JUDGMENT By the Court.—We have heard Sri Anil Kumar Ray, learned counsel for the petitioners. Sri Ajay Rajendra appears for respondent No. 1. 2. The pleadings have been exchanged, and thus with consent of the counsels appearing for the parties, we propose to decide the writ petition. 3. Sri Babu Lal Anand, the Respondent No. 1 was serving as Head-Booking Clerk. He was charge-sheeted for selling fake tickets on the allegation that during the vigilance check conducted on 13.11.2002, by vigilance team of Railway Board at N.R. Counter, Sri R.P. Singh, on duty as Booking Clerk, has produced 14 fake tickets from his pant’s pocket, 45 fake tickets from a Tube at Govindpur Station. He also produced Rs. 3043/-, excess in his Government Cash, due to selling of fake tickets, which was confirmed later on by the verification of 60 collected tickets from the passengers. 4. The respondent No. 1 was suspended, and proceeded with departmental enquiry. In the proceedings of enquiry, Sri R.P. Singh turned hostile. On the circumstantial evidence, and preponderance of probabilities, the charges against respondent No. 1 were proved, of which a penalty of removal was imposed upon him. His appeal was dismissed on 27.4.2009. The Central Administrative Tribunal examined the contentions, and held as follows : “13. With the above law on hand, the way the I.O has rendered his finding has to be considered. The inquiry officer has held the charges ‘proved’ in the following way : (a) The Asst. Manager, Printing Press AMV-LKO had confirmed about the fake tickets. (b) R.P. Singh, Court witness, in the booking counter, Govindpuri had stated that the fake tickets were supplied to him by the applicant who used to get three-fourth of the sale proceeds of the fake tickets. The said witness had backtracked and had to be termed as hostile witness, but this is an afterthought. (c) Shri Prem Narain, Booking Clerk has categorically stated that the fake tickets were supplied to him by the applicant. (d) It is a matter of record vide Ex. P.2 that Shri Prem Narain, Booking Clerk wrote a letter regarding alleged supply of fake tickets by the applicant before the vigilance check was conducted. (e) The circumstantial evidence clearly shows that the applicant was the supplier of the fake tickets as all the P.Ws has given their statements as at spot and confirmed that the applicant was the main supplier. (e) The circumstantial evidence clearly shows that the applicant was the supplier of the fake tickets as all the P.Ws has given their statements as at spot and confirmed that the applicant was the main supplier. (f) The applicant kept himself away from selling of fake tickets and monitored the supply part of fake tickets, and thus, facts and circumstantial evidence suggest that CO was involved on procurement and supply of fake tickets. 14. So far as (a) above is concerned, it does not go to prove that the applicant is involved in the transaction of fake ticket sale. That the backtracking of RP Singh is an after thought, cannot mean that his statement has to be taken as true. The responsibility of the prosecution is much more under such circumstances. The circumstantial evidence would come into play here, provided the same is proved as laid down in the judgment of the Apex Court cited above. Prem Narain, could have been a witness independent of R.P. Singh and the hearsay evidences could have evidentiary value had his evidence is unshakable. As pointed out earlier, there are lots of legal lacunae with reference to this witness. Thus, one could unhesitatingly say that the inquiry conducted does not meet the requirement of the Rules. 15. The next contention is that the disciplinary authority has not considered the representation at all. The disciplinary authority has to weigh the inquiry report on the one hand and the representation on the other and has to ensure that the inquiry report is free of any legal lacuna. If he dismisses the representation in a monosyllable style, “you have neither been able to give any legitimate proof for the charges in your defence during D & A R inquiry, in your representation submitted against the inquiry report nor during personal hearing on 18.6.2008, I am fully agreed (sic I fully agree) with the findings of the inquiry officer”, the said opinion does not meet the requirements of law. For, in the case of Haryana Financial Corpn. For, in the case of Haryana Financial Corpn. v. Kailash Chandra Ahuja, (2008) 9 SCC 31 , the Apex Court has, after mentioning the Constitution Bench in the case B. Karunakar, held as under : “The Constitution Bench observed that the basic question of law which arose in the matters was whether the report of the inquiry officer appointed by the disciplinary authority to hold an inquiry into the charges against the delinquent employee was required to be furnished to the employee to enable him to make representation to the disciplinary authority before such authority arrives at its own finding with regard to the guilt or otherwise of the employee and the punishment, if any, to be awarded to him. On the basis of the above fundamental issue, certain other incidental questions were also raised by the Constitution Bench which included the effect of non-supply of the inquiry officer’s report” 16. Calling for the representation on the inquiry report cannot be a mere paper formality. For, vide Mohd. Ramzan Khan judgment, the Apex Court has treated supply of a copy of the inquiry report as one of the vital requirements in compliance with the principles of natural justice and for the disciplinary authority to arrive at his own finding with regard to the guilty or otherwise, consideration of all the points raised in the representation is a must. Hence, the disciplinary authority has also erred in not considering the representation submitted by the applicant. 17. The decisions cited by the counsel for the respondents to some extent support the case of the applicant, as for example, non supply of Ex. P2 should not have been considered, as held in the case of Gyan Chand Chattar. Again, the decision in the case of HC Goel comes to the aid of the applicant in respect of his contention that this is a case of no evidence. 18. In view of the above, the OA succeeds. The impugned order vide Annexure A-1 (with which the disciplinary authority’s order merges) is vitiated. The applicant is entitled to be reinstated in service and if the authorities desire, they are at liberty to proceed with the inquiry from the stage of consideration of representation against the inquiry report and the disciplinary authority may after dispassionately considering all the points arrive at a just conclusion. The applicant is entitled to be reinstated in service and if the authorities desire, they are at liberty to proceed with the inquiry from the stage of consideration of representation against the inquiry report and the disciplinary authority may after dispassionately considering all the points arrive at a just conclusion. The period of absence shall be regularized in accordance with law, depending upon the disciplinary authority’s decision to proceed further with the inquiry as stated above or other wise. Decision in this regard should be taken within a period of two months. Reinstatement shall be within a period of one month from the date of receipt of certified copy of this order. No costs.” 5. On 19.1.2011, this Court passed the following order : “Shri Ajay Rajendra has accepted notice on behalf of respondent No. 1. He is allowed four week’s time to file counter-affidavit. The petitioner will have two weeks, thereafter, to file rejoinder-affidavit. List on 15th March, 2011. We have gone through the charges against the respondent No. 1, the statements of witnesses Shri R.P. Singh and Shri Prem Narain on the basis of which the enquiry officer found that the the respondent No. 1 was supplier of fake tickets; the findings of the enquiry officer and the judgment of the Tribunal. Prima facie we find that Shri R.P. Singh had stated in his statement in the departmental enquiry that; “I may state that same are written by me on dictation and pressure of I.I./ Vigilance/ Railway Board. I wrote the replies of Ex.B-4/A to D on the beaten by I.I./ Vigilance/ R.B. I hereby close my statement and nothing to add more”. Only one question was asked by P.O. namely since the C.W. has become hostile and as such he will not examine him. The request of P.O. was accepted. Shri R.P. Singh as P.W. thus became hostile and his statement could not be relied upon in the departmental enquiry. So far as the statement of Shri Prem Narain is concerned, he has not given the source of knowledge or any cogent evidence, which could have proved his knowledge that the respondent No. 1 was supplying fake tickets. Shri R.P. Singh as P.W. thus became hostile and his statement could not be relied upon in the departmental enquiry. So far as the statement of Shri Prem Narain is concerned, he has not given the source of knowledge or any cogent evidence, which could have proved his knowledge that the respondent No. 1 was supplying fake tickets. Prima facie the Tribunal has correctly found that there is no other cogent and relevant evidence to prove that the respondent No. 1 was supplier of fake tickets, specially when the fake tickets were not recovered from him, nor he was found selling them. The Tribunal further found that the document PW-2 (statement of Shri R.P. Singh before the officers of the vigilance), which was the main evidence on which the respondent No. 1 was found guilty, was not supplied to him. Shri Anil Kumar Ray, learned counsel for the railway would submit that in Union of India v. Y.S. Sadhu, Ex.-Inspector, (2008) 3 UPLBEC 2896 and in Hiran Mayee Bhattacharyya v. Secretary, S.M. School for Girls and others, (2002) 10 SCC 293 , in such case when the enquiry is found to be insufficient or in violation of the procedures or in violation of natural justice, there should be no reinstatement and payment of back wages. The Tribunal while allowing the O.A. has directed the applicant to be reinstated in service and has left to the authorities that if they desire, they will be at liberty to proceed with the enquiry from the stage of consideration of representation against the enquiry report and to arrive at conclusion after dispassionately considering all the points. The Tribunal has further directed that the period of absence shall be regularised in accordance with law depending upon the disciplinary authority decision to proceed further with the enquiry. The decision has been directed to be taken within two months and the reinstatement within one month. In the facts and circumstances, and having regard to the judgments of the Supreme Court in Hiran Mayee Bhattacharya (Supra) and Y.S. Sadhu (Supra) we stay the directions of the Tribunal to the effect that the respondent No. 1 should be reinstated and the period of absence should be regularised in accordance with law. It will be open to the authorities to decide to hold enquiry afresh within a period of six weeks. It will be open to the authorities to decide to hold enquiry afresh within a period of six weeks. If no decision is taken to proceed with the enquiry afresh, the petitioner will be reinstated and it will be open to the disciplinary authority to decide on the question of treatment of the period of absence and back wages. If the authorities decide to hold enquiry, they will not be bound to reinstate the petitioner. The departmental enquiry in such case will be concluded within three months.” 6. Sri Anil Kumar Ray submits that the enquiry was conducted in accordance with relevant procedure of enquiry, and opportunity was given to respondent No. 1, including assistance of defence officer. The enquiry officer has submitted his report on 14.3.2008, and gave his finding that in view of the documentary, oral and circumstantial evidence, charges leveled against respondent No. 1 are proved. The Tribunal has, without considering the reply filed by the department, and without considering the relevant rule of law, passed the judgment dated 14.1.2010. Once full opportunity was provided, it was not open to the Tribunal, to interfere with the findings of fact. The charges of selling fake tickets were serious, and could not have resulted into any other punishment. 7. Sri Anil Kumar Ray further submits that the Tribunal has erred in law in directing reinstatement of respondent No. 1 in service, with liberty to proceed with the enquiry. The Tribunal has further erred in law, to regularize the period of absence in accordance with law. 8. Sri Ajay Rajendra appearing for respondent No. 1 submits that the petitioners have wrongly relied upon judgments of the Supreme Court in Managing Director, ECIL v. B. Karunakar, (1993) 4 SCC 737; Union of India v. Y.S. Sadhu, Ex.-Inspector, (2008) 3 UPLBEC 2896 and in Hiran Mayee Bhattacharyya v. Secretary, S.M. School for Girls and others, (2002) 10 SCC 293 . 9. In these judgments, it was held that where the Court finds that the enquiry is vitiated, and sets aside the punishment order, with directions to hold the enquiry afresh from the stage of furnishing the enquiry officer’s report as in the cases of B. Karunakar and Hiran Mayee Bhattacharya, or the Court finds that the principles of natural justice have not been followed as in the case of Y.S. Sadhu, it is not necessary, to reinstate the delinquent employee. It was held in Y.S. Sadhu’s case that if the employee succeeds in the fresh enquiry, and is directed to be reinstated, the authority should be at liberty to decide according to law as to how it will treat the period from the date of dismissal till the reinstatement and to what benefits, if any and the extent of the benefits, he will be entitled. 10. Sri Ajay Rajendra, submits that where the Court or the Tribunal after setting aside the order of punishment, leaves it open to the disciplinary authority to hold or not to hold enquiry afresh, the principles as contained in the Rules for reinstatement before holding enquiry will be applicable. He has relied upon Rule 5 (4) of the Railway Servants (Discipline and Appeal) Rules 1968, which provides as follows : “(4) Where a penalty of dismissal, removal or compulsory retirement from service imposed upon a railway servant is set aside or declared or rendered vid in consequence of or by a decision of a Court of law and the disciplinary authority on consideration of the circumstances of the case, decides to hold a further inquiry against him on the allegations on which the penalty of dismissal, removal or compulsory retirement was originally imposed, the railway servant shall be deemed to have been placed under suspension by the competent authority from the date of the original order of dismissal, removal or compulsory retirement and shall continue to remain under suspension until further orders. Provided no such further inquiry shall be ordered unless it is intended to meet a situation where the Court has passed an order purely on technical grounds without going into the merits of the case.” 11. Sri Ajay Rajendra submits that in the present case, the Central Administrative Tribunal after having set aside the punishment order gave liberty to the disciplinary authority to proceed with the enquiry from the stage of consideration of representation against the enquiry report, and to decide all the points to arrive at its conclusion. He submits that in such case, it was open to the disciplinary authority - either to conduct enquiry on the same charges from the stage of enquiry report, or not to proceed with the enquiry. He submits that in such case, it was open to the disciplinary authority - either to conduct enquiry on the same charges from the stage of enquiry report, or not to proceed with the enquiry. Where the disciplinary authority chooses to hold enquiry, the employee has to be reinstated and would be deemed to have been placed under suspension, if he was under suspension by the competent authority, from the date of original order of dismissal, removal or compulsory retirement. 12. In the present case, the applicant-respondent No. 1 was placed under suspension during the pendency of the departmental enquiry, before the order of dismissal was passed. 13. We have considered the respective submissions, and do not find any error in the order of the Tribunal, except the directions to regularize the period for which the petitioner was under suspension. The Tribunal found that there was no evidence on which charges could be proved against respondent No. 1. There were only two witnesses namely Sri R.P. Singh and Prem Narain. Sri R.P. Singh turned hostile and Sri Prem Narain’s evidence was found to be hearsay. The Tribunal has only set aside the findings for which which there was no evidence. It did not exonerate the petitioner and has instead permitted the Disciplinary Authority to consider petitioner’s defence and his representation to the enquiry report before arriving at the finding of misconduct. 14. After hearing learned cousnel for the parties and perusing the rules and decision of the Supreme Court stated above, we are of the opinion that since in this case it was left to the discretion of the Disciplinary Authority to hold enquiry and that the Tribunal has only given an indication that in such a case where the Disciplinary Authority wants to hold enquiry afresh, it will be free to proceed from the stage of considering the representation of the delinquent against the enquiry report, the respondent No. 1 ought to have been reinstated, before the Disciplinary Authority proceeds to continue with the enquiry. 15. We are informed that the Disciplinary Authority has decided to hold the enquiry. In such a case Rule 5 (4) of the Rules 1968, would be attracted and thus directions of the Tribunal to reinstate the applicant-respondent No. 1, are in consance of the statutory rules, and do not require interference. 15. We are informed that the Disciplinary Authority has decided to hold the enquiry. In such a case Rule 5 (4) of the Rules 1968, would be attracted and thus directions of the Tribunal to reinstate the applicant-respondent No. 1, are in consance of the statutory rules, and do not require interference. As provided in Rule 5 (4) of the Rules of 1968, the respondent No. 1 will be deemed to have been placed under suspension from the date of original order of dismissal. He will be paid subsistence allowance from the date of passing of the punishment order of dismissal. The respondent No. 1 will be paid entire arrears of subsistence allowance within a period of one month. The respondent No. 1, will co-operate with the Enquiry Officer and the Disciplinary Authority, to conclude the enquiry expeditiously. The treatment of the period of absence, will be decided by the Disciplinary Authority, in accordance with the rules, depending on the outcome of his decision in the enquiry. 16. The writ petition is dismissed with aforesaid observations. ——————