Oral.:- Heard Mr. T. Islam, learned counsel for the appellant. Also heard Mr. B.S. Sinha, learned Addl. PP representing the State., 2. The petitioner who was serving as an Armed Branch Constable in the Assam Police challenges the order dated 13.12.99 (Annexure -D), whereby he has been dismissed from service in pursuant to a disciplinary proceeding. The petitioner also challenges the order dated 17.11.01 (Annexure-F) passed by the Appellate Authority, whereby the inflicted penalty has been approved, by dismissing his Appeal. 3. Following an incident on 16.9.98 evening during an anti- insurgency operation launched by the Police, which led to fatal injuries on the O.C. of Duliajan P.S. S.I. Khagen Konwar and S.I. Pranab Buragohain ,who were shot by Motor cycle riding extremists, a preliminary enquiry was conducted. In the report dated 19.9.98, the Supdt. of Police, Dibrugarh recorded the following preliminary finding: - " (1) Inspite of concrete information of movement of extremist no Police Personnel in ambush was alert to combat with situation. (2) No Police personnel in ambush retaliate the firing in spite all were with arms. (3) No Police Personnel tried to nab the culprits who could have caught them easily. (4) All police personnel except of Manoj Baruah of Joydeep Dutta and C/Kula Barua left the place of occurrence in cowardice manner even leaving the injured personnel neglected and untouched." 4. When the above preliminary report was submitted, the petitioner and several other policemen involved in the operation were placed under suspension. Thereafter a departmental proceeding was drawn up against the petitioner, and a show cause notice dated 3.10.98 was issued to him with two charges containing the following statement of allegation:- " STATEMENT OF ALLEGATION ABC. 311 Mabidur Islam was posted at Duliajan P.S. on 24.7.97 for discharging his duties as Constable under O.C. Duliajan P.S. On 16.9.98 while he along with S.I. Khagen Konwar, O.C. Dul;ianjan P.S., S.I. Pranab Buragohain, S.I. Haresh Kr. Buragohain, 5 UB Constables and 3 AB Consta bles armed with Rifles and Pistols etc. were checking vehicles/two wheelers in anti- insurgency operation at Madhapur Tinali at about 5-40 P.M. of the death two unidentified youths coming from Duliajan side riding in Yamaha Motorcycle (No. AS-001E- 3711) was stopped by O.C. Duliajan P.S. S.I. Khagen Konwar and S.I. Pranab Buragohain with two constables namely UBC. 1392 Nakul Kardong and UBC.1456 Siba Gogoi. were checking vehicles/two wheelers in anti- insurgency operation at Madhapur Tinali at about 5-40 P.M. of the death two unidentified youths coming from Duliajan side riding in Yamaha Motorcycle (No. AS-001E- 3711) was stopped by O.C. Duliajan P.S. S.I. Khagen Konwar and S.I. Pranab Buragohain with two constables namely UBC. 1392 Nakul Kardong and UBC.1456 Siba Gogoi. Both the riders got down from the motor cycle and opened fire on the police party as a result of which S.I. Khagen Konwar sustained grievous bullet injuries and S.I. Pranab Buragohain succumbed to the injuries later on. At that time ABC. 311 Mobidur Islam along with S.I. Haresh Kr. Borgohain and two armed constables standing at a distance of about 15 metres from the place of occurrence for protection of checking party, but he failed to retaliate immediately without returning fire a single shot due to which the assailants could manage to escape on foot leaving behind the motor cycle which amounts to gross negligence of lawful duties, gross misconduct and dereliction of duties and thereby he is charged with. Secondly, while both th injured officers was lying on the ground, ABC 311 Mobidur Islam instead of taking any initiative for removing them for treatment, he immediately left the place of occurrence along with S.I. Haresh Kr. Borgohain and few constables of the ambush party by the vehicle bearing No. AS- 06A-3055 (Venet) out of fear. This reflects his serious negligence of lawful duties and cowardice and as such undesirable to retain in the discipline force and thereby he is charged with. Secondly, while both the injured officers were lying on the ground, you, instead of taking any initiative, for removing them for treatment immediately, you have left the P.O. along with S.I. Haresh Kr. Borgohain and few consts. Of the ambush party by the vehicle(No. AS-06A-3055 (Venet) out of fear. This also reflects your serious negligence of lawful duties and cowardice and as such undesirable to retain in the force and thereby you are charged with." 5.1 In his reply dated 9.10.98, in response to the first charge of not shooting back at the extremists, the delinquent claimed that during the ambush operation he was posted at a distance of 70/80 yards from the Madhapur Trijunction location where the shooting had taken place and due to the distance, darkness and lack of visibility, he could not shoot back at the extremists. 5.2 As regards the second charge of fleeing the place of occurrence without rendering any assistance to the injured policemen, the delinquent replied that he rushed to the spot where the 2 police S.I's had fallen after they were shot and on instruction of the injured O.C. Khagen Konwar who in the meantime was lifted on to police Gypsy vehicle for being taken to the Duliajan Hospital, the delinquent along with ABC/Tritha Das, ABC/Swadhin Borpatra and S.I. Haresh Kr. Borgohain got into the 2nd police vehicle venette and piloted the Gypsy with the injured policemen towards the hospital. On the way the Venette party informed about the shooting incident at the Duliajan P.S. and then proceeded to the Duliajan Hospital to help the injured victims. The delinquent specifically replied that he rode in the Venette vehicle as directed by the injured O.C. of the Duliajan P.S. Konwar and he did not flee from the place of occurrence, as was alleged. 6. As the reply was found to be unsatisfactory, an enquiry was ordered and in the Enquiry Report prepared on 4.5.99 by the Addl. S.P. Imran Hussain Bora, it was recorded that the first charge against the delinquent has been proved. 7. The Disciplinary Authority considered the act of the delinquent to be gross negligence of duty and accordingly ordered for his dismissal from service. 8.1 The learned counsel for the petitioner Mr. P.J. Saikia contends that the disciplinary proceeding is vitiated as there was no material evidence to conclude that charge has been proved and therefore punishment inflicted on the basis of such perverse finding cannot be sustained. 8.2 The enquiry proceeding is further challenged by contending that there was no Presenting Officer for the enquiry and it is submitted that the Enquiry Officer himself played the role of the Presenting Officer without affording a defence assistant to the delinquent and therefore Mr. Saikia submits that the delinquent was denied of a fair opportunity to defend the charges. 8.3 Mr. Saikia points out that several witnesses were introduced in the enquiry proceeding, who were not cited in the list of witnesses and on this ground the enquiry is contended to be vitiated in law. 8.4 The learned counsel further submits that there was no consideration of the reply and the defence presented by the delinquent by the Enquiry Officer or by the Disciplinary Authority. 8.4 The learned counsel further submits that there was no consideration of the reply and the defence presented by the delinquent by the Enquiry Officer or by the Disciplinary Authority. 8.5 Lastly, it is contended that the Enquiry Officer did not afford any opportunity to the delinquent to cross-examine the prosecution witnesses. 9. Ms. V.L. Sinha, learned Addl. Sr. Govt. Advocate, per contra, submits that the delinquent being an Armed Branch Constable was a trained person and was expected to show appropriate initiative in the face of extremists fire and since he failed to retaliate even by single reply shot and failed to assist the injured policemen, he is not a fit person to be retained in service. 10. The learned counsel for the petitioner has taken the pain to take the Court through the testimony of all the ten prosecution witnesses. It is seen that none of them said anything incriminatory against the delinquent. It was the specific stand of the delinquent that on orders of the injured O.C. of Duliajan P.S., he boarded the Venette police van with others to escort the police Gypsy carrying the injured to the Duliajan Hospital. In the face of this specific plea, the evidence of PW-6 Bijoy Sankar Dubey who drove the Venette van was of utmost significance to demonstrate whether the delinquent fled away from the scene of the ambush or whether he proceeded along with other police personnel in the Venette van to the Duliajan Hospital. It is pointed out by Mr. Saikia that the Driver of the police Venette had stated during the enquiry that he does not know who got down from his vehicle at the hospital. Accordingly, it is submitted by the counsel that the presence of the delinquent in the police Venette has not been ruled out by the relevant witness i.e. the Driver who drove the vehicle. 11. It is also submitted that in the absence a Presenting Officer, the provisions of Sub-Rule- 5 of Rule-9 of the Assam Services (Discipline and Appeal) Rules, 1964 (hereinafter referred to as "the Rules") have been infringed and on this ground itself the enquiry proceeding is contended to be vitiated in law. In support of his contention, the learned counsel relies upon two decisions of this Court in Dr. In support of his contention, the learned counsel relies upon two decisions of this Court in Dr. Rajyamalla Buzarbarua vs. The Assam Administrative Tribunal and others reported in (1983) 1 GLR (NOC) 71 and Mutum Shantikumar Singh vs. Union of India & ors reported in 2005 (1) GLT 413. 12.1 The Court in Dr. Rajyamalla Buzarbarua (supra) has held that in the absence of any Presenting Officer it has to be accepted that no case was presented before the Enquiry Officer and on this basis the Court held that when the case against the delinquent has not been presented, and the Enquiry Officer himself questioned the witnesses and conducted the proceeding, the enquiry would be vitiated in law. 12.2 In the case of Mutum Shantikumar Singh(supra) the provisions of Rule-27 of the CRPF Rules 1955 were interpreted in the context of a disciplinary proceeding and this Court declared that to ensure compliance with the rules of natural justice and fair procedure, the Presenting Officer must be appointed in a disciplinary proceeding, although it was seen that Rule-27 of the CRPF Rules, neither prescribe nor exclude the appointment of a Presenting Officer. But the necessity of having a Presenting Officer was considered to be in consonance with the requirement of ensuring natural justice and fair procedure, to prove charges against the delinquent. 13. On reading of the penalty order passed by the Disciplinary Authority on 13.12.99, it is apparent that unproved charges relevant to the second allegation were also taken into account for ordering the dismissal as it has been concluded that the delinquent did not chase the extremists and he failed to render assistance for shifting the injured victim to the hospital. When only the first charge of not firing a single return shot at the extremists was proved in the enquiry, it is not understood as to how the Disciplinary Authority took note of the lapse alleged in the second charge against the delinquent. 14. It is also seen that none of the witnesses including PW-6 who was the driver of the police Venette had said anything incriminating against the delinquent and therefore there is no option but to declare that the conclusion reached by the Enquiry Officer are perverse conclusion, without any evidence to support such conclusion. 15. 14. It is also seen that none of the witnesses including PW-6 who was the driver of the police Venette had said anything incriminating against the delinquent and therefore there is no option but to declare that the conclusion reached by the Enquiry Officer are perverse conclusion, without any evidence to support such conclusion. 15. Since there was no Presenting Officer or Defence Assistant and the Enquiry Officer himself conducted the proceeding, the enquiry proceeding is found to be unfair as it is apparent that the delinquent was not afforded a fair opportunity to defend the charges nor his version of the incident was taken into account by the Enquiry Officer. 16. In the above circumstances, this Court is constrained to hold that the enquiry finding dated 4.5.99 is vitiated in law. Consequently the penalty based on such vitiated enquiry cannot be sustained. Accordingly, the impugned penalty dated 13.12.99 and the Appellate Order dated 17.11.2001 are set aside and quashed. 17. The petitioner be reinstated in service without any back wages as the State has not received any service from the delinquent in the interregnum. 18. The petition stands allowed to the extent indicated.