JUDGMENT : 1. By filing this petition under article 226 of the Constitution of India, petitioner seeks quashing of the impugned order of dismissal from service and further seeks a direction to the respondents to re-instate him in service. 2. Petitioner was a Sepoy/General Duty in the Central Reserve Police Force (CRPF). At the relevant point of time, petitioner was attached to 132 Battalion, CRPF which was stationed at Srinagar in the State of Jammu and Kashmir. Following a departmental proceeding, petitioner was dismissed from service vide order dated 01-02-2011 issued by the Commandant, 132 Battalion, CRPF as the disciplinary authority, which order was upheld in appeal by the appellate authority. 3. Relevant facts leading to the filing of the writ petition may be briefly stated at the outset. 4. According to the petitioner, the 132 Battalion to which he was attached, was posted at Srinagar in the State of Jammu and Kashmir. He had performed his duties from 8 AM to 11 AM on 16-03-2010 at the command post as mobile BPO. As desired by Havildar Onkar Ram, who was the Section Commander, petitioner alongwith Sepoy Basanta Kumar Medhi accompanied Onkar Ram to the company headquarters situated at Dashnami Akhara. Onkar Ram, who was the immediate superior of the petitioner, had some work at the company headquarters. After completion of the work, the three of them were returning back with petitioner at the front followed by Basanta Kumar Medhi in the middle and by Onkar Ram at the rear. After passing through the Maulana Ajad Road, the three of them entered Kukar Bazar lane where they were fired upon by unknown terrorists from close range taking advantage of the large crowd. As a result Onkar Ram and Basanta Kumar Medhi sustained bullet injuries and collapsed on the spot. Because of gun firing, there was commotion and people started running helter skelter. In such a situation, it became impossible for the petitioner to return fire. The terrorists mingled with the crowd and could not be identified. But they continued to fire towards the petitioner. Making an on the spot assessment that firing back would not be a wise decision as it would certainly lead to civilian casualties, petitioner decided to rush back to the command post to report about the incident and to arrange reinforcement. Ultimately reinforcement arrived at the spot and the injured were evacuated. But they continued to fire towards the petitioner. Making an on the spot assessment that firing back would not be a wise decision as it would certainly lead to civilian casualties, petitioner decided to rush back to the command post to report about the incident and to arrange reinforcement. Ultimately reinforcement arrived at the spot and the injured were evacuated. Search operations were carried out to 5. A charge memo dated 22-09-2010 issued by the Commandant was served on the petitioner. Petitioner was informed that an enquiry would be held against him under Rule 27 of the CRPF Rules, 1955. He was further informed that enquiry would commence 48 hours after the allegations were read over to him. As per the imputation of allegations attached to the charge memo, it was alleged that petitioner had committed an act of disobedience/dereliction of duty/indiscipline when he left behind his injured colleagues with arms in an unconscious state at Kukar Bazar on 16-03-2010 and fled to the command post at Lal Chowk, thus behaving in a cowardly manner. Details of the allegations in support of the charge were furnished as Annexure-2 to the charge memo. It was stated that immediately after the incident reinforcement team under the leadership of Shri G. Orao, Assistant Commandant reached the spot and evacuated the injured. A list of documents and a list of witnesses were also enclosed to the charge memo. 6. Initially, the Enquiry Officer Shri Pratap Singh, Assistant Commandant examined the petitioner whereafter the disciplinary proceeding commenced. Evidence of the listed witnesses were recorded. At the conclusion of the enquiry the Enquiry Officer submitted his report to the disciplinary authority on 15-11-2010. As per the enquiry report, the charge against the petitioner stood fully proved. 7. Thereafter, the disciplinary authority passed the impugned order dated 01-02-2011 agreeing with the enquiry report holding the petitioner guilty of the charge and found him acting in an irresponsible and cowardly manner and therefore imposed the penalty of dismissal from service. 8. Petitioner filed an appeal before the Deputy Inspector General against the dismissal order. By order dated 04-05-2011, the appellate authority upheld the penalty imposed and dismissed the appeal filed by the petitioner. 9. Aggrieved, present writ petition has been filed. 10. A common counter affidavit has been filed by the respondents. 8. Petitioner filed an appeal before the Deputy Inspector General against the dismissal order. By order dated 04-05-2011, the appellate authority upheld the penalty imposed and dismissed the appeal filed by the petitioner. 9. Aggrieved, present writ petition has been filed. 10. A common counter affidavit has been filed by the respondents. Stand taken in the affidavit is that on 16-03-2010 at about 11:25 hours, a party under the command of Head Constable Onkar Ram with two constables viz., Basanta Kumar Medhi and the petitioner were returning to section post at Aftab Market, Lal Chowk, Srinagar. On their way at Kukar Bazar, Lal Chowk under PS- Masisuma, Srinagar, some unidentified militants fired upon the personnel from close range taking advantage of heavy civilian crowd. Both Onkar Ram and Basanta Kumar Medhi sustained bullet injuries. Petitioner left the site of the incident leaving behind his injured colleagues who were lying immobilized with their service weapons and took refuge at the command post of 132 Battalion, CRPF at Lal Chowk. Thus, petitioner exhibited cowardice by fleeing from the site and by not holding his ground defending his injured colleagues. In the preliminary enquiry, petitioner admitted his guilt. Enquiry Officer completed the enquiry and submitted his report to the disciplinary authority where after the final order of dismissal from service was passed. During the enquiry, the petitioner neither adduced any witness nor produced any document. Petitioner had violated Sections 9 (d) and 11(1) of the CRPF Act, 1949 and Rule 27 A of the CRPF Rules, 1955. Accordingly he was dismissed from service. Petitioner had committed an act of cowardice by fleeing from the scene and not bravely defending his injured colleagues. Petitioner was given a fair hearing during the departmental enquiry in which charges against him were proved. Therefore, writ petition being devoid of merit should be dismissed. 11. Heard Mr. S S Sharma, learned Senior Counsel for the petitioner and Mr. S C Keyal, learned Assistant Solicitor General for the respondents, who has also produced the record. 12. Mr. Sharma, learned Senior Counsel for the petitioner submits that finding of the respondents that petitioner had acted in a cowardly manner is not borne out of the record. None of the witnesses had deposed before the Enquiry Officer that petitioner had fled from the scene and did not bravely defend his injured colleagues. 12. Mr. Sharma, learned Senior Counsel for the petitioner submits that finding of the respondents that petitioner had acted in a cowardly manner is not borne out of the record. None of the witnesses had deposed before the Enquiry Officer that petitioner had fled from the scene and did not bravely defend his injured colleagues. On the other hand, all the witnesses supported the version of the petitioner that the area being thickly populated, any retaliatory firing by him would have caused civilian casualties; moreover, he was exposed to militant firing from within the crowd. Only logical course open to the petitioner at that stage, which decision he had to take in a fraction of a second, was to rush back to the command post which was about 100 steps away to inform the command about the incident and to bring reinforcement in order to help his injured colleagues. Remaining at the spot, unable to fire back, would have made him a sitting duck, Mr. Sharma submits. Petitioner was not given a fair hearing and proper procedure was not followed. The evidence adduced were not considered in proper prospective. Penalty imposed is grossly disproportionate. It was very easy for the officers sitting in their offices to condemn the petitioner as a coward without visualizing or properly analyzing the ground situation. Branding of the petitioner as a coward is most unfair and is highly stigmatic. Therefore the penalty imposed is required to be quashed and the petitioner reinstated in service. 13. On the other hand, learned Assistant Solicitor General submits that petitioner had conducted himself in a cowardly manner by leaving behind his injured colleagues with arms and ammunition when it was expected that being a member of the CRPF he would bravely defend his colleagues. Petitioner was accordingly charged and was subjected to a departmental enquiry where the charges framed against the petitioner were held proved. Accordingly, the impugned penalty was imposed which cannot be said to be grossly disproportionate, having regard to the facts and circumstances of the case. Therefore there is no merit in the writ petition which should be dismissed. 14. Submissions made by learned Counsel for the parties have been considered. 15. Accordingly, the impugned penalty was imposed which cannot be said to be grossly disproportionate, having regard to the facts and circumstances of the case. Therefore there is no merit in the writ petition which should be dismissed. 14. Submissions made by learned Counsel for the parties have been considered. 15. After hearing the submissions and considering the materials on record, I am of the view that the following issues arise for consideration in this proceeding :- (1) Whether proper procedure was followed while conducting the departmental proceeding against the petitioner ? (2) Whether from the materials on record including the evidence of the witnesses, can it be said that the charge against the petitioner stood proved ? (3) If the answer to the above two issues are in the affirmative, whether the penalty imposed on the petitioner is grossly disproportionate to the charge ? 16. Before attempting to answer the above three issues, it would be apposite to refer to the relevant provisions of the CRPF Act, 1949 and the CRPF Rules, 1955 having a bearing on the present case. 17. Section 9 of the CRPF Act deals with more heinous offences. Sub-Section (c) mentions shameful abandonment of duty whereas Sub-Section (d) mentions correspondence with or assistance or relieving any person in arms against the State or omits to discover immediately to his superior officer about the above. Sub-Section (l) mentions display of cowardice in the execution of duty. For committing such heinous offence, a member of the force (CRPF) is liable to suffer punishment of transportation for life for a term of not less than 7 years or with imprisonment for a term which may extend to 14 years or with fine as quantified or with fine in addition to sentence of transportation or imprisonment. 18. Under Section 11 of the CRPF Act, the Commandant or any other prescribed authority may award the penalties mentioned therein on any member of the force guilty of disobedience, neglect of duty or remissness in the discharge of duty or committing misconduct in his capacity as a member of the force. The penalties include dismissal from service but imposition of punishment is subject to Rules made under the CRPF Act. Section 18 empowers the Central Government to make Rules amongst others for regulating award of punishment under Section 11 and providing for appeals etc. 19. The penalties include dismissal from service but imposition of punishment is subject to Rules made under the CRPF Act. Section 18 empowers the Central Government to make Rules amongst others for regulating award of punishment under Section 11 and providing for appeals etc. 19. Thus from the above it is quite evident that the charges of cowardice or shamefully abandoning any post or guard are extremely serious offences which entail severe punishments. 20. In exercise of powers conferred by Section 18 of the CRPF Act, the Central Government has made the CRPF Rules. Rule 27 deals with the procedure for award of punishments. In case of dismissal or removal from service of a Constable, the authority competent to do so is the Commandant. However, such penalty can be inflicted only after holding formal departmental enquiry. As per explanation (a) to Clause (a) of Rule 27, dismissal of a member of the force precludes him from being re-employed in Government service. The procedure for conducting a departmental enquiry is laid down in Clause (c) of Rule 27. The procedure prescribed comprises of six distinct stages in conducting a departmental enquiry. At the first stage the substance of the accusation shall be reduced to the form of a written charge which should be as precise as possible. The charge is required to be read out to the accused and copy thereof given to him at least 48 hours before commencement of the enquiry. 21. As per the second stage, at the commencement of the enquiry the accused shall be asked to enter a plea of “guilty” or “not guilty” after which evidence, oral or documentary, relied upon by the disciplinary authority should be let in. The accused shall be allowed to cross-examine the witnesses. 22. The third stage deals with exhibiting the documents relied upon by the disciplinary authority in support of the charge with the accused having the right of inspection. 23. After the above three stages are over, the most crucial stage is reached which is elaborately set out in Sub-clause (4) of Clause (c) of Rule 27. After evidence of the disciplinary authority is over, the accused is required to be examined and his statement recorded by the Enquiry Officer. 23. After the above three stages are over, the most crucial stage is reached which is elaborately set out in Sub-clause (4) of Clause (c) of Rule 27. After evidence of the disciplinary authority is over, the accused is required to be examined and his statement recorded by the Enquiry Officer. If the accused pleads “guilty” at this stage and does not challenge the evidence adduced on behalf of the disciplinary authority, the proceedings shall be closed and necessary orders may be passed. However, if the accused pleads “not guilty”, he shall be required to file a written statement and a list of such witnesses whose evidence he would like to rely upon in his defence within such period not less than a fort-night. If the accused declines to file a written statement, he shall again be examined by the Enquiry Officer on the expiry of the period allowed. 24. In the fifth stage, if the accused produces any evidence, the same shall be considered by the Enquiry Officer. But if the accused refuses to cite any witness or to produce any evidence in his defence, the proceedings shall be closed for orders. 25. At the final stage, the Enquiry Officer is required to forward his report together with the record of proceedings to the Commandant who shall record his findings and pass orders. 26. In sum and substance, this is the procedure laid down under the CRPF Rules for conducting a departmental enquiry. First and foremost requirement is a written charge against the accused which should be precise. At the commencement of the enquiry, the accused is required to enter a plea of “guilty” or “not guilty” irrespective of which evidence on behalf of the disciplinary authority is required to be tendered. Once evidence on behalf of the disciplinary authority is over, the Enquiry Officer is required to examine the accused and to record his statement. At this stage plea of “guilty” or “not guilty” is relevant and determinative. If the accused pleads “guilty” at this stage and does not challenge the evidence on record, the proceedings shall be closed and necessary orders may be passed. If however, the accused pleads “not guilty”, he shall be required to file a written statement and a list of his witnesses. If the accused declines to file a written statement, he shall again be examined by the Enquiry Officer. If however, the accused pleads “not guilty”, he shall be required to file a written statement and a list of his witnesses. If the accused declines to file a written statement, he shall again be examined by the Enquiry Officer. If the accused refuses to produce any evidence in his defence, the proceedings shall be closed for orders. The Enquiry Officer shall thereafter forward his report together with the record of enquiry to the Commandant for his findings and orders. 27. Thus there are two stages where the accused may enter a plea of “guilty” or “not guilty”. Entering a plea of “guilty” at the first stage i.e., at the commencement of enquiry is immaterial as irrespective of such plea of the accused, evidence on behalf of the disciplinary authority would be recorded and documents exhibited. In the second stage when the accused is examined after conclusion of evidence of the disciplinary authority and his statement recorded, entering a plea of “guilty” would lead to closure of the enquiry for necessary order. But if he pleads “not guilty” he would be entitled to file a written statement and also submit a list of his witnesses. The language of Sub-clause (4) of Clause (c) of Rule 27 is clear and unambiguous that filing of written statement and submission of list of witnesses are independent of each other. If the accused does not file written statement, he shall again be examined by the Enquiry Officer. If he refuses to adduce any evidence, the proceedings shall be closed for orders. The sequence of steps envisaged in Sub-clauses (4) and (5) are as follows:- examination of the accused and recording of his statement; if he pleads “not guilty”, right to file written statement and list of witnesses within minimum 15 days; if he does not file written statement, he shall be again be examined by the Enquiry Officer and in the event he does not adduce any evidence, the proceedings shall be closed for orders. 28. The language employed in Sub-clause (4) clearly reflects the mandatory character of the procedure prescribed there in. Having regard to the determinative nature of entering a plea of “guilty” or “not guilty” at the second stage, the Enquiry Officer would be under a legal obligation to explain to the accused the consequences of entering such plea. 28. The language employed in Sub-clause (4) clearly reflects the mandatory character of the procedure prescribed there in. Having regard to the determinative nature of entering a plea of “guilty” or “not guilty” at the second stage, the Enquiry Officer would be under a legal obligation to explain to the accused the consequences of entering such plea. In addition and as already noticed above, filing of written statement and submission of list of witnesses are independent of each other. Therefore, the Enquiry Officer is also required to inform the accused about his right to file written statement in the event of entering a plea of “not guilty” at the second stage which right is independent of the right to submit list of witnesses. 29. Having noticed the legal provisions as above, the issues as formulated above may now be examined. Issue No.1 Question to be considered while examining this issue is whether proper procedure was followed while conducting the departmental proceeding against the petitioner. As discussed above, the first and foremost requirement of the procedure for conducting departmental enquiry as laid down in Rule 27(c) of the CRPF Rules is precision of the written charge. It is a settled proposition in service jurisprudence that the charge against a delinquent is required to be not only precise but also clear, specific and unambiguous to enable the delinquent to effectively meet the charge because the charge is the foundation of the departmental proceeding. If the charge is vague or imprecise, the edifice of departmental proceeding will collapse. In the present case, the charge against the petitioner as per the charge memo was committing acts of disobedience / dereliction of duty / indiscipline and other acts when he left his injured colleagues and fled to the command post following terrorist attack. In the enquiry report, the Enquiry Officer described the charge against the petitioner as disobeying orders / showing slackness in performing duties, indiscipline etc. In the impugned order of penalty the disciplinary authority described the charge against the petitioner as willfully acting contrary to the ideals, dereliction of duty, showing slackness in performing his duties, negligent, indiscipline etc. Finally, the appellate authority in his appellate order described the charge as a serious act of dereliction of duty. Thus there was wide divergence in the description of the charge at various stages, each capable of conveying different meaning or different forms of misconduct. Finally, the appellate authority in his appellate order described the charge as a serious act of dereliction of duty. Thus there was wide divergence in the description of the charge at various stages, each capable of conveying different meaning or different forms of misconduct. On top of that, in the affidavit filed by the respondents, it is stated that petitioner had violated Section 9(d) of the CRPF Act which again is a different misconduct altogether. Therefore, it is quite evident that the charge framed against the petitioner was neither precise nor specific. Such a charge cannot be said to be in compliance to the provisions of Rule 27(c) (1) of the CRPF Rules. More about this a bit later. 30. A perusal of the enquiry report, order of dismissal and the appellate order together with the record would show that petitioner had entered plea of “guilty” at the commencement of the enquiry which has been described as preliminary hearing. Thereafter evidence of the 11 witnesses were recorded by the Enquiry Officer in the presence of the petitioner who did not cross-examine them. After recording the evidence of the witnesses of the disciplinary authority, the petitioner was examined. Petitioner was allowed 15 days time to adduce evidence but he neither produced any witness nor submitted any document. Thereafter the Enquiry Officer came to the conclusion that the charge against the petitioner stood proved and submitted his report. 31. It is thus clear that the procedure prescribed in Rule 27 (c) (4) of the CRPF Rules was not followed. As discussed above, entering a plea of “guilty” or “not guilty” at the commencement of the enquiry (referred to as preliminary enquiry) is immaterial. After completion of evidence of the disciplinary authority, petitioner was required to be examined and his statement recorded by the Enquiry Officer. It is evident that in his examination by the Enquiry Officer, petitioner had explained the circumstances leading to him rushing back to the command post which makes it clear that he did not plead guilty. If that be so, petitioner was required to file written statement and also a list of his witnesses. The language employed in the statute is “he shall be required to file a written statement ………” . In other words it was the duty of the Enquiry Officer to have informed the petitioner about his right to file a written statement. If that be so, petitioner was required to file written statement and also a list of his witnesses. The language employed in the statute is “he shall be required to file a written statement ………” . In other words it was the duty of the Enquiry Officer to have informed the petitioner about his right to file a written statement. From the materials on record it is not discernible that the Enquiry Officer had asked the petitioner to file written statement. The procedure does not stop here. In the event of non-filing of written statement, petitioner was again required to be examined by the Enquiry Officer. As has been discussed above, filing of written statement and submission of list of witnesses are independent of each other. Even if written statement is filed but no evidence is adduced, the proceedings shall be closed for order. But in the event of non-filing of written statement, petitioner was required to be examined again by the Enquiry Officer. The mandatory prescription of Rule 27(c)(4) has been breached firstly by not calling upon the petitioner to file written statement, secondly by not examining him again and thirdly by equating non-submission of list of witnesses with non-filing of written statement and thereafter closing the proceedings. This departure from the procedure statutorily prescribed is a fundamental flaw striking at the root of the decision making process. 32. There is one more aspect which needs to be highlighted. A departmental enquiry is a part of the disciplinary proceeding. This is more pronounced in the case of a disciplinary proceeding under Rule 27 of the CRPF Rules. There cannot be any dispute to the proposition that a departmental enquiry is a quasi-judicial proceeding where principles of natural justice which includes a fair procedure are inbuilt. It is in such context that the role of Presenting Officer assumes significance. Regarding the role of Presenting Officer in a departmental enquiry, this Court in (2014) 4 GLR 111 Anil Baishya -Vs- State of Assam held as follows:- “(24) A departmental enquiry is a quasi-judicial proceeding. Principles of natural justice, which includes a fair procedure, is inbuilt in such a proceeding. The Enquiry Officer has to discharge his functions in a quasi-judicial manner. He has to act fairly and impartially. The role of the Presenting Officer is to present the case of the disciplinary authority before the Enquiry Officer. Principles of natural justice, which includes a fair procedure, is inbuilt in such a proceeding. The Enquiry Officer has to discharge his functions in a quasi-judicial manner. He has to act fairly and impartially. The role of the Presenting Officer is to present the case of the disciplinary authority before the Enquiry Officer. He is the representative of the disciplinary authority. He has to assist the Enquiry Officer by presenting before him the case of the disciplinary authority. He has to marshal the facts and to examine and cross-examine the witnesses produced during the enquiry. It is he who has to produce and prove the listed documents during the enquiry and lead the oral evidence in support of the charge. Therefore, in the absence of the Presenting Officer, it is the Enquiry Officer who will have to produce the documents and present the witnesses. In such a case, he will assume the role of the judge as well as that of the prosecutor, which will be a total negation of the avowed principles of natural justice and fair procedure. Absence of the Presenting Officer will certainly not be a fair procedure”. 33. Rule 27 of the CRPF Rules does not expressly provide for appointment of a Presenting Officer. However, a Single Bench of this Court in Mutum Shantikumar Singh -Vs- Union of India reported in (2005) 3 GLR 243 interpreted Rule 27 of the CRPF Rules by reading the requirement of fair procedure and rules of natural justice in Rule 27. It was held that in the absence of the Presenting Officer, the Enquiry Officer assumes the role of judge as well as of prosecution in as much the Enquiry Officer will have to examine the witnesses and the exhibited documents which will be in violation of the principles of natural justice. It was finally held that appointment of Presenting Officer is a must in disciplinary proceeding against a CRPF Constable. In that case, dismissal of a CRPF Constable was declared illegal and was quashed because of non appointment of Presenting Officer. 34. The judgment in Mutum Shantikumar Singh was delivered on 09-02-2005. More than 10 years have gone by since then. For over a decade this judgment is holding the field. Not only that, at least three subsequent Division Bench judgments have endorsed the above view taken in Mutum Shantikumar Singh. 34. The judgment in Mutum Shantikumar Singh was delivered on 09-02-2005. More than 10 years have gone by since then. For over a decade this judgment is holding the field. Not only that, at least three subsequent Division Bench judgments have endorsed the above view taken in Mutum Shantikumar Singh. In W.Birbal Singh -Vs- State of Manipur reported in 2010 (5) GLT 371 , in Salam Kesho Singh -Vs- State of Manipur reported in 2011 (1) GLT 287 and in Union of India -Vs- Ram Lakhan Sharma reported in 2011 (3) GLT 281, the Division Bench of this Court held that even when the statute does not prescribe for appointment of a Presenting Officer, then also such appointment is required to be made to comply with the principles of natural justice. Absence of Presenting Officer will totally vitiate the enquiry. Penalty imposed were interfered with on the ground of non-appointment of Presenting Officer. Ram Lakhan Sharma is a case relating to removal from service of a CRPF Constable following a disciplinary proceeding. The above decisions have been followed in a number of subsequent decisions by this Court. This Bench being a Single Bench is bound by the law laid down by the Division Bench and by the Single Bench of this Court. If any authority is required for this proposition, reference may be made to the case of Official Liquidator -Vs- Dayanand (2008) 10 SCC 1 (para 78, 90, 91 and 92). Moreover, absence of Presenting Officer has clearly vitiated the departmental enquiry in as much as the Enquiry Officer virtually acted like the disciplinary authority by examining the witnesses. As noticed above, Enquiry Officer committed material omission in the conduct of the enquiry which fundamentally affected the proceeding. Therefore, in the absence of the Presenting Officer, the role of the Enquiry Officer clearly got blurred. Thus the enquiry clearly stood vitiated and therefore the penalty imposed based on report of the Enquiry Officer cannot be sustained. 35. In view of above, issue No.1 is answered in the negative by holding that both mandatory and fair procedure was not followed while conducting the enquiry against the petitioner and this has vitiated the impugned penalty. 36. Thus the enquiry clearly stood vitiated and therefore the penalty imposed based on report of the Enquiry Officer cannot be sustained. 35. In view of above, issue No.1 is answered in the negative by holding that both mandatory and fair procedure was not followed while conducting the enquiry against the petitioner and this has vitiated the impugned penalty. 36. Though the writ petition can be allowed in view of the conclusion reached in issue No.1, since the charge framed against the petitioner has been deliberated upon with the finding returned that the same was neither precise nor clear cut, a little more deliberation on the charge is considered necessary. 37. It is the pleaded case of the petitioner that after finishing duty from 8 AM to 11 AM on 16-03-2010, he alongwith Sepoy Basanta Kumar Medhi and Section Commander Havildar Onkar Ram had gone to the company headquarters as desired by Onkar Ram as he had some work at the company headquarters. This assertion of the petitioner on oath has not been denied by the respondents. While returning back, the unfortunate incident took place. Specific stand of the petitioner is that unidentified militants had fired at them by taking advantage of the crowded locality. Retaliatory firing was ruled out as it would have led to civilian casualties. With two of his colleagues lying injured with retaliatory firing ruled out and militants firing at him, petitioner took the decision to rush back to the command post, which according to the petitioner he did to inform the higher authorities and for bringing in reinforcement. Reinforcement arrived and were led by Assistant Commandant G. Orao. In his evidence before the Enquiry Officer, G. Orao stated that on completion of duty, the three personnel had gone to the company headquarters. While returning back, petitioner was in the front, followed by Basanta Kumar Medhi in the middle and Onkar Ram in the rear. He stated that the area was thickly populated and during day time it remains crowded. He got information about the firing and as he was about to leave the command post, petitioner informed him that terrorists had fired and had injured his associates at Kukar Bazar. He clearly deposed that the attackers had fired at the petitioner and due to the firing three civilians sustained injuries. None of the three personnel opened fired considering the thick crowd in the area. He clearly deposed that the attackers had fired at the petitioner and due to the firing three civilians sustained injuries. None of the three personnel opened fired considering the thick crowd in the area. In his questioning by the Enquiry Officer, he reiterated the above facts. In addition he stated that during his tenure he found the conduct of the petitioner to be good. Additionally he stated that Onkar Ram did not take permission to come to the company headquarters. 38. Now from the above it becomes evident that evidence of Onkar Ram became very crucial as he was a material witness. Infact, he was the most important witness being an eye witness to the entire incident. Moreover, it was because of Onkar Ram that the petitioner and the other personnel had to go to the company headquarters. It is a salutary principle that a witness whose evidence is essential to the unfolding of the narrative should be called to depose in the enquiry. This is necessary for eliciting the truth. Absence of such a material witness would seriously affect the truth of the prosecution case. 39. Thus the two most crucial witnesses were Assistant Commandant G. Orao and Havildar Onkar Ram. While the evidence of G. Orao supports the version of the petitioner, the appellate authority in his appellate order dated 04-05-2011 stated that the three personnel went to the said area without taking prior permission from the competent authority. If that be the case, Onkar Ram was responsible for the said lapse as he was the Section Commander. Infact, G. Orao is on record saying that Onkar Ram did not take permission for visiting the company headquarters. Petitioner cannot be faulted for that. Regarding non-adducing of Onkar Ram as a witness, the appellate authority found fault with the petitioner for not presenting him as a witness, ignoring the fact that it is the disciplinary authority who has to prove the charge and therefore the burden was on the disciplinary authority to present Onkar Ram as a witness. Evidently, petitioner was not on duty; therefore question of any dereliction of duty does not arise. Whether there was any disobedience to any lawful command or any indiscipline on the part of the petitioner, the best person to say so was Onkar Ram. But he was not produced as a witness. Evidently, petitioner was not on duty; therefore question of any dereliction of duty does not arise. Whether there was any disobedience to any lawful command or any indiscipline on the part of the petitioner, the best person to say so was Onkar Ram. But he was not produced as a witness. On the other hand, evidence of the next most important witness G. Orao does not in any manner indict the petitioner. None of the witnesses have said that the petitioner had fled or ran away from the scene like a coward. In such circumstances, to term the petitioner as a coward appears to be a sweeping generalization not based on the evidence of record. The decision of the petitioner to rush back to the nearby company headquarters was taken at the spot within split of a second. There can possibly be two views on the decision of the petitioner to rush back to the command post but to condemn the petitioner as a coward would certainly not be justified. In that view of the matter issue No.2 is also answered in the negative and in favour of the petitioner. 40. In view of above, deliberation on the third issue is not necessary and the writ petition is decided in favour of the petitioner. Consequently, impugned order of penalty dated 01-02-2011 is set aside and quashed. 41. Petitioner shall be reinstated in service and would be entitled to 50% of the back wages. 42. Writ petition is accordingly allowed. No cost.