ORDER: (Per Hon’ble Justice Sujoy Paul) This petition filed under Article 226 of the Constitution challenges the order dated 12.09.2016, whereby punishment of removal from service was inflicted on the petitioner. The challenge is also made to the order dated 18.11.2017, whereby the review application preferred by the petitioner was dismissed. Factual Matrix: 2. Draped in brevity, the relevant facts for adjudication of this matter are that the petitioner joined the service in judicial department at Vizianagaram District on 26.09.1982. The petitioner was selected as Court Master and Personal Secretary to the Judges in the High Court on 17.02.1995. From the month of May, 1995, the petitioner was attached with the office of Judges of High Court. However, from 17.05.1999, he was attached as Personal Secretary to another Judge, who was portfolio Judge of Vishakapatnam District. In the month of May, 2011, the petitioner was promoted as Assistant Registrar, but under the direction of the said Judge, he continued to perform his duties as Personal Secretary. 3. The case of the petitioner is that under the direction of the portfolio Judge of Vishakapatnam District, he went to Vishakapatnam District Court and handed over a pen-drive in a sealed cover containing question papers and answer key of written examination for the posts of junior assistant, field assistant, typist and stenographer. 4. The written examinations for the said posts were conducted on 22.10.2011 and 23.10.2011. The petitioner being the Personal Secretary to the portfolio Judge accompanied him on 22.10.2011 and 23.10.2011 to Vishakapatnam. On 23.10.2011 at around 07:00 PM, the Central Nazir and Computer Operator of the Vishakapatnam District Court telephoned and informed the petitioner that they are unable to open the answer key and upon the directions of the learned District Judge requested the petitioner to come to the District Court. The petitioner went to the District Court after securing laptop of his nephew’s son and converted the answer key from Microsoft Office 2010 version to Microsoft Office 2003 version, which was available in the District Court’s computers. 5. The results of the said written examinations were declared in the month of December, 2011. In January, 2012, personal interviews were conducted. The petitioner went to the District Court after securing laptop of his nephew’s son and converted the answer key from Microsoft Office 2010 version to Microsoft Office 2003 version, which was available in the District Court’s computers. 5. The results of the said written examinations were declared in the month of December, 2011. In January, 2012, personal interviews were conducted. After lapse of 5½ months, on 31.03.2012, the District Judge appears to have made a complaint to the High Court that he had suspicion that the petitioner had leaked out the question papers of written examination, which were held on 22.10.2011 and 23.10.2011. 6. The charge sheet dated 19.07.2013 containing seven charges was served on the petitioner after a lapse of two years. The petitioner filed his reply on 16.09.2013. The Disciplinary Authority was dissatisfied with the said reply and appointed an Enquiry Officer. The Enquiry Officer after recording the evidence submitted his report running into 90 pages. The said report was supplied to the petitioner along with the show-cause notice. In turn, the petitioner filed his written representation against the report of the Enquiry Officer. The Disciplinary Authority by the impugned order dated 12.09.2016 imposed the punishment of removal from service, which was unsuccessfully assailed by the petitioner by filing a review application. Contentions of the petitioner: 7. Sri D.V. Sitharam Murthy, learned Senior Counsel for the petitioner, referred Rule 17(2) of the Andhra Pradesh High Court Service Rules, 1975 (for short, Rules of 1975) whereby the procedure prescribed in Andhra Pradesh Civil Services (Classification, Control and Appeal) Rules, 1991 (for short, CCA Rules) were borrowed for the purpose of conducting departmental enquiry. Learned Senior Counsel has taken pains to contend that procedural part of the Departmental Enquiry was not in consonance with the principles of natural justice and the CCA Rules. As per Rule 20 (12)(a) of CCA Rules, after the case of Disciplinary Authority is closed, the delinquent employee gets an opportunity to set his defence orally or in writing. It is pointed out that the case of Disciplinary Authority was closed on 09.04.2015. Thereafter, the Departmental Enquiry was straightaway posted for arguments without enquiring from the petitioner as to whether he intends to examine the witnesses. Thus, the petitioner was deprived to examine the witnesses in his defence. 8. It is pointed out that the case of Disciplinary Authority was closed on 09.04.2015. Thereafter, the Departmental Enquiry was straightaway posted for arguments without enquiring from the petitioner as to whether he intends to examine the witnesses. Thus, the petitioner was deprived to examine the witnesses in his defence. 8. The next procedural infirmity as per the petitioner is that Rule 20 (14) of CCA Rules mandates that after Government servant closes his case, the Enquiring Authority shall generally question him on the circumstances appearing against him. The petitioner did not examine himself and in that event it was imperative on the part of the Enquiry Officer to question him generally which has not been done. Another defect is that written argument/brief of Presenting Officer was not furnished to the petitioner to enable him to put forth his comments. 9. The Enquiry Officer’s Report was criticized by contending that in the Departmental Enquiry, the burden to prove the charges is always on the shoulders of the prosecution. In the instant case, the learned Enquiry Officer has shifted the burden on the delinquent employee. Much emphasis is laid on the finding at page No.24 of the Enquiry Report that ‘the charged officer himself being the Typist of the question papers has to clear the air of suspicion by his own conduct and not on omissions found in the evidence of the witnesses presented before the Enquiry Officer’. 10. The learned Senior Counsel for the petitioner submits that all the charges are arising out of the same incident and are interconnected. Four charges viz., charge Nos.3, 4, 5 and 7 relate to leakage of question papers were not found proved by the Enquiry Officer and only charge Nos.1, 2 and 6 were held to be proved. It is strenuously contended that in a case of this nature where charges were relating to leakage of question papers by the petitioner, the ambit and scope of the enquiry should be (i) was there any leakage of question paper and (ii) if yes, who was responsible for such leakage. Interestingly, charge Nos.3, 4, 5 and 7 which were related to leakage of question papers were held to be not proved, yet second part about responsibility to leak it was held to be proved. Interestingly, charge Nos.3, 4, 5 and 7 which were related to leakage of question papers were held to be not proved, yet second part about responsibility to leak it was held to be proved. The respondents have completely failed to see that the second part of allegation as to who was responsible for leakage was not independent but rather dependent on the first part i.e., whether question papers were actually leaked. In other words, the contention is that second part of allegation cannot be proved unless first part of the same is clearly established. 11. The next contention of learned Senior Counsel for the petitioner is that the entire enquiry was founded upon suspicion and doubts. The learned District Judge, Visakhapatnam accepted the sealed cover containing pen-drive from the petitioner without raising any objection, proceeded ahead with the conduction of written tests followed by interview as per the prescribed schedule. No complaint of any nature with quite promptitude was made to the High Court regarding suspicion of leakage of question papers and the complaint was preferred for the first time to the High Court by the learned District Judge, Visakhapatnam after lapse of 5½ months from the date of conducting the written examination. An enquiry solely based on suspicion has no legs to stand. The doubt entertained by the learned District Judge was that the petitioner copied the contents of pen-drive in his laptop before handing it to the learned District Judge. Suspicion, however high cannot form the basis of a charge. Reliance is placed on the judgment of Supreme Court in Union of India vs. H.C. Goel, 1963 SCC OnLine SC 16 and Commissioner of Police, Delhi vs. Jai Bhagwan, (2011) 6 SCC 376 . 12. The statement of learned District Judge (P.W.1) was referred to show that he had admitted on more than one occasion in his deposition that he did not conduct any enquiry as per his suspicion about the alleged leakage of question papers. He also admitted that he had not received any complaint about leakage of papers from the candidates or from any other quarter. He did not enquire about Mr.Faizal, who is stated to be an employee of District Court, Guntur. The said Faizal did not enter the witness box. Mr. Siva Rama Krishna, employee of District Court, Visakhapatnam, was also not produced as a witness. He did not enquire about Mr.Faizal, who is stated to be an employee of District Court, Guntur. The said Faizal did not enter the witness box. Mr. Siva Rama Krishna, employee of District Court, Visakhapatnam, was also not produced as a witness. The names of relatives of the petitioner who were allegedly benefitted by leakage of question papers were neither disclosed nor any such person was introduced as a witness. Thus, findings of the Enquiry Officer are perverse. 13. In order to point out with clarity, learned Senior Counsel advanced arguments charge-wise. By taking this Court to the charges, it is urged that the common allegation in all charges is that the petitioner copied the contents of pen-drive in his laptop and intentionally accessed the confidential information relating to recruitment process with ulterior motive before handing over the said pen-drive to the District Judge. The examination papers and answer key could not be opened in any other laptop or computer and could only be opened in the laptop of the petitioner (charge Nos.2 and 6). It is urged that this allegation shows the hollowness of the charges. If the question papers and answer key could not be opened as alleged in any other computer other than the laptop of the petitioner, it is difficult to understand as to how the District Court authorities could access the question papers, took printout of question papers and conducted the examination on 22.10.2021 and 23.10.2011. 14. The charge No.1 was referred to show that it pertains to copy of contents of pen-drive in the laptop. It is contended that admittedly, the learned District Judge (P.W.1) was not present at the time the petitioner undertook the conversion of 2010 M.S Office version into 2003 M.S. Office version in the chamber of District Judge at his request. Therefore, P.W.1 is not an eye-witness about brining laptop by the petitioner. P.W.1 clearly deposed on 29.03.2014 that he was not in the chambers when the charged officer reached the chambers with laptop to open the answer key. He pleaded ignorance whether the laptop allegedly carried by the petitioner was his personal one or not. Neither P.W.3 nor P.W.4 deposed in their examination-in-chief that they have seen the contents of the pen-drive in the laptop in question. He pleaded ignorance whether the laptop allegedly carried by the petitioner was his personal one or not. Neither P.W.3 nor P.W.4 deposed in their examination-in-chief that they have seen the contents of the pen-drive in the laptop in question. During cross-examination, both of them deposed that they did not see the contents of the pen-drive in the laptop brought by the petitioner. The Computer Operator (P.W.3) deposed on 22.11.2014 that the District Judge left his chamber after five minutes, the petitioner came to his chamber. He could not verify about the details of the files stored in the laptop brought by the petitioner. P.W.4, the Superintendent of Visakhapatnam District Court, stated that he has not seen the contents of the laptop. The statement of P.W.3 recorded on 22.11.2014 was referred wherein he stated that if password is known, the answer key file can be opened not only in the laptop brought by the petitioner, but also in any other system having higher version. It is canvassed that on the basis of conjecture, the Enquiry Officer opined that the answer key was opened in the laptop brought by the petitioner, it might contain the contents of the pen-drive, and therefore, it must be the petitioner alone who would have copied the contents of pen-drive in that laptop, and hence, the charge is proved. 15. Since there was no legal evidence to support the allegations mentioned in charge No.1, the Disciplinary Authority held that petitioner is entitled to get benefit of doubt from this charge. The prosecution miserably failed to establish that the petitioner breached the trust reposed in him viz., (i) handing over the sealed cover intact, (ii) rendering assistance and (iii) maintaining confidentiality. 16. The next limb of argument is that there was no iota of material in the enquiry to doubt the petitioner’s integrity. The petitioner has unblemished service record. The finding of the Disciplinary Authority that the Charged Officer had opened the sealed cover and tampered it is perverse and without there being any evidence. In the complaint of the learned District Judge dated 31.03.2012, there was no assertion that seal of the sealed cover handed over to him by the petitioner was tampered. If seal would have been tampered, the learned District Judge would have certainly reported this fact to the High Court immediately. In the complaint of the learned District Judge dated 31.03.2012, there was no assertion that seal of the sealed cover handed over to him by the petitioner was tampered. If seal would have been tampered, the learned District Judge would have certainly reported this fact to the High Court immediately. The record shows that there is no complaint, no charge, no enquiry, no evidence and no finding of the Enquiry Officer with regard to tampering of the sealed cover containing the confidential pen-drive. 17. P.W.3, who dealt with pen-drive, deposed on 22.11.2014 that he did not notice any tampering of pen-drive and therefore, did not make any complaint in that regard to the learned District Judge. The finding of the Enquiry Report (running page 283) was highlighted: ‘Further, it is not the complaint of P.W.1 or the High Court that there was tampering of question papers in the pen-drive in question’. The Enquiry Officer’s Report at paragraph No.29 (xxxvii) contains the finding- ‘the Charged Officer being typist of question papers has to clear the air of suspicion by his own conduct and not on omissions found in the evidence of witnesses presented before the Enquiry Officer’. Learned Senior Counsel for the petitioner submits that the prosecution failed to discharge the initial burden and therefore, shifted the burden on the petitioner, which is impermissible. 18. So far charge No.2 is concerned, it is submitted that it relates to making frequent calls to the learned District Judge and his staff regarding the recruitment process. The statement of P.W.1 was referred to show that he was not in a position to point out the date or time of alleged calls nor any call data relating to phone calls of petitioner were produced to establish the charge. P.W.3 admitted that the petitioner did not call him over phone any time to enquire about the recruitment process. Likewise, P.W.3 could not depose about any phone call of the petitioner to the learned District Judge about the recruitment process. P.W.4 further admitted that petitioner had not pressurized directly or indirectly for speeding up the recruitment process. He further admits that the petitioner never enquired about any details regarding the recruitment process of any candidate. The learned District Judge (P.W.1) himself deposed on 29.03.2014 that petitioner sought no favour from him. Thus, there exists no evidence to hold the charge No.2 as proved. 19. He further admits that the petitioner never enquired about any details regarding the recruitment process of any candidate. The learned District Judge (P.W.1) himself deposed on 29.03.2014 that petitioner sought no favour from him. Thus, there exists no evidence to hold the charge No.2 as proved. 19. The charge No.6 relates to asking the learned District Judge for return of the pen-drive. The pen-drive was containing the question papers and answer key. This official pen-drive was given to the petitioner by the High Court. It was expected to be returned by the learned District Judge because the pen-drive was containing partly dictated judgments of the portfolio Judge. In this backdrop, the petitioner requested the complainant/P.W.1 to return the pen-drive. P.W.1 deposed on 29.03.2014 that the portfolio Judge directed him to return the pen-drive to the petitioner because it contains partly dictated orders and judgments. 20. The submission of P.W.1 was referred to show that there is no iota of evidence that papers are leaked, but he entertained doubt and suspicion of leakage because some candidates, who fared well in written examination, could not answer similar questions during personal interview. P.W.1 further admitted that he has not recorded the statements in the discreet enquiry and no candidate complained about leakage of question papers. 21. Furthermore, it is urged that charge Nos.1, 2 and 6 were held to be ‘proved’ relating to imputation of leakage of question papers, whereas charge Nos.3, 4, 5 and 7, which have direct relation with other charges were held as ‘not proved’. The charge Nos.1, 2 and 6 were erroneously found to be ‘proved’. The finding of the Enquiry Officer relating to charge Nos.1, 2 and 6 are self-contradictory and not based on evidence on record. Since petitioner unequivocally denied the charges, it was obligatory for the prosecution to establish the charges and that burden could not have been shifted on the petitioner. Reference is made to the judgments in the case of Nirmala J. Jhala vs. State of Gujarat, (2013) 4 SCC 301 and Roop Singh Nagi vs. Punjab National Bank, (2009) 2 SCC 570 . 22. Lastly, it is submitted that before imposition of punishment of removal from service, the petitioner had completed about 34 years of unblemished service and 56 and ½ years of age. No adverse confidential report was ever communicated to him. 22. Lastly, it is submitted that before imposition of punishment of removal from service, the petitioner had completed about 34 years of unblemished service and 56 and ½ years of age. No adverse confidential report was ever communicated to him. In several cases, where delinquent officer crossed 50 years of age/completed 30 years of service, the Apex Court opined that punishment of dismissal/removal from service is harsh and disproportionate and substituted it with punishment of compulsory retirement with pension. The petitioner attained the age of superannuation on 31.03.2018. Contentions of the respondents: 23. On the other hand, Sri Y. Rama Rao, learned Standing Counsel for the High Court supported the procedural part of the Departmental Enquiry, the findings and the impugned order of punishment, which was affirmed in review. Learned counsel submits that in the Departmental Enquiry, full, reasonable and effective opportunity of defence was provided to the petitioner. There is no serious procedural breach in the enquiry which caused prejudice to the petitioner and warrants interference by this Court. 24. The petitioner being employee of the High Court was obliged to maintain integrity and work with sincerity and devotion. The purity of selection is of utmost importance. If petitioner contributed in polluting the selection, no fault can be found in the action of the department in punishing him. The reasonable amount of suspicion led to issuance of charge sheet, which was followed by a full-fledged domestic enquiry. In the enquiry also P.Ws.1, 2, 3 and 5 have deposed against the petitioner. The appreciation of evidence to take a different view is not permissible. The punishment imposed is commensurate to the serious misconduct and cannot be termed as harsh and disproportionate. 25. The petitioner filed written synopsis. The parties confined their arguments to the extent indicated above. We have bestowed our anxious considerations on the rival contentions and perused the record. FINDINGS: Scope of Judicial Review:- 26. Before dealing with rival contentions, it is apposite to remind ourselves about the scope of interference in the case of Departmental Enquiry and punishment. This is trite that this Court while undertaking judicial review against a Departmental Enquiry and punishment cannot sit as an appellate Court to re-weigh or re-appreciate the evidence. FINDINGS: Scope of Judicial Review:- 26. Before dealing with rival contentions, it is apposite to remind ourselves about the scope of interference in the case of Departmental Enquiry and punishment. This is trite that this Court while undertaking judicial review against a Departmental Enquiry and punishment cannot sit as an appellate Court to re-weigh or re-appreciate the evidence. The procedural part of the enquiry is subjected to judicial review to examine whether the principles of natural justice and governing rules (CCA Rules in this case) were breached or not and whether such breach results in any prejudice to the delinquent employee. The findings of the Enquiry Officer can be put to test for limited purpose of examining whether the findings are based on no evidence or perverse in nature. Re-appreciation of evidence to hold that another view is possible, is not a ground for interference. Putting it differently, if there is some legal evidence against the delinquent employee relating to specific charge, no interference is warranted by this Court. The punishment can be interfered with only if it pries the conscience of the Court being extremely disproportionate. The Supreme Court in State of Andhra Pradesh vs. S. Sree Rama Rao, AIR 1963 SC 1723 has reiterated the said principle which was followed in the State of Andhra Pradesh vs. Chitra Venkata Rao, (1975) 2 SCC 557 , the relevant portion reads as under: “21. … The High Court is not a court of appeal under Article 226 over the decision of the authorities holding a departmental enquiry against a public servant. The Court is concerned to determine whether the enquiry is held by an authority competent in that behalf and according to the procedure prescribed in that behalf, and whether the rules of natural justice are not violated. Second, where there is some evidence which the authority entrusted with the duty to hold the enquiry has accepted and which evidence may reasonably support the conclusion that the delinquent officer is guilty of the charge, it is not the function of the High Court to review the evidence and to arrive at an independent finding on the evidence. Second, where there is some evidence which the authority entrusted with the duty to hold the enquiry has accepted and which evidence may reasonably support the conclusion that the delinquent officer is guilty of the charge, it is not the function of the High Court to review the evidence and to arrive at an independent finding on the evidence. The High Court may interfere where the departmental authorities have held the proceedings against the delinquent in a manner inconsistent with the rules of natural justice or in violation of the statutory rules prescribing the mode of enquiry or where the authorities have disabled themselves from reaching a fair decision by some considerations extraneous to the evidence and the merits of the case or by allowing themselves to be influenced by irrelevant considerations or where the conclusion on the very face of it is so wholly arbitrary and capricious that no reasonable person could ever have arrived at that conclusion. The departmental authorities are, if the enquiry is otherwise properly held, the sole judges of facts and if there is some legal evidence on which their findings can be based, the adequacy or reliability of that evidence is not a matter which can be permitted to be canvassed before the High Court in a proceeding for a writ under Article 226.” (Emphasis Supplied) 27. The ratio decideni of this case is consistently followed by the Supreme Court in catena of judgments such as: (i) Apparel Export Promotion Council vs. A.K.Chopra, 1999 (1) SCC 759 , (ii) Bank of India vs. T.Jogaram, 2007 (7) SCC 236 , (iii) State of U.P. vs. Man Mohan Nath Sinha, 2009 (8) SCC 310 , (iv) Allahabad Bank vs. Krishna Narayan Tewari, 2017 (2) SCC 308 , (v) State of Karnataka vs. N. Gangaraj, 2020 (3) SCC 423 and (vi) Pravin Kumar vs. Union of India, 2020 (9) SCC 471 . 28. Now, we deem it proper to proceed to examine the merits of the matter on the anvil of the principles laid down in the aforesaid cases. Charge Sheet:- 29. 28. Now, we deem it proper to proceed to examine the merits of the matter on the anvil of the principles laid down in the aforesaid cases. Charge Sheet:- 29. The charge sheet contains seven charges which are reproduced below for ready reference: ARTICLES OF CHARGES Sl.No. Charge Charge No.1 That you Sri P.V. Surya Narayana, being a Government servant while working as Personal Secretary to Justice G, were entrusted with confidential duties relating to the conducting of the examinations of Junior Assistant, Personal Assistant, Typist, Copyist posts in Visakhapatnam District. In that connection you were given a pen-drive to be confidentially handed over to the District Judge on 21.10.2011, who is conducting written examinations for the said posts. Instead of handing over the said pen-drive, it was found that you have copied the contents of the said pen-drive on a laptop and intentionally accessed the confidential information relating to the recruitment process with ulterior motives before handing over the said pen-drive to the District Judge and thereby you have failed to maintain the integrity expected of a Government servant in carrying out the confidential and onerous duties entrusted to you and thereby you have resorted to breach of trust reposed in you by the higher authorities, which act of yours, if proved or established would amount to grave misconduct and unbecoming of a Government servant within the meaning of Rule 3 of the A.P. Civil Services (Conduct) Rules, 1964. Charge No.2 That you Sri P.V. Surya Narayana, being a Government servant while working as Personal Secretary to Justice G, were keenly following the recruitment process and were suggesting for speedy completion of the interviews and completion of recruitment process, by frequently calling the District Judge over phone in an unusual manner which is not expected from any employee who is not entrusted with any such duties by the authorities. The frequent calls to the District Judge and his staff regarding the recruitment process and the undue interest shown by you to elicit information regarding a confidential and sensitive matter has given rise to suspicion and doubt that you have been playing fraud in the process of recruitment by secretly copying the contents of the pen-drive on to your laptop. The frequent calls to the District Judge and his staff regarding the recruitment process and the undue interest shown by you to elicit information regarding a confidential and sensitive matter has given rise to suspicion and doubt that you have been playing fraud in the process of recruitment by secretly copying the contents of the pen-drive on to your laptop. The examination paper and the key which could not be opened in any other laptop or computer, could only be opened in your laptop alone shows that you have intentionally taken hold of the confidential information with ulterior motives and to jeopardize the fairness in the recruitment process. As such, you have behaved in a manner unbecoming of a Government employee, which act of yours, if proved or established would amount to grave misconduct and unbecoming of a Government servant within the meaning of Rule 3 of the AP Civil Services (Conduct) Rules, 1964. Charge No.3 That you Sri P.V. Surya Narayana, being a Government servant while working as Personal Secretary to Justice G, during the aforesaid period and while functioning in the aforesaid office, have divulged the confidential information, which was fraudulently copied by you in your laptop, to some of the candidates belonging to the Muslim Community of Guntur District, and BC- B (Settibalija) of Gollapalem, Jail Road of Visakhapatnam, with ulterior motives to see to it that they secure highest marks in the written examination whereas the same candidates have failed to answer the same questions when asked in the interview, establishing that the said candidates were hand in glove with you. By passing on the confidential information to the candidates in the recruitment process, you have acted in a manner which will place your official position in embarrassment to the higher authorities and the High Court, which act of yours, if proved or established would amount to grave misconduct and unbecoming of a Government servant within the meaning of Rule 3 of A.P. Civil Services (Conduct) Rules, 1964. Charge No.4 That you Sri P.V. Surya Narayana, being a Government servant while working as Personal Secretary to Justice G, colluded with Siva Rama Krishna who is an employee of Judicial Department of Visakhapatnam Unit, and who is known to be a notorious character in manipulating things involved in such fraudulent and nefarious activities and resorted to fraud in the recruitment process by passing on the information which you have illegally copied into your laptop to the candidates in the recruitment process for wrongful gain. Thereby you have failed to maintain absolute integrity, impartiality and a sense of propriety expected of every Government employee, which act of yours, it established would amount to grave misconduct and unbecoming of a Government servant within the meaning of Rule 3 of A.P. Civil Services (Conduct) Rules, 1964. Charge No.5 That you Sri P.V. Surya Narayana, being a Government servant while working as Personal Secretary to Justice G, colluded with Faizal, who is an employee of Judicial Department of Guntur Unit, and resorted to fraud in the recruitment process by passing on the information which you have illegally copied into your laptop to the candidates in the recruitment process for wrongful gain, thereby you have failed to maintain absolute integrity, impartiality and a sense of propriety expected of every Government employee, which act of yours, if established would amount to grave misconduct and unbecoming of a Government servant within the meaning of Rule 3 of A.P. Civil Services (Conduct) Rules, 1964. Charge No.6 That you Sri P.V. Surya Narayana, being a Government servant while working as Personal Secretary to Justice G, repeatedly called the District Judge over phone and persistently requested for return of the pen-drive which was handed over to District Judge by you and which could not be opened on any other computer by the staff of District Court and you have intelligently saw to it that the said pen-drive can only be opened by you on your laptop alone in order to keep hold of the confidential information with ulterior motives. As such, you are the only one who had the exclusive access to the confidential information available in the said pen-drive and the same was illegally copied into your laptop and fraudulently passed on to the candidates chosen by you in the recruitment process, as such you have failed to maintain absolute integrity, devotion to the duty and conduct expected of a Government servant, which act of yours, if established would amount to grave misconduct and unbecoming of a Government servant within the meaning of Rule 3 of A.P. Civil Services (Conduct) Rules, 1964. Charge No.7 That you Sri P.V. Surya Narayana, being a Government servant while working as Personal Secretary to Justice G, suppressed the material fact that your nephew has also appeared for the Junior Assistant examination and secured 71 marks and in the oral interview, he could not even answer one question from the question paper which he has answered in the written examination. It clearly shows that the said candidate being your close relative was helped by you by passing on the confidential information regarding the question paper and key held by you illegally in your laptop. Your passing on the confidential information to your close relative is an act of partiality and lack of integrity on your part, which act of yours, if established would amount to grave misconduct and unbecoming of a Government servant within the meaning of Rule 3 of A.P. Civil Services (Conduct) Rules, 1964. 30. Indisputedly, only charge Nos.1, 2 and 6 were found proved against the petitioner. A plain reading of the charge sheet shows that all the charges are based on same incident relating to written examination held on 22.10.2011 and 23.10.2011. 31. It is apposite to take a glance of all the allegations mentioned in charge Nos.3, 4, 5 and 7, which could not be proved against the petitioner. 32. The allegation mentioned in charge No.3 is that the petitioner fraudulently copied the confidential information from pen-drive in his own laptop and divulged it to the muslim community candidates of Guntur District and BC-B (Shettibalija) candidates of Gollapalem village with ulterior motive to benefit them in the recruitment process. The said candidates could not answer the same questions which were asked in the written examination when they were confronted with same questions in the interview. Thus, the candidates were hand in glove with the petitioner. The said candidates could not answer the same questions which were asked in the written examination when they were confronted with same questions in the interview. Thus, the candidates were hand in glove with the petitioner. This charge could not be established which includes the allegation that the petitioner fraudulently copied the confidential information in his laptop and in turn, shared the same to certain persons in order to give them undue benefit. The details of the candidates so benefited were not mentioned in the charge sheet and it could not be established that the petitioner had undertaken the said exercise of supplying the confidential information to benefit the candidates of particular area and community. 33. Likewise, charge No.4 contains the allegation that petitioner colluded with one Siva Rama Krishna, who is employee of judicial department of Vishakapatnam unit and a man of notorious antecedents and provided the confidential information of question papers to him, which was illegally copied in the petitioner’s laptop. Thus, in this charge also one of the allegations is that the petitioner illegally copied the confidential information into his laptop, which was allegedly provided to said Siva Rama Krishna. 34. The charge No.5 also contains an allegation that the petitioner illegally copied confidential information and supplied it to one Faizal, who is employee of judicial district of Guntur. Although, this charge was not established, yet the petitioner was found to be guilty of committing misconduct as per charge No.1. 35. The charge No.7 is that the petitioner suppressed material fact that his nephew was candidate in the examination. Because of petitioner’s help and getting confidential information of the question papers, he secured 71 marks in the written examination. However, he could not answer a single question during viva voce. 36. A minute reading of the charges which were not found proved shows that there exists a common thread from charge Nos.1 to 7 that the petitioner copied contents of the pen-drive in his laptop with ulterior motive to benefit certain candidates. Thus, we find substance in the contention of the learned Senior Counsel for the petitioner that all the charges are founded upon the same incident and recruitment process and are interlinked. Burden of proof:- 37. Thus, we find substance in the contention of the learned Senior Counsel for the petitioner that all the charges are founded upon the same incident and recruitment process and are interlinked. Burden of proof:- 37. This is trite that the legal parameter to adjudge the evidence in a Departmental Enquiry is preponderance of probability and not that the charges must be proved beyond reasonable doubt, the parameter which is applicable in criminal cases. Yet, we find force in the argument of the learned Senior Counsel for the petitioner that even in the Departmental Enquiry the initial burden to prove the charge is on the prosecution. If that burden is discharged, onus can be shifted on the delinquent employee. In Nirmala J. Jhala (supra), the Apex Court held as under: “39. More so, the High Court has reached the conclusion by shifting the burden of proof of negative circumstances upon the appellant. The High Court has erred by holding that in respect of the incident dated 17-8-1993 i.e. demand of amount, it was the duty of the appellant to explain the said circumstance, and that instead of giving any satisfactory explanation in respect of entry of Shri C.B. Gajjar, she had completely disowned and denied any such occurrence. The onus was always on the Department to prove the said circumstance. The Court should have also taken note of the fact, that the matter was adjourned for 28-8-1993, and being a 4th Saturday, it was a holiday. The Court further committed an error by holding, that the failure to challenge the most crucial element of the evidence, regarding the incident of 17-8-1993, in respect of a demand of bribe of Rs 20,000 fully justified the findings of the enquiry officer. Again, the High Court shifted the onus to prove a negative circumstance on the appellant. 52.3. The High Court erred in shifting the onus of proving various negative circumstances as referred to hereinabove, upon the appellant who was the delinquent in the enquiry.” (Emphasis Supplied) 38. In the instant case, the point raised is whether the prosecution could discharge the burden in relation to each of the charge. Similarly, the findings of the Enquiry Officer needs to be examined whether it is based on any legal evidence or not. Enquiry report:- Charge No.1:- 39. In the instant case, the point raised is whether the prosecution could discharge the burden in relation to each of the charge. Similarly, the findings of the Enquiry Officer needs to be examined whether it is based on any legal evidence or not. Enquiry report:- Charge No.1:- 39. In charge No.1, there is no allegation against the petitioner that he had not provided the pen-drive to P.W.1 in sealed cover. The specific allegation is that the petitioner has copied the contents of the pen-drive on his laptop with ulterior motive and thereby failed to maintain integrity. In the examination-in-chief of P.W.1, the then District Judge, clearly admitted that after completion of examination on the evening of 23.10.2011, he directed his computer in-charge to open the answer key from the pen-drive for the purpose of evaluating question papers. Since the storage in the pen-drive was in a different format, the petitioner was called to open in a higher version computer i.e., laptop carried by him. This deposition shows that there is substantial force in the argument of the learned Senior Counsel for the petitioner that since the alleged event of opening of pen-drive had taken place after conducting the written examination, the question of leakage of question papers/answers to the candidates to benefit them does not arise. The leakage can give benefit to the aspirants only if it takes place before conduction of examination. The deposition of P.W.1 further shows that he entertained doubt only at the time of interview when similar questions that were asked in the written examination were put to the candidates and they could not answer them, whereas they secured good marks in the written examination. The entire deposition of P.W.1 shows that he was not present at the time when petitioner had allegedly undertaken the exercise of opening the pen-drive in his laptop. Importantly, P.Ws. 2, 3 and 5 could depose that they had seen the petitioner copying confidential information from pen-drive to his laptop. There is no iota of evidence to establish that the petitioner copied the information from pen-drive before handing it over to the District Judge. 40. Learned Senior Counsel for the petitioner has rightly pointed out paragraph No.29 (xxxvii) of the Enquiry Officer’s Report to show that it is founded upon suspicion and not based on proof/evidence. There is no iota of evidence to establish that the petitioner copied the information from pen-drive before handing it over to the District Judge. 40. Learned Senior Counsel for the petitioner has rightly pointed out paragraph No.29 (xxxvii) of the Enquiry Officer’s Report to show that it is founded upon suspicion and not based on proof/evidence. In catena of judgments it was held that findings of the Enquiry Officer must be based on evidence on record and cannot be on mere ipse dixit of Investing Officer {see judgment of Supreme Court in the case of Anil Kumar vs. Presiding Officer, 1985 (3) SCC 378 and Roop Singh Negi (supra)}. Thus, we are constrained to hold that charge No.1 is based on no evidence. 41. Apart from this, in paragraph No.17 of the punishment order, the Disciplinary Authority opined that even if benefit of doubt is given to the petitioner regarding copying of the contents of pen-drive into his laptop, the other charge was held to be established viz., (i) he was entrusted with confidential duties relating to conducting of examination in question, (ii) in that event, he was given a pen-drive in a sealed cover to be confidentially handed over to the District Judge (P.W.1) who was conducting the written examination and (iii) the charged officer handed over pen-drive to the District Judge in a open state. We failed to understand how these three aspects can become foundation for holding charge No.1 as proved. 42. The opening sentence of paragraph No.17 of punishment order shows that the Disciplinary Authority was not satisfied that the allegation of copying the contents in the pen-drive was established based on any legal evidence. Thus, he separated the charge No.1 by assigning aforesaid three reasons. The first and second reasons mentioned above do not constitute any misconduct. So far reason No.3 above is concerned, suffice it to say that no allegation is made in the charge sheet that the petitioner has not handed over the pen-drive to the District Judge in a sealed envelope, whereas the portfolio Judge handed over the pen-drive in a sealed envelope. If pen-drive was handed over to the District Judge in an open state, the learned District Judge ought to have verified from the concerned portfolio Judge whether it was sent in a sealed cover or in an open state. If pen-drive was handed over to the District Judge in an open state, the learned District Judge ought to have verified from the concerned portfolio Judge whether it was sent in a sealed cover or in an open state. In view of the judgments of the Supreme Court in the cases of Laxmi Devi Sugar Mills v. Nand Kishore Singh, AIR 1957 SC 07 and M.V.Bijlani v. Union of India, (2006) 5 SCC 88 , the delinquent employee cannot be subjected to punishment on an allegation which was not subject matter of charge sheet. Thus, for this reason also charge No.1 cannot be treated to be established against the petitioner. Charge No.2: 43. As noticed above, the allegation in this charge is that the petitioner frequently called the District Judge (P.W.1) over phone in an unusual manner showing undue interest regarding the selection in question. The highlighted portion of charge No.2 itself shows that it is founded upon ‘suspicion’. No prosecution witness could depose anything with accuracy and precision regarding this charge No.2. P.W.1 could not depose the time and date of calls allegedly made by the petitioner. No call details were produced. P.W.1 candidly admitted that the petitioner did not call him over phone any time to enquire about the recruitment process. P.W.4 also admitted that the petitioner had not pressurised him directly or indirectly for speeding up the recruitment process. The District Judge (P.W.1) clearly admitted that the petitioner sought no favour from him in relation to selection in question. Thus, we do not find any difficulty in accepting the contention of the petitioner that charge No.2 could not be established in the Departmental Enquiry. Charge No.6: 44. The charge No.6 contains a repetitive allegation that the petitioner copied the contents of pen-drive in another computer and intelligently ensured that the said pen-drive can only be opened by the petitioner in his laptop. The statement of P.W.1 shows that he admitted that the concerned portfolio Judge directed him to return the pen-drive to the petitioner because it contains partly dictated orders and judgments. P.W.1 further stated that he has no iota of evidence with him about leakage of papers, but he entertained a doubt because certain candidates who scored good marks in written examination could not answer same questions in the interview. P.W.1 further stated that he has no iota of evidence with him about leakage of papers, but he entertained a doubt because certain candidates who scored good marks in written examination could not answer same questions in the interview. The relevant portion of his deposition reads thus: “As the candidates who scored highest marks in the written test could not even answer the same questions in the question paper in the interview, I strongly suspected that as the question paper was leaked that they got highest marks in the written test.” (Emphasis Supplied) 45. Thus, whole allegation is founded upon suspicion. It is trite that suspicion, however, strong it may be cannot take the place of proof {see H.C. Goel (supra), Nand Kishore Prasad v. State of Bihar, 1978 SCR (3) 708, Roop Singh Negi v. Punjab National Bank, 2009 (2) SCC 570 and judgment of Madhya Pradesh High Court in the case of Union of India v. V.K. Girdonia, 2002 SCC OnLine MP 407}. The common string travelling through these authorities is that delinquent employee cannot be crucified merely on the basis of suspicion. 46. In view of foregoing discussion, it is clear like cloudless sky that all the charges are interrelated and based on same factual foundation relating to purity of written examination. The findings of Enquiry Officer are based on no evidence. The learned Enquiry Officer shifted the burden on the shoulders of the petitioner to disprove the charge which practice is unknown to law. In this view of the matter, the punishment order based on such cryptic Enquiry Report and not based on any legal evidence cannot sustain judicial scrutiny. 47. Since in our judgment, it is a case of no evidence, it is not necessary to examine the argument of learned Senior Counsel for the petitioner raising eyebrows on the procedural part of the enquiry. Similarly, once charges are found to be not proved and findings are held to be perverse, the punishment order must be axed. Hence, there is no need to put the punishment order to test on the anvil of doctrine of proportionality. 48. In view of foregoing discussion, the impugned order of punishment dated 12.09.2016 and order of review dated 18.11.2017 are set aside. Since the petitioner has crossed the age of superannuation, the question of his reinstatement does not arise. Hence, there is no need to put the punishment order to test on the anvil of doctrine of proportionality. 48. In view of foregoing discussion, the impugned order of punishment dated 12.09.2016 and order of review dated 18.11.2017 are set aside. Since the petitioner has crossed the age of superannuation, the question of his reinstatement does not arise. The petitioner in this Writ Petition has not pleaded that after removal from service, he was not gainfully employed elsewhere. In U.P. State Brassware Corpn. Ltd. v. Uday Narain Pandey, (2006) 1 SCC 479 , it was held as under: “61. It is not in dispute that the Respondent did not raise any plea in his written statement that he was not gainfully employed during the said period. It is now well-settled by various decisions of this Court that although earlier this Court insisted that it was for the employer to raise the aforementioned plea but having regard to the provisions of Section 106 of the Evidence Act or the provisions analogous thereto, such a plea should be raised by the workman.” (Emphasis Supplied) 49. In Kendriya Vidyalaya Sangathan v. S.C. Sharma, (2005) 2 SCC 363 , it is held as under: “16… When the question of determining the entitlement of a person to back wages is concerned, the employee has to show that he was not gainfully employed. The initial burden is on him. After and if he places materials in that regard, the employer can bring on record materials to rebut the claim. In the instant case, the respondent had neither pleaded nor placed any material in that regard.” (Emphasis Supplied) Similar view is taken in Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya, (2013) 10 SCC 324 . 50. In absence of necessary pleadings, the petitioner is not entitled to get back wages. Accordingly, while blotlessly exonerating him from charges, we deem it proper to direct the respondents to treat the petitioner in service on notional basis till his date of superannuation. This order shall reap all pensionary benefits to the petitioner from due date. The respondents shall complete the aforesaid exercise within ninety (90) days from the date of communication of this order and pay the due benefits to the petitioner. 51. The Writ Petition is allowed to the extent indicated above. There shall be no order as to costs. Miscellaneous petitions pending, if any, shall stand closed.