JUDGMENT : Sangeeta K. Vishen, J. 1. The present petition, has been filed challenging the order dated 27.5.2004 passed by Principal Chief Conservator of Forest, Gujarat State, Gandhinagar whereby, penalties have been imposed on the petitioner inter alia of stoppage of two increments with future effect. The petitioner, has also prayed for direction to the respondents to recalculate the pensionary benefits including leave encashment, gratuity, pension etc., as if the order dated 27th May 2004 was not at all passed. 2. Brief facts are as under:- 2.1 The petitioner was working as Range Forest Officer, Gujarat Subordinate Forest Service. During the period from 24th November 1998 to 11th December 2001, the petitioner was holding the charge of Range Forest Officer in Valsad Range, Valsad. It is the case of the petitioner that the petitioner was served with charge-sheet dated 23rd July 2002 alleging that there was negligence and dereliction of duty on the part of the petitioner in protecting the forest. The said charge-sheet dated 23rd July 2002, was result of a survey conducted by the Deputy Conservator of Forest, Vigilance, Surat. According to the Deputy Conservator of Forest, Vigilance, the total number of stumps in Velvach Round in Valsad Range were to an extent of 7140. Out of 7140 stumps, 2591 stumps were part of the legal proceedings initiated by the department whereas, no legal proceedings were initiated in respect of 4549 stumps. Prior to the issuance of the charge-sheet dated 23rd July 2002, the petitioner was placed under suspension by order dated 11th December 2001. 2.2 It is the case of the petitioner that the charge-sheet dated 23rd July 2002 was followed by regular departmental inquiry against the petitioner. The petitioner appeared in the regular inquiry and Shri A.A. Parmar, Special Officer for Departmental Inquiry (hereinafter referred to as 'Inquiry Officer') after taking into account all the evidence led by the respective parties, gave his report dated 25th February 2003 holding that the charge levelled against the petitioner was not proved. 2.3 Thereafter, on 12th January 2004, the petitioner received a show-cause notice wherein, it has been inter alia observed by the author i.e. the Principal Chief Conservator of Forest that the Disciplinary Authority have not agreed with the conclusion of the Inquiry Officer on the grounds viz. 2.3 Thereafter, on 12th January 2004, the petitioner received a show-cause notice wherein, it has been inter alia observed by the author i.e. the Principal Chief Conservator of Forest that the Disciplinary Authority have not agreed with the conclusion of the Inquiry Officer on the grounds viz. (i) that the deposition of the Government witnesses supports the factum of felling of Khair trees; (ii) that the Inquiry Officer had agreed that the delinquent Patel i.e. the petitioner can be held responsible, for felling of Khair trees, during his tenure; and (iii) merely because the age of the stumps cannot be determined, it cannot be said that felling of Khair trees has not taken place during the tenure of the petitioner. 2.4 The petitioner on 19th April 2004, replied to the said notice dated 12th January 2004 inter alia pointing out that since the Disciplinary Authority has differed with the findings of the Inquiry Officer, it was incumbent upon the Disciplinary Authority to have given reasons for disagreement by discussing evidence and as to how the findings of the Inquiry Officer are not in sync with the evidence available on record. 2.5 According to the petitioner, without considering the reply filed by the petitioner, the order dated 27th May 2004 imposing punishment of stoppage of two increments with future effect as well as treating the period of suspension as period not spent on duty, came to be passed. 3. Being aggrieved, the petitioner has filed the present petition challenging the order dated 27th May 2004 passed by the Principal Chief Conservator of Forest, Gujarat State, Gandhinagar. After issuance of the notice, the respondent through Deputy Conservator of Forest, Valsad North Forest Division Valsad has filed a reply opposing the petition. 4. Heard, Mr. Rajesh Mankad learned Advocate for the petitioner and Mr. Ishan Joshi learned Assistant Government Pleader for the respondent - State. 5. Mr. Rajesh Mankad learned Advocate for the petitioner, submitted that as per Gujarat Civil Services (Discipline and Appeal) Rules, 1971 (hereinafter referred to as the 'Rules of 1971', for short), no penalty can be imposed unless the charges are proved against the delinquent - employee and charges are required to be proved by holding a regular departmental inquiry as prescribed under the Rules of 1971. 6. 6. It is submitted that the Inquiry Officer, after considering the evidence threadbare, available on record, has come to the conclusion that charge levelled against the petitioner is not proved. It is contended that it was not feasible to find out the exact age of the stumps inasmuch as, there are no methods to determine the same. In absence of any accurate details as regard the age of the stump the petitioner could not have been held responsible. It is further submitted that the Inquiry Officer while correctly following the practice, adopted by the Forest Department, has given his findings exonerating the petitioner. 7. The learned counsel for the petitioner submitted that the Inquiry Officer, has exonerated the petitioner of the charge and thus, the Disciplinary Authority, ought not to have differed with the findings recorded by the Inquiry Officer without substantiating the same by cogent reasons and discussing the evidence. It is further submitted that when the Disciplinary Authority, has disagreed with the reasonings assigned by the Inquiry Officer, it was incumbent on the part of the Disciplinary Authority to have specifically pointed out as to how many felling of trees have taken place during the tenure of the petitioner. It is submitted that the Disciplinary Authority could not have simply observed that merely because the age of stumps is not capable of being determined, it cannot be believed that felling of Khair trees have not taken place during the tenure of the petitioner. 8. It is further submitted that the Disciplinary Authority while disagreeing, has not been able to find out the defects in the interpretation by Inquiry Officer, and has simply given the reasons not supported by any discussion or evidence. Thus, it is contended that the disagreement by the Disciplinary Authority, is against the principle laid down by the Hon'ble the Apex Court in the case of Yoginath D. Bagde vs State of Maharashtra & Anr. reported in (1999)7 SCC 739 . It is submitted that the Hon'ble the Apex Court has held that where the Disciplinary Authority disagrees with the findings recorded by the Inquiry Officer in favour of the Officer/employee, mere issuance of the show-cause notice to the Officer as to why he should not be dismissed from service without providing any opportunity, would be against the principles of natural justice. Learned Advocate for the petitioner submitted that in the present case, the Disciplinary Authority, has not only failed to give cogent reasons for disagreement, but has also failed to adhere to the principles laid down by the Hon'ble Apex Court in the case of Yoginath D. Bagde vs State of Maharashtra (supra). It is thus, submitted that the order dated 27th May 2004, suffers from the principles of violation of natural justice and thus, deserves to be quashed and set-aside. Lastly, it is submitted that the Hon'ble Apex Court, in catena of decision has held that there are stages of disciplinary inquiry and at every stage, opportunity to the employee concerned to represent his case is required to be offered and failure to observe such opportunity, would render the action of the authorities invalid and bad in law. 9. Mr. Ishan Joshi learned Assistant Government Pleader, appearing for respondent - State while supporting the order dated 27th May 2004, submitted that sufficient opportunity was given to the petitioner. It is submitted that on the basis of the complaint received by the Conservator of Forest, Vigilance Circle, Vadodara, a team was constituted to inquire into illegal felling of Khair trees from the reserve forest of Velvach Round of Valsad Range where the petitioner was working. It is further submitted that the Velvach Round of Valsad Range was visited in two phases, firstly from 10th November 2001 to 11th November 2001 and secondly from 29.11.2001 to 1.12.2001. It was during the said visits, it was found that there were in all 7140 number of stumps of Khair trees from the reserve forest. First Offence Report was booked only qua 2591 stumps, whereas for 4549 stumps the petitioner while not taking the cognisance, has not registered any First Offence Report. 10. He further submitted that for the period from 27th October 2001 to 2nd November 2001, the First Offence Report was registered for 1159 stumps since the petitioner learnt that there was an inspection by a team. This was done with a view to creating show that necessary steps have been taken of registering First Offence Report. 10. He further submitted that for the period from 27th October 2001 to 2nd November 2001, the First Offence Report was registered for 1159 stumps since the petitioner learnt that there was an inspection by a team. This was done with a view to creating show that necessary steps have been taken of registering First Offence Report. It is further submitted that the Conservator of Forest, Vigilance Circle, Vadodara forwarded the inquiry report to the Conservator of Forest, Surat Circle, who in turn, suspended the petitioner vide letter dated 11th December 2001 for conducting an inquiry inasmuch as, the Conservator of Forest, Surat was of the opinion that continuance of the petitioner would not be in interest of Government as per sub-rule (1) of rule 5 of the Rules of 1971. After exchange of various communications, the Deputy Conservator of Forest, Vyara issued a charge-sheet to the petitioner dated 23rd July 2002. Since the petitioner failed to submit his defence against the charge-sheet, the Deputy Chief Conservator of Forest, vide letter dated 18th October 2002 ordered initiation of Departmental Inquiry against the petitioner and others. 11. Sufficient opportunity of hearing was accorded to the petitioner and it is only after full-fledged inquiry that the Inquiry Officer, has submitted his report. It is submitted that it is incorrect on the part of the petitioner to contend that the petitioner was exonerated of the charge by the Inquiry Officer. The Inquiry Officer indeed, was of the opinion that the petitioner was responsible for illegal felling of Khair trees during his tenure. It is submitted that the petitioner is adopting the policy of pick and choose considering the fact that only those findings of the Inquiry Officer which are favourable to the petitioner are being highlighted and not the findings which are against the petitioner. While concluding, it is submitted that the inquiry has been properly conducted and thus there is no infraction of any of the Rules of 1971. Hence, it is prayed that the order dated 27th May 2004 does not warrant interference and the petition be dismissed. 12. No other and further submissions have been made by the respective parties. 13. Considered the submissions made by the respective parties so also the material available on record. 14. Pertinently, it is nobody's case that Rules of 1971, are not applicable to the facts of the present case. 12. No other and further submissions have been made by the respective parties. 13. Considered the submissions made by the respective parties so also the material available on record. 14. Pertinently, it is nobody's case that Rules of 1971, are not applicable to the facts of the present case. Rule 10 of the Rules of 1971, provides for action on the inquiry report. Sub-rule (2) of rule 10 relevant for the present purpose, reads thus:- "10. Action on the inquiry report:..... (2) The Disciplinary Authority shall if it disagrees with the findings of the Inquiry Authority on any article of charge, record its reasons for such disagreement and record its own finding on such charge, if the evidence on record is sufficient for the purpose." Thus, it is clear that the Disciplinary Authority if disagrees with the findings of Inquiry Officer on any article or charge, is obliged to record its reasons for such disagreement and record its own findings on such charge if the evidence and record is sufficient for the purpose. 15. In this behalf, it is profitable to refer to the judgment of the Apex Court in the case of Punjab National Bank vs Kunj Behari Mishra reported in (1998)7 SCC 84 . The Apex Court, while dealing with sub-rule(2) of rule 7 of Punjab National Bank Officer Employees' (Discipline and Appeal) Regulations, 1977 which is very much in pari materia to sub-rule (2) of rule 10 of the Rules of 1971, in paragraphs 18 and 19 has observed thus: "18. Under Regulation - 6 the enquiry proceedings can be conducted either by an enquiry officer or by the disciplinary authority itself. When the inquiry is conducted by the enquiry officer his report is not final or conclusive and the disciplinary proceedings do not stand concluded. The disciplinary proceedings stand concluded with decision of the disciplinary authority. It is the disciplinary authority which can impose the penalty and not the enquiry officer. Where the disciplinary authority itself holds an inquiry an opportunity of hearing has to be granted by him. When the disciplinary authority differs with the view of the enquiry officer and proposes to come to a different conclusion, there is no reason as to why an opportunity of hearing should not be granted. Where the disciplinary authority itself holds an inquiry an opportunity of hearing has to be granted by him. When the disciplinary authority differs with the view of the enquiry officer and proposes to come to a different conclusion, there is no reason as to why an opportunity of hearing should not be granted. It will be most unfair and iniquitous that where the charged officers succeed before the enquiry officer they are deprived of representing to the disciplinary authority before that authority differs with the enquiry officer's report and, while recording of guilt, imposes punishment on the officer. In our opinion, in any such situation the charged officer must have an opportunity to represent before the Disciplinary Authority before final findings on the charges are recorded and punishment imposed. This is required to be done as a part of the first stage of enquiry as explained in Karunakar's case(supra). 19. The result of the aforesaid discussion would be that the principles of natural justice have to be read into Regulation 7(2). As a result thereof whenever the disciplinary authority disagrees with the enquiry authority on any article of charge then before it records its own findings on such charge, it must record its tentative reasons for such disagreement and give to the delinquent officer an opportunity to represent before it records its findings. The report of the enquiry officer containing its findings will have to be conveyed and the delinquent officer will have an opportunity to persuade the disciplinary authority to accept the favorable conclusion of the enquiry officer. The principles of natural justice, as we have already observed, require the authority, which has to take a final decision and can impose a penalty, to give an opportunity to the officer charged of misconduct to file a representation before the disciplinary authority records its findings on the charges framed against the officer." 16. The Apex Court has held that when the Disciplinary Authority disagrees with the Inquiry Officer on any article of charge, then before it records its own findings on such charge, it must record its tentative reasons for such disagreement and give to the delinquent - Officer an opportunity to represent, before it records its finding. The Apex Court has held that when the Disciplinary Authority disagrees with the Inquiry Officer on any article of charge, then before it records its own findings on such charge, it must record its tentative reasons for such disagreement and give to the delinquent - Officer an opportunity to represent, before it records its finding. The Apex Court has further observed and held that the report of the Inquiry Officer containing its findings will have to be conveyed to the delinquent officer and the delinquent officer will have an opportunity to persuade the Disciplinary Authority to accept the favourable conclusion of the Inquiry Officer. It is held that the principles of natural justice required the authority, which has to take a final decision and can impose a penalty, to give an opportunity to the officer charged of misconduct to file representation before the Disciplinary Authority records its findings. 17. Adverting to the merits of the case, as is discernible from the contents of the show cause notice dated 12th January 2004, inquiry report was forwarded to the Disciplinary Authority on 25th February 2003 and the Office of the Principal Chief Conservator of Forests had called for the reasons from the Disciplinary Authority. The said reasons were incorporated in the notice dated 12th January 2004. It further reveals that the Principal Chief Conservator of Forests had agreed with the reasons assigned by the Disciplinary Authority. Besides, the contents in the penultimate paragraph of the show cause notice dated 12th January 2004, clearly suggest that the Principal Chief Conservator of Forests had already concluded that the charges are proved. Pertinently, the show cause notice dated 12th January 2004 was issued to the petitioner to show cause as to why penalties viz. (i) the period spent under suspension to be treated as period not spent on duty; and (ii) penalty under rule 6 of Rules of 1971, shall not be imposed. 18. The action on the part of the concerned respondent in issuing the notice dated 12th January 2004 is erroneous on various grounds. Firstly, the Principal Chief Conservator of Forests was not the Disciplinary Authority. Further, the Principal Chief Conservator of Forests had not independently assigned the reasons for disagreement; however, borrowed the reasons assigned by the Disciplinary Authority. Be that as it may. Secondly, the reasons per se, by any stretch of imagination cannot be construed as reasons for disagreement. Firstly, the Principal Chief Conservator of Forests was not the Disciplinary Authority. Further, the Principal Chief Conservator of Forests had not independently assigned the reasons for disagreement; however, borrowed the reasons assigned by the Disciplinary Authority. Be that as it may. Secondly, the reasons per se, by any stretch of imagination cannot be construed as reasons for disagreement. Thirdly, assuming that the said reasons can be termed as reasons in its true perspective, the same were not communicated to the petitioner so as to enable him to represent and convince the authority to accept the favourable conclusions of inquiry officer. Fourthly, the Principal Chief Conservator of Forests had already concluded that the charges are proved and in view of such conclusion, there was nothing left for the petitioner to represent his case. Fifthly, the Principal Chief Conservator of Forests by issuing the show cause notice dated 12th January 2004, bypassed the provisions of Sub-rule (2) of rule 10 of Rules of 1971. Such an action on the part of the Principal Chief Conservator of Forests in issuing the notice dated 12th January 2004, and eventually passing the order dated 27th May 2004, was seriously in contravention of the principles of natural justice. 19. In the case of Yoginath Bagde v. State of Maharashtra (Supra), the Apex Court has held that the formation of the opinion should be tentative and not final and that the delinquent-employee should be given opportunity to file representation, before the Disciplinary Authority records its findings on the charges framed against the officer. In the present case, the Principal Chief Conservator of Forests, State of Gujarat as aforementioned, did not furnish to the petitioner the copy of the so called reasons for disagreement by the Disciplinary Authority but had already taken a final decision on the basis of the reasons for disagreement. Thus, it cannot be said that the authorities had scrupulously observed the Rules of 1971. It is well settled that the right to be heard, being a constitutional right, is available to the employee concerned till the final stage and the said right cannot be taken away by not giving full opportunity to the employee concerned. 20. As discussed herein above, the inquiry stands vitiated at the stage of sub-rule(2) of rule 10 of the Rules of 1971 i.e. the stage of disagreement by the Disciplinary Authority. 20. As discussed herein above, the inquiry stands vitiated at the stage of sub-rule(2) of rule 10 of the Rules of 1971 i.e. the stage of disagreement by the Disciplinary Authority. It is pertinent to take note of the judgment of the Apex Court in the case of Allahabad Bank vs. Krishna Narayan Tewari reported in (2017) 2 SCC 308 , has held in paragraph 8 as under:- "8. There is no quarrel with the proposition that in cases where the High Court finds the enquiry to be deficient, either procedurally or otherwise, the proper course always is to remand the matter back to the authority concerned to redo the same afresh. That course could have been followed even in the present case. The matter could be remanded back to the disciplinary authority or to the enquiry officer for a proper enquiry and a fresh report and order. But that course may not have been the only course open in a given situation. 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." This court, upon having found that the inquiry is vitiated at the stage of sub-rule(2) of rule 10, would have ordinarily remitted the matter back to the authorities to start the inquiry from the stage it was vitiated. However, the present petition has been filed in the year 2006 challenging the order dated 27th May 2004 and during the pendency of the petition, the petitioner upon crossing the age of superannuation has retired on 30th June 2011. In peculiar facts of the case, at this distance of time i.e. almost close to 9 years, it would be too much to expect the petitioner to once again undergo the rigmarole of the inquiry proceeding, more particularly in the absence of any quantification of loss suffered by the State Government. 21. One more aspect which requires to be considered is as to whether the order dated 27th May 2004 could have contained the penalty of treating suspension period as period not spent on duty. 21. One more aspect which requires to be considered is as to whether the order dated 27th May 2004 could have contained the penalty of treating suspension period as period not spent on duty. The Principal Chief Conservator of Forests probably being the head of the department, in exercise of its powers under sub-rule(4) of rule 7 of the Rules of 1971, has imposed penalty specified in column 3 of the appendix appended to the Rules of 1971. The appendix appended to the Rules of 1971 prescribes the powers of the head of the department to impose penalties. The appendix, prescribes the penalties viz. (i) censure (ii) withholding of increment and pay and (iii) withholding of promotion. Thus, the appendix appended to the rules speaks of the aforementioned penalties only. So far as treating the suspension period as period not spent on duty is concerned, the same does not find place in the said appendix. Thus, the exercise of power by the Principal Chief Conservator of Forests, imposing the penalty of treating the suspension period as period not spent on duty, suffers from illegality. The order dated 27th May 2004 deserves to be quashed on this count as well. 22. This court, without entering into the merits of the case, proposes to allow the writ petition and is accordingly so allowed only on the short ground of order dated 27th May 2004 being in contravention of the principles of natural justice. Under the circumstances, the order dated 27th May 2004 passed by the Principal Chief Conservator of Forests is hereby quashed and set-aside. The respondents are directed to extend to the petitioner all the consequential benefits in accordance with law within a period of eight weeks from the date of the receipt of the judgment. 23. The petition stands partly allowed. Rule is made absolute to the aforesaid extent. No order as to costs.