JUDGMENT AND ORDER : 1. Heard Mr. U.K. Nair, the learned Sr. counsel appearing for the petitioner. The learned Central Govt. Counsel (CGC) Ms. B. Sarma represents the respondents. 2. The petitioner was a Constable in the Central Industrial Security Force (CISF) and his unit was deployed at the RDS Sector, ONGC, Nazira. Following the incident on 10.12.2007, in contemplation of a Disciplinary Proceeding (DP), the Constable was suspended on 13.12.2007 (Annexure-2) under Rule 33(1) of the Central Industrial Security Force Rules, 2001 (hereinafter referred to as the “CISF Rules”). Then the charge memo dated 22.12.2007 (Annexure-4) was issued against the delinquent, whereby response was sought on the following article of charges:- ARTICLE OF CHARGE-I “That No.983170138 Constable T C Roy of RDS sector, CISF Unit ONGC Nazira who was in possession of Arms & Ammunitions for the purpose of duty at Bogidol Magazine out post alongwith others, had threatened and pointed his AK-47, (Butt No.113) on HC/GD Panjab Patil who was on duty at Main gate, Morcha No.1 under the influence of liquor and compelled him to open the gate on 10.12.07 at about 2210 hrs and thereafter deserted from Bogidol Magazine out post with his Rifle, AK-47, Butt No.113 and 120 rounds without any intimation or permission of the Competent Authority. Thus, he had created panic on his colleagues and Post Commander of the above post with the help of fire arms. The above act on the part of No.983170138 Constable T C Roy amounts to gross misconduct, detrimental to the Force discipline and an act unbecoming of a good member of the Armed Force of the Union like CISF. Hence the charge.” ARTICLE OF CHARGE-II “That No.983170138 Constable T C Roy of RDS sector, CISF Unit ONGC Nazira after deserting the Bogidol Magazine outpost on 10.12.07 at about 2210 hrs with his Rifle, AK-47, butt No.113 and ammunitions, had hidden in an abandoned room of Police Colony under the influence of liquor duly loaded the said Rifle with ammunition with position of fire. His such act spreaded out panic on the troops of RDS Sector including Sector Commander. He was searched and managed to be taken out from the abandoned place and his arms & ammunitions were separated from him to avoid any untoward incident after great efforts taken by CISF personnel under supervision of Sector Commander. His such act spreaded out panic on the troops of RDS Sector including Sector Commander. He was searched and managed to be taken out from the abandoned place and his arms & ammunitions were separated from him to avoid any untoward incident after great efforts taken by CISF personnel under supervision of Sector Commander. Thus, he has exhibited gross misconduct and an act unbecoming of a good member of the Armed Force of the Union like CISF. Hence the charge.” ARTICLE OF CHARGE-III “That No.983170138 Constable T C Roy of RDS sector, CISF Unit ONGC Nazira who was detailed for duty at Bogidol Magazine outpost of RDS Sector was found drunk excessively in the night of 10.12.07 and put the CISF troops of RDS sector in trouble. As such, he was taken to ONGC Sivasagar Hospital and admitted for treatment. According to Medical report, Final Diagnosis:- “Alcohol Intoxication” thus his such act has defamed the image of the Force. The above act on the part of No.983170138 Constable T C Roy amounts to gross misconduct, and an act unbecoming of a good member of the Armed Force of the Union like CISF. Hence the charge.” 3. An enquiry was then ordered and the charges were found to have been proved by the Enquiry Officer, as can be seen from the Enquiry Report dated 14.08.2008. The finding was then considered and after weighing the gravity of the misconduct, the punishment of dismissal from service was ordered against the delinquent on 17.09.2008 (Annexure-7). The resultant appeal filed by the constable was dismissed by the Appellate Authority on 24.01.2009 (Annexure-8) and the Revisional Authority too, upheld the punishment, under his order of 31.08.2009 (Annexure 9). PETITIONER’S SUBMISSION 4.1 Assailing the harsh punishment, Mr. U.K. Nair, the learned Sr. counsel submits that while the delinquent can’t escape the consequences of being intoxicated but at the same time, there is no believable evidence on the more grievous charge relating to threatening the guard constable and creating panic, through any positive act or gesture, of the delinquent. 4.2 The Sr. counsel reads the evidence of the Inspector (Works) S.N. Basumatary (PW-I); the ASI (Works) Md. B. Ansari (PW-II); the P/A (Armourer) Deva Neog (PW-III); the PA (Works) S. Sanjeev Kumar (PW-IV); the PA (Works) P. Anjenvelu (PW-V); the PA (Works) Penjab Patil (PW-VI); the Constable Md. 4.2 The Sr. counsel reads the evidence of the Inspector (Works) S.N. Basumatary (PW-I); the ASI (Works) Md. B. Ansari (PW-II); the P/A (Armourer) Deva Neog (PW-III); the PA (Works) S. Sanjeev Kumar (PW-IV); the PA (Works) P. Anjenvelu (PW-V); the PA (Works) Penjab Patil (PW-VI); the Constable Md. A. Rahman (PW-VII) and the Constable Sanjay Kumar (PW-VIII) to project that all these witnesses found the intoxicated constable and without any resistance recovered his arms and weapons but none of them had mentioned about any threat, by the delinquent. 4.3 In so far as the evidence of the constable on guard duty, Penjab Patil (PW-VI) is concerned, the Sr. counsel submits that he is the only one who has testified about the delinquent pointing his gun at him and being forced to unlock the unit gate. But his evidence is projected to be unbelievable and contradictory, by referring to the G.D. Entry No.2098, recorded immediately after the delinquent had exited from the unit gate. In this G.D. Entry recorded in the control room, threat or pointing of gun at the guard, was never mentioned. Mr. Nair accordingly submits that the delinquent having gone out of the unit gate at around 2210 hours on 10.12.2007 can at best be charged with minor misdemeanour and it should not be treated as a case of gross misconduct. 4.4 In so far as the Charge-II is concerned, the petitioner refers to the evidence of the witnesses and also the finding of the Disciplinary Authority that the delinquent was found in an unconscious state in an abandoned room of the police colony, to project that the intoxicated constable was incapable and had not offered resistance to being disarmed, by the search party. 4.5 The logic of the Charge No.III relating to undermining the image of the CISF on account of the delinquent’s intoxication, is questioned by the Sr. counsel by projecting that mere intoxication within the unit campus cannot undermine the image of the organisation and therefore the penalty is contended to be un-merited. 4.6 Referring to the events leading to heavy drinking by the delinquent, Mr. Nair submits that around 1100 hours, telephonic information was received in the control room of the unit, about the delinquent’s mother being hospitalised with serious ailment, for which, leave was requested from the Sector Commander. 4.6 Referring to the events leading to heavy drinking by the delinquent, Mr. Nair submits that around 1100 hours, telephonic information was received in the control room of the unit, about the delinquent’s mother being hospitalised with serious ailment, for which, leave was requested from the Sector Commander. But only because leave was denied, the frustrated delinquent got drunk and this led to the incident on 10.12.2007. However since the CISF constable had already completed his morning duties from 0500 hours to 0900 hours, the counsel projects that the delinquent consumed liquor during non-duty hours and it was not a case of desertion from duty, which may amount to gross misconduct. RESPONDENTS’ SUBMISSION 5.1 On the other hand, Ms. B. Sarma, the learned Central Govt. counsel submits that Tenjab Patil (PW-VI) was on guard duty at the relevant time and therefore his testimony on delinquent threatening the duty constable, was natural and should receive due weight age. 5.2 The CGC points out that since many personnel of the CISF unit were deployed for election duty in that period, the leave was refused to the constable, who wanted to visit his ailing mother and it is accordingly submitted that as a member of the disciplined force, the delinquent should not have indulged in heavy drinking out of frustration. 5.3 The Central Govt. lawyer points out that the delinquent was fully armed and had gone out of the unit gate without due permission and this naturally created panic amongst the unit members on not only on the potential danger for others but also for safety concern for the delinquent and therefore it is submitted that the punishment of dismissal, is proportionate to the misconduct. DISCUSSION 6. The Central Industrial Security Force Act, 1968 (hereinafter referred to as the “CISF Act”) and the CISF Rules provide for the procedure for disciplinary action. The punishment of dismissal, removal, etc. are included in Section 8(i) of the CISF Act. Such major punishment can be inflicted when a member of the force has been remiss or negligent in discharge of his duties or it is found that, he is unfit for retention in service. The major penalties are prescribed under Rule 34 of the CISF Rules and it is seen that other options in the category of major penalty, are also available, to the disciplinary authority. 7. The major penalties are prescribed under Rule 34 of the CISF Rules and it is seen that other options in the category of major penalty, are also available, to the disciplinary authority. 7. The issue to be decided in this case is whether it is a case of gross negligence in discharge of duty and whether the misconduct was rightly covered within sub-section (i) of Section 8, of the CISF Act. 8. The witnesses in the domestic inquiry were the search party who located and disarmed the delinquent in his intoxicated state. Their testimonies do not suggest that the delinquent had offered any resistance during separation of the arm, from the man. In fact, he was found to be in a state of unconsciousness, as was concluded by the disciplinary authority. Therefore, the Charge-II should not in my opinion be allowed to be magnified to a higher level, on the basis of the purported great efforts made by the CISF personnel, to locate and disarm the delinquent. 9. The next important aspect to consider is whether the delinquent exited the unit gate by threatening the duty guard Penjab Patil (PW-VI)? At the relevant time, the delinquent was uniformed and armed and although PW-VI spoke about being threatened by the delinquent, a contrary version is seen from the G.D. Entry 2098, recorded by the Unit’s Control Room, at 2240 hours on 10.12.2007 itself. The information recorded by the Control Room is that the delinquent has gone out of the gate, taking his arms and ammunitions and most conspicuously, there is no mention about the purported threat with pointed gun, mentioned in the testimony of Penjab Patil (PW-VI). This G.D. Entry was recorded within minutes of the constable exiting the unit gate whereas the testimony of the guard was recorded some months later. Therefore, the testimony of the duty guard, appears to be an improvement from the original version as was recorded in the G.D. Entry. On the basis of such contradictory testimony, it cannot be said that the delinquent had made a forced exit from the unit gate. The serious state of intoxication of the delinquent can also be factored in, to discredit the version of PW-VI, which was not supported by any of the other witnesses. On the basis of such contradictory testimony, it cannot be said that the delinquent had made a forced exit from the unit gate. The serious state of intoxication of the delinquent can also be factored in, to discredit the version of PW-VI, which was not supported by any of the other witnesses. Therefore, the Charge-I should not be construed as an aggravated misconduct compounded by a purported gun threat and it is nothing more than the armed delinquent exiting the unit gate, in an intoxicated state. 10. The Charge-III is whether the alcoholic intoxication by the delinquent, has undermined the image of the organization. Being found in a state of intoxication, cannot by itself, lower the image of the CISF unless the inebriated constable had committed some nuisance, visible to the public. Therefore the image damage projected under Charge-III, cannot be said to be founded on any reasonable premises. 11. What emerges from the above discussion is that while the delinquent had definitely committed misconduct which warrant disciplinary action but his act cannot be categorized as a gross misconduct or an act said to be covered under Section 8(i) of the CISF Act. Furthermore, it will be too illogical to hold that only by one incident of intoxication within his unit, a constable renders himself unfit for retention in service particularly when, the drinking was during non-duty hours. 12. Moreover, the information on the serious illness of the petitioner’s mother received in the Control Room of the unit at about 1100 hours and denial of leave to the delinquent just on the eve of the drinking spree, must be factored into the intoxication misconduct of the constable. It cannot also be overlooked that this was a solitary lapse in the service career of the CISF constable who had a blemishness record with Presidential commendation, for his exemplary service. 13. The gravity of the misconducts alleged against the constable is considerably diminished as can be seen from the above discussion and therefore, the next thing to determine is whether the punishment of dismissal from service was the appropriate punishment in the present case. The magnitude and gravity of the misconduct will determine the kind of punishment that should be imposed and if the justice of a case demands, the judicial forum may declare the penalty, to be disproportionate, in an appropriate matter. 14. The magnitude and gravity of the misconduct will determine the kind of punishment that should be imposed and if the justice of a case demands, the judicial forum may declare the penalty, to be disproportionate, in an appropriate matter. 14. As earlier noted, the delinquent had done his shift duty from 5 a.m. to 9 a.m. without any difficulty and only after the news of serious illness of his mother reached the Control Room of his unit, the delinquent became seriously disturbed and then on account of refusal of leave by his unit commander, he got intoxicated. But at that stage, he was not on duty and therefore, his drinking cannot be construed to be a case of negligence, in discharge of duty. Moreover being intoxicated on a single occasion cannot mean that the delinquent is unfit to be retained in service. 15. That apart, the mitigating circumstances of the delinquent’s mother being hospitalized in serious state and leave being refused to him to visit his ailing mother, must also be taken into account, to decide the proportionality of the penalty. It is well settled that the appropriate quantum of punishment to be awarded in a DP is to be decided primarily by the disciplinary authority and only when the awarded punishment is found to be outrageously disproportionate to the gravity of the misconduct or is considered to be arbitrary and wholly unreasonable, a judicial forum can declare the punishment to be irrational (See: B.C. Chaturvedi Vs. Union of India reported in (1995)6 SCC 749 and Jai Bhagwan Vs. Commissioner of Police reported in (2013)11 SCC 187 . 16. In the estimation of the Court, the delinquent’s misconduct for which there is acceptable evidence, cannot be placed in the category of gross misconduct and therefore, the major penalty of dismissal awarded here, is declared to be grossly disproportionate for the misdemeanour of the delinquent. As the mitigating factors were disregarded in deciding the appropriate penalty, the punishment of dismissal, shocks the judicial consciences of the court. 17. In the above circumstances, while declaring that the DP was conducted in a reasonable manner with due opportunities to the delinquent, the findings vis-à-vis the Charges, are declared to be untenable. Therefore, I find enough justification to interfere with the major penalty inflicted upon the delinquent. 17. In the above circumstances, while declaring that the DP was conducted in a reasonable manner with due opportunities to the delinquent, the findings vis-à-vis the Charges, are declared to be untenable. Therefore, I find enough justification to interfere with the major penalty inflicted upon the delinquent. Following such conclusion, the matter is remitted back to the disciplinary authority for deciding on another penalty under Rule 34 of the CISF Rules, which will enable the delinquent to remain in service. The period from the date of dismissal to the reinstatement for the delinquent should however be treated as absent from duty without back wages. But this period may be notionally counted for the purpose of pension and superannuation benefits. The appropriate punishment should be decided in terms of this order within 2(two) months of receipt of intimation of this Court’s order, from the litigant’s side. It is ordered accordingly. 18. With the above observation, the case stands allowed in the manner indicated. No cost.