JUDGMENT I. M. QUDDUSI, J. : The petitioner filed this writ petition challenging the judgment and order dated 16.8.2005 passed by the Orissa Administrative Tribunal, Cuttack Bench, Cuttack dismissing O.A. No.973 (C) of 2005 filed by him against the impugned order of punishment of reduction in rank to the post of Deputy Superin¬tendent of Excise. 2. The case of the petitioner, in brief, is that he was initially appointed as Inspector of Excise on 29.10.1976. There¬after, in the year 1992 he was posted at Cuttack as Deputy Super¬intendent of Excise against a newly created post. No specific duty was assigned to him and, therefore, he had to work as per the instruction of the Superintendent of Excise, Cuttack. Howev¬er, in paragraph 23 of the Board’s Instructions, the general duties of all officers of Excise Department have been prescribed as under : “Briefly stated the duties of all officers of Excise Depart¬ment are to prevent and detect offences against laws in force as enumerated in paragraph 2 to inspect shops licensed by the Excise Department and check to illicit or improper practices on the part of the licensed vendors to supervise distilleries and ware houses to discourage excessive indulgence in intoxicants, opium and other dangerous drugs and generally to perform such other duties as may be imposed on them from time to time by the proper author¬ities.” 3. In the month of May 1992, an unfortunate incident happen at Cuttack. A large number of persons consumed illicit liquor and died. An administrative inquiry was set up into the incident and the Revenue Divisional Commissioner, Central Divi¬sion, Cuttack in (short ‘R.D.C.’) was directed to conduct the inquiry into the incident. On 1.8.1992, the petitioner was placed under suspension on the basis of the inquiry report submitted by the R.D.C. 4. Feeling aggrieved, the petitioner filed O.A. No.1640 of 1992 before the Orissa Administrative Tribunal in which a stay of the suspension order was granted. Against the said order, a S.L.P. was filed by the opposite parties before Hon’ble Supreme Court, which was dismissed. As a result, the petitioner continued to discharge his duties as Deputy Superintendent and thereafter as officiating Superintendent. Against the said order, a S.L.P. was filed by the opposite parties before Hon’ble Supreme Court, which was dismissed. As a result, the petitioner continued to discharge his duties as Deputy Superintendent and thereafter as officiating Superintendent. Thereafter, on 7.9.1992 the State Government initiated a disciplinary proceeding against the peti¬tioner and the charges framed against him were as follows : (a) Lack of supervision; (b) dereliction of duty; (c) slackness in administration; and (d) lack of supervision of Subordinates. At that time the petitioner was officiating as Superintend¬ent of Excise. Mr. M. Rajamani, I.A.S., the then Director Animal Husbandry and Veterinary Services, Orissa was appointed as In¬quiry Officer vide Government order dated 1.10.1993. Subsequent¬ly, the Inquiry Officer was changed and one Mr. B. B. Mishra, I.P.S., then Special Secretary to Government, Home Department was appointed as Inquiry Officer vide order dated 11.7.1994. Thereaf¬ter, another Special Secretary, Home Department who was the Commissioner of Departmental Inquiry (in short, ‘C.D.I.’) ap¬pointed as Inquiry Officer vide order dated 3.5.1995. In the meantime vide notification dated 20.7.1993 the State Government had appointed Shri Justice B. K. Behera, a retired Judge of this Court as a Commission of Inquiry to inquire into the incident under the Commission of Inquiry Act. Before completion of the domestic inquiry, a report was submitted by the Commission of Inquiry on 31.10.1995. On 16.3.1996 another disciplinary proceed¬ing was started against the petitioner on the basis of the report of the Commission of Inquiry and charge sheet was issued against him for the following charges: (a) Gross negligence in duty. (b) Lack of supervision; (c) Gross misconduct; (d) Criminal conspiracy and showing undue favour to a private person; (e) Violation of statutory Act and Rules; and (f) Connivance and abatement in commission of offences under the laws. 5. Since all the charges levelled against the petitioner in the disciplinary proceeding initiated against him earlier on 7.9.1992 were included in the subsequent new charge-sheet dated 16.3.1996, the Government of Orissa in the Revenue and Excise Department vide its order dated 17.10.1997 dropped the earlier disciplinary proceeding which was initiated vide Order dated 7.9.1992 against the petitioner. 6. During pendency of the disciplinary proceeding, the petitioner was regularly promoted to the post of Superintendent of Excise with effect from 1.1.1998. 6. During pendency of the disciplinary proceeding, the petitioner was regularly promoted to the post of Superintendent of Excise with effect from 1.1.1998. Vide letter dated 16.2.2002 the Inquiry Officer submitted his enquiry report recommending to exonerate the petitioner from the charges but making an observation that he should be censured. The inquiry report was served on the petitioner for the purpose of submitting his representation thereon vide order dated 24.4.2003. He submitted the representation with a request to fully exonerate him, as the Inquiry Officer did not find him guilty of all the charges. 7. Thereafter, vide letter-dated 3.6.2004, the State Gov¬ernment took a decision to ‘censure’ the petitioner and to treat the period of suspension as such and sent the same for consulta¬tion to the OPSC. Vide letter dated 21.9.2004, the OPSC shown its disagreement with the decision taken by the State Government to ‘censure’ the petitioner and advised to award the penalty of reduction in rank and to treat the period of suspension as such. Consequently vide order dated 6.4.2005, a notice was issued to the petitioner intimating the decision of the State Government accepting the advice of the OPSC and calling upon him to show cause as to why the proposed punishment of reduction in rank and treating the period of suspension as such shall not be made abso¬lute. On 16.4.2005, the petitioner submitted his reply to the said show-cause notice. Thereafter vide impugned order dated 27.5.2005 the State Government imposed the penalty of reduction in rank upon the petitioner. As a consequence, he was reduced from the rank of Superintendent of Excise to the rank of Deputy Superintendent of Excise. Besides the period of his suspension from 16.12.1995 to 9.7.1996 was treated as such. Challenging the said punishment, the petitioner filed the aforesaid O.A. before the Tribunal which was dismissed vide the impugned order dated 16.8.2005. Hence the instant writ petition. 8. The Tribunal dismissed the aforesaid OA of the peti¬tioner on the basis of its findings that no procedural lapses were made and reasonable opportunity was given to the applicant-petitioner at every stage and no injustice could be said to have been done to him, merely because, the State-respondents accepted the recommendation made by the Public Service Commission, even though before that it had agreed with the suggestion of the Inquiry Officer. 9. 9. Before proceeding further, it is necessary to consider the report of the Inquiry Officer/C.D.I. along with his recommendation, the decision of the State Government to accept his recommendation, the recommendation of the OPSC and the deci¬sion taken by the Government thereon. The relevant part of the finding of the Inquiring Officer/C.D.I. is quoted hereunder: “It is a fact that the post of Deputy Superintendent of Excise was created vide office order No.3297 dated 2.12.92 where¬in the duty of Deputy Superintendent of Excise have been enumer¬ated and in addition, the duties to be entrusted to him by the Excise Commissioner, Collector and Government whenever necessary. As stated by the D.O. no specific work was assigned to him till the occurrence of the tragedy. He has discharged his duties as and when directed by the Superintendent of Excise and other higher authorities on 7.5.92 he was busy in the Hon’ble High Court for preparation of rejoinder to writ petition as per the instructions made by Superintendent of Excise. In the afternoon when he got the news about the tragedy and being instructed by the Ex-Superintendent of Excise and A.D.M. he rushed to the City Hospital to look after the treatment of the injured persons. Regarding collection of intelligence, he has collected some information which he has communicated to Superintendent of Excise and sent seized liquor for chemical test at different point at different times prior to such occurrence. As stated by him the power of investigation till the date of liquor tragedy was not vested on the Deputy Superintendent of Excise. In the crime meeting instructions were issued to the Sub-Inspector and range Inspector of Excise to draw periodical sam¬ples from the suspected shops for chemical examination. He has given a pertinent problem regarding chemical examination. It is a fact that the Excise Department has no laboratory office own for obtaining earlier opinion on the guilty of the seized shops. So they have to depend on the examination report of the testing laboratory, Bhubaneswar on payment of required fees and the report is generally received after lapse of one week or two weeks. So this was a major problem for which immediate action could not be taken to direct the distribution of illicit liquor flow in the said tragedy. So they have to depend on the examination report of the testing laboratory, Bhubaneswar on payment of required fees and the report is generally received after lapse of one week or two weeks. So this was a major problem for which immediate action could not be taken to direct the distribution of illicit liquor flow in the said tragedy. So far collection of intelligence there was a separate wing namely Excise Intelligence and Enforcement Bureau under the con¬trol of Excise Commissioner and the Divisional Excise Commission¬ers. They have to collect intelligence and pass or send the information to the concerned Collectors and other higher authori¬ties for taking further action in the matter. So as Deputy Super¬intendent of Excise, he was not supposed to get the information directly from respective quarters rather on his own mission he has taken up raids in different times. Since he was not assigned with specific duties, he could not pinpoint illicit liquor trade at Cuttack. Since he was not the license issuing authority/or the au¬thority to impose penalty, he had no personal knowledge about the liquor vendor and on different raids he has not shown any liberal views or vested interest to any retailer. As such he had no per¬sonal affairs with Belu alias Sri S. K. Das of Rausapatna.Inspite of preventive measure the incident has come accidentally. There was no information either from police or from public to the large-scale flow of illicit liquor Cuttack town and nearby area. So he has no independent role to play the entire administrative range and he has not only man responsible for conducting the entire episode, which could have preventive the unpleasant trage¬dy. In view of the above it is seen that the D.O. had discharged his duties as assigned to him. As an Excise officer he should have taken extra care in collecting the intelligence at his own level so that some possible steps could have been taken to prevent such tragedy. It is suggested that he may be exonerated from the charges with “Censure” since the D.O. have not taken any extra care while discharging his duties to prevent such a great tragedy.” 10. It is suggested that he may be exonerated from the charges with “Censure” since the D.O. have not taken any extra care while discharging his duties to prevent such a great tragedy.” 10. The State Government called upon the petitioner to submit his representation on the above report of the Inquiring Officer vide its letter No.III Ex.-25/2002-2223 dated 24.4.2003, in which it was indicated that the Inquiring Officer has in his findings recommended for imposing punishment of ‘censure’. The said letter is quoted as under : “Government of Orissa Excise Department No.III- Ex-25/2002 Dated, Bhubaneswar, the 24-4-2003 (Notice under Rule -15(10)(i)(a) of the O.C.S. (C.C.A.) Rules, 1962.) Whereas the commissioner for Departmental Inquires and Ex Officio Additional Secretary to Government General Administration Department-cum-Inquiring Officer has completed the inquiry and submitted the inquiry report in disciplinary proceeding No.730 Dt.16.3.1996. Whereas the said Inquiring Officer has in his findings recommended for imposing the punishments of censure; Now, therefore, the Delinquent Officer, Sri Ashok Kumar Tripathy Ex-Deputy Superintendent of Excise, Cuttack at present Superintendent of Excise, Balasore is hereby called upon to submit within a period of 15 days from the date of receipt of this notice such representation as he may wish to make against the findings of the Inquiring Authority. If no representation is received within the stipulated period then further course of action will be decided as per the provisions of the O.C.S. (C.C.A.) Rules, 1962. Sd/- J.P. Dash Commissioner-cum-Secretary to Government” 11. Thereafter the petitioner submitted his reply on 3rd May, 2003. The State Government sent a proposal to the Commission for awarding punishment of “censure’ on the petitioner treating his period of suspension as such. The State Government in Excise Department was communicated the view of the Commissioner as under : “xx xx xx In view of the facts and circumstances of this case and gravity of the charges, the Commission is of the view that a major punishment should be imposed on the D.O. Major punishment can be by way of removal from service, reduction in rank or compulsory retirement. Taking all factors into account including the reasons given by the C.D.I. and the disciplinary authority, the Commission recommends reduction in rank as a mode of punish¬ment for ends of justice. Besides, the period of suspension should be treated as such.” 12. Taking all factors into account including the reasons given by the C.D.I. and the disciplinary authority, the Commission recommends reduction in rank as a mode of punish¬ment for ends of justice. Besides, the period of suspension should be treated as such.” 12. Thereafter a notice for enhancement of punishment by accepting the advice of OPSC was issued to the petitioner vide letter dated 6.4.2005 providing him an opportunity to make repre¬sentation against the proposed decision of the State Government. The relevant part of the notice/order is quoted hereunder: “xx xx xx Whereas, after careful consideration of the charges, the enquiry report and the representation submitted by Sri Tripathy, Government have decided to ‘censure’ him and to treat the suspension period as such and sought for the advice of the Orissa Public Service Commission, Cuttack vide Excise Department letter No.3142/Ex.dated 03.06.2004; Whereas, the Orissa Public Service Commission has recommend¬ed vide their letter No.6583/PSC dated 21.09.2004 for reduction in the rank as a mode of punishment for ends of justice along with the period of suspension should be treated as such: Whereas, Government after careful consideration of the facts and circumstances as well as the advice of the O.P.S.C. have accepted the advice of the OPS Commission and decided to reduce Sri Tripathy to the lower rank and treat his period of suspension as such : Now, therefore, the Delinquent Officer, Sri Ashok Kumar Tripathy, Ex. Deputy Superintendent of Excise, Cuttack now Super¬intendent of Excise, Baragarh is hereby called upon to submit within a period of 15 (fifteen) days from the date of receipt of this notice such representation as he may wish to make against the decision of the government as to why the proposed punishment of reduction to lower rank and treating the period of suspension as such shall not be made absolute. If no representation is re¬ceived within the stipulated period, further action in the matter will be taken as per provisions of O.C.S. (C.C.A.) Rules, 1962.” 13. The petitioner submitted his reply to the show cause notice on 16.4.2005 raising certain contentions. Thereafter, the impugned order of punishment reducing him in rank from the post of Superintendent of Excise to that of Deputy Superintendent of Excise was passed and his suspension period from 16.12.95 to 9.7.1996 was directed to be treated as such. The petitioner submitted his reply to the show cause notice on 16.4.2005 raising certain contentions. Thereafter, the impugned order of punishment reducing him in rank from the post of Superintendent of Excise to that of Deputy Superintendent of Excise was passed and his suspension period from 16.12.95 to 9.7.1996 was directed to be treated as such. The operative part of the impugned order is quoted hereunder: “Now, therefore, Government after careful consideration of the charges, explanation of the charged Officer, findings of Inquiring Officer and the advice of the O.P.S.C., have been pleased to impose the following punishments on Shri A.K. Tripa¬thy, Ex-Deputy Superintendent of Excise, Cuttack, now Superin¬tendent of Excise, Bargarh; 1. Reduced to the rank of Deputy Superintendent of Excise. 2. His suspension period from 16.12.95 to 9.07.96 is treated as such.” 14. Initially, when hearing of this case was started, learned Advocate General appeared and made his submissions, but on that day the hearing was not concluded. On the next date, the learned Additional Government Advocate appeared for opposite party No.1 and argued the case. Shri J. Patnaik, learned Senior Advocate appeared for the petitioner and Shri B. K. Das, learned counsel appeared for the OPSC. 15. Shri J. Patnaik, has submitted that none of the charges has been proved against the petitioner. He has further argued that the recommendation made by the Inquiring Officer/C.D.I. for punishment of ‘censure’ and treatment of the period of suspension as such was not proper on the basis of his observation that the petitioner had not taken extra care. He has further contended that the point for consideration before this Court is whether the petitioner could be punished for purportedly not taking “extra care”. He has further submitted that as the recommendation of the Public Service Commission was not binding upon the State Govern¬ment, the punishment of reduction in rank could not have been passed solely on the report of the OPSC. Further the recommenda¬tion of the OPSC was not liable to be accepted on the ground that the Public Service Commission was not the appellate authority and it had no jurisdiction to substitute the finding of the In¬quiry Officer by its own finding. The Commission ought to have given its reason in terms of Rule (10) (i)(b) of OCS (C.C.A.) Rules, 1962. The Commission ought to have given its reason in terms of Rule (10) (i)(b) of OCS (C.C.A.) Rules, 1962. He has further submitted that the report of the Commission of Inquiry was not binding on the disciplinary author¬ity. 16. Learned Advocate General has conceded that the recom¬mendation of the Public Service Commission is not binding upon the State Government, but according to him, since the State Government decided to accept its recommendation and passed the impugned order of punishment reducing the petitioner in rank, no illegality has been committed by the punishing authority, more so when the impugned order of punishment was passed after providing opportunity to the petitioner to make a representation against the proposed punishment. Learned Additional Government Advocate appeared on the subsequent dates of hearing and argued that the report of the Commission of Inquiry constituted under the Commis¬sions of Inquiry Act by the State Government was binding and was liable to be implemented by the State Government. He has further submitted that the Inquiry Officer himself had suggested punish¬ment of ‘censure’ and treatment of the period of suspension as such. On the advice of the Commission, the State Government has only enhanced the punishment from censure to reduction in rank. In doing so, no procedural error can be said to have been commit¬ted. Therefore, the judgment and order passed by the Tribunal is bound to be upheld. 17. We have perused the inquiry report and found that there is no whisper therein regarding recording of any evidence. It appears that the Inquiring Officer/C.D.I. has only considered the contents of charge sheet and its reply. The explanation submitted by the petitioner supported by some documents was accepted by him and he submitted his report accordingly. Therefore the punishing authority has no other option than either to accept the Inquiry report or to reject the same and pass an order of de novo in¬quiry. It could not have formed its opinion beyond the record of inquiry proceeding. Therefore, in our opinion, in the instant case the first vital question involved is whether it was proper on the part of the punishing authority to disagree with the findings of the Inquiring Officer without giving any reason and whether the petitioner could be held guilty in the absence of any material evidence in the inquiry proceeding. Therefore, in our opinion, in the instant case the first vital question involved is whether it was proper on the part of the punishing authority to disagree with the findings of the Inquiring Officer without giving any reason and whether the petitioner could be held guilty in the absence of any material evidence in the inquiry proceeding. We have already quoted the relevant part of the orders passed by the punishing authority and the recommendation made by the Public Service Com¬mission. 18. No doubt, a Commission of Inquiry was set up by the State Government, but the punishment was not based solely and directly on the basis of the report of the Commission of Inquiry. It was based on the departmental proceeding conducted by the Inquiring Officer/C.D.I. When the State Government received the inquiry report in the Disciplinary proceeding, they had decided to accept the same. But when the P.S.C. sent a different recom¬mendation, the Government changed its view, and decided to impose major penalty, i.e., reduction in rank and treatment of period of suspension as such. However, no reason was given by the Sate Government for doing so. Merely taking a decision to accept the advice of the Commission regarding imposition of major punishment upon the petitioner could not have relieved the State Government from its responsibility of giving reasons for doing so, i.e., for disagreement with the finding of the Inquiring Officer. Besides the above, there is specific provision in Rule 15(10)(i)(a)(b) of OCS (CCA) Rules 1962. According to the said Rule, it is mandatory on the part of the Punishing Authority to give reason in case of disagreement with the inquiry report. The said provision is quoted hereinafter. “15(10)(i) (a) (b) if the inquiring officer is not the disciplinary authority, the disciplinary authority shall furnish to the delinquent Government servant a copy of the report of the Inquiring Officer and given him notice by registered post or otherwise calling upon him to submit within period of fifteen days such representation as he may wish to make against findings of the Inquiring Authority. (b) On receipt of the representation referred to in Sub-clause (a) the disciplinary authority having regard to the find¬ings on the charges is of the opinion that any of the penalties specified in Clauses (vi) to (ix) of Rule 13 should be imposed, he shall furnish to the delinquent Government servant a statement of its findings along with brief reasons for disagreement, if any, with the findings of the inquiring officer and give him a notice by Registered post or otherwise stating the penalty pro¬posed to be imposed on him and calling upon him to submit within a specified time such representations as he may wish to make against the proposed penalty; Provided that in every case in which it is necessary to consult the Commission under the provision of the Constitution of India and the Orissa Public Service Commission (Limitation of Functions) Regulation, 1989 the record of Inquiry together with a copy of the notice given under Sub-Clause (a) and the representa¬tion if any, received within the specified time in response to such notice shall be forwarded by the disciplinary authority to the Commission for its advice.” 19. In the instant case, although the Inquiring Officer/C.D.I. did not find the petitioner guilty and specifical¬ly held that the charges framed against the petitioner were not proved, but the punishing authority has taken a view contrary to the findings of the Inquiring Officer that the charges levelled against the petitioner were proved. Therefore, it cannot be said that the punishing authority did not disagree with the inquiry report. It was the own suggestion of the Inquiring Officer, which was beyond the findings that the petitioner did not take extra care and, on the basis, recommended the punishment of censure, which was a minor punishment. On the basis of such recommenda¬tion, inference could not have been drawn that the conclusion of the Inquiring Officer was that the charges were proved against delinquent officer and as such the same was not in fact a disa¬greement with the finding of the Inquiring Officer by the punish¬ing authority in imposing major punishment by the impugned order. 20. On the basis of such recommenda¬tion, inference could not have been drawn that the conclusion of the Inquiring Officer was that the charges were proved against delinquent officer and as such the same was not in fact a disa¬greement with the finding of the Inquiring Officer by the punish¬ing authority in imposing major punishment by the impugned order. 20. In the case of Joginath D. Badge v. State of Maharash¬tra and another reported in (1999) 7 Supreme Court Cases 739 the Apex Court held that :- “it was open to the disciplinary authority either to agree with the findings recorded by the enquiring authority or disagree with those findings. If it does not agree with the findings of the enquiring authority, it may record its own findings. Where the enquiring authority has found the delinquent officer guilty of the charges framed against him and the disciplinary authority agrees with those findings, there would arise no difficulty. So also if the enquiring authority has held the charges proved, but the disciplinary authority disagrees and records a finding that the charges were not established, there would arise no difficul¬ty. Difficulties have arisen in all those cases in which the enquiring authority has recorded a positive findings that the charges were not established and the delinquent officer was recommended to be exonerated, but the disciplinary authority disagreed with those findings and recorded its own findings that the charges were established and the delinquent officers was liable to be punished. This difficulty relates to the question of giving an opportunity of hearing to the delinquent office at that stage. Such an opportunity may either be provided specifically by the rules made under Article 309 of the Constitution or the disciplinary authority may, of its own, provide such an opportu¬nity. This difficulty relates to the question of giving an opportunity of hearing to the delinquent office at that stage. Such an opportunity may either be provided specifically by the rules made under Article 309 of the Constitution or the disciplinary authority may, of its own, provide such an opportu¬nity. Where the rules are in this regard silent and the discipli¬nary authority also does not give an opportunity of hearing to the delinquent officer and records findings different from those of the enquiring authority that the chargers were established, “an opportunity of hearing” may have to be read into the rule by which the procedure for dealing with the enquiring authority’s report is provided principally because it would be contrary to the principles of natural justice if a delinquent officer, who has already been held to be “not guilty” by the enquiring author¬ity, is found “guilty without being afforded an opportunity of hearing on the basis of the same evidence and material on which a finding of “not guilty” has already been recorded”. 21. In the case of State of Rajasthan v. M.C. Saxena re¬ported in A.I.R. 1998 S.C. 1150, the Apex Court has laid down that if the Disciplinary Authority gives reasons for disagreeing with the findings of the Inquiring Officer then the Court cannot interfere with those findings unless it comes to the conclusion that no reasonable man can come to the said finding. 22. If in the above-mentioned circumstances, the punishing authority has not given any reason for his disagreement with the finding recorded by the Inquiring Officer, it cannot be said that the petitioner has been afforded an adequate opportunity of hear¬ing, as he was not in a position to explain his case in his representation. Therefore, it can be said without any hesitation the adequate opportunity of hearing was not afforded to the petitioner to defend his case and the impugned punishment order has been passed in violation of principles of natural justice. 23. In view of the above mentioned facts and circumstances, we are of the firm view that the impugned order of punishment reducing the petitioner in rank from the post of Excise Superin¬tendent to those post of the Deputy Superintendent of Excise is not sustainable in the eye of law and the Tribunal has committed manifest error of law in dismissing the O.A. 24. Therefore the writ petition is allowed in part and the impugned order of punishment as well as the impugned order passed by the Tribunal in O.A. No.973(C) of 2005 confirming the punish¬ment of reduction in rank are quashed. However, it will be open for the punishing authority to reconsider the matter in the light of the observation made in the body of this judgment, in accord¬ance with law. PRADIP MOHANTY, J. I agree. Petition allowed in part.