JUDGMENT : S.G. Shah, J. 1. Heard learned advocate Mr. M.B. Gandhi for the Petitioner and learned advocate Mr. Premal R. Joshi for Respondent No. 1. Perused the record. 2. The Petitioner herein, has sought indulgence of this Court under Articles 14, 21, 311 and 226 of the Constitution of India for quashing the inquiry and order of punishment dated 6.9.2010 as well as order of the appellate authority dated 7.6.2011 whereby order of punishment of withdrawing two yearly increments with future effect has been imposed pursuant to Rule Nos. 311 and 312 of the Gujarat Civil Services (Discipline and Appeal) Rules, 1971. 3. It is undisputed fact that the Petitioner had joined as a Clerk with the Respondent Board in the year 1984 and, thereafter he was appointed as supervisor in the year 1989 and till then Petitioner was discharging his duty as supervisor with the Respondent Board. It is also undisputed fact that during his services as supervisor he has submitted several reports to the Board for releasing financial aid to different persons as per Scheme and Rules applicable at the relevant time whereby Respondent Board was aiding the needy persons who are doing handicraft work on small scale basis. However, after few such reports when another officer of the Board has inspected the site where such small industries are functioning, it was the case by the Respondents that the first report issued by the Petitioner was false and baseless and, therefore, they initiated Departmental Inquiry against the Petitioner. In such Departmental Inquiry, after issuing chargesheet, Inquiry Officer has examined few witnesses and ultimately the Inquiry Officer has, by his lengthy and detailed order dated 3.2.2007 held that all the charges levelled against the Petitioner are proved. Pursuant to such determination and conclusion and report by the Inquiry Officer, Competent Authority has imposed the punishment as referred hereinabove which was confirmed by the appellate authority and, therefore, Petitioner has challenged such order of punishment in this petition. 4. Pursuant to such determination and conclusion and report by the Inquiry Officer, Competent Authority has imposed the punishment as referred hereinabove which was confirmed by the appellate authority and, therefore, Petitioner has challenged such order of punishment in this petition. 4. In support of his submission, it is stated that the Inquiry report is not based upon the evidence adduced before the Inquiry Officer and that he has not committed any error or irregularity or dishonesty in submitting the concerned report at the relevant time, the Petitioner has contended that:- (i) he belongs to ECBC category - his service record is cleaned and unblemished (ii) when second report was called for by the Respondent Board, the situation at the site had changed and, therefore, only because of such change, Petitioner has been accused that he had made false report (iv) the inquiry is bad since it is in violation of principle of nature justice (v) before granting financial aid by the Respondent - Board, in-fact the concerned Bank had already granted loan in favour of all such applicants after specifying the situation and it was only Bank claims margin money/subsidy i.e. financial aid to be provided by the Board, the report is to be made by the Respondent Board and, therefore, Petitioner being so appointed, had after inspection of the local site issued concerned reports, therefore, in-fact there is scrutiny of the demand and Scheme by the concerned applicant by two changes namely; Bank and the Respondent Board and, thereby, when Bank has never found fault with the Scheme, the charges levelled against the Petitioner are base-less (vi) all such charges are levelled only after six months when it cannot be ignored that if the applicant makes any change for several reasons including not succeeding in the Scheme, then, it cannot be said that the Petitioner has filed false report at the relevant time (vii) initiation of inquiry itself is in violation of Articles 14 and 21 of the Constitution of India. 5. 5. In addition to the above submissions, Petitioner has categorically submitted that there is no iota of evidence even after full-fledged trial against him by the department to prove any of the charges and, therefore, when Inquiry Officer has, while concluding that all the charges are proved, travelled beyond the material available in the form of evidence by adding certain grounds to conclude that the Petitioner was at fault. Such inquiry report certainly results into material irregularity which amounts to illegality based upon and thereby it is requested that such report and punishment based upon such report be quashed and set aside. 6. In addition to above submissions, Petitioner is relying upon several documentary evidence which are annexed and produced with the petition namely; (1) Office Order No. 1911 dated 17.1.2002 at Annexure A being Scheme approved by the Board as per Rural Employment General Programme (REGP) wherein detailed operational part of scheme are stated. The first paragraph in such Scheme specifically confirms that all entrepreneurs are free to submit their project to the Bank directly. However, they may submit their project to Bank through the State/Regional Directors if they so desire. Therefore, it is quite clear and obvious that for getting financial benefit in the form of subsidiary as per this Scheme, concerned entrepreneurs are free to submit their application directly to the Bank and as confirmed in paragraph 2, financing branch of the Bank is free to take its own credit decision in sanctioning the project. Though all projects should comply with the criteria laid down by the Khadi and Village Industries Commission as per such REGP (MMS). The Scheme describes several other details which are not material at present. However, over all reading of the Scheme makes it clear that the sanctioning of project is initially at the discretion of the Bank and it is only for the subsidiary where decision is to be taken by the Respondent Board as per directions by the Commission. 6.1 On 27.30-5-2005, Respondents have issued a show cause notice to the Petitioner conveying that he was negligent and dishonest in performing his duties while issuing report in the cases of (1) Laljibhai Khimjibhai Chhabadia (2) Shankerbhai Bijalbhai Harijan (3) Sajnuben Dhanabhai Rabari (4) Sonalba Balvantsinh Jadeja (5) Rajabhai Bhasarbhai Harijan (6) Narsibhai Nathhubhai Maheshwari and (7) Jagdishchandra Demar Somaiya. Copies of such show cause notices are at Annexure B collectively. Copies of such show cause notices are at Annexure B collectively. The Petitioner has submitted his explanation to such show cause notice on 14.6.2005 conveying that since some of the applicants could not manage to fill the prescribed form as per requirement, he had simply filled up the form but applications were signed by concerned applicant/s. It is also stated with reference to the photograph of some other persons, the petitioner has not pasted such photograph on application, stating that it was the mistake by the applicant himself and said applicant has already admitted his mistake before the Board. Therefore, now, when concerned applicant himself has admitted that it was his mistake in affixing some other photograph, it cannot be stated that entire application was forged by the present Petitioner. Petitioner has categorically stated that he has never advised or sanction to grant subsidiary to any such person. 6.2 With reference to the allegations and charges regarding machinery, Petitioner has categorically conveyed the Respondent that the site and machinery of the applicants were examined in presence of the Bank Manager at the relevant time and new machinery was found at the place and in support of such defense, Petitioner has forwarded a statement in writing by the brother of one of the applicant namely; Mansukhbhai Chhabadiya considering the allegation that equipment for bottling of plant was already installed at the place. 6.3 So far as discrepancy in documents with reference to thumb impression and signature is concerned, it is specifically conveyed that at the place of signature, Bank Officer has endorsed the name, but thumb impression was not taken by oversight. Thereby, Petitioner has, from day one specifically came forward before the Respondents that he was not at fault and he has explained the reasons for error, if any, in the record of the Respondents. 6.4 Petitioner has also explained the mistakes or errors in remaining three cases conveying that since they are of Scheduled Tribes and entitled to the benefit, necessary report was submitted but otherwise there was no error or mistake or misdeed on his part and in-fact that report is also based upon the inquiry and inspection by the Bank Officer. 7. 6.4 Petitioner has also explained the mistakes or errors in remaining three cases conveying that since they are of Scheduled Tribes and entitled to the benefit, necessary report was submitted but otherwise there was no error or mistake or misdeed on his part and in-fact that report is also based upon the inquiry and inspection by the Bank Officer. 7. Irrespective of such explanation on 18.6.2006, Respondents have issued a chargesheet to the Petitioner conveying that Petitioner has been negligent and dishonest in issuing report in case of all above applicants and thereby he is subject to punishment as provided under Sections 311 and 312 of the GCSR. In such chargesheet, following five major charges are conveyed to the Petitioner:- "(a) In case of Laljibhai Khimjibhai Chhabadiya, though said applicant wants to install a unit of ice candy in the name of Shri Hari Krishna Ice Candy, one Hari Krishna Bottling Plant of his brother Mansukhbhai Khimjibhai Chhabadiya is found since two years and, therefore, recommendation of subsidiary to such Petitioner is improper and because of dishonesty and negligency of the Petitioner. (b) In case of Shankerbhai Bijalbhai Harijan, the application was not filled up by the applicant himself but filled up by the Petitioner and photograph of some other person is pasted and such form was forwarded to the Bank. (c) In case of Sajnuben Dhanabhai Rabari, bills regarding purchase of machinery was not attached with the loan paper and though applicant was doing the work of knitting and thereby she was illiterate and though putting her thumb impression in loan document, her signature was in English which was not checked by the Petitioner. (d) In case of Sonalba Balvantsinh Jadeja, though Rs. 63,000/- has been sanctioned towards subsidiary for new machinery, the applicant has not purchased new machinery and shown old machinery even though Petitioner has recommended to release subsidiary and thereby he was negligent. (e) In case of Rajabhai Bhasarbhai Harijan, Narsibhai Nathhubhai Maheshwari and Jagdishchandra Demar Somaiya, false certificates of training have been produced." 8. 63,000/- has been sanctioned towards subsidiary for new machinery, the applicant has not purchased new machinery and shown old machinery even though Petitioner has recommended to release subsidiary and thereby he was negligent. (e) In case of Rajabhai Bhasarbhai Harijan, Narsibhai Nathhubhai Maheshwari and Jagdishchandra Demar Somaiya, false certificates of training have been produced." 8. Thereby, when there are serious allegations against the Petitioner as quoted hereinabove, during the Departmental Inquiry, it is the duty and burden of the presenting officer to prove the charges and allegations if not beyond reasonable doubt like criminal jurisprudence, then, atleast by prima facie evidence, but, it must be cogent and reliable so as to come to the conclusion that all such charges are not only proved but all such misdeeds were committed by the Petitioner and, thereby, Petitioner alone was negligent and, therefore, he is subject to the Departmental Proceeding and punishment as per impugned order. 9. With the chargesheet, Respondents have also provided a list of evidence so also list of witnesses. Surprisingly, in list of documents, relevant documents are not produced which are basic documents to prove the allegations namely; the documents which otherwise results into forgery if those charges are allowed and, therefore, basically the initiation of Departmental Proceeding itself was unwarranted and misconceived. Inasmuch as, in absence of relevant documents, there cannot be an evidence of forgery as alleged and in absence of evidence of forgery, there cannot be punishment. Similar is the situation with the list of witnesses, inasmuch as, when there is specific allegation regarding impersonation by making false signature, impersonation by affixing false photographs and forgery and submitting false documents and false certificate, there is not a single witness named and listed in such witness list so as to prove any of such allegation and unfortunately except employee of the Board, no independent person is even listed as a witness. 10. 10. Now, pursuant to such chargesheet and details of allegations, Petitioner has again, on 13.4.2006 filed a detailed reply wherein he has disclosed all factual details so as to confirm that though there may be some errors or mistakes somewhere in documents, actually he was not at fault and that all those activities were carried out after or during the visit and inspection by the Bank Officer and, therefore, when there is concurrent report by the Bank and the Petitioner, unless it is proved that even Bank Officer have also committed blunder by issuing false report and thereby to grant him loan to the above listed applicants, it cannot be said that the Petitioner was negligent or dishonest or he was at fault in verifying his duties, whereby, the Board has to sanction subsidiary to above listed applicants. When Petitioner has disclosed in detail about each and every aspect in his report dated 13.4.2006, now, it is the duty of the presenting Officer during Departmental Inquiry to prove each and every allegations in the chargesheet. But unfortunately, the presenting Officer has examined only few witnesses namely; (1) Mr. B.M. Parmar, (2) Mr. Kamshibhai M. Chaudhary and (3) Mr. Dineshbhai S. Vankar. However, it is undisputed fact that all these witnesses are employees of the Board and, therefore, what they are stating before the Inquiry Officer is based upon their knowledge received from the record of the Board since none of them are aware about any of the alleged misdeed/s by the Petitioner. 11. Amongst all the witnesses Babubhai Thanabhai Taral has simply narrated basic facts and history of charges and allegations against the Petitioner with reference to all the applicants but he could not prove in any manner whatsoever that there was any forgery or impersonation as alleged in the charges against the Petitioner. 12. With reference to the case of the applicant Lalji Khimji Chhabaria, it is his statement that turner cabinet and deep fridge are old, furniture was not available on side, bottling plant was found at the place which was against the rule. Such bottling plant was in the name of the applicant, but it was in partnership with his brother. 13. With reference to the applicant Shankarbhai Harijan, it is stated that equipments were not installed as per invoices and as per rojkam, cash amount has been spent and photograph is not of the applicant. Such bottling plant was in the name of the applicant, but it was in partnership with his brother. 13. With reference to the applicant Shankarbhai Harijan, it is stated that equipments were not installed as per invoices and as per rojkam, cash amount has been spent and photograph is not of the applicant. Whereas Form was filled up by the petitioner. 14. With reference to the applicant Sajnuben Dhanabhai, it is alleged that she was doing business since long and, therefore there were more goods then working capital and that though two machines were shown in the application only one machine is purchased and though she is putting thumb impression, application is having her signature in English. 15. With reference to applicant Sonalba Jadeja, it is stated that machines were old. 16. However, when petitioner has categorically disclosed and submitted in his reply from starting of the proceedings that, he has completed his report just upon the inspection by the bank officer and, thereby, when it was necessary for the respondent to verify the bank's report, during cross examination witness has categorically stated that for coming to the conclusion about the negligence and misconduct of the petitioner they have never visited the bank, which has not only sanctioned but disbursed the loan in favour of such applications. However, one glaring fact is to the effect that though this witness has disclosed several serious allegations regarding forgery and mispersonation, he nowhere referred any such documents or department has never complained about such forgery or mis-personalization during such departmental proceedings. Therefore, basically the witness has simply narrated the facts which are otherwise narrated in the charge sheet and such facts cannot be treated as evidence to confirm that delinquent/petitioner has committed such offence. For a proof regarding commission of such offence in addition to disclosure of commission of such offence charge sheet is not only evidence to convict or punish such person. For a proof regarding commission of such offence in addition to disclosure of commission of such offence charge sheet is not only evidence to convict or punish such person. This is the basic rule of such procedure which is repeatedly reconfirmed by the Honourable Supreme Court in case of Nirmala J. Jhala v. State of Gujarat reported in 2013 (4) SCC 301 is also material wherein while dealing with a situation when there was allegation that husband of the delinquent was collecting bribe on her behalf; in absence of any such evidence, when department has dismissed the delinquent officer, the Hon'ble Supreme Court has held that order of punishment imposed by the department is unjust, unwarranted and, thereby set aside the same and when delinquent had reached the age of superannuation besides being exonerated honorably granted costs quantified as Rs. 5 lakh as compensation. The judgment is quite in detail after discussing several other judgments on similar issues right from the year 1985 till the year 2013 and then it is concluded that the conclusion in Departmental Inquiry must be reached on the basis of what a prudent man ought to have done and even for allegation of misconduct, there must be evidence on record. With reference to the burden and onus of proof in Departmental Inquiry and inquiry proceeding, the Hon'ble Supreme Court has categorically confirmed that such burden of proof lay on the department and thereby shifting onus of proof on the delinquent in inquiry is not permissible. 17. Surprisingly, except these three witnesses namely K.M. Chaudhari and B.M. Parmar, who have nothing to add in their examination in chief which is in two to four lines whereby they have simply disclosed factual details of inquiry proceedings and, therefore, they were not cross examined at length except by asking the simple question to confirm that whether they have visited the bank and thereby it confirmed that charges levelled against them have any supporting evidence or not. This may be because of the fact that petitioner has visited the site of each applicant either with the bank manager or after the visit of the bank manager and when it is found that bank has sanctioned the loan after scrutinizing the factual details and thereby petitioner has issued relevant report at relevant time only because there was some change found after 6 months, it cannot be said that initially report of the petitioner was because of his negligence and misconduct. To prove such misconduct there must be some evidence to confirm that in fact there was no such situation as disclosed by the petitioner at the relevant time on the relevant date. But in absence of such evidence, merely because of statement by officer of the board it cannot be concluded that petitioner was negligent. 18. However, scrutiny of evidence and report of inquiry officer would make it clear that though there is no statement in deposition in any of the witnesses, inquiry officer has while concluding his report included that there is evidence by particular witness. On the contrary the record shows that key witness like Sajuben, Sonalben and Shankarbhai were never examined by the department to prove that their signature were false or their photograph with their application was not of them, but of somebody else. 19. As against above referred evidence before the inquiry officer by the board, the petitioner has examined those persons who can prove his case i.e. Lalji Khimji Chhabaria, Balvantsinh Jadeja - husband of the one of the applicant Sonalben and produced affidavit of Laji Khimji Chhabaria and Sonalben Balvansinh Jadeja. All these evidences categorically confirm whatever done at the relevant time and there is no negligence by the petitioner in as much as Lalji Khimji Chhabaria has confirmed that he has purchased machinery and, therefore, he is entitled to start business on the same plot. Similarly witness Balvantsinh has also confirmed that machinery were purchased and six persons are working on it and loan amount received from the bank was utilized only for the business and payment for machinery was made by the demand draft directly from the bank. In cross - examination the presiding officer could not prove any thing so as to confirm the commission of an offence as alleged. The affidavit of Lalji Khimji Chhabaria and Sonalben Jadeja is also supporting the case of the petitioner. 20. In cross - examination the presiding officer could not prove any thing so as to confirm the commission of an offence as alleged. The affidavit of Lalji Khimji Chhabaria and Sonalben Jadeja is also supporting the case of the petitioner. 20. Unfortunately though there is no evidence to prove any such allegation in inquiry report, the inquiry officer has added few lines on his own words when it is stated in para 5.13 that as if Shankarbhai has been examined before him though he was never examined that such Shankarbhai has admitted before the inquiry officer that the photograph is not of his own but it is of somebody else who he can identify by face but cannot recollect his name. Similarly when there is no evidence to the fact that Sajuben is illiterate, the presiding officer has presumed on his own that because she is doing needle and knitting work, she is uneducated and not putting her signature. Even if there is some allegations either in the charge sheet or in the FIR it is not enough and even if it is the say of the presiding officer that he has recorded the statement, then such statement needs to be proved on record in accordance with law, which can be confirmed only after examining the same person who confirmed that she is not putting her signature but thumb impression only. But at this stage, it cannot be ignored that in fact for such error or mistake it has been conveyed to the respondent board in reply and explanation by the petitioner that in fact probably bank officer has failed to take thumb impression of the applicant where her name is written. 21. In view of such disclosure, it is necessary for the respondents to call for the bank officer and original record to verify the facts or allegation. 22. In view of above facts and circumstances and discussion it becomes clear that inquiry officer has traveled beyond his jurisdiction in concluding that petitioner was negligent in performing his duties and he has committed any misconduct as alleged. If inquiry report is relying upon some presumption then irrespective of few details here and there the entire report certainly goes and needs to be quashed and set aside. If inquiry report is relying upon some presumption then irrespective of few details here and there the entire report certainly goes and needs to be quashed and set aside. Once such report is improper, unwarranted and not in consonance with the evidence, then order of punishment based upon such evidence would also be called back and needs to be quashed and set aside. 23. In addition to above evidence and documents, petitioner has produced some other documents to substantiate his case which is practically supporting the evidence. It cannot be ignored that respondent has not filed any reply to the detail petition supported by documentary evidence and thereby though learned advocate for the respondent Mr. Premal Joshi has vehemently argued in support of report practically respondent has no way to support. 24. Considering the discussion as above this court has on 22.12.2016, passed following order; "Heard Mr. Chinmay M. Gandhi, learned advocate for the petitioner to some extent. It is clear that chargesheet against the petitioner is for alleged irregularities with reference to four applications. However, at present, we are concerned with an application by one Smt. Sajnuben Dhanabhai Rabari since there are grave allegation with reference to her application that though she is illiterate and though she is putting thumb impression, thereby though she is unable to sign any document, the document before the respondents alleged to be submitted by such lady is having signature in English. However, the inquiry papers and more particularly, inquiry report in paragraph 2.1 and 2.2 nowhere suggest that any evidence is ever adduced before the Inquiry Officer with regard to above charges though for such charges, inquiry officer has held that charges are proved. Therefore, when learned advocate for the respondent wants to clarify certain things from his client in addition to whatsoever he wants to clarify, now, respondents are directed to disclose on oath on record that whether they have adduced any evidence before the Inquiry Officer to prove the charges so far as allegations with reference to said Smt. Sajnuben Dhanabhai Rabari is concerned." 25. However, today learned advocate for the respondent Mr. Premal Joshi has fairly admitted that board does not have any document other than produced on record, so as to prove the allegation and charges which are recorded herein above. However, today learned advocate for the respondent Mr. Premal Joshi has fairly admitted that board does not have any document other than produced on record, so as to prove the allegation and charges which are recorded herein above. Therefore because of such disclosure, now it cannot be said that respondents have not complied with the order dated 22.12.2016. Such discussion has categorically disclosed that adverse inference is to be drawn against respondent. It is clear from the evidence that practically there is no evidence to prove any allegation against the petitioner as per charge sheet and impugned order of departmental inquiry. Therefore there is no option but to allow the petition by quashing and setting aside the charge sheet dated 18.03.2006, inquiry report dated 03.02.2007, order of punishment dated 06.09.2010 and confirming such punishment by the appellate authority by an order dated 07.06.2011. Therefore petition is allowed to the aforesaid extent. Rule is made absolute. 26. Thereby, now punishment imposed by the respondent upon the petitioner is revoked and set aside. Thereby, now respondents have to release regular increment in favour of the petitioner as if there is no punishment as per the impugned order within 4 months from the date of receipt of writ of this order. 27. For my above decision, I am relying upon following decisions; "(1) Punjab National Bank v. Kunj Behari Misra reported in 1998 (7) SCC 84 and (2) Yoginath D. Bagde v. State of Maharashtra reported in 1999 (7) SCC 739 " Direct Service is permitted.