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2016 DIGILAW 136 (GUJ)

Mahendra Vallabhdas Sampat v. State of Gujarat

2016-01-19

ABHILASHA KUMARI

body2016
ORDER : Abhilasha Kumari, J. 1. By preferring this petition under Article 226 of the Constitution of India, the petitioner has, inter alia, prayed that the order of compulsory retirement dated 18.10.2010, communicated to him on 26.12.2010, be quashed and set aside and he be reinstated in service. It is further prayed that the salary for the period the petitioner remained out of service, till his reinstatement pursuant to the order of this Court, be paid to him. The relevant facts of the case are that the petitioner was appointed as a Medical Officer, Class-II, by the Director of Medical Sciences and Medical Education, on 14.11.1988. The petitioner passed the examination conducted by the Gujarat Public Service Commission in the year 1995, and, thereafter, served at various places as a Medical Officer. The petitioner last served at the Primary Health Centre, Nadiad, during the period 1995-96. A charge-sheet dated 13.01.1997, was served upon the petitioner stating that he had violated the provisions of Rule 3(1)(iii) of the Gujarat Civil Services (Conduct) Rules, 1971 ("the Conduct Rules", for short), inasmuch as he was carrying on a private business which is in violation of the provisions of Rule 15(1)(a) of the said Rules. This charge-sheet contained five charges. Charge No. 4, which is relevant in the present case, was to the effect that the petitioner was running a factory in the name of "Mahendra Cotton" while being a Government servant, which is prohibited by Rule 15(1)(a) of the Conduct Rules. The petitioner filed his defence statement against the said charge-sheet on 31.03.1997. After following due procedure, the Inquiry Officer submitted his report dated 14.09.2001, recording findings that the charges against the petitioner, including charge No. 4, were not proved. The Disciplinary Authority did not agree with the findings recorded by the Inquiry Officer, therefore, the said authority served a Show Cause Notice, with the reasons for disagreement upon the petitioner, on 24.12.2001. Pursuant thereto, the petitioner submitted his final defence statement on 07.01.2002. Nothing further was done by the Disciplinary Authority after recording his disagreement with the findings of the Inquiry Officer and no order of penalty was passed against the petitioner. As per respondent No. 1, certain service details of the petitioner were called for, from respondent No. 2, which were received sometime in May, 2005. Even thereafter, nothing further was done and no action was taken against the petitioner. As per respondent No. 1, certain service details of the petitioner were called for, from respondent No. 2, which were received sometime in May, 2005. Even thereafter, nothing further was done and no action was taken against the petitioner. During the pendency of this departmental inquiry and even before the Inquiry Officer had submitted his Report exonerating the petitioner, on 14.09.2001, another charge-sheet dated 12.05.2000, was served upon the petitioner, containing only a single charge. This charge was to the effect that the petitioner had violated the provisions of Section 15 of the Conduct Rules, as he was engaged in a private business, despite he being a Government servant. Further, the petitioner was selling the manufactured goods to the State Government. It is pertinent to mention that the respondents did not take any action for about six years, pursuant to the second charge-sheet. In any event, the inquiry pursuant to the first charge-sheet dated 13.01.1997, was continuing. 2. The petitioner replied to the second charge-sheet on 29.05.2000 and 21.07.2000, denying the charge and stating that the charge-sheet was illegal, as he was already facing a departmental inquiry regarding the same charge. In the second departmental inquiry, the Inquiry Officer and Presenting Officer were appointed on 07.07.2000, even though the first departmental inquiry was going on. Despite the objection raised by the petitioner to the second inquiry, the respondents persisted in holding two parallel inquiries for the same charge. An order of compulsory retirement was passed in the second inquiry on 18.10.2010. During the course of the second inquiry, the petitioner had occasion to approach this Court by filing Special Civil Application No. 319 of 2006, on the ground that he had been denied the opportunity of cross-examining two witnesses examined by the respondents. The petition came to be rejected on 13.07.2006 and the order of compulsory retirement passed against the petitioner was upheld. Against the said order, the petitioner filed Letters Patent Appeal No. 1118 of 2006, which was allowed on 10.10.2006 and the impugned order of retirement was set aside. The matter was remanded to the Inquiry Officer. As a consequence thereof, the petitioner was reinstated in service vide order dated 26.10.2006. Thereafter, the inquiry proceeded and culminated in the order of compulsory retirement challenged by the petitioner in the present petition. 3. Mr. Shalin N. Mehta, learned Senior Advocate appearing with Mr. The matter was remanded to the Inquiry Officer. As a consequence thereof, the petitioner was reinstated in service vide order dated 26.10.2006. Thereafter, the inquiry proceeded and culminated in the order of compulsory retirement challenged by the petitioner in the present petition. 3. Mr. Shalin N. Mehta, learned Senior Advocate appearing with Mr. Harshil C. Dattani, learned advocate, for the petitioner, has submitted that the issuance of the second charge-sheet dated 12.05.2000, is ex facie illegal and without jurisdiction, as the same charge had already been levelled against the petitioner in the earlier charge-sheet dated 13.01.1997. In the said inquiry, the Inquiry Officer has exonerated the petitioner of this charge. This inquiry has not been withdrawn by the respondents and is still not concluded. In spite of this, the second charge-sheet containing the same charge has been issued and a second inquiry conducted in which the petitioner has been inflicted the penalty of compulsory retirement on the same charge for which he was earlier exonerated by the Inquiry Officer. 4. It is further submitted that the Gujarat Civil Services (Discipline and Appeal) Rules, 1971 ("the Discipline and Appeal Rules" for short), more particularly, Rule 9, does not permit the issuance of two charge-sheets containing repetitive or similar charges. The action of the respondents in doing so violates the spirit of Rule 9 of said Rules. Rule 9 lays down, in detail, the procedure to be followed in departmental proceedings, especially where the imposition of a major penalty is contemplated. The said procedure must be strictly and scrupulously followed. If the State Government swears by the rule, it must perish by the rule. No deviation from Rule 9 can be permitted and no procedure foreign to this Rule can be permitted. In the present case, the procedure followed by the State Government is unprecedented and quite foreign to the text of Rule 9. 5. It is contended that the issuance of the second charge-sheet for the same charge which was levelled against the petitioner as charge No. 4 in the first charge-sheet, and the commencement of inquiry proceedings in the second charge-sheet after the report of the Inquiry Officer exonerating the petitioner from the said charge in the first inquiry, amounts to double jeopardy and an infringement of Article 20(2) of the Constitution of India. 6. 6. It is strenuously argued by learned Senior Counsel that the issuance of the second charge-sheet for the same charge is barred by the principle of res judicata which is applicable to judicial and quasi-judicial proceedings. Even if it is assumed that the rule of res judicata is not applicable, the issuance of the second charge-sheet is hit by the rule of estoppels. 7. It is strongly contended that serious and intolerable injustice has been caused to the petitioner by the issuance of the second charge-sheet after the Inquiry Report exonerating the petitioner of the same charge in the first charge-sheet. This action amounts to allowing the State Government to override and nullify the report made in the first inquiry indirectly, in a roundabout way. The proper procedure would have been that after recording the reasons for disagreement with the Report of the Inquiry Officer, the Disciplinary Authority would hear the petitioner and pass an order. This has not been done in the present case, even though the first inquiry had reached a conclusive stage. 8. As an alternative argument it is submitted that in case the above submissions do not find favour with the Court, it may be kept in mind that the advice of the Gujarat Public Service Commission was served upon the petitioner along with the penalty order, which is against law. The said advice is required to be tendered before the issuance of the penalty order, so that, if required, the delinquent can make a representation to the State Government not to accept advice for imposing punishment. 9. On the strength of the above submissions, it is urged by learned Senior Counsel that the petition be allowed and the petitioner be granted salary for the period he remained out of service, till the date on which he would have attained the age of superannuation in the normal course of his service. 10. In support of the above submissions, learned Senior Counsel has placed reliance upon the following judgments: "(i) Union of India v. K.D. Pandey and another (2002)10 SCC 471 . (ii) Mathura Prasad v. Union of India and others, (2007)1 SCC 437 : ( AIR 2007 SC 381 ). (iii) Canara Bank and Ors. v. Swapan Kumar Pani and Anr., AIR 2006 SC 1297 . (ii) Mathura Prasad v. Union of India and others, (2007)1 SCC 437 : ( AIR 2007 SC 381 ). (iii) Canara Bank and Ors. v. Swapan Kumar Pani and Anr., AIR 2006 SC 1297 . (iv) Shobha Ram Raturi v. Haryana Vidyut Prasaran Nigam Limited and others - Civil Appeal No. 11325 of 2011 decided on 09.12.2015 (SC) (Reported in AIR 2016 SC 157 ). (v) Pawan Kumar Agarwala v. General Manager-II & Appointing Authority State Bank of India & Ors., 2015 (3) SCALE 45 : (AIR 2016 SC (Civ) 346). (vi) Awadh Nandan Prasad v. The Commissioner, Chotanagpur Division (North) and Ors., 2007 (3) JCR 552 (Jhr) (DB) : (2007 (2) AIR Jhar R 820)." 11. Mr. Janak Raval, learned Assistant Government Pleader, appearing for the respondents has supported the impugned order of compulsory retirement and has submitted that, it is not true that the petitioner has been exonerated of a similar charge contained in the earlier charge-sheet, issued in the year 1997. Though, it is true, that the Inquiry Officer had found that charge No. 4 regarding carrying on of private business by the petitioner has not been proved, however, the Disciplinary Authority has recorded reasons for disagreement and served a Show Cause Notice, along with the reasons, to the petitioner, on 24.12.2001. Thereafter, the petitioner submitted his final defence statement on 07.01.2002. It is submitted that in the meantime, another inquiry had already been initiated against the petitioner vide charge-sheet dated 12.05.2000. The final decision in the inquiry commenced pursuant to the charge-sheet dated 13.01.1997, was, therefore, withheld. Under the circumstances, it cannot be said that the petitioner has been exonerated in the inquiry pursuant to the charge-sheet dated 13.01.1997. 12. It is further submitted by the learned Assistant Government Pleader that the petitioner has participated in the second departmental inquiry and was fully aware of the fact that in the earlier inquiry, the Disciplinary Authority had not accepted the findings of the Inquiry Officer. The petitioner had also submitted his defence statement. The first inquiry was withheld as a second charge-sheet had been served on the petitioner. The respondents are not wrong in initiating the second inquiry against the petitioner. 13. The petitioner had also submitted his defence statement. The first inquiry was withheld as a second charge-sheet had been served on the petitioner. The respondents are not wrong in initiating the second inquiry against the petitioner. 13. It is next submitted that charge No. 4 in the first charge-sheet dated 13.01.1997, was that the petitioner has violated the provisions of Rule 15 of the Conduct Rules, as he was running a factory in the name of "Mahendra Cotton", whereas in the second charge-sheet, the single charge is that the petitioner has violated the provisions of Rule 15 of the Conduct Rules as he is a partner in the business of "Mahendra Cotton Wool Industries" and was engaged in private business while being a Government servant. Further, the petitioner was selling the manufactured goods to the State Government. There was no mention of the sale of the manufactured goods to the State Government in the first charge-sheet, hence, it cannot be said that the charge in the second charge-sheet is the same as charge No. 4 in the earlier charge-sheet. 14. On the above grounds, it is urged that the petition be rejected. 15. This Court has heard learned counsel for the respective parties at length, perused the averments made in the petition and the other pleadings, as well as the documents on record. 16. The primary issue that arises for the consideration of the Court is whether a second charge-sheet containing the same charge could be issued to the petitioner when the said charge was already a part of the earlier charge-sheet, pursuant to which the Inquiry Officer had exonerated the petitioner and no order of penalty was passed by the Disciplinary Authority, even after giving reasons for disagreement with the findings of the Inquiry Officer? 17. The ancillary issue that would have to be decided first is, whether charge No. 4 in the charge-sheet dated 13.01.1997 and the single charge in the charge-sheet dated 12.05.2000, are the same, or not? 18. The petitioner is alleged to have committed misconduct and violated Rule 15 of the Conduct Rules, which relates to private trade or employment. Rule 15(1) reads as under:-- "15. 18. The petitioner is alleged to have committed misconduct and violated Rule 15 of the Conduct Rules, which relates to private trade or employment. Rule 15(1) reads as under:-- "15. Private trade or employment: (1) subject to the provisions of sub-rule (2), no Government servant shall, except with the previous sanction of the Government-- (a) engage directly or indirectly in any trade or business, or (b) negotiate for, or undertake, any other employment, or (c) hold an elective office, canvass for a candidate or candidates for an elective office, in any body whether incorporated or not, or (d) canvass in support of any business of insurance agency, commission agency etc. owned or managed by any member of his family, or (e) take part except in the discharge of his official duties, in the registration, promotion or management of any bank or other company registered, or required to be registered, under the Companies Act, 1956 (1 of 1956) or any other law for the time being in force or of any co-operative society for commercial purposes. Explanation:-- Making or helping in making the provision of funds for a business undertaken by a wife or a member of his family shall be regarded as indirectly engaging a Government servant in trade or business and shall require previous sanction of the Government." (Emphasis supplied) Rule 15(1)(a) is relevant in the present case." 19. In the earlier charge-sheet dated 13.01.1997, charge No. 4 against the petitioner was that Rule 15 of the Conduct Rules provides that no Government servant can engage in any trade or business, in spite of which, the petitioner is running a factory at Valani Road, by the name of "Mahendra Cotton". The petitioner has, therefore, violated Rule 15 of the Conduct Rules. In the charge-sheet dated 12.05.2000, the sole charge against the petitioner is to the effect that he has violated the provisions of Rule 15 of the Conduct Rules as he is engaged in a private business and is a partner in "Mahendra Cotton Wool Industries", and is selling the manufactured goods to the State Government, which is prohibited, being a Government servant. 20. 20. It has been contended on behalf of the State Government that charge No. 4 in the first charge-sheet states that the petitioner is running a factory in the name of "Mahendra Cotton" and is engaged in a private business, whereas in the charge-sheet dated 12.05.2000, it is stated that the petitioner is a partner in "Mahendra Cotton Wool Industries" and is engaged in private business and is selling the manufactured goods to the State Government. The contention of the learned Assistant Government Pleader is that both the charges are not the same. 21. If charge No. 4 in the charge-sheet dated 13.01.1997 and the charge in the charge-sheet dated 12.05.2000 are compared, it transpires that both pertain to the violation of Rule 15 of the Conduct Rules. It is stated in both charges that the petitioner is alleged to be engaged in the trade, or business, of running a factory, by the name of "Mahendra Cotton" (as described in the earlier charge-sheet), and/or "Mahendra Cotton Wool Industries" (as stated in Statement of Imputation in the second charge-sheet). In the second charge-sheet, the petitioner is described as a partner in "Mahendra Cotton Wool Industries". The only difference sought to be elaborated upon by the learned Assistant Government Pleader is that in the earlier charge-sheet there was no allegation that the petitioner was selling the manufactured goods to the State Government, whereas this allegation is a part of the second charge-sheet. According to the learned Assistant Government Pleader, this shows that both the charges are different and the inquiries are on different charges. 22. It may be noted that Rule 15(1)(a) prohibits a Government servant from engaging directly, or indirectly, in any trade or business. 23. The dictionary meaning of 'business' as per the Concise Oxford Dictionary, 10th Edition, is: "a person's regular occupation or trade" and also as a "commercial activity...". 'Trade' is described as: "the buying and selling of goods and services...". 'Commerce' is defined as" "the activity of buying and selling, especially on a large scale...". 24. From the above dictionary meanings, it is clear that the running of a business or a trade involves the buying and selling of goods and services. Thus, the allegation that the petitioner is selling the manufactured goods to the State Government is covered under the activity of running a business which is prohibited under Rule 15(1)(a) of the Conduct Rules. From the above dictionary meanings, it is clear that the running of a business or a trade involves the buying and selling of goods and services. Thus, the allegation that the petitioner is selling the manufactured goods to the State Government is covered under the activity of running a business which is prohibited under Rule 15(1)(a) of the Conduct Rules. Buying and selling is an intrinsic part of business or trade and is covered under the definition of 'business', as is understood in the ordinary sense of the term. It cannot, therefore, be said that the charge of selling the manufactured goods to the State Government is a distinct and separate charge which is not covered by the charge of the petitioner being involved in a private business while in Government service. In any case, Rule 15 does not refer to selling the goods but only to carrying on business or trade. This Court is, therefore, of the view that charge No. 4 in the charge-sheet dated 13.01.1997, and the charge in the charge-sheet dated 12.05.2000, are essentially the same. 25. Having arrived at the above conclusion, it remains to be decided whether the second charge-sheet containing the same charge could have been issued to the petitioner at all, especially when the petitioner stood exonerated of this charge by the Inquiry Officer in the earlier charge-sheet. Further, despite giving reasons for disagreement, the Disciplinary Authority failed to pass any order of penalty against the petitioner. 26. At this stage, it would be pertinent to refer to the judgments cited on behalf of the petitioner, which would throw light on the issue. 27. In Union of India v. K.D. Pandey and another (supra), the Supreme Court has held as below: "5. Learned counsel for the appellant contended that in this case the Board had examined the material on record and come to the conclusion that four of the six charges could be proved on the available material, which had not been properly examined in the earlier inquiry. Learned counsel for the appellant contended that in this case the Board had examined the material on record and come to the conclusion that four of the six charges could be proved on the available material, which had not been properly examined in the earlier inquiry. In fact from the order made by the Railway Board as well as from that part of the file where the inquiry report made earlier is discussed, it is clear that specific findings have been given in respect of each of the charges after discussing the matter and, if that is so, we fail to understand as to how there could have been a remit to the inquiry authority for further inquiry. Indeed this resulted in second inquiry and not in a further inquiry on the same set of charges and the material on record. If this process is allowed the inquiries can go on perpetually until the view of the inquiry authority is in accord with that of the disciplinary authority and it would be abuse of the process of law. In that view of the matter we think that the order made by the High Court affirming the order of the Tribunal is just and proper and, therefore, we decline to interfere with the same. The appeal is dismissed accordingly." (Emphasis supplied) 28. In Canara Bank and Ors v. Swapan Kumar Pani and Anr., ( AIR 2006 SC 1297 ) (supra), the Supreme Court has held as below: "13. Furthermore, the charges levelled against the first respondent herein are in 2 parts; (i) that he had on 6.11.1985 removed 20 special bearer bonds pledged by the Managing Director of M/s. Utkal Iron & Steel Industries from the strong room of the bank; and (ii) out of those special bearer bonds five bearer bonds were disposed of at Calcutta for Rs. 59,500/-. Admittedly, the first part of the charge was covered by the first charge-sheet dated 20.5.1987. He having been exonerated therefrom, no fresh charge-sheet could have been issued in absence of any statutory power in this behalf. Only the second part of the said charge-sheet, is said to be based on new materials purported to have been discovered by the Managing Director of the bank. An inquiry in the second part of the charge-sheet could have been possible, if the first part thereof charge viz. Only the second part of the said charge-sheet, is said to be based on new materials purported to have been discovered by the Managing Director of the bank. An inquiry in the second part of the charge-sheet could have been possible, if the first part thereof charge viz. the respondent had removed the said bonds pledged by M/s. Utkal Iron & Steel Industries was not required to be proved. As the bank cannot be permitted to reopen the first part of the charge a fortiori cannot be allowed to enquire into the second part also as both the parts of the charge are interlinked with each other. In other words, proof of first part of the charge was wholly dependent upon the first part. The impugned judgment to that extent is unassailable. 14. The High Court, however, committed an error in granting liberty to the bank to initiate a fresh inquiry. If the High Court was of the opinion that the new materials purported to have been found were not sufficient for initiation of the enquiry in question, we fail to understand as to on what basis liberty was given to the bank to initiate a fresh inquiry more so when the misconduct, if any, was committed as far back as in the year 1985. 15. We are, however, of the opinion that in the facts and circumstances of this case the discretion exercised by the High Court in refusing back wages to the first respondent herein need not be interfered with." (Emphasis in original) 29. A judgment of the Division Bench of the High Court of Jharkhand in the case of Awadh Nandan Prasad v. The Commissioner, Chotanagpur Division (North) and Ors. (2007 (2) AIR Jhar R 820) (supra), has been relied upon by learned Senior Counsel for the petitioner, wherein the facts of the case are quite similar to those obtaining in the present case. In that case as well, the petitioner was put under suspension and disciplinary proceedings were initiated against him on charges of misconduct. An Inquiry Report was submitted wherein the charges were found to have been proved. No final order was passed and the matter was kept in abeyance for a long time. In that case as well, the petitioner was put under suspension and disciplinary proceedings were initiated against him on charges of misconduct. An Inquiry Report was submitted wherein the charges were found to have been proved. No final order was passed and the matter was kept in abeyance for a long time. The petitioner was then served with a fresh Memorandum of Charge and a second departmental inquiry was initiated for the same charge as the papers of the first inquiry could not be traced. The petitioner was held guilty in the Inquiry Report pursuant to the second charge-sheet and awarded the punishment of compulsory retirement from the date of his suspension. 30. The facts of the case before the Jharkhand High Court have an uncanny similarity to the facts of the case in hand. The only point of difference being that in the earlier inquiry, the present petitioner was exonerated by the Inquiry Officer and the record of the first inquiry was very much present with the respondents. This places the case of the present petitioner on a better footing. Even after giving reasons for disagreement, the Disciplinary Authority in the present case, did not pass any final order or impose penalty, but kept the matter in abeyance. The second charge-sheet has been preferred on 12.05.2000, during the pendency of the earlier inquiry even before the earlier Inquiry Report was submitted on 14.09.2001. The respondents permitted the first inquiry to reach the final stage when the petitioner had given his statement against the reasons for disagreement issued by the Disciplinary Authority. Nothing further remained to be done except to pass the final order. It is strange that having conducted the first inquiry till the final stage, the respondents suddenly "withheld" it and started pursuing the second inquiry, which was taken to its conclusion, though, with an intervening round of litigation, as described earlier. 31. In the judgment referred to by learned Senior Counsel, the High Court of Jharkhand, relying upon the judgment of the Supreme Court in Union of India v. K.D. Pandey and another (supra), held as below:-- "11. 31. In the judgment referred to by learned Senior Counsel, the High Court of Jharkhand, relying upon the judgment of the Supreme Court in Union of India v. K.D. Pandey and another (supra), held as below:-- "11. There is no dispute that the employer is entitled to initiate two departmental proceedings one after another in respect of different charges, but the question that falls for consideration here is whether after submission of inquiry report exonerating the employee from the charges, the employer can initiate fresh departmental proceeding for the same charges. In my view, therefore, the decision relied upon by the learned State Counsel will not apply in the facts of the present case. 12. On the other hand, learned Counsel appearing for the appellant, has relied upon a decision of the Supreme Court in the case of Union of India v. K.D. Pandey and Anr. In that case, departmental proceedings were initiated against the employee in respect of six charges. After the inquiry, a report was submitted to the effect that none of the charges levelled against the employee stood proved. The Disciplinary Authority examined the matter and found that four of the six charges could be substantially proved beyond doubt with the available documentary evidence and thereafter, remitted the matter for further inquiry. On the said direction of the Disciplinary Authority, the Enquiry Officer made a subsequent report finding the employee guilty of four charges and on the basis of that report, the employee was dismissed from service. The decision was challenged by the employee and ultimately the matter went to the Supreme Court for deciding the issue whether it was proper for the Disciplinary Authority to remit the matter to the Enquiry Officer for further inquiry. The Supreme Court held that such a procedure adopted by the Disciplinary Authority will amount to second inquiry and would be abuse of process of law. Their Lordship observed: 5. Learned Counsel for the appellant contended that in this case the Board had examined the material on record and come to the conclusion that four of the six charges could be proved on the available material, which had not been properly examined in the earlier inquiry. Their Lordship observed: 5. Learned Counsel for the appellant contended that in this case the Board had examined the material on record and come to the conclusion that four of the six charges could be proved on the available material, which had not been properly examined in the earlier inquiry. In fact from the order made by the Railway Board as well as from that part of the file where the inquiry report made earlier is discussed, it is clear that specific findings have been given in respect of each of the charges after discussing the matter and, if that is so, we fail to understand as to how there could have been a remit to the inquiry authority for further inquiry. Indeed this resulted in second inquiry and not in a further inquiry on the same set of charges and the material on record. If this process is allowed the inquiries can go on perpetually until the view of the inquiry authority is in accord with that of the disciplinary authority and it would be abuse of the process of law. In that view of the matter we think that the order made by the High Court affirming the order of the Tribunal is just and proper and, therefore, we decline to interfere with the same. The appeal is dismissed accordingly. 13. As noticed above, in the first departmental inquiry, the inquiry officer so appointed has not only considered the show cause submitted by the appellant but also examined the witnesses and received documentary evidence and after considering the evidence elaborately discussed the matter and recorded a finding holding that charges have not been proved. Even assuming that issuance of fresh memo of charges for conducting departmental inquiry afresh on the ground that record of the earlier departmental inquiry was traceless was justified, the Second Inquiry Officer, so appointed was not supposed to hold summary inquiry and only after considering the show cause/explanation come to the conclusion that -charges have been proved. Consequently, on the basis of report of the second Inquiry Officer, order of punishment passed by the Disciplinary Authority is illegal and wholly without jurisdiction and violative of principles of natural justice. Consequently, on the basis of report of the second Inquiry Officer, order of punishment passed by the Disciplinary Authority is illegal and wholly without jurisdiction and violative of principles of natural justice. In my considered opinion, therefore, such an action of the Disciplinary Authority is abuse of the process of law, Learned single Judge has not considered this aspect of the matter and the proposition of law settled by the Supreme Court. Learned single Judge had, therefore, not correctly decided the law and the judgment impugned needs interference by this Court." 32. In the present case, it is an admitted position that in the first departmental inquiry against the petitioner, the Inquiry Officer submitted a Report exonerating the petitioner of charge No. 4 on 14.09.2001, which is essentially the same charge as the charge in the second charge-sheet. The Disciplinary Authority gave reasons for its disagreement with the findings of the Inquiry Officer on 24.12.2001. Pursuant thereto, a Show Cause Notice was issued to the petitioner, to which he replied. The Disciplinary Authority is at liberty to disagree with the finding of the Inquiry Officer, but, in that eventuality, he would be required to record cogent reasons in support of such disagreement. Thereafter, the order of penalty would follow. This procedure was not complied with and the inquiry remained inconclusive. Even the reasons for disagreement, strictly speaking, cannot be termed as "reasons". This aspect will be adverted to later on. The Disciplinary Authority even issued a show cause notice to the petitioner, to which he submitted a reply. Pursuant thereto, the petitioner has not been called upon to lead any evidence and neither has the Disciplinary Authority passed any final order of penalty after considering the written submissions of the petitioner. As such, the proceedings of the first inquiry, which had almost reached the final stage, have remained inconclusive. No order has been passed "withholding" the said departmental inquiry. In any case, such a procedure is not contemplated by Rule 9 of the Discipline and Appeal Rules. 33. It is strange, that even during the pendency of the earlier departmental inquiry, a second charge-sheet was issued to the petitioner on the same charge as charge No. 4 of the earlier charge-sheet, on 12.05.2000. In any case, such a procedure is not contemplated by Rule 9 of the Discipline and Appeal Rules. 33. It is strange, that even during the pendency of the earlier departmental inquiry, a second charge-sheet was issued to the petitioner on the same charge as charge No. 4 of the earlier charge-sheet, on 12.05.2000. Such a procedure could not have been adopted by the respondents, as the first inquiry for the same charge of carrying on private trade or business, was already underway. Instead of taking the earlier departmental inquiry to its logical conclusion, the Disciplinary Authority did not pass any order of penalty after giving reasons for disagreement with the findings of the Inquiry Officer. After a gap of about six years, on 14.12.2006, the Report of the Inquiry Officer in the second departmental inquiry, initiated vide charge-sheet dated 12.05.2000, was made. The conclusions arrived at in this Report, on the same charge, were different. A finding was recorded that the said charge has been proved, on the same set of facts and material. It clearly appears that the respondents had in mind a particular conclusion. As the conclusion arrived at by the Inquiry Officer in the Report dated 14.09.2001, pursuant to the first charge-sheet dated 13.01.1997, was not to the liking of the respondents, nothing further was done in the first inquiry after recording reasons for disagreement. The second charge-sheet dated 12.05.2000, containing the same charge, was then taken up and pursued until the second Inquiry Officer (a different gentleman) came to a conclusion, vide Inquiry Report dated 14.12.2006, that the charge was proved against the petitioner. It is this second inquiry that has culminated in me final order which is impugned in the petition. 34. It is not as though no reasons have been recorded by the Inquiry Officer in the first Inquiry Report dated 14.09.2001, for the exoneration of the petitioner on the same charge. Clear and specific findings have been recorded in connection with charge No. 4 and it is after exhaustive discussion of the material on record that the finding has been arrived at that the charge has not been proved. As held by the Supreme Court in Union of India v. K.D. Pandey and another (supra), a second inquiry on the same set of charges and material is not permissible. 35. As held by the Supreme Court in Union of India v. K.D. Pandey and another (supra), a second inquiry on the same set of charges and material is not permissible. 35. It is a settled position of law that an employee cannot be vexed indefinitely for the same charge and on the same material. If such a course of action is permitted, it would amount to an abuse of the process of law. In the present case, witnesses were examined pursuant to the earlier charge-sheet and evidence was gathered. The exoneration of the petitioner by the Inquiry Officer rests on reasons that have been recorded. The first inquiry had almost reached its conclusion after the petitioner submitted his statement of defence pursuant to the reasons for disagreement given by the Disciplinary Authority. It stands to reason, therefore, that the very issuance of the second charge-sheet dated 12.05.2000, during the subsistence of the first departmental inquiry containing the same charge, is in itself unsustainable in law. It is apparent that this course of action has been adopted by the respondents in order to arrive at a different conclusion than that recorded by the Inquiry Officer in the first Inquiry Report dated 14.09.2001. Be that as it may, the procedure adopted by the respondents is clearly against the rules and is illegal. 36. It is stated in the affidavit-in-reply filed on behalf of respondent No. 1, that the final order pursuant to the charge-sheet dated 13.01.1997, was "withheld" as a second charge-sheet had been issued to the petitioner on 12.05.2000. No order "withholding" the final order in the said inquiry, or of withdrawing the first departmental proceedings has been placed on record. The very admission on the part of the respondents that no final order has been passed in the first departmental inquiry, means that the said inquiry has not yet concluded. This, in itself, is sufficient to vitiate the second departmental inquiry initiated during the pendency of the first one, on the same charge. 37. Merely by stating the reasons for disagreement with the Report of the Inquiry Officer in the first inquiry, and not following the proper procedure thereafter, does not absolve the respondents from their responsibility and obligation in conducting the departmental proceedings in accordance with rules and law. 37. Merely by stating the reasons for disagreement with the Report of the Inquiry Officer in the first inquiry, and not following the proper procedure thereafter, does not absolve the respondents from their responsibility and obligation in conducting the departmental proceedings in accordance with rules and law. The communication dated 24.12.2001, addressed to the petitioner (Annexure-RI to the affidavit-in-reply) merely states that the Disciplinary Authority disagrees with the findings of the Inquiry Officer. However, no reasons, leave alone cogent reasons, have been recorded for such disagreement. 38. In this context, an extract from the judgment of the Supreme Court in Mathura Prasad v. Union of India and others ( AIR 2007 SC 381 ) (supra), would be relevant and is reproduced hereinbelow: "18. Even if the Inquiry Officer had, in his first report, proceeded on surmises and conjectures as was observed by the High Court, the disciplinary authority could disagree with the said finding but it was, therefor, required to record its reasons. No reason was recorded. Sub-rules (2) and (3) of Rule 10 aim at achieving the same purpose. If sufficient materials are not available on record, a direction for holding a further inquiry may be issued in terms of sub-rule (2) of Rule 10 so as to enable the department to lead further evidence before him. For the said purpose also, reasons are required to be recorded by the disciplinary authority. An opportunity of hearing to the delinquent officer is required to be given. However, in the event, the disciplinary authority comes to the conclusion that the conclusion arrived at by the Inquiry Officer on the basis of materials placed by the parties are incorrect, he may disagree with the said findings but even, therefor, he is required to record reasons in support thereof. The requirement of sub-rule (2) or sub-rule (3) having not been complied with, the Inquiry Officer could not have arrived at a different finding. The High Court unfortunately did not consider this aspect of the matter. 19. When an employee, by reason of an alleged act of misconduct, is sought to be deprived of his livelihood, the procedures laid down under sub-rules are required to be strictly followed. It is now well settled that a judicial review would lie even if there is an error of law apparent on the face of the record. 19. When an employee, by reason of an alleged act of misconduct, is sought to be deprived of his livelihood, the procedures laid down under sub-rules are required to be strictly followed. It is now well settled that a judicial review would lie even if there is an error of law apparent on the face of the record. If statutory authority uses its power in a manner not provided for in the statute or passes an order without application of mind, judicial review would be maintainable. Even an error of fact for sufficient reasons may attract the principles of judicial review." (Emphasis supplied) 39. The proper course of action to be followed by the respondents would have been to grant an opportunity of hearing to the petitioner after giving reasons for disagreement and pass an order of penalty. Instead, the first inquiry has not been taken to this logical and procedural conclusion and no order of penalty has been passed by the Disciplinary Authority. It is, therefore, clear that the respondents have wilfully deviated from the prescribed procedure under Rule 9 of the Discipline and Appeal Rules and have carved out their own procedure to suit their purposes, in order to ensure that the second departmental inquiry against the petitioner culminates in an order to their liking. This course of action indicates the predetermined stand on the part of the respondents, which cannot be countenanced by this Court. 40. The respondents have adopted a novel procedure of attempting to nullify the Report of the Inquiry Officer pursuant to the first charge-sheet of 1997, exonerating the petitioner from the charge in question; firstly, by issuing a second charge-sheet on the same charge, during the subsistence of the first departmental inquiry, and secondly, waiting for six years before pursuing the second inquiry, which resulted in the second Inquiry Report dated 14.12.2006, finding charge against the petitioner to have been proved; on the basis of the same material. The order of compulsory retirement that has been passed against the petitioner is a major penalty, affecting his very livelihood. In other words, the service of the petitioner has been truncated by following a procedure that is unknown to the Rules and law. 41. It is difficult to accept two different conclusions on the same set of facts, the same material and the same charge. In other words, the service of the petitioner has been truncated by following a procedure that is unknown to the Rules and law. 41. It is difficult to accept two different conclusions on the same set of facts, the same material and the same charge. The respondents cannot be allowed to pick and choose the conclusions that they find convenient, by adopting a procedure foreign to the Discipline and Appeal Rules. The result is that the action of the respondents has caused severe injustice and prejudice to the petitioner. 42. The respondents are not in a position to justify their action of initiating a second departmental inquiry during the pendency of the first inquiry on the same charge. There is no explanation except that the final order in the first inquiry was "withheld". Under what rule such a course of action is permitted has not been clarified. No order has been produced and no rules have been shown, permitting such a course of action. 43. Rule 9 of the Discipline and Appeal Rules lays down the entire procedure to be followed in a departmental inquiry where a major penalty is contemplated. Rule 10 of the same Rules lays down the procedure to be followed when the Disciplinary Authority disagrees with the findings of the Inquiry Officer or any article of charge. After recording reasons for disagreement and if the evidence on record is sufficient, the Disciplinary Authority has to make an order imposing a penalty. This course of action has not been taken by the Disciplinary Authority in the first inquiry, as no order of penalty has been passed, though it is mandated by the above Rules. Instead, a second charge-sheet is issued on the same article of charge and pursued till the order of penalty is passed. Neither Rule 9 nor 10 of the Discipline and Appeal Rules prescribes such a procedure as adopted by the respondents. 44. Taking into consideration the totality of the facts and circumstances of the case and for the reasons recorded hereinabove, this Court is of the considered view that the impugned order of compulsory retirement dated 18.10.2010, is unsustainable in law, as the very initiation of the second departmental proceedings is illegal and vitiated, apart from being against the Rules. 45. This brings us to the question regarding the payment of salary to the petitioner. 45. This brings us to the question regarding the payment of salary to the petitioner. It may be noted that the petitioner had earlier come to this Court by filing Special Civil Application No. 319 of 2006, which was dismissed by an order dated 13.07.2006, whereby the order of compulsory retirement was confirmed. Against the said order, the petitioner preferred Letters Patent Appeal No. 1118 of 2006. By an order dated 10.10.2006, the Division Bench set aside the order of compulsory retirement, holding that the principles of natural justice had been violated as the petitioner was not permitted to cross-examine two witnesses. Pursuant thereto, the petitioner was reinstated in service and the inquiry commenced from the stage of the cross-examination of the witnesses. The petitioner has stated that, pursuant to his reinstatement as per the order of the Division Bench, he has not been paid any salary for the period of time he was terminated. He has, therefore, claimed salary with effect from 03.12.2005 (the date from which the petitioner was made to retire compulsorily) to 15.11.2006 (the date on which he was reinstated in service pursuant to the order of the Division Bench). During the course of arguments, it has been submitted that the petitioner would have superannuated in the normal course of his service had the order of compulsory retirement not been passed against him. He was, therefore, entitled for the salary and consequential benefits for the period when he was made to retire upto the date of his superannuation in the normal course of service, in the eventuality that the Court grants the prayers made in the petition. 46. In support of the submissions that the petitioner ought to be granted salary for the said period as he is not at fault, learned Senior Counsel has relied upon an order dated 09.12.2015 ( AIR 2016 SC 157 ) in Civil Appeal No. 11325 of 2011 in the case of Shobha Ram Raturi v. Haryana Vidyut Prasaran Nigam Limited and others, wherein, the Supreme Court has stated as under:-- "Having given our thoughtful consideration to the controversy, we are satisfied, that after the impugned order of retirement dated 31.12.2002 was set aside, the appellant was entitled to all consequential benefits. The fault lies with the respondents in not having utilised the services of the appellant for the period from 1.1.2003 to 31.12.2005. The fault lies with the respondents in not having utilised the services of the appellant for the period from 1.1.2003 to 31.12.2005. Had the appellant been allowed to continue in service, he would have readily discharged his duties. Having restrained him from rendering his services with effect from 1.1.2003 to 31.12.2005, the respondent cannot be allowed to press the self serving plea of denying him wages for the period in question, on the plea of the principle of "no work no pay". 47. Reliance has further been placed upon another judgment of the Supreme Court in Pawan Kumar Agarwala v. General Manager-II & Appointing Authority State Bank of India & Ors. (AIR 2016 SC (Civil) 346) (supra). The relevant observations are reproduced below: "20. For the reasons stated supra, we have examined the case threadbare on the basis of the material placed on record and rival legal contentions urged on behalf of the parties, we hold that the finding of the enquiry officer on the charges is vitiated on account of non-compliance of the statutory Rules and the principles of natural justice. In the absence of evidence, the order of reinstatement sans full back wages is unjustified in law. At best, the High Court should have made deduction of the amount of pension received by the appellant after awarding full back wages for the period in question. In not doing so, the orders of the learned single Judge and the Division Bench of the High Court are liable to be set aside with regard to non-grant of full back wages. Accordingly, we set aside the Orders of the Division Bench imposing the penalty of reduction of one increment to the appellant for one year and restore and modify the order of the learned single Judge with regard to award of reinstatement with full back wages for the period from the date of removal till the date of the appellant attaining the age of superannuation on the basis of periodical revisions of salary to the appellant herein and deduct the pension amount from the back wages payable to the appellant. The same shall be paid to the appellant within eight weeks from the date of receipt of the copy of this order." (Emphasis supplied) 48. The same shall be paid to the appellant within eight weeks from the date of receipt of the copy of this order." (Emphasis supplied) 48. Considering the submissions advanced on behalf of the petitioner and in view of the discussion recorded hereinabove and the judgments reproduced hereinabove, this Court is of the view that in the present case, the petitioner has been deprived of his service for no fault of his own, therefore, the principle of "no work no pay" will not be applicable in his case. 49. It has already been concluded, hereinabove, that the initiation of the second departmental inquiry vide the charge-sheet dated 12.05.2000, on the same article of charge as charge No. 4 in the earlier charge-sheet dated 13.01.1997, is unsustainable in law. In view of this conclusion, the entire proceedings commencing from the second charge-sheet dated 12.05.2000, upto the passing of the impugned order, are vitiated. This being the position, the impugned order of compulsory retirement dated 18.10.2010, cannot stand the scrutiny of law and is hereby quashed and set aside. 50. As the petitioner would have retired from service by now in the normal course of his service, as stated by learned Senior Counsel, there is no question of ordering his reinstatement in service. The respondents are, therefore, directed to pay the petitioner, the salary for the period the petitioner stood retired, including the earlier period when the petitioner was out of service, which is covered by the order of the Division Bench, upto the date when the petitioner would have superannuated in the normal course of his service. The service of the petitioner shall be treated as continuous service, with all consequential benefits. The payment of the said amount shall be made within a period of three months from the date of the receipt of a copy of this order. If the payment is not made within the stipulated period of time, the respondents shall pay interest at the rate of six percent per annum, thereafter. The petition is allowed in the above terms. Rule is made absolute, accordingly. There shall be no orders as to costs.