JUDGMENT Hon’ble Kalyan Jyoti Sengupta, J. 1. Having satisfied with the explanation given in the affidavit, I allow restoration application No. 958 of 2012 and recall order dated 27th November, 2012. The matter is restored on file. Immediate after restoration by consent of the parties, the writ petition itself is taken up for final hearing today. 2. The writ petitioner was Assistant Manager at the relevant point of time. He has impugned two orders of punishment dated 29th December, 2005 passed by the Departmental Appellate Authority and 5/6th September, 2005 passed by the Disciplinary Authority. 3. The fact of the case is as follows: The petitioner on or about 27th February, 2004 was put under suspension. Thereafter, chargesheet was issued against him for holding an inquiry for commission of misconduct. This chargesheet was issued on 11/15th October, 2004. Seven sets of Article of charges were mentioned in the chargesheet and the same are set out hereunder:- “Article-I Shri Sureshananad Sharma AM(D) misbehaved with the then SRM, in presence of officers and staff. He also attempted to Physical Assault the SRM when SRM was on surprise visit to hired Railway Godwon Rishi Kesh on Feb.27-2-2004. Article-II He was found involved in defaming the then SRM as well as FCI by lodging an FIR on false allegations and he lodged FIR without seeking prior permission of the C.A. Article-III During surprise visit of SRM it was found that stocks were not stored properly and without wooden crates/dunnage although crates were reportedly available as per photographs taken by the SRM. In the earlier case in respect of stocks ex-Chamkaur Sahib also he was found indulged in not arranging proper salvaging to complaint and affected stocks which were stored on Kacha plinth without wooden crates & FCI suffered losses as he declared stock as damaged on the basis of segregating the bags without salvaging the stocks. Article-IV He was found indulged in inviting Sahara Samay T.V. Team on Feb 29th 2004 (Sunday) and he was seen giving interview to TV Team. For his this act as well as to open godown as Sunday he did not seek prior permission and also that on 29-2-2004 he was under suspension. In his interview to TV Team he highlighted the incidence on Feb 27, 2004 and other anti management activities. For his this act as well as to open godown as Sunday he did not seek prior permission and also that on 29-2-2004 he was under suspension. In his interview to TV Team he highlighted the incidence on Feb 27, 2004 and other anti management activities. Article-V Shri S.N. Sharma was placed under suspension vide RO order No:Vig.4(183)DO DDN/2004/5556 dated 27-2-2004 which was received by him on 28-2-2004 but intentionally he mentioned the date of receipt as 01-03-2 004. Thus found involved in manipulation of record. Article-VI He was found indulged in tampering of records as in spite the fact that he was under suspension on 29-2-2004 he forwarded transportation bill of M/s Prabhat Transport Co. vide letter No.FCI/RKSH/Local/ TC/2003-04 dated 29-2-2004 and signed another letter No.FCI/RKSH/TC/Simli/ 2003-04 dt. 29-2-2004 submitting bills of transport to Distt. Manager. In the same day he also signed attendance register of staff for Feb,2004. Thsu involved in tampering of FCI records. Article-VII Due to utter negligence of Shri S.N. Sharma FCI had suffered financial losses due to payment of Demurrage charges amounting to Rs.32,070/- during July, 2003 and Rs.26,634/- during Aug.03 and against these demurrage payment he did not conduct any investigation except for a remark in the demurrage statement that amount is to be deducted from the transport contractor and labour. The said amount is found non-recoverable in absence of any documents. Had Shri Sharma made efforts to conduct investigation and book the defaulter transport contractor the said amount would have been recovered. This caused financial loss to the Corporation.” 4. The petitioner replied to the said charges, and after considering his reply, it was decided that the inquiry would be held. So, a retired Army Officer was appointed to inquire into the matter under the Regulation 58 (2) of the Food Corporation of India (Staff) Regulations, 1971 read with Section (3) of the Public Servants (Inquiries) Act, 1850. The petitioner participated in the disciplinary proceedings. The Inquiry Officer, after hearing the petitioner, and considering the evidence both documentary and oral, came to the following findings. Article-I – Charge of misbehaviour by the petitioner is proved beyond any doubt but the attempt of physical assault could not be established. Article-II –Filing of F.I.R. is without permission is proved beyond any doubt. Charge of defaming the then SRM calling harijan and physical assault by C.O. was also not proved. Article-I – Charge of misbehaviour by the petitioner is proved beyond any doubt but the attempt of physical assault could not be established. Article-II –Filing of F.I.R. is without permission is proved beyond any doubt. Charge of defaming the then SRM calling harijan and physical assault by C.O. was also not proved. That also amounts to false allegation. Article – III – During surprise visit of SRM, it was found that stocks were not stored properly and without wooden crates / dunnage although crates were reportedly available as per the photographs taken by the SRM is beyond doubt. Second part of stock ex-chamkaur Sahib does not stand the scrutiny of reasonings have not been proved. Article IV, V, VI and VII stand proved as reasonings given in the preceding paragraph. 5. It appears that the disciplinary authority on receipt of the said report of the Inquiry Officer neither disagreeing nor agreeing expressly, rather by necessary implication agreeing imposed punishment of reduction to the lowest stage in the time scale of pay for the period of five years and reduction of increment of pay with immediate effect. Therefore, punishment awarded is substantially major particularly when he retired on 31st March, 2012. 6. The appellate authority did not touch the above order. Hence the writ petition was filed challenging the legality of the order. 7. Mr. Sharad Sharma, learned Senior Counsel for the petitioner contends that the allegations made in the chargesheet did not constitute misconduct. He contends that petitioner submits that the appointment of the Inquiry Officer is not legally valid as it is contrary to the provision of Section 58 (2) of the said Regulation. Relevant portion of the said Regulation is set out hereunder: - “Whenever the disciplinary authority is of the opinion that there are grounds for inquiring into the truth of any imputation of misconduct or misbehavior against an employee of the Corporation, it may itself inquire into or appoint under this regulation or under the provisions of the Public Servants (Inquiries) Act, 1850, as the case may be, an authority to inquire into the truth thereof.” 8. The learned counsel submits that the background for which the chargesheet was issued at the relevant time Senior Regional Manager visited the depot where the petitioner was Assistant Manager. The learned counsel submits that the background for which the chargesheet was issued at the relevant time Senior Regional Manager visited the depot where the petitioner was Assistant Manager. In course of visit, there was exchange of words, as a result, SRM is alleged to have physically assaulted the petitioner and for which the petitioner had lodged the F.I.R. against him with the appropriate Police Station. Pursuant to the F.I.R., investigation was conducted and police has filed a report in final form and charges have been framed against him and trial has been started and it is going on. Even an attempt was made to get the F.I.R. quashed in this Court but it was not successful. 9. Therefore, the alleged charges in relation to that incident are totally unfounded. He submits in the context of charges of not obtaining prior permission of Superior Authority to lodge F.I.R. that there was no time left in between the time of occurrence and lodging the F.I.R. for seeking prior permission. But later on his client sought for permission. But the application for permission was not accepted and it was sent by registered post. 10. As far as the manipulation of record by endorsing on the order of suspension putting different date is concerned, it has not been proved by the persons who went to deliver the letter. The participation in a programme organized by the Sahara Samay TV Channel was not proved by any person. Therefore, this finding of the Inquiry Officer is based on conjecture and surmises. 11. He urges that the appellate authority has not decided the matter at all and has mechanically and blindly accepted what the disciplinary authority has held and it is devoid of application of independent mind. This order cannot be sustained as it is absolutely vindictive action on the part of respondents. 12. Learned counsel for the respondents contends that the writ petition should not be entertained and heard as under the provision of Section 74 of the Regulation, the petitioner has a remedy to approach the reviewing authority which he has not admittedly been done. He submits that the appointment of the Inquiry Officer is absolutely lawful, and in consonance with Regulation 58 (2). Sub-section (2) of the Regulation empowers the respondents to choose any person under the provision Section (3) of the Public Servants (Inquiries) Act, 1850. He submits that the appointment of the Inquiry Officer is absolutely lawful, and in consonance with Regulation 58 (2). Sub-section (2) of the Regulation empowers the respondents to choose any person under the provision Section (3) of the Public Servants (Inquiries) Act, 1850. Inquiry Officer was a retired Army Officer and he was engaged for this purpose, of course, on contractual basis. Therefore, there is no illegality. Moreover, the petitioner has participated in the disciplinary proceedings and never raised any objection and in this Court objection has been raised for the first time and this objection should be overruled. On merit, he says that he was given ample opportunity and the Inquiry Officer after analyzing all evidence has come to the fact findings. Disciplinary authority has accepted fact finding and imposed punishment. The misconduct of the petitioner was serious. The Court in exercise of the judicial power of judicial review should not scrutinize the findings of the Inquiry Officer or those of disciplinary authority or appellate authority. 13. On preliminary objection on the question of alternative remedy, I am of the opinion that it is settled position of law that existence of alternative remedy does not ouster the jurisdiction of the writ court. It is the discretion of the writ court whether a particular case should be entertained, or not. I have checked order of admission and this Court in exercise of its discretion had admitted writ petition and at no stage objection was raised. It is also settled by the Supreme Court once the writ petition is admitted for hearing without any objection, and affidavits are exchanged, no such plea is allowed to be taken for consideration at a later stage. It is the duty of the writ court to decide and not to relegate the same to any other authority, namely, alternative authority. 14. Therefore, I overrule this objection as it is taken in course of argument. I am of the view, it is not legal point simplictor, it is a mixed question of fact and law. 15. Now, coming to the legality and validity of the appointment of the Inquiry Officer, I have examined all the alleged act of misconduct as mentioned in the chargesheet. While examining in the context of the submission of the learned counsel for the petitioner whether these disclose prima-facie misconduct or not. 15. Now, coming to the legality and validity of the appointment of the Inquiry Officer, I have examined all the alleged act of misconduct as mentioned in the chargesheet. While examining in the context of the submission of the learned counsel for the petitioner whether these disclose prima-facie misconduct or not. I found charge Article-I, II and III had disclosed the misconduct prima-facie. However, the portion of Article II regarding lodging F.I.R. without seeking permission of Competent Authority does not disclose any misconduct as nothing is mentioned under what provision of law the prior permission is required for lodging of F.I.R against a particular officer who is alleged to have committed offence. Therefore, this portion of charge is legally vague. It is difficult for any person to answer any vague charge either factual or legal. Moreover, if there be any provision, in my view, it is totally unsustainable and invalid as no permission is required for lodging F.I.R. for commission of any offence against any person. For Section 154 of Criminal Procedure Code, it is the duty of any person to lodge compliant immediately after occurrence as far as practicable. If it is so as suggested by the respondents, the situation would be totally absurd and unrealistic in our society. As for illustration on hypothetical basis if it is found that any superior officer committed rape upon any lady employee lady employee working under him, and that superior person is the person who has to give permission and the lady has to seek permission from that officer who is an accused. Anyone can imagine whether permission can be granted or not. In ordinary course of event, he will not give permission. Take a case of commission of murder or any grievous hurt. If F.I.R. is not lodged, the police will not take any action. In a murder case, no post mortem examination over the body would be held, and nothing can be done if one has to seek for permission. In a criminal case time factor for lodging of F.I.R. is important and relevant to believe the story of prosecution. In a rape case, if permission is released by any person after two months, then the police will not believe at all and no material will be found at that time by the police. Belated story of commission of rape will also be disbelieved. In a rape case, if permission is released by any person after two months, then the police will not believe at all and no material will be found at that time by the police. Belated story of commission of rape will also be disbelieved. The provision of prior permission for lodging of F.I.R. has to be ignored all together. 16. I have gone through minutely report of the Inquiry Officer. It appears to me that the charges of organizing programme through Sahara Samay T.V. team has been proved with preponderance of probability as the petitioner never denied that he was not present in the programme. Therefore, the Inquiry Officer has rightly held so. As far as the charge of Article VII is concerned, this appears to have been proved with preponderance of probability. Adequacy and inadequacy of evidence to reach findings is not the factor in the pubic law field to scrutinize. It appears that the findings of the Inquiry Officer as regards charge of Article VI, namely, putting wrong date on receipt on the suspension order is not proved at all. The person who has delivered the order has not been examined. Some other persons reading from the records testified that petitioner has put wrong date and tempered the record. In any event, putting wrong date cannot be held by any reasonable prudent person as tempering of record consequently misconduct. Tempering of records means if he does something which changes substantially and materially the records. It is acknowledgment receipt and this receipt is signed by the petitioner and this receipt is prepared for his purpose and it is his document so to say and receipt is granted by the payee. He has put a wrong date and it cannot be said to be misconduct. 17. The fact finding of the Inquiry Officer in this matter has no evidence in the case. The writ court shall take note of the same not merely exercising power but exercising its duty. I have examined the order of the disciplinary authority who has without giving any opportunity of hearing to the petitioner came to different findings that respondents have incurred loss which was not found by the Inquiry Officer and such finding is totally in violation of principle of natural justice. 18. Under this circumstance, I think that the matter is required to be reconsidered in view of my findings. 18. Under this circumstance, I think that the matter is required to be reconsidered in view of my findings. Two Article of charges have been proved viz holding a programme in the Sahara Samay TV channel and negligence in not making inquiry for the loss suffered on account of demurrage charges. 19. Therefore, I set aside both orders of punishments. Neither of the two authorities has considered the question of quantum of punishment even if, the report of the Inquiry Officer is taken its face value. I set aside both the orders of punishment, and direct the appellate authority to consider afresh and to examine whether the punishment of this nature warranted based on fact findings reached by me. 20. Therefore, the petitioner shall be given hearing and this shall be completed within a period of eight weeks from the date of communication of this order. All the benefits of the petitioner will abide by by the fresh decision to be taken. 21. The writ petition is disposed of.