S. BANERJEA, J. ( 1 ) -THE instant appeal arises out of a judgment and order dated February 26, 1990 passed by the Trial Court dismissing the writ petition of the appellant petitioner wherein the 2nd Show Cause Notice dated December 10, 1981, calling upon the petitioner to show cause as to why he should not be removed from the service, inter alia was under challenge. ( 2 ) THE appellant petitioner who was a Senior Rakshak of the Railway Protection Force, was served with charge-sheet dated December 23, 1974 on which a disciplinary proceeding was initiated against him. He replied to the chargesheet. The disciplinary enquiry thereafter was held and ultimately the Inquiry Committee holding the said disciplinary enquiry submitted a report wherein the petitioner was found guilty of all the misconducts alleged in the chargesheet. Agreeing with the aforesaid fording of the aforesaid Inquiry Committee the respondent no. 6 being the Assistant Security Officer, Railway Protection Force, Eastern Railway, Danapur, issued a 2nd Show Cause Notice dated December 30, 1975 calling upon the petitioner to show cause as to why he should not be removed from the service. The petitioner made a representation against the aforesaid 2nd Show Cause Notice dated December 30, 1975 which was rejected and the final order was passed in the said disciplinary enquiry removing the petitioner from service with effect from February 22, 1976. The petitioner preferred an appeal against the said final order of removal which was dismissed by the Appellate Authority. The petition for revision filed by the petitioner thereafter was also rejected by an order dated June 26, 1976 passed by the Deputy Chief Security Officer. ( 3 ) THEREAFTER the petitioner moved this Hon'ble Court under Article 226 of the Constitution whereupon Civil Rule No. 12420 (W) of 1976 was issued. The aforesaid Civil Rule was made absolute by a judgment and order dated February 5, 1981 by the Hon'ble Mr. Justice P. C. Borooah. ( 3 ) THEREAFTER the petitioner moved this Hon'ble Court under Article 226 of the Constitution whereupon Civil Rule No. 12420 (W) of 1976 was issued. The aforesaid Civil Rule was made absolute by a judgment and order dated February 5, 1981 by the Hon'ble Mr. Justice P. C. Borooah. By the said judgment and order the aforesaid 2nd Show Cause Notice dated December 30, 1975 being Annexure 'c' to the earlier writ petition was set aside as the Learned Judge was of the view "that apart from a bold statement that the charges framed have been proved as per finding of the Inquiry Committee by a board of enquiry consisting of B. K. Ghosh; there is nothing in the said order which would go to show that the Officer passing the order applied his mind to the charges and/or agreed with the evidence thereof. " As the 2nd Show Cause Notice was set aside all orders subsequent thereto including the final order of removal was also set aside. By the said judgment and order, however, the respondents were given liberty to proceed afresh from the stage prior to the passing of the order dated December 30, 1975 after giving the petitioner an opportunity of being heard. The petitioner thereafter was served with the order being no. 439 of 1981 dated 31. 7. 81 passed by the Security Officer, Eastern Railway, informing the petitioner that the said 2nd Show Cause Notice and the order of removal issued against the petitioner were cancelled and the petitioner was reinstated in service. By the self same order the petitioner was further informed that he shall be deemed to have been placed under suspension from the date of removal from service i. e. 22. 2. 76. Thereafter, the petitioner was served with the present 2nd Show Cause Notice dated December 10, 1981 along with the finding of the respondent no. 5 in relation to the said 2nd Show Cause Notice calling upon the petitioner to show cause as to why he should not be removed from service. ( 4 ) MR. 2. 76. Thereafter, the petitioner was served with the present 2nd Show Cause Notice dated December 10, 1981 along with the finding of the respondent no. 5 in relation to the said 2nd Show Cause Notice calling upon the petitioner to show cause as to why he should not be removed from service. ( 4 ) MR. Kashi Kanta Moitra, the Learned Counsel, for the appellant has assailed the judgment and order under appeal inter alia on the grounds that the Trial Court failed to consider that the 2nd Show Cause Notice was issued by the respondent without holding the disciplinary enquiry afresh, in violation of the aforesaid judgment and order dated February 5, 1981 passed by the Hon'ble Mr. Justice P. C. Borooah. Mr. Moitra has further contended that in any event the 2nd Show Cause Notice is bad as closed and biased mind of the disciplinary authority is manifest in the said 2nd Show Cause Notice wherefrom it will clearly appear that the finding of the disciplinary authority in the said 2nd Show Cause Notice is not provisional but final which vitiates the said 2nd Show Cause Notice. Mr. Moitra has further contended that the order of deeming suspension passed by the respondents after the previous 2nd Show Cause Notice and the order of removal were set aside by this Hon'ble Court, is bad and wholly without jurisdiction inasmuch as the authorities have no power to pass such order of deeming suspension for the purpose of nullifying the effect of the aforesaid judgment and order dated February 5, 1981 passed in Civil Rule No. 12420 (W) of 1976 by which the petitioner was entitled to be reinstated in service with all consequential relief including payment of arrear salaries. ( 5 ) WE are unable to accept the above-mentioned first contention of Mr. Moitra viz. that the respondents acted in violation of the aforesaid judgment and order dated February 5, 1981 passed by the Hon'ble Mr. Justice P. C. Borooah, by issuing the 2nd Show Cause Notice without holding the disciplinary enquiry afresh. ( 5 ) WE are unable to accept the above-mentioned first contention of Mr. Moitra viz. that the respondents acted in violation of the aforesaid judgment and order dated February 5, 1981 passed by the Hon'ble Mr. Justice P. C. Borooah, by issuing the 2nd Show Cause Notice without holding the disciplinary enquiry afresh. It will appear from the aforesaid judgment and order dated February 5, 1981 that the learned Counsel for the writ petitioner challenged at the time of hearing only the earlier 2nd Show Cause Notice on the ground that the same was in violation of Rule 44 (8) (VI) of the Railway Protection Force Rules as under the said sub-rule the Officer concerned had to come to his finding on each charge with reason therefore. After considering such submission the learned Judge set aside the Show Cause Notice as there was nothing in the said order to show that the Officer passing the said order applied his mind to the charges and agreed with evidence thereof. But at the same time liberty was given to the respondents to proceed afresh from the stage reached prior to the passing of the order dated 30. 12. 75, that is, the 2nd Show Cause Notice, after giving an opportunity being heard. Admittedly, the stage reached prior to the issue of the 2nd Show Cause Notice dated 30. 12. 76 is the stage when the Inquiry Committee submitted its report in consideration of which the disciplinary authority has to come to a finding either dropping the proceeding or to proceed further by issuing a 2nd Show Cause Notice after reaching conclusion provisionally that the petitioner was guilty of the alleged misconduct and provisionally proposing the punishment. It cannot be said therefore, that the disciplinary authority committed any wrong by issuing the 2nd Show Cause Notice afresh after consideration of the enquiry report. ( 6 ) AS to the second contention of the appellant that the order of deeming suspension passed by the respondents was bad, it may be noted that although such order of deeming suspension was not challenged in the writ petition, the learned Counsel for the respondent has not raised any objection to the appellant taking such point for the first time in appeal. On the contrary, he has justified the order of such deeming suspension by referring to the Railway Protection Force Rules and the decision of the Supreme Court. Accordingly, we proceed to consider such contention of the appellant. the same having been challenged by the appellant on question of law only. Mr. Moitra, the learned Counsel for the appellant has submitted that the whole purpose of passing such deeming order of suspension was to nullify the effect of the judgment and order dated February 5, 1981 passed in Civil Rule No. 12420 (W) of 1976 and to deprive the petitioner of the benefit of arrear salaries to which he was entitled as consequential relief, the final order of removal in which the order of suspension passed pending the disciplinary enquiry merged having been set aside. Mr. Moitra, in this connection has relied on the decision of the Supreme Court in the case of Om Prakash Gupta v. State of Uttar Pradesh reported in AIR 1955 Supreme Court page 600 wherein it was held inter alia that the order of suspension passed pending the enquiry lapses with the final order of dismissal passed in the disciplinary enquiry and subsequent declaration by Court that the order of dismissal was bad, cannot revive the order of suspension as the same did not exist. Mr. P. K. Ghosh, the learned Counsel for the respondents on the other hand has drawn our attention to Rule 40 (4) of the Railway Protection Force Rules 1959 and has submitted that under the aforesaid Rules a deeming order of suspension can be validly passed after setting aside of the order of removal by this Hon'ble Court and the disciplinary authority therefore, had jurisdiction to pass such order of deeming suspension. In this connection, Mr. Ghosh has also relied on the decision of the Supreme Court in the case of Nelson Motis v. Union of India and Ors. reported in 1992 (4) Supreme Court Cases page 711. In the said case the Supreme Court was interpreting inter alia the provisions of Rule 10 (4) of the Central Civil Service (C. C. A.) Rules, 1965 which is similar to Rule 40 (4) of the Railway Protection Force Rules 1959. ( 7 ) IN our opinion, such order of deeming suspension was bad and was passed not in conformity with said Rule 40 (4 ). ( 7 ) IN our opinion, such order of deeming suspension was bad and was passed not in conformity with said Rule 40 (4 ). Rule 40 (4) of the Railway Protection Force Rules 1959, in our opinion, does not come to the aid of such deeming order of suspension. Under the provisions of the said Rule 40 (4) of the said Rules a member of the force shall be deemed to be under suspension from the date of the original order of dismissal, removal or compulsory retirement as the case may be and shall continue to remain under suspension until further orders, not merely when the penalty of dismissal or removal or compulsory retirement as the case may be, imposed upon the member of the force is set aside or declared or rendered void in consequences of or by a decision of the Court of law. There will be such order of deeming suspension only when after such penalty of dismissal, removal or compulsory retirement is so set aside by Court of law, the Disciplinary Authority, on a consideration of the circumstances of the case decides to hold a further enquiry against him on the allegations of which the penalty of dismissal, removal or compulsory retirement was originally imposed. Reading of the aforesaid Rule 40 (4) of the said Rules, thus clearly indicate that such deeming suspension would come into play only when, after the setting aside of the order of dismissal or removal by a Court of law, the disciplinary authority on his own decides to hold further enquiry after consideration of the circumstances of the case against him on the allegations on which the penalty of dismissal or removal was originally imposed. Such decision to hold further enquiry will be of the disciplinary authority himself on consideration of the circumstances of the case and not because of a direction by a Court of law to that effect after setting aside the order of dismissal or removal as the case may be. In the instant case after the order of removal was set aside by the aforesaid judgment and order dated February 5, 1981, the respondents were given liberty to proceed afresh from the stage reached prior to the issue of the 2nd Show Cause Notice and it does not appear from the order dated 31. 7. In the instant case after the order of removal was set aside by the aforesaid judgment and order dated February 5, 1981, the respondents were given liberty to proceed afresh from the stage reached prior to the issue of the 2nd Show Cause Notice and it does not appear from the order dated 31. 7. 81 issued by the Security Officer, Eastern Railway, whereby the petitioner was inter alia informed about such deeming suspension that after setting aside of the order of removal by this Hon'ble Court, the disciplinary authority considered the circumstances of the case and thereafter decided on his own to hold further enquiry. On the contrary, it is clear from the records that such 2nd Show Cause Notice was issued afresh pursuant to the liberty granted by this Hon'ble Court without consideration of the circumstances of the case as aforesaid. In that view of the matter such order of deeming suspension is bad and is without jurisdiction and therefore is liable to be set aside. The decision of the Supreme Court in the case of Nelson Motis v. Union of India and Ors. relied upon by Mr. Ghosh in our view has no application in the instant case and is clearly distinguishable. In the said case after the final order passed in the disciplinary proceeding was set aside by the Tribunal with liberty to the authorities to take up the proceedings afresh, the matter was considered by the disciplinary authority and after consideration of the circumstances of the case an order was issued that the disciplinary proceeding shall be continued and accordingly it was further ordered that under provisions of Rule 40 (4) of the Central Civil Service (C. C. A.) Rules 1965 the appellant would be deemed to have been under suspension. But in the instant case as pointed out hereinbefore neither the order dated 31. 07. 81 by which the order of deeming suspension was communicated nor the 2nd Show Cause Notice indicates that the disciplinary authority took the decision to hold further enquiry on his own after consideration of the circumstances of the case. On The contrary, the finding of the disciplinary authority accompanying the present 2nd Show Cause Notice clearly indicates that 2nd Show Cause Notice was being issued in pursuance of the aforesaid judgment and order dated February 5, 1981. On The contrary, the finding of the disciplinary authority accompanying the present 2nd Show Cause Notice clearly indicates that 2nd Show Cause Notice was being issued in pursuance of the aforesaid judgment and order dated February 5, 1981. ( 8 ) WE now come to the next contention of the appellant relating to the infirmity of the 2nd Show Cause. The Supreme Court in the case of The State of Assam v. Bimal Kr. Pandit reported in AIR 1963 Supreme Court, page 1612 held infer alia that the finding of the disciplinary authority in the 2nd Show Cause Notice both relating to the finding as to the alleged misconduct as well as the proposed punishment should be provisional and tentative. The reason for such finding was that under the provisions of Article 311 of the Constitution even at the 2nd Show Cause stage a delinquent should be entitled to reasonable opportunity of hearing and under the same a delinquent would be entitled to represent both against the finding to the alleged misconduct as also against proposed punishment. Such view of the Supreme Court was followed in a decision reported in AIR 1964 Supreme Court page 506 arid also in the case of State of Gujarat v. R. G. Teredessai, reported in AIR 1969 Supreme Court page 1294. A Division Bench decision of our High Court. upon which Mr. Moitra as also placed reliance, in the case of Himangshu Kr. Sengupta v. Union of India reported in 1984 (1) Calcutta Law Journal, page 379 has held that the finding of the disciplinary authorities even at the 2nd Show Cause stage is to be tentative or provisional both as to the alleged guilt of the delinquent as also relating to quantum of punishment. ( 9 ) THE finding of the disciplinary authority in the 2nd Show Cause Notice relating to the alleged misconduct of the appellant appears to be final and conclusive and not tentative or provisional, the disciplinary authority although has stated in the aforesaid 2nd Show Cause Notice that he has provisionally decided to impose the punishment of removal upon the appellant, but before provisionally deciding to impose such punishment upon the appellant. The disciplinary authority has finally decided that the appellant is guilty of the misconduct. His finding relating to all the charges appears to be clearly conclusive and final and not tentative. The disciplinary authority has finally decided that the appellant is guilty of the misconduct. His finding relating to all the charges appears to be clearly conclusive and final and not tentative. ( 10 ) THAT apart the impugned 2nd Show Cause Notice, in our opinion, is liable to be set aside on another ground also, namely, non-application of mind of the disciplinary authority to the finding of the Inquiring Committee and the evidence on record relating to charge no. 3. By the earlier judgment of this Hon'ble Court dated February 5, 1981 previous 2nd Show Cause Notice was set aside on the ground of non application of mind of the disciplinary authority to the enquiry report and to the evidence on record. While passing the present 2nd Show Cause Notice the disciplinary authority was required therefore to apply his mind to the evidence on record and to enquiry report in respect of each of the charges which he has failed to do. As regards, charge No. 3, except a bald statement of the disciplinary authority to the effect that the same has also been proved and the delinquent had taken law in his own hand by taking away the personal belongings of his co-worker Sitaram Singh at the point of dagger, there is nothing on the record to show that the disciplinary authority applied his mind to the evidence on record or even to the finding of the Inquiring Committee in respect of the said charge. It is pertinent to note that the finding of the Inquiry Committee in respect to the said charge is that delinquent took away personal belongings of his co-worker Sitaram Singh, but it was never found by the Inquiry Committee that such personal belongings of his co-worker was taken away by the delinquent at the point of dagger. The disciplinary authority thus in respect of charge No. 3 has really differed from the finding of the Inquiry Committee to that extent without referring to any evidence or assigning any reason. The disciplinary authority thus in respect of charge No. 3 has really differed from the finding of the Inquiry Committee to that extent without referring to any evidence or assigning any reason. In our view, on such ground alone the entire 2nd Show Cause notice is liable to be set aside, as it is not possible to ascertain for the Court as to whether the punishment of removal would have been proposed by the disciplinary authority even if charge No. 3 would have been found not to have been proved or only a part of charge No. 3 would have been found to have been proved. ( 11 ) IT has been contended by Mr. Ghosh on behalf of the respondents that in any event the writ petition and the appeal have become infructuous as after the issue of the aforesaid 2nd Show Cause Notice a final order was passed by the disciplinary authority removing the appellant from service; but such final order of removal was not challenged in the writ petition. The appellant, however, has contended that such purported order of removal was never served upon the writ petitioner and therefore the same never took effect and was inoperative. In this connection Mr. Moitra has relied on the decisions of the Supreme Court in the case of State of Punjab v. Amar Singh Harika, reported in AIR 1966 Supreme Court page 1313 and also on the Division Bench decision of our Court in the case of Umasankar Chatterjee v. Union of India and Ors. reported in 1982 Labour and Industrial Cases page 1361 and has submitted that unless an order of dismissal or removal is communicated, the same cannot take any effect. Mr. Moitra has further submitted the fact that such alleged order of removal did not take any effect and was also not acted upon by the respondents themselves would be evident from the fact that till date the appellant is being paid subsistence allowance. Mr. Ghosh has not denied such fact of payment of subsistence allowance by the respondents to the appellants till date although he tried to justify the same contending inter alia that since the appeal was pending, such subsistence allowance was being paid by the respondents. ( 12 ) WE are unable to accept the contention of Mr. Ghosh. Mr. Ghosh has not denied such fact of payment of subsistence allowance by the respondents to the appellants till date although he tried to justify the same contending inter alia that since the appeal was pending, such subsistence allowance was being paid by the respondents. ( 12 ) WE are unable to accept the contention of Mr. Ghosh. Admittedly, after the writ petition was dismissed by the Trial Court, there was no interim order and therefore the respondents could not have continued to pay subsistence allowance to the appellants unless and until they themselves did not give any effect to the order of removal which was purportedly passed by the disciplinary authority. That apart from the original records produced by Mr. Ghosh it appears that the order of removal was not served upon the appellant. The registered envelope purportedly containing the said order of removal was returned unserved with an endorsement of the postal peon that the appellant was not available at the concerned address and was reportedly out of station. It cannot therefore, be said that the same was good service. In that view of the matter that the respondent might have hung up such order of removal in the office, as alleged, would not constitute service of such order upon the respondent in absence of any rule permitting such service and particularly in view of the fact that the respondent themselves did not act upon the same and are still going on paying subsistence allowance to the appellant. ( 13 ) IN the result, the appeal is allowed and the judgment and order under appeal is set aside. The writ petition is allowed. The 2nd Show Cause Notice dated December 10, 1981 being annexure I to the writ petition as also the order of deeming suspension contained in order No. 439 of 1981 dated 31. 7. 81 passed by the respondent no. 1 being annexure "h" to the writ petition and final order of removal, if any, are quashed, let appropriate writ be issued. ( 14 ) THE disciplinary authority, however, would be at liberty to issue a fresh 2nd Show Cause Notice proposing a punishment tentatively, if after applying his mind to the evidence and material on record and the enquiry report in respect of each of the charges comes to a provisional and tentative finding that the appellant is guilty of the alleged misconduct. ( 15 ) THE respondent shall reinstate the appellant in service forthwith and shall pay to the appellant, within three months from date, his full salary and all other service benefits, to which he would have been entitled, had he not been removed from service by the previous order dated 22. 2. 76 and put under deeming suspension by the order dated 31. 7. 81 after adjustment of the amount already paid to the appellant towards subsistence allowance. There will be no order as to cost. P. K. Majumdar, J.-I agree. Appeal allowed. .