Anima Hazarika, J. - The orders of removal of the petitioner from service by the Disciplinary Authority; dated 23.12.2002, which has been affirmed by the appellate authority on 08.04.2004, are un­der challenge, seeking a writ of certiorari for setting aside/quashing the orders as aforesaid and a writ of mandamus has been sought for reinstating the petitioner in service, to treat him as in service till the date he attained the age of superannuation and to give him all retiral benefits as admissible as per Rules. 2. Heard Mr. A.M. Mazumdar, learned Sr. Counsel assisted by Mr. Y.S.Mannan, learned counsel appearing for the petitioner. Also heard Mr. U.K. Nair, learned Standing Counsel, Railway appearing for the respon­dents. 3. The brief facts leading to the case are summarized herein below: The petitioner was appointed as Railway Protection Force (for short 'RPF') Constable in the year 1961 and joined under the North East Frontier Railway ('NF Railway' for short). After considerable period of service as Constable he was promoted to the post of Head Constable. On 16.06.2002, one person in police uni­form who identified himself as the officer-in-Charge of Khetri Police Station had de­manded money from the petitioner and also from one Sri Khargeswar Deka, RPF Con­stable for the reasons best known to the said person. On refusal to fulfill the said demand, the said police officer illegally and by apply­ing force had taken the petitioner and Sri Khargeswar Deka to Khetri Police Station and detained them there. Thereafter, on the basis of the report of the said police officer, a case was registered against the petitioner and some other persons under Section 380IPC on the allegation of theft of sugar from Rail­way wagon at Tetelia Station. On the basis of the said police case, the petitioner and the other accused persons had to face trial be­fore the Court of Judicial Magistrate at Guwahati. On the basis of the said police case, the petitioner and the other accused persons had to face trial be­fore the Court of Judicial Magistrate at Guwahati. Further case of the petitioner is that in view of the registration of the said criminal case, the petitioner was placed under suspen­sion vide order dated 18.06.2002 which was followed by departmental proceeding initiated by a charge-sheet issued by the Divisional Security Commissioner, i.e. Respondent No.6 under Section 9(1)(i) of the Railway Protec­tion Force Act, 1957 (for short' Act, 1957') read with Rule 153 of Railway Protection Force Rules, 1987 (for short' 1987 Rules') with the following Statement of Article of Charges and statement of imputation although no opportunity was granted to the petitioner to submit any written statement in defence: Statement of Article of Charges : "Charge Sheet under Rule 153 against Md. Saved Mansur Ali HC/RPF/NGC(P). Statement of Article of charge against Md. Sayed Mansur Ali, HC/RPF/NGC(P). Gross neglect of duty in that Md. Sayed Mansur Ali, HC/RPF/NGC(P) who was booked to TTLA station for train passing and drop load guarding duty failed to prevent the theft of sugar from wagon No. SRBCN-45195 C/Sugar Ex-DVG to KXJ arrived TTLA station yard on 15.06.2002. So/- Illegible. Divl. Security Commissioner/RPF N.F. Railway, Lumding" "Statement of Imputation of Gross neglect of duty in support of the charge frame against Md. Sayed Mansur Ali, HC/RPF/NGC(P). Md. Sayed Mansur Ali, HC/RPF/NGC (P) with Sri Khargeswar Deka, Constable/ RPF/ NGC(P) was detailed for train passing, drop load, Up & Dn. Signal guarding duty at TTLA station vide Command Certificate No.6/25 dated 30.05.2002 and D.E. No. 52 time 11.45 hrs. dated 30.05.2002 of RPF Post NGC(P). On 15.6.2002 at 18.15 hrs. Up KXJ sugar arrived TTLA and was stabled there Sri B.C. Goswami, Guard of the train noticed two persons moving suspiciously near wagon No. SRBCN, 45195 C/Sugar Ex. DVG to KXJ. When he reached near the wagon the two persons went away leaving about 7 Kg. sugar in a plastic bag extracted from the wagon. Subsequently Md. Mansur Ali HC and Khargeswar Deka, CT took the recovered 7 Kg. sugar in their custody and kept in abandoned cabin where RPF staff take rest. On 16.06.2002 SI/RPF/NGC(P) Rajkumar seized the 7 Kg sugar in presence of witness. On 16.06.2002 at about 03.00 hrs. sugar in a plastic bag extracted from the wagon. Subsequently Md. Mansur Ali HC and Khargeswar Deka, CT took the recovered 7 Kg. sugar in their custody and kept in abandoned cabin where RPF staff take rest. On 16.06.2002 SI/RPF/NGC(P) Rajkumar seized the 7 Kg sugar in presence of witness. On 16.06.2002 at about 03.00 hrs. OC/ Local P.S. Khetri attended TTLA station on receipt of the information of theft and found 6 persons committing theft and could apprehend 3 per­sons namely, (1) Md. Sayed Mansur Ali, HC/ RPF/NGC(P), (2) Sri Khargeswar Deka, CT/RPF/ NGC(P), (3) Sri Anil Bordoloi, Gangman/TTLA near the wagon No. SRBCN-45195, C/Sugar Ex. DVG to KXJ with recovery of 2 gunny bags weighing 60 Kg and 30 Kg sugar and one iron incriminating instrument. HC/Sayed Mansur Ali has been arrested by OC/Local/Police/Khetri and handed over to OC/GRPS/GHY, who for­warded him to Court in connection of the Case No. 22/2002 under Section 380IPC. For failure to prevent the theft from wagon No. SRBCN-45195 C/Sugar Ex. DVG to KXJ on the part of Md. Sayed Mansur Ali, HC/RPF/ NGC(P) tantamounts to neglect of duty in terms of Rule 147(i) of RPF Rule 1987. Hence the charge. Sd/- Illegible, Divl. Security Commissioner/RPF N.F. Railway, Lumding" 4. In the charge-sheet, the date of enquiry was fixed on 11.08.2002 at RPF post/NGC (P) at 10.00 hrs. and the petitioner was asked to attend the enquiry, making it clear that on failure to attend the enquiry, the same would be conducted ex-parte. One Mr. C.M. Gupta, IPF/PNO was appointed as Enquiry officer. As directed, the petitioner appeared before the Enquiry officer on the date so fixed and submitted a petition to stay the depart­mental proceedings against him on the ground that on the same set of allegations in connec­tion with the same incident a criminal case was pending in the Court of Judicial Magistrate at Guwahati. However, the Enquiry officer did not stay the said proceeding and started to proceed with the departmental proceeding. Finding no other alternative the petitioner par­ticipated in the said proceeding and appointed one Mr. N.S. Nandi, ASI/RPF as represen­tative to defend his case. However, the En­quiry officer did not allow Mr. Nandi to de­fend the case of the petitioner on the plea that by that time Mr. Nandi had retired from ser­vice. Finding no other alternative the petitioner par­ticipated in the said proceeding and appointed one Mr. N.S. Nandi, ASI/RPF as represen­tative to defend his case. However, the En­quiry officer did not allow Mr. Nandi to de­fend the case of the petitioner on the plea that by that time Mr. Nandi had retired from ser­vice. Thereafter, the petitioner was not given any opportunity to appoint any representative to defend his case and as a result, he was compelled to defend his case himself. 5. During the course of the departmental proceeding, four witnesses were produced and examined by the department including Mr. P.K. Bora, officer-in-Charge of Khetri Po­lice Station. According to the petitioner, ex­cept Mr. P.K. Bora none of the witnesses had supported the case of the department during the course of examination in the said depart­mental proceeding. 6. On conclusion of the recording of the evidence of departmental witnesses, it is al­leged that no opportunity was granted to the petitioner to produce his witness to adduce evidence in his defence. Only the statement of the petitioner was recorded by the Enquiry officer wherein the petitioner denied all the allegations levelled against him. Thereafter, on 11.11.2002, the Enquiry officer submitted his enquiry report to the Disciplinary Authority with his findings that "charge for failure to pre­vent the theft from wagon No. SRBCN-45195 C/Sugar Ex-Dug to KXJ on the part of Md. Sayed Mansur Ali HC/RPF/NGC(P) is PROVED". 7. On receipt of the enquiry report dated 11.11.2002, the Disciplinary Authority had forwarded a copy of enquiry report to the petitioner and asked him to submit his repre­sentation, if any, to finalise the case. Accord­ingly, the petitioner submitted his representa­tion to the respondent No.6 with a prayer to withdraw the notice and the charges on vari­ous grounds mentioned therein. However, the respondent No.6 vide his order dated 23.12.2002 held that the charge against the petitioner is proved and found the petitioner to be guilty of the said charges thereby agree­ing with the findings of the Enquiry officer and on the basis of which the petitioner was awarded with punishment of removal from service as per authority vested on him under Schedule-Ill read with Rule 25 of 1987 Rules. Against the said order of punishment, the petitioner had submitted a statutory appeal to the respondent No.4 with a prayer for setting aside the order of punishment wherein amongst other grounds the petitioner stated that he had only seven days to go for retirement on attaining the age of superannua­tion. However, vide letter dated 23.04.2004, the respondent No.6 informed the petitioner that his appeal was disposed of by the Addi­tional Chief Security Commissioner, NF Rail­way, Maligaon vide his order dated 08.04.2004 upholding the decision of the Dis­ciplinary Authority. After receiving the copy of the aforesaid order, the petitioner submit­ted representations to the higher authorities of RPF for consideration of his case afresh and to set aside the order of punishment. However, he has not received any reply from the authorities till date. 8. It is pertinent to mention herein that in the meantime, the criminal case being GR Case No. 2636/02 registered under Section 380IPC against the petitioner and other per­sons on the same allegations was disposed of by the Special Judicial Magistrate, Kamrup, Guwahati vide judgment and order dated 30.12.2004 thereby acquitting all the accused persons including the petitioner. The relevant portion of the judgment is reproduced herein below: ".... In a case under theft the ownership and identity of the stolen property must be unfolded by the prosecution. Lack of proof of such iden­tity and ownership make the case vulnerable in a trial under Section 380 IPC. The prosecution as it appears before me fails to inspire any con­fidence to record conviction of the accused. For what have been discussed above pros­ecution failed to bridge between the crime and criminal. Thus, the point for determination is decided into naught. In the result the accused persons are acquitted from charge under Sec­tion 380 IPC and set them at liberty...." After passing of the judgment as stated hereinabove, the petitioner submitted a rep-reservation to the Divisional Security Com­missioner, RPF, NF Railway, Lumding on 08.04.2005 to consider his case afresh and to reinstate him in service on the ground that he has been acquitted from the criminal case. However, that has evoked no response from the authority. Hence, the instant petition with the aforesaid prayer. 9. A detailed affidavit-in-opposition has been filed on behalf of the respondents in the instant case wherein it has been denied that the petitioner was not afforded all reasonable opportunity to defend his case. However, that has evoked no response from the authority. Hence, the instant petition with the aforesaid prayer. 9. A detailed affidavit-in-opposition has been filed on behalf of the respondents in the instant case wherein it has been denied that the petitioner was not afforded all reasonable opportunity to defend his case. In this regard, it has been stated that the petitioner had him­self appointed one Mr. N.S. Nandi to act as his representative to defend his case during the course of departmental enquiry which was rejected by the Enquiry officer of the ground that the nomination of the petitioner was be­yond the purview of Rule 153 of the 1987 Rules. Thereafter, the petitioner did not nomi­nate any other person to act as his defence representative. It has fuither been stated therein that had the petitioner nominated any other person as his defence representative the concerned authorities would have definitely considered his nomination as per provisions of law. 10. So far the initiation of departmental proceeding is concerned, the respondents have stated that there was no legal bar in hold­ing the departmental proceeding against the petitioner during the pendency of criminal pro­ceeding, inasmuch as, the charges levelled against the petitioner in the departmental pro­ceeding were totally different than that of the charge framed in the criminal proceeding. Further, as per depositions/statements of the witnesses in the departmental proceeding, there is enough evidence on record proving the charges framed against the petitioner. 11. Regarding the allegation that the peti­tioner was not allowed to produce/examine any witness on his behalf, it is stated that dur­ing the course of departmental enquiry and even after the completion of recording of the prosecution witnesses, the petitioner had never submitted any list of defence witness and/or document. Hence, it was denied that the petitioner was not allowed to produce/ examine his witness during the course of the departmental proceeding. According to the respondents, the Enquiry officer on consid­eration of oral as well as documentary evi­dence as brought out against the petitioner during the course of the said enquiry found the charges levelled against the petitioner to be established and accordingly, the Enquiry officer submitted enquiry report dated 11.11.2002 to the Disciplinary Authority. It has been further contended that after receiv­ing the enquiry report from the Enquiry officer, the Disciplinary Authority asked the petitioner to submit a representation vide show cause notice dated 18.11.2002. It has been further contended that after receiv­ing the enquiry report from the Enquiry officer, the Disciplinary Authority asked the petitioner to submit a representation vide show cause notice dated 18.11.2002. Ac­cordingly, the petitioner submitted his repre­sentation on 03.12.2002. Thereafter, the Dis­ciplinary Authority on consideration of the findings of the Enquiry officer and the afore­said representation submitted by the petitioner found the charges levelled against the peti­tioner to be established/proved and conse­quently, the respondent authority issued the impugned order dated 23.12.2002 thereby imposing punishment of removal from service of the petitioner. 12. Heard learned counsel appearing for the parties at length. Mr. Mazumdar, learned senior counsel appearing for the petitioner submits that in the instant case while issuing charge sheet dated 31.07.2002, no oppor­tunity was given to the petitioner to submit his representation/statement of defence which has caused great prejudice to the petitioner, inas­much as, during the course of enquiry in ques­tion, the petitioner, who was serving as Head Constable, R.P.F. was not made aware of his rights and niceties for the procedure of the departmental proceedings thereby causing the entire departmental proceedings vitiated. 13. The original records have been pro­duced by Mr. Nair, learned Standing Coun­sel, Railway appearing for the respondents. I have perused the same. On perusal of the records, I do not find anything to show that the petitioner, who was serving as Head Con­stable, was made aware of his various rights and procedure followed in the departmental proceeding by the Enquiry officer. So far the submission of the learned counsel for the pe­titioner that except PW1, Mr. Rajkumar, SI, RPF, who conducted the preliminary enquiry in the initial stage and PW 2, Mr. P.K. Borah, officer-in-Charge of Khetri Police Station, none of the witnesses supported the case of the prosecution, which is evident from the fact that P.W.-3, Mr. Bhuban Ch. Goswami, Guard of the Train, who was on duty on the day of the incident, clearly stated that he did not find any irregularity on checking the seals of wagons. He also could not confirm that the sugar which shown to have been stolen belongs to Railway or not. According to him, no theft could take place from the wagons of the train and trespassers may keep the sugar bags by the side of the Railway tracks. PW. 4, Mr. Amulya Ch. He also could not confirm that the sugar which shown to have been stolen belongs to Railway or not. According to him, no theft could take place from the wagons of the train and trespassers may keep the sugar bags by the side of the Railway tracks. PW. 4, Mr. Amulya Ch. Mandal, who was serving as Assistant Station Master also had not stated anything during the deposition regard­ing the theft of sugar from the wagon of the train. Therefore, submitted Mr. Mazumdar that there was no material available on records and/or evidence before the Enquiry officer to prove the guilt of the petitioner in the in­stant case. 14. Mr. Mazumdar in support of his sub­mission has placed reliance on a decision in Mani Shankar Vs. Union of India & Anr., reported in (2008) 3 SCC 484 wherein the Apex Court held that the Courts while exer­cising power of judicial review are entitled to consider as to whether while inferring com­mission of misconduct on the part of the de­linquent officer relevant piece of evidence has been taken into consideration and irrelevant facts have been excluded therefrom. Relevant para 17 of Mani Shankar (su­pra) is quoted hereinbelow: "The departmental proceeding is a quasi ju­dicial one. Although the provisions of the Evi­dence Act are not applicable in the said pro­ceeding, principles of natural justice are required to be complied with. The Courts exercising power of judicial review are entitled to consider as to whether while inferring commission of mis­conduct on the part of a delinquent officer rel­evant piece of evidence has been taken into consideration and irrelevant facts have been excluded therefrom. Inference on facts must be based on evidence which meet the requirements of legal principles. The Tribunal was, thus en­titled to arrive at its own conclusion on the pre­mises that the evidence adduced by the De­partment, even if it is taken on its face value to be correct in its entirety, meet the requirements of burden of proof, namely, preponderance of probability. If on such evidences, the test of the doctrine of proportionality has not been satisfied, the Tribunal was within its domain to interfere. We must place on record that the doc­trine of unreasonableness is giving way to the doctrine of proportionality." 15. If on such evidences, the test of the doctrine of proportionality has not been satisfied, the Tribunal was within its domain to interfere. We must place on record that the doc­trine of unreasonableness is giving way to the doctrine of proportionality." 15. Regarding the submission of the peti­tioner about his acquittal in criminal proceed­ing on the same set of allegations, this Court holds that it is a settled position of law that the standard of proof in criminal proceeding is different than that of the departmental proceeding. However, on perusal of the judg­ment passed by the Special Judicial Magis­trate in GR Case No. 2636/02 under Sec­tion 380 I.P.C., it is found that in the said case, the petitioner was acquitted on the ground of non-identification of stolen property as well as its ownership which according to the trial Court must be unfolded in the case of theft by the prosecution. 16. This Court while exercising power of judicial review, perused the record of the case including the statements of various witnesses, particularly, the statements of PWs-3 and 4 as already mentioned above. On perusal of the records it is found that the Enquiry officer as well as the Disciplinary Authority did not take into consideration the evidence of P.W.-3, Guard of the train. P. W.-3 stated in his deposition that he did not find any irregu­larities on checking the seals of the wagon of the train, inasmuch as, he also could not con­firm that the sugar which shown to have been stolen belongs to Railway or not. According to him, no theft could take place from the wagon of the train and the trespassers might have kept the sugar by the side of the train. Similarly, P. W.-4, Mr. Amulya Ch. Mandal, Assistant Station Master also did not state anything in his deposition regarding the theft of sugar from the train. Accordingly, this Court is of the opinion that while recording the find­ings, the Enquiry officer has not taken into consideration the relevant pieces of evidence which is the main basis for arriving at a con­clusion for imposition of penalty in a depart­mental proceedings as held by the Apex Court in Mani Shankar (supra). 17. Accordingly, this Court is of the opinion that while recording the find­ings, the Enquiry officer has not taken into consideration the relevant pieces of evidence which is the main basis for arriving at a con­clusion for imposition of penalty in a depart­mental proceedings as held by the Apex Court in Mani Shankar (supra). 17. On perusal of the records and after hearing the learned counsel appearing for the parties as well as the case laws cited, this Court is of the opinion that since the charges against the petitioner could not be proved on the materials available on record, the penalty of removal from service dated 23.12.2002 requires interference. 18. In the result, the writ petition is allowed by setting aside the impugned order of re­moval dated 23.12.2002 as well as order dated 08.04.2004 passed by the appellate authority upholding the order of the disciplin­ary authority. 19. Further, since the order of removal was issued just before seven days of his superan­nuation, it is submitted at the Bar that the pe­titioner had already retired. The order of re­moval being set aside, the entitlement of the petitioner in respect of his pensionary ben­efits including all consequential benefits shall be released within a period of 3 (three) months from the date of receipt of a certified copy of this order. For that purpose, authority shall pass necessary order. 20. Considering the facts and circum­stances of the case, there shall be no order as to cost.