CIVIL WRIT JURISDICTION CASE No.5121 OF 1997 (In the matter of an application under Article-226 of the Constitution of India.) BINDESHWAR MANDAL, SON OF LATE SURENDRA MANDAL, PRESENTLY RESIDING AT MOHALLA- POWER HOUSE ROAD, POLICE- STATION- BEGUSARAI, DISTRICT- BEGUSARAI. ----(PETITIONER) Versus 1. THE BIHAR STATE ELECTRICITY BOARD THROUGH IT‟S CHAIRMAN, BIHAR STATE ELECTRICITY BOARD, PATNA. 2. THE SECRETARY, BIHAR STATE ELECTRICITY BOARD, PATNA. 3. THE JOINT SECRETARY, BIHAR STATE ELECTRICITY BOARD, (GENERAL ADMINISTRATION DEPARTMENT), BIHAR, PATNA. 4. THE ASSISTANT ENGINEER, (E.R.-CUM-SUPPLY), SUB DIVISION, BEGUSARI. 5. SRI HARE KRISHNA, ELECTRICAL SUPERINTENDING ENGINEER, (HEAD-QUARTER)-CUM-ENQUIRY OFFICER, PATNA. ……..(RESPONDENTS) For the Petitioner : Mr. Dilip Kumar Tiwary, Advocate. For the Board :Mr. Vinay Kirti Singh, Advocate. P R E S E N T THE HON'BLE MR. JUSTICE V.N. SINHA V.N. Sinha,J. Heard learned counsel for the petitioner and the Bihar State Electricity Board (hereinafter referred to as the „Board‟). 2. Petitioner at the relevant time served as Junior 2 Accounts Clerk in the office of the Assistant Engineer, Begusarai, Sub-division of the Board. He is aggrieved by the office order dated 4.10.1996, Annexure-13 passed by the Joint Secretary of the Board, whereunder he has been dismissed from service of the Board pursuant to inquiry proceeding initiated against him under orders dated 10.1.1991, Annexure-8. He is also aggrieved by the letter of the Joint Secretary of the Board bearing memo no. 1232 dated 26.7.1997, Annexure-A to the counter affidavit, whereunder petitioner has been informed that his appeal filed against order dated 4.10.1996 has been rejected. Perusal of the order dated 10.1.1991, Annexure-8 indicates that two charges were levelled against the petitioner that he temporarily embezzled the amount of Rs.15,214.51/- and Rs.10,235/- for the period between 29.6.1989- 16.7.1990 and 31.7.1989-24.7.1990 respectively. Aforesaid amount was given to him by the Bill Clerk, Sri Vijay Kumar for being deposited in the account of the Board. In response to the aforesaid memo of charge, petitioner submitted his written statement dated 8.2.1991 admitting the allegation that the amount was not deposited in the Bank and remained in the chest of the Sub-division 3 as Vijay Kumar while handing over the amount on 29.6.1989 and 31.7.1989, failed to furnish the Daily Collection Register so as to enable the petitioner to verify the remittances made by Sri Vijay Kumar and without verification of the amount handed over by the Bill Clerk deposit of the amount could not have been made in the Bank. In terms of the provision of the account code deposit in the bank account should be made after verification of the amount received from the entries made in the Daily Collection Register. Further, petitioner stated in the written statement that the amount always remained in the chest of the Sub-division and the allegation that petitioner temporarily embezzled the amount is incorrect. In support of his aforesaid statement, petitioner relied on the letter dated 23.8.1989 and 24.4.1990, Annexures-1 and 2 of the Assistant Engineer, whereunder the Assistant Engineer called upon Vijay Kumar, the Bill Clerk to furnish the Daily Collection Register so as to enable the petitioner to verify the remittances made by him on the aforesaid two dates. The Inquiry Officer considered the written statement of the petitioner and examined seven witnesses in the proceeding including the Assistant 4 Engineer who had written letters dated 23.8.1989 and 24.4.1990, Annexures-1 and 2. 3. Having considered the statement of the witnesses, the Inquiry Officer submitted inquiry report dated 7.2.1996, copy whereof is contained in Annexures- 11 and 14/8. Perusal of the inquiry report indicates that the Inquiry Officer has recorded the following findings:- “lgk;d fo|qr vfHk;ark] csxqljk; us viuh xokgh esa Li"V fd;k gS fd jkf’k psLV esa ugha j[kh x;hA tcfd Jh eaMy us dgk gS fd ;g jkf’k psLV esa j[kh xbZ Fkh fdUrq mldh lEiqf"V Jh eaMy vius }kjk dh xbZ lgk;d fo|qr vfHk;ark] csxqljk; dh xokgh esa ugha djk ik;sA” 4. Learned counsel for the petitioner with reference to the aforesaid findings of the Inquiry Officer submitted that the Inquiry Officer has committed an error of record as the Assistant Engineer, who was examined in support of the charge of temporary embezzlement, never stated in his evidence that the amount was not kept in the chest of the Sub-division. In support of such submission, 5 learned counsel for the petitioner also produced the deposition of the Assistant Engineer on the basis of which aforequoted findings have been recorded and submitted that perusal of the entire deposition would indicate that no such statement was ever made by the Assistant Engineer. 5. Counsel for the Board has opposed the submission, he states that from close perusal of the records it would appear that in the office of the Assistant Engineer, Begusarai the chest was not being operated under double lock system and assertion of the petitioner that he kept the amount in the chest of the Sub-division is not correct as the latch attached to the chest of the Sub-division was itself broken. 6. From the deposition of the Assistant Engineer it does not appear that chest of the Sub-division was not operational under double lock system and that the amount was not kept in the chest of the Sub-division. Even otherwise the finding recorded by the Inquiry Officer that petitioner could not get his innocence established from the statement of the Assistant Engineer, does not appear to be the correct approach while appraising the evidence of the Assistant Engineer adduced during the proceeding. In the 6 departmental proceeding, charge is framed by the authorities, which is required to be proved by them. Delinquent is not to establish his innocence, rather the authorities have to prove the guilt of the delinquent may be on the basis of preponderance of probabilities. From the aforequoted findings of the Inquiry Officer, it is evident that petitioner has been held guilty as he failed to elicit statement from the Assistant Engineer that the amount was kept in the chest throughout. Such approach of the Inquiry Officer while considering the charge and the evidence led in support thereof cannot be appreciated. 7. In my opinion when the Assistant Engineer failed to dwell upon the fact in issue by either confirming or denying the stand taken by the petitioner that he kept the amount in the chest of the Sub-division, the inquiry officer should have put a direct question to the Assistant Engineer about the fact in issue as to whether the stand taken by the petitioner is correct or false. After receipt of the inquiry report under second show-cause notice dated 4.6.1996, Annexure-12 petitioner filed his reply dated 19.6.1996, Annexure-16 in which he specifically stated that there is no evidence on record of the inquiry 7 proceeding to establish that the amount was not kept by him in the chest of the Sub-division. Having considered the second show-cause reply, the disciplinary authority proceeded to dismiss the petitioner under the impugned order dated 4.10.1996, Annexure-13, perusal whereof would indicate that thereunder the submission of the petitioner that there is no evidence on record to establish that the amount was not kept in the chest, has not been considered by the disciplinary authority. Perusal of the order dated 4.10.1996 indicates that in a very cryptic manner the second show cause reply of the petitioner has been rejected without dealing with any of the submission raised therein. 8. In view of my discussion in paragraph 6 & 7 above, I set aside the punishment order dated 4.10.1996, Annexure-13 together with the appellate order which is said to have been communicated to the petitioner under letter dated 26.7.1997, Annexure-A holding further that petitioner be allowed salary until the date of his superannuation as during the pendency of the writ petition, he superannuated with effect from 31.1.2009. There being no financial loss caused to the Board, I further direct the 8 authorities of the Board to release the retiral dues of the petitioner after deducting the amount of interest which the amount may have earned as per the prevalent rate of interest for the period during which it remained in the chest of the Sub-division. 9. The writ application is, accordingly, allowed. The Patna High Court, Dated : The 25th November, 2010 A.F.R./Ibrar (V. N. Sinha, J.)