JUDGMENT AND ORDER : N. Kotiswar Singh, J. Heard Md. Jalaluddin, learned counsel for the petitioner and Mr. R.K. Umakanta, learned G.A. for the respondents. 2. In this writ petition, the petitioner has challenged his dismissal from service vide order dated 27.12.2013, passed by the Commandant, 8th Bn. Manipur Rifles, Leikun, Chandel. 3. The petitioner was at the relevant time serving as a Rifleman in the 8th Manipur Rifles having been appointed in the year 1988. He was placed under suspension vide order dated 28.08.2012 on the ground of unauthorised absence and also for involvement in the FIR Case No.453(8)2012 IPS under Section 25-A/29 ND&PS Act. Subsequently, he was served with the Memorandum of charges dated 22.11.2012 containing the articles of charges and other relevant papers. The charges against the petitioner were that firstly, he was found absent w.e.f. 20.08.2012 to 28.08.2012 i.e. 8 (eight) days from his place of posting at 8MR, BHQ, Leikun without any leave or permission from the competent authority, and secondly, during his period of unauthorised absence from BHQ, Leikun he was arrested in connection with the aforesaid FIR case. It has been stated that on 21.08.2012 at around 6:15 pm he along with 3 (three) other persons including one Md. Warish Ahamed were detained by a team of Special Intelligence Unit (SIU), Imphal West District at Kwakeithel Thokchom Leikai while they were traveling in a vehicle and huge quantities of illegal drugs i.e. Robocoff Tablets 60 mg Pseudo Ephedrine – 50,400 strips in four different packets/parcels containing 12,600 strips in each parcel were recovered from their possession. On the next day, these 4 (four) persons including the petitioner were handed over to OC, Imphal Police Station for further legal action and the OC registered a case under FIR 453(8)2012 IPS u/s 25-A/29 ND & PS Act. The petitioner furnished his written statement of defence to the aforesaid Memorandum of Charges denying the allegations. His stand is that he had gone along with his friends to the Airport to receive certain parcels sent from Delhi by the brother of the said Md. Warish Ahamed. It is his case that the tablets were seized from the possession of Md. Warish Ahamed who never disclosed to the petitioner about the said contents in the parcels but merely stated that those were garments/cloths sent from Delhi and as such he had no idea of the said drugs. Warish Ahamed. It is his case that the tablets were seized from the possession of Md. Warish Ahamed who never disclosed to the petitioner about the said contents in the parcels but merely stated that those were garments/cloths sent from Delhi and as such he had no idea of the said drugs. He, therefore, claims that he is totally innocent of the aforesaid acts committed by the said Warish Ahamed. 4. On conclusion of the departmental enquiry, the Enquiry Officer submitted his report in which the Enquiry Officer gave the finding that the charge of unauthorised absence of 8(eight) days has been proved. However, as regards the second charge about the involvement in the police case, the Enquiry Officer held that there is no clue and evidence to prove the charge against the petitioner. 5. The Disciplinary Authority, however, on consideration of the enquiry report along with the materials on record did not agree with the finding of the Enquiry Officer as regards the second charge and was of the view that the petitioner committed gross misconduct as he had accompanied and assisted his friend accused Md. Warish Ahamed in transporting the contraband drugs. On the basis of the aforesaid opinion of the Disciplinary Authority, the Disciplinary Authority took the view that the petitioner deserved severe major penalty of dismissal from service. Accordingly, the Disciplinary Authority by disclosing the reasons as to why the Disciplinary Authority disagreed with the findings of the Enquiry Officer gave an opportunity of being heard to the petitioner by issuing the Last Show Cause Notice dated 20.06.2013 to show cause within 15 (fifteen) days of the receipt of the notice as to why he should not be dismissed from service. The said Show Cause Notice was accompanied by a copy of the finding of the enquiry report. 6. In response to the aforesaid Show Cause, the petitioner submitted his written explanation. 7. Thereafter, the Disciplinary Authority on consideration of the written reply submitted by the petitioner passed the impugned dismissal order dated 27.12.2013. 8. Against the aforesaid order of dismissal, the petitioner filed an appeal before the Appellate Authority, which however, was rejected by an order issued on 20.11.2014. Being aggrieved by the aforesaid dismissal order and rejection of the appeal, the petitioner has preferred this writ appeal. 9. The petitioner has taken two grounds in challenging the dismissal order. 8. Against the aforesaid order of dismissal, the petitioner filed an appeal before the Appellate Authority, which however, was rejected by an order issued on 20.11.2014. Being aggrieved by the aforesaid dismissal order and rejection of the appeal, the petitioner has preferred this writ appeal. 9. The petitioner has taken two grounds in challenging the dismissal order. Firstly, the petitioner contends that no defence assistant was appointed as is required under law. Thus, in absence of defence assistant, the departmental enquiry held against the petitioner is vitiated and it has been submitted that on that ground, the dismissal order is liable to be set aside, relying on the decision of the Hon’ble Gauhati Court rendered in Writ Appeal No. 267 of 2002 (The State of Manipur & Ors. Vs. Shri Chongtham Homendro Singh) which was disposed of on 18.04.2005. The Hon’ble Gauhati High Court in the aforesaid decision observed as follows : “21. Coming to the case in hand, it is noticed that inquiry officer has not followed the procedure as laid down under Rule 66 to afford the reasonable opportunity to the petitioners to defend their case as provided under the Rules. On the other hand, proceedings were conducted by the inquiry officer himself alone without the presenting officer, without the defence assistant and in absence of the petitioners, when the proceedings were conducted in the manner as discussed above, the evidence on which the inquiry officer relied on cannot be said to be sufficient evidence to warrant dismissal of the petitioners respondents. The inquiry proceedings therefore, cannot stand in eye of law, and in such situation, the Court is bound to step in and quash the proceedings.” Accordingly Md. Jalaluddin, learned counsel for the petitioner submits that as no defence assistant was appointed, the departmental proceeding was vitiated and dismissal order is liable to be quashed. 10. This contention, however, has been refuted by Mr. R.K. Umakanta, learned counsel for the State respondents, contending that the question of appointment of defence assistant did not arise as the petitioner himself declined the offer for appointment of any defence assistant. In view of the above stand taken by the State, we have perused the record of the departmental proceedings. This contention, however, has been refuted by Mr. R.K. Umakanta, learned counsel for the State respondents, contending that the question of appointment of defence assistant did not arise as the petitioner himself declined the offer for appointment of any defence assistant. In view of the above stand taken by the State, we have perused the record of the departmental proceedings. On perusal of the record of the departmental proceedings, it has been found that when the petitioner was examined in course of the enquiry, he was specifically asked whether he will appoint any defence assistant during the departmental enquiry for his defence to which the petitioner stated that he will face the departmental enquiry himself. In view of the specific refusal by the petitioner himself for appointment of defence assistant, this Court is of the opinion that the aforesaid contention of Mr. Jalaluddin, learned counsel for the petitioner alleging non appointment of defence assistance to be without any basis. 11. The other issue raised by the petitioner is that no final opportunity of hearing was given to the petitioner before the impugned dismissal order was issued. In this context, Mr. Jalaluddin has drawn the attention of this Court to Rule 66 of the Assam Police Manual which provides for procedures to be adopted in cases involving major penalty which requires giving opportunity of hearing before imposing major penalty. Mr. Jalaluddin submits that major punishment cannot be given unless proper opportunity of hearing is given to the petitioner, which in the present case was not done. Accordingly, Mr. Jalaluddin submits that the impugned dismissal order is liable to be interfered with. 12. Mr. Jalaluddin, learned counsel for the petitioner submits that the fact remains that the petitioner was not the owner of the drugs which were seized. It was seized from another person, namely Warish Ahamed. He submits that on that day, when the said articles were seized, he happened to be only accompanying the said friends. He submits that in fact, as evident from the order dated 29.08.2012 passed in Cril. Misc(B) Case No. 124 of 2012 by which the Ld. Special Judge, ND & PS released the petitioner and two others on bail, it is on record that the said Warish Ahmed had stated that the petitioner and others had no knowledge about the Robocoff tablets as he, Warish Ahamed, did not disclose it to them. Thus, the Ld. Misc(B) Case No. 124 of 2012 by which the Ld. Special Judge, ND & PS released the petitioner and two others on bail, it is on record that the said Warish Ahmed had stated that the petitioner and others had no knowledge about the Robocoff tablets as he, Warish Ahamed, did not disclose it to them. Thus, the Ld. Special Judge released the petitioner and two others on bail. Mr. Jalaluddin, therefore, submits that the petitioner was not aware of the carrying of the aforesaid drugs by the said Warish Ahamed. In this regard, Mr. Jalaluddin has relied on the decision of the Hon’ble Supreme Court rendered in State of Punjab Vs. Hari Singh and Ors., (2009) 4 SCC 200 in which it has been stated that whether there was conscious possession had to be determined with reference to the factual backdrop in each case. In the present case as already stated by the said Warish Ahamed himself that the petitioner and others had no knowledge of the said drugs, therefore, it cannot be said that the petitioner was involved in possession of the said drugs or in the transportation of drugs. 13. Mr. Jalaluddin further submits that the Enquiry Officer had given finding in favour of the petitioner that the second charge was not proved. However, the disciplinary authority disagreed with the said finding of the Enquiry Officer and proceeded to impose the penalty of dismissal from service without giving any opportunity of being heard to the petitioner. 14. In order to appreciate this contention of Mr. Jalaludin, learned counsel for the petitioner, a perusal of the last show cause notice dated 20.06.2013 may be necessary, which is reproduced here in below: “No. DE-01/2012-8MR/629 GOVERNMENT OF MANIPUR OFFICE OF THE COMMANDANT 8TH BN. MANIPUR RIFLES LEIKUN, CHANDEL Leikun, the 20th June, 2013. To Md. Samsul Haque Rifleman No.05946048 of D- Coy, 8th Bn. Manipur Rifles, Leikun, Chandel Subject:- Last Show Cause Notice Whereas, a DE was initiated against you vide No. DE- 01/8MR-2012 dated 14/09/2012 by placing under suspension for your gross misconduct with the act of unauthorized absence of 8 (eight) days w.e.f. 20/08/2012 to 28/08/2012 from BHQ, Leikun without any leave or permission from the competent authority and involvement in Police case FIR No.453(8)2012 IPS u/s 25-A/29 ND & PS Act relating to unauthorized possession of illegal/banned drugs of Robocoff Tablets 60 mg. Pseudo Ephedrine-50,400 strips in four different packets/parcels which were recovered by a team of SIU of Imphal (W) on 21/08/2012 at Kwakeithel Thokchom Leikai during your absent period. Whereas you have received (1) Memorandum dated 22/11/2012, (2) Statement of imputation of misconduct or misconduct or misbehaviour, (3) List of documents by which the articles of charges framed against you are to be sustained and (4) List of witnesses, Etc. on 24/11/2012 and accordingly you have submitted your written statement of defence on 30/11/2012. Whereas Shri S. Ingo Singh, MPS, AC/8MR, Leikun was appointed as E.O. vide No.De-01/2012-8MR/7297 dated 03/12/2012, and the E.O. has submitted his Findings/Enquiry Report on 01/06/2013 to the undersigned stating that the article of charge-I levelled against your is held proved and the charge –II could not be proved due to pendency investigation by the District Police. And whereas, I have gone through the findings of the E.O. and agree with the findings partially that the E.O. has not cited any evidence for holding the charge not proved and stated that the charge-II involvement in FIR case could not be held proved due to the pending investigation by the police. On minute perusal, it has been found that you have accompanied and assisted your friend-main accused, Md. Warish Ahamad in transporting the contraband drugs on 21/08/2012 and thereby committed gross misconduct being a disciplined force and probability of your involvement in transportation of drugs is proved on the following grounds: (i) You have not produced any evidence in your defence during enquiry. (ii) You can’t produce any defence witness in your support. (iii) There is no dispute that you were arrested in F.I.R. case along with main accused namely- Md. Warish Ahamed while travelling together in vehicle with contraband drugs. Accompanying main accused while committing crime is co-accused. (iv) Release on bail by the court with pending investigation does not prove your innocence. (v) Two defence witnesses namely – T.Amalkumar Singh, S.I. of SIU, Imp(W) & Amitabh Singh Arambam, S.I. of IPS fully supported the charges and deposed their statements in presence of you but you failed to crossexamine them. This shows that you have agreed with the deposition of the prosecution witness. (v) Two defence witnesses namely – T.Amalkumar Singh, S.I. of SIU, Imp(W) & Amitabh Singh Arambam, S.I. of IPS fully supported the charges and deposed their statements in presence of you but you failed to crossexamine them. This shows that you have agreed with the deposition of the prosecution witness. (vi) Your pretext for ignorance about the contents of the drugs in the parcel and simply accompanying your friend- main accused to collect the parcels and carrying the same in the vehicle is not convincing. Being disciplined and security personnel, you should have known character of your friend and smelt any illegal activities of your companions. As contemplated under Rule 66 of AP Manual Pt-III read with section 7 of Police Act (1861), the undersigned is now satisfied that your deserve to be awarded with the punishment of “DISMISSAL” from service forthwith. However, this ‘Last Show Cause Notice’ giving you the opportunity of being heard as last chance and to show cause within 15(fifteen) days upon receipt of this notice as to why you should not be dismissed from service forthwith is thus served to you. A copy of the findings of the Enquiry Officer is also enclosed herewith for your reference. Encls : As above. Sd/- Commandant, 8th Bn. Manipur Rifles, Leikun, Chandel” Perusal of the aforesaid show cause notice would indicate that the Disciplinary Authority did not agree with the findings of the Enquiry Officer that the second charge against the petitioner could not be proved. The reasons for disagreeing with the aforesaid finding of the Enquiry Officer is clearly reflected in the said show cause notice as reproduced above. 15. It is now well established that in a departmental enquiry the standard of proof is merely the “preponderance of probabilities” rather than proof which is “beyond reasonable doubt” as in the case of criminal trial. Mr. Jalaluddin, learned counsel for the petitioner submits that the petitioner is innocent of the charges in as much as the contraband drugs were not recovered from him and also that he was not informed by Md. Warish Ahamed, the carrier of the contraband drugs of the contents in the parcels. It has to be remembered that in this case we are not dealing with a criminal trial but a departmental inquiry. Thus, even though Mr. Warish Ahamed, the carrier of the contraband drugs of the contents in the parcels. It has to be remembered that in this case we are not dealing with a criminal trial but a departmental inquiry. Thus, even though Mr. Jalaluddin has tried to convince this Court that the petitioner is not really guilty of the second charge of helping in transportation of the contraband article, we cannot accept the same as the yardstick and standard of proof required in a criminal case cannot be applied in the present case. The reasons given by the Disciplinary Authority for disagreeing with the findings of the Enquiry Officer as mentioned in the aforesaid last show cause notice as reproduced above, cannot be said to be unreasonable or unacceptable or illegal. The reasons cited in the said show cause notice dated 20.06.2013 by the Disciplinary Authority, in the opinion of this Court, are sufficient and good enough to draw the conclusion against the petitioner of being involved in transportation of drugs which forms the crux of the second charge against the petitioner. 16. The only question, therefore, which arises for consideration is whether the aforesaid show cause notice dated 20.06.2013 can be said to be in compliance with the requirement of giving an opportunity to the petitioner after the disciplinary authority disagreed with the finding of the Enquiry Officer. 17. As seen from above, the Disciplinary Authority amalgamated the two issues, i.e., requirement of giving reasons to the petitioner for his disagreement with the finding arrived at by the Enquiry Officer and for coming to the conclusion that the second charge against the petitioner is proved, and the proposal for imposition of penalty of dismissal, in the same document. Thus, the show cause notice dated 20.06.2013 not only contains the reason for the disagreement with the finding of the Enquiry Officer and for coming to his own conclusion by the Disciplinary Authority which is different from that of the Enquiry Officer, but also contains the opportunity given to the petitioner to explain as to why the penalty of dismissal should not be imposed. This Court is of the view that the aforesaid amalgamation or clubbing of two aspects cannot be fatal in as much as the law does not require giving any opportunity of being heard before any particular penalty is proposed to be imposed. This Court is of the view that the aforesaid amalgamation or clubbing of two aspects cannot be fatal in as much as the law does not require giving any opportunity of being heard before any particular penalty is proposed to be imposed. Proviso to Article 311(3) provides that it is not necessary to give such person any opportunity of making representation on the penalty proposed. Rule 66 of the Assam Police Manual relied upon by the petitioner which provides for the procedure for imposing major penalty also does not provide for giving any opportunity of being heard before imposing penalty. If that is so, the aforesaid show cause notice though also contains a show cause notice as to why the proposed penalty of dismissal should not be imposed, the said requirement being not mandatory in law, the aforesaid show cause notice can be said to be show cause notice as regards the opportunity of being heard given to the petitioner to explain why the different opinion arrived at by the Disciplinary Authority contrary to the finding in the Enquiry Report as regards the second charge should not be accepted. In fact, the petitioner in response to the said show cause notice dated 20.06.2013 submitted his detailed reply reiterating his stand of his non involvement in the said drug trafficking. It is also seen that before the impugned dismissal order dated 27.12.2013 was issued, the petitioner was also given an opportunity to present himself before the Disciplinary Authority by issuing a Wireless Message to the petitioner to be present before the Disciplinary Authority on 26.12.2013. The petitioner did not appear before the authority on 26.12.2013. Accordingly, the Disciplinary Authority observed in the dismissal order that though the petitioner was given another opportunity of being heard, he did not avail the same. The petitioner, however, raised objection to this notice to the petitioner to appear before the disciplinary authority on 26.12.2013 contending that it was not mentioned in the said notice the purpose for appearance of the petitioner before the disciplinary authority. It has been contended that it was not mentioned in the said notice that he was to appear before the Disciplinary Authority for a personal hearing in connection with the departmental enquiry. It has been contended that it was not mentioned in the said notice that he was to appear before the Disciplinary Authority for a personal hearing in connection with the departmental enquiry. The petitioner further submits that he could not be present on that day due to certain illness and when he presented himself before the Disciplinary Authority on next day on 27.12.2013, it was found that the dismissal order has been already issued. Mr. Jalaluddin contends that the aforesaid Wireless Message directing the petitioner to appear before the Disciplinary Authority cannot be said to be notice as required under the law and as such it has been submitted that no right of hearing was afforded to the petitioner before the dismissal order was passed. 18. We, however, cannot accept the contention of Mr. Jalaluddin, learned counsel for the petitioner for the following reasons. Firstly, law does not provide for giving any further hearing before any penalty is imposed by making representation against the proposed penalty. The petitioner was afforded all opportunities of being heard during the departmental enquiry and thereafter before imposing the penalty as mentioned above. The requirement of law for giving an opportunity to a delinquent to explain his case in the event of difference of opinion between Enquiry Officer who gave a finding in favour of the delinquent and the Disciplinary Authority who does not agree with the finding given by the Enquiry Officer and gives a finding of guilt has been duly complied with by giving the petitioner an opportunity to explain himself, vide the last show cause notice dated 20.06.2013 to which the petitioner duly submitted his representation/reply. This Court is of the view that once the petitioner was afforded such an opportunity which he did not avail of, no further notice was required to be given before the Disciplinary Authority proceeds to impose penalty. Secondly, this Court also finds it difficult to accept the contention of the petitioner that he could not appear before the Disciplinary Authority on 26.12.2013 because of his illness as the same is not supported by any supporting document nor such a plea was taken either before the appellate authority or in the present writ petition. The wireless message dated 23.12.2013 was served on the family members of the petitioner on 25.12.2013 yet he did not appear before the Disciplinary Authority on 26.12.2013 as directed. The wireless message dated 23.12.2013 was served on the family members of the petitioner on 25.12.2013 yet he did not appear before the Disciplinary Authority on 26.12.2013 as directed. Only when the authorities annexed a copy of the Wireless Message in the affidavit-in-opposition, the petitioner took the aforesaid plea of illness in the rejoinder affidavit. Therefore, this Court is not willing to accept this belated plea of the petitioner. As already discussed above, since this requirement is not mandatory under the relevant rules as well as under the law, even if no opportunity of hearing was afforded to the petitioner before imposing the penalty, it cannot be any ground for interfering with the order of penalty. 19. We have also noted that the Disciplinary Authority has given detail reasons while issuing the dismissal order, explaining elaborately the procedure adopted by giving opportunities to the petitioner at every required stage of the departmental enquiry and proper application of mind by the Disciplinary Authority. We do not see how the procedure adopted by the Disciplinary Authority has caused any prejudice to the petitioner who was afforded all the reasonable opportunities as required under the rules. 20. Accordingly, for the reasons discussed above, we are of the view that there is no merit in the writ petition and the same is dismissed.