JUDGMENT Radha Mohan Prasad, J. In both these writ applications the petitioners who were charged with remission/ negligence in discharge of duty while performing their duties at Neora Railway Station for seal checking and guarding duty against theft of railway property on 7.7.1980 have prayed for quashing of the orders of their removal from service as contained in annexure 4 in C.W.J.C. no. 5275/91 and annexure 7 in C.W.J.C. no. 5088/91 respectively and also the orders passed on their appeals as well as revisions rejecting them vide annexures 6 and 9 in the first case and annexures 8 and 12 in its second case respectively. As against both the writ petitioners the charges were common and relate to the same occurrences and the departmental proceedings were also taken up together and a common enquiry report was submitted, on the basis of which the impugned order of punishments have been passed against them, the writ applications filed by them have been heard together and are being disposed of by this common judgment/orders. 2. In short, the facts of the present case are that in the night of 6/7.7.1984 a theft was committed at Neora Railway station where the petitioners of both the writ applications were posted as Constables in the Railway Protection Force. In the said theft 22 bags of sugar were stolen by opening the sealed wagon at Neora station. It is alleged that the said theft was committed with the assistance of the petitioners and one another Constable namely Ramswarath Singh. A criminal case was also instituted in connection with the said theft, in which the petitioners and the said Ramswarath Singh were also made co-accused along with others. Later, the petitioners and the said Ramswarath Singh were discharged in the said criminal case. However, a departmental proceeding was initiated against all three of them, in which all of them were imposed punishment of removal from service with immediate effect. Against the said order passed by the disciplinary authority dated 9.7.1987, the petitioners and Ramswarath Singh preferred appeal as provided under the provisions of Railway Protection Force Rules. The said appeals were rejected by order dated 23.5.1986. The petitioners and the said Ramswarath Singh-preferred revision before Chief Security Commissioner, Railway Protection Force, Eastern Railway, Calcutta, who by his order dated 27.7.1989 rejected the prayer as in his opinion, no interference with the appellate order passed by the Dy. The said appeals were rejected by order dated 23.5.1986. The petitioners and the said Ramswarath Singh-preferred revision before Chief Security Commissioner, Railway Protection Force, Eastern Railway, Calcutta, who by his order dated 27.7.1989 rejected the prayer as in his opinion, no interference with the appellate order passed by the Dy. C.S.C. was called for. Thereafter, the petitioners as well as the said Ramswarath Singh approached the Director General, R.P.F. New Delhi by way of representation, on which the Director General by his order dated 20th November, 1991 (a photo copy whereof has been annexed as annexure 14 to the supplementary affidavit filed on behalf of the petitioner) quashed the order of punishment imposed against the said Ramswarath Singh and the period from date of his removal to the date of reinstatement was treated as on duty. The representations/petition filed on behalf of the petitioners were rejected by the Director General, R.P.F, vide order dated 5.9.1991 as contained in annexure 13 whereafter the petitioners filed the present writ applications. 3. A counter affidavit, supplementary counter affidavit, reply and rejoinder have been filed on behalf of the parties. In view of the question involved in the present case, I do not consider any necessity to deal with the contentions made therein. 4. Mr. Mishra, learned counsel appearing for the petitioners contended that apart from other points the writ applications can succeed on the sole question that it is a case of no evidence inasmuch as the finding arrived at by the enquiry officer as well as the disciplinary authority are based on mere suspicion. In support of this the learned Counsel referred to the finding of the enquiry officer which is as follows : "In view of the above facts and circumstances it is reasonably suspected that the theft of sugar bags from the subject wagon had taken place at Neora and the delinquent con. 4372 Indradeo Choudhary is responsible and the charges framed against him has been proved." 5. In support of the aforementioned contention, learned Counsel placed reliance on the decision of the Supreme Court in the case of Nand Kishore Prasad vs. State of Bihar ( AIR 1978 SC 1277 ). 6. 4372 Indradeo Choudhary is responsible and the charges framed against him has been proved." 5. In support of the aforementioned contention, learned Counsel placed reliance on the decision of the Supreme Court in the case of Nand Kishore Prasad vs. State of Bihar ( AIR 1978 SC 1277 ). 6. Learned counsel further submitted that from perusal of the enquiry report as contained in annexure 4 as well as the orders passed by the disciplinary authority it would appear that the order of punishment is based on the statement of the co-accused in the criminal case, who were neither in the list of witnesses nor have• been examined as witness in the present case. Further, it has been submitted that no other material has been relied upon in support of the charge of remission/negligence as alleged against the petitioners. It is thus, submitted by the learned counsel that the order is violative of the principle of natural justice inasmuch as the petitioners have been deprived of the reasonable opportunity of cross-examining those two co-accused as they have not been examined by the prosecution in the departmental proceeding. Mr. Mishra submitted that it was obligatory on the part of the prosecution to examine the said co-accused as witness specially when the conclusion even on suspicion is itself based on their statements. 7. On the other hand, Mr. Bose, learned Counsel appearing for the Railways submitted that it is true that in the conclusion recorded under the heading "Findings" the conducting officer while holding the charges to have been proved against the petitioners mentioned that "It is reasonably suspected that the theft of sugar bags from the subject wagon had taken place at Neora and the delinquents are responsible for the same". But from the reading of the entire enquiry report it would appear that the enquiry officer has considered the statements of the witnesses examined in the enquiry as well as the documents presented before him during the enquiry. According to Mr. Bose, the aforesaid finding is in fact, not merely based on reasonable suspicion, but on the materials which have been considered by the enquiry officer in his detailed report, contained in annexure 4. 8. According to Mr. Bose, the aforesaid finding is in fact, not merely based on reasonable suspicion, but on the materials which have been considered by the enquiry officer in his detailed report, contained in annexure 4. 8. From the perusal of the said report as well as the order passed by the disciplinary authority I find that they have based their conclusion solely on the statement of the co-accused in the criminal case. The relevant portion of the enquiry report submitted by the Enquiry officer and the order passed by the disciplinary authority are quoted hereinunder: '"The recovery was made on the basis of source information received by Sri Kishuni Ram, ASI/GRPF/DNR that the theft of sugar has been committed at Neora station from a stabled wagon and subsequently arrested accused person/disclosed to him that three RPF/ staff narnely Con. Ram Pher Yadava, Con. Indradeo Choudhary and Con. Ram Swarath Singh assisted in committing the theft of 22 bags sugar with their associates vide (Ext. VII). Or the leading statement of arrested accused persons eleven bags of sugar were recovered from the house of Dip Chand Saw with the arrest of Gopal Saw/s/o Chandra Dip Saw. The source information was about the theft of sugar bags from stable wagon of Neora in the night of 6/7.7.84 and not from DNR yard. The confessional statement leading the recovery is relevant in the eye of law." .....The fact remains proved about the recovery of the property, the theft from the wagon which was stabled at that time at Neora where the delinquent was on duty and the versions of criminals that they have committed this theft with the connivance of the delinquent cannot be ruled out." 9. Thus, it appears that the entire conclusion of the said two authorities are based on the versions of the co-accused, who were admittedly not included in the list of witnesses nor have been examined in the departmental proceeding. In my opinion, an order of dismissal /removal cannot be sustained if the delinquent has been deprived of an opportunity to cross examine a person on whose statement reliance is placed in passing of the order of punishment. 10. In my opinion, an order of dismissal /removal cannot be sustained if the delinquent has been deprived of an opportunity to cross examine a person on whose statement reliance is placed in passing of the order of punishment. 10. In the case of State of Punjab vs. Dewan Chuni Lal ( AIR 1970 SC 2086 ) the Supreme Court while considering the scope of grant of reasonable opportunity held that if the charges are based on adverse report of superior officer, who was not examined by the department, the delinquent was deprived of the reasonable opportunity of cross-examining him and thus, the order of dismissal was held to be not legal. In my opinion, the same principle would also apply where enquiry officer/Disciplinary Authority relies on the statement of some one who has not been examined by the department as witness in the departmental proceeding. 11. Besides this, I find that the enquiry officer as well as the disciplinary authority has based its conclusions on mere suspicion which is not permissible in law. In the case of Nand Kishore Pd. (supra) the Supreme Court held as follows : "Before dealing with the contentions canvassed, we may remind ourselves of the principles, in point, crystalised by judicial decisions. The first of these principles is that disciplinary proceedings before a domestic Tribunal are of a quasi-judicial character, therefore, the minimum requirement of the rules of natural justice is that the tribunal should arrive at its conclusions on the basis of some evidence, i.e. evidential material which with some degree of definiteness points to the guilt of the delinquent in respect of the charge against him. Suspicion cannot be allowed to take the place of proof even in domestic inquiries. As pointed out by this Court in Union of India Vs. H.G. Goel, A.I.R. 1964 SC 365 the principle that in punishing the guilty scrupulous care must be taken to see that the innocent are not punished, applies as much to regular criminal trials as to disciplinary enquiries held under the statutory rule." 12. Thus, on this ground as well the orders of punishment cannot be sustained. H.G. Goel, A.I.R. 1964 SC 365 the principle that in punishing the guilty scrupulous care must be taken to see that the innocent are not punished, applies as much to regular criminal trials as to disciplinary enquiries held under the statutory rule." 12. Thus, on this ground as well the orders of punishment cannot be sustained. However, as the order of the revisional authority was passed on 27.7.89 and the petitioner moved this court after a lapse of two years initially, I did not feel inclined to grant any relief to the petitioners on the sole ground of laches on his part in approaching this Court. But, however, as the petitioners had approached the D.G., R.P.F. by filing representation, though not proved in law, and the learned counsel after taking instructions from the petitioners who are present in Court submitted that the petitioners would be satisfied if in the peculiar facts and circumstances of these cases they are paid only 50% of their back wages as consequence of the quashing of the order of removal, the impugned orders of removal of the petitioners from service are quashed. It is however, made clear that the petitioners though shall be entitled to only 50% of the back wages, but will be entitled for all other consequential benefits. 13. In the result, the writ applications are allowed, but in the facts and circumstances, there shall be no order as to costs.