Gauhati High Court
Jiten Borah vs The Union Of India & Ors on 21 September, 2012
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MEGHALAYA, MANIPUR,
TRIPURA, MIZORAM AND ARUNACHAL PRADESH)
WP(C) No. 2420/2010
Sri Jiten Borah,
S/o. Nila Kanta Borah,
Resident of Khatowal Gaon,
PS Sivasagar, District : Sivasagar.
...........Petitioner
-Vs-
1. The Union of India, represented by its Secretary to the
Home Ministry, Government of India, New Delhi.
2. The Director General, Central Industrial Security Force
(CISF), New Delhi.
3. The Deputy Inspector General (DIG), CISF Unit, OIL,
Duliajan, Assam.
4. The Commandant, CISF Unit, OIL, Duliajan, Assam.
5. The Deputy Commandant / Enquiry Officer, CISF Unit,
OIL, Duliajan, Assam.
6. The Assistant Commandant cum Presenting Officer, CISF
Unit, OIL, Duliajan, Assam.
..........Respondents.
BEFORE
THE HON'BLE MR. JUSTICE B.K. SHARMA
For the petitioner : Mr. S.K. Talukdar, Adv.
For the respondents : Mrs. B. Das, CGC
Date of hearing : 21.9.2012.
Date of judgement : 21.9.2012.
WP(C) 2420 of 2010 Page 1 of 1
JUDGEMENT AND ORDER (ORAL)
Sharma, J The petitioner is aggrieved by the Annexure-7 order dated 31.12.2009, by which pursuant to a departmental proceeding, he has been dismissed from service. The petitioner is also aggrieved by Annexure-9 order dated 15.03.2010 by which his departmental appeal preferred against the said order of dismissal from service has also been rejected.
2. The petitioner while was serving as Constable of Field Sector, CISF Unit, OIL, Duliajan, was served with a memorandum of charge sheet dated 31.3.2009 levelling the charge of committing the act of gross misconduct, indiscipline and irresponsible act in that while he was deployed at Dog Squad. The Article of charge was as follows :-
"That CISF No. 943400097 Constable Jiten Borah of Field Sector, CISF Unit OIL Duliajan has committed an act of gross misconduct, indiscipline and irresponsible act in that while he was deployed at Dog Squad as a Dog Handler he sent threaten letter to our four Senior Officers for to leave Assam within 01 month, to kill in office and residence by Human Bomb or Car Bomb, to threat Dog Handler to leave Assam or to kill them and for disturbing the activities of ULFA by the CIW personnel which explaining the said facts in the threaling letter."
3. In the statement of imputation of misconduct and indiscipline in support of article of charge, it was stated this :-
"STATEMENT OF IMPUTATION OF MISCONDUCT AND INDISCIPLINE IN SUPPORT OF ARTICLES OF CHARGE FRAMED AGAINST NO. 943400097 CONSTABLE JITEN BORAH OF FIELD SECTOR CISF UNIT OIL DULIAJAN.
ARTICLE OF CHARGE That SISF No. 943400097 Constable Jiten Borah of Field Sector, CISF Unit OIL Duliajan while he was deployed in Dog Squad as a Dog handler for the period of Mar'2004 to May'2008. During the said period he was sent threatening letter separately to Srhi D.S. Rawat, Dy. Inspector General, Shri C.L. WP(C) 2420 of 2010 Page 2 of 2 Chakroborty, Asstt. Comdt. (Now Dy. Comdt.), Shri S.K. Mishra, Asstt. Comdt. And Shri Rama Oraon, Asstt. Comdt. From Duliajan Post Office on 31.01.2008 which were received by the concerned officer on 2.2.08 in the false name of sender Pranab Das, ULFA Propaganda Secretary Duliajan that non- Assamies Gazetted officer shall leave Assam within one month otherwise they will kill by ULFA Candidate by using Car Bomb or human Bomb at their office or residence and Dog Handlers will leave Assam or otherwise they will also kill for disturbing the activities of ULFA candidates by the CISF personnel particularly CIW Staff and Dog Squad personnel. After deep study of the all letters by the senior officers, it is revealed that the letters were wrotten by the Disatisfy CISF personnel rather than ULFA Candidate as contained in the letter threat to Dog Handlar and also papers were used which was supplied by the OIL Management to the office of the CISF. After verification of the available documents in the CISF Unit OIL Duliajan at Dog Squad the handwriting as written as address on the four envalopes are similar of handwriting as Constable Jiten Bora which are found from Dog Training Practice Register, writting semple of Const. Jiten Bora dated 06.04.2008, as he filled up Details of Family Form dated 31.08.1998, DCRG Form dated 31.08.1998, RMS Fund Form, CGEGIS Form, CL Application dated 19.01.2007, Note Sheet dated 03.09.07, Dated 3.10.07, dated 3.10.07 and dated 3.9.07, written on question papers during Rotation Course dt. 31.07.2007 and dated 03.10.2008 and as semple Dog Handler Biodata Form written by Const. Jiten Bora and handwriting the above four threaten letters are verified from the Government Examiner of Questioned Documents, Directorate of Forensic Science, Kolkata vide CISF Unit OIL Duliajan letter No. IC-17013/CISF/INT/OIL(D)/08/11070 dated 18-7- 2008 and their letter No. DXC/131/2008/1237 dated 07.08.2008 that it is proved that the all above documents and four threaten letters were wrote by the one person Const. Jiten Bora. Being a member of Armed Force of Union, the act committed by CISF No. 943400097 Constable Jiten Borah is not only amounts to gross misconduct, indiscipline and irresponsible attitude but also to give bad affect on other member of the Force and furnishing the image of Force."
4. The petitioner by his annexure-4 written statement-cum-show cause reply dated 22.5.2009 denied the charge levelled against him WP(C) 2420 of 2010 Page 3 of 3 as baseless and fabricated. He denied that he had done any act of gross misconduct, indiscipline and irresponsibility.
5. In due course, the disciplinary authority, being not satisfied with the explanation furnished by the petitioner conducted an enquiry by appointing an Enquiry Officer who in his report held the petitioner guilty of the charge.
6. The copy of the enquiry report was furnished to the petitioner enabling him to make representation against the same. Thereafter the petitioner having been dismissed from service by the impugned final order dated 31.12.2009 (Annexure-7), the petitioner preferred the departmental appeal urging various grounds towards assailing the order of dismissal. The departmental appeal having been dismissed by the impugned Anneuxre-9 order dated 15.3.2010, the petitioner invoked the writ jurisdiction of this Court by filing the instant writ petition.
7. Various grounds have been urged towards assailing the order of dismissal, such as non-maintainability of the departmental proceeding, procedural irregularity in conducting the enquiry, denial of reasonable opportunity of being heard, etc. According to the petitioner, the disciplinary authority measurably failed to establish the charge against the petitioner. It has been contended that the whole basis of the findings recorded by the Enquiry Officer and the disciplinary authority being based on the report furnished by the Examiner of Documents in question ought to have been examined in the enquiry and that he having not been examined, the opinion formed on the basis of the said report towards dismissal of the petitioner from service, is not sustainable in law. It has also been contended that in absence of any specimen handwritings of the petitioner examined by the purported handwriting expert, the enquiry Officer could not have recorded the finding of guilt against the petitioner on the basis of the expert's report prepared in reference to some other documents purportedly containing the handwritings of the petitioner.
WP(C) 2420 of 2010 Page 4 of 48. The respondents have filed their counter affidavit denying the contentions raised in the writ petition. It has been stated that certain letters in Assamese having been received by some of the Officers of the CISF Unit OIL, Duliajan, a doubt had arisen as to whether the act of writing such letter was the product of any malafide design on the part of its Officers. In due course, it was found that the handwritings on the envelopes of those letters resembled with that of the handwritings of the petitioner appearing in the official documents and accordingly the expert opinion was obtained. In the said opinion, the handwriting expert having conclusively opined that the questioned handwritings vis-à-vis the handwritings contained in the documents in which the handwritings of the petitioner appeared belonged to one and the same person, the same had given finality to the matter. According to the respondents, the witnesses examined by the disciplinary authority having also stated in their evidence that the questioned handwritings resembled with that of the handwritings of the petitioner, there was no escape from the conclusion arrived at, both by the Enquiry Officer and the Disciplinary Authority that the charge levelled against the petitioner stood established in the enquiry.
9. I have heard Mr. S. K. Talukdar, learned counsel for the petitioner as well as Mrs. B. Das, learned CGC appearing for the respondents.
10. Mr. Talukdar, learned counsel for the petitioner in his submissions emphasized on the need for strict compliance of the established procedure in conducting the departmental proceeding. According to him, the procedure adopted by the Enquiry Officer in conducting the enquiry was wrong by its very nature. He also submits that the whole basis of the order of penalty of dismissal from service being the handwriting expert's opinion, non-examination of the said expert was fatal. He further submits that the opinion rendered by the handwriting expert without any objectivity attached to it cannot be accepted as expert opinion. Elaborating his argument, he also WP(C) 2420 of 2010 Page 5 of 5 submits that in case of any doubt requiring expert opinion, specimen handwriting of the petitioner ought to have been obtained for production before the expert to arrive at a definite finding in respect of the questioned handwritings. According to him, it being not a case of the respondents that the particular letters written in Assamese contained in the questioned envelopes were the letters written by the petitioner, solely on the basis of the English handwritings over the envelope vis-à-vis the purported handwritings of the petitioner on some official documents could not have led to conclusive establishment of the charge against the petitioner.
11. In support of the aforesaid submissions made by Mr. Talukdar, learned counsel for the petitioner, he has placed reliance on certain decisions of the Apex Court, which are as reported in AIR 1964 SC 529 (Shashi Kumar Banerjee and others Vs. Subodh Kumar Banerjee) ; AIR 1977 SC 109 (Magan Bihari Lal Vs. The State of Punjab) ; AIR 1986 SC 995 (Sawai Singh Vs. State of rajasthan) ; (1997) 7 SCC 280 (State of HP Vs. Jail Lal and others) ; (2008) 13 SCC 133 (Babloo Pasi Vs. State of Jharkhand and another) and (1981) 1SCC 80 (Ramji Dayawala and Sons (P) Ltd Vs. Invest Import).
12. Countering the above argument, Mrs. B. Das, learned CGC justifying the impugned orders submits that when the handwriting expert has conclusively opined that the questioned handwritings are the handwritings of the petitioner in reference to his handwritings appearing in other official documents, this Court exercising its power of judicial review under Article 226 of the Constitution of India will not sit on appeal over such findings of the handwriting expert. She submits that the said opinion of the handwriting expert having been corroborated by the witnesses examined on behalf of the disciplinary authority, the findings arrived at by the Enquiry Officer is legally sustainable and not liable to be interfered with. Referring to the impugned orders, she has also submitted that both the authorities i.e. the disciplinary authority and appellate authority having discussed the entire materials on record towards recording their findings, the said findings cannot be set at naught re-appreciating WP(C) 2420 of 2010 Page 6 of 6 the materials on records exercising writ jurisdiction like an appellate authority.
13. As regards the decisions on which the learned counsel for the petitioner has placed reliance, she submits that the ratio laid down in the said decisions will have to be understood in the background of the fact situation involved in the instant proceeding. According to her, none of the decisions renders any support to the case of the petitioner.
14. I have considered the submissions made by the learned counsel for the parties and have also perused the entire materials on record including the departmental proceeding files produced by Mrs. B. Das, learned CGC.
15. As to what is the charge that was levelled against the petitioner along with the statement of imputation of misconduct and indiscipline has been noted above. The charge against the petitioner is that he had written the threatening letters to 4 (four) senior officers of the CISF directing them to leave Assam ; to kill in office and residence by human bomb or car bomb etc. It is on record that all the letters (total 4) had been written in Assamese. However, the envelopes containing the said letters contained the address of the addressees in English. Although the charge against the petitioner is that it was he who had written the threatening letters (in Assamese) but what has been established in the enquiry is that the handwritings appearing on the envelopes containing the said letters are handwritings of the petitioner. The same has purportedly been established in reference to the official documents containing the handwritings of the petitioner and exhibited in the enquiry proceeding.
16. It is on this count, Mr. S.K. Talukdar, learned counsel for the petitioner has strenuously argued that since the charge of writing the threatening letters cannot be said to have been established solely on the basis of resemblance of the handwritings of the petitioner WP(C) 2420 of 2010 Page 7 of 7 appearing in the official documents vis-à-vis the handwritings appearing in the envelopes containing those letters, the whole approach of the authorities, namely, Enquiry, Disciplinary and Appellate was wrong, inasmuch as, the charge of writing the threatening letters cannot be said to have been established on the basis of the purported identity of the petitioner's handwriting over those envelopes written in English.
17. On a close scrutiny of the charge that was levelled against the petitioner what is found is that the definite and distinct charge against the petitioner was that of writing threatening letters to four senior officers with the threatening notes. In the statement of imputation of misconduct and indiscipline, it was indicated that after deep study of all the letters by the senior officers, it was revealed that the letters were written by the dis-satisfied CISF personnel rather than members of the militant organisation as indicted in the letters. It was also indicated that upon verification of available documents in the CISF Unit, OIL, Duliajan at Dog Squad, the handwriting of the addresses on the four envelopes were found similar to that of the handwritings of the petitioner found on various official documents. Thus, although the basic charge is that of writing the threatening letters by the petitioner, which are all in Assamese but the ultimate verification confined only to the handwritings in English appearing in the envelopes containing those letters vis-à-vis the handwritings of the petitioner appearing in the official documents.
18. The question that necessarily arises for consideration is as to whether even if the same is accepted, whether that by itself will go to show that it is the petitioner who had written those letters in Assamese as contained in the questioned envelopes. The charge of writing those letters had been attributed to the petitioner solely on the basis of the verification made in respect of the English handwritings appearing in the envelopes vis-à-vis the handwritings appearing in various official documents pertaining to the petitioner. In the process, no endeavour was made to find out as to whether, in WP(C) 2420 of 2010 Page 8 of 8 fact, the letters had been written by the petitioner and whether the handwriting appearing on those letters are that of the petitioner.
19. In the enquiry, the disciplinary authority examined 8(eight) witnesses. PW-1 could not be examined as inspite of service of notice, he did not appear in the enquiry. PW-2,3 and 4 in their depositions have stated that the handwritings appearing in the envelopes tallied /matched with the handwritings of the petitioner. PW-5 in his deposition stated about the exercise that was carried out towards conducting and obtaining the expert opinion. This witness in his deposition stated about the letter written by the Govt. Examiner on the questioned documents (Q2, Q2/1, Q3, Q3/1, Q4 and Q5) vis-à- vis specimen handwritings of the petitioner contained in the documents (S1 to S3 and A1 to A27). PW-6 and 7 identified the official documents containing the handwritings of the petitioner. PW- 8 in his deposition produced the prosecution exhibits as indicated in his deposition. PW-9 in his deposition stated about his working with the petitioner as Dog Handler of the CISF Unit. He also stated in his deposition that the petitioner had told him that one Shri D.S. Rawat, DIG, had been threatened by someone, but the allegation was made against the petitioner.
20. From the above discussion of the evidence on record and adduced on behalf of the disciplinary authority, what is seen is that only indication against the petitioner in respect of the charge is that the questioned handwritings over the envelopes had tallied / matched with that of the other exhibited handwritings belonging to the petitioner. As noted above, the PW-5 and PW-8 in their depositions stated about the communications made with the handwriting expert and also exhibited the documents in question. There is no independent testimony of the said witnesses and naturally so in absence of any expertise with the questioned handwritings. The said witnesses could not prove that the said handwritings are the handwritings of the petitioner. They only stated that the said handwritings tallied / matched with that of the other handwritings of the petitioner appearing in other official documents.
WP(C) 2420 of 2010 Page 9 of 9Merely because in their opinion, the handwritings had tallied / matched, that by itself cannot lead to the irresistible inference and / or conclusion that the questioned handwritings are the handwritings of the petitioner.
21. This now leads us to most important aspect of the matter which is as to whether in the test of preponderance of probability, the impugned order of dismissal from service could be sustained solely on the basis of the opinion rendered by the handwriting expert. For a ready reference, the opinion furnished by the office of the Government Examiner of Questioned Documents, Directorate of Forensic Science, Ministry of Home Affairs, Govt. of India vide its letter dated 7.8.2008 is quoted below :-
"Office of the Government Examiner of Questioned Documents DIRECTORATE OF FORENSIC SCIENCE Ministry of Home Affairs, Govt. of India 30, Gorachand Road, Kolkata-700 014.
OPINION No. EDXC-131/2008 DY. INSPECTOR GENERAL CISF UNIT OIL DULIAJAN POST : DULIAJAN DIST-. DIBRUGARH ASSAM.
The documents of this case have been carefully and thoroughly examined.
2. The person who wrote the blue enclosed writings stamped and marked S1 to S3 and A 1 to A27 also wrote the red enclosed writings similarly stamped and marked Q2, Q2/1, Q3, Q3/1, Q4 and Q5.
3. It has not been possible to express any opinion on rest of the items on the basis of the material at hand.
Sd/-
( I.K. Arora), M.Sc., GOVT. EXAMINER OF QUESTIONED DOCUMENTS."WP(C) 2420 of 2010 Page 10 of 10
22. From the above, what is seen is that the person who wrote the supplied documents to the experts had also written the questioned envelopes. Apart from the fact that no reason for arriving at such a conclusion is discernible from the said report, it also does not say anything about the letters written in Assamese as the same were not sent for examination. The opinion further states that it was not possible to express any opinion on rest of the items on the basis of the materials supplied. Apart from the fact that the opinion does not disclose the basis of formation of opinion or any reason therefor. Solely on the basis of the said opinion, the Enquiry Officer could not have held the charge against the petitioner to have been established.
23. In Shashi Kumar Banerjee (supra), in reference to the provisions of the Evidence Act and dealing with the evidential value of the expert's evidence, it was held that the expert's evidence as to handwriting is only opinion evidence and it can rarely, if ever, take the place of substantive evidence. It has further been held that before acting on such evidence, it is usual to see if it is corroborated either by clear direct evidence or by circumstantial evidence. In paragraph 23 of the judgement, it has been observed thus :-
"23. Finally we may point out that the expert admitted in his evidence that it was only by a chemical test that it could be definitely stated whether a particular writing was of a particular year or period. He also admitted that he applied no chemical tests in this case. So his opinion cannot on his own showing have that value which it might have had if he had applied a chemical test. Besides we may add that Osborn on "Questioned Documents" at p.464 says even with respect to chemical tests that "the chemical tests to determine age also, a sa rule, are a mere excuse to make a guess and furnish no reliable data upon which a definite opinion can be based:. In these circumstances the mere opinion of tdhe expert cannot override the position evidence of the attesting witnesses in a case like this where there are no suspicious circumstances. "
24. In Sawai Singh (Supra), it has been held that in case of placing reliance on the opinion tendered by the handwriting expert, he is required to be examined in the enquiry giving the WP(C) 2420 of 2010 Page 11 of 11 opportunity to cross examination by the delinquent officer. As in the instant case, in the said case also, the charge against the delinquent official was sought to be established on the basis of the opinion given by the handwriting expert. However, the handwriting expert was not available for cross examination on the ground that that at that time he was died. Irrespective of the said position, it was held that if evidence of handwriting expert was necessary to prove the guilt of the appellant then it was necessary on the part of the department to adduce evidence to call another handwriting expert to corroborate the charge. In paragraph 18 of the said judgement, it has been observed thus :-
"18. Having regard to the consequences with which the delinquent officer was charged and having regard to the nature of charge and the evidence of hand-writing expert and the absence of opportunity for cross-examination and the conflicting nature of evidence of Chaturbhuj and nature of evidence given by Jiwan Das, we are of the opinion that the report of the enquiry officer finding the appellant guilty should not have been sustained and the government should not have acted upon it. The High Court, in our opinion, with great respect, was in error in not bearing in mind these aspects which have been indicated hereinbefore. "
25. The decision in Magan Bihari Lal (Supra) has been pressed into service to buttress the argument that expert opinion must always be received with great caution and perhaps none so with more caution more than the opinion of a handwriting expert. Reiterating the settled position of law, the Apex Court observed that there is a profusion of precedential authority holding that it is unsafe to base a conviction solely on expert opinion without substantial corroboration. Although, the said case was in respect of a criminal proceeding but even in the touch stone of "Pre-ponderance of probability", in a departmental proceeding it will be unsafe to impose the extreme penalty of dismissal from service solely on the basis of the expert opinion quoted above to which no objectivity or reason is attached coupled with the fact that there is also no corroborative evidence.
WP(C) 2420 of 2010 Page 12 of 1226. In Jai Lal (Supra), the Apex Court held that an expert is not a witness of fact. His evidence is really of advisory character. It has been held in the said case, the report submitted by an expert does not go in evidence automatically. He is to be examined as witness and has to face cross examination.
27. The decision in Babloo Passi(Supra) has also been pressed into service to buttress the said arguments. In paragraph 28 and 29, it has been observed thus :-
"28. It is trite that to render a document admissible under Section 35, three conditions have to be satisfied, namely ; (i) entry that is relied on must be one in a public or other official book, register or record ; (ii) it must be an entry stating a fact in issue or a relevant fact, and (iii) it must be made by a public servant in discharge of his official duties, or in performance of his duty especially enjoined by law. An entry relating to date of birth made in the school register is relevant and admissible under Section 35 of the Act but the entry regarding the age of a person in a school register is of not much evidentiary value to prove the age of the person in the absence of the material on which the age was recorded.
29. Therefore, on facts at hand, in the absence of evidence to show on what material the entry in the voters' list in the name of the accused was made, a mere production of a copy of the voters' list, though a public document, in terms of Section 35, was not sufficient to prove the age of the accused. Similarly, though a reference to the report of the Medical Board, showing the age of the accused as 17-18 years, has been made but there is no indication in the order whether the Board had summoned any of the members of the Medical Board and recorded their statement. It also appears that the physical appearance of the accused, has weighed with the Board in coming to the aforenoted conclusion, which again may not be a decisive factor to determine the age of a delinquent."
28. The decision in Invest Import (Supra), has been cited to emphasis the need for examining the author of expert opinion. In paragraph 16 of the said judgement, it has been observed thus :-
WP(C) 2420 of 2010 Page 13 of 13"16. .......................................Undoubtedly, mere proof of the handwriting of a document would not tantamount to proof of all the contents or the facts stated in the document. If the truth of the facts stated in a document is in issue mere proof of the handwriting and execution of the document would not furnish evidence of the truth of the facts or contents of the document. The truth or otherwise of the facts or contents so stated would have to be proved by admissible evidence, i.e. by the evidence of those persons who can vouchsafe for the truth of the facts in issue."
29. In the instant case, the fact of the matter is that the handwriting expert was not even cited as a witness, not to speak of examining him as one of the witnesses of the disciplinary authority. If an opinion of the said expert was sought to be relied upon by the disciplinary authority, the said expert must have been examined for non-examination of the said witness, on whose opinion, misconduct on the part of the petitioner was sought to be established, denied the petitioner the reasonability of being heard, which resulted in failure of justice. Apart from the fact that no reason has been assigned in the opinion for coming to the said conclusion, in the event of examining the handwriting expert in support of the expert opinion, the petitioner could have got the opportunity to cross examine him to prove the opinion otherwise. It will be too dangerous to return the finding of established misconduct against the petitioner solely on the basis of the said opinion rendered by the handwriting expert.
30. Although, Mrs. B. Das, learned CGC, during the course of argument emphatically submitted that the said opinion is supported by the corroborative evidence of the PWs but when the expert opinion itself is not acceptable for the reasons stated above, there is no question of corroborating the said opinion by the PWs. As to what they have deposed in the enquiry has been noted above. Some of the witnesses have only stated about the similarity of the handwritings with the expressions tallied / matched, which by itself cannot lead WP(C) 2420 of 2010 Page 14 of 14 to the irresistible conclusion that it is the petitioner who was instrumental in writing the letters.
31. Even if it is accepted for argument sake that the handwritings appearing in the questioned envelopes resemble with that of the handwritings appearing in the other official documents pertaining to the petitioner, it cannot be said that the threatening letters had been written by the petitioner as the said letters have never been examined to establish that the said letters, in fact, written by the petitioner. It is solely on the basis of the questioned handwritings appearing in the envelopes, the misconduct of writing the threatening letters was sought to be attributed to the petitioner, in my opinion, such a course of action towards establishing the particular charge did not conform to the requirement of establishing the basic charge against the petitioner even in the touch stone of preponderance of probability.
32. As has been observed by the Apex Court in LIC of India Vs. Ram Pal Singh reported in (2010) 4 SCC 491, mere admission of documents in evidence does not amount to its proof. In other words, mere making of exhibit on a document does not dispense with its proof, which is required to be done in accordance with law. As noted above, the documents including the expert opinion were only exhibited without proving the same as required. At the most, the said documents may amount to admission if its contents but not its truth. Mere fact that the documents were exhibited in the enquiry did not mean that their contents stood proved.
33. As to what was the evidence led in the enquiry has been discussed above. It is not a case of careful consideration of the handwriting expert's opinion vis-à-vis the other documents containing the handwritings of the petitioner by the Enquiry Officer and the disciplinary authority to arrive at their own conclusions. The whole basis of holding the charge as established against the petitioner was the handwriting expert's report, without however, examining him as WP(C) 2420 of 2010 Page 15 of 15 a witness giving the opportunity of cross-examination to the petitioner to prove the report otherwise.
34. For all the aforesaid reasons, the writ petition deserves to be allowed, which I accordingly do by setting aside and quashing the impugned orders dated 31.12.2009 (Annexure-7) and 15.3.2010 (Annexure-9). The petitioner shall be reinstated in service with continuity in service, without however, any back wages, on the principle of no work no pay, coupled with the fact that the disciplinary proceeding was initiated against him on certain facts which were very disturbing and thus cannot be said to be without any basis.
35. The writ petition is allowed to the extent indicated above, without however, any order as to costs.
JUDGE Sukhamay WP(C) 2420 of 2010 Page 16 of 16