustain the judgment and order of the learned Tribunal so also order of dismissal passed by the disciplinary authority as well as the appellate authority. All are set aside. The applicant shall be reinstated in his service forthwith, however, he shall be paid 50% of his back-wages on reinstatement. 15. Under such circumstances, we are unable to sustain the judgment and order of the learned Tribunal so also order of dismissal passed by the disciplinary authority as well as the appellate authority. All are set aside. The applicant shall be reinstated in his service forthwith, however, he shall be paid 50% of his back-wages on reinstatement. The back-wages, however, may be paid by suitable monthly instalments and the same must not exceed twelve instalments. There will be no order as to costs. Mandal, J. : I agree.