IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.962 of 2008 RADHA RAMAN SAH . Versus THE STATE OF BIHAR & ORS . ----------- 2/ 14/12/2009 Heard learned counsel for the petitioner and learned counsel for the State. The petitioner is aggrieved by the order of punishment dated 18.7.2002 at Annexure-8/1 visiting him with the punishment of (a) withholding 40% of pension for one year, (b) nothing beyond subsistence allowance was payable for the specified periods of suspension which was otherwise to be counted in service. The appeal preferred against the same has been rejected on 16.4.2007 assailed at Annexure-11. The petitioner appears to have been proceeded against departmentally. The enquiry officer on 20.4.2001 submitted his report that the presenting officer had given in writing that no records with regard to the charges were available, and therefore the enquiry officer was unable to submit any enquiry report on the allegations. This was followed by a second show cause notice dated 3.8.2001 purported to be on difference of opinion with the enquiry officer to which the petitioner replied when he took the specific objection that during the departmental enquiry no records had been produced and no charges against him had been proved. 2 In a departmental enquiry the onus lies on the prosecution to prove the charge. This has to be done by leading evidence, oral and documentary. Once the charge has been proved, the onus shifts on the defence to repel the same after which follows the enquiry report. If the prosecution itself is not able to prove the charge, there is nothing for the petitioner to defend. It is only if an enquiry report of exoneration in a proper departmental proceeding is submitted that the disciplinary authority can proceed on a difference of opinion setting out the grounds for the same along with the materials in support thereof. When there has been no departmental enquiry in accordance with law, the question of a difference of opinion arising does not surface. Moreover, from the purported second show cause notice described as a matter of difference of opinion this Court finds that it is nothing but a reiteration of the charges. The petitioner in his memo. of appeal specifically took the ground that nothing had been proved against him in the enquiry. No documents had been proved or evidence led. The appellate authority by a short and cryptic order dated 16.4.2007 upheld the punishment as granted by order dated 18.7.2002. In absence of any departmental proceeding 3 in accordance with law, the charges having been proved, or a difference of opinion on a report of exoneration as required by law coupled with a non- speaking cryptic appellate order, this Court finds it difficult to sustain the order of punishment. The orders dated 18.7.2002 and 16.4.2007 are accordingly set aside. The writ application stands allowed. Let the benefits of this order be made available to the petitioner within a maximum period of four months from the date of receipt/production of a copy of this order before the concerned respondent. KC ( Navin Sinha, J.)