Samapti Chatterjee, J. - (1.) THE petitioner filed the present writ petition for quashing the findings of the authority, the final order dated 5th November, 2004 and also the order passed by the authority dated 3rd March, 2005.
(2.) THE petitioner was appointed as a Constable on 15th August, 1972 in the Central Industrial Security Force (hereinafter referred to as CISF Unit) at MAMC, Durgapur. Since the petitioner has been suffering from various ailments in the year 1999, therefore, the petitioner was advised by the Doctor to take food on a short interval. In view of that during his duty hours he had to purchase food from outside and for that purpose he had to keep some money with him all time. On 28th September 1999, before joining his duty the petitioner made an entry in the duty register that he is having an amount of Rs. 30/ - as pocket money with him and joined his duty at Truck Tanker Lorry Gate and during his duty hours the gate was closed all along and there was no movements of any angles and he was on the tower. When the Deputy Commandant CISF Unit I.O.C. Haldia reached near the tower and the petitioner opened the gate then the said Deputy Commandant asked how much money the petitioner was having and the petitioner disclosed that for purchasing food as per Doctor's advice due to his illness he had thirty rupees with him and he entered the same amount in the duty roaster before entering his duty. In spite of that the petitioner was asked to give the said rupees to the said officer and as per his order he gave the said thirty rupees to the said Deputy Commandant. Thereafter on 22nd September 1999 the petitioner was placed under suspension by the said Deputy Commandant and a memorandum of charges under Rule 34 of CISF Rules 1969 was issued by the Group Commandant by his memo dated 1st December, 1999. In the said charge it was alleged that the petitioner received illegal gratification even though there was nobody to offer such illegal gratification. The petitioner applied for the statement of prosecution witnesses which was recorded in Hindi but since the petitioner is a Oriya speaking person therefore by application dated 9th December 1999 before the Group Commandant for supplying the statement recorded in Hindi either in english or in Oriya language as he does not know Hindi. But his application was turned down by the Group Commandant. On 31st December, 1999 the petitioner submitted his reply against the purported charges. It is submitted that on 21st January, 2000 the Group Commandant without considering the petitioner's reply against the purported charges mechanically appointed Sri J.S. Sahota, Assistant Commandant as enquiry officer. The petitioner on 31st January, 2000 and also on 17th February, 2000 made representation before the authority for change of enquiry officer and prayed that an officer of the rank of commandant to be appointed as enquiry officer in view of the continuous threatening by complainant who was Deputy Commandant. Therefore, any officer below the rank of Deputy Commandant of Haldia Belt would not be able to go against the orders of the complainant. The petitioner's prayer for change of enquiry officer was turned down by the Group Commandant on 4th March, 2000. The petitioner time to time made representations before the authority for supply of relevant documents but those documents were not supplied to the petitioner by the disciplinary authority. On 12th April, 2000 the petitioner submitted his defence statement wherein he specifically pointed out that requirement of natural justice has been violated in his case and the allegation of illegal gratification does not survive in the absence of offerer of such gratification. As such the prosecution failed to produce any person who alleged to have paid the said thirty rupees as gratification to the petitioner. The petitioner raised as many as 37 points to quash the purported charges leveled against him. The petitioner on 1st August, 2001 was directed by the disciplinary authority to submit representation against the enquiry report. Thereafter on 17th April, 2000 the petitioner was communicated with the enquiry report dated 15th April, 2000 along with the statements by the Group Commandant and on 22nd August, 2001 the petitioner was asked by the disciplinary authority to submit his representation against the enquiry report and the petitioner accordingly submitted his representation on 31st December, 2001 against the enquiry report. Thereafter the disciplinary authority vide its final order dated 5th November, 2004 found the petitioner guilty and imposed penalty of deduction of pay by two stages for a period of two years with cumulative effect. Challenging the said final order dated 5th November, 2004 the petitioner preferred an appeal before the appellate authority on 4th December, 2004 and the appellate authority vide its order dated 3rd March, 2005 rejected the petitioner's appeal. Feeling aggrieved the petitioner filed the present case for quashing of the charges leveled against the petitioner and the final order passed by the disciplinary authority on 5th November, 2004 and the confirmation of the final order by the appellate authority dated 3rd March, 2004.
(3.) MR . Mahapatra, learned Advocate appearing for the petitioner submitted that the charge could not be sustained in the absence of evidence and the acceptance of illegal gratification of rupees thirty was not proved by any sort of evidence advanced by any witnesses. Therefore, he submitted in absence of any evidence charges leveled against the petitioner could not be sustained. In support of his contention Mr. Mahapatra relied on a Supreme Court decision reported in : 1972 (SC) Page 2535 Paragraphs -6 and 7 (State of Assam vs Mohan Chandra Kalita & another). Paragraph -6 is quoted below: - "Paragraph -6 - As we said earlier, there was no charge against the respondent that he had not paid the full amounts to those entitled to compensation or that he had authorised anyone to collect any fee. This enquiry into extraneous allegations with which the respondent was not charged must have certainly prejudiced the enquiry officer against the respondent. Even if we were to ignore this aspect, there is no evidence to connect the respondent with the allegation that he had authorised the collection of Garibhara much less can it be said, as averred in the charge, that he realised from those persons to whom compensation was being paid, certain percentage of compensation money due to them for payment of hire charges of the vehicle in which he had visited the office of the Mauzadar from Dhekiajuli.";