JUDGMENT 1. - This writ petition has been filed challenging the order of dismissal of the petitioner, who was serving as Constable with Police Line, Jaipur Rural, Jaipur. He was served with the charge-sheet on 31.12.1989 on two allegations. Charge No. 1 was to the effect that he wilfully absented from duties for the period between 01.06.1989 to 30.07.1989 for 39 days. Charge No. 2 was to the effect that in the past also, he had absented from duties for 662 days on as many as 48 occasions and was penalised seven times in proceedings under Rule 17 of the Rajasthan Civil Services (Classification, Control & Appeal) Rules, 1958. He did not improve himself, thus, showing that he had no interest in the Government service. 2. The enquiry officer in his report submitted on 31.12.1989, on Charge No. 1, concluded that though the absence of the petitioner for 39 days was proved but he was also able to prove that he was during relevant period sick. Even then he should not have absented from duties without getting the leave duly sanctioned. Charge No. 1 was thus found partially proved against the petitioner. As regards Charge No. 2, the enquiry officer recorded the finding that though it was correct that the petitioner had remained absent on earlier occasions but he could not be held guilty and penalised for this charge again as the same would tantamount to double jeopardy and would be hit by Article 20(2) of the Constitution of India. The disciplinary authority however in his order dated 27.01.1990 did not fully agree with the conclusions arrived at by the enquiry officer and found both the charges proved against the petitioner and thus, finally dismissed him from service. Petitioner filed appeal against the order of dismissal before the Deputy Inspector General of Police, which was dismissed vide order dated 18.06.1990. Petitioner then filed review petition before the Governor of the State of Rajasthan. The review petition was allowed in part and the order passed by the Deputy Inspector General of Police was set-aside with direction that petitioner shall be supplied copy of the enquiry report and upon receipt of copy of the enquiry report, he would be at liberty to submit a fresh representation. 3. Copy of the enquiry report was thereafter supplied to the petitioner. 3. Copy of the enquiry report was thereafter supplied to the petitioner. His appeal was then again heard and dismissed by the Deputy Inspector General of Police vide order dated 20.08.1994. Aggrieved by all the aforesaid orders, petitioner has filed the present writ petition. 4. Shri Lokesh Kumar Sharma, Learned Counsel for the petitioner has argued that the reviewing authority committed illegality in remanding the matter to the appellate authority when it found that prejudice was caused to the petitioner by non-supply of enquiry report particularly when severe penalty of dismissal was imposed upon him. Proper course for him was to remand the matter to the disciplinary authority and not just to the appellate authority. Learned Counsel in this connection has relied on the Constitution Bench judgment of Supreme Court in Managing Director, ECIL, Hyderabad, etc. etc. v. B. Karunakar,, AIR 1994 SC 1074 and Union of India v. Mohd. Ramzan Khan,, AIR 1991 SC 471 . Learned Counsel submitted that the disciplinary authority not only awarded penalty of dismissal without supplying the copy of the enquiry report to the petitioner but also he differed with the findings recorded by the enquiry officer substantially on both the charges. Learned Counsel submitted that if the disciplinary authority wanted to differ from the view taken by the enquiry officer, it was incumbent upon him to serve upon the petitioner notice of dissent. Order of penalty is therefore liable to be set-aside on both the counts. Learned Counsel further argued that when already on earlier seven occasions, the petitioner had been penalised by awarding penalties for the same period of absence and the period of absence was regularised by granting leave, the same could not be again made subject-matter of a fresh charge-sheet and on that basis, petitioner could not be again penalised. Finding of the enquiry officer to this effect was wrongly dissented by the disciplinary authority. This amounted to double jeopardy and would be hit by Article 20(2) of the Constitution of India. In support of his argument, learned Counsel for the petitioner has placed reliance upon the Division Bench judgment of this Court in Datar Singh v. State of Rajasthan and Ors. RLR 1989(1) 756. This amounted to double jeopardy and would be hit by Article 20(2) of the Constitution of India. In support of his argument, learned Counsel for the petitioner has placed reliance upon the Division Bench judgment of this Court in Datar Singh v. State of Rajasthan and Ors. RLR 1989(1) 756. Lastly and alternatively, learned Counsel submitted that if Charge No. 2 is ignored, the absence of period of 39 days by itself may not justify the penalty of dismissal although it may merit some other penalty. Penalty of dismissal at any rate could not be justified. For mere absence of 39 days, penalty of dismissal was too harsh and grave and wholly disproportionate to the gravity of charge proved. This aspect of the matter has completely been lost sight of both, by the disciplinary authority as well as the appellate authority. The impugned-order of penalty is therefore liable to be set-aside. 5. Shri Hemant Gupta, learned Additional Government Counsel has opposed the writ petition and submitted that the enquiry officer in substance found both the charges proved against the petitioner. Though the findings recorded thereupon may not have been happily worded. It was argued that as far as Charge No. 1 is concerned, the enquiry officer merely observed that illness of the petitioner was proved but at the same time, he recorded that petitioner should not have absented from duty without prior sanction of the leave. For the second charge though he found that on earlier occasions also petitioner had remained absented from duties but that part of the finding where he stated that petitioner could not have again been penalised for the same period of absence for which he was earlier penalised because the same would tantamount to double jeopardy and be hit by Article 20(2) of the Constitution of India, was only a statement of opinion on his part and not a finding. Learned Counsel submitted that the reviewing authority remitted the matter in view of the judgment of Supreme Court in Mohd.Ramzan Khan supra for non-supply of copy of the enquiry report and when the enquiry report was actually supplied to the petitioner, mere remand of the matter to the appellate authority would not prejudice the petitioner in any manner because in any case the appellate authority has again applied its mind to all the material and found the charges proved as also the penalty of dismissal justified. The impugned-order is just and proper and not open to interference by this Court. 6. I have given my anxious considerations to the arguments aforesaid and perused the material on record as well as the cited case law on the subject. 7. I shall proceed to examine the first argument first. Petitioner when he earlier filed appeal before the appellate authority, his appeal was dismissed vide order dated 18.6.1990 where-against he approached the Governor of the State by filing review petition. A perusal of the order passed by the reviewing authority dated 13.07.1993 indicates that the reviewing authority considered this aspect in detail. It was noticed that petitioner had raised objection with regard to non-supply of the enquiry report even before the appellate authority and the appellate authority has noticed this argument in para 5 of its order dated 18.06.1990 but no finding has been given on that aspect. The reviewing authority was convinced that non-supply of enquiry report has prejudiced the petitioner which was very necessary keeping in view the principles of natural justice and due process of law. The reviewing authority, however, merely directed the copy of enquiry report to be furnished to the petitioner and remanded the matter to the appellate authority. This was wholly unreasonable and unacceptable course adopted by the reviewing authority. If at all the reviewing authority was satisfied that non-supply of the enquiry report prejudiced the petitioner, the proper course for him was to have remanded the matter to the disciplinary authority by setting aside the order of penalty with direction to supply copy of enquiry report. The enquiry report is intended to be supplied to the delinquent so that he may represent against the findings recorded therein. Due to non-supply of copy of enquir report, he remained unaware about such findings and was unable to represent the matter before the disciplinary authority. The enquiry report is intended to be supplied to the delinquent so that he may represent against the findings recorded therein. Due to non-supply of copy of enquir report, he remained unaware about such findings and was unable to represent the matter before the disciplinary authority. In the present case, the prejudice is writ large because the enquiry officer has held both the charges partially proved and partially not proved. Had the enquiry report been timely supplied to the petitioner, he would have been in a position to effectively represent his case before the disciplinary authority. 8. Coming now to the next argument, finding that the enquiry office on both the charges as has been noticed above, has recorded part finding favourable to the petitioner namely; that he was able to prove that he was sick for the period of absence and that in so far as earlier period of absence is concerned, he could not be again penalised, as this would amount to punishing him again for the same charges for which he had been earlier penalised and this would be hit by principles of double jeopardy as envisaged in Article 20(2) of the Constitution of India. The disciplinary authority has certainly committed a grave error of law in not serving upon the petitioner notice of dissent. Supreme Court in S.B.I. and Ors. v. Arvind Kumar Shukla, AIR 2001 SC 2398 held that if the disciplinary authority disagree with the conclusions or the findings arrived at by the enquiry officer, it is required to give reasons for disagreement, which should be furnished to the delinquent enabling him to represent before the ultimate finding is recorded by the disciplinary authority. Non furnishing reasons to the delinquent vitiates the order of dismissal. 9. The Division Bench of this Court in Datar Singh (supra) was dealing with a case where charge was for absence on various dates. Period of all such absence had already been regularised by grant of extraordinary leave in respect of such absence much prior to issuance of the charge-sheet. It was held that granting leave due of whatever nature, tantamounts to regularising absence. After such regularisation, no action could be taken afresh. 10. Period of all such absence had already been regularised by grant of extraordinary leave in respect of such absence much prior to issuance of the charge-sheet. It was held that granting leave due of whatever nature, tantamounts to regularising absence. After such regularisation, no action could be taken afresh. 10. In view of the findings on first charge, the argument that the penalty of dismissal for the period of 39 days was wholly disproportionate to the gravity of the charge proved, need not be examined, although on facts it does appear that charge of absence of 39 days would not justify grave penalty of dismissal or removal. 11. In view of the aforesaid discussion, this writ petition is allowed. The impugned-order of dismissal dated 27.01.1990 and the order dated 20.08.1994 by which appeal was dismissed, are quashed and set-aside. Petitioner is held entitled to reinstatement as well as consequential benefits. The matter is remanded back to the disciplinary authority with the liberty to furnish notice of dissent to the petitioner as well as copy of the enquiry report and proceed in the matter afresh in accordance with law. Petitioner shall be entitled to reinstatement but for the intervening period from the date of dismissal till his actual reinstatement, he shall only be deemed to have continued under suspension. The disciplinary authority would then be free to pass fresh order of penalty except the order of dismissal or removal. Compliance of the judgment shall be made within a period of three months from the date of production of its certified copy before the respondents.Writ Petition Allowed. *******