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2013 DIGILAW 726 (GAU)

Vishwanath Pathak v. Food Corporation of India

2013-10-03

BIPLAB KUMAR SHARMA

body2013
JUDGMENT Biplab Kumar Sharma, J. 1. The petitioner is aggrieved by the Annexure-19 order dated 11.08.2008, by which pursuant to a departmental proceeding, he has been imposed with the penalty of reduction of one stage in the time scale of pay for 4(four) years subject to the condition that he will earn increments of pay during the period of such reduction and the reduction will not have the effect of postponing the future increments of his pay. The order further provides a token recovery of Rs. 75,000/- in 15 (fifteen) equal installments. The petitioner was issued with memorandum of charge-sheet dated 04.12.2006, while he was serving as Manager (A/C) under respondent corporation at North Lakhimpur. The charge-sheet was issued under Regulation 58 of the FCI (Discipline and Appeal Staff Regulations), 1971, levelling the following charges:-- Article of Charge No. I: Shri Viswanath Pathak, while working as Manager (A/Cs) at FCI, D.O. North Lakhimpur, did not comply with instruction of Government of India issued vide letter No. 179(1)/90-Py.I dated 28.11.1995 rather he issued certificate in respect of 2 Nos. of HTS bills (Annexure-X) preferred by Arunachal Pradesh Govt. for reimbursement of HTS on food grains at higher and inadmissible rate as the bills are 'correct and tenable'. Further, Shri Viswanath Pathak has scrutinized/processed aforesaid 2 Nos. of HTS bills of State Govt. of Arunachal Pradesh (Annexure-X) and passed the bills and recommended for payment to SRM Guwahati at a higher inadmissible rate whereas the food grains have been off loaded at distribution centres/FPS other than the PDCs or enroute to PDCs without restricting the amount that would have become reimbursable, had the stock been moved to the principle distribution centres as a result an excess payment of Rs. 3,70,610/- (Rupees three lakhs seventy thousand six hundred ten) only were made to A.P. Govt. causing a huge financial loss to the Corporation. Article of Charge No. II: It has been observed that Shri Viswanath Pathak, Manager (A/Cs) in violation of GOI letter No. 194(4)/97-FC-A/Cs dated 25.06.1999 and GOI letter No. 179(1)/98-PY.I dated 28.10.2002 has issued 12 Nos. certificate against HTS bills of Sugar certifying that the claims are correct and tenable as Manager (A/Cs) recommended and forwarded 12 Nos. of bills to R.O. Guwahati dully signed on the pass orders for payments whereas as per instruction of Govt. certificate against HTS bills of Sugar certifying that the claims are correct and tenable as Manager (A/Cs) recommended and forwarded 12 Nos. of bills to R.O. Guwahati dully signed on the pass orders for payments whereas as per instruction of Govt. of India HTS on sugar was not payable as a result R.O. Guwahati paid/released Rs. 19,59,786/- (Rupees nineteen lakhs fifty-nine thousand seven hundred eighty-six) causing a financial loss to the Corporation as per details given in Annexure-Y. Article of Charge No. III: The C & AG conducted special Audit of the HTS claims of State Govt. of Arunachal Pradesh and pointed out excess payment of Rs. 185.76 Crores by R.O. Guwahati on blockage of fund the C & AG had pointed out interest lost at the rate of Rs. 12% per annum for 1(one) year which comes to Rs. 22.29 Crores vide Audit report No. Report/1/392/MAB-4/2005/NZ/3655 dated 17.11.2005 received to Hqrs. Vide letter No. IA/HQ/GAC-1/722 dated 25.11.2005. The involvement of Shri Viswanth Pathak comes to Rs. 22,30,396/- (Rupees twenty three lakhs thirty thousand three hundred ninety-six) and thus interest accrued for Rs. 2,79,648/- (Rupees two lakhs seventy-nine thousand six hundred forty-eight) only. Had Shri Pathak followed the instruction issued by Govt. of India, FCI from time to time, the financial loss by way of interest could have been avoided. 2. Along with the memorandum of charge-sheet, the statement of imputation of misconduct in support of the article of charge was also enclosed. The petitioner in his reply, submitted on 21.06.2007, denied the charges. It will be pertinent to mention here that the petitioner is a direct recruit to the post and he was hardly 4(four) months old in service in reference to the charges levelled against him. He had joined the services under the respondent corporation on 04.10.2002 and the alleged misconduct attributed to him was pertained to the period from 18.10.2002 to 15.01.2003. 3. As submitted by the learned counsel for the petitioner, the bills in question were processed on 13.01.2003. The Disciplinary Authority being not satisfied with the reply furnished by the petitioner, ordered for a regular enquiry by appointing an enquiry officer, who after conducting the enquiry, submitted the enquiry report on 06.09.2007 (Annexure-15). On the basis of the said enquiry report, the Disciplinary Authority having imposed the penalty vide the impugned order dated 11.08.2008, the petitioner has filed the instant writ petition. On the basis of the said enquiry report, the Disciplinary Authority having imposed the penalty vide the impugned order dated 11.08.2008, the petitioner has filed the instant writ petition. Be stated here that before imposing the order of penalty, the petitioner was provided with the copy of the enquiry report, against which he had submitted his representation so as to persuade the Disciplinary Authority to take a different view of the matter. 4. In the counter-affidavit filed by the respondents, justifying the action taken against the petitioner, it has been stated that the enquiry having been conducted following the due procedure and in a fair and just manner, the impugned order is required to be sustained. In the affidavit in opposition, the respondents have enclosed certain documents including the Annexure-G and H letter and office note dated 23.10.2002 and 13.01.2003, respectively. 5. According to the petitioner, immediately upon joining in his post at the district office in North Lakhimpur, he found certain procedural anomalies in the statement and scrutiny of bills and therefore, submitted a note to the District Manager along with a draft and got the Annexure-G letter dated 23.10.2002 issued to the Director of Food and Civil Supplies, Government of Arunachal Pradesh from the District Manager to attach the necessary payment vouchers along with the bills to the district office for scrutiny as required under the established procedure. 6. In the counter-affidavit, the respondent corporation has enclosed the Annexure-H extract of the notes furnished for payment of the particular bills. The petitioner by his note in question recommended for forwarding to the Regional Office for super checking for pass and payment as per Zonal Office Circular for passing the HTS bills as well as GOI Circular. The said note of the petitioner was preceded by successive notes of his subordinates and colleagues recommending for payments upon verification and required checking. 7. In the affidavit in reply filed by the petitioner, it has been stated in reference to paragraph 3 of the counter-affidavit that the vital and relevant document was not listed as a document in the enquiry proceeding and that he was not even made aware of the said document. The document that has been referred to by the petitioner is the Annexure-A report dated 25.08.2006. The document that has been referred to by the petitioner is the Annexure-A report dated 25.08.2006. According to the petitioner, the said report played a role and influenced the Disciplinary Authority in forming its opinion towards inflicting the penalty on the petitioner and thus the fairness demanded that the copy of the same was provided to the petitioner. It has further been contended that one of the signatories of the said report, namely, Shri Sedu Ram, Chief General Manager (Finance and Accounts) himself was party to the excess payment of money as narrated in the memorandum of charge-sheet dated 04.12.2006. According to the petitioner, the said official had pressurized the officials in the Regional Office of the FCI at Guwahati to make payments of the bills in question to the Government of Arunachal Pradesh. It has further been alleged in the reply affidavit that he had gone to the extent of increasing the cash credit limit of the Regional Office by 5 Crores per day from Rs. 1.75 Crores to Rs. 6.74 Crores per day specifically for payment of an amount of Rs. 126.30 Crores to the Government of Arunachal Pradesh and this Rs. 12630 Crores was a part of the excess payment as stated in the C & AG report sent vide letter dated 17.11.2005. 8. As stated in the reply affidavit, the petitioner had never recommended the bills for payment, rather he had objected to the same. It has further been stated that the bills dated 31.12.2002 and 02.01.2003 mentioned in Annexure-X and Y to the memorandum of charge-sheet dated 04.12.2002, was later on submitted by the Government of Arunachal Pradesh directly to the Regional Office, which was processed, passed and paid. In the reply affidavit, the petitioner has also raised certain technical pleas relating to the procedure adopted in conducting the enquiry. 9. I have heard Mr. P.D. Nair, learned counsel for the petitioner and also heard Mr. R.K. Bora, learned Standing Counsel, FCI. Mr. Nair has submitted that the petitioner is a victim of the circumstances. He submits that the petitioner being a new appointee was not aware of the technicalities involved in finance, but even then he did his best to point out the irregularities. P.D. Nair, learned counsel for the petitioner and also heard Mr. R.K. Bora, learned Standing Counsel, FCI. Mr. Nair has submitted that the petitioner is a victim of the circumstances. He submits that the petitioner being a new appointee was not aware of the technicalities involved in finance, but even then he did his best to point out the irregularities. Referring to the enquiry report and the documents annexed to the affidavit in reply, he also submits that it is a case of no evidence and consequently the charges leveled against the petitioner cannot be said to have been established in the enquiry. 10. Mr. R.K. Bora, learned Standing Counsel, FCI, on the other hand submits that the enquiry officer having found the petitioner guilty of the charges, it is not for the writ Court to sit on appeal over the findings of the enquiry officer. Referring to the documents relating to the enquiry, he also submits that the enquiry was conducted in a proper and fair manner giving a reasonable opportunity of being heard to the petitioner and consequently no interference is called for with the enquiry proceeding, exercising writ jurisdiction. 11. I have given my anxious consideration to the submissions made by the learned counsel for the parties and have also considered the entire materials on record. As to what are the charges, which were levelled against the petitioner has been noted above. Pursuant to the enquiry conducted by the enquiry officer, he had submitted a report holding the petitioner guilty of the charges. 12. Annexure-9 to the writ petition is the note of the petitioner dated 13.01.2003, which is reproduced below:-- Discussed with District Manager in length about HTC-RTC Bills and his earlier note on the file and record. The Bills produced by A.R Govt. D.C., Dhaporijo and Passighat in 22 No. and 4 No. for period April 1 to Dec. 2 and April 2 to Nov. 2 dt. 02.1.2003 are still without payment voucher cheque No. and date etc. for payment made to transport contractor for carriage of PDS item FCI stock to AP Govt. For Bills of D.C, Dhaporijo required major correction which cannot be admitted they should look afresh with relevant payment voucher and re-submit. It is also to be ensured that photo copy of payment voucher should be enclosed, mere mentioning voucher No. is nothing. for payment made to transport contractor for carriage of PDS item FCI stock to AP Govt. For Bills of D.C, Dhaporijo required major correction which cannot be admitted they should look afresh with relevant payment voucher and re-submit. It is also to be ensured that photo copy of payment voucher should be enclosed, mere mentioning voucher No. is nothing. Hence return all those Bills which could not be admitted and forwarded to R.O. without payment voucher. Based on that further examination and ascertainment of expenditure involved. In view of District Manager note on 27/01/02 in cycle of contract period one should call and verify the Bilk with advertisement file fixing contract rate of all D.C. 13. By the said note, the petitioner referring to the discussion with the District Manager about HTC-RTC Bills opined that the bills required major corrections and suggested return of those bills. 14. The enquiry was conducted against the petitioner along with five others. So far as the petitioner is concerned, apart from the reference to the charges leveled against him, the reference to him in the proceeding are as follows:-- (II) The charged officer Shri Viswanath Pathak in his statement under Regulation 58(16) has pleaded that the two HTS bills of food grains enumerated in Annexure-X attached to his charge-sheet along with other bills were returned to the AP Govt. for necessary action for attaching the payment voucher No. dt. etc. and to resubmit the same for further course of action by the District Manager North Lakhimpur under letter No. 3(25)/A/cs/AP, Govt./HTS/-RTC/99-2002 dt. 13.01.2003. He has further pleaded that the listed witness Shri R.C. Sood AGM (F & A) (Retd) in cross-examination has stated that the bills returned to the AP, Govt. should have been submitted to the D.O NLP removing the objections. But the AP, Govt. directly submitted those two bills along with the letter of objections of the D.O. North Lakhimpur and the R.O. Guwahati without taking note of the objections of the D.O North Lakhimpur, entertained the bills directly from the AP, Govt. passed those bills vide pass order No. S&S 4(148)/2003 & paid at Guwahati itself vide ION No. S&S 4(148)/2003 dt. 7th March, 2003. Shri Pathak has further pleaded that Shri R.C. Sood AGM (F&A) (retd) in cross-examination has categorically stated that there is no violation GOI circular No. 179(1). passed those bills vide pass order No. S&S 4(148)/2003 & paid at Guwahati itself vide ION No. S&S 4(148)/2003 dt. 7th March, 2003. Shri Pathak has further pleaded that Shri R.C. Sood AGM (F&A) (retd) in cross-examination has categorically stated that there is no violation GOI circular No. 179(1). As regards HTS bills of sugar enumerated in Annexure-X attached to his charge-sheet Shri Pathak has pleaded that the GOI letter No. 179(1)/98-PY.1 dt. 28/10/2002 reached to the Commercial Division of the District Office North Lakhimpur on 16/12/2002 but the same was not communicated to the accounts branch of the said District and neither it was linked with the concerned file till 13/01/2003. The charged officer Shri Vishwanath Pathak in his answer to question as to whether while he was working as Assistant Manager (A/cs) at FCI, District Office North Lakhimpur during the period 18/10/2002 to 15/01/2003, (a) he issued certificates in respect of two numbers of HTS bills of food grains of A.P. Govt enumerated in his Annexure X attached to his charge-sheet as "correct & tenable", (b) he scrutinized/processed/passed the aforesaid 2 HTS bills and recommended for payment to the SRM Guwahati, Shri Pathak replied that during scrutiny he found several mistakes and not supported by pre requisite documents and as such the 2 bills were returned to the AP, Govt. Shri Pathak also in his answer to question as to whether (a) he issued certificates against 6 bills out of 12 HTS bills of sugar of AP, Govt enumerated in Annexure-Y attached to the charge-sheet against him, (b) whether he scrutinized and passed order for payment on the aforesaid 6 HTS bills of sugar, Replied that during scrutiny he found several mistakes and not supported by requisite documents and as such the bills were returned to AP, Govt. As to the evidence that recovery in respect of the aforesaid 2 HTS bills of food grains has been pointed out by audit as non-application of prevalent rate when the lifting/dispatches took place, Shri Pathak replied that both the bills were passed, paid & entertained at the RO level directly from the AP, Govt. against established procedure. After completion of the production of evidence, the Presenting Officer and the charged officers Md. Hanifur Rahman and Shri Viswanath Pathak present in person during inquiry on 3rd Sept. 2007 were heard as per provisions of Regulation 58(19) and ASSESMENT OF EVIDENCE. 15. against established procedure. After completion of the production of evidence, the Presenting Officer and the charged officers Md. Hanifur Rahman and Shri Viswanath Pathak present in person during inquiry on 3rd Sept. 2007 were heard as per provisions of Regulation 58(19) and ASSESMENT OF EVIDENCE. 15. The head Assessment of Evidence refers to the case of the petitioner, as follows:-- The aforesaid two HTS bills were passed for payment of Shri Viswanath Pathak then AM(A/cs) North Lakhimpur and the related certificates were also signed by him (Ref. The two HTS bills in question authenticated by witness Md. Hanifur Rahman during inquiry. Although Shri Pathak has claimed these two bills were returned to the AP, Govt. as during the scrutiny he found several mistakes and not supported by requisite documents, the two bills in question examine in original during inquiry disclose passed order for payment under the signature of Shri Pathak, which should have been canceled in case those two bills were returned to the AP, Govt. for further examination. (vi) Certificates in respect of 6 out of 12 HTS bills of sugar of AP, Govt. in Annexure-Y as "correct & tenable" were issued under the signature of Shri Viswanath Pathak then AM (A/Cs) North Lakhimpur. The aforesaid 6 bills were also passed under his signatures (Ref. 6 HTS bills authenticated by witness Md. H. Rahman) Certificates from commercial section in respect of HTS bills of food grains in question as per in practice were issued covering the following aspects. (i) that the bill had been checked with reference to executed release order directly received from the Depot making the delivery and that the quantity for which the claim has been made was correct & tallied. (ii) that necessary verification of receipt of stocks at the destination depot had been made and the claim found "correct & tenable". (iii) that necessary notings/entries had been kept against duplicate claim/double payment. The certificate did not directly indicate any recommendation for payment claimed in the bill/bills so certified from the commercial section. Moreover, HTS bills of food grains in question were not totally in admissible. These HTS bills were admissible subject to the conditions laid down in GOI circular No. 179(1)/90-PY, 1 dt. 28/11/1995 and other related/relevant conditions required to be fulfilled which were required to be examined and decided exclusively in accounts section of the concerned District. Moreover, HTS bills of food grains in question were not totally in admissible. These HTS bills were admissible subject to the conditions laid down in GOI circular No. 179(1)/90-PY, 1 dt. 28/11/1995 and other related/relevant conditions required to be fulfilled which were required to be examined and decided exclusively in accounts section of the concerned District. Moreover the quantity/quantities of food grains for which HTS were claimed in the bills in question are undisputed. But HTS on sugar5 being not admissible at any point of time as per the GOI circular authenticated during inquiry, certificates as "correct & tenable" in respect or HTS bills of sugar from the commercial section should not have been issued at all. In fact HTS bills on sugar should not have been entertained at all in commercial section of the District concerned. 16. In the findings, following has been recorded against the petitioner:-- (5)(a) The article of charge No. 1 framed against Shri Viswanath Pathak M(A/cs) has been sustained on certificates covering 2 HTS bills of food grains in Annexure-X and also for passing & recommending the said 2 HTS bills of food grains. (b) The article of charge No. II framed against Shri Viswanath Pathak M(A/cs) has been sustained on certificates covering 6 out of 12 HTS bills of sugar in Annexure-Y and also for passing & recommending the said 6 HTS bills of sugar. 17. During the enquiry, the co-delinquents by their Annexure-13 representation dated 20.08.2007 requested the Disciplinary Authority to change the enquiry officer in view of the alleged partitas approached on his part. The said representation also referred to the particular incident involving the petitioner. For a ready reference, paragraph 5 of the said representation, which refers to the said incident, is quoted below:-- That one of the charged official, namely, Shri Vishwanath Pathak filed a formal application requesting production of the documents listed therein without which no effective defence was possible. To our utter shock and dismay, the Enquiry Officer started shouting at Shri Pathak at the top of his voice with disparaging language and the application was crumbled and thrown at the face of Shri Pathak by the Enquiry Officer. We came back dishonored and dejected. 18. During the course of hearing, Mr. To our utter shock and dismay, the Enquiry Officer started shouting at Shri Pathak at the top of his voice with disparaging language and the application was crumbled and thrown at the face of Shri Pathak by the Enquiry Officer. We came back dishonored and dejected. 18. During the course of hearing, Mr. Nair, learned counsel for the petitioner submitted that since an allegation was made against the enquiry officer, it was incumbent on the part of the Disciplinary Authority to deal with the aforesaid Armexure-13 representation dated 20.08.2007. By the said representation, the co-delinquents of the petitioner prayed for change of the enquiry officer due to the circumstances referred to in the said representation which also included the particular incident against the petitioner. However, there is nothing to show that the Disciplinary Authority entertained the said representation and passed any order either retaining the enquiry officer or changing the enquiry officer. It is on this count, Mr. Nair, learned counsel for the petitioner has submitted that the enquiry proceeding was vitiated as the said plea of the co-delinquents in the common enquiry was not entertained. 19. During the enquiry, it was the specific case of the petitioner that out of the 14 bills dated 31.12.2002 and 02.01.2003 placed in one single file on a single date i.e. 13.01.2003, the petitioner had actually processed 8(eight) bills but had never recommended the bills, rather he had raised objections to those bills and had returned them to the Government of Arunachal Pradesh for resubmission along with the relevant payment vouchers. However, the respondents in their counter-affidavit have enclosed the above referred Annexure-H note furnished by the petitioner, by which based on the note furnished by his subordinates and colleagues, he had recommended to forward the bills to Regional Office, Guwahati for super checking, for passing and payment as per circular for passing the HTS bills as well as GOI circular. 20. The aforesaid note was followed by the above referred Annexure-9 note dated 13.01.2003 by which the petitioner opined that the bills required major corrections and cannot be admitted. By the said note, he also recommended for return of the bills forwarded to Regional Office without payment vouchers. 21. 20. The aforesaid note was followed by the above referred Annexure-9 note dated 13.01.2003 by which the petitioner opined that the bills required major corrections and cannot be admitted. By the said note, he also recommended for return of the bills forwarded to Regional Office without payment vouchers. 21. It was pursuant to the said note, the District Manager by his letter Annexure-10 dated 13.01.2003 forwarded the HTS bills for the period from April 2002 to December, 2002 for taking necessary action for attaching payment vouchers number and date etc. and resubmit the bills for further course of action in its end. Referring to this document, it is the case of the petitioner that in view of such overwhelming evidence, it could not have been said that the petitioner was instrumental in passing the bills for payment. Rather, he by his aforesaid note pointed out the discrepancies in the bills. 22. In the memorandum of charge-sheet, it has been alleged that the petitioner did not comply with the instruction of the Government of India issued vide letter dated 28.11.1995. However, in the enquiry proceeding the Management witness one Mr. R.C. Sood categorically stated that there was no violation of GOI instructions contained in circular letter dated 28.11.1995 in respect of the two bills. As regards the charge No. 2, by Annexure-R5 letter dated 15.11.1989 addressed to the Manager (Sugar) FCI, New Delhi, by the Government of India in the Ministry of Food and Civil Supplies, it was conveyed that 'as and when FCI delivers levy sugar to any FCI operated State from any Depot other than the designated point for that State, transportation cost on the basis of actual from that supply point up to the designated point or any other delivery point within the State, whichever is less, would be reimbursed by FCI to the State Government concerned'. 23. Referring to the above document, it is the plea of the petitioner that the article of charge No. 2 is not sustainable. In this connection, the petitioner has also referred to Annexure-R6 letter dated 18.01.1995 by which it was conveyed that the margins are payable to the sub-wholesalers and retailers of levy sugar in Arunachal Pradesh with the revised pay effective from 01.04.1994 plus transportation charges, respectively. In this connection, the petitioner has also referred to Annexure-R6 letter dated 18.01.1995 by which it was conveyed that the margins are payable to the sub-wholesalers and retailers of levy sugar in Arunachal Pradesh with the revised pay effective from 01.04.1994 plus transportation charges, respectively. By Annexure-R7 office note dated 22.02.2008, it was also clarified that transportation charges were payable on sugar and hence no further reminder was required. By the said note, it was also conveyed that such cases might by decided at the respective end. It was also opined that concerned officials/staffs cannot be made responsible. 24. The above note has been shown by the learned counsel for the petitioner so as to urge that the petitioner could not have been held responsible in respect of article of charge No. 2. If the article of charge Nos. 1 and 2 are held to be not established in the enquiry as a natural consequence, the article of Charge No. 3 also falls through. In paragraph 19 of the writ petition, the petitioner has stated thus:-- That the petitioner states that he had further pointed out in his defence statement dated 21/06/2006 that due to his proactive role in audit, the respondent corporation could avoid and recover amounts above Rs. 19 Crore from the Government of Arunachal Pradesh and the respondent corporation could also reduce transportation expenses by around Rs. 25 Crore annually. A study of the petitioner in the subject also paved the way for avoidance of payment of several crores of Rupees on account of Head Load which was being then paid even for places which were connected by motorable roads. 25. To substantiate the aforesaid claim, the petitioner in his affidavit in reply has enclosed the particular recommendation as Annexure-R10. By the said recommendation referring to the commendable services rendered by the officials of Regional Office/Zonal Office (NE) Accounts Division, the petitioner along with others had been recommended for two advance increments. The recommendation is dated 08.10.2008. The petitioner has also referred to a similar incident in which the superior officer had been exonerated of similar charge (Annexure-R11). In the enquiry processing pertaining to the said officer in similar circumstances, it was opined that there was confusion prevailing at all the levels in respect of various matters issued by the Government of India due to their ambiguity and non-specific stipulations. 26. In the enquiry processing pertaining to the said officer in similar circumstances, it was opined that there was confusion prevailing at all the levels in respect of various matters issued by the Government of India due to their ambiguity and non-specific stipulations. 26. Above apart, the petitioner in his writ petition, has specifically pleaded in paragraph 22 that in the departmental proceeding, one of the witnesses, namely, Shri R.K. Verma was examined in a closed room and the petitioner was not allowed to be present therein nor he was allowed to cross-examine the said witness. While replying the said plea of the petitioner, the respondents have stated in their counter-affidavit that the said witness was present along with four other witnesses on 21.08.2007. It has further been stated in the affidavit that the petitioner had attended the enquiry for sometime, but left the venue by submitting an application dated 21.08.2007 stating that he was not informed about the date giving sufficient time to enable him to engage a defence assistant. It has further been stated that the question of engaging defence assistant and failure to attend the departmental enquiry quantify negligence on the part of the petitioner. It is not understood as to how the petitioner could be attributed with negligence. If the petitioner had submitted an application pointing out insufficient time, it was the duty of the enquiry officer to provide him another opportunity, instead of going ahead with the examination of the Management witnesses disallowing the petitioner to cross-examine him. 27. Apart from the above, on perusal of the enquiry report, it is seen that the report is based on conjectures and surmises. Although the enquiry officer has discussed the evidence on record and the plea of the defence, but there is no conclusion towards holding that the charges against the petitioner have been established in the enquiry. Needless to say that in a departmental enquiry charges are required to be established in reference to the evidence available on record. However, as noticed from the enquiry report, relevant portion of which have been quoted above, there is no categorical findings in respect of establishment of the charges against the petitioner in reference to any particular evidence. Even if, there is any, the same is without any reference to defence plea. 28. However, as noticed from the enquiry report, relevant portion of which have been quoted above, there is no categorical findings in respect of establishment of the charges against the petitioner in reference to any particular evidence. Even if, there is any, the same is without any reference to defence plea. 28. While admitting the writ petition, by order dated 09.06.2009, the impugned order of penalty dated 11.08.2008 was stayed by this Court. While doing so, the plea of the petitioner that initially a decision was taken to impose the punishment of censure, but later on with a change of view, the penalty indicated in the impugned order was inflicted to the petitioner was also noted. While it is true that this Court is not concerned with the internal notes in the file and the disciplinary authority is entitled to change its view, but at the same time in view of the above findings possibly the disciplinary authority was also bf the opinion that the petitioner was not guilty of the charges. However, later on as pointed out by the petitioner, as per the advice of the superior authority, there was change of view and eventually the impugned order of penalty was imposed. For all the aforesaid reasons, I am inclined to accept the writ petition and accordingly the same is allowed by setting aside and quashing the impugned order dated 11.08.2008 (Annexure-19). There shall be no order as costs.