JUDGMENT : K.S. Jhaveri, J. The present petition is filed challenging the propriety, legality and validity of the order dated 21.12.2011 passed by the Central Administrative Tribunal, Ahmedabad Bench in Original Application No. 448 of 2009 whereby the Tribunal dismissing the OA held that there is no illegality in the impugned order of penalty dated 22.09.2009. 2. The petitioner came to be appointed as an Assistant Executive Engineer in the DoT in the year 1979 and thereafter was permanently absorbed in BSNL by a Presidential Order dated 07.12.2010. In the month of December 2004, when the petitioner was serving as adhoc Superintending Engineer (Civil) in Rajasthan Telecom Circle at Udaipur, he came to be issued with the impugned major penalty charge sheet being memorandum dated 03.12.2004 by the disciplinary authority inter alia alleging that during the period between June 1998 and 2000 while the petitioner was serving as Superintending Engineer (Civil), BSNL, Udaipur, he had failed to maintain absolute integrity and devotion to duty and committed gross misconduct as set out in the two Articles of Charges contained in the said charge sheet dated 03.12.2004. 80 documents and 20 witnesses were listed to prove the said charge. The inquiry officer submitted his report dated 23.01.2008 which was made available to the petitioner vide memorandum dated 22.05.2008 enabling him to make representation if any. The petitioner submitted representation dated 18.6.2008 and on consideration of the same besides UPSC advise, vide order dated 22.09.2009, minor penalty of withholding one increment of pay for a period of one year without cumulative effect was imposed. The said penalty order was challenged by way of the proceedings before the Central Administrative Tribunal, Ahmedabad Bench (hereinafter referred to as 'the Tribunal'). The Tribunal after hearing the parties disposed of the OA by confirming the penalty order. Being aggrieved by the said order, the petitioner has approached this Court by way of present petition. 3. Mr. M.S. Rao, learned advocate appearing for the petitioner submitted that the Tribunal failed to appreciate and address the issue raised by the petitioner that the charge levelled against the petitioner does not disclose or constitute 'misconduct' within the meaning of the said expression as defined in the CCS (Conduct) Rules, 1965. 3. Mr. M.S. Rao, learned advocate appearing for the petitioner submitted that the Tribunal failed to appreciate and address the issue raised by the petitioner that the charge levelled against the petitioner does not disclose or constitute 'misconduct' within the meaning of the said expression as defined in the CCS (Conduct) Rules, 1965. He submitted that the Tribunal has failed to appreciate that the request of the petitioner made on 10.08.2007 for examining one Shri Vipin Sharma, GM (PIDB), DSS as defence witness was rejected on 14.09.2007 stating that duties and responsibilities of the said post have already been codified. 3.1 Mr. Rao submitted that article of Charge No. 1 was divided into three parts and that only one element of the charge had been proved and that too was partly established. He has drawn the attention of this Court to the observations made by the Inquiry Officer in para 5.2.3 of the inquiry report and submitted that the petitioner had joined the relevant department in June 1998 and therefore delay, if any, occurred in execution of project till then, cannot be fastened on him. He submitted that as per report of inquiry officer, relevant portion of which is reproduced hereunder, the petitioner had taken a balanced view and decided to grant extension of time and that as per hindrance register, there was abnormal delay in work of 446 days, out of which it was justified to 378 days. Thus, it was emphasised that the petitioner was not responsible for delay in execution of works. "5.2.3 I.Os conclusion: ... As seen from the exhibit S-65 (Page - 2 to 11) the hindrances recorded as well as claimed by the agency has been deliberated in detail by the office of SE (Civil) and on the basis of their recommendation SE has observed that the work is delayed mainly for want of decision of revised foundation, non availability of cement, execution of related items through other agreements and also due to additional, altered and substituted work. In view of above observations, as recommended by EE, Kota and observations/recommendations of ASW in office of SE (Civil) on note sheet (refer exhibit S- 65, Page 10), SE has taken a balanced view and decided to grant EOT without taking any action under clause - 2 of the agreement by way of a speaking order in the file, though there was some delay in completion of work by the contractor, except that payment under clause 10CC of the agreement be restricted to indices of December, 1999 or indices after December, 1999 whichever is less for the value of work done after December 1999...." 3.2 Mr. Rao further submitted that there were similarly situated persons who had also delayed in completion of the work but they were not proceeded departmentally and as such, the respondents have discriminated him. He submitted that as per the comparative statement produced on record, the total delay in completion of work was for 781 days, while similarly situated persons, who have delayed the work by 1451 days, were not proceeded departmentally. 3.3 Mr. Rao has placed reliance on a decision of the Apex Court in the case of Vishwanath Sood v. Union of India & Anr. reported in AIR 1989 SC 952 and contended that Superintending Engineer exercises power of quasi judicial authority while determining penalty upon contractor. Reliance has also been placed upon a decision of the Apex Court in the case of Union of India & Others v. B.V. Gopinath & Others reported in 2014(1) AISLJ 1. 4. Ms. P.J. Davawala and Mr. Niral Mehta, learned advocates appearing for the respondents have supported the impugned order passed by the Tribunal and submitted that the petition deserves to be rejected as minor punishment was imposed on the petitioner i.e. stoppage of one increment for one year of pay without future effect. It is submitted that the said punishment has already been given effect at the relevant point of time in June 2012 and therefore the petition may not be entertained. 4.1 It is further submitted by learned advocates for the respondents that due to the unjustified extension of time granted by the petitioner, the contractor not only claimed escalation amounting to Rs.10,28,646/- but also avoided penalty of Rs.9,88,548/- thereby causing total loss to Government to the tune of Rs.20,17,194/- and undue benefit to the Contractor. 4.1 It is further submitted by learned advocates for the respondents that due to the unjustified extension of time granted by the petitioner, the contractor not only claimed escalation amounting to Rs.10,28,646/- but also avoided penalty of Rs.9,88,548/- thereby causing total loss to Government to the tune of Rs.20,17,194/- and undue benefit to the Contractor. It is submitted that this could have been avoided had the petitioner carried out the inspection of all important works periodically as prescribed in the rules. 5. Having heard learned advocates for both the sides and having gone through the materials on record, we are of the view that the Tribunal is justified in not interfering with the penalty order. It is contended by the petitioner that the Superintending Engineer exercises power of quasi judicial authority while determining penalty upon contractor. In this connection, learned advocate for the petitioner has relied upon a decision of the Apex Court in the case of Vishwanath Sood (supra) wherein paras 9 & 10 read as under: "9. The Division Bench has construed the expression in clause 2 in parenthesis that "the Superintending Engineer's decision shall be final" as referring only to a finality qua the department; in other words, that it only constitutes a declaration that no officer in the department can determine the quantification and that the quantum of compensation levied by the Superintending Engineer shall not be 299 changed without the approval of the Government. After refer-ring to certain judicial decisions regarding the meaning of the word "final" in various statutes, the Division Bench concluded that the finality cannot be construed as excluding the jurisdiction of the arbitrator under clause 25. We are unable to accept this view. Clause 25 which is the arbitration clause starts with an opening phrase excluding certain matters and disputes from arbitration and these are matters or disputes in respect of which provision has been made elsewhere or otherwise in the contract. These words in our opinion can have reference only to provisions such as the one in parenthesis in clause 2 by which certain types of determinations are left to the administrative authorities concerned. If that be not so, the words "except where other-wise provided in the contract" would become meaningless. These words in our opinion can have reference only to provisions such as the one in parenthesis in clause 2 by which certain types of determinations are left to the administrative authorities concerned. If that be not so, the words "except where other-wise provided in the contract" would become meaningless. We are therefore inclined to hold that the opening part of clause 25 clearly excludes matters like those mentioned in clause 2 in respect of which any dispute is left to be decided by a higher official of the Department. Our conclusion, therefore, is that the question of awarding compensation under clause 2 is outside the purview of the arbitrator and that the compensation, determined under clause 2 either by the Engineer-in-charge or on further reference by the Superintending Engineer will not be capable of being called in question before the arbitrator. 10. We may confess that we had some hesitation in coming to this conclusion. As pointed out by the Division Bench, the question of any negligence or default on the part of the contractor has many facets and to say that such an important aspect of the contract cannot be settled by arbitration but should be left to one of the contracting parties might appear to have far reaching effects. In fact, although the contractor in this case might object to the process of arbitration because it has gone against him, contractors generally might very well prefer to have the question of such compensation decided by the arbitrator rather than by the Superintending Engineer. But we should like to make it clear that our decision regarding non arbitrability is only on the question of any compensation which the Government might claim in terms of clause 2 of the contract. We have already pointed out that this is a penalty clause introduced under the contract to ensure that the time schedule is strictly adhered to. It is something which the Engineer-incharge enforces from time to time when he finds that the contractor is being recalcitrant, in order to ensure speedy and proper observance of the terms of the contract. This is not an undefined power. It is something which the Engineer-incharge enforces from time to time when he finds that the contractor is being recalcitrant, in order to ensure speedy and proper observance of the terms of the contract. This is not an undefined power. The amount of compensation is strictly limited to a maximum of 10% and with a wide margin of discretion to the Superintending Engineer, who might not only reduce the percentage but who, we think, can even reduce it 300 to nil, if the circumstances so warrant. It is this power that is kept outside the scope of arbitration. We would like to clarify that this decision of ours will not have any application to the claims, if any, for loss or damage which it may be open to the Government to lay against the contractor, not in terms of clause 2 but under the general law or under the Contract Act. As we have pointed out at the very outset so far as this case is concerned the claim of the Government has obviously proceeded in terms of clause 2 and that is the way in which both the learned single Judge as well as the Division Bench have also approached the question. Reading clauses 2 and 25 together we think that the conclusion is irresistible that the amount of compensation chargeable under clause 2 is a matter which has to be adjudicated in accordance with that clause and which cannot be referred to arbitration under clause 25." 5.1 We are of the opinion that in the present case, the decision cited by learned advocate for the petitioner shall not be applicable inasmuch as the petitioner has not issued any notice and it is purely an administrative action and/or decision taken by the petitioner. 5.2 Learned advocate for the petitioner has also relied upon another decision of the Apex Court in the case of B.V. Gopinath and Others (supra) wherein emphasis has been laid upon para 40 and the same is reproduced hereunder: "40. Disciplinary proceedings against the respondent herein were initiated in terms of Rule 14 of the aforesaid Rules. Rule 14(3) clearly lays down that where it is proposed to hold an inquiry against a Government servant under Rule 14 or Rule 15, the disciplinary authority shall draw up or cause to be drawn up the charge sheet. Disciplinary proceedings against the respondent herein were initiated in terms of Rule 14 of the aforesaid Rules. Rule 14(3) clearly lays down that where it is proposed to hold an inquiry against a Government servant under Rule 14 or Rule 15, the disciplinary authority shall draw up or cause to be drawn up the charge sheet. Rule 14(4) again mandates that the disciplinary authority shall deliver or cause to be delivered to the Government servant, a copy of the articles of charge, the statement of the imputations of misconduct or misbehaviour and the supporting documents including a list of witnesses by which each article of charge is proposed to be proved. We are unable to interpret this provision as suggested by the Additional Solicitor General, that once the disciplinary authority approves the initiation of the disciplinary proceedings, the charge sheet can be drawn up by an authority other than the disciplinary authority. This would destroy the underlying protection guaranteed under Article 311(1) of the Constitution of India. Such procedure would also do violence to the protective provisions contained under Article 311(2) which ensures that no public servant is dismissed, removed or suspended without following a fair procedure in which he/she has been given a reasonable opportunity to meet the allegations contained in the charge sheet. Such a charge sheet can only be issued upon approval by the appointing authority i.e. Finance Minister.” 5.3 In the present case, it cannot be said that a fair procedure was not followed and that the petitioner was not given a reasonable opportunity to prove his innocence. The petitioner had sought for additional documents. The said request was not acceded to by the disciplinary authority and genuine reason was given for the same. The Tribunal has observed regarding the same in para 15 of the impugned order which is just and proper. The Tribunal has proceeded on the footing that legal issue which requires consideration is whether disciplinary proceedings suffer from irregularities which go to the root of the matter warranting judicial interference. 6. The Tribunal has observed regarding the same in para 15 of the impugned order which is just and proper. The Tribunal has proceeded on the footing that legal issue which requires consideration is whether disciplinary proceedings suffer from irregularities which go to the root of the matter warranting judicial interference. 6. In the present case, allegations levelled were : (i) he did not exercise proper supervision (ii) he caused the contractor undue benefits which could have been avoided, if he had carried out inspection of all important works periodically as prescribed under rules and (iii) he failed to make it his special duty during his tours to ensure the measurement books are carefully kept and measurements properly recorded. It is second ingredient of charge, which had been partly established. 6.1 In fact the findings recorded by the inquiry officer were accepted by the disciplinary authority and minor penalty was imposed. The petitioner has acted in order to give undue favour to a party which is unbecoming of a Government Servant. The inquiry officer has considered the charges in detail and has given findings for each charge. The Tribunal has also considered the same in detail and has come to the conclusion in paras 15 & 16 as under: "15. His contention that his request for supply of additional documents had not been agreed to, without assigning any reason, is concerned, we may observe that all "listed" documents were supplied to him and what was not supplied, is certain "additional" documents sought by him. Furthermore, on this precise issue, in earlier proceedings initiated by him vide OA No. 216/2007 decided on 13-3-2009, while dismissing said OA, vide para 20 it was specifically concluded that: "We have noted in para 2(b) above that the applicant has been given copies of all the relied upon documents and has also been given his defence documents. In the absence of any further proceedings one can surmise about the prejudice caused, if any, to the applicant". Said findings have attained finality as it were not challenged by either side. Therefore, it is not open to applicant now to raise said contention once again. In the absence of any further proceedings one can surmise about the prejudice caused, if any, to the applicant". Said findings have attained finality as it were not challenged by either side. Therefore, it is not open to applicant now to raise said contention once again. As far as contention raised that in similar placed circumstance, delay of as many as 1451 days had been allowed to contractor and no departmental action was initiated, is concerned, it would not be and cannot be construed that delay of such nature and similar days can always be presumed to be just and no action be taken against delinquent official. There is no hard and fast rule on this aspect and delay in execution of work has to depend on facts of each case. Furthermore, merely he was exonerated in another charge memorandum dated 7-7-2004, cannot be a ground to exonerate him in present departmental proceedings too. Furthermore, contention raised that in terms of Vishwanath Sood (supra) judgment, Superintending Engineer exercises power of quasi judicial authority, and therefore, he could not have been proceeded departmentally, in our considered view, is totally misplaced and misconceived. Clause No.2 of contract specified the time for performance of the contract. Superintending Engineer has to take into consideration various factor before levying the penalty prescribed therein, namely nature of period; whether there is any ground of delay in completing the contract including on the part of the contractor or not and various other mitigating circumstances that may be pleaded by the contractor in the given case. Clause No.2 contains complete machinery for determination of the compensation which can be claimed by the Government. In present case, as noticed herein above, allegations levelled were not on this aspect, but alleged that: (i) he did not exercise proper supervision (ii) he caused the contractor undue benefits which could have been avoided, if he had carried out inspection of all important works periodically as prescribed under rules and (iii) he failed to make it his special duty during his tours to ensure the measurement books are carefully kept and measurements properly recorded. It is second ingredient of charge, which had been partly established. Furthermore, penalty imposed in present case was to extent of withholding one increment of pay for a period of one year without cumulative effect. 16. It is second ingredient of charge, which had been partly established. Furthermore, penalty imposed in present case was to extent of withholding one increment of pay for a period of one year without cumulative effect. 16. As per law laid down by Hon'ble Supreme Court in Union Of India V. K.K.Dhawan, (1993)2 SCC 56 , vide para 28 disciplinary action can be taken/concluded if delinquent official has acted in order to give undue favour to a party or acted in a manner which is unbecoming of a Government servant. Keeping in view law laid down therein and testing it on the touchstone of said law viz-a-viz facts of the case on hand, we noticed that finding recorded by inquiry officer were accepted by disciplinary authority and minor penalty was imposed. We may also note settled law laid by Hon'ble Supreme Court in Union of India v. Upendra Singh, (1994) 3 SCC 357 , that Tribunal as no jurisdiction to go into the correctness or truth of charges and the Tribunal cannot take over the functions of the disciplinary authority. Therefore, we do not find any justification to interfere with the punishment imposed. Furthermore, it is well settled law that Court/Tribunal is not a court of appeal to go into the question of imposition of the punishment. It is for the disciplinary authority to consider what would be the nature of the punishment to be imposed on a Government servant based upon the proved misconduct. Its proportionality also cannot be gone into by the court. As such, following aforesaid law and also holding that disciplinary proceedings did not suffer from any procedural infirmities & contentions raised by applicant are not justified, we do not see any reason to interfere with impugned penalty order dated 22-9-2009." 6.2 It is required to be noted that due to the unjustified extension of time granted by the petitioner, the contractor not only claimed escalation amounting to Rs.10,28,646/- but also avoided penalty of Rs.9,88,548/- thereby causing total loss to Government to the tune of Rs.20,17,194/- and undue benefit to the Contractor. All this could have been avoided had the petitioner carried out the inspection of all important works periodically as prescribed in the rules. In fact, it can be said that the authority has taken a lenient view of the matter as the penalty imposed upon the petitioner is a minor one. All this could have been avoided had the petitioner carried out the inspection of all important works periodically as prescribed in the rules. In fact, it can be said that the authority has taken a lenient view of the matter as the penalty imposed upon the petitioner is a minor one. It is a settled position of law that the disciplinary authority is the sole judge of facts and that the Court/Tribunal in its power of judicial review does not act as appellate authority to re appreciate the evidence and to arrive at its own independent findings on the evidence. We therefore are in complete agreement with the reasonings adopted and findings arrived at by the Tribunal. No interference is called for. 7. In the premises aforesaid, petition is dismissed. Rule is discharged. Interim relief, if any, shall stand vacated. No costs. Petition dismissed.