JUDGMENT : Lalit Mohan Sharma, J. - The petitioner is serving under the Food Corporation of India and by the impugned ORDER :(Annexure 1) he has been reduced in rank from Assistant Grade II to Assistant Grade III after holding a departmental enquiry. He filed a departmental appeal which was disposed of by Annexure 2, whereby the period of reduction in rank was reduced from five years to three years. 2. According to charge made against the petitioner, he was guilty of loading 339 bags of wheat in a Railway wagon instead of 340 bags and thus responsible for loss of one bag of wheat. A number of wagons were loaded on 19.10.1970 at Darbhanga Railway Goods Shed for carrying grains to Assam. The petitioner was to supervise despatch of the food grains and another person respondent no. 5 his assistant. The bags were loaded in the wagon in question and the door was closed and sealed. The wagon did not leave Darbhanga immediately and on 21.10.1970 the department of Central Bureau of Investigation got certain information on the basis of which the wagon in question was opened in presence of several persons and shortage of one bag was detected. A departmental proceeding was thereafter started against the petitioner as also against the respondent no. 5. The petitioner was served with charge-sheet and an enquiry was made by the respondent no. 3, who submitted his report Annexure 10, fastening the responsibility on the petitioner. The other person involved in the matter were also punished, some of them being the Railway Officers. 3. Mr. Mukherji appearing in support of this application urged three points, namely, (1) the petitioner was denied reasonable opportunity to defend himself. (ii) the enquiry was vitiated on account of violation of certain regulation and (iii) the finding in the enquiry report holding the petitioner responsible is not supported by any relevant evidence. 4. So far the third point is concerned, Mr. Mukherji relied on the admitted fact that on 19.10.1970, when the bags were loaded in the wagon, they were so done in the presence of the Railway employees and a Railway receipt was duly issued, stating that 340 bags were put in the wagon. The door of the wagon was closed by the Railway employees and a seal was put thereon. The door of the wagon was closed by the Railway employees and a seal was put thereon. He argued that thereafter it was not the duty of the petitioner to have guarded the wagon and seen that the wagon was properly despatched from Darbhanga on its outward journey. Mr. Mukherji urged that since there is no finding recorded by the Enquiring Officer that the seal which was put on 19th October, 1970, remained intact and on the 21st October, 1970, it was that very seal which was broken for verification by the C. B. I., the petitioner can not be held guilty. There is no evidence and none has been referred to in the enquiry report that on 19.10.1970 itself only 339 bags were loaded. The Railway's document so far it goes, indicates otherwise. In that situation, before the petitioner can be held guilty, there should have been some railway evidence which could have led to that conclusion. The Enquiring Officer has not referred to the oral evidence of any witness which could prove that the safety of the wagon was assured between the 19th October and the 21st of October, 1970. It remains a matter of conjecture as to what happened between these two days. Mr. Sidheshwar Prasad Singh appearing on behalf of respondent admitted this position but attempted to support the impugned annexures on the ground that the petitioner also did not plead and prove that the wagon in question was tampered with on the 20th of October or at any point of time before it was again opened. He has pointed out several circumstances indicating that the conduct of the petitioner was not beyond suspicion. A notice was served on the petitioner before the C.B.T. opened the wagon for verification of the bags but the petitioner chose not to be present. These circumstances do indicate that the conduct of the petitioner has been suspicious but suspicion cannot take place of proof. Since there is a clear lacuna in the evidence in absence of which it is not possible to hold the petitioner guilty, the application has to succeed. Accordingly the ORDER :s, Annexures 1, 2 and 10 are quashed. The writ petition is allowed but without costs. 5. M. P. Varma, J. - I agree with the JUDGMENT : pronounced by my Brother. I wish to add only a few words more. 6. Accordingly the ORDER :s, Annexures 1, 2 and 10 are quashed. The writ petition is allowed but without costs. 5. M. P. Varma, J. - I agree with the JUDGMENT : pronounced by my Brother. I wish to add only a few words more. 6. The substance of the imputation against the petitioner is of short loading of one bag of wheat in the railway wagon. He was deputed to supervise the loading of 340 bags. The report of the Enquiring Officer indicates that the loading was correctly done in presence of Railway staff and others and proper receipt was also issued by the Railway. Two days after when the wagon was opened and checked up, one bag was found short. Now suspicion has been raised against the petitioner, and in the departmental proceeding, it has been alleged that he thereby (sic) guilty of misconduct. 7. I have critically examined the enquiry report, Annexure 10 to the petition. This report, to my reading, instead of fastening the petitioner with the guilt rather exonerate; him from the charge. The Enquiring Officer is very much conscious that there is no evidence either factual or legal against the petitioner and to wriggle out of this situation, in his finding the learned Enquiring Officer has said that the letter of law is not his concern and he felt morally convinced that the delinquent-petitioner committed the offence. The less I comment the better it is. It has been rightly said that suspicion, however strong it might be, can not take the place of proof. The charge thus having completely failed, I agree with my learned Brother that the ORDER :s contained in the impugned Annexures are fit to be set aside and they are hereby quashed.