JUDGMENT : Samapti Chatterjee, J. 1. The petitioner has filed the present writ petition assailing the memorandum of charges dated 11th September, 2008 enquiry report dated 1st January, 2009, final order of the disciplinary authority dated 5th March, 2009 as well as order of the appellate authority dated 30th April, 2009. 2. The case of the petitioner in a nutshell is as follows : That the petitioner on 10th June, 2006 joined in service as Constable in the Central Industrial Security Force (hereinafter referred to as the said ‘Force’). Subsequently the petitioner was assigned Internal Security Duty (I.S. Duty) in Arunachal Pradesh on 22nd February, 2008. All on a sudden on 11th September, 2008 petitioner was served with a memorandum of charges inter-alia with the following Article of charge :- “While the petitioner was on duty on 12.5.2008 from 9.00 hrs. to 13.00 hrs. he consumed liquor at about 12.20 hrs. on 12.05.2008 with 4 other members of the Force and created nuisance and threatened to shoot the sub-Officers’ and as such he along with others were taken by the local police personnel and after their medical check up was set at free.” Accordingly, the petitioner submitted his statement of defence denying all the allegations and also mentioning that several important/relevant documents have not been enclosed with the said memorandum of charge. As a result whereof the petitioner prayed for providing him those important documents. Thereafter on 1st January, 2009 the Enquiry Officer submitted his report thereby establishing the guilt of the petitioner. Against such enquiry report the petitioner submitted his written representation sometime in January, 2009. The disciplinary authority thereafter on the basis of the purported enquiry report on 5th March, 2009 passed its final order thereby imposing harsh punishment like removal from the service. Against the said final order of the disciplinary authority the petitioner preferred an appeal on 22nd March, 2009 before the Appellate authority. The appellate authority on 30th April, 2009 rejected the petitioner’s appeal thereby affirming the order of removal passed by the disciplinary authority. Submissions of the Learned Advocates 3. Mr. Debabrata Saha Roy, learned Advocate appearing for the petitioner submitted that the decision of the disciplinary authority subsequently affirmed by the appellate authority are wholly erroneous, illegal and suffers from lack of procedural mistakes. 4. Mr. Submissions of the Learned Advocates 3. Mr. Debabrata Saha Roy, learned Advocate appearing for the petitioner submitted that the decision of the disciplinary authority subsequently affirmed by the appellate authority are wholly erroneous, illegal and suffers from lack of procedural mistakes. 4. Mr. Saha Roy, further vehemently urged that it is evident from the medical report (appears at page-104 of the writ petition) that there is no smell of alcohol at the body of the petitioner. 5. Mr. Saha Roy also contended that out of seven prosecution witnesses five witnesses deposed but none of them stated that there was smell of alcohol. Therefore, Mr. Saha Roy contended that proceeding should be quashed as the charge levelled against the petitioner was not proved. 6. Mr. Saha Roy also contended that no medical board was constituted to examine the petitioner to ascertain whether the petitioner at that point of time was in a drunken state or not. In support of his contention Mr. Saha Roy relied on a Hon’ble Apex Court decision reported in 1971 (3) SCC Page-930 Paragraphs-4,5 and 6 ( Bachubhai Hassanalli Karyani vs State of Maharashtra). He also relied on another Hon’ble Supreme Court decision reported in 2010 (15) SCC Page-399 Paragraphs-3, 4 and 5 ( Munna Lal vs Union of India And Others) which reiterated the same issue and the same are quoted below :- “Para-3-The appellant contended that on that day, he was ill and was taking medicines and this must have caused the smell of alcohol. An inquiry was conducted and the enquiry officer relied on the incomplete report of the doctor who examined the appellant and held that the appellant’s case was a confirmed case of intoxication and reliance was also placed on the three witnesses, who were examined in the inquiry. The learned counsel for the appellant contended that there was no medical evidence to prove that the appellant was drunken on that day and he was alcoholic and he was also not taken to Safdarjung Hospital as suggested by the duty doctor on panel at the Airport. The appellant also contended that reliance could not have been placed on the oral evidence given by the witnesses. Para-4-The learned counsel appearing for the respondent submitted that the appellant was found guilty of dereliction of duty previously also and there were other disciplinary proceedings against the conduct of the appellant. The appellant also contended that reliance could not have been placed on the oral evidence given by the witnesses. Para-4-The learned counsel appearing for the respondent submitted that the appellant was found guilty of dereliction of duty previously also and there were other disciplinary proceedings against the conduct of the appellant. But in the instant case it was not proved that the appellant was drunk on the day when he was on duty. Evidence was not satisfactory to prove that he was found with any alcohol and he was also not taken to Safdarjung Hospital as suggested by the first doctor. Para-5-In the absence of positive evidence, we are of the view that the charge levelled against the appellant was not proved satisfactorily. In the absence o sufficient proof, the disciplinary authority should not have imposed such penalty. Therefore, the punishment imposed was illegal and the appellant is entitled to be reinstated in service and he is entitled to get 50 % of the back wages for the period he was out of service. The respondents are directed to reinstate the appellant in service forthwith. The appellant’s service during this period would be treated for other service benefits such as seniority, increment and pension.” 7. Mr. Saha Roy also drew my attention to different portions of the departmental enquiry report as well as the deposition of the witnesses. 8. Mr. Saha Roy also strongly argued that material witness who lodged complaint was not brought by the department to establish the charge, thus the material witness was not examined, therefore, the proceeding itself is bad in law and that should be quashed. 9. Mr. Saha Roy also contended that punishment is shockingly disproportionate to the charge levelled against the petitioner. In support of his contention Mr. Saha Roy relied on a Hon’ble Supreme Court decision reported in 2000 (3) SCC Page-450 Paragraphs-8 & 9 (U.P State Road Transport Corpn. And Others vs Mahesh Kumar Mishra And Others). 10. Before parting with his argument Mr. Saha Roy submitted that proceeding followed by punishment which was subsequently approved by the appellate authority should be quashed and set aside by this Hon’ble Court. 11. Per contra, Mr. And Others vs Mahesh Kumar Mishra And Others). 10. Before parting with his argument Mr. Saha Roy submitted that proceeding followed by punishment which was subsequently approved by the appellate authority should be quashed and set aside by this Hon’ble Court. 11. Per contra, Mr. Debasish Basu learned Advocate appearing for the Union of India strongly submitted that it is not expected from any employee who is working under a disciplined armed force like CISF, to indulge in drinking alcohol in duty hours. 12. Mr. Basu further submitted that as the petitioner was deployed for I.S Duty at Seismic Survey Guest House located in a terrorist infested MIAO area of Arunachal Pradesh his paramount duty was to protect and safeguard the plant properties at a particular place from theft, pilferage, and also probable attacks from extremists. 13. Mr. Basu further vehemently argued that at that material point of time the petitioner along with other two were coming from Seismic Guest House leaving un-attended the duty post without any permission from Senior and they did not walk properly. 14. Mr. Basu further contended that smell of liquor was coming from their mouth. That incident was occurred at 12.30 hours on 12th May, 2008. Furthermore, it was found that incident occurred at about 12.30 hours in broad day light while petitioner was on duty. 15. Mr. Basu also contended that medical examination of the petitioner along with others was carried out at 17.42 hours on 12th May, 2008 i.e. after five hours of their being found consuming liquor. Since the medical examination was held after five hours of their consumption of liquor as a result thereof smell of liquor many not be found in the medical examination. That does not establish that the petitioner along with two others did not consume liquor on that particular date i.e. on 12th May, 2008 at about 12.30 hours when they were on duty. 16. Mr. Basu in conclusion submitted that there is no infirmity or illegality in the final order of the authority which deserves interference by this Hon’ble Court. Decision with Reasons 17. Considering the submissions advanced by the learned advocates appearing for the parties and after perusing the records and also the decisions cited above I find that the charge levelled against the petitioner was not proved by the prosecution beyond reasonable doubt. 18. Decision with Reasons 17. Considering the submissions advanced by the learned advocates appearing for the parties and after perusing the records and also the decisions cited above I find that the charge levelled against the petitioner was not proved by the prosecution beyond reasonable doubt. 18. The Court also cannot ignore the fact that none of the departmental witnesses deposed that they got some smell of alcohol from the petitioner. It is also evident from the medical report that no smell of alcohol existed when the petitioner was examined. It is further evident from record that out of seven departmental witnesses five witnesses in their deposition stated that the petitioner was normal and he was not drunk at that material point of time i.e. On 12th May, 2008. 19. I also cannot ignore the fact that petitioner was not referred to any medical board for examination. Some extract of findings of the medical report is quoted below : “No smell of alcohol in breath. No clinical sign of alcoholic in intoxication at the time of examination.” 20. I also find that petitioner asked for furnishing P.E. report as well as the written complaint lodged against him from Chief of Seismic Survey Camp who became the complainant of this proceedings as material witness but those were not supplied to the petitioner by the authority. Furthermore material witness was not examined. The Hon’ble Supreme Court in AIR 2014 (SC) Page862 Paragraph-15 (Shobha Sinha v State of Bihar & Ors). Held as quoted below :- Para-15-…****** The court observed that when a departmental enquiry is conducted against the Government servant, it cannot be treated as a casual exercise and procedural fairness is to be shown while conducting the enquiry. Learned senior counsel for the respondents, on the other hand, had attempted to argue the non-supply of documents had not prejudiced the case of the appellant and the Division Bench was right in holding that the charge against the appellant was proved in view of her own notings. Though, we may make tentative observation that non-supply of documents could still be necessary for the appellant to give justification and explain the circumstances in which she had made the notings in question, it is not necessary to go any further to deal with this argument as this exercise is already undertaken by the Review Committee itself. Though, we may make tentative observation that non-supply of documents could still be necessary for the appellant to give justification and explain the circumstances in which she had made the notings in question, it is not necessary to go any further to deal with this argument as this exercise is already undertaken by the Review Committee itself. Even if we proceed on the basis that there is some kind of dereliction of duty in making the notings by the appellant made on 28th October 1993 and 17th January 1994, the more pertinent and important issue is as to what kind of charge and to what extent it is proved. That is already reflected in the report of the Review Committee in exercise which could not be ignored or glossed over by the High Court.” (Emphasis supplied) 21. In my considered view the respondent authority being the creatures of statute ought to have acted in strict compliance of the procedural aspects. It was not the duty of the enquiry officer to opine and express his findings in the enquiry report. Duty of the enquiry officer is to enquire into the matter and send the report to the higher authority for adopting decision on the basis of the enquiry report. But in the present case I find that the enquiry officer himself expressed his opinion thereby wrongfully giving its findings and observation in the enquiry report. Furthermore, the enquiry officer has overstepped his duty in conducting enquiry by recommending to take disciplinary action against the charged officer, thereby exhibiting his bias-ness which clearly proves that enquiry was held in a closed mind. 22. It is also surprising that in the final order of removal from service it was observed by the competent authority under Article of Charge Para-6 (ii) of the Final Report appears at Pages-86-91 as follows : “Para-6 (ii) As regard the Enquiry Officer overstepping his functions of conducting enquiry, on scrutiny of all the statements, documents held on records, it is found that the enquiry has been conducted as per laid down procedure and the charge leveled against the charged member stands proved. The Enquiry Officer having recommended to take Disciplinary action against the charged members though not required yet it does not bear any influence whatsoever on the Disciplinary Authority & does not force the Disciplinary authority to accept it, since issuance of charge sheet and subsequent conduct of Departmental Enquiry as per laid down procedure is a part of disciplinary proceedings wherein the case will be decided on its merits only by the Disciplinary Authority and not by mere passing recommendation of the Enquiry Officer.” 23. It is also established that the complainant being the material witness was not produced by the department as its witness which is most essential and mandatory to establish the charge levelled against the petitioner. AIR 2000 (SC) Page-277 (Hardwari Lal vs State of U.P and Others) Paragraphs-2, 3, 4 and 5 which are quoted below :- “Para-2-The appellant was a constable in the police department in the State of Uttar Pradesh. On a charge that on the night between 16/17-1-1991 being under the influence of liquor hurled abuses in the police station at Constable, Prakash Chandra Pandey, a departmental enquiry was initiated against the appellant. On receipt of enquiry report the disciplinary authority passed an order of dismissal. Challenge to that order by the appellant before Public Services Tribunal (hereinafter referred to as ‘the Tribunal’) failed. The appellant further carried the matter to the High Court by way of writ petition. The ground based on non-supply of copies of certain documents like preliminary enquiry report, the statement of the complainant made to Inspector Virender Singh was rejected by the Tribunal being of the view that the appellant had participated in the preliminary enquiry having inspected the entire record and documents and had not asked for any copes of the record. This finding recorded by the Tribunal stood affirmed by the High Court. Similarly, the contention regarding non-examination of Virender Singh, who was the complainant in the case, and witness, Jagdish Ram, who was supposed to have witnessed the incident, was also rejected by the Tribunal on the basis that the examination of Virender Singh was only formal to prove the report dated 17-7-1991 and no prejudice has been caused to the defence of the appellant. According to the Tribunal, evidence of Jagdish Ram also was not important because he had merely accompanied him for the purpose of medical examination. According to the Tribunal, evidence of Jagdish Ram also was not important because he had merely accompanied him for the purpose of medical examination. The High Court affirmed this finding and ultimately concluded that apart from the evidence of these two witnesses there was sufficient material on record to establish the fact that the incident took place and thus there was nog round to interfere with the order made by the Tribunal and dismissed the writ petition. Hence this appeal. Para-3-Before us the sole ground urged is as to the non-observance of the principles of natural justice in not examining the complainant, Shri Virender Singh, and witness Jagdish Ram. The Tribunal as well as the High Court have brushed aside the grievance made by the appellnt that the non-examination of those two persons has prejudiced his case. Examination of these two witnesses would have revealed as to whether the complaint made by Virender Singh was correct or not and to establish that he was the best person to speak to its veracity. So also, Jagdish Ram, who had accompanied the appellant to the hospital for medical examination, would have been an important witness to prove the state or the condition of the appellant. We do not think the Tribunal and the High Court were justified in thinking that non-examination of these two persons could not be material. In these circumstances, we are f the view that the High Court and the Tribunal erred in not attaching importance to this contention of the appellant. Para-4-However, Shri Goel, the learned Addl. Advocate General, State of Uttar Pradesh, has submitted that there was other material which was sufficient to come to the conclusion one way or the other and he has taken us through the same. But while appreciating the evidence on record the impact of the testimony of the complainant cannot be visualized. Similarly, the evidence of Jagdish Ram would also bear upon the state of inebriation, if any, of the appellant. Para-5-In the circumstances, we are satisfied tht there was no proper enquiry held by the authorities and on this short ground we quash the order of dismissal passed against the appellant by setting aside the order made by the High Court affirming the order of the Tribunal and direct that the appellant be reinstated in service. Para-5-In the circumstances, we are satisfied tht there was no proper enquiry held by the authorities and on this short ground we quash the order of dismissal passed against the appellant by setting aside the order made by the High Court affirming the order of the Tribunal and direct that the appellant be reinstated in service. Considering the fact of long lapse of time before the date of dismissal and reinstatement, and no blame can be put only on the door of the respondents, we think it appropriate to award 50 per cent of the back salary being payable to the appellant. We thus allow the appeal filed by the appellant. However, there shall be no order as to costs.” (Emphasis supplied) But in the present case it is found that the material witness was not examined by the department. Therefore, in my considered view without following the procedural aspects, without supplying relevant documents as prayed for by the petitioner the decision of extreme harsh punishment of removal from service is shockingly disproportionate to the charge levelled against the petitioner. 24. Therefore, considering the entire aspects as discussed above and also perusing the records and the decisions (Bachubhai Hassanalli Karyani case, Munna Lal case & U.P State Road Transport Corpn case (supra) I have no hesitation to hold that without complying with the principle of natural justice in the disciplinary proceedings which resulted in the final order of punishment subsequently affirmed by the appellate authority is amenable to judicial review for patent illegality, irregularity and procedural impropriety. 25. Accordingly, the memorandum of charges dated 11th September, 2008 enquiry report dated 1st January, 2009, final order of the disciplinary authority dated 5th March, 2009 as well as order of the appellate authority dated 30th April, 2009 are hereby quashed and set aside. The disciplinary proceeding including the order of punishment since merged in the appellate order stand set aside. 26. The petitioner shall be reinstated in service within 4 (four) weeks from the date of communication of this order. Petitioner shall be entitled to 50% of his back wages during the period spent under dismissal. Such amount is directed to be paid based on the conclusion reached by me that had he not been fastened with the order of dismissal, he would have served the authority and earned his salaries. Petitioner shall be entitled to 50% of his back wages during the period spent under dismissal. Such amount is directed to be paid based on the conclusion reached by me that had he not been fastened with the order of dismissal, he would have served the authority and earned his salaries. It is also worthwhile to note that no evidence had been produced on behalf of the authority to establish that the petitioner was in gainful employment during the period of dismissal. The arrears be calculated and paid to the petitioner within eight (8) weeks from the date of receipt of the copy of this order. The period spent under dismissal by the petitioner shall be treated as continuation of service. 27. The CAN application being No.2487 of 2015 is also accordingly disposed of. 28. This writ petition is allowed without any order as to costs.