JUDGMENT D.K. Seth, J.
1. Dr. R.G. Padia for petitioner and Mr. Lalji Sinha for respondents.
2. Orders dated 16th March, 1985 and 29th May, 1986 contained in Annexures 7 & 8 receptively to the writ petition, have been challenged on the ground of perversity. A chargesheet was issued to the petitioner containing two charges that he had extorted Rs. 600/- from two students on gun point, and secondly, he had refused to go on duty to Assam though he was detailed to such duty orally.
3. Dr. R.G. Padia, learned Counsel for the petitioner, points our from paragraphs 6 & 7 of the writ petition the defence of the petitioner in respect of the said charges where he had spelt out that the two boys had themselves stated in the enquiry itself that the complaints were extorted from them and that no order for Assan duty was ever communicated to the petitioner. Dr. Padia also points out that these two paragraphs of the writ petition have not been properly dealt with in the counter-affidavit so as to prove the allegations on the other hand, according to him, it is apparent from records of the enquiry that the said two boys had given statement before the Inquiry Officer who had recorded the same. From the record of the enquiry which is Annexure-3 to the writ petition, the statement of Satya Kumar Dwivedi recorded in the said proceedings, he points out that the petitioner had never extorted any money from him. On the other hand, the money was dropped from his pocket while he was running for catching the train and on information that some money had been deposited to the office of R.P.F. when the boy wanted to collect the same, the officer concerned compelled him to write at his dictate that the money was extorted from him on gun point by the petitioner. Under compulsion he had written the same at the dictate of the said officer. The Inquiry Officer had also cross-examined him. In cross-examination, he had pointed out that he had also submitted an affidavit in the proceedings in support of his statement which he had stated in Chief and had categorically stated that the allegation that the petitioner had extorted money from him, was false and fabricated, and that the alleged complaint was lodged by him under coercion exerted by one Bhagwan Swraup. He has also filed an affidavit which is also part of the record which corroborates the statement recorded in the enquiry proceedings. The said affidavit is a part of Annexure-3. It appears from the said affidavit that the statement recorded in the enquiry was aptly corroborated. The Inquiry Officer while considering the same had recorded in the second show cause notice that the said affidavit was an after thought. He had omitted to appreciate that the statement available in the enquiry proceeding is corroboration of the said affidavit. Even if the affidavits is ignored, still than on the basis of the student recorded in the enquiry, no reasonable person could arrive at the conclusion that the allegation of petitioner's extorting money from the student could be said to have been proved. He had not considered the statement of the said student recorded in the enquiry proceedings. On the other hand/ he had only, given the reasons to discard the affidavit without mentioning anything about the statement of the student. When there is a contradiction in between the complaint and the statement given in the enquiry proceedings stating that the complaint was lodged under coercion specifically mentioning name of one Bhagwan Swraup, who had exerted coercion, in the absence of any other material, it cannot be held that the said charge of extortion of money is proved. The finding that the said charge was proved, was absolutely perverse. At the same time, in the impugned order of punishment dated 16th March, 1985, he has not given any reason with regard to the said charge No. 2 but had pointed out the reasons given in the second show cause notice which he need not repeat. Thus, I am in agreement with the contention of Dr. Padia that no reasonable person could arrive at the conclusion that the second charge is proved on the basis of the material on record as discussed above with regard to the charge of extortion. Therefore, so far as the said charge is concerned, the punishment based on such charge cannot be sustained and is liable to be quashed. The appeal thereout can also not be supported in respect of the said charge when rejecting the appeal by the order dated 29th May, 1986 contained in Annexure-8.
4. So far as the first charge is concerned, defence of the petitioner is that he was never communicated of the alleged order for his detaliment on duty at Assam. One Bhagwan Tiwari, who was made in charge of the party going to Assam was examined. From this statement it appears that when he came back, he was asked to go on duty to Assam but the petitioner did not accompany him. He was cross-examined by the Inquiry Officer, upon which he had pointed out that no written order was given to him. He was not aware as to whether there was any direction on the petitioner to accompany him to Assam on duty. The charge against the petitioner was that there was an order detailing the petitioner to duty to Assam but from the record it appears that there was no written order issued to the petitioner. It is sought to be explained on behalf of the employer that such orders are issued, orally and are being carried out. In the absence of any material to show that the petitioner was ever asked to go to Assam on duty, it is not possible for any reasonable person to arrive at the conclusion that the petitioner was detailed for duty to Assam.
5. Charge when levelled against any person, are to be proved. The prosecution cannot stand on the weakness of defence. It has to stand on its own strength. There is nothing on record to show that there was any order detailing the petitioner to duty to Assam less that any such order was ever communicated to the petitioner. There was no material, on which such conclusion could be arrived at. Therefore, the finding with regard to the first charge appears to be based on no martial and as such is perverse. Therefore, the order of punishment based on such finding cannot be sustained. I have perused the order dated 16th March, 1985, the/reasons given therein cannot support the conclusion. The order pointed in appeal in respect of the said charge, therefore, cannot be sustained while rejecting the appeal with regard to the same; The order dated 29th May, 1986 being Annexure-8 to the writ petition also shows that the same is cryptic and the reasons sought to be advanced are no reasons. In view of the observations made earlier, the appellate order cannot be sustained.
6. In that view of the matter, the writ petition succeeds and is allowed. The impugned orders dated 16.3.1985 and 29.5.1986 contained in Annexures-7 & 8 respectively to the writ petition are hereby quashed. Let a writ of certiorari accordingly to issue. The respondents are directed to reinstate the petitioner within a period of three months from the date a copy of this order is served on the respondents on the same post and same pay, and make payment of his salary for the current month accordingly. The respondents are directed further to pay arrears payable to him after considering the question of increment and promotion, if available to the petitioner, in accordance with law treating him as on service for the entire period including the period of suspension. Such decision is to be arrived at within six months after expiry of three months' period. After such decision all arrears are to be calculated and to be paid to him within three months from the date of such decision.
7. The writ petition stands finally disposed of.
8. Let a copy of this order be issued to the learned Counsel for the parties on payment of usual charges within seven days.