For what has been discussed above, I have not been able to lay hands in any incriminating evidence which was made the basis for conviction of the appellant. As far as recording of the statement of the complainant before the inquiry officer, the same cannot be read in evidence unless and otherwise the appellant was provided right of cross-examination upon the complainant at the preliminary stage. The department miserably failed to prove the charge against the appellant by production of unimpeachable evidence. Further, I may observe here that a public servant should not be penalized unless and until it is proved that he did not perform his duty efficiently, while awarding any penalty to civil servant legal formalities have to be fulfilled but in this case the department has failed to fulfill legal requirements which caused prejudice to the appellant, hence the charges leveled against the appellant remained unproved.

7. In view of what has been discussed above, this appeal is allowed, impugned order dated 5.10.2023 is set aside. Appellant is reinstated into service and the intervening period shall be treated as leave of the kind due.