JUDGEMENT Ajay Kumar Tripathi, J. 1. Since certain developments had taken place after the writ application was filed, amendment applications were required to be filed. 2. In view of the above, all the amendment applications filed after filing of the writ application stand allowed. 3. It is a long drawn battle spread over a decade now if not more. The present writ application is a sequel to the earlier writ application which was heard and disposed of vide order dated 1.8.1995 and the writ is CWJC No. 1375 of 1995. 4. Some of the facts, in brief, is that the petitioner was posted as a Superintending Engineer in the Water Resources Department and was associated or saddled with the responsibility of that post for a minor irrigation project which was going on in the district of Munger. It is known as Dakra Nala Irrigation Project. Somewhere the authorities sitting in Patna came to an opinion that the work being carried out and executed, which included award of contract and the follow up action thereafter, was not strictly within the norms laid down by the department in this regard. Petitioner came to be suspended, remained under suspension for a long time. He had occasion to come before this Court seeking intervention but we are concerned with the order passed in Anexure-1 because the origin of the present dispute is fall-out of the direction of the High Court issued in CWJC No. 1375 of 1995 (Annexure-1). 5. After hearing the contentions of the parties the High Court laid down a time-frame within which the departmental enquiry against the petitioner had to be completed. The Court granted four months time to complete the enquiry which was a kind of peremptory order because the Court states that "if the enquiry is not completed within four months, the same will be deemed to come to an end and the petitioner will be entitled to all consequential benefits. If, however, enquiry is complete and report is submitted within the said period, a copy of the report will be supplied to the petitioner, if the same is adverse to him and/or the Department wants to proceed further against him, within one week thereafter. In that event, final order must be passed within two weeks of the filing of the show cause, if any. In that event, final order must be passed within two weeks of the filing of the show cause, if any. It is made clear that the four months period, referred to above, will be reckoned from the date of receipt of a copy of this order." 6. The respondents based on the direction of the Court proceeded in the matter and a final order of punishment contained in Annexure-41 dated 12.1.1996 came to be passed against the petitioner. The order of punishment was demotion from the post of Superintending Engineer to the level of Executive Engineer and recovery of some lacs of rupees from the petitioner. The order of punishment is under challenge in the present writ application along with some other orders, which came to be passed such as, second show cause contained in Annexure-5 dated 20.12.1995 since the final order of punishment had not come in the meanwhile, when the writ application was filed, as well as the order contained in Annexure-67 dated 19.4.2002 by virtue of which the period 3.10.1992 to 16.6.1993 was treated to be a period of extra ordinary leave without entitlement of any pay or perks. All these orders therefore have to be dealt with in the present writ application, which have been brought on record through various amendment applications and supplementary filed from time to time as the events unfolded. 7. The first submission made on behalf of the petitioner by the learned senior counsel is that peremptory nature of the order passed by the High Court contained in Annexure-1 bars further proceeding as the time-frame fixed by the Court was not followed. Any order therefore passed beyond the four months period is no order in the eye of law. Vehement submissions have been made in support of such proposition but the Court has difficulty in accepting the interpretation which is sought to be given by the petitioner to the said order. No doubt a timeframe for completing the enquiry was fixed by the High Court but it is not a case where the enquiry was not completed within the time-frame. However, the second show cause and the punishment order came to be passed beyond the period of four months. No doubt a timeframe for completing the enquiry was fixed by the High Court but it is not a case where the enquiry was not completed within the time-frame. However, the second show cause and the punishment order came to be passed beyond the period of four months. There is minor dispute about the date when the order was served on the respondents and when enquiry was completed but they have no meaning in view of the fact that the High Court itself had very categorically stated that if the enquiry is complete within four months, a copy thereof had to be handed over to the petitioner followed by a second show cause etc. etc. 8. According to the learned senior counsel the order has to be read in context that a proceeding starts with the service of charge sheet and concludes with the passing of the punishment order. Since the punishment order was passed after four months period, therefore, the directive of the Court was not followed and the peremptory nature of the order will take over. In support thereof counsel for the petitioner relies on a decision in the case of Yoginath D. Bagde v. State of Maharashtra and Anr. reported in (1999) 7 SCC 739 (emphasis on para 31 of the said judgment). 9. The proposition of law laid down in the said decision has no application in the present case in view of the order of the High Court itself. It is apparent from the texts which have been quoted in earlier part of the order that the High Court wanted the respondents to complete the process of enquiry within a time-frame of four months and not the departmental proceeding within the time frame of four months. This submission of the counsel therefore is fit to be rejected. 10. The next round of submission is based on the enquiry and the enquiry report. Serious challenge is made to the findings of the enquiry officer and the rationale and wisdom of the disciplinary authority to impose such serious punishment on the petitioner on such finding. There were 9 set of charges which were drawn up against the petitioner and the chargesheet is Annexure-9 dated 5.6.1992. The enquiry officer has submitted his report on those set of charges which is Annexure-3 to the writ application. There were 9 set of charges which were drawn up against the petitioner and the chargesheet is Annexure-9 dated 5.6.1992. The enquiry officer has submitted his report on those set of charges which is Annexure-3 to the writ application. The enquiry report dated 18.12.1995 was placed before the Court extensively because the consequential order of punishment always flows from the findings which are recorded by an enquiry officer in the enquiry report. 11. It must be recorded straightaway that out of 9 charges, 3 charges were dropped by the enquiry officer, which is charge Nos.4, 5 and 8. This is so because the enquiry officer did not render any opinion at all on those set of charges. Charge No. 6 was dropped bypthe Government because there was no finding of guilt rendered by the enquiry officer. Therefore, the finding given by the enquiry officer is limited to Charge Nos.1, 2, 3, 7 and 9. 12. Charge No. 1 related to award of contract to a single tenderer and that too at 10 per cent higher rate than the estimate. It also deals with the desirability of entering into the supplementary agreement by allowing lifting of soil by mechanical means and allowing certain changes in the original agreement. 13. So far as finding of the enquiry officer on this charge is concerned, he categorically holds that despite several notices inviting tender having been called there were no takers for the said contract, the Department was left with no option but to go for the tender which was available to them even if it meant a single tenderer. It also records that there was provision for mechanized lifting of earth and the agreement entered by the department at the local level to that extent cannot be said to be in breach of the original tender. In so far as allowing escalation of the estimate and award of contract at a higher-rate is concerned, specially with regard to lifting of soil etc. he does record that certain accusatory fingers were pointed out towards the Executive Engineer but nothing substantive could be alleged against the present petitioner. However, the enquiry officer was of the opinion that since the petitioner was Superintending Engineer and had a supervisory role he ought to have exercised his control over his subordinates on this aspect of the matter. he does record that certain accusatory fingers were pointed out towards the Executive Engineer but nothing substantive could be alleged against the present petitioner. However, the enquiry officer was of the opinion that since the petitioner was Superintending Engineer and had a supervisory role he ought to have exercised his control over his subordinates on this aspect of the matter. The reason for finding the petitioner guilty with charge No. 1 was basically his failure to exercise control over the Executive Engineer and there is no finding which pins the petitioner down of any serious irregularity or misdemeanour. However, based on the finding and the charge having been proved, order of punishment has been awarded. 14. The second charge is of allowing one M/S. Siwan Constructions to continue with the contract of transportation of cement even beyond the period of contract. Allegation is that even after the expiry of contract, the firm was allowed to continue with the transportation of cement and this was a serious matter as once the contract had come an end, a fresh tender ought to have been invited and settlement ought to have been made well in time. 15. The finding of the enquiry officer is that the Executive Engineer did not take appropriate decision at the relevant time frame. It is again a case of failure of supervision of the petitioner but there is also a finding that there was certain exigencies of service, in the sense that a rack full of cement had arrived at railway siding, which had to be loaded and transported. In absence of new contractor at the relevant time what was required was offloading the cement and its transportation otherwise the department would have ended paying heavy demurrage to the railways. Since M/S. Siwan Constructions was an old hand, his services were taken but there is no allegation that for that service M/S. Siwan Constructions was paid something over and above the contract from the rate which was initially awarded to him. In fact there is a suggestion to show that utilizing the services of M/S. Siwan Constructions, saved the Government a sum of Rs. 14,000/-. On this count the enquiry officer does not record his opinion about the guilt of the petitioner but he left to the government to find out whether there was a loss or there was gain by taking the services of M/S. Siwan Constructions. 14,000/-. On this count the enquiry officer does not record his opinion about the guilt of the petitioner but he left to the government to find out whether there was a loss or there was gain by taking the services of M/S. Siwan Constructions. To that extent it cannot be said that charge No. 2 stand proved against the petitioner. 16. The third charge related to the earth work which was to be carried out by mechanized process being RD 2.3 and RD 4.0 and the way 7 tenders which were filed by the tenderers came to be decided. 17. There is a finding in the enquiry report that out of the seven tenders, four tenders were not worthy of consideration because they had not been submitted with the required tender documents. With the left over three tenders, two tenders were 6 per cent above the schedule which came to be accepted and this, according to the charge, led to loss of Rs. 2.87 lacs. 18. It is evi dent from the enquiry report on this issue that the four tenderers who were Cooperative Societies did not fulfil the criteria because of their failure to annex all the documents with the tender. Even if the tender came to be awarded to such persons who had quoted 6 per cent higher rate than the schedule but they accepted the work on the schedule rate. To that extent the charge of causing loss to the government by accepting the higher rate of a tenderer who had otherwise fulfilled the requisite requirements does seem to be misplaced. Certain doubts were raised with regard to one contractor namely, Shri Ramanugrah Singh that on a closure scrutiny it was found that even his tender was not in order. If his tender could be accepted then the tenders of the Co-operative Societies i.e. other four ought to be also considered giving a go-by to the objections. There is no finding that the tender was accepted by the petitioner at his level or that the tender which was accepted was not approved by the superior authorities. It is the submission of the learned senior counsel for the petitioner that in absence of a categorical finding that the decision to award the contract with regard to this work was of the petitioner and petitioner alone, he cannot be found guilty. It is the submission of the learned senior counsel for the petitioner that in absence of a categorical finding that the decision to award the contract with regard to this work was of the petitioner and petitioner alone, he cannot be found guilty. Petitioner was part of the chain of decision making and all tenders are ultimately approved at the highest level. Finding of guilt recorded on this score fixing liability on the petitioner alone to that extent is misplaced if not motivated. There is no effort made by the enquiry officer to find out or record his opinion whether the award of contract was made by the petitioner and petitioner alone or he was part of chain of decision making in this regard. 19. There seems to be force in the submission of the petitioner made on this charge pinning the responsibility and holding the petitioner guilty on this count as it is not based on any substantive evidence. It is the mere opinion of the enquiry officer as to what may have been done or ought to have been done. It is not a finding on as to what had been actually done. To that extent holding the petitioner guilty on this count or charge seems to be misplaced but this finding of guilt has also weighed in award of the punishment in question. 20. The sixth charge with regard to installation of Anti Flood Sluice Gate and the award of work to a debitable agency being allowed is alleged to be an illegal exercise of power and authority. One debitable agency, M/S. Rahul Engineering Works was used since the main contractor M/S. India Engineering Works, Bhagalpur failed to complete the work within the time frame. 21. Petitioner has given his explanation that the nature of the work being such which related to flood protection, there was some kind of emergency to award that work to yet another agency on a debitable basis. Once the work was done it was the duty of the Executive Engineer to have adjusted the amount spent on this kind of work on the main contractor. Since that was not done, the petitioner cannot be held responsible for the said charge. It has also emerged that final settlement of accounts of the main contractor had not been done till then. Since that was not done, the petitioner cannot be held responsible for the said charge. It has also emerged that final settlement of accounts of the main contractor had not been done till then. Therefore, what kind of charge could be made out against the petitioner is not understood. In the given circumstances, even the enquiry officer did not find the petitioner guilty on this count and even the Government decided not to press this charge against the petitioner. 22. The seventh charge related to providing irrigation facility from the Dakra Nala Irrigation Project and installation of pumps and delivery pipes by the engineering sections of the department. The charge was that for this work petitioner had certified payments for Rs. 4,77,272/- and the purchase of pipes etc. was at 10 per cent higher rate than the minimum rate fixed. The work was started and completed but proper estimate etc, had not been made. 23. The finding is that this work was done and completed. Whatever estimates were prepared and expenses met was duly approved by the Chief Engineer and once the seal of approval was given by the superiors there was no occasion to hold the petitioner guilty on this count. There is also evidence on record that even a vigilance enquiry had been initiated with regard to the work of Dakra Nala and Vigilance did not find anything substantially amiss on this charge. After having discussed the circumstances and the nature of the work the enquiry officer himself has recorded in his opinion that the benefit of doubt should be given to the petitioner on this count and on this charge. However, even that benefit of doubt has not accrued in favour of the petitioner as this charge also has been made a ground for the order of punishment. 24. Now for the final charge i.e. charge No. 9. This charge related to what is known as Suryagarha Canal Pump. Irrigation facility which, according to the charge, was executed in an adhoc and illegal manner and the manner in which this work was divided into four parts. It is also alleged that the work was intentionally divided into four parts to bring it within the ambit of the powers of the present petitioner which existed till the extent of Rs. 50,000/-. It is also alleged that the work was intentionally divided into four parts to bring it within the ambit of the powers of the present petitioner which existed till the extent of Rs. 50,000/-. It is also alleged that for different parts the same supplier made his bids and work was assigned. 25. According to the petitioner, the desirability of Suryagarha Irrigation Project was worked out after a local inspection was carried by the Engineer-in-Chief as well as the Chief Engineer. On a spot visit and verification an estimate of 1.51 lac was worked out by the Executive Engineer and quotations were invited by the Executive Engineer though it is accepted that the estimate of rate proposed by the Executive Engineer was approved and accepted by the present petitioner. But how much does that decision of approval amount to misdemeanour is the question which was required to be answered. 26. There is some discussion on this issue by the enquiry officer but his finding is more directed against the Executive Engineer rather than the present petitioner. There is no clear finding pinning this petitioner down or even insinuating that the project in question was carried out and completed by awarding contract for extraneous reason and consideration. The factum of splitting up the quotations was not denied but the decision taken to do so was taken after a visit by the Engineer-in-Chief or the Chief Engineer who did approve and certify the execution of project and may be within the time frame. The enquiry officer without clear finding of guilt through and through had left this charge also to the government to decide as to what was the indiscretion on the part of the petitioner. 27. From the discussions with regard to all the charges it is urged at the bar that it is not a case of serious omission and commission or indiscretion committed on the part of the petitioner for which a punishment of demotion or recovery of a large sum of rupees could be ordered. The finding of the enquiry officer being what it is the maximum which the petitioner could be charged with was failing to perform his supervisory role or failure to stick to the rule book. The finding of the enquiry officer being what it is the maximum which the petitioner could be charged with was failing to perform his supervisory role or failure to stick to the rule book. But it is also his case that most of his decisions stood affirmed by the superior authority and if there was failure at his level then there was failure at other levels as well. The petitioner alone cannot be held to be guilty on that charge alone. There is no evidence to show that anybody else has been taken to task based on the so-called omission and commission which was committed in the execution of the Dakra Nala Project. 28. It is not a case of omission and commission which called for imposition of punishment or a disciplinary action. The word misconduct stands well defined by the Honble Supreme Court in various decisions. One of the recent decisions in this regard is the case of Inspector Prem Chand v. Government of NCT of Delhi and Ors. (2007) 4 SCC 566 . Para 10, 11 and 12 have significance for the proposition which is required to be looked into and they are reproduced hereinbelow for ready reference: 10. In State of Punjab v. Ram Singh, Ex-Constable (1992) 4 SCC 54 : 1992 SCC (L&S) 793 : (1992) 21 ATC 435 it was stated : (SCC pp. 57-58, para 5) 5. Misconduct has been defined in Blacks Law Dictionary, 6th Edn. At p. 999, thus: A transgression of some established and definite rule of action, a forbidden act, a dereliction from duty, unlawful behavior, willful in character, improper or wrong behavior; its synonyms are misdemeanor, misdeed, misbehavior, delinquency, impropriety, mismanagement, offense, but not negligence or carelessness. Misconduct in office has been defined as: Any unlawful behavior by a public officer in relation to the duties of his office, willful in character. Term embraces acts which the office-holder had no right to perform, acts performed improperly, and failure to act in the face of an affirmative duty to act. 11. In P. Ramanatha Aiyars Law Lexicon, 3rd Edn. at p. 3027, the term "misconduct" has been defined as under: The term misconduct implies a wrongful intention, and not a mere error of judgment. * * * Misconduct is not necessarily the same thing as conduct involving moral turpitude. 11. In P. Ramanatha Aiyars Law Lexicon, 3rd Edn. at p. 3027, the term "misconduct" has been defined as under: The term misconduct implies a wrongful intention, and not a mere error of judgment. * * * Misconduct is not necessarily the same thing as conduct involving moral turpitude. The word misconduct is a relative term, and has to be construed with reference to the subject-matter and the context wherein the term occurs, having regard to the scope of the Act or statute which is being construed. Misconduct literally means wrong conduct or improper conduct. See also Bharat Petroleum Corporation Ltd. v. T.K. Raju (2006) 3 SCC 143 : 2006 SCC (L & S) 480. 12. It is not in dispute that a disciplinary proceeding was initiated against the appellant in terms of the provisions of the Delhi Police (Punishment and Appeal) Rules, 1980. It was, therefore, necessary for/the disciplinary authority to arrive at a finding of fact that the appellant was guilty of an unlawful behaviour in relation to discharge of his duties in service, which was wilful in character. No such finding was arrived at. An error of judgment, as noticed hereinbefore, per se is not a misconduct. A negligence simpliciter also would not be a misconduct. In Union of India v. J. Ahmed (1979) 2 SCC 286 : 1979 SCC (L & S) 157, whereupon Mr. Sharan himself has placed reliance, this Court held so stating: (SCC pp. 292-93, para 11) 11. Code of conduct as set out in the Conduct Rules, clearly indicates the conduct expected of a member of the service. It would follow that conduct which is blameworthy for the government servant in the context of Conduct Rules would be misconduct. If a servant conducts himself in a way inconsistent with due and faithful discharge of his duty in service, it is misconduct see Pierce v. Foster 17 QB 536. A disregard of an essential condition of the contract of service may constitute misconduct see Laws v. London Chronicle (Indicator Newspapers) (1959) 1 WLR 698. This view was adopted in Shardaprasad Onkarprasad Tiwari v. Divisional Supdt., Central Rly., Nagpur Division, Nagpur (1959) 61 Bom LR 1596 and Satubha K. Vaghela v. Moosa Raza 10 GLR 23. A disregard of an essential condition of the contract of service may constitute misconduct see Laws v. London Chronicle (Indicator Newspapers) (1959) 1 WLR 698. This view was adopted in Shardaprasad Onkarprasad Tiwari v. Divisional Supdt., Central Rly., Nagpur Division, Nagpur (1959) 61 Bom LR 1596 and Satubha K. Vaghela v. Moosa Raza 10 GLR 23. The High Court has noted the definition of misconduct in Strouds Judicial Dictionary which runs as under: Misconduct means, misconduct arising from ill motive; acts of negligence, errors of judgment, or/innocent mistake, do not constitute such misconduct. (emphasis supplied) 29. Based on the definition and interpretation given by the Honble Supreme Court, now the Court has to consider whether charges leveled against the petitioner and the findings recorded against him by the enquiry officer amount to misconduct. If the interpretation given to the word misconduct by the Honble Apex Court is taken into account, then the Court must record its opinion fairly that charges alleged and the findings given can at best amount to failure of the petitioner to supervise to some extent or may be not stick to the rule book. But that by itself is not sufficient to hold that the petitioner is guilty of misconduct because there is no evidence of indiscretion or intentional act emerging from the finding to pin the petitioner down of some serious error committed out of ill will or motive. 30. The next judgment which has been pressed into service by the counsel for the petitioner is the case of Roop Singh Negi v. Punjab National Bank and Ors. (2009) 2 SCC 570 . This decision has been cited for the proposition as to how a departmental enquiry is to be conducted. The manner in which documentary evidence or oral evidence has to be recorded and the finding flowing therefrom. It is the case of the petitioner that there is nothing to show from reading of the enquiry report that any documentary evidence was led or proved by any witness or any oral evidence was led in the matter at all. Para 14, 16 and 21 of the said decision are quoted herein below as they have relevance to the proposition: 14. Indisputably, a departmental proceeding is a quasi-judicial proceeding. The enquiry officer performs a quasi-judicial function. The charges levelled against the delinquent officer must be found to have been proved. Para 14, 16 and 21 of the said decision are quoted herein below as they have relevance to the proposition: 14. Indisputably, a departmental proceeding is a quasi-judicial proceeding. The enquiry officer performs a quasi-judicial function. The charges levelled against the delinquent officer must be found to have been proved. The enquiry officer has a duty to arrive at a finding upon taking into consideration the materials brought on record by the parties. The purported evidence collected during investigation by the investigating officer against all the accused by itself would not be treated to be evidence in the disciplinary proceeding. No witness was examined to prove the said documents. The management witnesses merely tendered the documents and did not prove the contents thereof. Reliance, inter alia, was placed by the enquiry officer on the FIR which could not have been treated as evidence. 16. In Union of India v. H.C. Goel AIR 1964 SC 364 : (1964) 4 SCR 718 , it was held (AIR PP. 369-70, paras 22-23) 22. ...The two infirmities are separate and distinct though, conceivably, in some cases both may be present. There may be cases of no evidence even where the Government is acting bona fide; the said infirmity may also exist where the Governmentis acting mala fide and in that case, the conclusion of the Government not supported by any evidence may be the result of mala fides but that does not mean that if it is proved that there is no evidence to support the conclusion of the Government, a writ of certiorari will not issue without further poof of mala fides. That is why we are not prepared to accept the learned Attorney Generals argument that since no mala fides are alleged against the appellant in the present case, no writ of certiorari can be issued in favour of the respondent. 23. That takes us to the merits of the respondents contention that the conclusion of the appellant that the third charge framed against the respondent had been proved, is based on no evidence. 23. That takes us to the merits of the respondents contention that the conclusion of the appellant that the third charge framed against the respondent had been proved, is based on no evidence. The learned Attorney General has stressed before us that in dealing with this question, we ought to bear in mind the fact that the appellant is acting with the determination to root out the corruption, and so, if it is shown that the view taken by the appellant is a reasonably possible view this Court should not sit in appeal over that decision and seek to decide whether this Court would have taken the same view or not. This contention is no doubt absolutely sound. The only test which we can legitimately apply in dealing with this part of the respondents case is, is there any evidence on which a finding can be made against the respondent that Charge 3 was proved against him? In exercising its jurisdiction under Article 226 on such a plea, the High Court cannot consider the question about the sufficiency or adequacy of evidence in support of a particular conclusion. That is a matter which is within the competence of the authority which deals with the question; but the High Court can and must enquire whether there is any evidence at all in support of the impugned conclusion. In other words, if the whole of the evidence led in the enquiry is accepted as true, does the conclusion follow that the charge in question is proved against the respondent? This approach will avoid weighing the evidence. It will take the evidence as it stands and only examine whether on that evidence legally the impugned conclusion follows or not. Apply this test, we are inclined to hold that the respondents grievance is well founded, because, in our opinion, the finding which is implicit in the appellants order dismissing the respondent that Charge 3 is proved against him is based on no evidence. 21. Yet again in M.V. Bijlani v. Union of India (2006) 5 SCC 88 : 2006 SCC (L & S) 919, this Court held (SCC p. 95, para 25) 25. 21. Yet again in M.V. Bijlani v. Union of India (2006) 5 SCC 88 : 2006 SCC (L & S) 919, this Court held (SCC p. 95, para 25) 25. ...Although the charges in a departmental proceeding are not required to be proved like a criminal trial i.e. beyond all reasonable doubt, we cannot lose sight of the fact that the enquiry officer performs a quasi-judicial function, who upon analyzing the documents must arrive at a conclusion that there had been a preponderance of probability to prove the charges on the basis of materials on record. While doing so, he cannot take into consideration any irrelevant testimony of witnesses only on the basis of surmises and conjectures. He cannot enquire into the allegations with which the delinquent officer had not been charged with. 31. The law being what it is, if the parameter as laid down by the Honble Supreme Court has not been followed by the enquiry officer as would be evident from reading of the enquiry report, then even otherwise the finding is no finding in the eye of law. If that be so then it cannot be said that there is material or a delinquent can still be punished on the basis of such erroneous enquiry or non est enquiry in the eye of law. 32. The next decision cited is in the case of State of Uttar Pradesh and Ors. v. Saroj Kumar Sinha (2010) 2 SCC 772 . There is relevance and applicability of this decision to the set of present facts in view of what the Honble Supreme Curt had to observe in para 27, 28, 29 and 30 of the said decision. 27. A bare perusal of the aforesaid sub-rule shows that when the respondent had failed to submit the explanation to the charge-sheet it was incumbent upon the enquiry officer to fix a date for this appearance in the inquiry. It is only in a case when the government servant despite notice of the date fixed failed to appear that the inquiry officer can proceed with the inquiry ex parte. Even in such circumstances it is incumbent on the inquiry officer to record the statement of witnesses mentioned in the charge-sheet. Since the government servant is absent, he would clearly lose the benefit of cross-examination of the witnesses. Even in such circumstances it is incumbent on the inquiry officer to record the statement of witnesses mentioned in the charge-sheet. Since the government servant is absent, he would clearly lose the benefit of cross-examination of the witnesses. But nonetheless in order to establish the charges the Department is required to produce the necessary evidence before the inquiry officer. This is so as to avoid the charge that the inquiry officer has acted as a prosecutor as well as a judge. 28. An inquiry officer acting in a quasi-judicial authority is in the position of an independent adjudicator. He is not supposed to be a representative of the department/disciplinary authority/Government. His function is to examine the evidence presented by the Department, even in the absence of the delinquent official to see as to whether the unrebutted evidence is sufficient to hold that the charges were proved. In the present case the aforesaid procedure has not been observed. Since no oral evidence has been examined the documents have not been proved, and could not have been taken into consideration to conclude that the charges have been proved against the respondents. 29. Apart from the above, by virtue of Article 311(2) of the Constitution of India the departmental enquiry had to be conducted in accordance with the rules of natural justice. It is a basic requirement of the rules of natural justice that an employee be given a reasonable opportunity of being heard in any proceedings which may culminate in punishment being imposed on the employee. 30. When a departmental enquiry is conducted against the government servant it cannot be treated as a casual exercise. The enquiry proceedings also cannot be conducted with a closed mind. The enquiry officer has to be wholly unbiased. The rules of natural justice are required to be observed to ensure not only that justice is done but is manifestly seen to be done. The object of rules of natural justice is to ensure that a government servant is treated fairly in proceedings which may culminate in imposition of punishment including dismissal/removal from service. 33. Another significant aspect which has been pointed out by the learned senior counsel for the petitioner in the present case is based on the second show cause which came to be issued to the petitioner, which is dated 20th December, 1995. 33. Another significant aspect which has been pointed out by the learned senior counsel for the petitioner in the present case is based on the second show cause which came to be issued to the petitioner, which is dated 20th December, 1995. The second show cause is Annexure-5 to the writ application, which too was challenged by the petitioner initially in the writ application before the order of punishment came to be passed subsequently. The second show cause states that out of 9 charges, 6 charges are proved, which too is an error of record because out of 9 charges, 3 charges were dropped by the enquiry officer and one charge was dropped by the Government. If 4 charges out of the 9 charges were dropped, then how come 6 charges were still proved? There is no explanation on this count by the respondents. 34. The other aspect which emerges from a reading of second show cause is that even without finding having been recorded by the enquiry officer with regard to loss of money caused by the petitioner or even without there being any charges drawn up against the petitionerV of financial loss, the second show cause issued to the petitioner seeks explanation on four counts of causing financial loss to the Government. In other words, besides the original set of charges petitioner was asked to respond to a new set of charges which were never part of the original set of charges or on which there was no finding recorded by the enquiry officer. 35. Submission therefore is that the second show cause bringing new materials and charges against the petitioner and asking him to give his response is totally beyond the ambit and/or established procedure of conducting a departmental enquiry. The petitioner cannot be asked to answer to charges, which did not form part of the original charge and obviously it is a case of over enthusiasm at the level of the disciplinary authority for whatever reasons which may exist. 36. The Court is not willing to delve into this part of the allegation that the entire exercise carried out against the petitioner was because of some motive or ill-will which the then Minister carried against him and that was the reason why he was punished in absence of material. 36. The Court is not willing to delve into this part of the allegation that the entire exercise carried out against the petitioner was because of some motive or ill-will which the then Minister carried against him and that was the reason why he was punished in absence of material. Without going into that allegation or allegations, the facts by itself speak, in the manner in which departmental enquiry has been conducted by giving a go by to the established principles and the manner in which the order of punishment has come to be passed. 37. Learned Counsel representing the petitioner also brings to my notice a decision communicated to him, which is contained in Annexure-67 and is dated 19.4.2002. By virtue of this communication the period 3.10.1992 to 16.6.1993 has been declared to be the period of absence by the petitioner without proper sanction or authority. In this regard this period was declared to be a period of unauthorized absence but regularized by grant of extra ordinary leave but without payment of any salary or benefits for the said period, though it was declared that the same will not be counted as a break in service so far as the post retiral dues are concerned. 38. Counsel for the petitioner based on records indicates that it is not a case that petitioner had gone missing. He had gone and joined Minor Irrigation Department. He had drawn his salary for that period. His existence in the said department and his continuance therein was known to all but this was another way for hitting back the petitioner for the reasons best known to the respondents. 39. Counsel for the State was therefore called upon to explain the infirmity which has been pointed out by the petitioner with regard to the enquiry, second show cause and the order of punishment. Submission made based on the counter as well supplementary counter filed on behalf of the State is that the enquiry was conducted. Since the enquiry officer found the petitioner guilty on a lot of counts based on the charges, the only other option left to the respondents was to impose punishment because there was failure on the part of the petitioner to perform his duties faithfully and to the best of his ability. Since the enquiry officer found the petitioner guilty on a lot of counts based on the charges, the only other option left to the respondents was to impose punishment because there was failure on the part of the petitioner to perform his duties faithfully and to the best of his ability. If the findings are there as they are, nothing wrong can be found against the order of punishment which has been imposed against him. Since the petitioner was holding a responsible post of Superintending Engineer he had a duty to have complete control of the state of affairs and the work which was going on under his supervision. 40. From the stand of the State it is clear that they do not have answers for most of the submissions which have been made at the bar, which have been indicated in the earlier part of the order and the proposition of law which has been pressed into service in support thereof. The Court to some extent can agree with the counsel for the State that it could be a case of failure to provide effective supervision at the level of the petitioner but failure to supervise and meet the expectation and standards of the higher ups and that too in retrospect does not itself amount to misconduct, if the meaning of misconduct is taken into consideration as has been defined and laid down by the Supreme Court. There is no finding that petitioners omission and commission alleged was deliberate, intentional and with object of making a quick buck. There is not even an insinuation of this kind in the charges or the findings which emerges from the enquiry report. Obviously there are many unexplained areas with regard to the way the enquiry has been conducted, the findings recorded and the manner in which second show cause with additional set of materials having been issued to the; petitioner and the order of punishment being imposed thereafter. 41. Petitioner has made out a case for interference. In view of the same the impugned order dated 12.1.1996 contained in Annexure-41 is hereby quashed. So is the order contained in Annexure-67. 42. The writ application is allowed with a direction upon the respondents that they shall now settle the dues and the consequential benefits of the petitioner which flows from the quashing of the two orders of punishment. 43. So is the order contained in Annexure-67. 42. The writ application is allowed with a direction upon the respondents that they shall now settle the dues and the consequential benefits of the petitioner which flows from the quashing of the two orders of punishment. 43. The writ application is allowed. However, there shall be no order as to cost.