AMARESHWAR SAHAY, J. - (1.) HEARD the counsel for the parties.
(2.) THOUGH the petitioner has challenged the impugned orders passed against him for removal from service but after some arguments, learned counsel for the petitioner confined his arguments only on the quantum of punishment and submitted that while awarding punishment, the appellate authority has adopted two different standards. It is submitted that at one hands for the same and similar charges, the petitioner has been removed from his service whereas, the other incumbent namely Suraj Chhetri , who was also found to be guilty for assaulting HC/GD J.N. Pandey, along with the petitioner, has been awarded the punishment of compulsory retirement from service with full pension and gratuity. Learned counsel for the petitioner referred the order dated 30.10.2004, as contained in Annexure2, passed by the appellate authority considering the appeal of the petitioner, as well as the order dated 14/ 16 December, 2004 of the appellate Authority as contained in Annexure14 to the writ petition, i.e. consideration of the case of the Constable Suraj Chhetri.
(3.) FROM perusal of the impugned Order as contained in Annexure2, passed by the appellate authority in the case of the petitioner is concerned, it appears that in paragraph5 thereof, he, after meticulously examining the entire case, held as follows: "... ... ... It is explicitly noticed from the records that HC/Dvr. T.R. Sharma assaulted HC/GD J.N. Pandey, CHM of the Unit at about 23:00 hrs. on 26.01.04 out side the Unit Lines, Narwapahar while he was returning from the residence of Insp/Exe R.. Singh, Coy. Commander after giving situation report of Unit Lines. Even though there is no eye witness to the incident but obviously overwhelming circumstantial evidence held on record conclusive prove the guilt of the charged member. The charge leveled against him has been proved in the departmental enquiry and is very serious in nature. The niceties devised and put forth by the appellant can neither mitigating the gravity of offence nor prove his innocence. He is serving in a disciplined Armed Force of the Union like CISF and such barbarian act cannot be tolerated in a Force. Such act of gross indiscipline and misconduct should be detrimental to the constructive development of the Force. The penalty of removal from service imposed by the appellant by the disciplinary is commensurate with the gravity of proven delinquency." Whereas, from Annexure14 i.e. the order dated 4/ 16 December, 2004, it appears that while dealing with the case of the Constable Suraj Chhetri, the same very appellate authority, after meticulously examining the entire case against him, held as follows: "... ... ... The overwhelming circumstantial evidence in the departmental enquiry conclusively prove that the appellant alongwith HC/Dvr. T.R. Sharma assaulted HC/GD J. N. Pandey, CHM of the Unit at about 2300 hrs on 26.01.04 out side the Unit Lines, Narwapahar while he was returning from the residence of Insp/Exe R. P. Singh. Coy, Commander after giving situation report of Unit Lines due to which HC/GD J. N. Pandey sustained bodily injuries and was admitted in hospital for treatment. Even through there is no eye witness to the incident but obviously the overwhelming circumstantial evidence held on record prove the guilt of the charged member. The charges so leveled against him are very serious in nature. By his barbarian act he has proved himself to be unbecoming of a good member of a disciplined force. He has also proved that he is lacking capacity to rectify himself in spite of several opportunities given to him in the past. The niceties devised and put forth by the appellant can neither mitigate the gravity of offence nor prove his innocence. He is serving in a disciplined Armed Force of the Union like CISF and such barbarian act cannot be tolerated in a Force. Such act of gross indiscipline and misconduct should be nipped at bud and cannot be encouraged at any level. Any leniency shown to him will be detrimental to the constructive development of the Force. The punishment so awarded by the Disciplinary Authority is disproportionate to the proven charges. In fact, he deserves an exemplary penalty, not less than removal from service as proposed vide the show cause notice. However, considering his age factor and consciously to give succour to his family and children, a lenient view is taken. Considering all the pros and cons of the case, I hereby set aside the punishment so awarded to him and in exercise of the powers conferred upon me under rule 52(2) (c)(i) hereby award him the punishment of 'COMPULSORY RETIREMENT FROM SERVICE' with full pension and gratuity on Const Suraj Chhetri from the date of receipt of this order and reject the appeal being bereft of merit.". ;