JUDGMENT B.K. Sharma, J. 1. The petitioner is aggrieved by the Annexure-G order dated 29.1.2005, by which his earlier penalty of compulsory retirement was reduced to that of reversion to the lower post of Watchman with further direction to fix his pay scale of Watchman at the stage from which he was promoted to the post of AG-III(D) till his retirement on attaining the age of superannuation on 30.4.2011. It was further provided that the petitioner would be entitled to increments of pay in the scale of Watchman. Prior to the said appellate order, the petitioner was imposed with the penalty of compulsory retirement vide Annexure-F order dated 7.10.2002, pursuant to a departmental proceeding in which the following charge was leveled against the petitioner:- STATEMENT OF ARTICLE OF CHARGE FRAMED AGAINST SHRI HIRA DAS, AG-III (D) OF SHED 'B' OF FCI FSD CINNAMARA UNDER FCI DISTRICT OFFICE, JORHAT. Shri Hira Das, AG-III(D) while functioning as Godown Assistant at 'B' shed of FCI, FSD, Cinnamara under District Office, FCI, Jorhat (Assam Region) from 19.9.96 to 15.7.97 had acted in the manner of unbecoming of a Corporation employee, in as much as that he failed to maintain absolute integrity, devotion to duty, service the Corporation honestly and faithfully, and to safeguard the interest of the Corporation by committing the following irregularities. ARTICLE OF CHARGE During 100% weighment conducted by Zonal Office (NE) Special IA and PV team, a huge quantity of food grains, sugar and 72 pcs. of gunnies were found short at Shed 'B' in FSD Cinnamara. Shri Hira Das, AG-III(D) was the godown assistant of the said shed and carried receipt/issue operations in the said godown. He laws closely associated with the Shed In charge and Supervisory staff in day to day operations in the godown. Such huge discrepancies were in the knowledge of Sri Hira Das, AG-III(D) by virtue of his active association of the depot operation on day-to-day basis. Some stacks were found not in existence even. He never reported any discrepancy to the Shed Incharge or any other superiors. Thus he concealed the shortage of foodgrains, sugar and gunny stocks in the godown against the book balances written in the books of accounts and displayed lack of absolute integrity and devotion to duty. He Laws a willful party for this large scale misappropriation/bungling which caused losses; to the FCI to the tune of Rs. Thus he concealed the shortage of foodgrains, sugar and gunny stocks in the godown against the book balances written in the books of accounts and displayed lack of absolute integrity and devotion to duty. He Laws a willful party for this large scale misappropriation/bungling which caused losses; to the FCI to the tune of Rs. 1,01,28,915.63 paise in connivance with the shed in charge and other staff and officers for his ulterior motive and personal gain. Sri Hira Das, AG-III(D), FCI, FSD, Cinnamara by his above act had failed to maintain absolute integrity, devotion to duty, serve the Corporation honestly and faithfully and acted in a manner prejudicial to the interest of the Corporation and thereby made himself liable for the disciplinary proceedings for violation of Regulation 31(a), (b), 32 and 32 A (5) (9) (30) of the FCI Staff Regulation, 1971. 2. The aforesaid charge was brought against the petitioner vide Annexure-A memorandum dated 15.1.1998. Before responding to the charge, the petitioner had prayed for inspection of the listed documents enabling him to submit an effective written statement in favour of his defence. He also prayed for furnishing of the photocopies of the listed documents. However, he was denied such inspection of documents vide Annexure-C communication dated 28.5.98. It was stated that since the charge sheet had been issued under Regulation 58 of the FCI Staff Regulations, 1971, his request for inspection of documents could not be acceded to and accordingly it was rejected. However, it was stated in the said communication that he would be entitled to inspection of documents during the enquiry proceedings. 3. Referring to the Annexure-D series depositions made by the witnesses examined on behalf of the disciplinary authority, it is the case of the petitioner that none of the said witnesses had attributed any misconduct on the part of the petitioner in reference to the charge that was leveled against him. It is the further case of the petitioner that the non-application of mind on the part of the disciplinary authority is amply demonstrated in view of the fact that although he was only an Assistant in the particular godown but while issuing the charge sheet, he was initially described as the Godown Incharge. However, later on, the said mistake was corrected. However, later on, the said mistake was corrected. It is in this context, the petitioner has questioned the very issuance of the charge sheet, inasmuch as the charge contained in the said charge sheet was in consideration that the petitioner was the Godown Incharge, although he was not. 4. Although, the petitioner was not provided with the copies of the documents he had prayed for, to submit an effective written statement but when the same was rejected, he had no other option than to submit his written statement but reserving his right in respect of the said plea. In due course, the disciplinary authority appointed an Inquiry Officer to enquire into the charge that was leveled against the petitioner. The said Inquiry Officer on conclusion of the enquiry submitted his report, a copy of which was furnished to the petitioner vide the Annexure-E letter dated 19.2.2002. On a bare perusal of the enquiry report, nothing is discernible as to how the evidence on record was evaluated. It is only in reference to the charge that was leveled against the petitioner, the Inquiry Officer with the observation "since Shri Hira Das was assisting the Incharge of the Shed "B" FCI Cinnamara w.e.f. 19.9.96 it would be well proved that he was aware of the fact that there was a huge shortage of stocks in the godown but he did not bring it to the notice of his superiors for his ulterior motive and personal gain" held the charge to have been proved against the petitioner. 5. Thereafter, the disciplinary authority by its order dated 7.10.2002 (Annexure-F) imposed the penalty of compulsory retirement making a grievance against which the petitioner preferred the departmental appeal, which was disposed of by the impugned order dated 29.1.2005 (Annexure-G). As noted above, by the said order while setting aside the order of compulsory retirement, the petitioner was imposed with the penalty of reversion to the lower post of Watchman. It will be pertinent to mention here that the petitioner was initially appointed as a Grade-IV staff under the respondent Corporation and subsequently he was promoted to the post of AG-III by order dated 17.9.1977. At the time of initiating he departmental proceeding, he was working as Assistant Grade-III(D) in the Cinnamara Food Storage Depot at Jorhat. 6. It will be pertinent to mention here that the petitioner was initially appointed as a Grade-IV staff under the respondent Corporation and subsequently he was promoted to the post of AG-III by order dated 17.9.1977. At the time of initiating he departmental proceeding, he was working as Assistant Grade-III(D) in the Cinnamara Food Storage Depot at Jorhat. 6. It is an admitted position that when the charge was brought against the petitioner, he was only 9 (nine) months old in the Depot. He was a member of the clerical staff in the godown. In this connection, the statements made in paragraphs 15, 16 and 17 of the writ petition are quoted below for ready reference:- 15. That the petitioner states that the Petitioner had been working in the Cinnamara FSD for a short period of approximately 9 months merely as a member of the clerical staff. It is obvious from the nature of duties performed by the Petitioner that shortage of stock as alleged, did not necessarily come to the knowledge of the Petitioner. Further, no evidence was adduced against the petitioner even remotely connecting the Petitioner with the alleged shortage of stock. On the contrary, there is evidence on record establishing the fact that the Petitioner had no complicity in the alleged shortage or that he had knowledge of any shortage in the shed, if any. The Petitioner further states that so far as the Petitioner's allotted duties were concerned, it did not include within its ambit any matter relating to receipt and issue of stock and, for that matter, he could not in any way be linked to any shortage of stock, if occurred at all. 16. That the Petitioner states that the duties and responsibilities to be performed by an AG-II(D) employee are circumscribed by the Job Description of the FCI in force. As per the job description in force at the relevant time, they are only entitled to perform all such clerical duties as are assigned by the Depot-In-charge or the Shed-In-charge on day to day basis. During his tenure in the Cinnamara FSD Shed No. 4 for the brief period of about 9 months the Petitioner was ordered to perform a variety of duties including the duty of making entries in the issue and receipt registers on few stray occasions but not on a regular basis. During his tenure in the Cinnamara FSD Shed No. 4 for the brief period of about 9 months the Petitioner was ordered to perform a variety of duties including the duty of making entries in the issue and receipt registers on few stray occasions but not on a regular basis. The Petitioner further states that making of entries in the said registers does not afford any opportunity to be aware of the actual stock position of the shed. Such position can be gathered only upon physical verification of the stock. The Petitioner did not perform any duty in the matter of preparation of the 'O' Form and preparation of the stock registers which were exclusively done by the Shed-In-Charge himself. 17. That the Petitioner states that Shed-B of the Cinnamara FSD of the FCI is an enormous establishment and when the Petitioner was working in the Shed-B of the Cinnamara FSD of the FCI where the shortage of stock had allegedly taken place, the same was is manned by a large number of employees of various grades, including some in the Grade of AG-III and quite a few AG-III(D) grade employees had performed the duties in the shed in question similar to those performed by the Petitioner. But curiously, such employees have not been picked up for punishment without there being any material to show any additional or overt act by which it was possible for the Petitioner alone to know the exact stock position. 7. According to the petitioner, he being not the godown incharge and being only a member of the clerical staff, merely because there was alleged shortage of materials in the godown, he could not have been taken up for a departmental proceeding. It is the plea of the petitioner that in godown, there was several employees and in case of the kind of approach, the disciplinary authority has adopted, all the employees working in the godown ought to have been taken up for departmental proceeding. It is the further case of the petitioner that there being no definite charge against the petitioner, the authority could not have imposed the penalty merely on the basis of conjectures and surmises. 8. I have heard Ms. A. Ajitsaria along with Ms. A. Hazarika, learned counsel for the petitioner. I have also heard Mr. P.K. Roy, learned Standing Counsel, FCI along with Mr. 8. I have heard Ms. A. Ajitsaria along with Ms. A. Hazarika, learned counsel for the petitioner. I have also heard Mr. P.K. Roy, learned Standing Counsel, FCI along with Mr. S.J. Chakraborty, learned counsel appearing with him. While Ms. A. Ajitsaria, learned counsel for the petitioner submits that the petitioner has been made a victim of the circumstances, Mr. P.K. Roy, learned Standing Counsel, FCI submits that while in the enquiry proceeding, the petitioner has been found to be guilty of the charge that has been leveled against him, the Court exercising writ jurisdiction will not sit on appeal over the findings recorded by the Inquiry Officer, the Disciplinary Authority and the Appellate Authority. Ms. Ajitsaria, learned counsel for the petitioner has placed reliance on the decision of this court dated 22.11.2007 in WP(C) No. 7275/2002 (Muruli Goswami Vs. The FCI and others). The said case was pertaining to the same issue and incident as involved in this proceeding. As in the instant case in the said case also the petitioner involved therein was working as AG-III in the same Godown. When it was found that nothing was directly attributable to the petitioner, this Court was inclined to set aside and quash the penalty of compulsory retirement. 9. On the other hand, Mr. P.K. Roy, learned Standing Counsel, FCI, has placed reliance on the judgment and order dated 27.4.2006 passed by this Court in another writ petition being WP(C) No. 2821/2003 (Shri Padma Kumar Bora Vs. the FCI and others) relating to the same incident. In that case also the petitioner involved was working as AG-III(Depot). Considering the nature of evidence adduced and the attending facts and circumstances, the said writ petition was disposed of remanding the matter back to the disciplinary authority for imposition of lesser penalty pursuant to which, it is submitted that he was imposed with the penalty of reduction to a lower stage in the same grade i.e. AG-III. 10. Mr. P.K. Roy, learned Standing Counsel, FCI in his usual fairness has submitted that in the evidence adduced by the PWs, there is no direct accusation against the petitioner. 10. Mr. P.K. Roy, learned Standing Counsel, FCI in his usual fairness has submitted that in the evidence adduced by the PWs, there is no direct accusation against the petitioner. However, he submits that irrespective of the said deposition of the 5 PWs, when the documentary evidence itself would go to show that there was some amount of involvement of the petitioner in the entire episode, the appellate authority was within its jurisdiction to impose the particular penalty. 11. I have very carefully considered the submissions made by the learned counsel for the parties. I have also considered the entire materials on records. As to what was the charge against the petitioner in respect of the shortage of foodgrains in the godown has bee noted above. In the charge, there is no direct attribution of any misconduct against the petitioner. As noted above, initially the charge was brought against the petitioner identifying him to be the godown incharge. However, later on, the nomenclature was changed to that of Godown Assistant. It was submitted by the learned counsel for the petitioner that like that of the petitioner, there were other several Godown Assistants working in the godown. It is not understood as to in what context, the petitioner was described as a close associate with the said incharge and supervisory staff. It is also not understood as to why those supervisory staff were not taken up for any departmental proceeding. 12. I have very carefully perused the depositions made by the 5 PWs examined on behalf of the Disciplinary Authority. In the entire evidence, there is not even a single whisper against the petitioner rather the said witnesses categorically stated that the petitioner was not responsible for any loss of foodgrains in the godown. For Example, the PW-1 in his deposition categorically stated that the stock holder was the shed-incharge who had also signed the Stock declaration. The specific question to PW-2 that as per the job description of FCI, AG-III(D) was not supposed to maintain Stock Ledgers, the witness categorically stated that he was not to maintain the Stock Ledgers. Witness No. 4 in his deposition stated about allotment of duties to the AG-III officials. While naming the said officials, he did not name the petitioner. The specific question to PW-2 that as per the job description of FCI, AG-III(D) was not supposed to maintain Stock Ledgers, the witness categorically stated that he was not to maintain the Stock Ledgers. Witness No. 4 in his deposition stated about allotment of duties to the AG-III officials. While naming the said officials, he did not name the petitioner. One of the AG-III officials whom he had mentioned in his deposition was Muruli Goswami, who was the writ petitioner in WP(C) No. 7275/2002 and as noted above, penalty of compulsory retirement imposed on him, has been set aside by this Court vide judgment and order dated 22.11.2007. To a specific question put to the PW-4 as to whether the petitioner was allotted with any specific duty, his answer was that no duty was allotted to him as he was a new comer. To another question his answer was that no signature of the petitioner was obtained either in the Stock declaration or in the counting sheet. 13. Brushing aside the aforesaid overwhelming evidence to support the case of the petitioner, the disciplinary authority solely on the basis of the purported loss of foodgrains in the godown, imposed the penalty of compulsory retirement on the petitioner, which however, on appeal was reduced to that of reversion to the lower post of Watchman. 14. The judgment on which Mr. P.K. Roy, learned Standing Counsel, FCI has placed reliance was in the given facts and circumstances of the case. In the said case, the particular witness had not deposed with regard to the precise nature of duties allotted to the petitioner. In the present case, the charge against the petitioner is not that of any misappropriation, theft or pilferage. The charge is one pertaining to failure to report what has been perceived by the employer is the apparent irregularities of the stock. Unless it is proved that the petitioner was responsible for reporting the loss, it cannot be said that there was failure on his part. As noted above, he was only 9 (nine) months old in the godown and no specific duties were allotted to him by the godown incharge. 15. Needless to say that the ratio of a decision will have to be understood in the background of the fact involved in the said case. As noted above, he was only 9 (nine) months old in the godown and no specific duties were allotted to him by the godown incharge. 15. Needless to say that the ratio of a decision will have to be understood in the background of the fact involved in the said case. Unlike the decision in Shri Padma Kumar Bora (Supra), in the instant case, there was no attribution of any misconduct on the part of the petitioner detailing the particulars. He was only picked up with the notion that there was shortage of foodgrains in the godown and thus he was responsible for such loss. It was in such circumstances, the decision in Muruli Goswami (Supra) was delivered exonerating the petitioner involved in the said writ petition from the departmental proceeding and setting aside and quashing the order of penalty. 16. It will be unfair to sustain the penalty imposed against the petitioner by the appellate authority in view of my aforesaid discussions. As noted above, the PW-4 although had named some AG-III officials including Muruli Goswami but the petitioner was never named. As to what has happened to the case of Shri Muruli Goswami has been noted above. In his case, the order of compulsory retirement has been set aside by this Court, on the other hand the petitioner is with the penalty of reversion to lower post. 17. The petitioner has already retired from service on attaining the age of superannuation on 30.4.2011. Thus, there is no question of physical restoration of the position he was holding prior to the impugned orders, more particularly, the appellate order dated 29.1.2005. However, he will be deemed to be in his service as AG-III all throughout till his retirement from service. 18. In view of the above, the impugned order dated 29.1.2005 stands set aside and quashed. Needless to say that consequent upon setting aside and quashing of the impugned order, the petitioner will be entitled to all consequential benefits. Writ petition is allowed. There shall be no order as to costs. Petition allowed.