NAVIN SINHA, J.

1. The Petitioner was issued memo of charges on seven counts. In the departmental proceeding a finding of guilt was returned with regard to Charges No. 1 (d), 2,4 and 6. A second Show Cause Notice was issued replied to by the Petitioner when the punishment of dismissal has been imposed by Order dated, 26th September, 1997, presently assailed.

2. Learned Senior Counsel, Shri Chitranjan Sinha with regard to charge 1 (d) submitted that the Inquiry Officer relied upon an enquiry report of the Anchal Adhikari, who in turn was stated to have recorded the statement of two employees making allegations against the Petitioner of having demanded illegal gratification.The Petitioner denied the charge in his reply. It was, therefore, necessary for the Inquiry Officer to have examined the Anchal Adhikari and the other two employees as witnesses to prove the allegations. Irrespective of the fact that the Petitioner may have made no request to summon them for cross-examination does not detract from the primary responsibility of the prosecution to prove its own case and for the Inquiry Officer to examine them and record their statements forthe purpose. In absence of the same, it becomes the mere ipse fixit of the Inquiry Officer and an basis of materials outside the inquiry, making the finding unsustainable as based on conjectures and surmises. Reliance was placed on a Bench decision of this Court reported in 2000 (3) PLJR 10 (Kumar Upendra Singh Parimar V/s. B.S. Co-Opt Land Dev. Bank Ltd. and Ors.) in support thereof. With regard to Charge No. 2, learned Counsel submitted that the statement of the person whom the Petitioner is alleged to have assaulted and the witnesses in whose presence the assault is alleged to have been made have not been examined. The Inquiry Officer has relied upon an enquiry report submitted by the Anchal Adhikari. The Inquiry Officer then imports his personal knowledge to hold that during his site visit he had inquired from people generally who had confirmed the occurrence. Thus, becoming a witness himself vitiating the whole enquiry. With regard to Charge No. 4, it was submitted that the Petitioner was on casual leave on 10th May, 1995. No material was placed before the Inquiry Officer to arrive at the finding that the Petitioner had been directed to report for duty on 11th May, 1995 when it was a Gazetted holiday from the latter dated till 14th May, 1995. To hold him guilty the Inquiry Officer simply states that employees at the District headquarters and Anchal headquarters are aware of their deputation during important festival like Bakrid. The Petitioner, therefore, had no right to remain on a Gazetted holiday. The submission, therefore, was that in absence of proof for direction to be present on 11t May, 1995 the finding was perverse. No Order of 11th May, 1995 had been brought on record. On Charge No. 6, it was submitted that the Petitioner had submitted his report on basis of an Order passed of Deputy Collector, Land Reforms in Bataidari Case No. 6 of 1992-1993.That aspect of the matter has not been considered at all before returning a finding of guilt making it perverse.

3. It was lastly submitted that even if the disciplinary Authority agreed with a Inquiry Officer and decided to impose punishment after issuance of second Show Cause Notice, it could not have been done in the manner presently sought to be done. The Disciplinary Authority was required to briefly discuss the case, the defence of the delinquent, materials before the Inquiry Officer and reply to the second Show Cause Notice to indicate consideration of the matter by independent application of mind. That also not having been done, the Order of punishment was bad. Reliance was placed on (1990) 4 SCC 594 and A.I.R. 2007 Supreme Court 1363. Learned Counsel for the Respondents urged that the Petitioner never made any request to cross examine any prosecution witness. He did not ever participate in the enquiry effectively. The re