JUDGMENT 1. - This writ petition has been filed by petitioner Raj Murti Mishra assailing order dated 12.01.1994 of the disciplinary authority whereby he has been awarded penalty of reduction in time scale of pay by two stages from Rs. 1120/- to Rs. 1080/- for a period of two years with cumulative effect, order dated 04.03.1994 whereby appeal filed by him against said order was dismissed by the appellate, order dated 23.02.1995 whereby revision was dismissed by the revisional authority and order dated 06.05.1996 whereby his mercy petition was also dismissed. 2. Facts of the case are that the petitioner was was working as constable in the railway protection force. A preliminary enquiry report was submitted to the disciplinary authority on 28.09.1993 with regard to one almirah lying in the Fire Station 'A' on allegation that certain stolen goods were stored therein. On the assumption that the almirah belonged to the petitioner, he was served with the charge-sheet on 10.09.1993. One V.N. Dubey, an officer of the rank of I.P.F., was appointed as enquiry officer. It was alleged that one wooden piece, an iron plate, two cane of five liter and two packet of aluminum, lying in that almirah, belonged to petitioner. These were railway properties and unlawfully obtained by him. Petitioner submitted a written reply to the charge-sheet denying the charges. The department examined number of witnesses, namely, Shri N.K. Pillai, Inspector (Fire),Shri N.B. Sawant, Sub Inspector (Fire), Shri S.N. Yadav, Shri Jafrool Hussain, Head Constable (Fire), Shri Ganga Ram Patil, Head Constable, Madhukar T., Constable, Harsh Singh and Hari Das Ganpat Rao Bhasme. The statement of petitioner was also recorded. He submitted defence in writing. The enquiry officer in his report found the petitioner guilty of the charge. The Divisional Security Commissioner supplied copy of the enquiry report dated 20.12.1993 to the petitioner calling upon him to submit his representation on the findings. Petitioner submitted representation on 01.01.1994 reiterating his contentions raised in the written statement and denied the charges. The disciplinary authority by order dated 12.01.1994 awarded him penalty of reduction in pay scale by two stages for the period of two years with cumulative effect. Thereafter his appeal, revision petition, review petition and mercy petition were also dismissed by afore-mentioned orders. Hence, this writ petition. 3. The disciplinary authority by order dated 12.01.1994 awarded him penalty of reduction in pay scale by two stages for the period of two years with cumulative effect. Thereafter his appeal, revision petition, review petition and mercy petition were also dismissed by afore-mentioned orders. Hence, this writ petition. 3. Shri Reashm Bhargava, learned counsel for petitioner, argued that the impugned orders suffer from non-application of mind inasmuch as there was no evidence against the petitioner, but even then he has been held guilty and awarded penalty. The enquiry officer did not appreciate that there was no positive/legal/substantive evidence against the petitioner. Not only this, there was no direct or circumstantial evidence to connect the petitioner with the items that were found stored in the almirah at Fire Station 'A'. The enquiry officer failed to notice that the petitioner, at the relevant time, was not posted at the Fire Station 'A', where alleged almirah was lying. There was no mark of any kind to show connection of that almirah with the petitioner nor was it officially allotted to him. The enquiry officer has proceeded to hold the petitioner guilty only on hearsay evidence. Both, the disciplinary authority as well as the appellate authority, have failed to consider that the petitioner could not be held guilty and penalised in a case where there was total lack of evidence. None of these authorities considered the submissions of the petitioner raised in his written defence. Except Constable Ganga Ram Patil, no other witness has stated that he saw the petitioner visiting the Fire Station 'A' or operating the almirah. 4. Learned counsel for petitioner further submitted that the enquiry officer was biased against the petitioner. Even though the Presenting Officer was appearing on behalf of the department, but all the witnesses were cross-examined by the enquiry officer himself and that too at great length only with a view to extracting some incriminating statement against the petitioner. The conduct of the enquiry officer thus vitiated the enquiry proceedings. The only witness, who supported the allegation against the petitioner, is Ganga Ram Patil, had a grudge against the petitioner because only few days before the incident, the petitioner had reported to the higher officer about his misconduct. The conduct of the enquiry officer thus vitiated the enquiry proceedings. The only witness, who supported the allegation against the petitioner, is Ganga Ram Patil, had a grudge against the petitioner because only few days before the incident, the petitioner had reported to the higher officer about his misconduct. Learned counsel in this connection has referred to the statements of Ganga Ram Patil (Exhibit-13) and submitted that in last question of the cross examination he admitted that the petitioner had made a complaint for his coming late on duty by ten minutes on 30.06.1993. 5. Learned counsel for the petitioner, in support of his arguments, has relied on judgments of the Supreme Court in State of Madhya Pradesh v. Chintaman Sadashiva Waishampayan, AIR 1961 SC 1623 , Union of India and Others v. Naman Singh Shekhawat (2008) 4 SCC 1 , The State of Punjab and Others v. Bakhtawar Singh and Others b" (1972) 4 SCC 730 , Union of India v. H.C. Goel" AIR 1964 SC 364 , and that of other High Courts in P. Sreeramulu and Another v. State of Andhra Pradesh AIR 1970 AP 114 , Hirendra Nath Halder v. Union of India and Others (2007) 1 WBLR (Cal) 424 , Santosh Kumar Dubey v. Steel Authority of India Limited and Others" 2009 (1) AIR Jhar R 44 , A.P.E.P. Discom Ltd., Visakhapatnam and Another v. Varahagiri Mangaiah, Amalapuram and Another 2014 (1) ALT 90 (DB) . 6. Therefore, it is prayed that the writ petition be allowed as prayed for. 7. Shri Shailesh Prakash Sharma, learned counsel for respondent Railways, submitted that there is ample evidence on record to prove charge against the petitioner. In this connection, learned counsel has referred to enquiry report (Exhibit-17) and submitted that even if Ganga Ram Patil was only witness to support the charges, that would suffice proof of the charges. Relying on the judgment of the Supreme Court in - 2011 (10) SCC 250, learned counsel argued that if there is some evidence, the High Court in writ jurisdiction under Article 226 of the Constitution of India cannot go into the correctness of the order of penalty passed in the disciplinary proceedings, as sufficiency of evidence cannot be the reason to hold the order bad in law. Hence, it is prayed that the writ petition be dismissed. 8. Hence, it is prayed that the writ petition be dismissed. 8. I have given my anxious consideration to rival submissions, perused the material on record and respectfully studied the cited case law. 9. Witness N.B. Sawant, Sub Inspector (Exhibit-6), has stated that the Divisional Security Commissioner had inspected the workshop and Fire Station 'B'. After inspecting the workshop and Fire Station 'B' on 21.08.1993, he along-with all other officers moved towards the Fire Station 'A'. At that time when the Divisional Security Commissioner was going towards the main gate, Driver Ganga Ram Patil came towards the B.T.C. Building and on his own, told the Divisional Security Commissioner that an iron almirah is lying outside the Fire Station 'A' and that stolen railway property was kept therein. Thereupon, the Divisional Security Commissioner enquired from the Inspector (Fire) as to whom it belongs, then this witness told him that almirah belongs to petitioner Raj Murti Mishra. In answer to question no.7 in cross-examination, the witness stated that it was only Ganga Ram Patil, who told him that almirah belongs to the petitioner and this was the only source of information with him. In answer to question no.9 in the cross-examination also, this witness confirmed that petitioner Raj Murti had submitted report against Ganga Ram Patil for coming late on duty on 30.06.1993 and that he forwarded the report to the I.P.F. (Fire). In cross-examination made by E.O., I.P.F. (CR) MX, this witness stated that the employees posted in one Fire Station do not visit another. When the petitioner was posted at Fire Station 'B', there was no question of his visiting the Fire Station 'A'. 10. Perusal of statement of Shri Narain Yadav (Exhibit-7) indicates that in answer to question no.2 in cross-examination, he admitted that when he opened the almirah, he found that almirah was lying unlocked and doors were open. In answer to question no.3 in cross-examination, he submitted that the goods lying in the almirah were neither having inscription of railways nor otherwise marked as railways properties. Statement of Shri N.K. Pillai, IPF (F) BCT, (Exhibit-8) indicates that he too admitted that it was Ganga Ram Patil, who approached the Divisional Security Commissioner and told him that the cup-board kept outside the Fire Station 'A' near static Water Tank is having Railways materials kept by petitioner Raj Murti Mishra. Statement of Shri N.K. Pillai, IPF (F) BCT, (Exhibit-8) indicates that he too admitted that it was Ganga Ram Patil, who approached the Divisional Security Commissioner and told him that the cup-board kept outside the Fire Station 'A' near static Water Tank is having Railways materials kept by petitioner Raj Murti Mishra. He on being asked whether he found cup-bard lying outside the Fire Station in the past six months as and when he visited the Fire Station 'A', he replied that whenever he visited the Fire Station, he never used to watch the materials, which were not borne in T & P as so many unconnected scraps were lying closed to the Fire Station near the work shop. On being further asked whether default of Ganga Ram Patil on 30.06.1993 was reported by the petitioner to him and petitioner gave statement against Ganga Ram Patil, this question was disallowed by the disciplinary authority on the ground that the question does not relate to the charge in the present case. 11. Madhukar T. (Exhibit P-9), In-charge of the Fire Station 'B', in his cross-examination, was asked by the petitioner whether he ever saw the petitioner operating the almirah or putting any railway property therein, he replied in negative. Then the petitioner further asked him whether he (the petitioner) reported the incident of late coming of the Ganga Ram Patil to Head Constable Raja Ram Patil, this witness admitted that such report was given by the petitioner. Jafrool Hussain(Exhibit-10), the Pump Operator posted in the Fire Station for last three years, also stated that after inspection of the Pump Station when the Divisional Security Commissioner was going back, Head Constable Ganga Ram Patil loudly told him that the stolen railway property was stored in the almirah lying nearby the Fire Station and then himself led Divisional Security Commissioner to the almirah and showed him the items therein. In his cross-examination, this witness stated that he never saw the petitioner ever operating such almirah or cupboard or putting any railway property or the uniforms etc. therein. Harbans Singh (Exhibit-11), the Inspector of RPF, also in his cross-examination stated that he never received any complaint with regard to theft items recovered from the almirah. However, when further asked whether he made an enquiry as to how those items reached the almirah, he admitted that no such investigation was made by him. therein. Harbans Singh (Exhibit-11), the Inspector of RPF, also in his cross-examination stated that he never received any complaint with regard to theft items recovered from the almirah. However, when further asked whether he made an enquiry as to how those items reached the almirah, he admitted that no such investigation was made by him. On being asked as to why did he not register regular case of theft if it was stolen railway property, he stated that in his view, a departmental enquiry would suffice the purpose. On being further asked whether Ganga Ram Patil had given a written complaint, this witness stated that Ganga Ram Patil only orally told about the property and goods during inspection by Divisional Security Commissioner. 12. In the statement (Exhibit-13) Ganga Ram Patil surprisingly has himself given a contradictory version than all other witnesses by stating that the Divisional Security Commissioner while passing by the Fire Station 'A', noticed the Almira outside the Fire Station. He asked from Sub Inspector (Fire) Sawant as to whom this almirah belongs, Shri Sawant told the Divisional Security Commissioner that one constable was using this for keeping his uniforms etc. It was at that time that he told that the Almirah belongs to Raj Murti Mishra and the items lying therein were stolen railways property. In cross-examination, he was asked whether the almirah was lying locked, he admitted that it was lying open and was not locked. In further cross-examination he admitted that the petitioner had once made a complaint against him for reporting late on duty. 13. Analysis of the entire evidence made above, clearly show that the petitioner was posted in the Fire Station 'B' whereas alleged almirah was lying outside the Fire Station 'A'. That almirah was lying unlocked and anyone could open and operate it, and that items alleged to be lying therein were neither marked as railway properties nor otherwise proved to belong to railways, and that no case of theft was registered with regard to those items. No other witness, except Ganga Ram Patil, has stated that the Almirah belonged to petitioner. Other witnesses, who made statements, attributed their knowledge to Ganga Ram Patil that it was Ganga Ram Patil who had, on his own, told the Divisional Security Commissioner that one almirah was lying outside the Fire Station 'A', in which stolen railway property was stored. No other witness, except Ganga Ram Patil, has stated that the Almirah belonged to petitioner. Other witnesses, who made statements, attributed their knowledge to Ganga Ram Patil that it was Ganga Ram Patil who had, on his own, told the Divisional Security Commissioner that one almirah was lying outside the Fire Station 'A', in which stolen railway property was stored. In view of quality of evidence, thus the question arises whether charge against the petitioner can be said to have been proved by preponderance of evidence produced during departmental enquiry? Here the question is whether Ganga Ram Patil can be accepted as reliable evidence, assumes significance for the reason that he never made any complaint to any authority except when the Divisional Security Commissioner visited the Fire Station 'A' and that too he orally made such complaint. It makes his conduct doubtful because N.B. Sawant, the Inspector, stated that it was Ganga Ram Patil who told him about the petitioner operating/using that almirah, whereas Shri Ganga Ram Patil himself stated that that witness Sawant, on his own, told the Divisional Security Commissioner so. But the witness N.B. Sawant stated that when the Divisional Security Commissioner was passing by the B.T.C. Building situated near the Fire Station 'A', Ganga Ram Patil on his own loudly told him about the almirah, petitioner has been able to cause sufficient dent to the testimony of this witness by showing that Ganga Ram Patil had a grudge against him as few days there before the petitioner had made a complaint against his reporting late on duty and he had been having strained relations with the petitioner. The evidence, therefore, in totality of the circumstances, is not such which could be relied on by a person of ordinary prudence to hold the petitioner guilty of misconduct. In fact, if the testimony of Ganga Ram Patil is omitted, there is absolutely no other evidence to connect the petitioner with the charge. When doubt has arisen about credibility of Ganga Ram Patil, his version can be believed only when there is corroborative evidence to lend credence thereto, whereas which is not there. 14. In view of above, the present writ petition deserves to succeed and the same is accordingly allowed. The impugned orders dated 12.01.1994, 13.01.1994, 04.03.1994, 23.02.1995 and 06.05.1996 are set aside. 14. In view of above, the present writ petition deserves to succeed and the same is accordingly allowed. The impugned orders dated 12.01.1994, 13.01.1994, 04.03.1994, 23.02.1995 and 06.05.1996 are set aside. The petitioner is held entitled to all consequential benefits with interest at the rate of 9% per annum. 15. Compliance be made within three months from the date a copy of this order is produced before the respondents.Petition Allowed. *******