IMPORTANT POINT
The burden of proof in departmental proceedings is on preponderance of probability, not beyond reasonable doubt.

JUDGMENT :

Heard Mr. A. K. Singh, learned counsel for the petitioner. Also heard Ms. G. Ete, learned Government Advocate for the State respondents.

2. This is an application under Article 226 of the Constitution of India praying for a writ in the nature of certiorari or mandamus or any other appropriate writ, directing the respondents to accord proportionate and commensurating punishment to the petitioner apart from major penalty.

3. This writ petition has been filed challenging the Departmental Enquiry Proceeding and punishment Order No. DE-020/2NDBN/RNG/07, dated 14.11.2008, issued by the Commandant, 2nd AAP BN BHQ, Aalo, whereby the petitioner has been imposed with the penalty of reduction of lower stage in the same time scale of pay with cumulative effect permanently, i.e. Rs. 3,500/-, and the period of suspension w.e.f. 12.11.2007 to 27.03.2008 treated not spent in duty.

4. The case of the petitioner, in brief, is that the petitioner along with 5 (five) numbers of police personnel, i.e. the Guard Commander, IInd Guard Commander and 3 (three) Constables, were detailed to guard Judicial Custody, Roing. He was detailed for round o’clock duty for guarding the UTP’s at Judicial Lockup at Roing and their duty was maintained on rotation basis as per duty roster prepared. On the day of incident, i.e. on 10.11.2007, the petitioner’s duty roster was detailed from 8.00 a.m. to 10.00 a.m. (first duty schedule), 4.00 p.m. to 6.00 p.m. (second duty schedule) and 12.00 a.m. to 2.00 a.m. (third duty schedule). From 8.00 p.m. to 10.00 p.m., one Ct Moken Angu was detailed for guard duty under the command of IInd Guard Commander and during his period of duty, he opened the main door of the UTP Cell and took out one UTP, namely, Shri Bhoirab Urang, who was an accused of a murder case, and asked him to message his body. After getting his body message, the said Ct Moken Angu sent the said UTP outside of the UTP Cell to the residence of Ct Gemin Dai to purchase liquor twice. Thereafter, the said Ct Moken Angu collected the liquor from UTP and after consuming the liquor fetched by UTP Bhoirab Urang, he again asked the said UTP to bring more liquor leaving the Cell Key and service riffle to the UTP Bhoirab Urang in the Guard Room. The said Ct Moken Angu again brought one full bottle of liquor from the residence of one Lama’s residence, which is about half kilometer far from his sentry post and thereafter he drunk the liquor and also shared the liquor with the said UTP. Under intoxication, the said Ct Moken Angu entered into the main UTP Cell leaving the UTP Bhoirab Urang in the Guard Room freely with the service rifle and keys of the UTP Cell. At that time, 3 (three) other UTPs, namely, Tagume Misso, Ragmuk Padu and Sanjit Borgohain, came out from the UTP Cell and went into the Guard Room and they pushed the UTP Bhoirab Urang inside the UTP Cell and locked the main door of the UTP Cell and very comfortably walked away from the Judicial Custody, Roing. The entire incident took place between 8.00 p.m. to 9.15 p.m. when the petitioner was not in a shift duty and the said Ct Moken Angu was in guard duty.

5. Accordingly, for the escape of the UTPs from the Judicial Custody, a common Departmental Enquiry was initiated against the petitioner along with 5 (five) others and Memorandum of Charges were also furnished to them. One Mr. J. K. Mehta, Dy.S.P., Roing was appointed as the Enquiry Officer. During the Enquiry, the petitioner submitted his written statement on 30.11.2007 to the Commandant, 2nd AAP, Battalion Headquarter, Aalo explaining the whole episode. The petitioner never admitted guilt at any stage of enquiry as he did nothing wrong. However, the Enquiry Officer, in his enquiry report dated 26.08.2008, recommended major penalty upon all the delinquents including the petitioner. But the Enquiry Officer did not recommend severe action against Ct. Gemin Dai, who according to him had finished his duty at 8.00 p.m. on the day of the incident and handed ov