JUDGMENT 1. Challenging order dated 31.05.2003, 02.07.2003, and 09.06.2004, the petitioner has approached this Court. 2. Heard the learned counsel for the parties and perused the documents on record. 3. The brief facts of the case are that, the petitioner was appointed on 27.12.1973 in Indian Army and after his superannuation from service in the Indian Army, he joined the Central Industrial Security Force as a Constable on 04.03.1994. A Charge Memo dated 30.12.2002 was served upon the petitioner on the allegation that, he demanded and accepted illegal gratification of Rs. 10/- from one Jogeshwar Singh, the truck driver and in violation of the company rules, he has kept with himself more than Rs. 15/- while on duty. By order dated 24.12.2002, the petitioner was put under suspension. A preliminary enquiry was conducted into the matter and after considering the reply of the petitioner a regular departmental proceeding was initiated against the petitioner. The enquiry report dated 11.04.2003 was submitted and the petitioner was issued a second show-cause notice on 03.05.2003. The petitioner submitted his representation on 15.05.2003 and the penalty order, removing the petitioner from service, was passed on 31.05.2003. 4. A counter-affidavit has been filed stating as under:- “8. That in reply to paragraph 2(b) of the writ application, the answering respondents say and submit that the averment made by the petitioner is baseless, false and misleading to this Hon'ble Court. The petitioner has been removed from the service not on the ground that he had five rupees more in his pocket. As per instructions issued by DIG CISF Unit CCL Kargali letter No. IC- 11016/CISF/CCL/CIW/898 dated 20/22 May, 2002 no CISF personnel is allowed to keep more than Rs. 15/- with him while on duty. But the petitioner was having found Rs. 20/- in his pocket. Thus he violated the instructions issued by the superior. He has been awarded with the penalty of the removal from service for the charges leveled against him and after getting this proved during the course of departmental enquiry. 10. That in reply to paragraph 2(d) of the writ application, the answering respondents say and submit that the order of removal from service was issued only after the charges leveled against the petitioner was proved which is justified according to law and CISF Acts and Rules. 10. That in reply to paragraph 2(d) of the writ application, the answering respondents say and submit that the order of removal from service was issued only after the charges leveled against the petitioner was proved which is justified according to law and CISF Acts and Rules. The allegation against Inspector/Exe Rakesh Kapoor made by the petitioner is baseless and denied as the Inspector of CISF is not having any authority to cancel the driving license of driver. Further, the truck driver Sri Yogeshwar Singh had given the statement before Inspector/Exe Rakesh Kapoor in which he has stated that he has given one currency note of Rs. 10/- denomination to Constable P.K. Abrahamn (petitioner).” 5. Mr. Kailash Prasad Deo, the learned counsel appearing for the petitioner has submitted that the specific allegation against the petitioner is that, he demanded illegal gratification of Rs. 10/- from the truck driver namely, Jogeshwar Singh however, the said Jogeshwar Singh has not been examined during the departmental proceeding. The alleged statement given by the truck driver which has been produced in support of the evidence against the petitioner, cannot be accepted for recording a finding of proved misconduct against the petitioner. He has further submitted that the defence of the petitioner that, he had kept Rs. 20/- in his pocket for purchase of medicine has not been considered by the departmental authorities in right perspective and a different yardstick has been applied while testing the defence of the petitioner. Moreover, the penalty of removal from service is excessive and disproportionate to the charges framed and found proved against the petitioner in as much as, the order of removal from service would deprive the petitioner, the benefit of past service. 6. As against the above, Mr. Faiz-Ur-Rahman, the learned counsel appearing for the respondents has submitted that violating the instruction dated 20/22.05.2002, the petitioner kept more money in his pocket and thus, committed misconduct. The charge of taking illegal gratification has been found proved in the departmental proceeding and therefore, the order of removal from service is justified. 7. On a perusal of document on record, I find that two different charges were framed against the petitioner. The first charge was of demanding and accepting illegal gratification of Rs. 10/- from the truck driver namely, Jogeshwar Singh and the second charge was of keeping more than 15/- rupees during duty hours. 7. On a perusal of document on record, I find that two different charges were framed against the petitioner. The first charge was of demanding and accepting illegal gratification of Rs. 10/- from the truck driver namely, Jogeshwar Singh and the second charge was of keeping more than 15/- rupees during duty hours. During the departmental proceeding, five management witnesses and one Court witness were examined. One R.K. Prasad who conducted preliminary enquiry has been examined as Court witness to prove the statement given by the truck driver namely, Jogeshwar Singh. The management has also produced Inspector, Rakesh Kapoor, who has seen the petitioner accepting illegal gratification of Rs. 10/-. Though, the disciplinary authority has considered the evidence collected during the departmental enquiry and found the charges proved against the petitioner and the appeal and revision petition filed by the petitioner have been rejected by the departmental authority however, I find that since the charge leveled against the petitioner is of demanding and accepting illegal gratification therefore, the test which is applied in the criminal cases would have been applied in the departmental proceeding against the petitioner. The statement given by the truck driver namely, Jogeshwar Singh is used as evidence against the petitioner. The other departmental witnesses, except P.W.1 and P.W.5 were not the eye-witness. It is the case of the department that, P.W.5 was all along with P.W.1, when the alleged occurrence took place however, P.W.5 has stated that he did not witness the petitioner demanding and accepting bribe from the truck driver. C.W.1 has stated that he took statement of the truck driver who allegedly re-affirmed his earlier statement given on 23.12.2002 however, no statement was recorded by C.W.1 and during the departmental enquiry statement of the truck-driver recorded on 23.12.2002 has only been produced. Another witness has stated during the departmental enquiry that he found the truck driver namely, Jogeshwar Singh saying 'yes' as well as 'no' when P.W.1 asked him whether the petitioner had demanded money. The truck driver was not examined and the petitioner has specifically alleged that P.W.1 threatened the truck driver and got his signature on blank papers. In view of the aforesaid facts and circumstances, I find that charge leveled against the petitioner that he demanded and accepted Rs. 10/- from the truck driver namely, Jogeshwar Singh is clouded with suspicion. 8. The truck driver was not examined and the petitioner has specifically alleged that P.W.1 threatened the truck driver and got his signature on blank papers. In view of the aforesaid facts and circumstances, I find that charge leveled against the petitioner that he demanded and accepted Rs. 10/- from the truck driver namely, Jogeshwar Singh is clouded with suspicion. 8. I further find that the petitioner has taken a specific defence that, he had kept 20/- rupees with himself for buying medicine. I find that the defence of the petitioner has been rejected on the ground that he did not produce the medicine slip on 23.12.2002 and since, the medicine slip is dated 22.12.2002, he could have purchased medicines on 22.12.2002 itself. I am of the view that the defence taken by the petitioner and the conduct of the petitioner cannot be said to be unnatural or improbable. In State of Maharashtra vs. Dnyaneshwar Laxman Rao Wankhede reported in (2009) 15 SCC 200 , the Hon'ble Supreme Court has held as under: “16. Indisputably, the demand of illegal gratification is a sine qua non for constitution of an offence under the provisions of the Act. For arriving at the conclusion as to whether all the ingredients of an offence viz. demand, acceptance and recovery of the amount of illegal gratification have been satisfied or not, the court must take into consideration the facts and circumstances brought on the record in their entirety. For the said purpose, indisputably, the presumptive evidence, as is laid down in Section 20 of the Act, must also be taken into consideration but then in respect thereof, it is trite, the standard of burden of proof on the accused vis-a-vis the standard of burden of proof on the prosecution would differ. Before, however, the accused is called upon to explain as to how the amount in question was found in his possession, the foundational facts must be established by the prosecution. Even while invoking the provisions of Section 20 of the Act, the court is required to consider the explanation offered by the accused, if any, only on the touchstone of preponderance of probability and not on the touchstone of proof beyond all reasonable doubt.” 9. For the second charge of keeping 20/- rupees with himself, I am of the view that the punishment of removal from service could not have been passed against the petitioner. For the second charge of keeping 20/- rupees with himself, I am of the view that the punishment of removal from service could not have been passed against the petitioner. The penalty of removal from service is definitely excessive and disproportionate to the charge framed and found proved against the petitioner in the departmental enquiry. 10. In Ranjit Thakur vs. Union of India & other reported in (1987) 4 SCC 611 the Hon'ble Supreme Court has held that even on proved charges of disobedience of order of superior officer to eat food, sentence of one year and thereafter, dismissal from service with added disqualification of being declared unfit for, in future, civil employment was disproportionately excessive. The Hon'ble Supreme Court has held as under: “25. Judicial review generally speaking, is not directed against a decision, but is directed against the “decision-making process.” The question of the choice and quantum of punishment is within the jurisdiction and discretion of the court-martial. But the sentence has to suit the offence and the offender. It should not be vindictive or unduly harsh. It should not be so disproportionate to the offence as to shock the conscience and amount in itself to conclusive evidence of bias. The doctrine of proportionality, as part of the concept of judicial review, would ensure that even on an aspect which is, otherwise, within the exclusive province of the court-martial, if the decision of the court even as to sentence is an outrageous defiance of logic, then the sentence would not be immune from correction. Irrationality and perversity are recognised grounds of judicial review. 11. In view of the aforesaid, this writ petition is allowed. The impugned orders dated 31.05.2003, 02.07.2003, and 09.06.2004 are hereby quashed. The matter is remitted back to the disciplinary authority for taking a decision in so far as, quantum of punishment is concerned.