Judgment : Heard Mr. K.K. Mahanta, learned Sr. counsel assisted by Mr. N.K. Kalita, learned counsel for the petitioner. Also heard Mr. S.C. Keyal, learned Asstt. Solicitor General of India representing the respondents. 2. Being aggrieved by the order dated 08-07-2008 removing the petitioner from service on the basis of an enquiry report dated 06-05-2008 as well as the subsequent order dated 17-11-2008 passed by the appellate authority rejecting the appeal filed by the petitioner, the instant writ petition has been filed praying for setting aside the aforesaid orders and for reinstatement of the petitioner back in service. 3. The petitioner, viz. No. 994750037 Constable D. Kalita, employed with the Central Industrial Security Force (CISF), while being posted at the ONGC, CISF Unit, Nazira, was served with the charge-memo dated 06-12-2007 bringing in as many as three charges against him, thereby calling upon the petitioner to show cause as to why a disciplinary proceeding should not be initiated against him in respect of the said charges. The basic complaint made against the petitioner would be evident from a bare reading of the charge memo itself. Therefore, the three charges are quoted herein below for ready reference: STATEMENT OF ARTICLE OF CHARGE FRAMED AGAINST NO. 994750037 CONSTABLE D. KALITA (UNDER SUSPENSION) OF CISF UNIT ONGC NAZIRA (ASSAM). Article of Charge - I “That No. 994750037 Constable D. Kalita in collaboration with one civilian assaulted with fist and blow on the face of Constable S.N. Yadav on 30.11.07 at about 2000 hrs. near Lakwa Colony Gate No. 2. As a result, constable S.N. Yadav sustained injuries on his face and he had to undergo treatment from ONGC Dispensary Lakwa. The above act on the part of No. 994750037 Constable D. Kalita amounts to gross misconduct, serious indiscipline and an act unbecoming of a good member of the Armed force of the Union like CISF. Hence the charge” Article of Charge- II “An act of gross misconduct, misbehavior, insubordination, in that on 30.11..7 at about 2130 hrs, when Insp/E S.C. Das, Coy Commander met Constable D. Kalita and Constable S.N. Yadav at the Lakwa Colony Gate No. 1 to enquire into the reported incident of assault cause by D. Kalita on Constable S.N. Yadav, Constable D. Kalita shouted on Insp/E S.C. Das demanding explanation as to why he was disturbed during off duty hours. Further, he displayed an act of in-subordination at about 2135 hrs on 30.11.07, shoved and pushed Insp/E S.C. Das ini the vicinity of residential complex of Shri Dilip Kumar, Asstt. Commandant and forced to meet with the above Asstt. Commandant despite he was informed not necessary to meet as per instructions of the Asstt. Commandant. The above on the part of No. 994750037 Constable D. Kalita amounts to gross misconduct, indiscipline, insubordination, and an act unbecoming of a good member of the Armed force of the Union. Hence the charge” Article of Charge – III Highly prejudicial to the good order and discipline in that No. 994750037 Constable D. Kalita of CISF Unit ONGC Nazira, who was awarded as many as three (03) Major/ Minor penalties in his service career for various indiscipline activities, omission and commissions, including a case in that he abused and threatened Insp/E B.C. Majhi, coy commander, showing his service rifle near a hotel on 06.02.05 at about 2045 hrs while on Election Duty- 2005 at Jharkhand & Bihar. He failed to improve his conduct and performance. He has further indulged in more serious act of misconduct instead of mending his ways as expected of a member of an Armed Force of the Union. Thus he developed incorrigible habit of committing misconducts, which tantamount to an act unbecoming member of the Force like CISF. Hence the charge. Sd/- Sr. Commandant 4. On the basis of said charge-memo, an enquiry proceeding was initiated against the petitioner whereby Shri M.D. Murthy, Asstt. Commandant was appointed as Enquiry Officer. During the enquiry preceding as many as six witnesses were examined by the departmental authorities so as to prove and establish the aforementioned charges. Petitioner had examined himself as witness in support of his defense. That apart, the Enquiry Officer had examined three witnesses as court witness, i.e. CW-1 Constable R. Saikia, CW-2 Constable P. Gogoi and CW-3 Mr. M. Bhattacharjee, Record Officer. After examining the statements of all the witnesses as well as the evidence available on record, the Enquiry Officer was of the opinion that the charges brought against the delinquent had been proved. 5. M. Bhattacharjee, Record Officer. After examining the statements of all the witnesses as well as the evidence available on record, the Enquiry Officer was of the opinion that the charges brought against the delinquent had been proved. 5. Taking note of the enquiry report dated 06-05-2008, as aforesaid, the disciplinary authority had passed the impugned order dated 08-07-2008 imposing the major penalty of “removal from service” upon the petitioner with immediate effect as a result of which the services of the petitioner stood terminated. An appeal preferred by the petitioner before the appellate authority was also rejected on 17-11-2008. 6. Mr. K.K. Mahanta, learned Sr. counsel appearing for the petitioner submits that the enquiry proceeding as well as the order imposing penalty dated 08-07-2008 are not sustainable in law on account of the fact that the departmental authorities did not afford reasonable opportunities to the petitioner to defend his case during the enquiry proceeding inasmuch as the petitioner was not offered the services of a defense assistant nor properly explained about the adverse consequences of declining the same. The learned senior counsel further submits that from a reading of the enquiry report, it would be evident that none of the charges could be proved against the petitioner and therefore, the conclusions and decisions drawn by the Enquiry Officer are perverse to the evidence available on record. 7. Mr. Mahanta further submits that the present is a case of no evidence inasmuch as there is not even an iota of evidence to show that the petitioner was ever involved in inflicting any injury upon the Constable S.N. Yadav as has been alleged in the charge-memo. The learned Sr. counsel submits that the Charge No. 2 is not an independent charge which would stand on its own nor does the same, taken on its face value, constitute misconduct under the relevant rules. That apart, the statement of imputation in connection with Charge No. 3 has got no nexus with the incident that had allegedly occurred on 30-11-2007 which forms the basis of the memorandum of charges. In such view of the matter, submits Mr. Mahanta, neither the enquiry report dated 06-05-2008 nor the consequential order imposing penalty of removal from service dated 08-07-2008 is sustainable in the eye of law. 8. In such view of the matter, submits Mr. Mahanta, neither the enquiry report dated 06-05-2008 nor the consequential order imposing penalty of removal from service dated 08-07-2008 is sustainable in the eye of law. 8. By placing reliance upon a decision of the Hon’ble Supreme Court of India rendered in the case of Deepali Gundu Surwase Vs. Kranti Junior Adhyapak Mahavidyalaya (D.Ed.) & Ors. reported in (2013) 10 SCC 324 Mr. Mahanta submits that present is a clear case of arbitrariness on the part of the employer which had resulted into serious injury to the petitioner and his family members. The petitioner has been terminated from service in a most illegal manner and in violation of his fundamental right. Such being the position the petitioner would be entitled to back-wages with effect from the date on which his services were terminated by the impugned order dated 08-07-2008. 9. Per contra, Mr. S.C. Keyal, learned Asstt. SGI submits that the present is not a case where the petitioner was denied a fair opportunity to defend his case. That apart, the Enquiry Officer has drawn his conclusions based on the evidence on record, more particularly the testimony of the witnesses who had affirmed the fact that Constable S.N. Yadav had infact suffered injury which required medical treatment in the hospital. Mr. Keyal further submits that although there is no direct evidence to link the petitioner with the incident, insofar as the injury sustained by Constable S.N. Yadav is concerned, yet the undeniable circumstantial evidence points towards the involvement of the petitioner in the incident which was duly taken note by the Enquiry Officer while recording his conclusions as regards the three charges. Being a member of disciplined force, the constables are required to observe proper conduct in terms of behavior with their colleagues as otherwise same would have an adverse impact on the force in the matter of maintenance of discipline. Since the involvement of the petitioner was established based on the enquiry report and having regard to his past conduct, the disciplinary authorities took a considered decision of imposing the major penalty of removal from service only to maintain high standard of discipline in the force. As such, submits Mr. Keyal, there is no scope for this Court to interfere with the order of penalty in exercise of power of judicial review under Article 226 of the Constitution of India. 10. As such, submits Mr. Keyal, there is no scope for this Court to interfere with the order of penalty in exercise of power of judicial review under Article 226 of the Constitution of India. 10. By way of an alternative argument Mr. Keyal submits that in the event this Court is of the opinion that the order imposing the major penalty suffers from any infirmity even in that case the matter can be referred to the authority under Rule 55 of the Central Industrial Security Force Rules, 2001 for considering as to whether the present is a fit case for revision and/ or modification of the order of penalty imposed by the disciplinary authority. 11. I have considered the submission made by and on behalf of the learned counsel for the parties and have also perused the records produced by Mr. keyal. From the perusal of the records it is apparent that the authorities had given all reasonable opportunity to the petitioner to defend his case. On being offered the services of a Defense Assistant, the petitioner had himself declined the same. As such the submission made by Mr. Mahanta that the service of defense assistant was not provided to the petitioner cannot be accepted by this Court. 12. Coming to the next submission made by Mr. Mahanta to the effect that the present is a case of no evidence, it would be worth recapitulating the basic allegation made under article of charge No. 1 which is to the effect that the petitioner had assaulted Constable S.N. Yadav on the face on 30-11-2007 at 2000 hrs. near Lakwa Colony Gate No. 2 as a result of which Constable S.N. Yadav had sustained injury on his face and had to undergo treatment at the ONGC Dispensary, Lakwa. From a minute scrutiny of the Enquiry Report, it can be seen that save and except the complainant i.e. Constable S.N. Yadav, nobody else has seen the petitioner getting involved in any quarrel or assaulting Constable S.N. Yadav at any point of time. On the other hand, the petitioner has consistently denied his involvement in any quarrel with S.N. Yadav on 30-11-2007, not to speak of imposing any blow on the face of the said person resulting into the injury complained of. On the other hand, the petitioner has consistently denied his involvement in any quarrel with S.N. Yadav on 30-11-2007, not to speak of imposing any blow on the face of the said person resulting into the injury complained of. None of the witnesses examined by the department could testify with any degree of certainty that the petitioner was infact involved in a quarrel with constable S.N. Yadav or that he had in fact inflicted the blows on his face as has been alleged in the charge Memo. 13. Even during recording his testimony, the petitioner while denying his involvement in the alleged incident had categorically narrated the facts and circumstances under which he had to go to the Colony Gate No. 2 and within 15/20 minute he had returned to his quarter. The categorical stand of the petitioner was that he did not even meet constable Yadav on that day. The statement made by the petitioner has been recorded in the Enquiry Report which is quoted herein below for ready reference: Summary of the statements given by force No. 994750037 constable D. Kalita (accused):- Accused constable D. Kalita has stated in his statement that, the charge which is imposed upon him of assaulting Constable S.N. Yadav on 30/11/07 is false. He did not assault anybody. And the charge of shoving and pushing to Insp/ exe S.C. Das is also false and baseless. Answering to the question asked by P.O. he has stated that on 30/11/07 he has performed duty in ‘G’ shift. After finishing his duty he went to his quarter through Gate No. 2 at 5.30 P.M. and again at around 6.30 P.M. came to buy vegetables from the shop inside the colony near Gate No. 2 and within 15-20 minutes he returned to his quarter. He did not even meet S.N. Yadav. At around 9.30-10.00 P.M., Inspector/ exe S.C. Das called him to Gate No. 1, where Inspector/ exe S.C. Das introduced him with Asstt. Commandant. After his meeting personally to Asstt. Commandant, when he was asked by the Asstt. Commandant he stated that he has not assault S.N. Yadav and a conspiracy has been hatched against him. During clarification by enquiry officer constable D. Kalita has stated that on 30/11/07, after finishing his duty at 5.30 P.M. he went to his quarter. Commandant. After his meeting personally to Asstt. Commandant, when he was asked by the Asstt. Commandant he stated that he has not assault S.N. Yadav and a conspiracy has been hatched against him. During clarification by enquiry officer constable D. Kalita has stated that on 30/11/07, after finishing his duty at 5.30 P.M. he went to his quarter. At around 6.00-6.30 P.M. he came out of his quarter and went straight to the vegetable shop near Gate No. 2 and on the way to the vegetable shop he asked about their well being to the constable P. Gogoi and R. Saikia who were on duty at Gate No. 2 and within 10-15 minutes after taking vegetables he returned towards his quarter. He did not meet/ see constable S.N. Yadav and HC/ GD D.L. Ram in Gate No. 2 nor any civil youth was with him. He has no any types of enimity with Constable S.N. Yadav. Constable D. Kalita has received a charge sheet under Rule 37 reply of which he has submitted before 30/11/07. He never forced Insp/ exe S.C. Das to get him introduce with Asstt. Commandant, rather Insp/ exe S.C. Das came to him and said let’s go and meet and get him introduce with Asstt. Commandant. 14. The statement made by the petitioner (D. Kalita) was also corroborated by the CW Nos. 1 and 2, who were posted on duty at the Colony Gate No. 2 on 30-11-2007 around the time when the incident is alleged to have taken place. The statement made by the witnesses CW- 1 and CW- 2 when read along with the testimony of petitioner completely goes to falsify the version given by the complainant i.e. Constable S.N. Yadav. What is apparent from the record that the only evidence connecting the petitioner with the alleged incident is the oral testimony of the complainant S.N. Yadav. However, the petitioner had completely denied his involvement in the incident. There is nothing on record to disbelieve the version given by the petitioner which version has also been supported by the CW 1 and 2. The entire matter, therefore, boils down to the statement of Constable S.N. Yadav as against that made by the petitioner denying his involvement in the matter. There is nothing on record to disbelieve the version given by the petitioner which version has also been supported by the CW 1 and 2. The entire matter, therefore, boils down to the statement of Constable S.N. Yadav as against that made by the petitioner denying his involvement in the matter. Under such circumstances it is not discernable as to on what basis the Enquiry Officer had accepted the version of the complainant Constable S.N. Yadav as regards the involvement of Constable D. Kalita by rejecting the version of by the petitioner . The aforesaid position assumed greater significance in view of the fact that not only have the independent witnesses in the form of CWs- 1 and 2 supported and corroborated the version given by the petitioner but it has also been the consistent plea of the petitioner that he has been made a target of conspiracy like in the previous occasions. 15. Pointing towards the evidence suggesting injury suffered by the injured constable, the learned Assistant Solicitor General has made an attempt to justify the Enquiry Report by submitting that the conclusions are based on circumstantial evidence. The evidence on record might be sufficient to establish that Constable S.N. Yadav had sustained injury which required medical treatment but in the absence of any materials on record, it cannot be readily inferred that such injury was caused by the Petitioner. From the materials available on record there is nothing to link up the petitioner with the alleged incident. As such I am of the opinion that the present is a case of no evidence and hence, the conclusion drawn by the learned Enquiry Officer holding that Charge No. 1, 2 and 3 were proved is unsustainable in the eye of law. 16. Another significant aspect which requires mention herein is the inclusion of the Charge No. 3 in the memo of charges leveling allegation against the petitioner which does not have any nexus with the incident that has allegedly occurred on 30-11-2007. From a reading of Charge No. 3 it appears that some major/ minor penalty had been imposed upon the petitioner in the past on account of misconduct committed by the petitioner in the facts and circumstances not connected to the alleged incident of 30-11-2007. From a reading of Charge No. 3 it appears that some major/ minor penalty had been imposed upon the petitioner in the past on account of misconduct committed by the petitioner in the facts and circumstances not connected to the alleged incident of 30-11-2007. The learned Assistant SGI could not draw the attention of this Court to any provision in the relevant Rules which permits such a recourse. Since the Charge No. 3 was not connected with the incident that allegedly took place on 30-11-2007 and the same, by itself, did not constitute a separate mis-conduct hence, the inclusion of Charge No. 3 in the memo of charges dated 06-05-2008 appears to be totally un-called for. The inclusion of the Charge No. 3 rather demonstrates a pre-determined mind-set on the part of the Disciplinary Authorities to penalize the petitioner even before the conclusion of the enquiry proceeding. In any event, once it is held that there was no evidence to establish the charge No 1, the remaining two charges automatically become untenable on the face of the record. 17. The over whelming need to enforce stringent disciplinary norms amongst the members of a force of the magnitude of the CISF can never be undermined. However, the need to enforce strict discipline in the Force cannot, at the same time, give a license to the authorities to terminate the services of an employee without adhering to the due process of law. It is the fundamental principle of rule of law that charges framed against an employee must be established in a Disciplinary Proceeding based on evidence after giving proper opportunity to the delinquent to defend his case. It is settled law that standard of proof required in a Disciplinary Proceeding is preponderance of probability. Even by employing such standard of proof, none of the charges brought against the petitioner could be established in the Enquiry Proceeding in the present case. An order imposing major penalty could not have been issued unless the charges were wholly or partly proved on the basis of cogent evidence available on record. Finding of guilt recorded by the Enquiry Officer not based on evidence would be perverse in the eye of law and as such, an order imposing major penalty based on such perverse Enquiry Report would be wholly arbitrary and illegal. 18. Finding of guilt recorded by the Enquiry Officer not based on evidence would be perverse in the eye of law and as such, an order imposing major penalty based on such perverse Enquiry Report would be wholly arbitrary and illegal. 18. For the reasons discussed hereinbefore, this Court is of the opinion that none of the charges leveled against the petitioner could be established in the enquiry proceeding. There is no material to even remotely connect the petitioner with the alleged misconduct. Consequently, it is held that the disciplinary authority were not correct in imposing the major penalty of removal from service upon the petitioner based on such Enquiry Report. The present is, therefore, a clear case where the order dated 08-07-2008 had been issued in violation of the Rule 36 of the Central Industrial Security Force Rules, 2001 as well as the rights guaranteed to the petitioner under Articles 14, 16 and 311 of the Constitution of India. Accordingly, the impugned orders dated 08-07-2008 and 17-11-2008 are held to be unsustainable in law and the same stand quashed and set aside. The petitioner is directed to be reinstated back in service forthwith. 18. Coming to the next question of back wages, in the case of Deepali Gundu Surwase (Supra) the Hon’ble Supreme Court in paragraph 22 has observed as follows: 22. The very idea of restoring an employee to the position which he held before dismissal or removal or termination of service implies that the employee will be put in the same position in which he would have been but for the illegal action taken by the employer. The injury suffered by a person, who is dismissed or removed or is otherwise terminated from service cannot easily be measured in term of money. With the passing of an order which has the effect or severing the employer-employee relationship, the latter’s source of income gets dried up. Not only the employee concerned, but his entire family suffers grave adversities. They are deprived of the source of sustenance. The children are deprived of nutritious food and all opportunities of education and advancement in life. At times, the family has to borrow from the relatives and other acquaintance to avoid starvation. These sufferings continue till the competent adjudicatory forum decides on the legality of the action taken by the employer. They are deprived of the source of sustenance. The children are deprived of nutritious food and all opportunities of education and advancement in life. At times, the family has to borrow from the relatives and other acquaintance to avoid starvation. These sufferings continue till the competent adjudicatory forum decides on the legality of the action taken by the employer. The reinstatement of such an employee, which is preceded by a finding of the competent judicial/ quasi-judicial body or court that the action taken by the employer is ultra vires the relevant statutory provision or the principles of natural justice, entitles the employee to claim full back wages. If the employer wants to deny back wages to the employee or contest his entitlement to get consequential benefits, then it is for him/ her to specifically plead and prove that during the intervening period the employee was gainfully employed and was getting the same emoluments. The denial of back wages to an employee, who has suffered due to an illegal act of the employer would amount to indirectly punishing the employee concerned and rewarding the employer by relieving him of the obligation to pay back wages including the emoluments. 19. Having regard to the facts and circumstances of the case, this Court is of the considered opinion that the petitioner’s case also falls within the scope and ambit of law declared by the Hon’ble Apex Court in the case of Deepali Gundu Surwase (Supra). This is a clear case where the services of the petitioner was terminated without his guilt having been established in the disciplinary proceeding. In the process, the petitioner and his family members have been made to unduly suffer adverse consequences for no fault on their part. Such being the position, it is held that the petitioner would be entitled to 50% (fifty percent) of the back wages with effect from the date of termination of service till reinstatement, subject to his submitting satisfactory proof of not having being gainfully employed elsewhere during the aforesaid period of time. In the result this writ petition stands allowed. No order as to cost.