JUDGMENT By Court. -- Heard learned counsel for the parties. 2. This writ petition was preferred initially for directing the respondents to make payment of retirement benefits and to fix pension of the petitioner granting him Super Time Scale w.e.f. 22nd August, 1989. He had also made a claim for promotion to the Post of Assistant Engineer w.e.f. March, 1992. 3. Learned counsel for the petitioner submits that vide Annexure-11 dated 25th October, 1994, the said promotion was granted to him and his name is reflected at Serial No. 29. During the pendency of the writ application an order was passed under Rule 43(b) of the Bihar Pension Rule by the competent authority, which has been challenged by way of an Interlocutory Application No. 141 of 2003, which has been allowed on 30th October, 2009 to be incorporated in the main writ application. Learned counsel for the petitioner has vehemently opposed the impugned order of punishment dated 13th November, 2002 contained in Memo No. 4746(E). whereby the petitioner has been imposed with the punishment of recovery of Rs. 1,00,901.45 as half of the loss of Rs. 2,01,802.90/resufting out of the loss of 39.1373 metric tonnes of iron rod. For the rest half of recovery of the total amount punishment has been imposed upon the Assistant Engineer, who was also made liable under the same inquiry. It is also indicated in the order of punishment that he is only entitled to subsistence allowance for the period of his suspension from 17th December, 1990 to 16th March, 1998. 4. The short facts of the petitioners are that he joined as Junior Engineer in the service of the respondents erstwhile Government of Bihar and was working lastly at Goda where from he retired on 31st March, 1999. While the petitioner was posted at Godda, Giridih P.S. Case No. 224 of 1990 was lodged for the offences punishable under Section 409 of the Indian Penal Code on the basis of the written report of the Executive Engineer. Building Construction and Housing Department, showing shortage of 30.50 metric tone iron. The petitioner thereafter was placed under suspension for the said charges as well. 5. It is the contention of the petitioner that the allegations were relating to his period of posting at Giridih from where he was transferred in the year 1985. Building Construction and Housing Department, showing shortage of 30.50 metric tone iron. The petitioner thereafter was placed under suspension for the said charges as well. 5. It is the contention of the petitioner that the allegations were relating to his period of posting at Giridih from where he was transferred in the year 1985. Learned counsel for the petitioner submits that the said criminal case finally resulted in his acquittal by judgment and order dated 11th December. 1995 passed by the Judicial Magistrate, 1st Class, Giridih in G.R Case No. 2734/90/T.R. No. 10195 arising out of Giridih P.S. Case No. 224/90. A departmental proceeding in respect of the some charges was also initiated against him and inquiry report was submitted by the Enquiry Officer, which is contained at Annexure- A to the counter affidavit filed on behalf of respondent No. 5 on 2nd January, 2002. The said proceedings were initiated vide order No. 61 dated 5th April, 1991 for the same charges of having loss of 39.1373 metric tone of iron road and 31 bags of cement. Learned counsel for the petitioner has vehemently assailed the findings in the inquiry report which has led to the passing of the impugned order of punishment on the grounds inter alia that the inquiry has been concluded without any evidence being produced by the presenting oft1eer or the prosecution as would appear from paragraph 5 of the inquiry report itself. It is further submitted on behalf of the p8titioner that the Enquiry Officer has saddled the petitioner with the liability along with Assistant Engineer though the petitioner had been forcefully relieved from his duty after' his transfer from the said posting in May, 1983 without actually handing over of the charge of the petitioner and he cannot be made liable for that, it is further submitted that the Petitioner had himself instituted FIR for the alleged theft of articles in question but the Enquiry Officer has held him guilty of the same when the criminal Court has acquitted him for the charge of having caused misappropriation of the said goods. Learned counsel for the petitioner further submits that the inquiry report is based upon no evidence, since no evidence or witness were produced by the Prosecuting Officer. Learned counsel for the petitioner further submits that the inquiry report is based upon no evidence, since no evidence or witness were produced by the Prosecuting Officer. Learned counsel for the petitioner has relied upon the judgments rendered in the case of Janeshwar Das Aggarwal v. State of U.P., reported in AIR 1981 SC 1646 , wherein also, it was held that when it was not categorically proved that the articles which were said to be missing were properly accounted for during the period of posting of the delinquent, the delinquent officer/employee could not have been made responsible for acts of misappropriation of the same. Learned counsel for the petitioner has also relied upon the judgment of the Patna High Court rendered in the case of Shanker Prasad and others v. The State of Bihar and others, reported in 2011 (3) PLJR 807 , to submit that for the same set of charges when the petitioner has been acquitted by a judicial pronouncement for a criminal trial the allegation of theft against the petitioner for the loss of the said property in a departmental proceeding, cannot be said to be just, fair and proper to saddle him with the punishment of the recovery of half of the amount. Learned counsel for the petitioner has also relied upon the judgment rendered in the case of Ram Bilas Mandal v. The State of Bihar and others, reported in BBCJ 1994 658, to buttress his submission that when no witnesses are examined in respect of the charges before the Enquiry Officer by the prosecution then the finding of the Enquiry Officer are based on inference drawn and no punishment should be imposed based upon such inquiry. 6. Learned counsel for the respondents, on the other hand, submitted that the charges against the petitioner were in relation to loss caused because of the missing of 38.50 metric tones of iron rod and 31 bags of cement. However, it is not in dispute that the charges of missing of cement bags have not been found to be established against the petitioner. However, it is not in dispute that the charges of missing of cement bags have not been found to be established against the petitioner. Learned counsel for the respondents further submits that during the course of the inquiry the petitioner was given adequate opportunity to establish his innocence and the inquiry report which is brought on record as Annexure-A, would itself show that the Enquiry Officer has considered all' the relevant materials, evidence as well as the documents to come to a finding of the guilt of the petitioner as also the Assistant Engineer who was also responsible for goods for the period in question. It is 'submitted that the report of the Enquiry. Officer and the inference drawn upon him are based upon enough evidence and in writ jurisdiction, this Court should not interfere in the findings of the Enquiry Officer in the nature of an appellate authority. 7. I have heard learned counsel for the parties at length and gone through the relevant materials on record including the inquiry report, the impugned order of punishment as also the order passed in the criminal case by which the petitioner has been acquitted. 8. One of the questions to be considered in the instant controversy raised in the present writ application is whether in absence of any evidence adduced on behalf of the prosecution, the Enquiry Officer can arrive at a proper finding on his own based upon the documents and the oral statements by the delinquent as well the presenting officer. In that facts, which are brought on record, it appears that the charges in respect of the petitioner were in relation to missing of certain articles which were said to bin his custody during the relevant point of time which is approximately 38.50 metric tones of iron rod. It is one of the essential requirements of the departmental inquiry that the charges which are leveled against the delinquent employee are to be established by the prosecution by presenting evidence in respect of the same. It further appears from paragraph No. 5 of the inquiry report itself that no witness was produced by either side during the course of inquiry and the inquiry officer has acted upon the documents as well as oral statements made during the course of the inquiry. It further appears from paragraph No. 5 of the inquiry report itself that no witness was produced by either side during the course of inquiry and the inquiry officer has acted upon the documents as well as oral statements made during the course of the inquiry. It further appears that the Enquiry Officer has come to an inference that the petitioner had been responsible for custody of the alleged articles said to be missing for the period of March, 1982 to 1984. Thereafter the petitioner was transferred and a certain theft took place for which Fm was lodged on 5th January, 1984 and 6th September, 1984. The Enquiry Officer has come to a conclusion that facts of the alleged articles being missing on account of theft do not seem to have been established and there may be other reasons for shortage of iron rod. Accordingly, he has held the petitioner as well as Assistant Engineer guilty of the said charges and given his recommendation that both of them can be made liable for recovery of loss 50% each. It further appears that the order impugned annexed as Annexure-16 to time I.A., which has been subsequently challenged, discloses that the impugned order has been passed without dealing with any charges or reasons or any application of mind even briefly disclosing the defence of the petitioner or recording any reasons for rejection of the plea. 9. From perusal of the inquiry report and the impugned order, it is obvious that the inquiry officer has concluded the inquiry proceeding on behalf of the prosecution. Even the impugned order has been passed without discussing any of the charges, the defence of the petitioner and the reasons for imposing the said punishment upon the petitioner. The petitioner has relied upon the judgments which is contained at Annexure-17 in LPA No. 186 of 1999 vide judgment dated 14th December, 1999 rendered by a Division Bench of the Patna High Court. The Division Bench of the Patna High Court in the said case also found that the Disciplinary Authority did not apply its mind to all relevant materials on record and order of imposing punishment did not disclose the application of mind as it did not even discuss briefly the defence of the appellant or recorded any reason for rejection of the plea set up by the delinquent. In that view of the matter the punishment imposed upon the petitioner appears to be based upon an inquiry where no evidence was produced on behalf of the prosecution by examining any witness to establish the charges. Further the impugned order also docs not disclose any application of mind. 10. Accordingly the impugned order of punishment is set aside. The petitioner has retired in the year 1999 itself and at this stage it would be futile to remand the matter to the respondents to pass any order once again after 14 years of his retirement. In that view of the matter, the writ petitioner allowed. The petitioner shall be paid his remaining post retirement benefits due to him within a period of 16 weeks from the date of recent/production of a copy of this order. Petition allowed.