JUDGMENT By the Court.—This appeal questions the correctness of the decision of a learned Single Judge in a writ petition filed by the appellant challenging the imposition of recovery of a certain amount on alleged charges of misappropriation and embezzlement. The petition failed upon a finding that it was devoid of merits, hence this appeal. 2. The appellant is a tube-well operator working under the authority of the Executive Engineer, Tube-well Division-II, Head Office Salempur, District Deoria. The appellant was suspended on three charges, vide order dated 6th January, 2001. The suspension order recites that under the Maternity Benefit Scheme, a sum of Rs. 12,700/- had not been distributed and had been misappropriated. Similarly an amount of Rs. 1,49,500/- for the Girl Child Development Scheme was also misappropriated. The third allegation was that under the Jawahar Rojgar Scheme, the proposed constructions to a certain extent were not carried out and an amount of Rs. 2,44,000/- for the said purpose was embezzled. 3. The suspension order simultaneously appoints Mr. K.P. Dwivedi, the District Agricultural Officer, Deoria as an Enquiry Officer to conduct the enquiry. 4. The appellant appears to have moved an application on 22nd January, 2001 for change of the Enquiry Officer on certain allegations. The petitioner was served with a charge-sheet dated 25th January, 2001 calling upon him to submit his reply. 5. During the pendency of this appeal, we had directed the learned Standing Counsel to produce the original records, which has been placed before us. 6. From a letter dated 27th June, 2001 available in the records, it appears that Mr. K.P. Dwivedi, Enquiry Officer, had been transferred and consequently, the Executive Engineer sent the said letter, calling upon the District Agricultural Officer to proceed with the enquiry against the appellant and the appellant was called upon to submit his reply to the charges to the said authority. 7. The enquiry report was submitted by the succeeding Enquiry Officer Mr. Amar Deo Singh on 18th July, 2001 and the appellant was found guilty of the charges of having misappropriated a sum of Rs. 2,300/- only. The Enquiry Officer further suggested that the appellant should be issued an warning. The said enquiry report was submitted before the Executive Engineer, who forwarded the same to the Chief Development Officer, Deoria for approval and appropriate action. 8. 2,300/- only. The Enquiry Officer further suggested that the appellant should be issued an warning. The said enquiry report was submitted before the Executive Engineer, who forwarded the same to the Chief Development Officer, Deoria for approval and appropriate action. 8. The report appears to have been placed before the then District Magistrate (In-charge) who passed an order on 24th October, 2001 that the enquiry had been entrusted to Mr. K.P. Dwivedi and, therefore, the report submitted by Sri Amar Deo Singh, District Agricultural Officer was sheer non-sense and is a concocted story. He further opined that the original documents are not appended to the file. It was also stated therein that there are no details as to when the Maternity Benefit Scheme or the Girl Child Development Scheme were implemented, and in case the implementation has been carried out after the suspension of the appellant, then the guilt is established. The logic given in support of this conclusion is that, if a thief is caught and he then returns back the stolen property, he cannot absolve himself of the guilt. He, therefore, directed that Mr. Vijay Nath Mishra, Assistant Director (Savings), who is an honest officer should be asked to conduct the enquiry against the appellant. 9. The appellant filed Civil Misc. Writ Petition No. 35581 of 2001 for quashing of the suspension order dated 6th January, 2001, which was disposed of on 8th November, 2001 with a direction to the Executive Engineer to complete the departmental proceedings. 10. A notice was issued to the appellant on 7.2.2002 calling upon him to show-cause and to submit a reply. The said show-cause notice recites that the District Magistrate/Chief Development Officer vide note dated 24.10.2001 had disagreed with the earlier enquiry report whereafter an enquiry was got conducted through Sri Vijay Nath Misra. The appellant on 15th February, 2002 wrote a letter to the disciplinary authority namely the Executive Engineer that the said show-cause notice cannot be replied unless the appellant is provided opportunity to inspect the entire file as he was not aware of the second enquiry having been set up and conducted through Dr. Vijay Nath Mishra. 11. The reply was submitted on 19th February, 2002 whereafter the Executive Engineer passed the order dated 29th April, 2002 holding that the appellant was guilty of having misappropriated an amount of Rs. Vijay Nath Mishra. 11. The reply was submitted on 19th February, 2002 whereafter the Executive Engineer passed the order dated 29th April, 2002 holding that the appellant was guilty of having misappropriated an amount of Rs. 4,77,325, hence the same should be realized from him @ Rs. 3,500/- per month to be deducted from his salary in installments. This order was assailed by the appellant in the writ petition giving rise to the present appeal and an interim order was passed on 14.6.2002 staying the recovery proceedings. 12. The respondents filed a counter-affidavit through the Executive Engineer. The stand taken by the respondents is that the reply to the show-cause notice given by the petitioner was not found to be satisfactory and the subsequent enquiry which was conducted established that the appellant was guilty of misappropriation. In paragraph 15 of the counter-affidavit, it was categorically stated that in view of the reply submitted by the appellant to the enquiry proceedings conducted earlier, and the reply to the show-cause notice, it was not necessary to associate the appellant with the subsequent enquiry proceedings. It has further been averred therein that the enquiry report and the evidence in support thereof is confidential and, therefore, there was no obligation to disclose the same to the appellant. 13. The writ petition was dismissed holding that since the appellant had been given an opportunity to show-cause and, therefore, the argument that the appellant was not given any opportunity is not correct. 14. Learned counsel for the appellant submits that the learned Single Judge committed a manifest error in disposing of the matter without adverting to the facts in relation to the second enquiry that was conducted and has, therefore, misdirected himself on the said issue resulting in miscarriage of justice. He submits that the impugned judgment having proceeded on erroneous assumptions deserves to be set aside. 15. He further submits that Rule 9 of the Uttar Pradesh Government Servant (Discipline and Appeal) Rules, 1999 (hereinafter referred to as ‘the 1999 Rules’) has not been followed and the entire subsequent enquiry proceedings are vitiated. He submits that the impugned judgment having proceeded on erroneous assumptions deserves to be set aside. 15. He further submits that Rule 9 of the Uttar Pradesh Government Servant (Discipline and Appeal) Rules, 1999 (hereinafter referred to as ‘the 1999 Rules’) has not been followed and the entire subsequent enquiry proceedings are vitiated. It is urged that the subsequent enquiry proceedings are an outcome of the mala fides of the then District Magistrate (In-charge), who for no valid reason got another enquiry conducted without associating the appellant with the same, and relying on the subsequent enquiry report, the impugned order has been passed, which is in violation of principles of natural justice. 16. Learned counsel for the appellant submits that the copy of the enquiry report was not given to the appellant and apart from that, in view of there being a substantive departure from the rules and procedure, the entire action smacks of arbitrariness. He submits that there was no occasion for any re-enquiry in the circumstances as indicated in the order dated 24th October, 2001. The learned Single Judge did not appreciate the controversy in correct perspective and has wrongly applied the ratio of the decisions referred to in the judgment. 17. Mr. M.S. Peparsenia, learned Standing Counsel submits that the appellant had been given full opportunity to contest the charges and the District Magistrate (In-charge) was justified in ordering a re-enquiry keeping in view the fact that the enquiry report submitted earlier was not found to be credit worthy. He submits that on merits, it is evident that the appellant was guilty of the charges even on the basis of the earlier report and hence, the appellant deserved to be punished. His contention is that the subsequent enquiry is not vitiated and is founded on the same material, which existed at the time of the first enquiry. The appellant having failed to give any satisfactory reply to the conclusions arrived at by the authority the order of recovery cannot be faulted with. 18. Having heard learned counsel for the parties, it would be apt to quote Rule 9 of the 1999 Rules to reflect the procedure applicable to an enquiry against a Government servant : “9. Action on Inquiry Report. 18. Having heard learned counsel for the parties, it would be apt to quote Rule 9 of the 1999 Rules to reflect the procedure applicable to an enquiry against a Government servant : “9. Action on Inquiry Report. (1) The disciplinary authority may, for reasons to be recorded in writing, remit the case for re-inquiry to the same or any other Inquiry Officer under intimation to the charged Government servant. The Inquiry Officer shall thereupon proceed to hold the inquiry from such stage as directed by the disciplinary authority, according to the provisions of Rule 7. (2) The disciplinary authority, if it disagrees with the findings of the Inquiry Officer on any charge, record its own findings thereon for reasons to be recorded. (3) In case the charges are not proved, the charged Government servant shall be exonerated by the disciplinary authority of the charges and inform him accordingly; (4) If the disciplinary authority having regard to its findings on all or any of charges is of the opinion that any penalty specified in Rule 3 should be imposed on the charged Government servant, he shall give a copy of the inquiry report and his findings recorded under sub-rule (2) to the charged Government servant and require him to submit his representation if he so desires, within a reasonable specified time. The disciplinary authority shall, having regard to all the relevant records relating to the the inquiry and representation of the charged Government servant, if any, and subject to the provisions of the Rule 16 of these rules, pass a reasoned order imposing one or more penalties mentioned in Rule 3 of these rules and communicate the same to the charged Government servant.” 19. The facts in this case disclose that the appellant was subjected to a disciplinary enquiry under the suspension order dated 6th January, 2001 and Mr. K.P. Dwivedi was appointed as an Enquiry Officer. From the records produced by the learned Standing Counsel and the letter dated 27th June, 2001, it is clear that the appointment of the Enquiry Officer was objected to by the appellant with a request to appoint somebody else as an Enquiry Officer. However, before the said application could be disposed of, Mr. K.P. Dwivedi, Enquiry Officer had already been transferred and Mr. Amar Deo Singh had taken over charge as the District Agricultural Officer. 20. However, before the said application could be disposed of, Mr. K.P. Dwivedi, Enquiry Officer had already been transferred and Mr. Amar Deo Singh had taken over charge as the District Agricultural Officer. 20. A perusal of the said letter further indicates that the appellant was directed to submit his reply before the District Agricultural Officer as his application for change of Enquiry Officer became infructuous on the ground of transfer of the early Enquiry Officer Mr. K.P. Dwivedi. This document, therefore, establishes that the District Agricultural Officer was appointed as an Enquiry Officer to proceed with the matter and the same also stands corroborated by the averments contained in Para 5 of the counter-affidavit to the writ petition. 21. Upon submission of the reply, the enquiry was completed by Mr. Amar Deo Singh, Enquiry Officer who submitted his report on 18th July, 2001 and recommended a recovery of Rs. 2,300/- with a warning to be issued to the appellant in order to avoid any further repetition of such acts. The said report appears to have been placed before the Executive Engineer, who is the disciplinary authority and instead of proceeding on the same, the said report was forwarded to the Chief Development Officer for approval and appropriate action. The matter travelled up to the District Magistrate (In-charge) who expressed his anguish in the order dated 24th October, 2001 as noted above and ordered a fresh enquiry. 22. In our considered opinion and keeping in view the provisions of Rule 9 of the 1999 Rules, the reasons to be recorded for holding a re-enquiry have to be founded on some valid criteria. In the instant case, the District Magistrate (In-charge) has opinionated that the enquiry had been entrusted to Mr. K.P. Dwivedi and, therefore, no other officer should have conducted the enquiry. He described the enquiry report of Mr. Amar Deo Singh dated 18th July, 2001 as sheer non-sense tailored to suit the appellant and that it is a piece of story writing. To our mind, the first reason given that the enquiry had been entrusted to Mr. K.P. Dwivedi and not to Mr. Amar Deo Singh is against records. From the letter dated 27th June, 2001, it is more than clear that the appellant had objected to Mr. K.P. Dwivedi being appointed as an Enquiry Officer and a request had been made to change him. K.P. Dwivedi and not to Mr. Amar Deo Singh is against records. From the letter dated 27th June, 2001, it is more than clear that the appellant had objected to Mr. K.P. Dwivedi being appointed as an Enquiry Officer and a request had been made to change him. Before the said application could be disposed of, Mr. Dwivedi had already been transferred without submitting any enquiry report and by the same order dated 27th June, 2001 of the Executive Engineer, the then District Agricultural Officer, Mr. Amar Deo Singh, was directed to conclude the enquiry after receiving the reply of the appellant. Thus, Mr. Amar Deo Singh was fully authorized under a valid order to proceed to hold the enquiry, which aspect has been completely overlooked by the then District Magistrate (In-charge) while passing the order on 24th October, 2001. The disagreement on this count is, therefore, without any basis. 23. The second reason given is that the file did not contain the original records. It is surprising as to why, without looking to the original records the District Magistrate (In-charge) proceeded to order a re-enquiry which reflects non-application of mind. 24. The third reason given that the enquiry report of Mr. Amar Deo Singh is sheer non-sense and is a story to set up to shield the appellant, is also an irrational conclusion without referring to any part of the enquiry report. To describe the document as sheer non-sense, appears to be a rash decision, which reflects non-application of mind and is founded on mere anguish and anger. It is well said that the anger is the enemy of reason. 25. Lastly the disagreement appears to be not recorded in accordance with Rule 9 of the 1999 Rules, inasmuch as, it is founded on surmises, namely that if the schemes have been implemented by the appellant after his suspension then the guilt is established. There is nothing indicated in the impugned order about any such implementation having been carried out after the suspension as alleged, and which was also stands corroborated as the order was passed in the absence of the original file. The conclusion drawn that if a thief is caught with stolen goods, then subsequent return of the goods, does not absolve him of the guilt, is an expression of a rhetoric which cannot supplant or substitute the reasons, which are required for holding of a re-inquiry. The conclusion drawn that if a thief is caught with stolen goods, then subsequent return of the goods, does not absolve him of the guilt, is an expression of a rhetoric which cannot supplant or substitute the reasons, which are required for holding of a re-inquiry. 26. In our opinion, the order dated 24th October, 2001 does not pass the test of Wednesbury reasonableness, which is inbuilt and expressly provided for in Rule 9 of the 1991 Rules. The order, therefore, is unsustainable in law. 27. Apart from this, we have our reservations about the authority of the District Magistrate (In-charge) to pass such order in relation to the disciplinary proceedings where the Executive Engineer is the disciplinary authority. It appears that the District Magistrate was annoyed with the enquiry report and the order was issued in sheer disgust by the authority. 28. Having held so, even the so called second enquiry was held without participation of the appellant and without associating him with the proceedings and apprising him of the contents of the enquiry report. The issue need not detain us for long in view of the specific averment contained in paragraph 15 of the counter-affidavit of Mr. Sunil Kumar filed before the learned Single Judge. The entire enquiry proceedings, subsequently conducted, has been indicated to be a secret affair and it has been adverted therein that it was not obligatory in law for the respondents to associate the appellant in the subsequent enquiry as all such proceedings and the documents including the enquiry report were confidential. The aforesaid approach is not only unlawful but also appears to be suffering from malice in law. 29. Learned counsel for the appellant has, therefore, rightly relied on the decision in the case of Managing Director, ECIL, Hyderabad v. B. Karunakar, JT 1993 (6) SC 1. The non-supply of the enquiry report and not allowing the appellant to be associated with the second enquiry is clearly violative of principles of natural justice and all the provisions of fair play. It is also in violation of Rule 9 of 1999 Rules which specifically requires that an order shall be passed only after service of the enquiry report on the delinquent employee. 30. It is also in violation of Rule 9 of 1999 Rules which specifically requires that an order shall be passed only after service of the enquiry report on the delinquent employee. 30. The appellant has been prejudiced as is evident from a perusal of the impugned order inasmuch as the previous enquiry report indicted the appellant in an altogether different manner as noticed above whereas the subsequent enquiry report quantifies a huge amount of recovery from the appellant, which has been imposed without giving him any opportunity to rebut the same. The second enquiry report, which has been filed alongwith the counter-affidavit before this Court dated 15.1.2002 records its conclusion on the basis of the material which had been collected earlier but all conclusions run counter to the earlier enquiry report. 31. In our opinion, this seriously prejudices the rights of the appellant and hence the proceedings are clearly vitiated. If the authority has been conferred with a power, the said exercise of power has to be for the purpose for which it has been conferred and not for any oblique purpose. In the instant case, the anguish of the District Magistrate (In-charge) was made the basis of the second enquiry for which there is no justification at least on the material available on record and, therefore, the action suffers from malice in law as enunciated by the Apex Court in the case of State of A.P. and others v. Goverdhanlal Pitti, (2003) 4 SCC 739 (Paragraph 12). 32. The order impugned in the petition records only conclusions and no cogent reasons. It does not objectively deal with the defence of the appellant and is therefore vitiated. 33. For the reasons given hereinabove, the subsequent enquiry proceedings and the punishment order are unsustainable and, therefore, the learned Single Judge committed an error by dismissing the writ petition. 34. Accordingly, the subsequent enquiry proceedings under the order of the District Magistrate (In-charge) dated 24.10.2001 and the impugned order dated 29th April, 2002 are quashed. The judgment of the learned Single Judge dated 14.1.2003 is set aside. The appeal is allowed and the matter stands remitted to the Disciplinary Authority in terms of Rule 9 of the 1999 Rules leaving it open to the disciplinary authority to proceed from the stage of the submission of the first enquiry report. The judgment of the learned Single Judge dated 14.1.2003 is set aside. The appeal is allowed and the matter stands remitted to the Disciplinary Authority in terms of Rule 9 of the 1999 Rules leaving it open to the disciplinary authority to proceed from the stage of the submission of the first enquiry report. It shall be open to the disciplinary authority to conclude the proceedings as expeditiously as possible preferably within a period of three months from the date of production of a certified copy of this order. —————