Devendra Pratap Singh, J. 1. Heard counsel for the petitioner, learned Standing counsel and Shri Rajiv Gupta for the respondents. 2. This petition is directed against orders dated 17.7.2004 and 16.5.2006 by which the services of the petitioner have been dispensed with and the consequential appeal has been rejected. 3. The facts in brief for decision are that the petitioner, who was working as a class IV employee in the Ghaziabad Judgship, during office allegedly assaulted one Vinod Kumar Tikku who was working as a Library Clerk in the Judgship on 21.3.2003 after an altercation and broke his office table and glass and scattered the records. This incident was allegedly witnessed by others and when it was brought to the notice of the District Judge, he forthwith caused a First Information Report to be lodged against the petitioner who was put up for medical examination where it was found that he had consumed alcohol. Thereafter a preliminary enquiry was held and after receiving the report of the preliminary enquiry, the petitioner was placed under suspension and a departmental enquiry was initiated. After framing of three charges, the petitioner submitted his written statement denying all the charges. The enquiry officer, after recording statement of witnesses and also recording the statement of the petitioner and also after examining the Doctor who had examined the petitioner, found the charges leveled against the petitioner to be proved and holding him guilty of misconduct under the Government Servants Conduct Rules, 1956, submitted his report to the District Judge on 30.4.2004. 4. The District Judge after considering the enquiry report and the findings recorded therein and the gravity of charge, issued a show cause notice as to why he be not dismissed from service. The petitioner submitted his reply to the show cause notice on 19.5.2004. After considering his reply the District Judge dismissed the petitioner from service vide order dated 17.7.2004. The petitioner thereafter approached this court on the administrative side through an appeal which has also been dismissed by the Administrative Judge vide a reasoned order dated 16.5.2006. 5. It is urged that the enquiry officer acted as a prosecutor and a Judge as no presenting officer or a defending officer was appointed and thus the enquiry was hit by principles of natural justice. 5. It is urged that the enquiry officer acted as a prosecutor and a Judge as no presenting officer or a defending officer was appointed and thus the enquiry was hit by principles of natural justice. In support thereof, he has relied upon a decision of the Apex Court in the case of State of U.P. and others Vs. Saroj Kumar Sinha [ 2010 ( 2) SCC 772 . The facts in Sinha's case ( supra) were entirely different. In Sinha's case the documents which formed the basis of the charges against the incumbent were never given to the delinquent upon demand and further no date, time and place was fixed for oral evidence and the incumbent was denied the opportunity to cross examine. It is in these circumstances that it was said that the department is required to produce evidence to prove charges to avoid the allegation that the enquiry officer acted as prosecutor as well as a Judge. In the said case it has not been held that in every case a prosecutor must be appointed as the requirement of appointing a prosecutor depends from case to case. In the case at hand, date, time and place was fixed where oral evidence was examined in the presence of the petitioner and in fact he cross examined one of the witnesses and he himself deposed before the enquiry officer. Assuming, for the sake of argument, that there was any breach of natural justice but that by itself would not be sufficient to set aside the order as the petitioner will have to prove what prejudice has been caused to him. The Apex Court in the case of Union of India and others Vs. Alok Kumar [ 2010 ( 5) SCC 349 ] held that even in case of breach of natural justice, the employee will have to prove what prejudice has been caused in the following words: "83. Earlier, in some of the cases, this Court had taken the view that breach of principles of natural justice was in itself a prejudice and no other "de facto" prejudice needs to be proved. In regard to statutory rules, the prominent view was that the violation of mandatory statutory rules would tantamount to prejudice but where the rule is merely directory the element of de facto prejudice needs to be pleaded and shown. In regard to statutory rules, the prominent view was that the violation of mandatory statutory rules would tantamount to prejudice but where the rule is merely directory the element of de facto prejudice needs to be pleaded and shown. With the development of law, rigidity in these rules is somewhat relaxed. The instance of de facto prejudice has been accepted as an essential feature where there is violation of the non-mandatory rules or violation of natural justice as it is understood in its common parlance." 6. So far as the appointment of the defending officer is concerned, there is nothing on record to show that at any point of time during the enquiry the petitioner sought appointment or engagement of a defending officer. Even in the pleadings the specifics are lacking. Further, the petitioner has not been able to plead or substantiate what prejudice was caused to him by non appointment of a defending officer. 7. Therefore, the above arguments cannot be accepted. 8. It is then urged that since the petitioner has been acquitted in the criminal case, he cannot be punished in the departmental proceedings which was in regard to the same incident. In support thereof he has relied upon a judgment of the Apex Court rendered in the case of G.M. Tank Vs. State of Gujarat [ 2006 ( 5) SCC 446 ]. In the opinion of the Court, the facts in Tank's case ( supra) were entirely different. In the said case the incumbent was charged for acquisition of movable and immovable properties disproportionate to his known sources of income under the Prevention of Corruption Act and a criminal complaint was also lodged under Section 5 of the Prevention of Corruption Act, 1947. The Court having found that the departmental proceedings and the criminal case was based on identical and similar set of facts and the charge in the departmental case was also identical and so also the evidence led before both the forums was identical where the criminal court acquitted the accused after a hot contest and trial. In these circumstances, after considering the ratio laid down in Capt. M. Paul Anthony Vs. Bharat Gold Mines Ltd. [ 1999 ( 3) SCC 679 ; the constitution bench decision in the case of R.P. Kapur Vs. Union of India [ AIR 1964 SC 787 ] and Corporation of the City of Nagpur Vs. In these circumstances, after considering the ratio laid down in Capt. M. Paul Anthony Vs. Bharat Gold Mines Ltd. [ 1999 ( 3) SCC 679 ; the constitution bench decision in the case of R.P. Kapur Vs. Union of India [ AIR 1964 SC 787 ] and Corporation of the City of Nagpur Vs. Ramchandra [ AIR 1984 SC 626 ] and distinguishing them it held that once the charge, the facts, the evidence were identical, it would not be appropriate for the departmental action to stand. However, recently the Apex Court in the case of Samar Bahadur Singh Vs. State of Uttar Pradesh and others [ 2011 ( 9) SCC 94 ] has held that mere acquittal in a criminal case cannot be a ground to end the departmental proceedings in case he has been acquitted in a criminal case in the following words: "7. Acquittal in the criminal case shall have no bearing or relevance to the facts of the departmental proceedings as the standard of proof in both the cases are totally different. In a criminal case, the prosecution has to prove the criminal case beyond all reasonable doubt whereas in a departmental proceedings, the department has to prove only preponderance of probabilities. In the present case, we find that the department has been able to prove the case on the standard of preponderance of probabilities. Therefore, the submissions of the counsel appearing for the appellant are found to be without any merit." 9. During the pendency of this writ petition, the petitioner was acquitted vide order dated 28.9.2010. From a copy of the judgment, which is annexed, it appears that the sole witness, the complainant, while deposing before the Trial Court, seven years after the incident, turned hostile and deposed that the petitioner slipped and fell down on his table which broke and record was scattered. He further deposed that he does not remember what abuses were hurled at him or whether the accused had threatened him and no injury was caused to him nor his medical examination was carried out. However, in the domestic enquiry two other eye witnesses were examined. He further deposed that he does not remember what abuses were hurled at him or whether the accused had threatened him and no injury was caused to him nor his medical examination was carried out. However, in the domestic enquiry two other eye witnesses were examined. Shri Mahesh Kumar Singh, Library Peon who stated that at about 10:15 the petitioner while entering the library started abusing the complainant and when he checked him, he ( the petitioner) caught him by the collar and thereafter he picked up a chair to hit the complainant but he was over powered. He also stated that the petitioner was smelling of liquor. The petitioner did not cross examine this witness. The other witness was Ram Ashish, peon in the Nazarat who deposed about the abuses being hurled. The Doctor also deposed that the petitioner was smelling of liquor though he was not under its influence. In these circumstances, it cannot be said that the charges, the evidence etc. were identical. The petitioner had also supported his complaint. In the present case the Court finds that charges were proved on the standard of preponderance of probabilities. 10. Considering the aforesaid facts and the law laid down on the issue, the court is not inclined to accept this argument of the petitioner. 11. Lastly, it is urged, that in the circumstances of the case, the punishment awarded to the petitioner is harsh. In support thereof, he has relied upon a Division Bench judgment of this Court rendered in the case of Sahdev Singh Vs. U.P. Public Service Tribunal [ 2001 ( 1) UPLBEC 865 ] and a Single Judge decision rendered in the case of Ex. Constable Driver Girwar Singh Tomar Vs. Union of India and others [2007 ( 5) ADJ 345]. In both cases the facts were totally different and no law for universal application has been laid down. The Apex Court in the case of Administrator, Union Territory of Dadra and Nagar Haveli Vs. Gulabhia M. Lad [ 2010 ( 5) SCC 775 ] has held that award of punishment is primarily a function of the management and the courts rarely interfere with it. The Apex Court in the case of Madhya Pradesh Electricity Board Vs. The Apex Court in the case of Administrator, Union Territory of Dadra and Nagar Haveli Vs. Gulabhia M. Lad [ 2010 ( 5) SCC 775 ] has held that award of punishment is primarily a function of the management and the courts rarely interfere with it. The Apex Court in the case of Madhya Pradesh Electricity Board Vs. Jagdish Chandra Sharma [ AIR 2005 SC 1924 ] while dealing with a case of assault upon a superior officer, the punishment of dismissal was held not to be harsh. Similarly our court in the case of Parshu Ram Pandey Vs. Sate of U.P. [ 2011 ( 5) ALJ 333 ] has held that assault and abuse of a senior officer is a serious misconduct and punishment of dismissal was proper. In the present case, the petitioner had abused and assaulted his superior officer within the office in full view of the employees. He broke office furniture, scattered the records and all this was done when he had consumed alcohol. Therefore, considering the facts, the punishment awarded does not appear to be harsh. 12. No other point has been urged. 13. For the reasons given above, this is not a fit case for interference under Article 226 of the Constitution of India. Rejected.