M R SIDDIQUI Vs. STATE OF U P

JUDGEMENT

(1.) AMARBIR Singh Gill, J. The petitioner assails in this writ petition the order dated 11-3-1997 (Annexure-1) of his dismissal from service on various grounds, inter alia, that the documents and evidence referred in the change sheet were not supplied to him and the enquiry officer submitted his report without conducting any enquiry in accordance with law. The petitioner was denied opportunity of ex amining and cross-examining various wit nesses to enable him to defend his case and besides the enquiry could not proceed beyond the period "of four months from 22nd December, 1992 in accordance with the orders of this Court and the order of punishment has been passed on ex-treneous consideration ie on the dictate of the State Public Service Commission, as the opinion of the Public Service Com mission is only of advisory nature. The petitioner has been denied fair and reasonable opportunity and there has been clear violation of principle of natural justice in the case of the petitioner and the orders is liable to be quashed under Ar ticle 226of the Constitution.

(2.) THE petitioner was served with a charge sheet on 21-8-1992, copy of which is Annexure-6 and other supplementary charge sheet dated 18-9-1992 (Annexure-7) which contained the following allega tions: "original CHARGE SHEET-CHARGE NO. 1 3. THE Original Charge No. 1 was divided into followings: (A) In the year 1985, when you were working on the post of Chief Engineer, Rural Engineering Services, U. R, you were appointed as. Chairman, Selection Committee vide Govt. order No. 1033/84/88-1 dated 3- 12-1984 for selection to 520 posts of Junior Engineers in the department in the post of J. E. on 16-5-1985 and 17-5-1985 by yourself in the ab sence of other members of Selection Com mittee. This action is against para 3 of U. P. Government Service Conduct Rules. (B) THE responsibility of getting the tabulation sheets prepared, on the basis of marks awarded by different members of the Selection Committee was that of selection committee itself. Certain discrepancies were found in the tabulation sheet/merit List got prepared by you, when the same was compared with the tabulation sheets/merit List prepared by Police Computer Cell. Due to this the merit list was affected and such results came to light wherein some candidates who should not have been selected were selected, and some other candidates who should have been selected, could not find place in merits, lists. This action is against Rule No. 3 of U. P. Govt. Service Conduct Rules. (C) Some cutting and over writing appear in the mark-sheets of members of Selection Committee, by cuttings and over writings marks have been increased. Some candidates have been selected or have been kept in the waiting list. Thus without getting the cuttings/over writings attested by members of Selection Committee, you got the tabulation sheet/merit List prepared and got it signed finally, accordingly, you did not act carefully in your respon sibilities and mis-utilized your official post due to which some candidates got undue advantage while some other had to suffer. (D) Out of the selected candidates there were 238 such candidates who were awarded marks for their experience but those candidates were not in possession of attested copies of their experience certifi cates and they tried to get the same at tested afterwards, but out of this there were 126 such candidates who could not get their experience certificates attested even afterwards. It was your responsibility that if the experience certificates were not attested, till the time of interview, such candidates should have been selected provisionally and their experience certifi cates got attested later- on. But you ap pointed such candidates in the absence of their experience certificates attested. (E) A minimum of 86 and maximum of 146 candidates were interviewed in one single day, which is not possible practically, interviewing of 146 candidates is not pos sible in one single day if even 5 minutes per candidate is allotted for the interview and their coming and going. This shows that Interview was not done as per Rules and was just an eyewash in order to select the can didates by showing their interviews. 4. SUPPLEMENTARY CHARGE SHEET: Charge No. 1: In continuation to Govt. , D. O. /letter No. 11639/38-1-84 dated 14-11-1984 and vide your office order No. 1446/dated 30-11-1984. You, in the capacity of Chief Engineer had issued orders for supervising the selection process of J. Es by your Personal Assistant (Establishment) and inspection of the same by you from time to time and gave suitable instructions and orders. You, in the capacity of Chief Engineer, had ap pointed two Assistant Engineers viz Sri A. K. Aggarwal and Sri S. K. Chaudhary for doing tabulation work vide your office-order No. 373 dated 21-3-1985. THErefore you are responsible for the cutting and mistakes committed in the tabulation work in the capacity of Chief Engineer/ap pointing authority because by issuing the above mentioned office order you had given all the responsibilities of the mem bers of Selection Committee to Personal Assistant (Estab.) and the two Assistant Engineers thereby you had played 'shadyantra' (conspiracy ). Thus you are responsible for flouting the Rule No. 3 of U. P. Govt. Service Conduct Rules for the serious mistakes in tabulation work. Charge No. 2: Interview sheets were given to the members of the Selection Committee before the interviews and they were handed over the same day to Sri Vinod Kumar Jain, Personal Assistant (Estab.) whom you had entrusted the responsibilities of supervision of tabulation work. You had never asked the members of the Selection Committee to attest their cutting before the tabulation work, thus you had used unattested mark-sheets for tabulation work, as is evident from the mark-sheets of Superin tending Engineer, Nainital of dated 15-3-1985. THE Work of tabulation without get ting cutting/over writings attested was got done under your instructions THEre fore you are responsible for flouting the rule mentioned in sub-paras 3,4 & 28 of U. P. Govt: Service Conduct Rules. Charge No. 3: In the capacity of Chief Engineer/appointing authority, appoint ment orders were not issued as per merit list prepared under your supervision like appointment orders to Sri Sanjiv Kakar whose name exist on SI. No. 108 of merit list and to Sri B. D. Sharma whose name exist on SI. No. 176 of the merit list were not issued appointment orders. THErefore you are responsible for flouting the paras No. 3,4 & 28 of U. P. Govt. Service Conduct Rules. Charge No. 4: All the records were kept in your office, you being the Chair man of Selection Committee/appointing authority/and head of the department. You committed 'hera Pheri' (interpola tions) in these. In the list of Freedom Fighters 'dependents' the name of Sri Ajai Kumar Sanwal exists at SI. No. 4 of the list while the name of Sri Vipin Kumar is at SI. No. 3. You added the name of Avadesh Mani Tripathi in between them after members of Selection Committee has signed, which is proved from the ap pointment letter of Sri Vipin Kumar Goel at SI. No. 3 and Sri Ajai Kumar Sanwal at SI. No. 4 was issued by your office order No. 7641 dated 30-4- 1985 while that of candidates at SI. No. 2,09 and 210 and in between SI. No. 3 & 4 appointment orders were issued by your office order No. 136 dated 18-6-1985 (also No. 293 & 294 of the order ). Likewise in the list of selected can didates of scheduled caste SI. No. 70a in between SI. No. 70 & 71 and in the list of General candidates SI. No. 99a in be tween SI. No. 99 and 100 and SI. No. 150a in between SI. No. 150 and 151, SI. No. 185a in between SI. No. 185 and 186, SI. No. 236a in between SI. No. 236 and 237, SI. No. 257a in between SI. No. 257 & 258, SI. No. 265a in between SI. No. 265 and 266, SI. No. 279a in between SI. No. 279 and 280, SI. No. 280a in between SI. No. 279 and 280, and SI. No. 285a in between SI. No. 285 and 286 are added. Out of these only 285a is typed but the rest are hand written. THEre is no justification of large number of additions in the list of selected candidates. If the modification were as per con sent of all members of Selection Commit tee then all these modifications should have been attested. THErefore in the capacity of Chairman, Selection Commit tee/chief Engineer and appointing authority, you are guilty of mis-utilising the power of your post of doing 'hera Pheri' (interpolations) of records and thus you are guilty of flouting Sub-rule No. 3,4 and 28 of Govt. Conduct Rules. Charge No. 5: All the members of Selection Committee including you were given mark-sheet duly typed once on a similar format before the interview but out of the mark-sheet of 21 dates viz. 14/2, 15/2,16/2, 25/2,26/2,27/2,14/3,15/3,16/3, 4/4, 5/4, 17/4, 18/4, 19/4, 14/5, 15/5, 16/5, 17/5, 3/6, 4/6 mark-sheet of 8 dates viz, 14/4,17/4,18/4, 14/5,15/5,16/5, 3/6 & 4/6 were changed by you in order to hide your cuttings/over writings and 'hera Pheri' (interpolations) and thus giving advantage to some candidates, because the type of paper and format of typing of the above mentioned mark-sheet is different from mark-sheet of other members of the Selec tion Committee. THEre is difference of the number of candidates on each page of the sheets. Thus all the interpolations and 'hera Pheri' was done either by you or at your directions. Charge No. 6: Being the Chairman of the Selection Committee, besides Chief Engineer and appointing authority of Junior Engineers, you were the Custodian of all the records. Interpolations and 'hera Pheri' was done in the mark-sheets of all the members of Selection Commit tee by one person since interpolations in the marks of several candidates are in the same handwriting. This proves that the marks were increased by doing 'hera Pheri' (interpolations) either by you or by a person of your confidence under your direction. 'hera Pheri' (interpolations) of marks was got done in case of Sri Ashok Kumar Rai at SI. No. 136 on 4-4-1985, Sri Ashok Kumar Singh at SI. No. 228 on 14-3-1985, Sri Ram Prakash Sharma at SI. No. 69 on 3-6-1985, Sri Mohd. Istiaq at SI. No. 34 on 26- 3-1983, Sri Bashir Ahmad Khan at SI. No. 240 on 15-3-1985, Sri Surya Dev Yadav at SI. No. 26, and Sri Khadan Singh at SI. No. 374 and on 6-4-1985. You are therefore guilty of flouting sub- paras 3,4, and 28 of Govt. Services Conduct Rules. " 6. Sri CM. Vasdeo, Principal Secretary, Irrigation Department was appointment enquiry officer by order dated 0-8-1992. THE petitioner was suspended by order dated 12-8-1992. He challenged his order of suspension in Writ Petition No. 6448 (SB) of 1992 and in compliance of the order of this Court passed in the said writ petition dated 23-10-1992 and on Review Petition No. 127- W/92 vide order dated 22-12- 1992, the petitioner was reinstated. THE enquiry officer submitted his report (Annexure- 17-A) dated 26- 12-1992. THE petitioner was served a copy of the enquiry report. THE petitioner sub mitted his reply on 2-1-1993 and 6-1-1993. Annexures 18 and 19 respectively. After obtaining the approval of the State Public Service Commission, the impugned order of dismissal was passed against the petitioner. 7. Article 311 (2) of, the Constitution protects civil servants against arbitrary dismissals and provide the shield and security to service and envisages providing of reasonable opportunity of hearing in respect of any charge on the basis of which his services are sought to be dispensed with. In other words, it embodies the prin ciple of natural justice of audi alteram par-tern. THE same principle is incorporated in Rule 55 of the Civil Services (Classifica tion, Control & Appeal) Rules, 1930 in the matter of conduct of disciplinary proceed ings against the public servants. THE prin ciple of natural justice require that the copies of the documents, if any, relied upon against the party charged should be given to him and he should be afforded opportunity of cross-examination of wit nesses and to produce his own witness in his defence. If the findings are recorded against a government servant placing reliance on a document which was not disclosed or a copy whereof was not sup plied to him during enquiry even on demand by him would contravene the principle of natural justice rendering the enquiry and consequential order of punishment illegal and void (see Chandrama Tewari v. Union of India, AIR 1988 SC 117), In Trilok Nath v. Union of India, 1967 SLR 759 (SC) it was held that if a public servant facing departmental enquiry was not supplied-the copies of the documents referred to in the charge-sheet, it amounts to denial of reasonable opportunity. 8. On receipt of the charge-sheet the petitioner approached the enquiry officer by a letter dated 34-8- 1992 (Annexure-8) complaining that evidence cited in the charge-sheet was not enclosed with the charge-sheet and he was unable to submit the reply to the charge-sheet. He also asked for "other documents" which he listed as Annexure-A with his letter. On receipt of the supplementary charge- sheet also he wrote another letter dated 25- 9-1992 (Annexure-9) reiterating his demand of supply of the documents and also sub mitted a similar list of "other documents" for the purpose of filing reply lo the charge-sheet. THE enquiry officer con ducted the proceedings on various dates including 2- 11-1992, 13-11-1992 and 15-11-1992, copies whereof have been placed 8. on record by the petitioner as Annexures 14 and 15 and Annexure CA-9 of the meet ing dated 15-12- 1992 with the counter-affidavit by the opposite parties. 9. In order to appreciate the grievance of the petitioner that he was not supplied the necessary documents during the enquiry, a reference to the enquiry proceedings, Annexures 14, 15 and CA-9 would show that apart from the docu ments referred to in the charge-sheet, the enquiry officer made it sure that the petitioner was [supplied all "other documents" as requested by him in his letter, Annexure- 8 in the list of documents at tached with it. It would be seen that in a domestic enquiry the delinquent official is entitled to be supplied alongwith the charge-sheet the statement of allegations and the documents or oral evidence which is sought to be referred to or produced in support of the charges against him. It is noticed in this case that the petitioner in his letter, Annexure-8 not only asked for the copies of the documents referred to in the charge-sheet but also submitted a list of documents which he referred to as "other documents" which he required for the purpose of filing reply to the charge sheet. Although the enquiry officer was not required to accede to his request for supplying the other documents listed by the petitioner which have no reference in the charge-sheet, yet the same was sup plied to the petitioner during the enquiry. A perusal of enquiry proceedings, An nexures 14,15 and CA 9, would indicate that the petitioner was supplied all relevant documents and the necessity of supplying other documents was discussed with the petitioner ana the same were found not relevant and not required to be furnished to him and the petitioner there after did nbt raise any protest in filing his replies. THE grievance of the petitioner in respect of non-supply of documents is it self belied by his own letter dated 14-12-1992 as contained in Annexure RA-4 with the counter-affidavit. THE relevant por tion of the letter runs as under: "during my personal hearing with you on 5-12-1992 on the subject mentioned in above, you had intimated me that the remaining evidences and other documents shall be made available to me by 9-12- 1992 accordingly I was asked to submit my additional/final reply even without evidence No. 6 by going through the available records myself. Unfortunately the following eviden ces/documents have not yet been made avail able to me: "applications with Certificates (in original) of 126 No. candidates whose ex perience certificates are alleged not to have been verified. THErefore, keeping in view of the final date fixed by you, I am submitting herewith additional reply regarding one point only even without the remaining evidences being made available to me till today. It is requested that I shall have the right to submit my/final reply on the receipt of remaining evidences/docu ments. It is further to request vou that I may kindly be allowed personal hearing (final) to examine/cross-examine the wit nesses. So that I can explain/defend my replies pointwise. " 10. It is relevant to reproduce the minutes of hearing of the enquiry proceed ings dated 15-12-1992 as contained in Annexure CA- 9 of the opposite parties. "minutes of hearing/meeting held on 15-12-1992 in connection with the disciplinary proceedings against Sri M. R. Siddiqi, Director & Chief Engineer (Suspended, Rural Engineering Services), U. P. In today's meeting/hearing, it was pointed out on behalf of the Gram Vikas, Vibhag, U. R that the application and other details of 126 candidates could not be made available inspite of the decisions taken in hearing held on 5-12-1992. THErefore, it is not proper/and justified to keep the disciplinary proceedings pending for want of this reason. THE charged officer in con tinuation to his previous replies/explanation has submitted his further explanation/replies vide his letter No. Memo- 58/pf/d & CF. dated 14-12-1992. He has indicated that he has noth ing to give in writing now except what he has already given in writing earlier. He has re quested for the final personal hearing. For this purpose date and time is hereby fixed for 19-12-1992at5. 00p. m. " 11. It is thus clear that the petitioner - had received all the relevant documents asked by him during the enquiry proceed ings but for the applications with certifi cates in original of 126 number of can didates whose experience certificate was not verified by him earlier to the selection. It would be useful to observe here that the allegations against the petitioner were that out of the selected candidates, there were 238 such candidates who were awarded marks for experience but those candidates were not in possession of at testing copies of their experience certifi cate and they tried to get the same attested afterwards but out of this there were 126 candidates who could not get their ex perience certificate attested even after wards. It was the responsibility of the petitioner that if the experience certificate of 126 candidates were not attested till the time of interview, such candidates should have been selected, if at all, provisionally and get their experience certificate later on but these candidates were selected even in the absence of their experience certifi cate being attested. THE enquiry officer did not hold the petitioner guilty of this charge-because the department could not make available the names and applica tions of those 126 candidates to the petitioner and the explanation of the petitioner that these certificates were re-checked before issuance of appointment letters was accepted. In the absence of the applications of these candidates being made available during the enquiry it was not established that due care was not taken by the petitioner. It is thus clear that grievance, if at all, of non supply of docu ments was only in respect of non supply of applications etc. of 126 candidates and the enquiry officer accordingly did not hold the charge proved against him to that ex tent and there is thus no denial of any opportunity to the petitioner on the ground that he was not supplied the docu ments or evidences referred to in the charge-sheet for the purposes of his defence. 12. THE other grievance of the petitioner is that he had requested for cross-examination of two witnesses name ly, Sri B. N. Gupta, the then Chief En gineer, Minor Irrigation and Sri Sumer Lal, the then Joint Secretary, Harijan & Samaj Kalyan, as per his request in letter dated 31-8-1992 (Annexure-8 ). It would be useful again to revert to the enquiry proceedings dated 30-11- 1992, copy of which is Annexure-15 on the record which, inter alia, mentions that both these wit nesses were co-members of the selection committee with the petitioner and they were separately proceeded against departmentally. THE petitioner wanted the witnesses to show the reason for their absence from the selection but in his own reply the petitioner had admitted that on the relevant date one of the members of the Selection Committee had not attended the office and the other had left the selec tion due to official work and the enquiry officer considered the necessity of ex amination of these two witnesses during the hearing of the petitioner and the petitioner appears to have satisfied him self because thereafter he did not raise any protest in any of the hearings nor he wrote any letter that the witnesses mentioned by him should be produced for examination or cross- examination purposes. As al ready indicated in his own letter dated 14-12-1992 (Annexure-RA-4) he had raised grievance only in respect, of non supply of applications with certificates of 126 number of candidates only. He nowhere mentioned that he still wanted to produce and cross-examine the two named officials. In Annexure-15 minutes of en quiry proceedings dated 13-11-1992, the petitioner had made statement that he wanted to produce these two witnesses to get the reasons verified from them as to why they were absent from some part of the interview on different dates and whether he had intentionally compelled them to be absent from interview. THE examination of these two witnesses in the circumstances was of no avail to the petitioner, as there was no such charge that he had intentionally asked the two other members to be absent from the selection, rather the charges were that he continued holding selection in the absence of other two members. Since it is admitted that on a particular date the petitioner held the selection by himself alone, there is no dispute on the question of this fact. THEre appears to be no denial of oppor tunity in non production of these two wit nesses when only an explanation was re quired to be sought from them. Since there , is no dispute to the very fact that the peti tion held the selection by himself on a particular date, absence of opportunity to examine or cross-examine the other two members of the selection committee did not create or cause any prejudice to the petitioner in his defence. 13. THE main thrust in the argument of the learned Counsel for the petitioner was the denial of opportunity to the petitioner during the enquiry insofar as non supply of documents and non ex amination of witnesses during the enquiry. It has already been referred to above that the petitioner was supplied all the docu ments by the enquiry officer and non ex amination of the two witnesses at the in stance of the petitioner had no bearing on the defence of the petitioner. It is also argued that during the course of enquiry in order to prove the charges against the petitioner, no witness was examined or any documents were proved and that the en quiry officer has submitted the report simply on the explanation and replies of the petitioner to the charges. THE record ing of evidence or production of docu ments depends upon the facts of a case. In the instant case it is needless to mention that no record was required to be produced as proof against the petitioner nor any witness was required to be produced because the petitioner himself was the Chairman of the selection com mittee and he was in exclusive possession of all the relevant records. He was reinstated during the course of enquiry and the charges refer to his own conduct as Chairman of the selection committee in respect of selections made of 520 Junior Engineers in the Department. In his own statement he admitted the gravamen of the charges, firstly that he had held the selection by himself alone on 16-5-1985 and 17-5-1985 when the other two mem bers were not present. On these two relevant dates the petitioner had inter viewed 56 candidates by himself on 16-5-1985 and 30 candidates on 17-5-1985. He admitted that the work of tabulation was delegated to two officers, Sri A. K. Agarwal and Sri S. K. Chowdhary under his orders. THE tabulation work done by these two officers was found to be incorrect and the petitioner admitted that it had affected the selections. He also admitted that 14 per sons were wrongly selected and 30 can didates who could have been selected were not selected on account of the wrong tabulations. THE petitioner did not deny the cuttings and over- writings in the final jmark-sheets which was not attested by any of the members of the selection committee although the merit list was signed by all the members. It is not disputed that the record remained in exclusive possession of the petitioner through his Personal Assistant. It also stands admitted that the candidates from minimum of 86 to 146 were inter viewed within one day as against the decision of the selection committee to call 100 to 110 candidates per day. Besides, initially it was decided that 30 marks were to be given for interview which was later on changed to 40. All such allegations con tained in the charge-sheet were not and could not be refuted by the petitioner during the hearing in the enquiry proceed ings. THEre was no occasion for produc tion of any witness or record in this case but for the explanation of the petitioner as to under what circumstances he had con ducted the selection in the manner not permissible under Rules. 14. In cases of disciplinary enquiries what is paramount for consideration is whether the delinquent has been afforded opportunity of defence i. e. whether primary principle of natural justice and audi alteram partem rule has been com plied with. THE various rules prescribing the procedure for holding such domestic enquiries framed under Proviso to Article 309 of the Constitution or under regula tions made by statutory bodies under a statute are nothing but elaboration of principle of natural justice so as to rule out any bias against the deliquent official in a domestic enquiry. It is well settled that where the delinquent has been denied right of opportunity or there is violation of the principle of natural justice, any punishment on the basis of such an en quiry is to be set aside but there are cases where even if rules of natural justice are not complied with and no prejudice is caused to the delinquent official, the order of punishment necessarily need not be set aside. THEre may be cases where delin quent official himself concedes the char ges against him or waives his right to ad duce any evidence in defence or if oral witness is not examined in the enquiry but if evidence or statement of that witness is not referred to or relied upon for the pur poses of holding the charge proved against the delinquent official, there appears to be no scope to hold in such cases, that non examination of such witness in the enquiry amounts to denial of any opportunity of cross-examination of witness in the en quiry. Hon'ble Supreme Court in the case of State Bank of Patiala v. S. K. Sharma, (1996)3 SCC 364 has elaborately discussed the implication of non observance of prin ciple of natural justice and it is observed that the case has to be looked from the point of view of prejudice, if any, caused to the delinquent official for non observance of any principle of natural justice. 15. Applying the principle laid down in S. K. Sharma's case (supra) to the case in hand it can safely be held that the petitioner could not claim violation of any principle of natural justice or if he was not afforded opportunity to meet his case in the sense that he was not given copies of documents or he was not heard. As already indicated, in his own letter dated 14-12 -. 1992 (Annexure RA-4) the petitioner did not show any grievance or raised protest against the enquiry in respect of non supp ly of any document or non examination of any witness in the enquiry against him or at his instance but for his complaint that he was not provided the copies of the applica tions with certificates of 126 number of candidates. It has already been indicated that the enquiry officer on account of non supply of all such applications to the petitioner did not consider the allegations against him in respect of non verification of the experience certificates of candidates earlier to their selection as proved. It is not disputed that the petitioner had the op portunity of hearing before the enquiry officer as well as before the competent authority. Even in Rule 55 of the C. C. A. rules the opportunity to be afforded to the delinquent official is termed as 'adequate opportunity'. In the circumstances dis cussed above, there is no infirmity in the enquiry proceedings against the petitioner and the same was in accordance with rules as well as principle of natural justice. 16. It was also contended that the enquiry proceedings need be quashed since it pertains to stale charges pertaining to the year 1985 and the enquiry was in itiated in the year 1992. It would be seen that the petitioner challenged the initia tion of enquiry against him with the same allegations in Writ Petition No. 6448 (SB) of 1992. However, the same was disposed of finally on 23-10-1992 directing comple tion of enquiry within a period of two months with the co-operation of the petitioner. However, if the same was not concluded, the order of suspension of the petitioner shall stand revoked. Whereafter this period was subsequently extended to four months on 22-12-1992. It is indicated that the petitioner was reinstated and the petitioner again chal lenged the notice of show causel issued to him on December 26-12-1992 alongwith the enquiry report in this case and an inter im order was passed by this Court providing that the State Government may go ahead with the passing of final order in the enquiry but the order shall not be publicised or implemented till the order of the Court is passed in that regard. THEre after by an order dated '19-3-1997 this petition was dismissed as premature at the instance of the Counsel for the petitioner himself. It is not disputed that earlier to the initiation of the enquiry against the petitioner, the matter remained pending with the Vigilance Department in respect of the selection made of 520 Junior En gineers by the petitioner and on receipt of the report of the Vigilance enquiry a regular enquiry was initiated against the petitioner. In the circumstances, it cannot be accepted that the enquiry proceedings against the petitioner suffer from any delay or laches or if the charges were stale in any manner. THE government con sciously was looking into the matter and already a fact finding enquiry i. e. vigilance enquiry was conducted before holding the regular enquiry. 17. It is also contended that the com petent authority abdicated its authority, in favour of State Public Service Commis sion in the matter of awarding punishment to the petitioner. It is submitted that ini tially the State Government decided to punish the petitioner on the basis of the enquiry report by demoting him to one rank below Le. the similar punishment awarded in the case of the rest of the mem bers of the selection committee and other officials. However, when the proposal of punishment of demoting the petitioner to one rank below was sent to the State Public Service Commission, it did not agree with the proposal and suggested that in the case of the petitioner the punish ment of dismissal was required to be passed since already he stands demoted one rank below in another case. It is fur ther submitted that the State Government again approached the State Public Service Commission that the proposal of the punishment of dismissal would be against the principle of natural justice, as other members of the selection committee and other officials against, whom the enquiry was conducted on similar charges would be getting lesser punishment. However, State Public Service Commission did not find favour with the proposal and ultimately the State Government passed the impugned order of dismissal against the petitioner. THE Public Service Commis sion (Limitation of Functions) Regula tions, 1954 deal with the power of Public Service Commission to conduct examina tion and right of Government to seek ad vice in all matters relating to method of recruitment of State Civil Servants. THEse regulations supplement the requirement of Article 323 of the Constitution of India insofar as refers to setting up of State Public Service Commission. Regulation 8 (' refers to the requirement of consultation of the State Public Service Commission by the State Government before an order of punishment is passed in a disciplinary case including that of dismissal from service. A perusal of the regulation would indicate that it refers to the consultation only. It is nowhere indicated if the advice of the Public Service Commission shall be of mandatory -nature of it is imperative for the Government to accept the advice tendered by the Commission, However, in this case the Government has accepted the advice of the Commission even though it had decided to pass punishment to demote the petitioner one rank below. THE inten tion of the State Government to pass only the order of demoting the petitioner to one rank below was further reiterated by the State Government even after the ad vice of the Commission was received and it was considered that the view of the Com mission was not based on the principle of natural justice and the punishment proposed earlier was found sufficient for the petitioner and the same was again sent to the Commission on 10-6-1996 for ap proval. However, State Public Service Commission by its letter 2-1-1997 reiterated its earlier advice of awarding punishment of dismissal to the petitioner. All these inter se correspondence between the State Government and the State Public Service Commission are indicated in the impugned order dated 11-3-1997 (Annexure-1 ). In the circumstances, it is clear that the Stale Government took a conscious decision of awarding punish ment of demotion to one rank below to the petitioner. However, the same was super seded by punishment of dismissal on the advice of State Public Service Commission although the same advice was not accepted and punishment of demotion of one rank below was reiterated by the Government. It is thus clear that punishment of demo tion to one rank below was commensurate with the charge of misconduct proved against the petitioner. In the circumstan ces, the order of punishment' need to be modified since the impugned order con tains the punishment which is against the decision of the State Government itself. However, no useful purpose would be served in remanding the matter of award ing punishment back to the State Govern ment at this stage since the petitioner is said to have stirred from service in the meantime. 18. This petition is the partly allowed and the impugned order of punishment to the extent of dismissal from service is quashed and the same shall be substituted to punishment of reduction to one rank below with consequential benefits accord ingly. Petition partly allowed. .