1. Heard Mr. R.K. Dev Choudhury, the learned Counsel for the petitioner. The respondents are represented by Ms. U. Barua, the Standing Counsel for the Assam State Transport Corporation (‘ASTC’). 2. The petitioner joined on 13.9.2003 as the Chief Engineer (Automobile & Technical) of the ASTC and he superannuated from service on 31.12.2007. He challenges the order dated 8.6.2007 (Annexure-9), whereby the petitioner was censured in pursuant to a disciplinary proceeding. The order of the Appellate Authority passed on 15.12.2007 (Annexure-13) is also challenged by the delinquent. 3. The disciplinary proceeding was started with a show-cause-notice dated 13.5.2006 (Annexure-5) issued under Rule 9 of the Assam Services (Discipline & Appeal) Rules 1964, whereby the petitioner was asked to respond to the charge(s) of negligence in discharge of duty leading to financial loss to the ASTC and the 2nd charge relates to gross mis-conduct and breach of trust. 4. In the charge-memo the delinquent was projected as the overall controlling officer for maintenance of the ASTC vehicles and it was alleged that the bus utilization in Silchar Division for the period 1.1.2004 to 30.6.2005 was hardly 25% of the fleet strength and it was alleged that the petitioner failed to take steps for improvement of the vehicle utilization ratio in the Silchar Division. That apart, poor performance in repair, maintenance and mileage of the buses under Silchar Division was alleged and the charge memo stated that 122 excess tyres were used in this Division. The consequential Charge No.2 was that the delinquent failed to perform his duties satisfactorily and accordingly he was charged with gross mis-conduct and breach of trust. 5. In his reply of 22.2.2006 (Annexure-6) the delinquent stated that he can't be held responsible for unsatisfactory fleet utilization, poor maintenance of buses and excess tyres purchase at Silchar since the Divisional Superintendent and other officials at Silchar Division are primarily responsible for these works. Referring to the Audit Report of the Accounts Officer Mr. Bhagaban Bharali, the delinquent in his reply stated that the Divisional Superintendent, Assistant Engineer, Foreman, Divisional Accountant at Silchar were declared to be responsible for the mismanagement at Silchar Division and that the said Audit Report didn't indicate anything adverse against the Chief Engineer. Referring to the Audit Report of the Accounts Officer Mr. Bhagaban Bharali, the delinquent in his reply stated that the Divisional Superintendent, Assistant Engineer, Foreman, Divisional Accountant at Silchar were declared to be responsible for the mismanagement at Silchar Division and that the said Audit Report didn't indicate anything adverse against the Chief Engineer. On merit also, the petitioner replied that the Charges are not based on facts and that the efforts made by the Chief Engineer for improving the overall performance of the ASTC was highlighted in the reply dated 22.5.2006. 6. Considering the reply to the unsatisfactory, Ms. J. Das Brahma, ACS was asked to enquire into the charges and the Inquiry Officer through her report dated 4.12.2006 (Annexure-7) declared that both charges were established. Accepting the enquiry finding, the penalty of censure was inflicted on 8.6.2007 (Annexure-9) by the Managing Director (M.D) as the disciplinary authority of the ASTC. Moreover since the petitioner was under suspension from 25.1.2006 (Annexure-4) and was reinstated on 8.6.2007, the M.D. directed that apart from subsistence allowance, the delinquent will not receive any other amount, for the suspension period. 7. Aggrieved by the penalty order, the delinquent addressed an Appeal on 16.7.2007 (Annexure-10) to the Chairman of the ASTC and in his appeal, the delinquent stated that the inquiry officer relied upon the Note dated 9.12.2005 (evidence No.1) without indicating this document to be one of the materials to be relied upon in the enquiry and since the charges were found to be established primarily on evidence No.1, the appellate authority was requested to quash the order passed by the disciplinary authority. 8. The Chairman as the appellate authority disposed of the petitioner's appeal granting partial relief to the delinquent by allowing him 50% of his balance dues for the suspension period. 9. The legality of the disciplinary proceeding is assailed by the petitioner by contending that the Note (evidence No.1) given by the Chief Engineer on 9.12.2005 (Annexure-8) could not have been relied upon to reach the adverse conclusion by the enquiry officer since this Note was never included in the list of documents and the delinquent had no opportunity to project that this evidence is inapplicable to the charges. 10. 10. The petitioner's advocate cites M. Narayanan Nambiar vs. State of Kerala reported in AIR 1963 SC 1116 to argue that when the enquiry officer relied on a document without an opportunity to the delinquent to file objection or to protest its applicability, it amounts to breach of natural justice and in that event, the enquiry report is contended to be vitiated in law. 11. Mr. R.K. Dev Choudhury for the petitioner refers to Rule 23 of the Service Rules to project that the appellate authority is required to examine whether there is due compliance of the prescribed procedure and whether there has been failure of justice in a given case. But he submits that a perfunctory appellate order was passed and that the Appeal was never considered on merit by the competent authority. 12. Supporting the disciplinary action, Ms. U. Barua, the Standing Counsel, ASTC however submits that the note dated 9.12.2005 was written by the delinquent himself and accordingly she argues that reliance on the said note (evidence No.1) against the petitioner to prove the charges was very much in order. It is further submitted that as no prejudice was caused by relying on the note dated 9.12.2005 (Annexure-8), the legality of the enquiry findings can't be assailed on this count. 13. Ms. U. Barua further submits that adequacy of evidence can't be a ground for interference in a disciplinary proceeding by a Writ Court and accordingly the maintainability of the wtit petition is being questioned by the respondents. The ASTC's lawyer produces the records to show that the appeal was considered by the Chairman of the ASTC himself and that the M.D. simply conveyed the decision of the appellate authority through his communication dated 15.12.2007 (Annexure-13). 14. In a challenge to a disciplinary proceeding, the Writ Court is to ascertain whether reasonable and adequate opportunity was made available to the delinquent to rebut the charges and the Court is to ensure that there is no failure of justice in a given case. 15. During the enquiry, the evidence of the Accounts Officer of the ASTC, Mr. B.C. Bharali whose Audit Report of 21.11.2005 (Annexure-1) was the starting point of the entire proceeding was noted by the Inquiry Officer. Significantly in cross-examination, Mr. Bharali stated that he had no knowledge on whether the poor performance of the Silchar Division was made known to the Chief Engineer. B.C. Bharali whose Audit Report of 21.11.2005 (Annexure-1) was the starting point of the entire proceeding was noted by the Inquiry Officer. Significantly in cross-examination, Mr. Bharali stated that he had no knowledge on whether the poor performance of the Silchar Division was made known to the Chief Engineer. Another prosecution witness i.e. Amitava Sen who was the Divisional Superintendent, Silchar Division gave various explanation for the poor performance at the Silchar Division by projecting that this division was not supplied with any new buses during the relevant period. The Superintendent also stated that he requested for intervention of the M.D. but had not approached the Chief Engineer for bettering the performance of the Silchar Division. The Controller of Stores Muruli Bora in his cross-examination stated that the local Division doesn't need permission of the Chief Engineer to purchase materials to meet the requirement of the Silchar Division. But notwithstanding the exonerating evidence of these prosecution witnesses, the inquiry officer referred to the official note dated 9.12.2005 (evidence No.1) addressed by the delinquent to the M.D. to draw adverse inference against the Chief Engineer and primarily on this basis of the office Note (evidence No.1), the 1st charge of negligence of duties and causing financial loss to the ASTC was held to be proved. Similarly the finding on the 2nd charge was based also on the same office Note dated 9.12.2005. 16. As the office note of 9.12.2005 (evidence No.1) was addressed by the delinquent in a different context i.e. for providing men and material support to the Chief Engineer for efficient discharge of his functions, the broad areas where the Chief Engineer oversees responsibilities was indicated in the said office Note dated 9.12.2005. But this Note was not specific to the Silchar Division and was certainly not furnished in the context of the enquiry. But nevertheless the enquiry officer took into account this very office note and found the charges to have been proved primarily on this basis of evidence. 17. Since the evidence of the prosecution witnesses was ignored and the finding was given primarily on the office note dated 9.12.2005, the said office Note is the substantive evidence on which the adverse finding was given by the enquiry officer. 17. Since the evidence of the prosecution witnesses was ignored and the finding was given primarily on the office note dated 9.12.2005, the said office Note is the substantive evidence on which the adverse finding was given by the enquiry officer. But unfortunately this office note was never disclosed in the list of evidence and therefore the delinquent had no opportunity to project the inapplicability or otherwise of this note in the disciplinary enquiry. Therefore I feel that fair and reasonable opportunity was denied to the delinquent and since this amounts to breach of the rule of audi alteram partem , it has resulted in failure of justice in the present case. 18. Having reached the above conclusion, I hold that the penalty of censure inflicted by the disciplinary authority on 8.6.2007 (Annexure=9) on the basis of the vitiated inquiry finding is unsustainable and the same is accordingly quashed. In the result, the decision of the appellate authority given on 15.12.2007 is held to be unsustainable. But since partial financial relief was given by the Appellate authority for the suspension period by giving him 50% of the benefits and since no service was received from the delinquent, balance financial benefit need not be given to him in pursuant to this decision. It is ordered accordingly. 19. With the above declaration, the petition stands allowed without any order on cost.