Judgment A.K.Ganguly, J. 1. The subject matter of challenge in this writ petition is the order of dismissal dated 29.12.1993 passed by the Administrator of the Bank as well as the Administrator of Bihar State Co-operative Land Development Bank (hereinafter referred to as the said Bank). The said order of dismissal arose out of a disciplinary proceeding initiated against the petitioner. The petitioner was initially suspended by the order dated 16th August, 1989. Thereafter, charges were served upon him containing two charges. The first charge relates to disbursement of loan to one Sri Abdul Gafur, and the second charge is with regard to the disbursement of loan to one Nagendra Prasad son of Late Brahmdeo Prasad. Thereafter, another charge-sheet was served upon him vide order dated 4.2.1991. 2. The petitioners contention is that in the second charge there is only one charge and that charge is virtually on the same fact on which first charge is based. The petitioners case is that he sent several letters for supply of relevant documents in connection with the said enquiry but the documents in question were not given to him. In para 13 of the writ petition, it has been stated that the petitioner personally met respondent no.2 on 4.6.1993 when respondent no.2 directed the enquiry officer to supply the relevant documents to the petitioner, but even then the relevant documents were not supplied to the petitioner. In para 14 also the petitioner stated that he asked specifically for the following documents namely, (1) Enquiry report of Sri Shankar Prasad Nirala with regard to the payment of loan to Sri Nagendra Prasad, (2) The enquiry report dated 5.9.1989 conducted by the Senior Regional Manager, Muzaffarpur. 3. The petitioner also wanted inspection ot relevant files and also asked for D.V. files of the loan and the inquiry report submitted by the different officers with regard to payment and utility of the loan amount with regard to Sri Nagendra Prasad. 3. The petitioner also wanted inspection ot relevant files and also asked for D.V. files of the loan and the inquiry report submitted by the different officers with regard to payment and utility of the loan amount with regard to Sri Nagendra Prasad. The petitioner also stated that on 4.6.1993 he repeated his demands for supply of relevant documents and for payment of his subsistence allowance, and he asked for original D.V. file of the loan granted to Sri Nagendra Prasad, but the petitioners case is that without serving those documents on the petitioner the proceeding was decided ex-parte against him and he was served with the enquiry report and the second show cause notice dated 19.7.1993, and the petitioner was served with another show-cause on 25.8.1993 with the charge sheet of other case and the petitioner was asked to give his reply. 4. The case of the petitioner is that he replied the show cause notice in both the cases and in the reply the petitioner also asked for several documents.The petitioner also have grievance that both proceeding are amalgamated and punishment of dismissal was passed. The petitioner has categorically stated that in the said departmental proceeding no presenting officer was appointed to present the case of the respondent Bank, nor any witness has been examined on behalf of the Bank to prove the charges against the petitioner nor any document was exhibited but the enquiry officer appointed by respondent no.2 on his own looked and verified the materials and documents which has been made the basis of allegations against the petitioner. The Enquiry officer reached his conclusion just on a perusal of the documents without any oral enquiry and on the basis of such enquiry the petitioner has been dismissed from service. In respect of charge made against the petitioner on account of disbursement of loan of Rs. 9,000/- to Sri Nagendra Prasad, the petitioner has stated that the complain of Nagendra Prasad was found to be false on previous occasion, but when cousin of respondent no.4 was appointed the Deputy Managing Director (Finance) Cum Senior Regional Manager of the Bank only then the petitioner was allegedly found responsible in the alleged loan transaction relating to Nagendra Prasad. The cousin of the complainant acted as the Enquiry Officer in this case, and he held the petitioner guilty. The cousin of the complainant acted as the Enquiry Officer in this case, and he held the petitioner guilty. The petitioner further states that the charge sheet was served on the petitioner five years after the alleged loan transaction with Nagendra Prasad. The loan was disbursed to Sri Nagendra Pd. on 26.9.1984, and the charge sheet was issued in 1989. In the case of loan transaction to Sri Abdul Gafur the petitioner has given explanation that it is the duty of the Field Officer to identify the loanee and to make the spot verification. Therefore, the allegation relating to impersonation of the loanee is not sustainable against the petitioner. The petitioner further states that even Sri Abdul Gafur has subsequently admitted that the full amount of loan has been received by his son on his behalf. Therefore, there is no dishonesty in the said transaction. The petitioner further states that during pendency of the departmental enquiry no subsistence allowance has been paid to him, and because of such non payment of subsistence allowance to the petitioner, he found it difficult to attend the enquiry from his house situated at a distance of 100 Kilometre. So, he has not been able to participate in the enquiry on different dates. This amounts to denial of his getting proper opportunity of defence. 5. In this matter a counter affidavit has been filed by respondent nos. 1 and 2. The learned counsel for the respondent also argued on the basis of the stand taken in the affidavit. 6. It has been urged by the respondents that the charge sheet along with evidence was served on the petitioner and the petitioner was requested to see the D.V. file on 20.9.91 and 15.6.92. A shadow file was shown and a copy of the same was made available to him. It has been stated that since the original D.V. files were in the custody of the police in connection with the police case, therefore, the petitioner was advised to see the original file by contacting the police officer. It is further stated that the petitioner did not file any application giving the list of documents or the list of witnesses to get them examined in the proceeding. It is further stated that the petitioner did not file any application giving the list of documents or the list of witnesses to get them examined in the proceeding. About the non-examination of the witnesses in the enquiry, it has been stated in the counter affidavit that the departmental proceeding is not a judicial trial, and there is no necessity to follow strictly the law of evidence in such a proceeding. 7. The respondents further urged that in the instant case charges are based on documents and the authenticity of such documents are not challenged. Therefore, no witnesses need be examined. About payment of subsistence allowance, the stand taken in the counter affidavit is that the petitioner has not cooperated in the departmental proceeding. He did not appear on the date fixed, and for giving him notice to appear in the proceeding the enquiry officer has to make publication in the daily newspaper. 8. Considering the rival contentions of the parties this Court finds that the following questions fall for its consideration: (1) Whether the petitioner was given proper opportunity of defence in the departmental proceeding; (2) Whether the petitioner was duly paid his subsistence allowance during the period of suspension as the petitioner has alleged that because of non payment of subsistence allowance he could not attend the enquiry; and (3) whether enquiry was properly held. 9. Out of these three points, on one point there is no factual dispute that in the enquiry no witnesses were examined by the department nor any documents on the basis of which enquiry report is prepared were either introduced or proved. The charges against the petitioner were allegedly proved only on the basis of the replies given by the petitioner to the charge sheet and on the basis of the documents on record. 10. It is an admitted position that in holding the enquiry the respondent Bank were following the State Government rules. Those rules are set out below: "55. The charges against the petitioner were allegedly proved only on the basis of the replies given by the petitioner to the charge sheet and on the basis of the documents on record. 10. It is an admitted position that in holding the enquiry the respondent Bank were following the State Government rules. Those rules are set out below: "55. Without prejudice to the provisions of the Public Servants Inquiries Act, 1860, no order of dismissal, removal, compulsory retirement or reduction shall be passed on a member of a Service (other than an order based on facts which have led to his conviction in a criminal court or by a Court Martial) unless he has been informed in writing of the grounds on which it is proposed to take action and has been afforded an adequate opportunity of defending himself. The grounds on which it is proposed to take action shall be reduced to the form of a definite charge or charges which shall be communicated to the person charged together with a statement of the allegations on which each charge is based and of any other circumstances which it is proposed to take into consideration in passing orders on the case. He shall be required, within a reasonable time, to put in a written statement of his defence and to state whether he desires to be heard in person. If he so desires or if the authority concerned so direct an oral enquiry shall be held. At that inquiry oral evidence shall be heard as to such of the allegations as are not admitted, and the person charged shall be entitled to cross examine the witnesses, to give evidence in person and to have such witnesses called, as he may wish, provided that the officer, conducting the inquiry may, for special and sufficient reasons to be recorded in writing, refuse to call a witness. The proceedings shall contain a sufficient record of the evidence and a statement of the findings and the grounds thereof.(underlined for emphasis)" 11. Those rules have been explained by the executive cirulars issued by the government by fixing a time frame to expedite such enquiry. The relevant portions from such circulars are extracted below: "If it is decided to hold an oral enquiry, the examination and cross examination of the prosecution and the defence witnesses should be completed within a month. Those rules have been explained by the executive cirulars issued by the government by fixing a time frame to expedite such enquiry. The relevant portions from such circulars are extracted below: "If it is decided to hold an oral enquiry, the examination and cross examination of the prosecution and the defence witnesses should be completed within a month. Save for exceptional reasons to be recorded by the enquiring officer in writing, cross examination of witness must follow immediately their examination in chief. A date should be fixed by the enquiring officer within this time limit on which the accused should be asked to call his witness and he should be warned that if he does not produce his witness on the date fixed, the proceeding will be concluded." 12. Under those rules there are detailed provisions for holding regular departmental enquiry. In holding of a departmental enquiry it is required to prove the charges against the delinquent employee by producing the departmental witnesses and by examining them by the enquiry officer. If the delinquent employee does not attend the enquiry even then the department has to prove the charge by examining the witnesses in support of its own documents. In the departmental enquiry no onus is cast upon the delinquent employee to prove the charges. The charges have to be proved by the department. If no witness is called by the department in support of the charges in that case it should be held that the department has not proved its case and in such a situation the enquiry officer cannot record the findings with regard to guilt against the delinquent employee just because the delinquent employee is absent. 13. In the instant case, the petitioner denied the charges and filed its written statement. He has demanded inspection of documents for his effective defence in the enquiry. There is no requirement that he has to demand an oral enquiry in writing. In any event that requirement has no significance in this case where the respondents themselves have ordered an enquiry by appointing an enquiry officer. After appointing an enquiry officer the authorities cannot proceed on the basis no oral enquiry need be held. This stand Is contrary to the mandate of Rule-55 of the rules and also its clarification by administrative circulars extracted above. 14. After appointing an enquiry officer the authorities cannot proceed on the basis no oral enquiry need be held. This stand Is contrary to the mandate of Rule-55 of the rules and also its clarification by administrative circulars extracted above. 14. It is obviously true that the departmental proceeding cannot be equated with a criminal trial, and the technicalities of the Evidence Act are not applicable to a departmental enquiry. But one cannot lose sight of the fact that on the outcome of the said enquiry depends the livelihood of the employee. Therefore, before holding that the charges are proved scrupulous care should be taken to see that an innocent man is not punished. 15. Reference in this connection may be made to the Constitution Bench Judgment of the Apex Court in the case of Union of India vs. H.C. Goel, reported in A.I.R. 1964 S.C. page 364. His Lordships Gazendra Gadkar, J. His Lordships then was, summarised the law in this respect as follows: "It may be that the technical rules which govern criminal trials in courts may not necessarily apply to disciplinary proceedings, but nevertheless, 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 rules." 16. Since the aforesaid principle laid down by the Constitution Bench of the Supreme Court has been subsequently followed in many other cases, and has not been departed from till today, this Court cannot accept the bald satement urged by the learned counsel for the respondent that since the charges are based upon the documents so no witnesses need be examined to bring home the charges. 17. The other grounds on which no witnesses have been produced in the said enquiry is that the petitioner has not demanded an oral enquiry. 18. This Court cannot accept this argument for the reasons already indicated when an enquiry has been ordered by the disciplinary authority and an enquiry officer has been appointed it is not for the petitioner to demand that the department must produce witnesses to prove its case. The onus is never on the delinquent employee, on the other hand, onus is on the department to prove the charges and it is for them to produce their witnesses in support of his case against the delinquent employee. 19. The onus is never on the delinquent employee, on the other hand, onus is on the department to prove the charges and it is for them to produce their witnesses in support of his case against the delinquent employee. 19. Therefore, in the facts of this case, this Court is constrained to hold that by not producing any evidence in support of its case, the respondent authorities have failed to prove the charges against the delinquent employee. Where charges have not been proved the enquiry report loses all its importance and the punishment imposed on the petitioner cannot be sustained. When a person is thrown out of employment, it must be on the basis of a procedure which is reasonable, just and fair. (See D.K. Jadav vs. J.M.A. Industries Ltd., reported in (1993)3 SCC page 259 : 1994(2) PLJR (SC)55. 20. In the instant case, learned counsel for the respondent has relied upon two judgments in support of his contention that production of witnesses in the departmental enquiry is not required. First reference was made in the case of State of Bombay vs. Hussain Kashim Kanhekar, reported in A.I.R. 1968 Bombay page 290. The said judgment relies upon in the decision of the Supreme Court in the case of State of Bombay vs. Nurul Latif Khan, reported in A.I.R. 1966 S.C. page 269. 21. In the case of State of Bombay (supra), the Supreme Court has construed the provisions of Rule-55 of the Civil Services (Classification, Control and Appeal) Rules, 1930. Construing the said provisions, the Apex Court held in para 13 at page 274 of the said judgment, that "In our opinion it is essential that an oral hearing shall be held if the authorities so direct, or if the charge sheeted officer so desires". The Supreme Court held that in such cases oral hearing is mandatory. 22. The respondents are to follow the same rule for holding the enquiry in this case. From the conduct of the petitioner it is clear that he demanded an enquiry and in fact an enquiry has been ordered. Having directed an oral enquiry, the respondents cannot refuse to call its witness to prove its case. 23. Therefore, the ratio of the judgment of the learned Single Judge in the case of State of Bomaby vs. Hussain Kashim (supra) is not based upon the correct interpretation of the judgment of the Supreme Court. Having directed an oral enquiry, the respondents cannot refuse to call its witness to prove its case. 23. Therefore, the ratio of the judgment of the learned Single Judge in the case of State of Bomaby vs. Hussain Kashim (supra) is not based upon the correct interpretation of the judgment of the Supreme Court. Apart from that this Court is of the opinion that the said ratio is also not in consonance with the ratio of the Constitution Bench judgment in the case of H.C. Goel and as such the same is not acceptable by this Court. Even otherwise, this Court is not bound by the view of the learned Single Judge of the Bombay High Court in the aforesaid case. Therefore, with utmost respect, this Court differs from the view taken by the learned Single Judge of Bombay High Court in Hussain Kashim (supra). 24. But this Court on the other hand finds that the Division Bench of Bombay High Court in the case of State of Bombay vs. Gazanan Mahadeo Badley reported in A.I.R. 1954 Bombay Page 351 held that a statutory protection which is to be given to an employee as a matter of statutory (sic) is an obligation cast upon the State and such obligation must be discharged irrespective of whether the protection is claimed by the servant or not. The Court, speaking through the Chief Justice Chagla, (as his Lordship then was,) laid down the following proposition: "It is a statutory protection that is afforded to the servant and a statutory obligation cast upon the State and the State has got to discharge that obligation irrespective of whether the protection is claimed or not claimed by the servant." This Court is in respectful agreement with the above proposition laid down by the Division Bench of the Bombay High Court. 25 The other judgment on which reliance is placed by the learned counsel for the respondent is in the case of U.P. State Co-operative Land Development Bank vs. Chandra Bhan Dubey, reported in 1999(1) S.C.C. page 741. In para-17 of the said judgment, this question has been discussed. While discussing this question, the learned Judges have held that in the case before them reports in question forms part of the evidence in the proceedings. In para-17 of the said judgment, this question has been discussed. While discussing this question, the learned Judges have held that in the case before them reports in question forms part of the evidence in the proceedings. This finding is suggestive of the fact that there was an enquiry proceeding in which witnesses have been examined, and the learned judges have also held what rules of natural justice have to be followed in a particular case depends upon the provision of law under which charges are being enquired into in the departmental proceeding. 26. The rules under which the enquiry was held in the case of Chandra Bhan Dubey (supra) were set out in para-15 of the judgment. The said rules are also extracted below: "85 (i) (a). The employee shall be served with a charge sheet containing specific charges and mention of evidence in support of each charge and he shall be required to submit explanation in respect of the charges within reasonable time which shall not be less than fifteen days; (b) Such an employee shall also be given an opportunity to produce at his own cost or to cross examine witness in his defence and shall also be given an opportunity of being heard in person, if he so desires; (c) If no explanation submitted is unsatisfactory, the competent authority may award him appropriate punishment considered necessary." 27. The rules in the instant case are totally different, especially Rule 85C authorises the respondent to award any punishment if it is found that the. explanation to the charge sheet is unsatisfactory. This creates a substantial difference between the said rules and the rules under which enquiry is governed in the present case. As such requirement of natural justice demands that since in the instant case oral enquiry has been ordered, and the enquiry officer was appointed, the department must prove its charges by producing witnesses, but the same has not been admittedly done in this case. It is apt to reproduce in this connection the principles laid down by a three judge bench of the Honble Supreme Court in D. K. Jadav (supra) in para 14 at page 270 of the report which is set out below: "The order of termination of the service of an employee/workman visits with civil consequences of jeopardising not only his/her livelihood but also career and livelihood of dependants. Therefore, before taking any action putting an end to the tenure of an employee/workman fair play requires that a reasonable opportunity to put forth his case is given and domestic inquiry conducted complying with the principles of natural justice." 28. Since no enquiry took place in this case to prove the charges, this Court cannot hold that the enquiry officer acted properly by submitting his report holding that the charges against the petitioner have been proved. 29. In that view of the matter, this Court cannot sustain the order of punishment against the petitioner. This Court therefore quashes the enquiry report as well as order of dismissal against the petitioner. 30. Since this Court has quashed the dismissal order on this ground alone it has not given any finding on the other grounds as those findings are not necessary. But this Court does not quash the charges, and if the respondents are so advised, they may hold fresh enquiry in respect of the self same charges by holding proper enquiry and by giving adequate opportunities to the petitioner and by producing their own witnesses in support of the charges. 31. Since this matter is pending for a long time, this Court observes that if such enquiry has to be held the same should be held as early as possible preferably within a period of six months from today This writ petition is thus allowed and the impugned order of dismissal of the petitioner is quashed. The petitioner is reinstated in service forthwith but the petitioner would not get anything by way of back wages. But seniority and continuity in service of the petitioner must be maintained. After his reinstatement, the petitioner should be paid salary in the appropriate scale to which he would have been entitled if no dismissal order had been passed against him. The petitioner must be reinstated within a period of ten days from today. There will be no order as to costs.