JUDGMENT This writ petition has been filed by the petitioner to declare the Divisional Order No.242/93 (B/XP.227/153/93/4), dated 15-09-1993 of the 1st respondent removing him from service as confirmed by Force order No.151/94 (X/P.227/Appeal/93/22) dated 25-07-1994 of the 2nd respondent, and Force Order No.61/96 (XP.227/Appeal-93/22-9 Mercy petition), dated 23-04-1996 and Force Order No.215/99 (X/P/227/APPEAL, dated 08-12-1999 of the 3rd respondent as illegal, arbitrary and violative of Articles 14 and 16 of the Constitution of India and to direct the respondents to reinstate the petitioner into service with all consequential benefits including back-wages, seniority and promotion etc. 2. The petitioner was appointed as a Constable in the Railway Protection Force and was posted at the Railway Goods Shed, Kakinada. While so, on 22-04-1993, he was on duty from 14.00 hours to 22.00 hours at the Railway Goods Shed, Kakinada. Around 00.30 hours on 23-04-1993, two criminals committed theft of 16 bags of Soya DOC from a Wagon No.CR-CRT 69940 ex.PAR-COA at the above shed. 3. Alleging that the petitioner was also present near the said wagon at the time of the theft though he was not supposed to be available there at that time, a charge sheet under Rule 153 of the RPF Rules, 1987 was issued to him on 19-05-1993 alleging that the petitioner had connived with the said criminals, that he had admitted it in his statement and thereby behaved in a manner unbecoming of a member of the disciplined Force. 4. The petitioner acknowledged the receipt of the charge sheet on 20-05-1993. One B.Narayana Reddy was the enquiry officer who enquired into the charges levelled against the petitioner. During the course of enquiry, the enquiry officer examined five prosecution witnesses and marked seven documents as exhibits. The enquiry officer, by proceedings dated 10-08-1993, held that the petitioner was guilty of the charges made against him. A copy of the report of the enquiry officer was furnished to the petitioner on 11-08-1993. The petitioner submitted a representation dated 26-08-1993 against the enquiry report. After considering the same, the 1st respondent by Divisional order dated 242 of 1993 dated 15-09-1993 agreed with the findings of the enquiry officer and held the petitioner guilty of the charges. He imposed a punishment of removal from service on the petitioner keeping in view the gravity of the offence. 5. Aggrieved thereby the petitioner filed an appeal to the 2nd respondent. He imposed a punishment of removal from service on the petitioner keeping in view the gravity of the offence. 5. Aggrieved thereby the petitioner filed an appeal to the 2nd respondent. The 2nd respondent also rejected the appeal vide Forceorder No.151 of 1994 dated 25-07-1994 and confirmed the order of punishment imposed on the petitioner by the 1st respondent. 6. The petitioner thereafter submitted a mercy petition dated 13-03-1994 to the 3rd respondent but the 3rd respondent also rejected it by Force order No.61 of 1996 dated 23-04-1996. 7. In the meantime, in the criminal prosecution initiated against the petitioner and five others in C.C.No.299 of 1993 under Section 3 (a) of R.P.(UP) Act, 1966 before the VII Metropolitan Magistrate for Railways at Vijayawada, the petitioner was acquitted of the offence alleged against him. 8. In view of the said acquittal in the criminal case, the petitioner submitted a representation to the 3rd respondent seeking a review of the punishment imposed against him contending that he is innocent and the allegations made against him are not true. The said review petition was also rejected by the 3rd respondent by force Order No. 215 of 1999 dated 08-12-1999. 9. Aggrieved thereby the petitioner has filed the present writ petition. 10. Heard Sri J.M.Naidu, learned counsel for the petitioner and Sri G.S. Sanghi, learned Standing Counsel for the respondents. 11. The learned counsel for the petitioner contended that the petitioner had been denied an opportunity to engage a‘friend’ to defend him in the enquiry conducted against him and that in spite of his request to the enquiry officer to grant time to engage ‘a friend’ to cross examine the witnesses, the enquiry officer denied the said opportunity. 12. The learned Standing Counsel for the Respondents denied the said allegation and contended that the enquiry officer has followed the principles of natural justice and had given adequate opportunity to the petitioner to engage a ‘friend’ in the enquiry and that the petitioner did not avail the said opportunity. 13. It is seen from the material placed on record that the petitioner on 22-05-1993 had addressed a letter to the enquiry officer praying that he be granted ten days time for arranging a ‘friend’ to defend his case. 13. It is seen from the material placed on record that the petitioner on 22-05-1993 had addressed a letter to the enquiry officer praying that he be granted ten days time for arranging a ‘friend’ to defend his case. On 02-06-1993 the petitioner gave another representation to the enquiry officer stating that ‘friend’ was unavailable, that the enquiry be continued and that he did not require any friend to defend case. In view of the fact that the petitioner received the charge sheet on 20-05-1993 and even though he was granted ten days time to arrange a ‘friend’, he could not do so and consequently he himself by representation dated 20-06-1993 requested the enquiry officer to proceed with the enquiry stating that he did not require any friend, the petitioner is estopped from contending that he was denied an opportunity by the enquiry officer to engage a ‘friend’ to defend him in the enquiry. 14. The learned counsel for the petitioner further contended that even though the petitioner was present at the time of the incident, he was not arrested, that one P.Rutherford, Senior Goods Clerk whose statement was relied upon for proving the charge was not examined, that individual witnesses/mediators viz., P.Trimurthulu and G.Srinivas were not examined and that there was no proof adduced in the departmental enquiry that the seized Soya De-oiled cake belongs to the railways and was railway property. He also contended that since the petitioner was acquitted in the criminal case, on the same facts, the respondents should have withdrawn the orders of punishment of removal imposed on him and reinstated him into duty. 15. He also contended that since the petitioner was acquitted in the criminal case, on the same facts, the respondents should have withdrawn the orders of punishment of removal imposed on him and reinstated him into duty. 15. The learned Standing Counsel for the respondents contended that the findings in the domestic enquiry are based upon the evidence adduced therein, that the petitioner had no where denied his presence at the time of incident and that the petitioner himself had given a statement before the Inspector of Protection Force on 23-04-1993 wherein he has admitted that there was a conspiracy to which he is a party to commit theft of the Soya DOC bags from the wagon parked in the railway goods shed at Kakinada to sell the proceeds, that he and another employee Appalaraju together went to the shed at 23.00 hours on 22-04-1993 with one Tata Rao and one Nukaraju, that he and Appalaraju stood outside near the wagon while Tata Rao and Nookaraju removed the Soya DOC bags from the wagon, that they took away initially five such bags, that they returned again after one hour and again loaded six bags into rickshaw and while they were removing five more bags from the wagon, the Sub Inspector of Protection Force and Assistant Sub Inspector of Protection Force and two constables came and that Nookaraju and Tata Rao ran away while he and Appalaraju got caught. In the said statement, he also stated that the Sub Inspector, in the presence of mediators, got a report prepared. The learned Standing Counsel also contended that non-examination of P.Rutherford and the mediators P.Trimurthulu and Srinivas will not vitiate the enquiry officer’s report and that acquittal of criminal case is no bar to impose a punishment in the departmental enquiry. He also contended that since the petitioner had admitted that the Soya DOC bags were removed from a railway wagon, it amounts to theft of railway property and being a constable in the Railway Protection Force whose duty was to protect railway property, the petitioner cannot plead any excuse for committing theft of the said property and the punishment of removal from service imposed on the petitioner was just and proper in the circumstances of the case. 16. 16. From the material available on record, it is clear that the petitioner was employed as a constable and he was posted on 22-04-1993 at Railway Goods Shed, Kakinada during the period 14.00 hours to 22.00 hours. At about 00.30 hours on 23-04-1993 the petitioner was found to be present in civilian dress when two criminals committed theft of Soya DOC from a wagon of CPCRT 69940 ex.PAR-COA at the shed and petitioner had also given a written statement at 0315 hours on 23-04-1993 before the Inspector of the Protection Force and the Sub Inspector of the Protection Force admitting to not only his presence, but also to the fact that he was a party to a conspiracy to commit theft of the railway property and that he was present in civilian clothes at the time he was caught with another employee Appalaraju who was on duty at that time. The enquiry officer had examined P.Ws.1 to 5 and marked the statement of the petitioner as Ex.P-1 and the statement of the other employee Ch.Appalaraju as Ex.P-2 in the enquiry. P.W.2, Sri T.Murali Krishna, Sub Inspector of Protection Force who apprehended the petitioner at the goods shed at the time when the offence took place was also examined. P.W.3, M.Venkateswara Rao and P.W.4 Sk.Khadarvali who were constables present with the Sub-Inspector at the time when the theft was discovered were also examined. PW2, T.Mirali Krishna deposed in the enquiry about noticing the outsiders unloading Soya DOC bags from the wagon and finding the petitioner and Ch.Appalaraju at the scene of offence. On the basis of this evidence and also on the basis of the written confession made by the petitioner, the enquiry officer found the petitioner guilty of the charge. It is clear that the enquiry officer’s findings are based on evidence recorded by him in the enquiry and they cannot be said to be perverse or based on no evidence. The respondents 1 to 3 have considered the evidence adduced in the enquiry, the report of the enquiry officer apart from the defence statement dated 18-07-1993 of the petitioner and agreed with the findings of the enquiry officer. 17. The petitioner had not denied his presence at the scene of the offence in the enquiry or in the defence statement dt.18.7.93 submitted by him. 17. The petitioner had not denied his presence at the scene of the offence in the enquiry or in the defence statement dt.18.7.93 submitted by him. The fact that he was not arrested under the RPF (UP)Act does not mean that he was not present at the scene of the offence. The petitioner had also not pleaded anywhere that the confessional statement dt.23.4.1993 given by him was procured under coercion. On a consideration of the record, I feel that the enquiry officer and the respondents rightly held that the charge against the petitioner is proved and I agree with their reasoning and conclusion in that regard. It is settled law that the High Court under Article 226 of the Constitution of India cannot act as a Court of appeal and re-appreciate the evidence on the basis of which the disciplinary authority had imposed a punishment on a delinquent employee. (see Apparel Export Promotion Council Vs. A.K.Chopra (1999) 1 SCC 759 ); and State Bank of India Vs. Ram Lal Bhaskar and Another (2011) 10 SCC 249 ). 18. The petitioner having been employed as constable in the Railway Protection Force had a duty to protect the railway property. Instead of doing so, he was found to have connived in the theft of railway property with two criminals and a co-employee. The fact that the petitioner was in mufti while the co-employee was on duty and both were found helping the criminals in committing theft of the railway property has to be viewed seriously. Therefore, on the facts and circumstances of the case, it cannot be said that the punishment imposed on the petitioner is unjust .No lenience can be shown to the petitioner. It is settled law that the writ court will not normally substitute the decision made by the disciplinary authority as to punishment with its own decision unless the decision of the disciplinary authority shocks the conscience of the Court or no reasonable person would impose such punishment. (NoharlalVerma Vs. District Cooperative Central Bank Limited, Jagdalpur ( 2008 (14) S.C.C. 445 ). 19. The contention of the petitioner that he was acquitted by the criminal court and therefore, the punishment imposed on him has to be annulled is also without merit. (NoharlalVerma Vs. District Cooperative Central Bank Limited, Jagdalpur ( 2008 (14) S.C.C. 445 ). 19. The contention of the petitioner that he was acquitted by the criminal court and therefore, the punishment imposed on him has to be annulled is also without merit. It is settled law that the acquittal in the criminal case cannot be a ground for interfering with the punishment imposed by the disciplinary authority and that an order of dismissal can be passed even if the delinquent official has been acquitted of the criminal charge. (See Southern Railway Officers Association Vs. Union of India ( AIR 2010 S.C. 1241 ). In Samar Bahadur Singh Vs. State of Uttar Pradesh and Others (2011) 9 S.C.C. 94 ) and Secretary, Ministry of Home Affairs Vs. Tahir Ali Khan Tyagi (2002 Supreme (6) 274), it was held that the standard of proof in a disciplinary proceeding and in the criminal case is totally different. In a criminal case, the prosecution has to prove the criminal case beyond all reasonable doubt whereas in a departmental proceeding, the department has to prove only the preponderance of probabilities. In the present case, the respondents have been able to prove the case on the standard of preponderance of probabilities. 20. In this view of the matter there are no merits in the writ petition. Hence it is dismissed, but in the circumstances, without costs.