Judgment:
Verma, J.
(1). The petitioner, who was working in Rajasthan State Electricity Board now Vidyut Vitran Nigam Ltd. (hereinafter called 'Nigam') was charged sheeted on 19.6.92 under Regulation No.7 of the Rajasthan State Electricity Board Employees (Classification, Control and Appeal) Regulations, 1962 (hereinafter called 'Regulations') levelling the allegations of misconduct under Regulation 28(0 & 28(k) relating to the period of 1986-88, when the petitioner was posted as Asstt. Engineer (O&M;), R.S.E.B., Chechat, Ramganjmandi. The charges were denied. The Enquiry Officer was appointed vide order dated 18.9.93 (Annex.4). The petitioner was exonerated by the Enquiry Officer.
(2). On receipt of the Enquiry Report exonerating the petitioner, the Secretary of the Nigam vide order dated 4.5.98 (Annex. 10) was of the opinion that the prosecution had not cared to produce the relevant documents and witnesses and for want of the relevant evidence none of the charges had been proved. The Secretary observed that even though the petitioner had committed misconduct, but nothing had been proved. The case was remanded back to Enquiry Officer to re-enquire into the matter with the direction that the allegations as levelled be enquired into once for all and submit the findings.
(3). The authority had ordered in a way to hold denovo enquiry, which according to the petitioner was not permissible under the law. The petitioner has come up in the writ petition for quashing the order dated 4.5.98 (Annex. 10). The petitioner was denied the promotion because of the pendency of the enquiry, and, therefore, the petitioner has also prayed that after quashing the impugned order, he be given all promotions, to which he was denied.
(4). In the written statement filed by respondent it is stated that the prosecution was not able to produce the evidence before the Enquiry Officer, and, therefore, the charges could not be proved. It is further stated that the Disciplinary Authority by directing the Enquiry Officer and prosecution for re-holding the enquiry by producing the documents has not committed any error of law.
(5). Counsel for petitioner submits that if the prosecution had failed to prove any of the charge, the authority concerned could not have ordered for re-enquiry into the matter by giving direction to Enquiry Officer. It is also the contention of the petitioner that the order Annexure-10 shows that the competent authority is already biased by observing that no proper enquiry has been conducted as a result of which no allegation has been proved. It is further mentioned in Annexure-10 that though the petitioner hadcommitted serious misconduct arid has put the Nigam to huge financial loss and, therefore, it amounts to pre-determination of the guilt.
(6). The petitioner is governed by the R.S.E.B. Employees (Classification, Control6 Appeal) Regulations, 1962 (hereinafter referred to as the Regulations).
(7). Regulation 7(vii) provides that at the conclusion of the inquiry, the Inquiry Authority shall prepare a report of the inquiry, recording its findings on each of the charges together with the reasons, therefor, and shall send the report to the Disciplinary Authority etc. Sub-rule (viii) provides that the Disciplinary Authority shall consider the record of the inquiry and record its findings on each charges. Sub-rule (ix) provides that if the Disciplinary Authority is of the opinion that any of me penalties to the imposed, it shall pass orders accordingly. Sub-clauses (vii), (viii) and (ix) of Regulation7 are reproduced as under:-
'7(vii). At the conclusion of the inquiry, the Inquiring Authority shall prepare a report of the inquiry recording its findings on each of the charges together with the reasons therefor and shall send the report to the Disciplinary Authority, alongwith the record of inquiry, consisting of statement of charges and statement of allegations given to the employee, his written defence, evidence, oral and documentary, in the course of enquiry.
(viii) The Disciplinary Authority shall consider the record of the inquiry and record its findings on each charges.
(ix) If the Disciplinary Authority is of the opinion that any of the penalties specified at numbers (a) to (d) in Regulation-5, should be imposed, it shall pass orders accordingly and if the Disciplinary Authority having regard to its findings on the charge, is of the opinion that any of the penalties specified at serial numbers (e) to (h) should be imposed, it shall make an order imposing such penalty and it shall not be necessary to give the employee any opportunity of making representation on the penalty proposed to be imposed.'
(8). Even though there is no provision to the effect that if the Disciplinary Authority disagrees with the enquiry report, it can so state by giving reasons. But that is not the situation in the present case. The Disciplinary Authority has ordered the re-enquiry of the case. There is no such provision in the regulations authorising the Disciplinary Authority to order any denovo or re-enquiry and, therefore, the counsel for the petitioner on the basis of the judgment in me case of K.R. Deb v. The Collector of Central Excise (1) submits that the impugned order is bad in law.
(9). In the case of K.R. Deb (supra) which was a case under the Central Civil Services (Classification, Control and Appeal) Rules, it was held that the rule provides only for one enquiry and it may be possible that if in a particular case there has been no proper enquiry because some serious defect has crept in the enquiry or some important witnesses were not available at the time of enquiry and were not examined, the Disciplinary Authority may ask the enquiry officer to record further evidence, but there was no provision in the rule for completely setting aside the previous enquiry on the ground that the report of the enquiry officer does not appeal to the Disciplinary Authority. The Disciplinary Authority has enough powers to reconsider the evidence itself and come to its own conclusion. In my opinion, the case of K.R. Deb (supra) is fully applicable in the present case.
(10). Apart from above, in the impugned order Annexure-10 dated 4.5.1998, the Disciplinary Authority had observed that in the enquiry held, the presenting officer had failed to produce the concerned witnesses and the relevant documents, with the result that the report had been made in favour of the petitioner for no evidence/proof and, therefore, none of 26 allegations have been proved against the delinquent officer. Hehas further observed that no proper enquiry was conducted as the result of which none of the allegations could be proved even though the delinquent official has committed serious misconduct in purchase of lacs of rupees and thus putting the Board to a huge financial loss. In Annexure-10, he had observed as under:-
'It thus appears that practically no proper enquiry has been conducted in this case, as a result of which no allegations have been found proved though he has committed serious misconduct in purchase of lacs of rupees, thus putting the Board to a huge financial loss.'
(11). It is argued that the Disciplinary Authority has already made up his mind to the effect that the petitioner is guilty.
(12). After going through the order Annexure-10, it seems to me that the suspicion did arise in the mind of the Disciplinary Authority who had pre-determined about the guilt of the petitioner by observing as above and thus relying on K.R. Deb's case (supra) wherein it was also observed that from the order a suspicion had been created that - the authority was determined to get some inquiry officer to report against the delinquent official, the Hon'ble Apex Court was of the opinion that the order seemed to be biased one. It was observed as under:-
'Before the Judicial Commissioner the point was put slightly differently and it was urged that the proceedings showed that the Disciplinary Authority had made up its mind to dismiss the appellant. The Judicial Commissioner held that on the facts it could not be said that the Disciplinary Authority was prejudiced against the appellant. But it seems to us that on the material on record a suspicion does arise that the Collector was determined to get some Inquiry Officer to report against the appellant.'
(13). In view of the above said discussion, I fully agree with the submission made by counsel for petitioner, and no de-novo enquiry could be held by the respondent specially when the respondent had utterly failed to prove the charge before the Enquiry Officer. The order Annexure-10 in holding re-enquiry also smells of pre determination of mind and is biased. The Disciplinary Authority himself had observed that the delinquent official had misconducted grossly, but still the Enquiry Officer had exonerated the petitioner; this observation does amount to pre determination of mind and shows bias.
(14). For the above-said discussions and reasons the writ petition is allowed. The impugned order dated 4.5.1998 is quashed and the petitioner shall be entitled to all consequential benefits which might have been accrued to him on the ground of pendency of the inquiry on the charge-sheet issued to him. No order as to costs.