JUDGMENT S. H. A. Raza, J. 1. The petitioner who was Assistant Store Purchase Officer in the department of Sanjai Gandhi Post Graduate Institute of Medical Sciences, aggrieved against the order of his removal from service, has invoked the jurisdiction of this Court under Article 226 of the Constitution of India mainly on the grounds that the copy of the preliminary enquiry report which was relied upon by the Inquiry Officer was not furnished to him ; the evidence and the finding does not relate to the charge; the defence of the petitioner was not considered by the Inquiry Officer ; the Inquiry Officer did not record any evidence except the petitioner and submitted enquiry report to the disciplinary authority and lastly that the role of the accounts officer as well as of the petitioner was similar to the extent, that both had recommended the purchase of Desert Cooler from a particular shop at a particular price but the accounts officer who was also proceeded with the departmental inquiry was awarded warning while the petitioner was removed from service. 2. The allegations against the petitioner, as set out in the charge sheet were that ten Desert Coolers were received in the Institute supplied by M/s Refrico, 118, Cantonment Road, Near Odeon Cinema, Lucknow, in gross violation of purchase procedure of the Institute, leave aside its nuances and niceties. The case for enquiry got rolling with the receipt of unsigned anonymous letter Upon the receipt of the said anonymous letter the petitioner was charged with tampering with the official records violating Rule 3 of the Uttar Pradesh Government Servants' Conduct Rules, 1956 ; suppressed/concealed information relevant to arriving at a correct decision, thereby violating Rule 3 of the Uttar Pradesh Government Servants' Conduct Rules, 1956 ; violated the Purchase Procedure of Sanjai Gandhi Post Graduate Institute of Medical Sciences in regard to the issue of purchase order not approved by the Competent Authority, thereby violating Rule 1 (a) of Chapter 5 of the above mentioned purchase procedure and purchase of coolers over Rs. 10,000/ without calling for tenders etc. 3. 10,000/ without calling for tenders etc. 3. In para 25 of the writ petition it was averred by the petitioner that there was no evidence on record to prove that the Coolers which were purchased for the Institute were available in the market at lower price and as such the finding of the enquiry officer that the financial loss was caused to the Institute was absolutely incorrect. It is reiterated that the Coolers which were purchased at the rate of Rs. 3150/ per cooler are not available in the market at lower price. A perusal of the said report further reveals that enquiry officer had relied on the finding of the preliminary enquiry report. Petitioner was not given a copy of the preliminary report nor it was cited in the charge sheet and as such it could not be relied by the enquiry officer in support of the charges. This aspect of the matter that the petitioner was not given a copy of the preliminary report and the same could not be relied upon by the inquiry officer was not rebutted in the counter affidavit. 4. It was vehemently argued by Sri S. K. Kalia, counsel for the petitioner that although it was not incumbent upon the inquiry officer to have furnished a copy of the preliminary inquiry report to a delinquent but in case it was relied upon by the inquiry officer then it was incumbent upon the inquiry officer to have furnished a copy of the preliminary inquiry report to the delinquent. 5. I have gone through the inquiry report. The inquiry officer has mentioned that Sri J. K. Natu, Finance Officer, Sanjai Gandhi Post Graduate Institute of Medical Sciences conducted the preliminary inquiry and submitted his report consisting of four full scape pages a photo copy of which was annexed as annexureB, page 2124. The inquiry officer further said that those questions were borne out by the inquiry conducted by him. In paragraph 25 of the counter affidavit it has been averred that the preliminary inquiry report had resulted into framing of the charge and also primafacie satisfied the authorites to initiate the disciplinary proceedings against the petitioner and other concerned persons. 6. A vain effort has been made on behalf of Mr. In paragraph 25 of the counter affidavit it has been averred that the preliminary inquiry report had resulted into framing of the charge and also primafacie satisfied the authorites to initiate the disciplinary proceedings against the petitioner and other concerned persons. 6. A vain effort has been made on behalf of Mr. P. K. Khare, counsel for the opposite parties to explain that although the report of preliminary inquiry was relied upon in framing the charges, but the inquiry officer did not rely the same while submitting his report. This argument is misconceived as it has been clearly stated in the inquiry report itself that the conclusions (reached by Mr. J K. Natu, the preliminary inquiry officer) are borne out by the inquiry conducted by the inquiry officer thereafter. 7 Thus it is established that the inquiry officer relied upon the report of Mr. J. K. Natu. Admittedly the copy of the preliminary report was not furnished to the delinquent. It was also not cited as evidence in the memo of charges. As the petitioner was not aware that this inquiry report would be read as evidence by the inquiry officer, there existed no reason for him to have demanded the copy of the said report. 8. In the case of Krishna Chandra Tandon v. Union of India ( AIR 1974 SC 1589 ) Hon'ble Mr. Justice Palekar speaking on behalf of the Bench indicated as under : "It appears that on complaints being received about his work the Commissioner of Income tax had asked the Inspecting Assistant Commissioner Sri R. N. Shrivastava to make a report. He made a report. It is obvious that the appellant was not entitled to a copy of the report made by Mr. Sriva tava or any other officer unless the enquiry officer relied on these reports. It is very necessary for an authority which orders an enquiry to be satisfied that there are prima facie grounds for holding a disciplinary enquiry and, therefore, before he makes up his mind he will either himself investigate or direct his subordinates to investigate in the matter and it is only after he receives the result of these investigations that he can decide as to whther disciplinary action is called for or not. Therefore, these documents of the nature of inter departmental communications between officers preliminary to the holding of enquiry have really no importance unless the Enquiry Officer wants to rely on them for his conclusions." 9. Mr. P. K. Khare, counsel for the respondents submitted that this argument has been raised by the petitioner for the first time before this Court. Even after the inquiry officer submitted a report a copy of which was sent to the petitioner alongwith a show cause notice the petitioner in his explanation did not raise any grievance that he was prejudiced due to the nonfurnishing of the inquiry report to him. Mr. Khare contended that a point which has not been raised before the domestic Tribunal particularly in quasi judicial proceedings the same cannot be agitated in a writ petition. Although it is a settled position that a delinquent is not entitled for the copy of the report of the preliminary inquiry officer, but if the same has been relied by the inquiry officer in the course of the departmental inquiry then requirement of natural justice demand that the same be furnished to the delinquent to meet the allegations. But it has to be borne in mind that if a delinquent is prejudiced in any manner due to nonfurnishing of a document, it is incumbent upon him to make a demand for such a document during the course of the departmertal inquiry. Although the said report was not cited as evidence in the memo of the charges and so there existed no occasion for demanding the same by the delinquent, but after the inquiry was concluded and a copy of the Erquiry report was furnished to him alongwith the show cause notice, he could have very well demanded the same, the copy of preliminary enquiry report that stage or in his explanation he could have raised the grievance that his defence was prejudiced due to nonfurnishing of the said document, but the explanation submitted against the show cause notice is silent over the point, hence the first argument of Mr. S K. Kalia, counsel for the petitioner fails. 10. It has been further submitted that the petitioner was only an Assistant Store Purchase Officer in the department of the institute. S K. Kalia, counsel for the petitioner fails. 10. It has been further submitted that the petitioner was only an Assistant Store Purchase Officer in the department of the institute. As the month of June had begun there was an urgent need of installation of desert coolers and due to this urgent need the matter was placed before the Director who appointed a Committee consisting of three persors, namely, Accounts Officer Sri S K. Asthana, Assistant Store Purchase Officer Sri V. K. Jaiswal (Petitioner) and Senior Resident Sri R K. Tanwar to make a purchase from the market. The petitioner was also charged for violating certain Government Orders which provided the procedure for purchase of materials, that is by inviting tenders from the open market. In view of the fact that the Director himself realising the urgency of the demand of installing coolers had appointed a Committee of three persons to make purchases from the market the petitioner cannot be made responsible for making purchases from the market in violation of the procedure prescribed. The only fault which he is alleged to have committed was that although the Committee consisted of three persons but he alongwith Accounts Officer Sri S. K Asthana visited the market, surveyed it and collected quotations, observed quality, prepared the comparative statement and made a report to the authorities concerned for making the said purchase. Although the Director had appointed three officers for the said purpose, but leaving behind Dr R. K Tanwar the petitioner alongwith Sri S. K. Asthana visited the market for the said purpose, although an effort has been made by the petitioner to explain that Mr R K. Tanwar did not prefer to visit the market and they had no option except to visit the market for the said purpose, but that cannot be said to be a proper cause of action by both the persons. They could have very well reported to the Director that Mr. Tanwar did not prefer to visit the market and would have waited for his further directions. There is no doubt that the petitioner has committed an impropriety alongwith Sri S K. Asthana in going to the market jointly and recommending the purchase of the desert coolers from the open market. 11. Tanwar did not prefer to visit the market and would have waited for his further directions. There is no doubt that the petitioner has committed an impropriety alongwith Sri S K. Asthana in going to the market jointly and recommending the purchase of the desert coolers from the open market. 11. But there is no denial of the fact that the petitioner himself was not responsible for either placing the order to the firm in question or making the purchases. Both these actions were taken by other officers. The sanction for purchasing the coolers was given by the Director and the purchase order was issued by the Store Purchase Officer. If they would have found that the material sought to be purchased was of a higher price, they could have very well refused to make purchases, but this was not done, hence the petitioner alone cannot be said to be guilty of causing loss to the department by making purchase of the desert coolers on a 'higher price'. Purchase Officer Mr. O. P. Gupta and Accounts Officer Mr. S. K. Asthana were also proceeded with, in the inquiry. Mr. O. P. Gupta the Purchase Officer, after the departmental inquiry, was removed from service while the Accounts Officer Sri S. K. Asthana was admonished. No explanation has been given as to why Mr. S K. Asthana who alongwith the petitioner visited the market, surveyed it, collected quotations, observed quality and prepared the comparative statement pertaining to the purchase of such coolers was given lesser punishment while the petitioner was given the extreme penalty of removal from service. If the charge was so grave, both deserved the same punishment, but in the present case the petitioner was singled out for the extreme penalty. 12. Mr. P. K Khare Vehemently argued that Mr. S. K. Asthana was given lesser punishment for the reason of the fact that few months back before, when the quotations from different firms were invited and the coolers were purchased on the lesser price of Rs. 2150/ Mr. S. K. Asthana was not available and he was not posted with the facts of that transaction, but the petitioner was aware about the said transaction and he concealed the same information with a view to cause wrong gains to the department and ulterior gains for himself. The classification, which Mr. 2150/ Mr. S. K. Asthana was not available and he was not posted with the facts of that transaction, but the petitioner was aware about the said transaction and he concealed the same information with a view to cause wrong gains to the department and ulterior gains for himself. The classification, which Mr. Khare tried to make out, has no substance because the role in making recommendation for purchases are similar. Both the persons visited the market without taking Dr. R. K. Tanwar. Both submitted a report for making purchases from a particular firm on a particular amount. There existed no justification for the disciplinary authority to have given lesser punishment to Mr. S. K. Asthana and awarding the extreme penalty of removal from service to the petitioner. In the case of Iron & Metal Traders Pvt. Ltd. v. M. S. Haskeil and another ( AIR 1984 SC 629 ) it was observed as under : "The dispute involved in these two appeals are with reference to reinstatement of three workmen and backwages for 7 other workmen who are refused remedy of reinstatement. Mr. Bhandare, learned counsel vehemently argued that the approach of the Tribunal in ordering reinstatement was neither legal nor judicially correct. We heard him and we also looked at the documents which he wanted us to see. We are in agreement with the finding of the Industrial Tribunal that this is a case of discrimination in dealing with the cases of these appellants workmen involved in these two appeals inasmuch as many strikers were reinstated but these respondents were singled out for drastic treatment." 13. In view of what has been said above the present case cannot escape from the sweep of Articles 14 and 16 of the Constitution of India. It must be kept in mind by the quasi judicial triburals that the principle of audi alteram partem is not. limited to the extent of only adhering to principle of natural justice, but it also envisage that while discharging judicial or quasi judicial functions the authorities must act fairly and reasonably and should not act arbitrarily or discriminately in any manner, The above principle has been enshrined in Articles 14 and 16 of the Constitution of India and it must be adhered to. This Court is the view that while giving lesser punishment to a delinquent who was equally responsible for committing an act of impropriety or misconduct and awarding the petitioner the extreme penalty, the order of removal passed against the petitioner cannot be said to have been passed in borafide exercise of powers and snacks of arbitrariness aad discrimination. 14. There is also some substance in the argument os Mr. S K. Kalia, counsel for the petitioner that the inquiry officer did not consider the defence of the petitioner which is evident from his report. The conduct of the inquiry officer in not considering the the defence of the petitioner is aggravated further for the reason of the fact that no witness from the side of the department was produced. The evidence rested mostly upon the documentary evidence. The petitioner was the only person who was examined by the Inquiry Officer. Although the inquiry officer in his report has said that the explanation of the petitioner was not satisfactory, but that cannot be considered to be sufficient. If was incumbent upon him to make and indicate reasons as to why he did not consider the explanation or the defence of the petitioner satisfaetory and why he did not agree with the defence of the petitioner. In the case of Anil Kumar v. Presiding Officer and others ( AIR 1985 SC 1121 ) Honble Mr. Justice D. A. Desai as he then was, speaking on behalf of the Bench opined as under : "Where a disciplinary enquiry affects the livelihood and is likely to cast a stigma and it has to be held in accordance with the principles of natural justice, the minimum expectation is that the report must be a reasoned one The Court then may not enter into the adequacy or sufficiency of evidence. But where the evidence is annexed to an ordersheet and no correlation is established between the two showing application of mind we are constrained to observe that it is not an enquiry report at all. Therefore, there was no enquiry in this case worth the name and the order of termination based on such proceeding disclosing nonapplication of mind would be unsustainable.'' 15. Therefore, there was no enquiry in this case worth the name and the order of termination based on such proceeding disclosing nonapplication of mind would be unsustainable.'' 15. A perusal of the inquiry report would indicate that the inquiry officer has discussed all the documentary evidence which were available and has given a reason for agreeing with the report of the Enquiry Officer, He ruled out the defence of the petitioner as he did not find it satisfactory. No reasons were indicated for the same. But on this count only the inquiry report cannot be said to be completely vitiated. The inquiry officer has dealt, to a large extent, each and every circumstance which was against the petitioner. 16. As this Court has already indicated hereinabove that the penalty imposed against the petitioner was arbitrary and discriminatory, it has further to be seen as to whether the punishment is commensurate with the gravity of the misconduct alleged to have been committed by the petitioner. Generally it is not the function of the Court to appraise the evidence and to pass judgment on the quantum of punishment which may be awarded to the delinquent. Earlier the Hon'ble Supreme Court and various High Courts deprecated the efforts of quasi judicial tribunals as well as the Court to appraise the evidence and pass orders on the quantum of punishments but now even this field has been made subject to judicial scrutiny and now consistent view of the Courts is that if the conscience of the Court appeals that the punishment imposed is harsh one and disproportionate to the gravity of the misconduct, the Court can certainly intervene in rare cases. In the case of Sri Bhagat Ram v. State of Himachal Pradesh ( AIR 1983 SC 454 ) Hon'ble Supreme Court indicated as under : "The penalty imposed must be commensurate with the gravity of misconduct and any penalty disproportionate to it would be violative of Article 14 of the Constitution of India." 17. In the case of Sri Bhagat Ram v. State of Himachal Pradesh ( AIR 1983 SC 454 ) Hon'ble Supreme Court indicated as under : "The penalty imposed must be commensurate with the gravity of misconduct and any penalty disproportionate to it would be violative of Article 14 of the Constitution of India." 17. In the case of ExNaik Sardar Singh v. Union of India (1991 (3) SCC213) Hon'ble Supreme Court indicated as under : "Even assuming that the offence committed by the appellant Jawan is covered by the residuary section 63, the Court Martial has to keep in view the spirits behind section 72 of the Act in awarding the punishment and it has to give due regard to the nature and degree of the offence. Section 63 provides for awarding lesser punishments as enumerated in section 71 of the Act. Therefore, much depends on the nature of the act or omission of which the person is found guilty." 18. In a very recent case AIR 1991 SC 1241 Hori'ble Supreme Court directed that in place of dismissal the appellant shall be taken to have been compulsorily retired from service from the date the dismissal order became operative. 19. Considering the fact that the purchases of the desert coolers were sanctioned by the Director, the purchases were made by the Purchase Officer and Accounts Officer Mr. S. K. Asthana who after due inquiry was let off by issuance of a warning only, this Court feels that the extreme penalty of removal imposed upon the petitioner was not commensurate with the gravity of misconduct and the same was disproportionate to the gravity of misconduct and this case cannot escape the sweep of Article 14 and 16 of the Constitution of India. 20. In view of what has been indicated hereinabove the writ petition succeeds and is allowed A writ in the nature of certiorari quashing the impugned order of removal passed against the petitioner contained in Annexure1 is issued. The petitioner would be entitled to all the consequential benefits arising out of the quashing of the impugned order of termination. However, the opposite parties would be free to impose any lesser punishment as the same was given in the case of Mr. S.K. Asthana without holding any fresh inquiry. No order is made as to costs. (Petition allowed)