JUDGMENT : Heard through V.C. 2. The instant writ application has been preferred by the petitioner praying for quashing the order dated 25.10.99 passed by the respondent No.3 (Annexures-4), whereby the petitioner has been removed from service. The petitioner has further assailed the appellate order dated 19th May, 2000 passed by respondent No.2 and also the revisional order as contained in letter No. 3084 dated 26.11.2002, whereby the appellate authority as well as revisional authority has rejected the claim of the petitioner for reinstatement. 3. The brief facts as disclosed in the instant writ application is that the petitioner was appointed in the post of Constable and while he was posted at BSL, Bokaro, the petitioner was served with a charge-sheet under Memo No. 15014 dated 29.04.1999. The petitioner denied the entire allegation made against him and submitted his reply. Thereafter, a proper departmental enquiry was held and the enquiry officer submitted his report to the disciplinary authority holding therein that the charge against the this petitioner was proved and on the basis of the said enquiry report; the disciplinary authority passed the order of removal of the petitioner from service vide order dated 25.10.1999. The petitioner assailed the order before the appellate authority and also before the revisional authority; however, could not succeed. In the meantime, petitioner also filed a writ application before this Court being W.P.(S). No. 3253 of 2001 which was disposed of with a direction upon the Director General of Police, CISF to decide the revision petition by a reasoned order. Pursuant to the order of this Court; petitioner filed a revision petition; however, the same was rejected by the respondent-authority. 4. Mr. Saurabh Shekhar, learned counsel for the petitioner submits that the petitioner has been terminated from service on the charge of theft of few iron ingots, however, there is no clear finding of fact as to when the theft took place. He further draws attention of this Court towards the enquiry report and submits that even the enquiry officer has given a finding that the thefts might have been taken place between 03.45 hours to 5.00 AM. He further draws attention of this Court towards the enquiry report and submits that even the enquiry officer has given a finding that the thefts might have been taken place between 03.45 hours to 5.00 AM. He contended that when the enquiry officer himself is not confident as to the time of theft then it cannot be said that the time of theft has been conclusively proved and when the time of theft is not conclusively proved; punishment of removal from service is very harsh, inasmuch as, the other personnel-Dalbir Singh who has taken over the charge from this petitioner from 5 A.M onwards has been punished for a lesser punishment. He further draws attention of this Court towards Annexure-9 which is copy of the Beat Book and submits that the other personnel took charge from this petitioner at 4.41 hours in “OK” condition. Thus, the petitioner was on duty from 20.41 hours (09.03.1999) till 04.41 hours (10.03.99) of the next date. He further submits that even admitting the statement of the co-employee who was also charged then also the said Dalbir Singh has categorically stated that till 05.50 A.M he has not seen anything because at night it is not possible to see anything. He contended that in the departmental proceeding it is not the delinquent who has to give defense for the charge against him; rather it is the department who has to prove the charge. Learned counsel reiterated that since the enquiry officer himself has not given a conclusive finding as to the time of theft, as such the punishment of removal on the basis of surmises and conjecture of the enquiry officer is too harsh. 5. Learned counsel further draws attention of this Court towards the impugned order of removal and submits that though he has taken the ground in his reply to second show cause notice that the other personnel-Dalbir Singh took charge from this petitioner at 4.41 hours in “OK” condition; as such, at his period there was no theft, but these grounds has been brushed aside by the disciplinary authority by holding that these are unnecessary facts. In this regard para 5 of the impugned order is quoted herein below:- “….5. The charged official in his final representation dated 25.09.99 has brought out unnecessary points which are baseless and having no merit at all. In this regard para 5 of the impugned order is quoted herein below:- “….5. The charged official in his final representation dated 25.09.99 has brought out unnecessary points which are baseless and having no merit at all. Moreover the gist of deposition of all the PWs have been discussed in the preceding paras which clearly shows that the incident took place due to carelessness and negligency on the part of the charged official. Regarding his further plea that Const. Dalbir Singh reliever of charged official has already been punished for his act of negligency, indiscipline and dereliction of duty for the same offence and the incident took place due to lapse on his part is not based on evidences on record. In fact Const. Dalbir Singh was dealt Under Rule 35 of CISF Rules, 1969 for not giving information regarding absent of sentry in his duty post when he joined duty and not reporting about the incident of theft in time to his superior officer and awarded the punishment of the “One day pay fine.” Hence, I agree with the findings of Enquiry Officer and hold the charged officialguilty of the charge…….” 6. Relying upon the aforesaid paragraph of the impugned order he submits that in essence there should be common charge against both the personals because the petitioner was on duty till 04.40 hours and thereafter, the other personnel took the charge and for the first time it was noticed that theft has taken place at 5.50 AM; however, the other personnel has been given lesser punishment. Though all these grounds were taken before the disciplinary authority, however, they have not taken into consideration the aforesaid fact. In this view of the matter, this is an appropriate case, wherein the impugned order of removal should be quashed. At best, the case can be remitted back for passing a fresh order on the quantum of punishment, if at all in the eye of disciplinary authority the petitioner has committed a mistake of leaving his post 15 minutes before completion of his duty then also the order of removal is too harsh and excessive. 7. Mr. Binod Singh, learned CGC appearing for the respondent-CISF vehemently oppose the prayer of the petitioner and submits that being a police personnel it was the duty of the petitioner to be on post till the time of duty. 7. Mr. Binod Singh, learned CGC appearing for the respondent-CISF vehemently oppose the prayer of the petitioner and submits that being a police personnel it was the duty of the petitioner to be on post till the time of duty. He further submits that enough opportunity was given to the petitioner during the departmental proceeding and there are no procedural latches on the part of the respondents. The enquiry officer after examining the witnesses including defence witnesses came to finding that the theft has taken place between 03.45 hours to 5 AM and it will be incorrect to say that this finding of the enquiry officer is not based on evidence. He further draws attention of this Court towards the enquiry report, wherein the other personnel who was charged with minor punishment has categorically stated that only in the morning sun light time the area can be seen and which is possible only at 5.50 AM and before that it is not possible to see due to darkness and only due to all these reasons the enquiry officer has rightly held that the theft has taken place between 03.45 hours to 5 AM and even otherwise the delinquent employee was not supposed to leave his post before the time of duty. Learned counsel further denied the statement made in the Beat Book relying upon the evidence of the codelinquent. He lastly submits that there is no error in the impugned order nor there is any procedural irregularity; as such the instant writ application deserves to be dismissed. 8. Having heard learned counsel for the parties and after going through the documents annexed with the respective affidavits and the averments made therein it appears that the petitioner has been dealt with Rule 34 of CISF Rule, 1969 (now Rule-36 of CISF Rules, 2001, (Amended Rule-2007) by the Commandant CISF Unit BSL Bokaro on the following Charge:- ARTICLE OF CHARGE-I “No. 852190283 Constable S.N.Singh is charged with gross misconduct, indiscipline and dereliction of duty in that during his “C” Shift duty from 2100 hrs on 09.03.99 to 0500 hrs on 10.03.99 at watch tower No.1 (New) duty post, he failed to protect theft of about 100 Kg of assorted 04 Nos. of Ms. of Ms. items from Bokaro Steel Plant which was found laying outside the boundary wall adjacent to watch tower No.1 (New).” The petitioner acknowledged the charge memo and replied thereto; however, the enquiry officer has given finding, holding the charge as proved and thereafter, order of removal has been passed against this petitioner. 9. After going through the enquiry report it clearly transpires that though the theft has taken place; however, exact time of theft has not been ascertained even by the enquiry officer, inasmuch as, the enquiry officer himself has held as under:- “8 (I) (1) 11------------------------ bl rjg ;g izekf.kr gksrk gS fd pksjh tSlh ?kVuk vk0 ,l0 ,e0 flag r`rh; ikjh ds ykikjokgh ds otg ls 03-45 cts ls 05-00 cts ds e/; ?kfVr gks ldrh gSA ftl ?kVuk dks P.W-I, P.W.- II, P.W.-III, P.W.IV ;gkWa rd dk D.W-I Hkh Lohdkjrk gS fd pksjh gqbZ Fkh---------------A^^ Thus, after going through the aforesaid finding of the enquiry officer, it appears that the enquiry officer himself has stated that the theft might have taken place between 03.45 hours to 5 AM; as such there won’t be any exaggeration in holding that this finding of time of theft cannot be said to be conclusively proved. It further transpires that this finding of the enquiry officer was in the background that the other delinquent-Dalbir Singh has said that it is only in the morning hour, in sunlight that the place is visible and it was only at 5.50 AM when he first saw that a theft had taken place and thus, reported the same at 6.30 A.M. This is the reason behind the vague finding in the time of theft by the enquiry officer. It further transpires that minor punishment has been imposed to the other delinquent employee who was also charged for the same cause of action. It also appears from record that the charge against this petitioner was much graver than the charge against the codelinquent- Dalbir Singh, inasmuch as, in the case of petitioner it has been charged that during his duty hour the theft has taken place; whereas, for the other delinquent- Dalbir Singh it has been charged that he has reported late to the competent authority about the theft. Thus, even prior to issuance of charge, it appears that the respondent has made up their mind about the time of theft and that is the reason that the charge against both the personals were different which is not permissible in the eye of law; especially when the cause of action is same as one person is leaving from the post and the other person is taking over the charge of the post and during the intervening period, if any theft has been committed then there is no reasoning or justification in issuing two charge-sheets to two different officers containing different charges. 10. In this peculiar facts of the case when one personnel was leaving the post at 04.41 hours and the other personnel was taking over the charge of the post who was supposed to be there from 5 AM and who has also signed the Beat Book in “OK” condition at 4.41 AM, which is on record; it cannot be said conclusively that the theft has taken place during the duty time of this petitioner when the other delinquent himself said that he saw the result of theft at 5.50 AM. In the case of Nirmala J. Jhala Vs. State of Gujarat and Anr., reported in (2013) 4 SCC 301 paragraph nos. 52.3 and 52.4 reads as follows:- “52.3. The High Court erred in shifting the onus of proving various negative circumstances as referred to hereinabove, upon the appellant who was the delinquent in the enquiry. 52.4. The onus lies on the department to prove the charge and it failed to examine any of the employees of the court i.e. stenographer, Bench Secretary or Peon attached to the office of the appellant for proving the entry of Shri Gajjar, Advocate in her chamber on 17-8-1993.” 11. In this case when the time of theft has not been conclusively proved by the enquiry officer and the finding of the enquiry officer that the theft might have been taken place between 03:45 hours to 5 AM; proving the charge that theft has taken place during the duty hour of this petitioner is perverse in nature. 12. In this case when the time of theft has not been conclusively proved by the enquiry officer and the finding of the enquiry officer that the theft might have been taken place between 03:45 hours to 5 AM; proving the charge that theft has taken place during the duty hour of this petitioner is perverse in nature. 12. However, the petitioner has certainly left the post 15 minutes prior to his duty hour and this is certainly misconduct, but this misconduct is not such a grave misconduct that he should be removed from his service and the order of removal is certainly shocking to conscience of this Court. 13. At the cost of repetition, it is necessary to mention that even the disciplinary authority has not considered the plea of the petitioner and just brushed aside by saying that the charged officer in his final representation has brought out unnecessary points which are baseless and having no merit at all. This finding of the disciplinary authority is against the settled principle of law, inasmuch as, the disciplinary authority has to consider and give finding on each and every grounds raised by a delinquent in his reply to the second show cause. 14. In view of the aforesaid facts and circumstances of the case, the impugned order dated 25.10.1999 and all subsequent order, are hereby, quashed and set aside. It has been informed that the petitioner has not attained the age of superannuation; as such, the petitioner shall be reinstated in service. The matter is remitted back to the disciplinary authority-respondent No.3 to pass a fresh order especially on the quantum of punishment as the order of removal has been held too harsh. 15. With the aforesaid terms, the instant writ application stands partly allowed.