JUDGMENT - N.J. PANDYA, Acg.C.J.:---The petitioner faced charges on three counts as per page 50. At the end of the enquiry he is exonerated for two and he was held guilty in respect of one charge. He was awarded punishment of withholding two increments with future effect. He carried the matter in appeal and the appellate authority reduced the punishment for the reasons set out in the order. Exh.H. page 108 onwards. 2.At the relevant time, the petitioner was working as store keeper with the respondent Municipal Corporation. The charge that was proved against him was with regard to indenting certain items of wood in excessive quantity, selecting only those which were at the higher rate. These items are at Nos. 4, 5, 8, 12 and 15 in the schedule of the contract for which there were approved contractors. 3.Suspecting that this has been done deliberately with ulterior motive, the enquiry was gone into and according to the Enquiry Officer this charge was proved. 4.The appellate authority at pages 110 and 111 however has expressed himself to the effect that though these inferences can be said to be fair one, but not as per the norms of evidence and howsoever well founded, the inference could be, it cannot take the place of positive evidence. 5.In the last paragraph at page 111, the appellate authority clearly says that "......in excess quantities carrying considerable higher rates might not be involving ulterior motive for want of positive evidence in this behalf...." If that be so, obviously so far as the charge No. 1 is concerned, according to the appellate authority there is no evidence at all. In other words this charge should fail. 6.The charge at page 50 clearly indicates that it was a well thought out intended action on the part of the respondent-employee to place those intends in connection with the teak wood item to be supplied at higher rate. 7.When the aforesaid position was found in the appellate order at page 111, on behalf of the respondent it was sought to be argued that this may be treated as a case of negligence in discharging the duties. However, once the charge of intentional misuse of power is proved, it cannot be allowed to convert to that of negligence in discharge of duties. Intention and negligence cannot go together. By very nature they are antithesis of each other. However, once the charge of intentional misuse of power is proved, it cannot be allowed to convert to that of negligence in discharge of duties. Intention and negligence cannot go together. By very nature they are antithesis of each other. 8.Once this aspect is taken into consideration, obviously there is no question of any punishment whatsoever. Under the circumstances, the lesser punishment sought to be given by the appellate authority namely that of withholding one increment with permanent effect will also have to be set aside. 9.So far as the order with regard to treating the period of suspension is concerned, that being exclusively within the domain of the domestic tribunal, we have nothing to say about it. 10.The net result, therefore, is that the petition with regard to the order of punishment and with regard to withholding the petitioner guilty of the charge is allowed. The order of holding him guilty and awarding punishment, both are set aside. Rule is made absolute. Petition allowed.