Judgment :- (JUDGMENT OF THE COURT WAS DELIVERED BY PRABHA SRIDEVAN, J,) The petitioner is aggrieved by the order of the Central Administrative Tribunal, setting aside the punishment imposed on the 1st respondent on the ground of discrimination. 2. The 1st respondent was working as an Executive Engineer, Construction Division-XII, CPWD., New Delhi at the relevant point of time. On 14.2.2001, a surprise inspection was conducted by the Vigilance Unit and a shortage of 101 cement bags were noticed at about 4.00 p.m. on the same day in the presence of the 1st respondent and others. After the Vigilance Unit left the place, it is alleged that the 1st respondent rectified the shortage by conniving with the contractor and a Charge Memo was issued on 5.12.2001. 3. Two Charges were framed against the 1st respondent. The first one is that he failed to check the cement store at the Works Site as laid down in the CPWD Manual and the second charge was that he connived with the contractor in covering up of the shortage of 101 cement bags. The 1st respondent denied the charges. An Enquiry Officer was appointed and he filed a report on 31.1.2005 holding that the Charge No.1 was not proved and the Charge No.2 was mostly proved. 4. The Disciplinary Authority on a consideration of the Enquiry Officers Report differed with the findings of the Enquiry Officer and held that both the charges were proved. An order was passed dated 11.12.2006, imposing the major penalty of reduction by one stage in the time scale of pay for a period of three years with cumulative effect. This was challenged by the 1st respondent in O.A.No.65 of 2008 and the Tribunal passed the impugned order. 5. The learned Counsel appearing for the petitioner submitted that the reasoning of the Tribunal cannot be sustained. The Enquiry Officer had not considered all the above aspects and come to a wrong conclusion with regard to Charge No.1 and as per the relevant rules, the Disciplinary Authority may disagree with the findings of the Enquiry Officer and it arrived at his own finding. The learned Counsel submitted that the fact the Junior Engineer was imposed with a lesser punishment is no ground to set aside the punishment. By the impugned order, the 1st respondent, who was found guilty by both the charges was allowed to go free. The learned Counsel submitted that the fact the Junior Engineer was imposed with a lesser punishment is no ground to set aside the punishment. By the impugned order, the 1st respondent, who was found guilty by both the charges was allowed to go free. The learned Counsel submitted that when the responsibility of the 1st respondent is higher, it is only justified that he is imposed with higher punishment. 6. The learned Counsel also submitted that the Memorandum dated 6.5.1994 issued by the Director General of Works lays down the periodicity of inspection and it is abundantly clear from the facts that the 1st respondent had not complied with its requirements. He was found guilty of misconduct and punishment was imposed. He also submitted that the scope of judicial review in this regard is very limited and there may not be any interference. To our question regarding the punishment imposed to the co-accused Gajai Singh is concerned, the learned Counsel produced a letter from which it is shown that Gajai Singh was imposed with a penalty of 10% cut in pension for 5 years. 7. The learned Senior Counsel appearing for the 1st respondent submitted that it is the Junior Engineer, who had the duty to ensure that there is no shortage in the cement bags and there are no materials to show that the 1st respondent had connived with the Junior Engineer. The Junior Engineer had given an explanation as to why 101 cement bags were not on at the site at the relevant point of time and that they were lying covered at various sites and that after the Vigilance Inspection, they were restored to the Cement Stores Site. 8. The learned Senior Counsel submitted that at best, the 1st respondent can be held to be guilty only of not adhering to the periodicity of inspection, but nothing more. The learned Senior Counsel submitted that the charge of connivance or collusion is not borne out by facts and there must be facts to substantiate these charges. 9. Article Nos. 1 and 2 of the Charge Memo read as follows: ARTICLE-1 "The said Shri S.P. Palanisamy failed to check the cement store of the said work as Executive Engineer in-charge of the work at prescribed frequency as laid down in para 27.21.2 of CPWD Manual Vol. 9. Article Nos. 1 and 2 of the Charge Memo read as follows: ARTICLE-1 "The said Shri S.P. Palanisamy failed to check the cement store of the said work as Executive Engineer in-charge of the work at prescribed frequency as laid down in para 27.21.2 of CPWD Manual Vol. II." ARTICLE-2 The said Shri S.P. Palanisamy connived with the covering up of the shortage of 101 cement bags in the cement store of the said work found in his presence on surprise checking by the vigilance unit on 14.2.2001 at 4.00 PM by certifying the balance of 311 cement bags in the cement store at 6.15PM on the same day after the departure of the vigilance unit against 210 cement bags found earlier in the day in the presence of vigilance unit. Thus, by the above acts of omission and commission, the said Shri S.P. Palanisamy, Executive Engineer (Civil) exhibited lack of integrity and lack of devotion to duty contravening Rules 3(1)(i) and 3(1)(ii) of C.C.S. (Conduct) Rules, 1964." The Enquiry Officer was of the opinion that as regard Charge 1 that it is technically proved by not following the exact periodicity, but not practically proved. With regard to charge No. 2, the Enquiry Report held that while the respondent had rightly acted against the contractor, he failed to do so against the Junior Engineer. He simply accepted the pleadings of the Junior Engineer as that he was not directly responsible for the shortage of cement bags. The Enquiry Officers held that the charges stand proved to the extent that he did not take action against the Junior Engineer and thus shielded him. 10. The Disciplinary Authority disagreed with the findings regarding Charge 1 and held that the charge against the 1st respondent is very specific and the Enquiry Officer could not have accepted the explanation given by the 1st respondent that because of his other engagements he could not check the cement bags as the Disciplinary Authority felt that checking is an integral part of his day-to-day work. The Disciplinary Authority accepted the findings of the Inquiry Officer in respect of Article 2. Thereafter, the matter was placed before the Public Service Commission. The Disciplinary Authority accepted the findings of the Inquiry Officer in respect of Article 2. Thereafter, the matter was placed before the Public Service Commission. The Commission held that the cover up operation was undertaken with the active co-operation of the Charged Officer when the shortage was detected in the surprise check conducted by the Vigilance team and therefore, the Charged Officer exhibited lack of integrity by colluding with persons who had been caught trying to misappropriate Government Property and advised accordingly. In those circumstances, this punishment was imposed. 11. Therefore, the factual finding regarding Charge 1 that the 1st respondent had not adhered to the periodicity of inspection is a concurrent finding with which we cannot interfere. As regards the 2nd charge, the Enquiry Officer had found that the 1st respondent was not directly responsible for the shortage of cement bags noticed by the Vigilance Unit and the charge against him stands proved to the extent that he did not take action and thus, he is guilty. But when the matter was taken up by the Disciplinary Authority, the Disciplinary Authority disagreed that the findings on charge 1, but agreed with regard to charge 2. However it was held that had the Vigilance Unit not noticed the shortage, the respondent would not have taken any action and that while the action against the contractor showed Charged Officers independence, no such action was taken against the Junior Engineer. It was observed that the Charged Officer should have questioned the Junior Engineer just as he had questioned the contractor and referred to the Inquiry Officers report that the charge against the Charged Officer was proved to the extent that he did not take action against the Junior Engineer and thus shielded him. At this stage, the Commission took note of the plea taken by the co-accused Shri Gajai Singh that he has been instructed by the Superintending Engineer/DCC XII. The Superintending Engineer has refuted this and from this, it was concluded that the plea taken by the 1st respondent that he acted in consultation with his immediate superior is false and therefore, they held that the conduct of the 1st respondent was neither honest nor bonafide and that his conduct cannot be accepted and therefore held as follows: "It is quite clear that the cover up operation was undertaken with the active co-operation of Charged Officer. When the shortage was detected in the surprise check conducted by the Vigilance team. C.O. thus exhibited lack of integrity by colluding with persons who had been caught trying to misappropriate Government Property..." It is clear from the above that while the Inquiry Officer had found that the 1st respondent had shielded the Junior Engineer, the Disciplinary Authority held that he had connived, the conclusion is that he had colluded with the persons who had been caught trying to misappropriate the Government Property. It is not clear who these persons are. They could only be the Contractor and the Junior Engineer. But, there is no material for this conclusion that he had colluded with the Contractor since the finding is that the action against the Contractor shows the Charged Officers independence. Therefore, for the conclusion that he had colluded with the persons, we do not see any material or the basis on which such a conclusion is arrived at. 12. It is true that the Commission observed that the plea taken by the Charged Officer that he acted in consultation with his immediate superior is false in this regard. The learned Senior Counsel submitted that only one witness was examined in this proceedings is P.W.1, who is A.K. Gupta. To the question whether Gajai Singh came to the site at the request of the 1st respondent or as per the instructions of the Superintending Engineer P.W.1 had answered that Shri Gajai Singh arrived at the instruction of the Superintending Engineer. The learned Senior Counsel submitted that while there cannot be any doubt that this Court cannot sit in appeal, this finding, that the Charged Officers statement is false is based on some other proceedings and the only evidence that was before the Authority in this case was the evidence that was just extracted and therefore, the conclusion that the 1st respondents plea is false is based on extraneous materials. 13. While we are conscious of the limitation of judicial review in disciplinary proceedings, we have to sustain the objection raised by the 1st respondent that for arriving at a conclusion that there was collusion, there was no material, in fact, even the charge does not indicate that he had colluded with the contractor and the Enquiry Officer only found that the charge is proved to the extent that he did not take action against the Junior Engineer and shielded him. The Disciplinary Authority had not differed with the above conclusion of the Inquiry Officer with regard to Charge 2. 14. The reason why the Tribunal held that the order should be set aside is because the Junior Engineer was awarded a lesser punishment. It is possible that the authorities felt that the superior must have better control and had to show greater degree of integrity and devotion to duty which is expected on him. In any event, the Tribunal could not have set aside the punishment leaving the 1st respondent go free especially when there are concurrent findings regarding the fact that the charges have been proved. The Tribunal should have sent the matter back, for deciding the appropriate punishment. 15. We have already referred to the punishment imposed on Gajai Singh, who was the co-accused, which is as follows: "This is in continuation to our earlier letter of even number dated 18.6.2010. The clarifications sought have been received in respect of Shri Gajai Singh, (Date of Birth: 05/01/1942) then EE (P&A) presently retired. Final Orders were issued by the Ministry of Urban Development on 26.9.2005 imposing a penalty of 10% cut in pension for 5 years vide Order No.C-13015/27/2001-AV III dated 26.9.05. The Pay and Accounts Office, Directorate General of Works has confirmed the implementation of penalty orders vide Order No. PAO/DGW/PEN/Fno. 2333/PPO No. 430530600393 dated 23.2.2010." 16. We allow the writ petition, setting aside the order of the Tribunal and the petitioner shall take into account all the materials available and pass orders on the punishment to be awarded on the 1st respondent within three months. They shall hear the 1st respondent before passing the orders. Consequently, connected Miscellaneous Petitions are closed. No costs.