Judgment :- K. Chandru, J. This writ appeal is directed against the order of the learned single Judge dated 110. 2006 made in M.P.No.1 of 2006 in W.P.No.21262 of 2006. 2. Since the writ appeal is directed against the interim order passed in the W.P.No.21262 of 2006, with the consent of the parties, the main writ petition itself is taken up for hearing. 3. The arraignment of parties both in the writ appeal and the writ petitions is same, they are referred to as the petitioner and the respondent respectively. 4. We have heard Mr.Shahul Hameed, learned counsel appearing for the writ petitioner / appellant and Mr.Raja Kalifulla, learned Government Pleader taking notice for the respondent and have perused the records. 5. W.P.No.21262 of 2006 is directed against the order dated 35. 2006 passed by the respondent removing the petitioner from service. The petitioner was serving as Village Administrative Officer in various villages in Dharmapuri District and his date of retirement was 28.02.2005. On the date of retirement, he served at Jittandhalli village, Palacode Taluk. Originally, the Revenue Divisional Officer, Krishnagiri dismissed the petitioner from service on 16. 1997 on certain irregularities in the matter of free distribution of dhoties and sarees to the poor people in the village. The petitioner challenged the said order of dismissal before the Tamil Nadu Administrative Tribunal in application being O.A.No.5565 of 1998 and the same was allowed by the Tribunal vide order dated 012. 2001 and the petitioner was directed to be reinstated in service with all consequential monetary as well as service benefits. The Tribunal found that there was no material evidence against the involvement of the petitioner in the scam. The Revenue Divisional Officer, Krishnagiri gave effect to the said order vide proceedings dated 25.02.2002 and accordingly, the petitioner joined duty on 27.02.2002 as Village Administrative Officer in Panchapalli village. The salary for the interregnum period was also paid. Thereafter, the petitioner was transferred to Jittandhalli village. After a lapse of two years, the respondent issued a proceedings dated 110. 2004 to recover a sum of Rs.92,878/- from the petitioner with an accumulated interest of Rs.51,206/-. The order further directed the Tahsildar to recover a sum of Rs.3,000/- per month from the salary of the petitioner and the balance to be recovered from the terminal benefits payable to him. .6. 2004 to recover a sum of Rs.92,878/- from the petitioner with an accumulated interest of Rs.51,206/-. The order further directed the Tahsildar to recover a sum of Rs.3,000/- per month from the salary of the petitioner and the balance to be recovered from the terminal benefits payable to him. .6. It was the grievance of the petitioner that the allegations which are made against him for passing the impugned order were identical to that of the allegations made earlier and which were also quashed by the Tribunal. The petitioner challenged the said order of recovery in a writ petition being W.P.No.32806 of 2004. This Court granted an interim stay on 11. 2004 in W.P.M.P.No.39706 of 2004 and the same is pending. As the petitioner was to retire on 28.02.2005 on attaining the age of 58 years, a charge memo was issued to him on 25.02.2005 under Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules. Consequent on the framing of charges, just two days prior to his retirement, he was also not permitted to retire from service on 28.02.2005 and he was kept under suspension pending an enquiry. 7. The petitioner also filed a writ petition being W.P.No.26624 of 2005 challenging the order of not permitting him to retire from service and this Court, by an order dated 23. 2006 directed the respondent to pass final orders in the Disciplinary Proceedings initiated against the petitioner within a period of six weeks from the date of receipt of the said order. .8. The petitioner also filed another writ petition being W.P.No.30143 of 2005 challenging the charges framed by the respondent by order dated 25.02.2005. The said writ petition was admitted by this Court on 110. 2005 and the same is pending. However, after filing of the writ petition, the respondent appointed the Special Tahsildar (G.R.), Palacode, as Enquiry Officer. The Special Tahsildar only examined the petitioner and did not examine any other witness in support of the charges. He also stated that there was no evidence on the side of the defence. 2005 and the same is pending. However, after filing of the writ petition, the respondent appointed the Special Tahsildar (G.R.), Palacode, as Enquiry Officer. The Special Tahsildar only examined the petitioner and did not examine any other witness in support of the charges. He also stated that there was no evidence on the side of the defence. Thereafter, the Enquiry Officer recorded a finding on the basis of the explanation submitted by the petitioner and the examination of records and if it is translated, it will read as follows: ."If there is any misappropriation the same would have been found out during inspection of land tax notice, collection and pending accounts and No.13 register or during Jamapandi audit conducted for the past five years. Further, if the officer had not handed over the receipt books the successor would have reported the same immediately to the higher officials, but no such report had been found. The list of handing over the receipt books of Panjapalli, Jittandahalli and Elmichanna halli villages has been filed. Therefore, the charges are not proved." .9. The Enquiry Report dated 110. 2005 was sent to the respondent by a covering letter of the same day. Instead of taking action on the basis of the enquiry report, the respondent strangely appointed another enquiry officer viz., Regional Deputy Tahsildar, Palacode - 2, for conducting enquiry stating that a detailed enquiry should be conducted by him. This procedure is not contemplated either in the Rules applicable to disciplinary action or in any Service Rules. If the Officer is not satisfied with the enquiry report submitted by the Enquiry Officer, he can only disagree with the same and give reasons therefore and ask for the explanation of the charged officer and thereafter, proceed accordingly. Or, in the alternative, if the charged officer filed an appeal against the punishment imposed on him, the appellate authority may consider the validity of the enquiry and can set aside the said enquiry and order for de nova proceedings. However, the Enquiry Officer recorded a finding that the petitioner did not appear for enquiry before the Officer and, therefore, all the charges were proved against him. 10. However, the Enquiry Officer recorded a finding that the petitioner did not appear for enquiry before the Officer and, therefore, all the charges were proved against him. 10. The Enquiry Officer merely held that since the petitioner has not disproved the charges and has not produced any documentary evidence and there was no evidence to prove his innocence, the explanation submitted by him cannot be accepted and, therefore, the charges framed against him are found to be proved beyond reasonable doubt. Very strangely, the same Enquiry Officer also stated that it is the duty of the delinquent to disprove the charges with relevant documentary evidence and to prove his innocence. On the basis of the newly acquired report, the respondent passed the present order agreeing with the said report and removed him from service. It is this order, which is challenged in the present writ petition. .11. The learned counsel appearing for the petitioner submitted that there was no power on the part of the respondent to order for a fresh enquiry especially when the petitioner was found innocent by the Enquiry Officer in the earlier enquiry. If for any reason, the respondent wants to proceed against the petitioner, he can only disagree with the finding of the Enquiry Officer and after proper show cause notice, he can proceed with the file and pass appropriate orders. Hence, under Service Rules, there is no scope for the competent authority to order for fresh enquiry when the first enquiry held in tact. In the alternative, he submitted that in the present enquiry on which the impugned order is passed, no witness was examined and the entire burden of proof was shifted to the petitioner, who was charge sheeted Officer and in the normal course, in any departmental proceedings, it is for the Department to prove the charges. The burden of proof cannot be shifted to the charged officer. The learned counsel also stated that if the respondent decided to proceed against the petitioner at the tail end of his service in respect of charges of more than ten years old and denying him the right to retire, it is nothing but an arbitrary exercise of power on the part of the respondent. 12. However, Mr. The learned counsel also stated that if the respondent decided to proceed against the petitioner at the tail end of his service in respect of charges of more than ten years old and denying him the right to retire, it is nothing but an arbitrary exercise of power on the part of the respondent. 12. However, Mr. Raja Kalifulla, learned Government Pleader, stated that since the first enquiry was perfuntory, the respondent has ordered for second enquiry in which the petitioner did not participate and, therefore, there was nothing wrong in the procedure adopted by the respondent. 13. The impugned order removing the petitioner from service on the basis of the second enquiry conducted by them is erroneous, illegal and not supported by any evidence. This is especially, in the context when the first enquiry report was given with a finding that the petitioner was not guilty and no one has made any complaint about the procedure followed in the said enquiry. Under these circumstances, the only course open to the respondent is to disagree with the said enquiry report and proceed further on the basis of the material available. 14. Even with respect to the second contention raised by the learned counsel appearing for the petitioner that the burden of proof has been shifted on the petitioner to disprove the charges, we hold that such an action cannot be sustained in the light of the judgment of the Supreme Court reported in AIR 1963 SC 1719 [Meenglas Tea Estate v. The Workmen] wherein the Supreme Court has clearly laid down in paragraph 4 as follows: (4) The Tribunal held that the enquiry was vitiated because it was not held in accordance with the principles of natural justice. It is contended that this conclusion was erroneous. But we have no doubt about its correctness. The enquiry consisted of putting questions to each workman in turn. No witness was examined in support of the charge before the workman was questioned. It is an elementary principle that a person who is required to answer a charge must know not only the accusation but also the testimony by which the accusation is supported. He must be given a fair chance to hear the evidence in support of the charge and to put such relevant questions by way of cross-examination as he desires. It is an elementary principle that a person who is required to answer a charge must know not only the accusation but also the testimony by which the accusation is supported. He must be given a fair chance to hear the evidence in support of the charge and to put such relevant questions by way of cross-examination as he desires. Then he must be given a chance to rebut the evidence led against him. This is the barest requirement of an enquiry of this character and this requirement must be substantially fulfilled before the result of the enquiry can be accepted. A departure from this requirement in effect throws the burden upon the person charged to repel the charge without first making it out against him. In the present case neither was any witness examined nor was any statements made by any witness tendered in evidence." 15. In the decision reported in AIR 1963 SC 1914 [Sur Enamel and Stamping Works ltd. v. The Workmen], the Supreme Court in paragraph 4 held as follows: "....... An enquiry cannot be said to have been properly held unless, (i) the employee proceeded against has been informed clearly of the charges levelled against him, (ii) the witnesses are examined-ordinarily in the presence of the employee-in respect of the charges, (iii) the employee is given a fair opportunity to cross-examine witnesses, (iv) he is given a fair opportunity to examine witnesses including himself in his defence if he so wishes on any relevant matter, and (v) the enquiry officer records his findings with reasons for the same in his report. In the present case the persons whose statements made behind the backs of the employees were used by the enquiring authority were not made available for cross-examination but it would appear that they we not even present at the enquiry. It does not even appear that these reports were made available to the employee at any time before the enquiry was held. Even if the persons who made the reports had been present and the employee given an opportunity to cross-examine them, it would have been difficult to say in these circumstances that this was a fair and sufficient opportunity. But in this case it appears that the persons who made the reports did not attend the enquiry at all. Even if the persons who made the reports had been present and the employee given an opportunity to cross-examine them, it would have been difficult to say in these circumstances that this was a fair and sufficient opportunity. But in this case it appears that the persons who made the reports did not attend the enquiry at all. From whatever aspect the mater is examined it is clear that there was no enquiry worth the name and the Tribunal was justified in entirely ignoring the conclusion reached by the domestic Tribunal." 16. However, in the present case, we are not going into the merits of the second enquiry and that whether the findings recorded in the second enquiry is correct or not as we are of the opinion that ordering for second enquiry itself is illegal and unsustainable. 17. In the light of the above, we have no hesitation in quashing the order dated 35. 2006 passed by the respondent. Accordingly, W.P.No.21262 of 2006 shall stand allowed and the order dated 35. 2006 passed by the respondent will stand set aside. However, there will be no order as to costs. 18. The other writ petition being W.P.No.30143 of 2005 wherein the petitioner is challenging the charge memo dated 25.02.2005, has become infructuous in view of the fact that the subsequent writ petition being W.P.No.21262 of 2006 has been allowed by this Court quashing the final order. Accordingly, W.P.No.30143 of 2005 shall stand dismissed as infructuous. Consequently, W.P.M.P.No.33031 of 2005 will also stand dismissed. However, there will be no order as to costs. 19. Normally, when this Court quashes the order of removal on the basis of the enquiry not being valid and proper, liberty is given to the respondent to proceed afresh. However, in the present case, considering the fact that the petitioner had retired from service as early as February 2005 and considering the fact that the Enquiry Officer in the first enquiry found the petitioner innocent, we do not propose to give any further liberty so as to harass the petitioner that too, for the charge, which is as old as ten years. The Department should have been prudent enough to proceed against the employees immediately on commission of any irregularity or misconduct and cannot wait eternally, that too, till the petitioner reaches the age of superannuation, to proceed against him and as in the present case, and in order to somehow found him guilty ordered for a second enquiry in which no evidence has been recorded. Hence, no such liberty is given to the respondent to proceed afresh and we hereby declare that the petitioner is deemed to have retired on 28.02.2005 reaching the age of superannuation. The respondent is directed to process the papers relating to the payment of his full pension and other terminal benefits in accordance with law within a period of two weeks from the date of receipt of a copy of this order. 20. Since W.P.No.21262 of 2006 itself is being allowed, no further orders are necessary in W.A.No.127 of 2007 and, therefore, the same is dismissed as unnecessary. There will be no order as to costs.