ORDER Heard learned counsel for the petitioner and the State. 2. The petitioner a District Engineer was placed under suspension and proceeded with departmentally on three charges. An enquiry report followed. Charge No. 1 was proved, charge No. 2 was partially proved and charge No. 3 was not proved. A second show cause notice for a difference of opinion on charge no. 3 followed leading to an order of punishment dated 8.11.2010 imposing stoppage of all increments with cumulative effect till his superannuation in 2015. Posting on non works post till superannuation and that nothing beyond subsistence allowance was payable for the period of suspension, which was to otherwise count for purposes of pension. 3. Learned counsel for the petitioner submits that the memo of charge was not accompanied by any documentary evidence or the oral evidence on which it was proposed to be proved. The only enclosures to the charge were five letters of the Commissioner, District Magistrate and the Chief Engineer which were the basis for the charge. These at best may have been supportive evidence of the charges which had otherwise to be proved in accordance with law. The charge memo did not fulfill the requirements of Rule 17(4) of the Bihar Government Servants (Classification, Control and Appeal) Rules, 2005 (hereinafter referred to as the “Rules”). The documents that the petitioner had asked for in relation to the charges were never furnished to him. The enquiry officer did not reject them as not relevant to the enquiry. The petitioner was left with no option but to submit his defence on the materials available to him. In that context he had mentioned that he did not require the documents in respect of charge no. 1. His objection with regard to non supply of documents with regard to charge no. 3 was also made during the enquiry. In his reply to the charges the petitioner had raised a specific defence at Paragraphs 5 and 8 that the authors of the letters on basis of which the charges were sought to be proved may be produced for cross examination. This was never done. 4. The charges have not been proved by the department in accordance with the procedure provided in Rule 17(14). 5. Referring to the second show cause notice it was urged that it does not contain any grounds for a difference of opinion on charge no. This was never done. 4. The charges have not been proved by the department in accordance with the procedure provided in Rule 17(14). 5. Referring to the second show cause notice it was urged that it does not contain any grounds for a difference of opinion on charge no. 3 and why the findings and reasons of the enquiry officer were not acceptable and on what basis on the same materials the department was of the opinion that the charge stood proved. 6. Counsel for the State submits that the petitioner had full opportunity to defend himself during the proceedings. No ground had been urged for any procedural impropriety causing him prejudice in his defence. A second show cause notice for a difference of opinion has also been given on charge no. 3. The findings in a departmental enquiry are based on a preponderance of probability only. The Court may not interfere with the order of punishment. 7. Rules 17(4) and 17(14) read as follows:- “17(4). The disciplinary authority shall deliver or cause to be delivered to the Government servant a copy of the articles of charge, such statement of the imputation of misconduct or misbehaviour and a list of documents and witnesses by which each article of charge is proposed to be sustained and shall require the Government servant to submit, within such time as may be specified, a written statement of his defence and to state whether he desires to be heard in person” 17(14) On the date fixed for inquiry, the oral and documentary evidence by which the articles of charge are proposed to be proved shall be produced by or on behalf of the disciplinary authority. The witnesses shall be examined by or on behalf of the Presenting Officer and may be cross-examined by or on behalf of the government servant. The Presenting Officer shall be entitled to re-examine the witnesses on any points on which they have been cross-examined, but not on any new matter, without the leave of the inquiring authority. The inquiring authority may also put such questions to the witnesses, as it thinks fit.” 8. It is therefore the obligation of the respondents not only to deliver the articles of charge, the imputations of misconduct or misbehaviour but also a list of documents and witnesses by which the charge is proposed to be proved and sustained. 9. Charge no. The inquiring authority may also put such questions to the witnesses, as it thinks fit.” 8. It is therefore the obligation of the respondents not only to deliver the articles of charge, the imputations of misconduct or misbehaviour but also a list of documents and witnesses by which the charge is proposed to be proved and sustained. 9. Charge no. 1 stated that on 10.6.2006 the petitioner was absent at the Flood Control meeting because of which matters could not be reviewed. On 11.6.2006 when the District Magistrate tried to locate him he was found absent at the headquarters. It was revealed on search that he generally resides at Patna. On 16.6.2006, the District Magistrate again inquired and found him absent. Other office staff informed that he was not present in the office on 14.6.2006 and 15.6.2006. It was a case of unauthorized absence. Charge no. 2 alleged that he did not install barricade and signboard at the place where N.H-82 had been affected by flood water resulting in the death of eight occupants of a vehicle. Charge no. 3 stated that he was unable to disclose the name of the landlord at Bihar Shariff. He failed to meet the targets for completion of works and could not even remember what targets had been fixed for which works thus violating government instructions. 10. The petitioner filed his reply to the same taking a specific objection that the authors of the five reports on which the charges were founded be produced for cross-examination. He denied the charges during the enquiry also furnishing an explanation in his defence. 11. On Charge no. 1 he took the defence that he had not been intimated to be present at the meeting on 10.6.2006. No copy of the letter had been communicated to the office of the Executive Engineer at Bihar Sharif where he was posted. On 11.6.2006 despite it being a Sunday, he had inspected N.H.110. On 12.6.2006 the Chief Engineer had inspected and approved repair works. He denied absence from 14.6.2006 to 16.6.2006. On 14.6.2006 he claimed to have spoken to the Secretary, Road Construction Department. On 16.6.2006 he was present in the office of the Chief Engineer for discussion on repair works. On charge no. 2 he took the defence that he had done the Barricading and installed a signboard at the place where the N.H. was damaged due to flood waters. On 14.6.2006 he claimed to have spoken to the Secretary, Road Construction Department. On 16.6.2006 he was present in the office of the Chief Engineer for discussion on repair works. On charge no. 2 he took the defence that he had done the Barricading and installed a signboard at the place where the N.H. was damaged due to flood waters. On Charge no. 3 he took the defence that he had informed the name of the locality where he resided at Bihar Sharif. He had disclosed the surname of the landlord as he could not remember the full name mentioning that he was a retired driver. Proof of residence from the landlord was furnished in the form of a certificate marked as Exhibit-8. He was making full efforts to ensure that the works were completed by the contractor within the time fixed. 12. Under Rule 17(4) the charge sheet was required to be accompanied by list of documents and witnesses by which each article of charge was to be proved. The letters annexed to the memo of the charge, were the basis of the charge. They amounted to mere allegations. Under Rule 17(14) the letters had to be proved for its contents by the presenting officer leading evidence and thereafter the question of his defence would arise. These procedures have not been followed in the departmental proceeding. 13. If the petitioner was absent from office on the specified dates and there was a report for his absence, which he denied and gave an explanation for the same, it was for the presenting officer to prove his absence by leading evidence of others in the office confirming his absence or at least producing the attendance register. The letter of the District Magistrate for his absence was not proof but had to be proved. The Court is not concerned with whether his defence was acceptable or not. The only question is if the charge had been proved in accordance with law before he was required to rebut. 14. On charge no. 2 the Deputy Development Commissioner acknowledged that a sign board has been put up by the petitioner. It was for the presenting officer to establish by evidence of the concerned that no barricading had been put up especially when the petitioner contended he had done so and installed red flags also. 14. On charge no. 2 the Deputy Development Commissioner acknowledged that a sign board has been put up by the petitioner. It was for the presenting officer to establish by evidence of the concerned that no barricading had been put up especially when the petitioner contended he had done so and installed red flags also. The letter of the DDC further notices that the driver of the fateful vehicle refused to heed warnings. The enquiry officer wrongly shifted the burden on the petitioner that he failed to lead evidence in proof of barricading. 15. Likewise on the third charge, the petitioner furnished the name of his residential locality, certificate from the landlord, the surname of the landlord and his retired status. The enquiry officer acknowledges that the presenting officer did not deny it. The petitioner did take a defence that he would pursue matters with the contractor. 16. The requirement for the presenting officer to have proved the letters on which the Enquiry Officer relies has been noticed in (2009) 2 SCC 570 ( Roop Singh Negi v. Punjab National Bank) as follows:- “14. Indisputably, a departmental proceeding is a quasi-judicial proceeding. The enquiry officer performs a quasi-judicial function. The charges levelled against the delinquent officer must be found to have been proved. The enquiry officer has a duty to arrive at a finding upon taking into consideration the materials brought on record by the parties. The purported evidence collected during investigation by the investigating officer against all the accused by itself could not be treated to be evidence in the disciplinary proceeding. No witness was examined to prove the said documents. The management witnesses merely tendered the documents and did not prove the contents thereof. Reliance, inter alia, was placed by the enquiry officer on the FIR which could not have been treated as evidence.” 17. This requirement of law has been reiterated in (2010) 2 SCC 772 (State of Uttar Pradesh v. Saroj Kumar Sinha) as follows:- “28. An inquiry officer acting in a quasi-judicial authority is in the position of an independent adjudicator. He is not supposed to be a representative of the department/disciplinary Authority/Government. His function is to examine the evidence presented by the Department, even in the absence of the delinquent official to see as to whether the unrebutted evidence is sufficient to hold that the charges are proved. He is not supposed to be a representative of the department/disciplinary Authority/Government. His function is to examine the evidence presented by the Department, even in the absence of the delinquent official to see as to whether the unrebutted evidence is sufficient to hold that the charges are proved. In the present case the aforesaid procedure has not been observed. Since no oral evidence has been examined the documents have not been proved, and could not have been taken into consideration to conclude that the charges have been proved against the respondents.” 18. The second show cause notice was issued on proved charge no. 1, partially proved charge no. 2 and for a difference of opinion on charge no. 3 to the extent that the enquiry officer held that it would not be proved that he was not residing at Bihar Sharif. The ground for difference of opinion did not mention what material had not been considered by the enquiry officer. It only reiterated the charge. It was therefore not a second show cause notice for a difference of opinion in accordance with law. 19. In conclusion, it is held that the memo of charge was not accompanied with necessary evidence under Rule 17(4). The letters of the concerned which formed the basis of the charge were not proved during enquiry in accordance with Rule 17(14). The second show cause notice on charge no. 3 was not in accordance with law as it did not spell out what evidence or material was not considered or wrongly considered by the enquiry officer. The order of punishment dated 8.11.2010 is therefore not sustainable and is set aside. 20. The order passed on the statutory review application of the petitioner is non- speaking in nature, unreasoned hardly of any help. 21. The matter is remanded to the disciplinary authority for holding the departmental enquiry afresh in accordance with law and the discussions contained in the present order. It is expected that the respondents shall conclude the same expeditiously preferably within the time fixed in Government circulars for completion. 22. The writ application is allowed.