JUDGMENT : Sanjeev Prakash Sharma, J. 1. The petitioner by way of this writ petition seeks to challenge order dated 24/31.03.1999 whereby he has been dismissed from service and also the appellate order dated 29.12.1999 whereby the appeal preferred by him has been rejected. 2. Facts which are required to be noted for the disposal of the writ petition are that the petitioner D.V. Singh was working as Manager Survey in Phosphate Division at Jhamarkotra Mines under the Rajasthan State Mines & Minerals Limited. Vide memorandum dated 31.03.1997 he was served with a charge-sheet and the charges which were levelled against him were as under: "(1) That during the period 08.09.1994 to December 1995 certain serious irregularities in reporting quantity of excavation in DEH area in the running bills (I-XIII) of M/s. G.V. Pratap Reddy, Contractor were observed showing an excess quantity of excavation to the extent of 1,20,221 BCM than actual and accordingly the excess payment of Rs. 66,42,210.25/- was released to the contractor. (2) That the final bill (XIV) of M/s. G.V. Pratap Reddy was certified by you showing further additional excavation of 850 BCM. (3) That while handing over the charge at Jhamarkotra Mines on account of your transfer to Keshriaji Green Marble Project you have replaced the level books pertaining to running bills Nos. XII, XIII & XIV (final) survey maintained in the department and manipulated the office records, during your stay at Jhamarkotra Mines. At this stage the changes made were found to be against the interest of the company causing financial losses and thereby allowing undue benefit to the contractor M/s. G.V. Pratap Reddy. (4) That you have omitted the plotting of many of original ground levels resulting in excess area of excavation in favour of contractor. You have also erased the plotting of the survey in respect of 1st to XIIIth running bills of the contractor M/s. G.V. Pratap Reddy. (5) That in spite of repeated instructions you have failed to submit the survey records to the Chief Manager (Mining) in time with the intention of altering the official records and to conceal your acts of commission and omission against the interest of the company." 3. A Statement making imputation of misconduct in support of the charges was also conveyed to him. A Statement making imputation of misconduct in support of the charges was also conveyed to him. On receiving the charge-sheet, the petitioner submitted his reply on 09.04.1997 pointing out that the working methodology and arrangement prevailing at Jhamarkotra Mines over last decade was that in cases of departmental rock handling whenever there has been a shortfall in achieving annual target, in order to meet that target/minimize difference in the annual reporting quarterly survey quantity are being increased as per verbal instructions of senior mining officials and this fact is very much in knowledge of all concerned officials. Such increase was being adjusted later on. He being a subordinate officer, had no other option but to obey the officers of senior officials even though the same were oral/verbal. 4. In the said background, it was stated by petitioner that for the concerned contractor M/s. G.V. Pratap Reddy, he was directed at the end of financial year 1994-95 to increase the quantity with the definite assurance that the same shall be made good subsequently. The Engineer in-charge gave specific oral instructions to him and it was his case that he has been forced to prepare Level Books pertaining to running bills on the basis of reported quantity by the Engineer in-charge, who was ultimately responsible for passing of the running bills. 5. In short and in essence, it was case of the petitioner that the entire action taken by the petitioner was in good faith and trust and as per directions/instructions of his superior officers including the Engineer in-charge who was his controlling officer and it was prayed by him that he should be exonerated as this practice was followed by him as a subordinate officer with full knowledge of his superior officers. 6. The Enquiry was conducted and the Enquiry report was made available to the petitioner. The Enquiry Officer held the petitioner guilty, holding charges No. 1, 3 and 4 proved against him while charge No. 2 and the charge No. 5 were held to be not proved. 7. The petitioner submitted his detailed objections to the Enquiry Report and pointed out that the Enquiry Officer while conducting the enquiry had not fairly. It was submitted that the Enquiry Officer did not let the petitioner cross-examine witnesses which were produced by the department. 8. 7. The petitioner submitted his detailed objections to the Enquiry Report and pointed out that the Enquiry Officer while conducting the enquiry had not fairly. It was submitted that the Enquiry Officer did not let the petitioner cross-examine witnesses which were produced by the department. 8. During the course of enquiry, before the Enquiry Officer he has made request to provide copy of complaint and names of witnesses and it is his case set up before this Court that during the course of Enquiry, the Enquiry Officer did not allow him to raise questions in cross-examination. Along with the writ petition, by way of a schedule the petitioner has placed number of questions which were disallowed from key witnesses. 9. The petitioner has further stated that his senior officers were not charge-sheeted although initially a charge-sheet was issued to one U.K. Jha but same was later on withdrawn. The petitioner has put questions to Mr. U.K. Jha suggesting that it was at his instance that the petitioner had increased excavation of the concerned Contractor and also two other senior officers, who were called as witnesses on behalf of the Management but said questions were disallowed by the Enquiry Officer. 10. The petitioner has also alleged that one Mr. V.P. Arya was not allowed to be cross-examined and questions which were put up by the petitioner to Shri V.P. Arya were disallowed. On the other hand, the cross-examination was adjourned by the Enquiry Officer and the petitioner submitted several protests but the same were in vain and instead, other witnesses were examined by the Enquiry Office in between. 11. It is his case that he moved applications to the Disciplinary Authority as well as to the Enquiry Officer for making available documents which were required for the purpose of cross-examination to Shri V.P. Arya but the same were not made available to him. 12. The petitioner has raised further grievance regarding not allowing witnesses to be called for his defence by the Enquiry Officer. It is stated by him that the officers of the company, namely Shri M.L. Gupta, Shri P.K. Dev and Shri P.K. Chatterjee surveyor of M/s. P.K. Enterprise and three employees who had retired and three employees of the company namely Shri K.L. Loonkaran, Shri V.P. Arya and Shri N.K. Mukherjee were not allowed to be called as defence witnesses. It is stated by him that the officers of the company, namely Shri M.L. Gupta, Shri P.K. Dev and Shri P.K. Chatterjee surveyor of M/s. P.K. Enterprise and three employees who had retired and three employees of the company namely Shri K.L. Loonkaran, Shri V.P. Arya and Shri N.K. Mukherjee were not allowed to be called as defence witnesses. Later on, the Enquiry Officer only agreed to issue notices to three in-service persons but they too did not appear as defence witnesses. From perusal of the proceedings, however, it is seen that Shri V.P. Arya did appear in his capacity as officer in-charge. 13. Accordingly, it was submitted that the Enquiry Officer has conducted the enquiry in highly biased manner in favour of the Management and did not allow the petitioner to even peruse the documents relevant for the enquiry. He disallowed him from vital questions which the petitioner had put to prove his defence in cross-examinations of Shri V.P. Arya and Shri U.K. Jha who both were Engineer in-charge of the project for which the petitioner has been charge-sheeted. 14. In support of the averments, the petitioner has taken this Court to cross-examination of Shri V.P. Arya whom he had put Questions No. 7 and 9, to which he had admitted that the monthly survey was done and verified by the Engineer in-charge and not by the petitioner. Another question which has been highlighted was No. 24 whereto the concerned Engineer in-charge admitted that there was an existing practice of increasing/escalating the measurements for the purpose of attaining monthly targets, which was known to everyone. However, these questions and answers were struck off by the Enquiry Officer which clearly shows that the enquiry suffers from malice in law as well as on facts. 15. The petitioner has also taken this Court to the statement of Shri U.K. Jha wherein it has been also admitted that the running bills were checked and verified by U.K. Jha who was Engineer in-charge apart from Shri Arya. Shri U.K. Jha has also in his cross-examination admitted about the prevailing practice and the question asked to Shri U.K. Jha relating to charge-sheet having been issued to him which was withdrawn, was disallowed and the Inquiry Officer has withdrawn the said question itself. 16. It is further submitted that the entire inquiry proceedings were vitiated in view the fact that Mr. 16. It is further submitted that the entire inquiry proceedings were vitiated in view the fact that Mr. U.K. Jha who was admittedly a co-delinquent initially, by the department was made a witness against the petitioner and the Inquiry Officer has relied on the statement of Shri U.K. Jha for holding the petitioner guilty of the charge and thus, the inquiry report could not have been relied on for holding the petitioner guilty by the Disciplinary Authority. 17. The petitioner therefore submits that the Enquiry report was vitiated in law and contained several fallacies and the Enquiry Officer did not follow the norms of enquiry and did not even allow the petitioner to submit his defence in a fair and proper manner. 18. On receiving the representation, the Disciplinary Authority vide order dated 31.03.1999 has passed order dismissing the petitioner from service with immediate effect in terms of rule 51(g) of the Rajasthan State Mines & Minerals Limited Service Rules, 1975 {herein after 'the Rules of 1975'} by an approved order, which is quoted herein below: "The report of the enquiry officer was received and a copy of the same was made available to Shri D.V. Singh vide this Office letter No.RSMM/CO/Pers/11(2)/99/1152 dated 8/9.3.1999. On consideration of report of the Inquiry Officer and reply of Shri D.V. Singh dated 10.03.1999, the undersigned is not left in any doubt that the charges levelled have been proved beyond any doubt. In view of the very serious nature of the charges established against Shri D.V. Singh he deserves the punishment of dismissal from service under Rule 51(g) of the RSMML Service Rules, 1975 (Officers)." 19. The petitioner filed an appeal against the order dated 31.03.1999 running in as many as 37 pages but the appeal has also been dismissed by order passed in the Board meeting dated 29.12.1999, which reads as follows: "11.2. The Board considered the appeal and subsequent submissions made to it during hearing and reply submitted by the Management. After due consideration of the facts on record, the Board was satisfied that there is no force in the appeal submitted by Shri D.V. Singh and the impugned order passed by the Managing Director was justified..." 20. The Board considered the appeal and subsequent submissions made to it during hearing and reply submitted by the Management. After due consideration of the facts on record, the Board was satisfied that there is no force in the appeal submitted by Shri D.V. Singh and the impugned order passed by the Managing Director was justified..." 20. The petitioner has assailed the orders on the ground that both, the Disciplinary Authority as well as the Appellate Authority, have not looked into the submissions raised by him and there has been a complete non-application of mind. It is submitted that the submissions raised by the petitioner regarding not following the principles of natural justice and the action being not fair has not been taken into consideration both by the Disciplinary Authority and by the Appellate Authority. It is submitted that even the Disciplinary Authority has not bothered to examine the contentions raised by the petitioner and the fact that out of charges levelled against him three charges which have been proved were on the basis of statement of the Engineers in-charge who themselves had been charge-sheeted for the same delinquency. 21. It is submitted by the learned counsel for the petitioner that the order of dismissal passed by the Disciplinary Authority is wholly laconic and the decision-making process cannot be said to have been followed. 22. Per contra, learned counsel for the respondent has submitted that the enquiry proceedings undertaken by the Enquiry Officer ought not to be examined in minute details and some room left open for the Enquiry Officer to decide the manner he may conduct the enquiry. Merely because the statement of co-delinquents have been recorded and relied on by the Enquiry Officer it cannot be said that the enquiry has vitiated. The decision of the Enquiry Officer in disallowing questions and not taking note of the reply to said questions, cannot be itself vitiate the inquiry. 23. It is submitted that the Disciplinary Authority has agreed to the report of the Enquiry Officer and he therefore need not to give findings on each charge independently. Similarly, it is urged that the Board while deciding the appeal is not required to deal with each & every submission of the appellant, especially when it fully agrees with the Enquiry report and the order passed by the Disciplinary Authority. Similarly, it is urged that the Board while deciding the appeal is not required to deal with each & every submission of the appellant, especially when it fully agrees with the Enquiry report and the order passed by the Disciplinary Authority. It is therefore submitted that no fault can be said to have been committed while passing the impugned orders and no interfere is called for. 24. I have considered the record and the submissions raised by both the learned counsels. 25. The enquiry conducted against the petitioner was as per Rules of 1975 which envisaged the procedure. The departmental proceedings with regard to an employee of the RSMM Limited are governed by the Service Rules of 1975, which lay down under rule 50 the specified misconducts which are not to be treated to be exhaustive. Under rule 52, the procedure has been laid down for conducting the departmental enquiry and rule 51 provides for various punishments which can be imposed upon an employee held guilty of misconduct. For the purpose of this petition, rule 52 is quoted: "52. No punishment shall be imposed on an employee under these rules unless he is found in guilty of the charge alleged against him in enquiry conducted the following manner. (a) The management shall give to the employee a charge sheet setting out the misconduct alleged against him and the circumstances appearing against him and requiring his explanation. (b) The employee shall be given at least three days' time to submit his explanation provided that such time may be extended on application showing sufficient grounds. (c) On receipt of the explanation and on finding it necessary to hold a departmental enquiry into the charge's, the management shall appoint an Enquiry Officer and intimate the employee of the same. The Enquiry Officer will inform to the employee the date, time and place of the enquiry. (d) Where the employee admits the charge alleged against him in writing and the management is satisfied that such statement has been made voluntarily, the management may award punishment without holding any enquiry. (e) At the enquiry, the evidence against the concerned employee shall be led first by the management's representative and the employee shall then be called to lead evidence in his defence. (e) At the enquiry, the evidence against the concerned employee shall be led first by the management's representative and the employee shall then be called to lead evidence in his defence. (f) The Enquiry Officer shall not represent the management for examining or cross-examining the witnesses or the concerned employee at such enquiry, but he can ask questions suo motu from any witness or the concerned employee if deemed necessary for the proper conduct of the enquiry. (g) The enquiry Officer on request from the employee, shall make available such documents and information in the custody or in the possession of the management by asking the management to produce such documents as are considered relevant and necessary. (h) The employee shall be permitted to cross-examine the witnesses of the management on whose evidence the charge rests. Similarly the management's representative may cross-examine the witnesses for defence. (i) At such enquiry the employee shall be permitted to be defended by another employee with the permission of the management. (j) The Enquiry Officer shall on the conclusion of the enquiry submit his report in writing giving his findings with reasons therefore to the management. (k) An order of punishment shall be in writing and shall be issued under the signature of the competent authority and a copy of such order duly signed shall be given to the concerned employee immediately. (l) If during enquiry it be found that the employee is guilty of misconduct other than that stated in the charge sheet, the employee shall none the less be liable to punishment for misconduct provided by these rules but before any punishment is awarded to him he shall be afforded opportunity of explaining and defending his actions in respect of such misconduct. (m) Where the concerned employee refuses to accept any such communication under these rules or avoids to accept such communication without justification; the service of such communication by registered post or by posting the communication or charge sheet on the Notice Board of the concerned establishment of the company shall be deemed to be sufficient service to him. (n) If the concerned employee refuses or avoids, neglects to receive the charge sheet or to submit his explanation or to appear at the enquiry without sufficient justification or good cause, it shall be open to the management to proceed with the enquiry ex-parte. (n) If the concerned employee refuses or avoids, neglects to receive the charge sheet or to submit his explanation or to appear at the enquiry without sufficient justification or good cause, it shall be open to the management to proceed with the enquiry ex-parte. (o) It shall be open to the company to initiate disciplinary proceedings under these rules against an employee even during the period when a criminal case on more or less similar or same allegations is pending against him or even after the acquittal of the employee in such criminal proceedings." 26. A look at the above shows that the Enquiry Officer is required to conduct the enquiry in a fair and proper manner and he would not be representing the Management for the purpose of cross-examination. That apart, while the Rules are silent relating to duty of the Disciplinary Authority who is to take decision on the basis of the enquiry report, a Schedule is appended to rule 51 wherein it is provided that there shall be a Disciplinary Authority other than the Enquiry Officer and there shall be an Appellate Authority too, which in the case of petitioner was Board. 27. The submissions of the petitioner that the Disciplinary Authority will have to apply its mind independently and examine the record of the enquiry and record its findings on each charge, are essentially from provisions of rule 16(9) of the Rajasthan Civil Services (Classification, Control & Appeal) Rules, 1958 which govern service conditions of State Government employees. However, such specific requirement is not to be observed under the Rules of 1975. However, while it is true that in departmental proceedings the course adopted is different from that of judicial proceedings but it is a settled position that the Disciplinary Authority is sole judge of facts and in case an appeal is presented to appellate authority, the Appellate Authority also has the power/and jurisdiction to re-appreciate the evidence and come to its own conclusion by being a sole fact-finding authority. 28. The Court examining a disciplinary case, in writ jurisdiction, may not normally interfere with these factual findings unless it finds that the recorded findings are based either on no evidence or the findings are wholly perverse and are legally untenable. 28. The Court examining a disciplinary case, in writ jurisdiction, may not normally interfere with these factual findings unless it finds that the recorded findings are based either on no evidence or the findings are wholly perverse and are legally untenable. The adequacy or inadequacy of the evidence is not permitted to be canvassed before the High Court as the High Court does not sit as appellate authority over the factual findings recorded by the Disciplinary Authority while exercising powers of judicial review. The High Court would not normally substitute its own conclusions with regard to guilt of delinquent petitioner for that of departmental authorities. The view is reiterated by the Apex Court in the case of B.C. Chaturvedi v. Union of India - (1995) 6 SCC 749 . 29. It is well settled principle that- "even though judicial review of administrative action must remain flexible and its dimensions are not cluster courting, court in exercise of powers of judicial review is not concerned with the correctness of findings of facts on the basis of which the orders are made so long as those findings are reasonably supported by evidence and have been arrived at through proceedings which cannot be faulted with, for procedural irregularities or irregularities, which vitiate the process by which the decision was arrived at. Judicial review, it must be remembered is directed not against the decision but is confined to the examination of decision-making process" {(133 EF) Chief Constable of North-West Police v. Evans - 1882 (3) All ER 141}. 30. Keeping in view the aforesaid principle, this Court finds that the Enquiry Officer while conducting the enquiry has not allowed the petitioner to cross-examine the key witnesses whom he has ultimately relied on for holding the petitioner guilty. It has been shown that the witnesses, who were themselves responsible for the delinquency and were the Engineer in-charge of the project of which the petitioner was subordinate, were brought as prosecution witnesses and their evidence has been taken as true to bring home the charge against the petitioner, who has from the beginning stated that the action taken by him was on the basis of his super officers' directions given to him verbally. 31. 31. When the petitioner has put certain questions to said witnesses, their answers were not taken on record by the Enquiry Officer, thus, there is an inherent bias and prejudice of the Enquiry Officer which goes contrary to the specific provisions contained under rule 52(f) of the Rules of 1975 whereby the Enquiry Officer has been specifically barred to represent the Management for examining or cross-examining the witnesses. As per rule 52(h) of the Rules, the petitioner was required to be permitted to cross-examine witnesses of the Management, which also has not been allowed. 32. In M.V. Bijlani v. Union of India & Ors. (2006) 5 SCC 88 , this Court has held: "It is true that the jurisdiction of the court in judicial review is limited. Disciplinary proceedings, however, being quasi-criminal in nature, there should be some evidences to prove the charge. Although the charges in a departmental proceedings are not required to be proved like a criminal trial, i.e., beyond all reasonable doubts, we cannot lose sight of the fact that the Enquiry Officer performs a quasi-judicial function, who upon analyzing the documents must arrive at a conclusion that there had been a preponderance of probability to prove the charges on the basis of materials on record. While doing so, he cannot take into consideration any irrelevant fact. He cannot refuse to consider the relevant facts. He cannot shift the burden of proof. He cannot reject the relevant testimony of the witnesses only on the basis of surmises and conjectures. He cannot enquire into the allegations with which the delinquent officer had not been charged with." 33. In a recent decision in Allahabad Bank & Ors. v. Krishna Narayan Tewari, 2017 (0) Supreme SC 5, Hon'ble Supreme Court has observed as follows: "7. We have given our anxious consideration to the submissions at the bar. It is true that a writ court is very slow in interfering with the findings of facts recorded by a Departmental Authority on the basis of evidence available on record. But it is equally true that in a case where the Disciplinary Authority records a finding that is unsupported by any evidence whatsoever or a finding which no reasonable person could have arrived at, the writ court would be justified if not duty bound to examine the matter and grant relief in appropriate cases. But it is equally true that in a case where the Disciplinary Authority records a finding that is unsupported by any evidence whatsoever or a finding which no reasonable person could have arrived at, the writ court would be justified if not duty bound to examine the matter and grant relief in appropriate cases. The writ court will certainly interfere with disciplinary enquiry or the resultant orders passed by the competent authority on that basis if the enquiry itself was vitiated on account of violation of principles of natural justice, as is alleged to be the position in the present case. Non-application of mind by the Enquiry Officer or the Disciplinary Authority, non-recording of reasons in support of the conclusion arrived at by them are also grounds on which the writ courts are justified in interfering with the orders of punishment. The High Court has, in the case at hand, found all these infirmities in the order passed by the Disciplinary Authority and the Appellate Authority. The respondent's case that the enquiry was conducted without giving a fair and reasonable opportunity for leading evidence in defense has not been effectively rebutted by the appellant. More importantly the Disciplinary Authority does not appear to have properly appreciated the evidence nor recorded reasons in support of his conclusion. To add insult to injury the Appellate Authority instead of recording its own reasons and independently appreciating the material on record, simply reproduced the findings of the Disciplinary Authority. All told the Enquiry Officer, the Disciplinary Authority and the Appellate Authority have faltered in the discharge of their duties resulting in miscarriage of justice. The High Court was in that view right in interfering with the orders passed by the Disciplinary Authority and the Appellate Authority." 34. In this manner, there has been a fault in the entire decision-making process and the final verdict of the Disciplinary Authority, which solely rests on the report submitted by the Enquiry Officer, cannot be allowed to be sustained. The Appellate Authority also has not bothered to examine any of the submissions put up by the petitioner in his appeal. The order passed by the Appellate Authority therefore also suffers from non-application of mind {Sher Bhadur v. Union of India & Ors. - (2002) 7 SCC 142 }. 35. The Appellate Authority also has not bothered to examine any of the submissions put up by the petitioner in his appeal. The order passed by the Appellate Authority therefore also suffers from non-application of mind {Sher Bhadur v. Union of India & Ors. - (2002) 7 SCC 142 }. 35. Element of prejudice should exist as a matter of fact or there should be such definite inference of likelihood of such prejudice flowing from such default which relates to statutory violation. Judicia posteriora sunt in lege fortiora meaning prejudice normally would be a matter of fact, and a fact must be pleaded and shown by cogent documentation to be proved. It is a basic principle to arrive at a finding whether the prejudice has been caused in a given case. 36. Taking into consideration the specific averments and instances brought forth by the petitioner in the facts stated herein above, this Court finds that the prejudice has been caused to the petitioner which goes to root of the entire disciplinary proceeding. Such serious prejudice has been pleaded by the petitioner and this Court finds that the same stands proved in view of the documents produced before this Court, wherein specific questions were raised to the officers superior and answer to them was not taken on record by the Enquiry Officer. The aspect has been completely overlooked by the Disciplinary Authority as well as by the Appellate Authority. In the case of Union of India & Ors. v. Prakash Kumar Tandon - (2009) 2 SCC 541 the Supreme Court has taken a view that if the disciplinary proceedings have not been conducted fairly, presumption can be drawn that it has caused prejudice to the charged employee. 37. In the case of Allahabad Bank v. Krishna Narayan Tewari (supra), taking note of facts of the case it was further observed: "8... There may be situations where because of a long time lag or such other supervening circumstances the writ court considers it unfair, harsh or otherwise unnecessary to direct a fresh enquiry or fresh order by the competent authority. That is precisely what the High Court has done in the case at hand. The High Court has taken note of the fact that the respondent had been placed under suspension in the year 2004 and dismissed in the year 2005. That is precisely what the High Court has done in the case at hand. The High Court has taken note of the fact that the respondent had been placed under suspension in the year 2004 and dismissed in the year 2005. The dismissal order was challenged in the High Court in the year 2006 but the writ petition remained pending in the High Court for nearly seven years till 2013. During the intervening period the respondent superannuated on 30th November, 2011. Not only that he had suffered a heart attack and a stroke that has rendered him physically disabled and confined to bed. The respondent may by now have turned 65 years of age. Any remand either to the Enquiry Officer for a fresh enquiry or to the Disciplinary Authority for a fresh order or even to the Appellate Authority would thus be very harsh and would practically deny to the respondent any relief whatsoever. ..." 38. In view of the above, considering that the enquiry conducted was not fair and the punishment having been based on enquiry proceedings which were not fair, the order of punishment dated 24/31.03.1999 as well as the decision dated 29.12.1999 of the Appellate Authority are quashed and set aside. 39. As the enquiry initiated against the petitioner was in the year 1997 and almost 20 years have lapsed and the petitioner has attained superannuation way back in the year 2003 (he was 57 years when he filed the writ petition), this Court does not deem it proper to remand the matter back for further enquiry and direct the petitioner to be treated as reinstated in service and release all consequential benefits including retiral benefits. However, the petitioner shall not be entitled for any interest. The writ petition is allowed accordingly.