ORDER : K.M. Thaker, J. Heard Mr. Rashesh Rindani, learned Assistant Government Pleader for the petitioner - State. 2. In present petition, the petitioner State has prayed that :- "9. (A)....... (B) Your Lordships be pleased to issue appropriate writ, order or direction quashing and setting aside the order passed by the Learned Gujarat Civil Services Tribunal at Gandhinagar in Appeal No.315 of 2007 dated 25.10.2011, in the interest of justice. (C).......... (D).......... (E).........." 3. So far as the said impugned order dated 25.10.2011 is concerned, the relevant - operative part of the order reads as under : - "The appeal succeeds partly. The order of Inspector General of Prisons dated 07.08.2007 is quashed and set aside. The matter is remanded back to the disciplinary authority from the stage of issuing a fresh charge-sheet and conduct of proceeding as discussed in the body of judgment. Pronounced this on 25th day of October, 2011." 4. On examination of the record and particularly the impugned order, it emerges that after considering the entire material on record, learned Tribunal found that proceedings before the disciplinary authority and the order passed by disciplinary authority suffer from certain serious infirmities which render the decision of disciplinary authority i.e. order dated 25.10.2011 defective. Therefore, learned Tribunal considered it appropriate to remand the matter for fresh decision after conducting the proceedings afresh from the stage of issuing fresh charge sheet. 5. The petitioner State is aggrieved by the said decision. 6. Learned AGP for the petitioner State has submitted that there is no defect in the inquiry proceedings and/or the order passed by disciplinary authority. He also submitted that learned Tribunal has committed error in holding that the proceedings conducted pursuant to the charge-sheet were defective. He also submitted that relevant and applicable procedure was followed by the Inquiry Officer and the disciplinary authority and impugned order came to be passed after considering either material on record and, therefore, there was no justification for the learned Tribunal to hold that the proceedings were defective and to set aside the order of penalty or for remanding the proceedings to the disciplinary authority. 7. I have considered the submissions made by learned AGP and also examined the material available on record of the present petition. 8. 7. I have considered the submissions made by learned AGP and also examined the material available on record of the present petition. 8. So as to appreciate the challenge raised by the petitioner State against the impugned order passed by learned Tribunal, it is appropriate to take into consideration certain factual background. 9. In the impugned order the factual backdrop is recorded by the learned Tribunal. Since there is no dispute on that count the said part of the order is quoted below which narrates the factual background in view of which the disciplinary proceedings commenced. The learned tribunal has recoded that:- The appellant was serving as Head Clerk in the office of Baroda Central Jail from September - 1995 to June-2000. During that period he was holding additional charge of Office Superintendent from 1/9/1996 to 31/03/1999. In may 2000 a special audit team from the office of the Inspector General Prisons carried out an audit in Baroda Central Jail Office. In the audit report, it was brought that a sum of Rs.5,15,311-00 has been misappropriated. Further inquiry revealed that the money has been misappropriated by the Junior Clerk Shri Mahida from accounts of prisoners by un-authorized withdrawals from post office saving accounts and by tampering with records. It was revealed further that the supervisory officers including the appellant were not discharging their duties properly, because of which Shri Mahida could be able to misappropriate such a big sum of money. The appellant was charge-sheeted on 31/1/2004. The charge-sheet is quoted below. The appellant submitted his reply to the charge-sheet on 15/5/2004 denying the allegations. The disciplinary authority did not agree with the same and decided to hold a regular departmental inquiry. The inquiry officer submitted his report on 17/1/2007 with the findings that the charge is proved. The second show cause notice was issued on 14/6/2007 to which the appellant replied on 12/7/2007. The disciplinary authority did not accept the same and issued the impugned order." 10. It appears that before issuing charge-sheet the petitioner had also conducted preliminary inquiry and after such preliminary inquiry, the charge-sheet was issued. The allegations - charge against the respondent are about misappropriation. Thus, the allegations appear to be of serious nature, more so because such acts were allegedly going on since long time and money/earnings of prisoners have been, allegedly, siphoned away/misappropriated. 11. The allegations - charge against the respondent are about misappropriation. Thus, the allegations appear to be of serious nature, more so because such acts were allegedly going on since long time and money/earnings of prisoners have been, allegedly, siphoned away/misappropriated. 11. After the respondent submitted his reply in response to the said charge-sheet and after the reply was considered Deputy Superintendent was appointed as Inquiry Officer. The Inquiry Officer conducted the proceedings and upon conclusion of the inquiry proceeding, the Inquiry Officer submitted his report/conclusion dated 17.1.2007 to the disciplinary authority. 12. According to the Inquiry Officer, the department proved the charges. Hence, second Show Cause Notice was issued on or around 14.6.2007 calling for respondent's reply. The respondent - employee submitted his reply on or around 12.7.2007. After considering the entire material including the reply submitted by the respondent - employee in response to the said notice, the disciplinary authority imposed penalty by order dated 17.10.2007. The disciplinary authority directed, by way of penalty, that the respondent - employee may be placed at the minimum stage of his pay scale of Rs.5,500 - 9,000/- until the date of his superannuation - retirement. The disciplinary authority also held that the period of suspension pending inquiry shall be considered as suspension. The disciplinary authority also held that since criminal case was lodged, the final decision as regards punishment would be considered after the decision in the said criminal case. 13. Aggrieved by the said order dated 17.10.2007 passed by the disciplinary authority, the respondent herein filed appeal before the learned Tribunal. The appeal was registered as appeal No.315 of 2007/1867. After considering the material on record and the contentions raised by the respondent, the tribunal found that procedure followed by the inquiry officer was defective and the disciplinary authority's order deserves to be set aside. The learned tribunal also found that the department should be permitted to conduct the proceedings afresh. Therefore, the learned Tribunal has remanded the matter to the disciplinary authority for fresh decision after conducting the proceedings afresh from the stage of charge-sheet. 14. The petitioner - State is aggrieved by the said decision. 15. It is relevant to mention that learned Tribunal has recorded its reasons in support of its order dated 25.10.2011 and to justify the directions issued with order dated 25.10.2011. 16. 14. The petitioner - State is aggrieved by the said decision. 15. It is relevant to mention that learned Tribunal has recorded its reasons in support of its order dated 25.10.2011 and to justify the directions issued with order dated 25.10.2011. 16. In this context, it would be appropriate to refer to the observations made by learned Tribunal with regard to the proceedings of the departmental inquiry as well as the proceedings by and before the disciplinary authority. The relevant portion of learned Tribunal's order i.e. Para 9 and 10, read as under : - "9. We have carefully gone through the inquiry report. In this report, the inquiry officer has mentioned the deposition made by the witnesses in the case including what is stated in the cross examination and then in the end, suddenly in one paragraph given, his finding that the charges are proved on the basis of recorded evidence and documents. The inquiry report mentioned about the arguments given by the presenting officer but there is no detail of what arguments were made by the Presenting Officer. The inquiry officer has to give a brief to the inquiry officer and copy of the same is provided to the delinquent employee for his response. The delinquent employee then has to give his final written defence statement. Thereafter, the inquiry officer should analys the pints raised for and against the charge and then give his finding. In the present case, there is no brief by the presenting officer, there is no final defence statement and the Inquiry officer has thus, given his finding without going through the procedure. As per rule-9(22)(c)(d) of Gujarat Civil Services (discipline & appeal) rules, the report prepared by the inquiry officer should contain the assessment of evidence in respect of each articulate charge and the finding of the inquiry officer on each articulate of charge with reasons. It is quasi judicial function where the inquiry officer has to apply his judicial mind compare the evidence for and against and give his finding with justification on the basis of the available evidence. Since, the inquiry report lacks the provision of rule-9 cited above, the entire report in our view is vitiated. Moreover, as we want through report, it appears to us that there is a preliminary inquiry by Shri P. A. Gohil, Dy. Superintendent of Baroda Central Jail. Since, the inquiry report lacks the provision of rule-9 cited above, the entire report in our view is vitiated. Moreover, as we want through report, it appears to us that there is a preliminary inquiry by Shri P. A. Gohil, Dy. Superintendent of Baroda Central Jail. The witnesses in their depositions before the inquiry officer have stated that they have given their statements before the preliminary inquiry officer. The inquiry officer also in his report has relied upon the statements recorded during preliminary inquiry. But, as we see in the charge-sheet, the statements recorded before the preliminary inquiry officer was not a part of the documentary evidence. The Inquiry Officer has mentioned that the witness were shown their statements during preliminary inquiry but we do not find anything on record as to where from the inquiry officer got the preliminary inquiry statement when those statements were not part of the documentary evidence. We therefore, feel that the inquiry officer has given his finding, on the basis of records which were not produced during the inquiry and examination. The inquiry report is therefore totally vitiated. 10. It is the say of the appellant that he was asking for documents to prepare his defence statement but the same were not provided to him. Therefore, he was not able to defend himself. This is what he has mentioned in the reply to the final show case notice. The disciplinary authority in his impugned order has mentioned that the appellant should have not submitted his reply to the charge sheet and also should not have participated in the departmental inquiry, if he thought those documents asked for were so important. Now, that he has gone through the entire process, he cannot raise the issue in his reply to the final show cause notice. In our opinion, the disciplinary authority has acted arbitrarily and judiciously in this case. The failure to supply the documents and not replying to the demand by disciplinary authority amounts to violation of the constitutional right of the delinquent employee. It shows bias on the part of the disciplinary authority when he is supposed to act judiciously in the matter." 17. It emerges from the order that Inquiry Officer appears to have substantially relied on the statement recorded and material collected during preliminary inquiry i.e. in absence of - at the back of - the respondent & without his knowledge. It shows bias on the part of the disciplinary authority when he is supposed to act judiciously in the matter." 17. It emerges from the order that Inquiry Officer appears to have substantially relied on the statement recorded and material collected during preliminary inquiry i.e. in absence of - at the back of - the respondent & without his knowledge. On the other hand, what is relevant & material is the fact that the inquiry officer substantially relied on the said material & he also formed/based his conclusion on the said material though the said material was not supplied to the delinquent employee (i.e. respondent) and though the said material was not amongst the documents forming part of (and was not supplied with) the charge-sheet. 18. This is one of the reasons in light of which learned Tribunal found the departmental inquiry and the proceedings defective. 19. The said view & decision can not be faulted. Any material or documents which is collected in absence of or at the back of delinquent, but are not supplied to the delinquent or the statements which are recorded in absence of the delinquent can not be relied on by the Inquiry Officer (to reach conclusion and to base his findings) without supplying the said material or documents or statements to the delinquent and without affording opportunity to the delinquent to rebut or explain the said material or documents or statements. The reliance placed on the documents or statement/s which were not part of the charge-sheet and which were not supplied to the delinquent amount to breach of fair play & principles of natural justice and vitiate the proceedings and Inquiry Officer's report. 19.1. If any statements are recorded in absence of or at the back of - the delinquent and/or if any material is collected in absence of the delinquent (e.g. during preliminary inquiry or outside the proceedings of inquiry) and if the Inquiry Officer relies on such statements or material and if he forms and rests his conclusion on such material without supplying such material or documents or statements etc. to the delinquent and proceeds in light of & on strength of such material without affording opportunity to rebut or explain such material and/or to place on record other material to counter such material, then such irregularity would constitute fatal irregularity for the inquiry proceedings which would render the report/findings by the Inquiry Officer vitiated on ground of breach of fair play & violation of principles of natural justice. 20. After scrutinising the record of inquiry proceedings the learned Tribunal also, found that the Presenting Officer has not followed the procedure prescribed under Rule 9 (22) (c) & (d) of Gujarat Civil Services (Discipline & Appeal) Rules. 20.1 After examining the report of the Inquiry Officer the learned Tribunal has also held that the Inquiry Officer has not discussed and has not analysed the evidence and there is no application of judicial mind to the evidence submitted by delinquent and the Presenting Officer and the evidence is not duly evaluated by the Inquiry Officer before recording final conclusions. 21. When the Inquiry Officer submits his report, it should contain & reflect Inquiry Officer's own & independent findings & conclusions and such findings must be based on material/documents, statements etc. placed before him by the delinquent & the Presenting Officer and his findings must also reflect that the material on record is duly evaluated. The report should reflect analysis and evaluation of evidence on the record, by the Inquiry Officer. Such evaluation & appreciation of evidence should be evident from the discussion in the report. Absence of such discussion & evaluation of evidence would mean non-application of mind & casual or mechanical approach by the Inquiry Officer. This also is fatal for any inquiry proceedings. 21.1 When the material on record and the report of Inquiry Officer are examined in juxtaposition with the observations by the learned Tribunal, it emerges that the observations by the learned Tribunal are not incorrect or baseless or perverse or contrary to material available on record before the learned Tribunal. The discussion by learned Tribunal is based on the material on record placed before the learned Tribunal. The discussion by learned Tribunal is based on the material on record placed before the learned Tribunal. 21.2 It is pertinent to note that even during the hearing of present petition, the petitioner - State could not assail the conclusion of the learned Tribunal that the material gathered during the preliminary inquiry i.e. statements which were recorded and the documents or other material which were collected during preliminary inquiry, was not supplied to the respondent, and they were also not made part of the charge-sheet and the petitioner - State is also not able to assail the conclusion by the learned Tribunal that the documents asked for by the delinquent for his defence were not supplied and that the proceedings are infected by breach of principles of natural justice & fair play & the inquiry officer failed to analyse & appreciate evidence and the petitioner - State also could not show anything from material on record that the findings by learned Tribunal are incorrect or contrary to record & contrary to evidence and/or the material asked for was supplied then it cannot be said that the learned Tribunal committed any error in passing the order. The State is also not able to demonstrate that the material collected & statements recorded during preliminary inquiry was supplied to the respondent i.e. the delinquent or that the said material was not at all relied by the Inquiry Officer in reaching the final conclusions. 21.3 In this view of the matter, it follows that the learned Tribunal has not erred in holding that the inquiry proceedings and the report of the Inquiry Officer are defective inasmuch as the report is based on such material, which was not supplied to the delinquent and which did not form part of the documentary evidence of the inquiry. 21.4 When the learned Tribunal has found such fatal irregularities & defects in the proceedings and in the report by the Inquiry Officer. It is not in dispute in present case that the said irregularities caused prejudice to the respondent & his defence. 22. 21.4 When the learned Tribunal has found such fatal irregularities & defects in the proceedings and in the report by the Inquiry Officer. It is not in dispute in present case that the said irregularities caused prejudice to the respondent & his defence. 22. Though learned Tribunal found such fatal irregularities, having reached such conclusion and findings and having regard to the gravity of charge - allegation, the learned Tribunal considered it appropriate to allow the petitioner - State to conduct the proceedings afresh so that the respondent may not go unpunished because of, and merely on strength of, any technical defect in conducting departmental inquiry. With the said object, learned Tribunal considered it appropriate to remand the matter to the disciplinary authority. 23. The findings by the learned Tribunal, against the proceedings and the inquiry officer's report can be summarised thus:- "(a)...the inquiry officer has mentioned the deposition made by the witnesses in the case including what is stated in the cross examination and then in the end, suddenly in one paragraph given, his finding that the charges are proved on the basis of recorded evidence and documents. (b)...inquiry report mentioned about the arguments given by the presenting officer but there is no details of what arguments were made by the Presenting Officer. (c)...the inquiry officer should analys the pints raised for and against the charge and then give his finding. In the present case, there is no brief by the presenting officer, there is no final defence statement and the Inquiry Officer has thus, given his findings without going through the procedure. (d)...As per rule-9(22)(c)(d) of Gujarat Civil Services (Discipline & appeal) rules, the report prepared by the inquiry officer should contain the assessment of evidence in respect of each articulate charge and the finding of the inquiry officer on each articulate of charge with reasons. (e)... the inquiry report lacks the provision of rule-9 cited above, the entire report in our view is vitiated. (f)...as we want through report, it appears to us that there is a preliminary inquiry by Shri P. A. Gohil, Dy. Superintendent of Baroda Central Jail. The witnesses in their depositions before the inquiry officer have stated that they have given their statements before the preliminary inquiry officer. (g)... But, as we see in the charge-sheet, the statements recorded before the preliminary inquiry officer was not a part of the documentary evidence. Superintendent of Baroda Central Jail. The witnesses in their depositions before the inquiry officer have stated that they have given their statements before the preliminary inquiry officer. (g)... But, as we see in the charge-sheet, the statements recorded before the preliminary inquiry officer was not a part of the documentary evidence. The inquiry officer has mentioned that the witness were shown their statements during preliminary inquiry but we do not find anything on record as to where from the inquiry officer got the preliminary inquiry statement when those statements were not part of the documentary evidence. We therefore, feel that the inquiry officer has given his finding, on the basis of records which were not produced during the inquiry and examination. The inquiry report is therefore totally vitiated." 23.1 Besides the said defects it also appears that the delinquent - present respondent had asked for certain documents for his defence, which were also not supplied. If the documents which are requested for by the delinquent are relevant and necessary for his defence are not supplied to him and if the delinquent can demonstrate that the denial or failure in supplying the material affected and paralyzed his defence then such failure would vitiate the proceedings. 23.2 When such fundamental defects as mentioned in paragraph Nos. 23 (a) to (g) and paragraph No.23.1 and in paragraph Nos. 17, 19, 19.1, 20, 20.1 and 21 to 21.4 are noticed by the learned Tribunal which go to the root of the conduct of the proceeding and evaluation/appreciation of evidence by the Inquiry Officer and when the learned Tribunal also found breach of fair play & principles of natural justice, then in that event, decision of learned Tribunal to remand the matter for fresh proceedings and fresh decision cannot be faulted. 24. Having regard to the aforesaid aspects, it is not possible to hold that the order of learned Tribunal suffers from any infirmity or it has committed any error of law or jurisdiction. The findings recorded by learned Tribunal cannot be said to be incorrect or unjust or arbitrary, much less perverse. The conclusion by the learned Tribunal are based on the material available on record. The conclusion is duly supported by the cogent reason and, therefore, the order does not call for any interference in petition under Article 227 of the Constitution of India. 25. The conclusion by the learned Tribunal are based on the material available on record. The conclusion is duly supported by the cogent reason and, therefore, the order does not call for any interference in petition under Article 227 of the Constitution of India. 25. Thus, on overall consideration of the facts and circumstances of the present case, it has emerged that the petition should fail and cannot be accepted. Accordingly, the petition fails and is rejected. No order as to costs. Petition dismissed.