(1) THE appellant was charged for misconduct when he was working as Executive Engineer, Panchayat Raj, Kavali, A. P.. The charge levelled against him reads as follows:

"THAT you, while working as Executive Engineer, Panchayat Raj, Kavali from April 1960 to October 1982, in abuse of your official position and actuated by corrupt motives failed to supercheck the measurements in the M. Book recorded by Shri D. Ram Singh, Supervisor, with the connivance of Shri C. Venkateswara Rao, Dy. Executive Engineer, Panchayat Raj, Buchireddipale and allowed Shri D. Ram Singh, Supervisor, Panchayat Samithi, Kovuru to entrust the construction of a housing colony containing 54 blocks through a contractor at Pallipalem, H/o Utukur village, Kovuru taluk, Nellore District at an estimate of Rs. 4,36,000.00 against the rules and regulations and thus deprived the beneficiaries in participating in the construction work of the colony and that thereby you are guilty of misconduct within the meaning of Rule 2(b) of the rules framed under the A. P. Civil Services (Disciplinary Proceedings tribunal) Act,1960."

(2) THE enquiry officer has found that the charge has been proved and he has also specifically stated in para 42 of his report as follows:

"BUT taking into consideration the fact that he is not actually in charge of the building construction, but only overall in-charge being the Executive Engineer of the Panchayat Raj, it is hereby recommended to the Government that two increments may be stopped with cumulative effect as far as this charged officer is concerned."

(3) ACCEPTING the recommendation of the enquiry officer, the disciplinary authority imposed the penalty as recommended. Against that, the appellant preferred a representation petition before the tribunal without success. Hence the present appeal by special leave.

(4) MR A.V. Rangam, learned counsel for the appellant, submits that the appellant was not factually in charge of the building construction, as admitted by the enquiry officer, and as a matter of fact the persons, namely, the Deputy Executive Engineer and the Supervisor, who were directly in charge of the building construction, were similarly charged for identical misconduct and on the same set of evidence, though in different proceedings, they were exonerated of the charge. The government who is the punishing authority, accepting the recommendation, exonerated them of the hage.

(5) THE argument of the learned counsel for the appellant is that if the persons directly in charge of the construction work were found not guilty of the charge framed, the appellant, who was indirectly in charge of the work, cannot be punished for similar charge levelled against him. We find force in the argument of the learned counsel for the appellant and we do not think that the argument of the learned counsel for the respondent that the enquiry officer in this particular case has gone into the merits and has given different finding should be accepted. As pointed out earlier, on the basis of the same set of evidence the officers who were directly in charge of the construction work were exonerated of the charge and we see no reason to pick out the appellant alone for finding him guilty of the charge.

(6) THE appeal is accordingly allowed and the judgment and order under appeal is set aside.

(7) NO order as to costs.