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2015 DIGILAW 1548 (GAU)

Naba Kanta Kalita v. Union of India

2015-12-21

UJJAL BHUYAN

body2015
JUDGMENT AND ORDER : Ujjal Bhuyan, J. Heard Mr. U.K. Nair, learned Counsel for the petitioner and Mr. M. Phukan, learned Central Government Counsel for the respondents, who has also produced the record. 2. By filing this petition under Article 226 of the Constitution of India, petitioner seeks quashing of order dated 15-07-2010 issued by respondent No.3 imposing the penalty of removal from service on the petitioner as well as the appellate order dated 06-10-2010 and the revisional order dated 30-06-2011 affirming the order of penalty. Petitioner further seeks a direction to the respondents to reinstate him in service with all consequential benefits. 3. Petitioner was a Constable in the Central Industrial Security Force (CISF). At the relevant point of time he was posted in the Industrial Sector, CISF Unit, Oil India Limited, Duliajan in the State of Assam. 4. A show cause notice dated 20-02-2010 was issued to the petitioner by the Commandant, CISF, Oil India Limited, Duliajan (respondent No.3) stating that he had ordered a departmental enquiry against the petitioner under Section 36 of the CISF Rules, 2001 on the charges annexed to the show-cause notice. Petitioner was directed to submit his written reply within 10 days. As per charge No.1, around 20:40 hours on 31-12-2009, petitioner reported for duty in a drunken state. As per charge No.2 at that time, petitioner misbehaved with the company commander and threatened to shoot him. Thus, petitioner was charged with in disciplined and irresponsible behaviour and violation of official rules. Charge No.3 related to various acts of indiscipline and disobedience by the petitioner in the course of his service in the CISF for which he was given light punishments. Thus, as per this charge petitioner had a bad service record for which his retention in the CISF became untenable. The show-cause notice was accompanied by a statement of allegation, list of documents and list of witnesses. 5. On receipt of the show-cause notice, petitioner submitted his written reply dated 03-03-2010 completely denying charge Nos. 1 and 2. In so far charge No.3 is concerned, petitioner stated that for previous charges he had already been punished and that cannot be an independent charge in the present proceeding. 6. It appears that the written reply submitted by the petitioner was not accepted by the disciplinary authority and accordingly it was decided to hold departmental enquiry against the petitioner. In so far charge No.3 is concerned, petitioner stated that for previous charges he had already been punished and that cannot be an independent charge in the present proceeding. 6. It appears that the written reply submitted by the petitioner was not accepted by the disciplinary authority and accordingly it was decided to hold departmental enquiry against the petitioner. In this connection, one Shri A. Chakraborty, Inspector (Executive) in the CISF was appointed as Enquiry Officer. Sub-Inspector (Executive), CISF Shri Vijender Singh was appointed as Presenting Officer. 7. Enquiry Officer conducted the enquiry and on completion of the same submitted his enquiry report dated 21-06-2010 before the respondent No.3 holding all the three charges to be fully proved. He opined that conduct of petitioner amounted to gross misconduct, indiscipline, dereliction of duty, insubordination and unbecoming of a member of a disciplined force like the CISF. 8. Respondent No.3 vide his forwarding letter dated 26-06-2010 furnished a copy of the enquiry report to the petitioner giving him liberty to make a representation or submission in writing against the enquiry report, if he wished to do so. 9. Petitioner submitted a written representation dated 07-07-2010 before the respondent No.3 requesting the said authority not to accept the enquiry report and to exonerate him from the charges. Besides highlighting various inconsistencies in the enquiry report, petitioner specifically pointed out that Head Constable Jasbir Singh was an eye witness to the alleged incident who was examined during the preliminary enquiry but his evidence was not taken during the formal departmental enquiry. 10. The disciplinary authority i.e. the respondent No.3 after considering the enquiry report and the response of the petitioner agreed with the findings of the Enquiry Officer and vide the impugned order dated 15-07-2010 imposed the penalty of removal from service with immediate effect on the petitioner. Petitioner was informed that he had a remedy of filing appeal against the punishment imposed, which he could avail if he so desired. 11. Petitioner thereafter submitted appeal before the respondent No.4 i.e. the appellate authority. Amongst various grounds taken while assailing the order of penalty, petitioner also mentioned about non mentioning of Head Constable Jasbir Singh as a witness and failure to record his evidence though he was a material witness. 12. 11. Petitioner thereafter submitted appeal before the respondent No.4 i.e. the appellate authority. Amongst various grounds taken while assailing the order of penalty, petitioner also mentioned about non mentioning of Head Constable Jasbir Singh as a witness and failure to record his evidence though he was a material witness. 12. The appellate authority vide the order dated 06-10-2010 held that there was no infirmity in the order of penalty and therefore no interference was called for. Accordingly, the appeal of the petitioner was rejected vide order dated 06-10-2010 as being devoid of any merit. 13. Thereafter, petitioner submitted a revision petition before the respondent No.5 where also amongst other grounds, non inclusion of Head Constable Jasbir Singh as a witness was mentioned. The revisional authority vide order dated 30-06-2011 held that the revision petition was devoid of merit and accordingly the revision petition was dismissed. 14. Aggrieved, petitioner has filed the present writ petition seeking the reliefs as indicated above. 15. The case was admitted for hearing on 24-08-2011. 16. Respondents have filed a common affidavit. It is stated that petitioner was detailed for duty on 31-12-2009 at Unit Kote for "C" shift duty. He arrived slightly late in an intoxicated state, abused his seniors using unparliamentary words threatening to kill them. On receipt of information about the drunken state of the petitioner, the shift in-charge informed his senior over telephone and as per direction of the senior, petitioner was not taken on duty and in his place another Constable was detailed for duty. 17. In connection with the aforesaid incident, three charges were framed against the petitioner vide charge memo dated 20-02-2010 which was served on the petitioner. Though petitioner had submitted written reply denying all the charges, the disciplinary authority was not satisfied with the reply and decided to proceed with the disciplinary proceeding. A formal enquiry was directed against the petitioner by appointing Enquiry Officer and Presenting Officer. 18. Enquiry Officer conducted the enquiry by following the procedure laid down in Rule 36 of the CISF Rules, 2001. Petitioner was given reasonable opportunity to defend himself in the enquiry. However, during the enquiry petitioner could not produce a single defence witness in his support. Upon consideration of the evidence adduced and other materials on record, the Enquiry Officer came to the conclusion that the three charges framed against the petitioner stood proved. 19. Petitioner was given reasonable opportunity to defend himself in the enquiry. However, during the enquiry petitioner could not produce a single defence witness in his support. Upon consideration of the evidence adduced and other materials on record, the Enquiry Officer came to the conclusion that the three charges framed against the petitioner stood proved. 19. Thereafter the disciplinary authority on due consideration of the enquiry report and the responce of the petitioner, imposed the penalty of removal from service on the petitioner. It is stated that considering the gravity of misconduct, the penalty imposed was justified. The justification of the penalty has been borne out by the appellate authority as well as by the revisional authority who by their reasoned orders had upheld the order of penalty. Regarding non-examination of Head Constable Jasbir Singh as a witness, it is stated that the charged member was free to call any witness in his support but he did not do so. It is also stated that Assistant Commandant Shri Gokul Chand was not mentioned as a witness in the charge memo. However, in the course of the enquiry his deposition was felt necessary and accordingly he was called as a witness. He deposed in the enquiry in the presence of the charged member and was also cross examined by him. 20. Contending that CISF is a disciplined force and its members are required to maintain a high degree of discipline, respondents have stated that petitioner's in-disciplined behaviour rendered him unfit for retention in service. Therefore, prayer has been made for dismissal of the writ petition. 21. Mr. U.K. Nair, learned Counsel for the petitioner submits that respondents failed to follow the prescribed procedure while conducting the departmental proceeding against the petitioner. He submits that non conformation with the prescribed procedure started from the stage of issuance of charge memo itself. According to learned Counsel, charge No.3 which referred to previous acts of indiscipline and disobedience of the petitioner cannot be a separate charge at all. At best it could have been an aggravating factor, while considering imposition of penalty on the petitioner. Mr. Nair submits that the basic charge against the petitioner was that he had reported for duty in a state of intoxication. But no medical test or examination was conducted on the petitioner to prove consumption of alcohol by the petitioner. At best it could have been an aggravating factor, while considering imposition of penalty on the petitioner. Mr. Nair submits that the basic charge against the petitioner was that he had reported for duty in a state of intoxication. But no medical test or examination was conducted on the petitioner to prove consumption of alcohol by the petitioner. Both Enquiry Officer and disciplinary authority committed a manifest error in holding the said charge to be proved merely on the basis of presumption of a couple of witnesses that petitioner might have consumed alcohol. He therefore submits that purely on the basis of surmises and conjectures, petitioner has been held guilty of the aforesaid charge. Mr. Nair further submits that PW 8 was not mentioned as a witness in the list of witnesses annexed to the charge memo. Yet he was presented as a prosecution witness in the course of the enquiry and his deposition played a crucial role in the findings returned by the Enquiry Officer. Petitioner was also not informed of his right to file written brief. He also submits that petitioner's specific point regarding non-examination of Head Constable Jasbir Singh as a witness in the departmental enquiry despite being an eye witness and that the same had vitiated the enquiry has been simply brushed aside by the respondents by contending that petitioner had the liberty to adduce evidence in his defence but he failed to adduce any such evidence. According to Mr. Nair, burden was on the disciplinary authority to prove the charges against the petitioner. Material witnesses are required to be presented and examined to arrive at the truth and their non-examination would be violative of the principles of natural justice. Failure of the authority to examine Head Constable Jasbir Singh as a witness in the departmental enquiry had clearly vitiated the findings of the Enquiry Officer and the order of the disciplinary authority which was based on the enquiry report. In support of his submissions, Mr. Nair has placed reliance in the case of Bachubhai Hassanalli Karyani Vs. State of Maharashtra reported in (1971) 3 SCC 930 for the proposition that in the absence of medical examination and report, charge of drunkenness cannot be said to have been proved. He also relies on a recent decision of this Court in the case of Pratap Kaivarta Vs. Nair has placed reliance in the case of Bachubhai Hassanalli Karyani Vs. State of Maharashtra reported in (1971) 3 SCC 930 for the proposition that in the absence of medical examination and report, charge of drunkenness cannot be said to have been proved. He also relies on a recent decision of this Court in the case of Pratap Kaivarta Vs. Union of India reported in (2015) 4 GLR 616, on the proposition that non-examination of material witness by the prosecution would be violative of the principles of natural justice which would vitiate the enquiry. Therefore, Mr. Nair would contend that the departmental proceeding drawn up against the petitioner leading to imposition of the penalty of removal from service is wholly untenable and is liable to be set aside and quashed. 22. On the other hand, Mr. Phukan, learned Central Government Counsel appearing for the respondents submits that there is no substance in the contentions advanced on behalf of the petitioner. The charges framed against the petitioner were grave and serious which were held proved in a duly constituted departmental enquiry. Petitioner had participated in the departmental enquiry and was given reasonable opportunity to defend himself. A fair procedure was followed by the Enquiry Officer. Having regard to the gravity of the misconduct, the penalty imposed is just and proper. No case for interference is made out, he submits. In support of his submissions, Mr. Phukan has placed reliance on the following decisions :- (1995) 6 SCC 749 (BC Chaturvedi Vs. Union of India) (2003) 3 SCC 309 (Mithilesh Singh Vs. Union of India) (2003) 4 SCC 331 (Director General, RPF Vs. Ch. Sai Babu) 23. Submissions made by the rival parties at the Bar have received the due consideration of the Court. Also perused the materials on record including the record produced by Mr. Phukan, learned Central Government Counsel. 24. At the outset, relevant provisions of the CISF Act, 1968 and CISF Rules, 2001 may be briefly adverted to. The CISF Act was enacted to provide for constitution and regulation of an armed force of the Union for the better protection and security of industrial undertakings owned by the Central Government, certain other industrial undertakings and their employees etc. Accordingly, under section 3 of the said Act, CISF has been constituted and maintained by the Central Government. Section 8 deals with dismissal, removal etc. of the members of the force. Accordingly, under section 3 of the said Act, CISF has been constituted and maintained by the Central Government. Section 8 deals with dismissal, removal etc. of the members of the force. It provides that subject to the provisions of Article 311 of the Constitution and the rules framed under the Act, any supervisory officer may dismiss, remove, compulsorily retire or reduce in rank any member of the force on the ground of remissness or negligence in the discharge of duty or if he is found unfit for such duty. Supervisory officer is empowered to award any one or more of the punishments mentioned therein. Section 9 deals with filing of appeal and revision by any member of the force who may feel aggrieved by an order made under section 8. Section 22 is the rule making provision whereby Central Government is empowered to make rules amongst others regulating the punishments and prescribing the authorities for preferring appeals against such punishments. 25. In exercise of the powers conferred by Section 22 of the CISF Act, 1968, Central Government has made the CISF Rules, 2001. Rule 32 deals with disciplinary authorities. As per Rule 32 read with Schedule 1 to the Rules, the Senior Commandant is the disciplinary authority of all enrolled members of the force except Inspector while imposing the penalty of removal from service. Rule 34 mentions the different penalties that may be imposed on a member of the force for good and sufficient reasons. It includes removal from service as a major penalty which shall not be a disqualification for future employment under the Government. 26. Procedure for imposing major penalties is elaborately laid down in Rule 36. 27. Whenever the disciplinary authority is of the opinion that there are grounds for inquiring into the truth of any imputation of misconduct or misbehaviour against a member of the force, it may itself enquire into or appoint an authority to enquire into the truth thereof. 28. Where it is proposed to hold an enquiry against a member of the force under Rule 36, the disciplinary authority shall draw up the substance of the imputation of misconduct or misbehaviour into definite and distinct articles of charge. 28. Where it is proposed to hold an enquiry against a member of the force under Rule 36, the disciplinary authority shall draw up the substance of the imputation of misconduct or misbehaviour into definite and distinct articles of charge. Each article of charge must be supported by a statement of the imputation of misconduct or misbehaviour including a list of documents by which and a list of witnesses by whom the articles of charge are proposed to be sustained. Once the above is delivered to the member of the force, he shall be required to submit within a specified time a written statement of his defence and also stating whether he desires to be heard in person. 29. On receipt of the written statement of defence, the disciplinary authority may itself enquire into the charges as are not admitted or appoint an inquiring authority not below the rank of Inspector. 30. The disciplinary authority is required to appoint a member of the force as the Presenting Officer to present the case of the disciplinary authority before the inquiring authority. 31. The charged member on receipt of notice is required to appear before the inquiring authority within ten working days from the date of receipt of notice. As per Rule 36(8)(a), the charged member may be permitted by the inquiring authority to present his case with the assistance of any other member of the force posted at the place of enquiry. The charged member is required to give three choices for his defence assistance out of which one will be deputed by the controlling officer. 32. On the date fixed for enquiry, the oral and documentary evidences by which the articles of charge are proposed to be proved shall be produced by or on behalf of the disciplinary authority. The witnesses shall be examined by the Presenting Officer and they may be cross-examined by or on behalf of the charged member, with power to re-examine witnesses. The inquiring authority may also put such questions to the witnesses as may be deemed fit. 33. As per clause (16) of Rule 36, the inquiring authority before close of the case on behalf of the disciplinary authority, may in its discretion allow the Presenting Officer to produce evidence not included in the list given to the charged member. The inquiring authority may also put such questions to the witnesses as may be deemed fit. 33. As per clause (16) of Rule 36, the inquiring authority before close of the case on behalf of the disciplinary authority, may in its discretion allow the Presenting Officer to produce evidence not included in the list given to the charged member. The inquiring authority may also call for new evidence or recall and re-examine any witness already examined. In such a case, the charged member shall be entitled to a copy of the list of further evidence proposed to be produced and an adjournment of the enquiry for three clear days excluding the day of adjournment and the day to which the enquiry is adjourned before production of such new evidence. As per the note below clause (16) new evidence shall not be permitted or called or any witness shall not be recalled to fill up any gap in the evidence. Such evidence may be called for only when there is an inherent lacuna or defect in the evidence which has been produced originally. 34. After the case of the disciplinary authority is closed, the charged member shall be called upon to state his defence either orally or in writing as he may prefer. However, if the defence is made orally, it shall be recorded in writing. Thereafter, evidence on behalf of the charged member shall be produced, including himself as a witness. Witnesses produced by the charged member may be liable to be cross-examined by the Presenting Officer. 35. After the charged member closes his case and had not examined himself, the inquiring authority may generally question him on the circumstances appearing against him in the evidence to enable him to explain such circumstances. 36. After closure of evidence, the inquiring authority may hear the Presenting Officer and the charged member or permit them to file written briefs of their respective cases if they so desire. 37. After conclusion of the enquiry, a report shall be prepared by the inquiring authority containing amongst others findings on each article of charge and reasons thereof. Thereafter the inquiring authority shall forward to the disciplinary authority the record of enquiry including the report so prepared. 38. The disciplinary authority may consider the record of enquiry and record its findings on each charge. Thereafter the inquiring authority shall forward to the disciplinary authority the record of enquiry including the report so prepared. 38. The disciplinary authority may consider the record of enquiry and record its findings on each charge. The procedure to be followed in the event the disciplinary authority disagrees with the findings of the inquiring authority is also laid down. 39. Copy of the enquiry report is required to be furnished to the charged member who shall be required to submit, if he so desires, his written representation or submission to the disciplinary authority on the enquiry report within 15 days. 40. The disciplinary authority shall consider the representation, if any, submitted by the charged member and thereafter pass necessary order imposing such penalties, including any of the minor penalties, as may be deemed fit and proper. 41. This then in sum and substance is the procedure laid down under Rule 36 of the CISF Rules for imposing major penalties on a member of the force. 42. Having noticed the legal provisions as above, the record produced by the learned Central Government Counsel may now be perused. 43. In the order dated 15-04-2010 appearing in the note sheet, the Enquiry Officer stated that it was presumed that statement of Assistant Commandant Shri Gokul Chand was urgently required to be examined. It was stated that though he was not listed as a prosecution witness, in the course of the enquiry his statement could be recorded as PW 8. Accordingly notice was issued to him as well as to the charged member (petitioner) and to the Presenting Officer. Thereafter order dated 30-04-2010 discloses that Shri Gokul Chand (PW 8) had appeared for recording his statement and examination. It was stated that sufficient opportunity was given to the charged member to produce any defence witness but he failed to do so. Hence it was stated that his defence statement would be recorded for which notice would be issued in due course. However, a perusal of the orders prior to 30-04-2010 as appearing in the note-sheet does not indicate any such intimation or notice being issued to the charged member for production of defence witness. 44. Order dated 04-05-2010 indicates that enquiry notice was issued to the charged member on that day for recording his defence statement on 06-05-2010. However because of sickness of the charged member his defence statement was recorded on 19-05-2010. 44. Order dated 04-05-2010 indicates that enquiry notice was issued to the charged member on that day for recording his defence statement on 06-05-2010. However because of sickness of the charged member his defence statement was recorded on 19-05-2010. Order dated 19-05-2010 discloses that he was asked to give the names of witnesses or documents which he intended to examine/produce in his defence. It is recorded that the charged member had informed that he did not want to examine any defence witness or to produce any document. Accordingly he was informed that the enquiry had come to an end. 45. Subsequent orders dated 21-05-2010, 29-05-2010 and 31-05-2010 disclose that notice was issued to the Presenting Officer to submit brief note. No such notice was issued to the charged member. After the Presenting Officer submitted his brief note, a copy of the same was forwarded to the charged member to submit his response. Order dated 21-06-2010 indicates that charged member had submitted his reply. 46. Thereafter on 21-06-2010 record of enquiry along with enquiry report was forwarded to the disciplinary authority by the inquiring authority. 47. After perusal of the record, facts of the present case may be adverted to. 48. Rule 36(3)(i) stipulates that when the disciplinary authority proposes to hold an enquiry against a member of the force, the substance of imputation of misconduct or misbehaviour shall have to be drawn up in the form of definite and distinct articles of charge. As noticed above, three charges were framed against the petitioner vide the charge memo dated 20-02-2010. While charge No.1 related to the allegation of reporting for duty by the petitioner at around 20:40 hours on 31-12-2009 in a drunken state, charge No.2 related to alleged misbehaviour by the petitioner with a superior officer and threatening to shoot him at around the same time on the said date. On the other hand, as per charge No.3, it is alleged that petitioner had committed various acts of indiscipline at different points of time for which he was punished and thus he has a bad service record for which his retention in the CISF became untenable. While charge Nos. 1 and 2 discloses definite and distinct articles of charge, the same cannot be said about charge No.3. Mr. While charge Nos. 1 and 2 discloses definite and distinct articles of charge, the same cannot be said about charge No.3. Mr. Nair, learned Counsel for the petitioner, is right in contending that charge No.3 as framed cannot be said to be a definite and distinct article of charge. Charge No.3 does not deal with any specific instance of misconduct or misbehaviour by the petitioner, rather the facts mentioned under the heading of charge No.3 could have been considered by the disciplinary authority while considering imposition of punishment on the petitioner in the event he agreed with the report of the Enquiry Officer. Therefore charge No.3 as framed against the petitioner cannot be legally sustained and would accordingly be of no legal consequence. In other words the disciplinary proceeding against the petitioner would be confined to charge Nos.1 and 2 only. 49. The record discloses introduction of Assistant Commandant Shri Gokul Chand, who was the Sector Commander when the alleged incident occurred, as a prosecution witness though he was not so mentioned in the list of witnesses accompanying the show cause notice. As noticed above, a reading of order dated 15-04-2010 as appearing in the note-sheet would show that the Enquiry Officer presumed that statement of Shri Gokul Chand was urgently required. Therefore, though he was not listed as prosecution witness, he would be examined as PW 8 and accordingly examined. 50. Rule 36(16) deals with calling of new evidence in the enquiry. If it shall appear necessary before close of the case on behalf of the disciplinary authority, the inquiring authority may in its discretion allow the Presenting Officer to produce evidence not included in the list given to the charged member. Or, the inquiring authority may himself call for new evidence or recall and re-examine any witness. In such a case the charged member would be entitled to have a copy of the list of further evidence proposed to be produced and for this the enquiry has to be adjourned for three clear days. The note below clause (16) is quite revealing. It clarifies that new evidence shall not be permitted or called for or any witness shall not be re-called to fill up any gap in the evidence. Such evidence may be called for only when there is an inherent lacuna or defect in the evidence produced originally. The note below clause (16) is quite revealing. It clarifies that new evidence shall not be permitted or called for or any witness shall not be re-called to fill up any gap in the evidence. Such evidence may be called for only when there is an inherent lacuna or defect in the evidence produced originally. Thus from a careful and conjoint reading of clause (16) together with the note it becomes clearly evident that discretion is vested in the inquiring authority either to allow the Presenting Officer to produce new evidence or may himself call for such new evidence. This new evidence as is discernible from the language employed can only relate to documentary evidence because in so far witnesses are concerned it is stated that the inquiring authority has the discretion to recall and re-examine any witness. This is further clarified in the note by stating that any witness shall not be recalled to fill up any gap in the evidence. Recall and re-examination of a witness necessarily implies that the witness had deposed earlier and is required to be recalled and reexamined. In other words, if a witness had deposed earlier, he can be recalled and re-examined if the inquiring authority is of the opinion that there is an inherent lacuna or defect in the evidence produced originally. Thus it would appear that there is no provision for introduction of a new witness though production of new evidence i.e., documentary evidence is permissible subject to observance of the procedure laid down in clause (16) read with the note. Now reverting to the order dated 15-04-2010 it is seen that the Enquiry Officer had presumed that statement of Shri Gokul Chand was urgently required. This is no ground for introduction of a new witness, which in any case, is not permissible under Rule 36(16). 51. A perusal of the enquiry report and the impugned order of penalty would go to show that the evidence of PW 8 (Shri Gokul Chand) had played a decisive role in persuading both the inquiring authority and the disciplinary authority to hold that charge Nos. 1 and 2 were proved. Prosecution witnesses 4, 5, 6 and 7 had stated in their evidence that they did not hear any abusive language used by the petitioner against PW 1 Shri A.K. Das and also did not see petitioner threatening to shoot PW 1. 1 and 2 were proved. Prosecution witnesses 4, 5, 6 and 7 had stated in their evidence that they did not hear any abusive language used by the petitioner against PW 1 Shri A.K. Das and also did not see petitioner threatening to shoot PW 1. In fact all the witnesses stated that petitioner had no arms and ammunition with him at the time of the incident. Therefore question of petitioner threatening PW 1 that he would shoot him did not arise at all. Thus, to fill up the gap in the evidence, PW 8 was introduced as a new witness. Therefore introduction of PW 8 had vitiated the enquiry against the petitioner. 52. At this stage, reference may be made to the stand taken by the petitioner all throughout including in the writ proceeding that Head Constable Jasbir Singh was an eye witness to the alleged incident which took place on 31-12-2009. In the preliminary enquiry, the said Jasbir Singh was examined. Yet in the departmental enquiry he was not listed as a prosecution witness. While the disciplinary authority, the appellate authority and the revisional authority maintained a stoic silence in this regard though this point was raised by the petitioner before each of the aforesaid authorities, in the counter affidavit respondents have taken the stand that petitioner was free to call any witness to support his case including Jasbir Singh but he did not do so. 53. The plea advanced by the respondents cannot be accepted for more than one reason. The burden was on the prosecution to prove the charges against the petitioner in the enquiry. Though the standard of proof in a domestic enquiry is not so strict like in a criminal proceeding, yet it is the duty of the prosecution (disciplinary authority) to prove the charges against the delinquent in accordance with law. Therefore, merely saying that petitioner had the opportunity to produce witnesses in the enquiry in his defence which he did not do, would not suffice and would not absolve the prosecution (disciplinary authority) of such omission or lapse. Jasbir Singh was a material witness and his non-examination by the prosecution was violative of the principles of natural justice which had vitiated the enquiry. In Hardwari Lal Vs. Jasbir Singh was a material witness and his non-examination by the prosecution was violative of the principles of natural justice which had vitiated the enquiry. In Hardwari Lal Vs. State of Uttar Pradesh; reported in (1999) 8 SCC 582 , the Apex Court held in the facts of that case that the Tribunal and the High Court were not justified in taking the view that non-examination of the 2(two) vital witnesses could not be material. In the facts and circumstances of that case, it was held that the High Court and the Tribunal had erred in not attaching importance to the aforesaid contention of the appellant. On that ground alone, it was held that no proper enquiry was conducted by the authorities and the order of penalty was quashed. This view has been reiterated by this Court in Pratap Kaivarta (supra) where it was held that non-examination of 2 material witnesses had vitiated the decision making process leading to imposition of penalty. That was also a case of CISF Constable where following a departmental proceeding, penalty of reduction of pay by one stage was imposed on the petitioner of that case. 54. Following the above, Court is also of the considered opinion that non-examination of Head Constable Jasbir Singh, a material witness, and introduction of a new witness i.e. PW 8 had severely impeached the prosecution case, vitiating the outcome of the enquiry and the consequential decision of the disciplinary authority. 55. At this stage, reference may be made to charge No.1. As per this charge, it was alleged that petitioner had reported for duty in a drunken state. In his written statement, petitioner had categorically denied the said allegation. In his examination before the Enquiry Officer he again clearly and categorically denied consumption of alcohol. According to PW 1 Shri A.K. Das, on seeing the gestures of the charged member i.e., the petitioner, he presumed that the charged member had consumed liquor. He stated that he became confirmed about this after observing the way the charged member was talking with smell coming from his mouth which indicated that the charged member was under the influence of alcohol. According to him, though he desired that medical examination be conducted on the charged member, the Sector Commander advised against medical examination and instead suggested rest to the charged member. According to him, though he desired that medical examination be conducted on the charged member, the Sector Commander advised against medical examination and instead suggested rest to the charged member. PW 2 F.B. Kinekar stated that PW3 Manish Kumar had told him that the charged member was under the influence of alcohol and would not be taken on duty. PW 3 in turn stated in his cross-examination that after observing the body language of the charged member, he presumed that the charged member was under intoxication. Thus both PW 1 and PW 3 had presumed that petitioner had consumed alcohol after observing his body language and the manner of his talking. But it is the admitted case even of the disciplinary authority that when this fact was brought to the notice of the Sector Commander, he did not permit medical examination of the petitioner and instead suggested that the petitioner should be rested. 56. The charge of an uniformed personnel coming to attend duty in an intoxicated state is a very serious charge. In view of the seriousness of the charge, it was incumbent upon the authority to have carried out medical examination of the petitioner. Merely on the basis of presumption and suspicion it could not be said that the charge of petitioner being in an intoxicated state while reporting for duty stood proved. Mere smell of alcohol, unsteady gait and incoherence in speech, as observed by PW 1 and PW 3, would not be sufficient to hold that petitioner was in an intoxicated state at the time of the alleged incident. On the basis of the available materials on record, this charge cannot be said to have been proved. 57. As per Clause 18(c) of Rule 36, the inquiring authority after completion of production of evidence may hear the Presenting Officer and the charged member or permit them to file written briefs of their respective cases. In the instant case it is seen from the record particularly from the orders dated 21-05-2010, 29-05-2010, 31-05-2010 and 21-06-2010 as appearing in the note-sheet, the Enquiry Officer asked only the Presenting Officer to submit his written brief. Petitioner was neither heard as required under Clause (18)(c) nor was he permitted to file written brief. What was done was that a copy of the written brief filed by the Presenting Officer was furnished to the petitioner for his reply. Petitioner was neither heard as required under Clause (18)(c) nor was he permitted to file written brief. What was done was that a copy of the written brief filed by the Presenting Officer was furnished to the petitioner for his reply. Filing of written brief of his case is not the same thing as filing reply to the written brief of the Presenting Officer. Therefore, there was clear violation of the provisions contained in Rule 36(18)(c) of the CISF Rules, 2001. This has also contributed to the overall vitiation of the departmental enquiry. 58. Thus from the above it is more than evident that petitioner was denied a fair procedure to defend very serious charges brought against him. For the reasons mentioned, there was violation of the principles of natural justice vitiating the decision making process. While it is true that a member of a disciplined force like the CISF has to maintain absolute discipline at all times, however charge(s) of in-disciplined behaviour or misconduct has to be proved as per the procedure laid down, like Rule 36 as in the present case, and not in derogation of the prescribed procedure. Persons subject to the CISF Act, 1968 and the CISF Rules, 2001 are also citizens of India and they cannot be deprived of their rights under the Constitution and the laws framed there under. As a matter of fact, Section 8 of the CISF Act, 1968 which deals with dismissal, removal etc of members of the force is subject to the provisions of Article 311 of the Constitution. 59. Having regard to the discussions made above, Court is of the considered opinion that the decision making process culminating in the impugned penalty was severely flawed which has rendered the impugned penalty wholly untenable. Accordingly, impugned order dated 15-07-2010 is set aside and quashed. Consequently, respondents are directed to re-instate the petitioner in service forthwith. Having regard to the facts and circumstances of the case, Court is of the view that it would meet the ends of justice if 50% of the back wages are directed to be paid to the petitioner. Accordingly, it is hereby directed that petitioner would be entitled to 50% of the back wages on his re-instatement. 60. Writ petition is allowed but without any order as to cost.