JUDGMENT 1. THE petitioner, prior to his dismissal from service following disciplinary proceedings, was a security guard of Parbelia Colliery of Eastern Coalfields Limited. In this writ petition dated 13/9/1995, he has questioned the validity and/or propriety of the order of dismissal from service dated March 31, 1995 (Annexure E) issued by the Superintendent/ Manager, Parbelia Colliery as well as the proceedings of enquiry preceding the order of dismissal. 2. IT appears that the petitioner was charged with misconduct in terms of provisions contained in clauses 17(i)(a) and 17(i)(i) of the Standing Orders. The charge-sheet that was issued against him reads as follows: The charge given below has been made against you. You are required to give your written and signed explanation in the space provided below within 48 Hours of receipt of this Charge Sheet failing which action will be taken against you on the charge made. In the event of your explanation proving unsatisfactory the management will be at liberty to take such action as it thinks suitable Charge Explanation On 21/1,1995 you were on duty in the 3rd shift i.e. from 12 Midnight to 8.00 A.M. at the Cash office Parbelia Colliery while knowing fully well that the truck No.BHG-4243 which was standing near the Cash, Office, Parbelia Colliary was loaded with Companys Materils which were lifted from Ranipur Colliery for Perbalia Colliery, you allowed the same truck to leave the premises of Parbelia Colliery at the night hours during Your duty period with no valid reason of Permission of the Competent authority. This act of yours constitutes Offence under the following sections of the standing order prevailing in the Industry. Sec 17(i)(a) Dishonesty in connection with employers property. Sec 17(I)(I) Causing wilful damage to property of the employer. You are therefore charged under the Abovementioned Sections of the attending order and hereby suspended pending enquiry. Signature :_______________________Signature_________________Manager Date : 23.1.1995 Date : ORDER Date ________ Signature_______________ Date____________________ Immediately prior to issuance of the charge-sheet, the Manager of the Colliery on January 22, 1995 lodged a complaint with the Officer-in-Charge, Neturia Police Station, Purulia alleging as follows : To The Officer-in-Charge Neturia Police Station Neturia, Purulia. Sub. Signature :_______________________Signature_________________Manager Date : 23.1.1995 Date : ORDER Date ________ Signature_______________ Date____________________ Immediately prior to issuance of the charge-sheet, the Manager of the Colliery on January 22, 1995 lodged a complaint with the Officer-in-Charge, Neturia Police Station, Purulia alleging as follows : To The Officer-in-Charge Neturia Police Station Neturia, Purulia. Sub. F.I.R. Dear Sir, On 21.1.95 at about 7.30 a.m. a Truck No. BHG 4243 under the contractor employed by E.C.L. M. Dubey was lifted various parts of illegible from Ranipur Colliery Perbalia Colliery was parked in front of the cash office the premises of perbalia Colliery for the purpose of deposition of the materials in thereof Perbalia colliery on 22.1.95 But Sri M.Dubey contractor has reported in the morning hours of 22.1.95 that the same truck along with the said materials is missing. This is for your kind information and necessary actions please. Yours faithfully, Sd/- A.K.Sen Manager Parbelia Colliery. This was followed by another communication, by the same officer and on the same date, addressed to the said Officer-in-Charge. It reads as follows : The Officer-in-Charge, Neturia Police Station, Neturia, Purulia. Reference to the earlier F.I.R. No.PAB/MGR/95/FIR/155 dated 22.1.95 from the end of the Manager, Parbelia Colliary. By the statements recorded of Sri Sitaram Singh, Security Guard on duty in 2nd shift and Sri Bindeswar Shaw, Security Guard on duty in the 3rd shift in the Cash Office, Parbalia, this has been revealed that the Truck No.BHG-4245 left the Colliery premises at about 11-30 to 11-45 p.m. and at that time Sri M. Dubey, Contractor of E.C.L. alongwith the Driver and Helper of the said truck was with the truck. This is for your further information and immediate necessary action please. Yours faithfully (A.K.Sen) Manager Parbelia Colliery. A further communication of even date, addressed to the said Officer-in-Charge, by another officer of the colliery was issued which reads thus : The Officer-in-Charge, Neturia Police Station. Sub : F.I.R. Dear Sir, Further to F.I.R. nos. PAB/MGR/95/FIR/155 & PAB/MGR/95/156 dated 22.1.95 lodged by Manager, Parbalia on the missing Truck BHG-4243, I have to inform you that the truck in question was loaded at Ranipur Colliery with the materials listed below. It was sent to Parbelia Colliery under Colliery Gate Pass No.1478 on 21.1.95. The materials were received by Sri Mithilesh Dubey, Contractor. As reported earlier the truck was parked in front of Parbelia Cash Office. It was sent to Parbelia Colliery under Colliery Gate Pass No.1478 on 21.1.95. The materials were received by Sri Mithilesh Dubey, Contractor. As reported earlier the truck was parked in front of Parbelia Cash Office. As per statement of our Security Guard named Sri Bindeswar Shaw that the truck was taken away by Sri Mithilesh Dubey at about 11.45 p.m. on 21.1.95 with all the materials. The truck was loaded at Ranipur with the following materials :- 1) 30 lb rail (10 ft) - 103 nos. 2) Haulage pinion - 1 no. 3) Haulage Drum check - 4 pcs. 4) Endless bracket - 2 pcs. The approximate value of the materials is Rs. 1,75,000.00. You are requested to take necessary action in the matter. You are also requested to hand over the material to Parbelia Colliery Manager on Jimma. cc. Officer-in-Charge, CISF, Parbelia Yours faithfully, Camp- For information and necessary action. (M.K. Sinha) cc. General Manager, Sodepur Area cc. Manager, Parbelia/Ranipur. It appears from the report dated February 23, 1995 of the Enquiry Officer i.e. Deputy Personnel Manager, Dubeswari Colliery that the petitioner had submitted two replies, one on 24/1/1995 and the other on 3/2/1995. He had also given his statement during preliminary enquiry, which was recorded. The Enquiry Officer while writing his report considered the replies and the statement of the petitioner. The Enquiry Officer concluded his report by holding that the petitioner was guilty of misconduct under clause 17(i)(a) of the Standing Orders, though not guilty of the other charge of causing damage. 3. IT would be relevant to extract below the finding returned by the said officer. To the extent relevant, it reads : In his earlier reply dated 24/1/1995, Sri Bindeswar Shaw stated the fact that he was called by Sri Sitaram Singh at 11 p.m. from the shop of one Murali Bhakat for taking charges of 3rd shift. He also admitted that he did not take charge of the truck, which was standing adjacent to cash office. At 11 p.m. Sri Sitaram Singh left his duty place and went home. When Sri Shaw came there before that Sri Sew Narayan Mishra had already come for 3rd shift duty in the office. He also admitted that he did not take charge of the truck, which was standing adjacent to cash office. At 11 p.m. Sri Sitaram Singh left his duty place and went home. When Sri Shaw came there before that Sri Sew Narayan Mishra had already come for 3rd shift duty in the office. Sri Shaw further submitted the fact in his reply that at about 11.30 P.M. at the repeated advice of Sri Sew Narayan Mishra he allowed the truck to be driven with loaded materials out of the colliery premises. But Sri Shaw further submitted one amended (a type of rejoinder) reply stating that Sri Sitaram Singh was present, when truck was allowed to be driven away and Sitaram did leave his duty at the end of shift at 12 midnight. 4. DURING his statement before me, Sri Bindeswar Shaw confirmed that his amended reply is correct and he relied on it. However, he again changed his statement before me saying that he was not aware of the truck and not seen any truck was driven out of colliery premises in his presence. During cross6 examination he further submitted that his previous statement dated 22.1.95 was partially wrong. The examination of the Accused workmen forced me to come to conclusion that Accused has tried to mislead me by changing his statement thrice and I am convinced that his statement before me is not full of truth and in that circumstances, I have no alternative but to rely on the documentary evidences i.e. statement recorded earlier and his earlier reply of the charge-sheet, which has now become vital in this domestic enquiry. Now, the point of consideration is that whether charges as given in the chargesheet have been proved or not? 1) 17(I)(a)-Dishonesty in connection with employers property? After reexamining the management and defence witnesses and document produced before me, I am fully convinced that Sri Bindeswar Shaw is connived with Sri Sew Narayan Mishra and allowed the truck to be driven out of the colliery premises at 11.30 P.M. Hence charge of dishonesty under section 17(I)(a) has been proved. 1) 17(I)(a)-Dishonesty in connection with employers property? After reexamining the management and defence witnesses and document produced before me, I am fully convinced that Sri Bindeswar Shaw is connived with Sri Sew Narayan Mishra and allowed the truck to be driven out of the colliery premises at 11.30 P.M. Hence charge of dishonesty under section 17(I)(a) has been proved. 2) 17(i)(i) Causing wilful damage to property of the employer> After going through the statements of the Management as well as defence witness, the documents and reply dated 24.1.95 of chargesheet dated 23.1.95 produced before me, I found that Sri Bindeswar Shaw, Security Guard, who came on duty on 21.1.95 at 11.30 P.M. though he was deployed in 3rd shift i.e. 12 mid-night to 8 A.M. next morning, allowed the truck loaded with colliery materials to be driven away from colliery premises at the insisted instances of Sri Sew Narayan Mishra, other guard of 3rd shift, who also came on duty much before his own shift (IIIrd shift) hence causing wilful damage to the property of the employer has not been proved. I, therefore, have no hesitation in holding Sri Bindeswar Shaw guilty of misconduct under section 17(i) (a) of the Standing Order. This is my findings. The entire case file along with enquiry proceeding and other related papers in original is sent herewith. Submitted before Agent, Parbelia Group. (D.D. Roy) Dy. Personnel Manager/Enquiry Officer. Dubeswari Colliery I have to decide whether the petitioner was denied reasonable and adequate opportunity in the disciplinary proceedings and further as to whether the report of enquiry suffers from perversity, so as to merit interference. True it is that the petition is ill-drafted and points deserving consideration have not been taken. Even the enquiry report is not part of the writ petition. 5. HOWEVER, the respondents having asserted before me that procedural fairness was duly adhered to, I had called upon them to satisfy me in this behalf based on the principle that he who asserts must prove. Time to file counter affidavit was extended from time to time and ultimately it was filed after availing four chances and on payment of costs. 6. Time to file counter affidavit was extended from time to time and ultimately it was filed after availing four chances and on payment of costs. 6. FROM the complaints lodged before the police it is clear that the respondents were seized of the information that the truck left the colliery premises between 11.30 and 11.45 P.M. Yet, for some unknown reason, the respondents charged the petitioner with misconduct committed by him during his duty hours i.e. the 3rd shift from midnight till 8.00 A.M. It could well be that the respondents being aware of the fact that the petitioner was not on duty at the relevant time and hence no charge of misconduct could be levelled against him based thereon charged him with misconduct committed by him during duty hours. If the time of occurrence had been mentioned as between 11.30 and 11.45 P.M., no wonder it would have failed without much ado in the absence of any provision in the Standing Orders making a security guard responsible for dereliction of duty even during off-duty hours. Be that as it may. Provisions of the Evidence Act are not applicable in respect of a domestic enquiry and the charge need not be proved beyond reasonable doubt. Standard of proof in a domestic enquiry is different from a criminal trial, yet, a finding in relation to establishment of the charge(s) against a delinquent, even based on preponderance of probability, must rest on some legal evidence. No finding of guilt can be returned on the basis of surmises and conjectures, and mere suspicion cannot take the place of proof even in a domestic enquiry has been declared to be the law by the Supreme Court in Union of India vs H.C. Goel, AIR 1964 SC 364 and Narinder Mohan Arya vs United India Assurance Company, (2006) 4 SCC 713 . 7. I shall proceed to determine the issues before me keeping in mind the above principles. It is clear that the enquiry report, extracted supra, is rather cryptic. 8. HOWEVER, that by itself would not justify interference. Just as prolixity does not necessarily lead to a report being held sound, brevity of the same does not make it necessarily bad. 7. I shall proceed to determine the issues before me keeping in mind the above principles. It is clear that the enquiry report, extracted supra, is rather cryptic. 8. HOWEVER, that by itself would not justify interference. Just as prolixity does not necessarily lead to a report being held sound, brevity of the same does not make it necessarily bad. The only requirement of law is that the findings in the report must have the support of reasons, though not in great detail but reflecting application of mind, while linking the misconduct/offending act alleged to have been committed with the delinquent. I am conscious that it is not the function of a Court of Writ to re-appraise evidence. But the Court would be justified in directing its enquiry to ascertain whether the finding arrived at by the Enquiry Officer is based on any evidence or not i.e. whether a case of finding of guilt on no evidence is made out or not. 9. SINCE the enquiry proceedings are part of the counter affidavit filed by the respondents, I have perused the same. Pertinently, the Enquiry Officer has not discussed the evidence tendered by the prosecution to hold the petitioner guilty. I have not found any statement worth the name in the oral evidence of the sole management witness, Sri Phatik Chandra Das that remotely suggests the petitioners involvement in allowing the truck with materials to move out from the colliery premises resulting in loss to the colliery. He had returned home after duty much earlier and his testimony, rightly in my view, has not even been referred to by the Enquiry Officer at all in the report. The management representative, it appears, deposed as a witness. Without entering into the controversy as to whether such representative could have adduced evidence as a witness, possibly with the view to fill up the gaps in the prosecution evidence, I do not find that he was present at the time the truck moved out of the colliery premises. Whether nor not the petitioner had any role in the matter could obviously not been testified by him. However, he was the person who recorded the statement purported to have been given by the petitioner the morning after the date of occurrence. Nevertheless, his testimony has alo not been relied on by the Enquiry Officer. Whether nor not the petitioner had any role in the matter could obviously not been testified by him. However, he was the person who recorded the statement purported to have been given by the petitioner the morning after the date of occurrence. Nevertheless, his testimony has alo not been relied on by the Enquiry Officer. Similar is the case with the documentary evidence adduced by the prosecution. The Enquiry Officer quite appropriately did not even refer to any particular document to drive home the charge against the petitioner. The finding of guilt, as can be gathered from the report, is based on the petitioners inability to raise acceptable justification and his attempt to mislead the Enquiry Officer by shifting stands according to his convenience. 10. I have no hesitation to hold that so far as the prosecution is concerned, it is a case of no evidence and thus it cannot be said to have adduced material worthy enough to establish its case before the Enquiry Officer. Now the question is how far the Enquiry Officer was justified in returning the findings he did based on prevaricating stands taken by the petitioner and his alleged attempt to mislead the Enquiry Officer. There are weighty reasons for which I consider it appropriate to hold that the report suffers from perversity and, accordingly, ought not to have been made the basis for dismissal of the petitioner from service by the disciplinary authority. 11. I believe law to be settled that initially the burden lies on the prosecution to adduce evidence before the Enquiry Officer to establish its case and that although the burden in given cases might shift on the delinquent to adduce evidence in support of what he asserts, the Enquiry Officer must rest his findings on the materials before him and would be justified in holding the delinquent guilty based on preponderance of probability. But at the same time it must also be borne in mind that if the prosecution fails to establish its case, the charge against the delinquent ordinarily ought not to be deemed proved based on weakness of the defence. But at the same time it must also be borne in mind that if the prosecution fails to establish its case, the charge against the delinquent ordinarily ought not to be deemed proved based on weakness of the defence. Even though the Enquiry Officer may be justified in a given case to draw adverse inference against the delinquent based on the holes in the defence case, he cannot travel beyond the charges and return a finding of guilt assuming certain facts and circumstances to exist which are at variance with the statement of allegations/ imputations of misconduct, considered to be an integral part of the charge-sheet. This is based on the salutary principle that a finding of guilt should not be recorded on the failure of the delinquent to explain what he was never asked to explain. 12. HERE, the finding of guilt was returned by the Enquiry Officer on the basis of prevaricating stands taken by the petitioner at different stages as evident from the report. The Enquiry Officer felt that the petitioner attempted to mislead him thereby. That could be true, but mere fact of a delinquents purported attempt to mislead the Enquiry Officer, without anything more, would not justify a finding that the charge stands proved. The Enquiry Officer must be held to have committed an error of law in this behalf. Even otherwise, on merits, there is hardly ground to accept the finding of the Enquiry Officer. The petitioner in course of enquiry proceedings had categorically resiled from the statement recorded on the eve of the charge-sheet and his version in the reply dated January 24, 1995 to the charge-sheet and had submitted that the reply dated February 3, 1995 should be treated as authentic (page 40 of the counter affidavit). There is no reason indicated in the report as to what prevented the Enquiry Officer from proceeding on the basis of the reply dated February 3, 1995 as the petitioners answer to the charges. Reply to the charge-sheet, it is well known, is solicited to form an opinion as to whether enquiry is required to be conducted or not. If the delinquent admits the charge, there may not be any requirement to conduct enquiry and final order based on such admission may be passed. Reply to the charge-sheet, it is well known, is solicited to form an opinion as to whether enquiry is required to be conducted or not. If the delinquent admits the charge, there may not be any requirement to conduct enquiry and final order based on such admission may be passed. However, it is not the law that a delinquent is bound by what he says in his reply and that in course of enquiry proceedings he may not raise a defence that runs counter to the one found in his reply. It has to be held that the Enquiry Officer relied on extraneous material while discarding relevant material and that is a serious infirmity in the process of making decision. 13. ALSO, it appears from the statement of Mr. Das that he had advised Sri Sitaram Singh who was on duty at the relevant point of time to guard the truck (page 30 of the counter affidavit). The petitioner stated that he was never given charge regarding it (page 39 of the counter affidavit). There is no indication in the enquiry report how these evidence were dealt with by the Enquiry Officer. 14. THE report here fails to satisfy the tests laid down by the Supreme Court in Anil Kumar vs. Presiding Officer, AIR 1985 SC 1121 . Mere reference to the evidence that was adduced by the prosecution without discussing how the same is relevant renders the report vitiated. This affords sufficient ground to interfere with the report. That apart, the Enquiry Officer appears to have misdirected himself on another front. In the instant case, the findings arrived at by him to the effect he was fully convinced that Sri Bindeswar Shaw is connived with Sri Sew Narayan Mishra and allowed the truck to be driven out of the colliery premises at 11.30 P.M. Hence charge of dishonesty under section 17(i)(a) has been proved and that the petitioner came on duty on 21.1.95 at 11.30 P.M. though he was deployed in 3rd shift i.e.12 mid-night to 8 A.M. next morning, allowed the truck loaded with colliery materials to be driven away from colliery premises appear to be clearly at variance with the imputations in the charge-sheet whereby it was alleged that the petitioner during 3rd shift duty from 12 midnight to 8.00 hours had allowed the concerned truck to leave the colliery premises. There was no charge of connivance. There was no charge of connivance. There was no charge that even during the period when the petitioner is not on duty, he was required to exercise due diligence in ensuring that property of the colliery is not subjected to loss or damage. Even if the finding of the Enquiry Officer is assumed to be correct, the proper course should have been to record that the charge, as levelled, on the basis of the imputations contained in the charge-sheet is not proved so as to give an opportunity to the management to amend the charge-sheet by incorporating therein the relevant factual details. 15. ABOVE all, the allegation levelled against the petitioner could not have been said to be proved since during his duty hours he did not commit any act for which he should have been held responsible. It has not been brought to my notice that in terms of the Standing Orders, a guard who is not on duty would be responsible for loss or theft of companys materials. The finding given by the Enquiry Officer if accepted on face value at the highest reveals that the petitioner indulged in overt acts prior to start of his duty/shift. It is, therefore, clear that based on a finding which was at variance with the statement of imputations, the petitioner has been punished which is unsustainable in law. Reference in this connection may be made to the decision of this Court in Director (Inspection and Quality Control) Export Inspection Council of India vs. Kalyan Kumar Mitra, 1987 (2) CLJ 344, since approved by the Supreme Court in Narinder Mohan Arya (supra). It was ruled there that the enquiry officer is not permitted to travel beyond the charges and any punishment imposed on the basis of a finding which was not the subject-matter of the charges is wholly illegal. 16. LET me now consider the next stage i.e. post-submission of enquiry report. There appears to be gross violation of principles of natural justice in conducting proceedings against the petitioner. By letter dated August 17/18, 1995, the report of enquiry was forwarded to the petitioner seeking his comments. 16. LET me now consider the next stage i.e. post-submission of enquiry report. There appears to be gross violation of principles of natural justice in conducting proceedings against the petitioner. By letter dated August 17/18, 1995, the report of enquiry was forwarded to the petitioner seeking his comments. In his representation dated May 24, 1995 addressed to the General Manager, Sodepur Area, received by his office on the same date, the petitioner while acknowledging receipt of the said letter alongwith enquiry report on May 23, 1995 prayed for 7 (seven) days time to submit his comments. Nothing has been brought on record to disprove the petitioners assertion regarding date of receipt of the report of enquiry. The assertion thus has to be accepted as true. The General Manager does not appear to have passed any order on the petitioners request. Instead, it appears from the document at page 51 of the counter affidavit that even on May 22, 1995 i.e. before receipt of the enquiry report by the petitioner, the final order of dismissal had been dictated and printed and it was post dated by the General Manager while he signed it on May 29, 1995. Nothing can be more brazen than this. The report of enquiry was thus forwarded to the petitioner to comply with a legal formality, although the decision to dismiss him from service was a foregone conclusion. The action of the respondents is thus indefensible. Mr. Bag, learned Advocate appearing for the respondents, contended that the Court of Writ ought not to interfere in a case where the trust and faith reposed by the employer in a security guard is tinkered with by him resulting in loss of confidence. He relied on several decisions in support of his submission that I ought not to interfere and that the writ petition merits dismissal. 17. I shall now consider whether the said decisions are of any assistance or not. First, he relied on the decision in Anand Prakash Sexana vs. Union of India and ors., 1988 (1) CLJ 45 , in support of the proposition that where one view or the other can reasonably be taken on the basis of evidence and materials on record and the authority in the domestic enquiry has taken one such view, the Writ Court should not interfere by substituting its own view. There cannot be any dispute with this proposition of law but question is whether the view taken by the Enquiry Officer is a possible view which could have reasonably been taken on the basis of the materials on record and evidence adduced in course of enquiry. The answer to this question, for reasons discussed above, cannot but be in the negative. 18. NEXT, he relied on the decision in Surendra Chandra Das vs. State of West Bengal and ors, 86 CWN 232. This Court has failed to comprehend as to how the law laid down therein supports the case of the respondents. There, the chargesheet was quashed on the ground that it was issued with a close mind and depicted bias against the petitioner. I do not propose to hold that the chargesheet issued against the petitioner suffered from the vice of depicting bias and, therefore, reliance on this decision is misplaced. The decision in K.S. Swaminathan vs. Dy. Inspector of Police, (1996) 11 SCC 498 was next in line. There, the Supreme Court ruled that interference at the stage of framing charge-sheet should not be made except on grounds mentioned therein. Having regard to the fact that the petitioner has approached this Court after the final order of dismissal has taken effect, this decision hardly comes to the assistance of Mr. Bag. 19. THE Court of Writ was reminded of its powers of judicial review while referring to the decision in Govt. of India and anr. vs. George Philip, AIR 2007 SC 705 . The Apex Court reiterated that the High Court or the Administrative Tribunal while exercising powers of review ought not to sit in appeal over the decision of the employer to punish its employee. I am conscious of the law and, therefore, have examined the decision making process instead of sitting in appeal. There cannot be any iota of doubt that if a report of enquiry is found to be perverse and such report is made the foundation for terminating the service of an employee serving the State or any organisation under it thereby depriving him of his right to livelihood, the Court of Writ in appropriate cases ought to rise to the occasion and issue mandamus to secure justice in keeping with the promise, epitomised in the preamble of the Constitution. 20. 20. THE decision in State of Gujarat vs. Anand Acharya, (2007) 9 SCC 310 deals with extent of power in exercise of judicial review to interfere with an order of penalty passed pursuant to disciplinary proceedings. The Court held that if a particular penalty shocks its conscience, the Court would appropriately mould the relief either by directing the disciplinary/appropriate authority to reconsider the penalty imposed or to shorten the litigation, it may make an exception in rare cases and impose appropriate punishment with cogent reasons in support thereof. This ruling does not in any manner aid the respondents since I propose to interfere with the penalty imposed not on the ground that it is disproportionate to the gravity of offence allegedly committed by the petitioner but on the ground that fair procedure was not followed and that the procedure followed is contrary to the law laid down by the Supreme Court in its decision in Union of India and ors. vs. Gyan Chand Chattar, 2009 (5) Supreme 86 wherein it has been held as follows : In view of the above, law can be summarized that an enquiry is to be conducted against any person giving strict adherence to the statutory provisions and principles of natural justice. The charges should be specific, definite and giving details of the incident which formed the basis of charges. No enquiry can be sustained on vague charges. Enquiry has to be conducted fairly, objectively and not subjectively. Finding should not be perverse or unreasonable, nor the same should be based on conjunctures and surmises. 21. THERE is a distinction in proof and suspicion. Every act or omission on the part of the delinquent cannot be a misconduct. The authority must record reasons for arriving at the finding of fact in the context of the statute defining the misconduct. 22. THE order of dismissal based on the enquiry report cannot, therefore, be sustained. Accordingly, the order as well as the report stands set aside. The petitioner shall be reinstated in service forthwith. He shall be treated to be in continuous service since his dismissal till date of reinstatement. However, he shall be entitled to 50% of back wages payable to him, had he not been dismissed. Accordingly, the order as well as the report stands set aside. The petitioner shall be reinstated in service forthwith. He shall be treated to be in continuous service since his dismissal till date of reinstatement. However, he shall be entitled to 50% of back wages payable to him, had he not been dismissed. This is because the writ petition was allowed to be dismissed for default twice and had the petitioner been vigilant, the writ petition could have been disposed of earlier and in such event the respondents could have extracted work from him. In normal circumstances, I would have granted liberty to the respondents to proceed afresh against the petitioner but having regard to the lapse of time between filing of the writ petition and its disposal, it is not considered prudent to grant them such liberty. 23. I am further influenced by the fact that the other security guard who was proceeded against along with the petitioner, viz. Sri Sitaram Singh had also moved a writ petition before this Court in 1995 which was allowed by a learned Judge by order dated 24/1/2003. Replying to a query, Mr. Bag submitted that no appeal was preferred against such order and the said Sitaram Singh was reinstated in service. Also, he could not throw light as to whether any proceeding was initiated or not against the other security guard, viz. Sri Sew Narayan Mishra. In such circumstances, I consider it proper to allow the issue to rest here. The writ petition accordingly stands allowed. There shall be no order as to costs.