BY COURT The sole petitioner in this application under Articles 226 and 227 of the Constitution of India has prayed for quashing annexure 1 to 5 the order of his suspension as well as the submission of charge sheet. By the impugned orders the petitioner has been put under suspension, charge sheet has been submitted against him and the finding in the departmental enquiry has been recorded against him. An order of stoppage of one annual increment with cumulative effect has been imposed upon him and finally his appeal to the Government has been rejected on 20.9.72 (Annexure -5) 2. The petitioner's case is that while being posted as Assistant Electrical Engineer Incharge of Electric Construction Sub-division at Begusarai he was placed under suspension on 12th February, 1968 by respondent no.2 Bihar State Electricity Board under whom he was serving on deputation from Electricity Department of the Government of Bihar (Annexure-1). Thereafter a charge sheet containing three charges (Annexure-2) dated the 22nd march, 1908 was also served on the petitioner by the same respondent. The chares are as follows :- (i) Accepting the rejected materials without being indented for by him; (ii) sending a pre-receipted requisition to the Assistant Electrical Engineer, Central Stores, Gaya and (iii) trying to get these materials issued to the works to the other two subdivisions to avoid actual verification of materials. On receipt of the aforesaid charges the petitioner showed cause denying all the charges and pointed out that the petitioner being a permanent employee of the State of Bihar and being on deputation on foreign service under respondent no. 2 it could not suspend or draw any proceeding against the petitioner. Inspite of that the proceeding against the petitioner was conducted by respondent no. 3, Joint Secretary of the Bihar State Electricity Board, who was appointed as the Enquiry Officer by respondent no. 2. After conclusion of the Departmental proceedings the Enquiry officer submitted a report (Annexure-4) exonerating the petitioner of charges 1 and 2 and finding the charge no. 3 against the petitioner established. Thereafter the Board (respondent no. 2) by order dated the 23rd October, 1971 imposed the following punishments; (i) One annual increment of Bishram Singh should be stopped with cumulative effect. (ii) He should be released from suspension, but for the period of suspensions, he should not be given any pecuniary benefit beyond what he has got as subsistence allowance. Thereafter the Board (respondent no. 2) by order dated the 23rd October, 1971 imposed the following punishments; (i) One annual increment of Bishram Singh should be stopped with cumulative effect. (ii) He should be released from suspension, but for the period of suspensions, he should not be given any pecuniary benefit beyond what he has got as subsistence allowance. (iii) The period or suspension should count for the purpose or pension only, Against that petitioner filed an appeal to the Government which was rejected on 2.9.72 (Annexure 5). 3. The allegations against the petitioner in the departmental proceeding are that orders for supply of aluminum tape and aluminum binding wire were placed with M/s Associated Industries by the Electrical Superintending Engineer, Gaya in purchase Order No. 4357 and 4358 dated the June, 1967. On delivery, the materials were found to be galvanished Iron tape and galvanished iron wire instead of aluminium tape and aluminium binding wire. The firm was therefore, intimated by the Assistant Electrical Engineer Central Stores, Gaya, to take back the materials. It is also alleged that the firm representative came to take the delivery of the rejected materials on 7.8.1967. The rejected materials, instead of being taking by the firm's representative were loaded, the Board’s vehicle truck no. BRB 272, to the Electric Supply Subdivision No.III., Gaya. It is also alleged that those materials were received by him though he had not seen any requisition for the same. In order to regularise these excess materials the petitioner sent a pre-receipted requisition on 17.8.1967. The allegation further shows that the materials were not verified by him before the issue of the receipt requisition to the Assistant Electrical Engineer, Central Stores, Gaya. The allegation further is that 500 KG. of aluminium tape were issued by the Electric Supply Subdivision No.III to the Construction Subdivision No.1, Gaya and Electric Subdivision No.II, Gaya and the balance 55 GK. of aluminium tape and 1000 GK. of aluminium wire were issued to the works of the Electric Supply Subdivision No. III in the name of Shri Umeshwar Sharma, Head Lineman and the aluminium tapes were received by Shri Suryabans Prasad and Harihar Gope on behalf or construction Subdivision no. 1 and Electric Supply Subdivision no. II respectively, but they were returned to the Stores by both of them on detection that they were of bad quality. 1 and Electric Supply Subdivision no. II respectively, but they were returned to the Stores by both of them on detection that they were of bad quality. The allegation against the petitioner that he was aware of the fact that the materials received by him were not aluminium tape and aluminium wire but he skillfully planned to send the pre-receipted requisition and then issued the inferior materials to construction Subdivision no.1 and Electric Supply Subdivision no.II. 4. A counter-affidavit has been filed on behalf of the Electricity Board and the petitioner has filed a rejoinder to that counter-affidavit. 5. Mr. Mukherjee, learned counsel appearing on behalf of the petitioner has raised two contentions. (1) The petitioner has been found guilty of charge no. 3 on the basis of the evidence of witnesses recorded behind the back of the petitioner. They are Jamuna Pd. Assistant Electrical Engineer, Subdivision No.2, Harihar Prasad, Junior Lineman; Subdivision No. 2 and Suryabans Pd. unskilled khalasi Subdivision No.1. (2) The punishment awarded to the petitioner was not approved by the Chief Electrical Engineer, Govt. of Bihar who was the appointing authority. 6. For the enquiry report (Annexure 3) it is true that the petitioner has been absolved of charges no. 1 and 2. Change no. 3 has been discussed under the heading (c) after para 22, in annexure-2, the relevant portion of which is quoted below - (c) Trying to get these materials issued to the works and to other two subdivisions to avoid actual verification of materials. So far this charge is concerned, two pertinent questions have to be answered. (i) Had Sri Bishram Sinha any knowledge that these were rejected materials? (ii) Why did he not verify these materials before issuing them to other stores : Having found the aforesaid fact in relation to charge no.3 on the evidence of the Assistant Electrical Engineer, Jamuna Pd. Yadav Sub-division no. 2 and Harihar Gope, Junior line man, Sub-division no. 2 the enquiry officer came to the following conclusion ;- "Finding himself unknowingly involved in this shady deal and once having been trapped Into It, he thought it wise to dispose of the materials as quickly as possible. He was, to my mind, compelled by the circumstances beyond his control to do this. 2 the enquiry officer came to the following conclusion ;- "Finding himself unknowingly involved in this shady deal and once having been trapped Into It, he thought it wise to dispose of the materials as quickly as possible. He was, to my mind, compelled by the circumstances beyond his control to do this. But all the same It was expected of him that the moment he learnt about the actual position, be should have brought it to the notice of higher authorities. His courage, however, failed. To save his own skin, he thought it best to take recourse to an action which was improper and Irregular. This part of the charge against him is therefore substantiated. But as stated before he was a victim of circumstances beyond his control. This may be taken into consideration while deciding the quantum of punishment to be inflicted upon him." As will appear from the earlier part of the report that the Assistant Electrical Engineer. Subdivision No.2 Shri Jamuna Pd. Yadav and Surybansh, unskilled Khalasi of Subdivision No.2 were oat examined before the enquiry officer. They were really examined at preliminary stage before framing of the charge. Mr. Mallik has urged that the statement of these witnesses was recorded at the preliminary enquiry before framing of the charge having been asked by the petitioner. It was for the petitioner to pray for calling for the witnesses and to examine and cross-examine them if he so liked but the petitioner did not examine them and therefore no grievance could be made by the petitioner that the enquiring officer erred in law in relying on their evidence. We do not find any substance in this contention of Mr. Malik. It is well settled that if is a departmental proceeding any statement of witness recorded behind the back of a delinquent officer at any earlier stage, if sought to be relied upon, the same should be served on the delinquent officer and an opportunity should be given to the delinquent officer by producing the witness for cross-examination. Malik. It is well settled that if is a departmental proceeding any statement of witness recorded behind the back of a delinquent officer at any earlier stage, if sought to be relied upon, the same should be served on the delinquent officer and an opportunity should be given to the delinquent officer by producing the witness for cross-examination. The onus in such a proceeding is on the prosecutor to establish the charge against the delinquent public servant and unless it is done consistent with the principles of natural justice, there is no obligation on the part of the delinquent officer to pray for calling for a particular witness for cross-examination, which is squarely the duty of the prosecutor in an enquiry. The matter would have been different if the petitioner was afforded an opportunity to cross-examine the witness, whose statement was furnished to the petitioner earlier, but he failed to avail of the opportunity. But that is not the instant case. We are, therefore satisfied that the basic principle of natural justice has not been followed in the instant case, which vitiates the finding against the petitioner regarding charge no.3. 7. To get over the aforesaid difficulty, Mr. mallik has relied upon Rule 168 (1) of the Bihar Board’s Miscellaneous Rules, 1993. He has submitted that the punishment imposed with cumulative effect and non-payment of full salary during the suspension period being incidental thereto full-dress departmental enquiry was nor necessary in view of the above rule. All that the rule required was that the punishment in question should not have been awarded without affording an opportunity of making representation against the proposed punishments which are minor ones and did not require a detained departmental enquiry as in the case of dismissal, removal or reduction in rank as laid down in Rule 116. We do not find any substance in this contention of Mr. Mallik. The charges framed against the petitioner were one for misconduct, which, if established, would have warranted major punishment such as dismissal removal or reduction in rank. The lacuna or irregularity committed in such an enquiry could not be got over by imposing a minor punishment. We do not find any substance in this contention of Mr. Mallik. The charges framed against the petitioner were one for misconduct, which, if established, would have warranted major punishment such as dismissal removal or reduction in rank. The lacuna or irregularity committed in such an enquiry could not be got over by imposing a minor punishment. To accept this argument will really mean that the authorities conducting the departmental proceeding can ride a rough shod with well established principle of natural justice to be followed in departmental enquiry by awarding minor punishment at the end of such enquiry. This could not have been the intention of the framers of the rule. It is thus manifest that the finding on charge no.3 is vitiated on account of its being based on the material which were not legally brought in the departmental proceeding, and recorded behind the back of the petitioner. The impugned order or punishment is vitiated not only because it is based on a defective enquiry, but also on the ground that the Chief Electrical Engineer the appointing authority of the petitioner, has only approved stoppage of one increment and not all the punishments suggested by Respondent no, 2. It is not disputed that the Chief Electrical Engineer, who is the appointing authority of the petitioner is the Electricity Department of the Government of Bihar. Only approved stoppage of one increment as will appear from Annexure-C dated the 18/19th August, 1971, that is to say, other punishments proposed by Respondent no, 2 were not approved by the Chief Electrical Engineer. The punishments imposed on the petitioner, therefore, to the extent they are not in consonance with the approval of the Chief Electrical Engineer, could not be imposed on the petition as the petitioner was an employee of the State Government Department on deputation to the Electricity Board. As a result of the aforesaid lacuna the order dated the 23rd October, 1971, imposing punishment on the petitioner (contained in annexure-4), as well as the order dated the 2nd September, 1972, rejecting the appeal of the petitioner against the order of punishment by the State Government, as contained in Annexure-5, are quashed. In the circumstances of the case we shall make no order as to costs. Application allowed.