JUDGMENT : GOUTAM BHADURI, J. 1. The present petition is against the order dated 29-7-2015 (Annexure– P/1) by which the appeal preferred by the petitioner against the order dated 26-3-2013 (Annexure-P/8) whereby after the departmental enquiry the punishment was imposed upon the petitioner for stoppage of four annual increments with cumulative effect, was dismissed. 2. (i) Case of the petitioner is that he was working as Assistant Commissioner, Scheduled Caste & Scheduled Tribe Development Department and Member Secretary of the Purchase Committee. A work order was issued in favour of M/s Friends, Baikunthpur, for supply of pillow & mattress. Since the code of fiber yarn & coir foam were same instead of coir foam it was mentioned as fiber yarn in the work order. Accordingly, the supplier made the supply of fiber yarn pillow & mattress. When the State at its part found that the coir foam pillow & mattress were not supplied, the supplier was asked to take back the entire material. It is not in dispute that the supplier did not take back the goods instead filed a petition before this Court. In the meanwhile, the correspondence was done vide Annexure – P/4 dated 10-5-2006 by the Commissioner, ST & SC Development Department and it was advised to the Collector, Surguja that since the supply has been made, the payment may be released in favour of the supplier. Thereafter, the departmental enquiry was contemplated against the petitioner vide order dated 18-1-2007 passed by the Collector, Surguja and one Mr. Vijay Kumar Dhurve, Additional Collector was appointed as Enquiry Officer. (ii) According to the petitioner, the Additional Collector could not have been appointed as Enquiry Officer in case of petitioner, who is in the post of Assistant Commissioner, and such appointment was against the circular dated 25-1-1999 and according to it the Departmental Enquiry Commissioner was required to be appointed as Enquiry Officer. Despite the said fact, the enquiry was conducted and the enquiry report dated 17-10-2007 (Annexure – R/4) was submitted and the petitioner was afforded an opportunity to file his reply. Subsequently, the order dated 26-3-2013 (Annexure-P/8) was passed. Perusal of the said order would show that charges No.1 & 3 were not found proved whereas charge No.2 partly proved and charge No.4 was found to be proved. Subsequently, the order dated 26-3-2013 (Annexure-P/8) was passed. Perusal of the said order would show that charges No.1 & 3 were not found proved whereas charge No.2 partly proved and charge No.4 was found to be proved. It is also apparent from the said order that initially the State Government recommended for stoppage of two annual increments with cumulative effect. However, while making consultation with the Public Service Commission (PSC), the PSC opined for stoppage of four annual increments with cumulative effect. Accordingly, the order for stoppage of four annual increments with cumulative effect was passed. Against the said order, petitioner preferred an appeal, which has been dismissed vide order dated 29-7-2015 (Annexure-P/1). Hence, this petition. 3. (a) Learned counsel appearing for the petitioner would submit that when the consultation was made with the PSC, it has recommended for enhancement of punishment without affording any opportunity of hearing to the petitioner. Against the punishment order dated 26-3-2013, the petitioner preferred an appeal before the Hon’ble Governor as per Rule 27 of the Chhattisgarh Civil Services (Classification, Control and Appeal) Rules, 1966 (for brevity ‘the CCA Rules’). He would further submit that in the meanwhile by letter dated 20-3-2014 (Annexure-P/10) the Under Secretary sent back the case to the Enquiry Officer for doing the needful. Thereafter, the amended enquiry report dated 29-5-2014 was submitted. He would also submit that after the matter was remanded, the petitioner was neither noticed nor any opportunity of hearing was given. (b) Learned counsel would submit that even when the appeal was filed before the Hon’ble Governor, the Under Secretary could not have remanded the case, as the matter was ceased with the Hon’ble Governor. In support of his contention, learned counsel would place reliance upon the decision rendered by the Division bench of this Court in the matter of K.P. Dewangan v State of Chhattisgarh & Others, WA No.509 of 2015 (decided on 16-12-2015) to submit that when consultation of like nature is made with the PSC and the punishment is enhanced then in such case opportunity of hearing was required to be afforded. Even otherwise, copy of report was required to be supplied, but without following the due process, the punishment order was passed. When the appeal was filed against the said punishment order, the same was dismissed vide the order impugned. 4. Even otherwise, copy of report was required to be supplied, but without following the due process, the punishment order was passed. When the appeal was filed against the said punishment order, the same was dismissed vide the order impugned. 4. Learned counsel appearing for the State, ex adverso, would submit that opportunity of hearing was afforded to the petitioner, which is reflected from the amended enquiry report that the date of hearing was given on 16-12-2013, however, the petitioner sent a communication that he would not be available. He would submit that even otherwise, the Court cannot sit as an appellate authority over the finding of the enquiry officer. 5. I have heard the learned counsel appearing for the parties and perused the documents. 6. So far as issuance of charge sheet and enquiry report, which was initially given on 17-10-2007 (Annexure-R/4) is not in dispute. This Court even otherwise would not sit as an appellate authority over the finding of the enquiry officer. When the said report was supplied, the petitioner made his representation and subsequent thereto the punishment order dated 26-3-2013 (Annexure-P/8) was passed. Perusal of the said punishment order would show that initially the Government recommended for stoppage of two annual increments with cumulative effect, however, in consultation with the PSC, it was enhanced to stoppage of four annual increments with cumulative effect. 7. Rule 15 (3) of the CCA Rules would purport that if the disciplinary authority having regard to its findings on all or any of the articles of charge is of the opinion that any of the penalties specified in Rule 10 should be imposed on the Government servants, it shall, notwithstanding anything contained in Rule 16, make an order imposing such penalty but in doing so it shall record reasons in writing. Provided that in every case where it is necessary to consult the Commission, the record of the inquiry shall be forwarded by the disciplinary authority to the Commission for its advice and such advice shall be taken into consideration before making any order imposing any penalty on the Government servant. For the sake of convenience, Rule 15(3) is quoted below : 15. For the sake of convenience, Rule 15(3) is quoted below : 15. Action on the inquiry report.-- (1) xxx xxx xxx (2) xxx xxx xxx (3) If the disciplinary authority having regard to its findings on all or any of the articles of charge is of the opinion that any of the penalties specified in Rule 10 should be imposed on the Government servants, it shall, notwithstanding anything contained in Rule 16, make an order imposing such penalty but in doing so it shall record reasons in writing: Provided that in every case where it is necessary to consult the Commission, the record of the inquiry shall be forwarded by the disciplinary authority to the Commission for its advice and such advice shall be taken into consideration before making any order imposing any penalty on the Government servant. 8. Therefore, in exercise of such power since the petitioner was appointed through the PSC, the consultation was sought for. Perusal of the punishment order would show that the PSC recommended for higher punishment of stoppage of four annual increments with cumulative effect. 9. Rule 32 of the CCA Rules speaks that when the advice of the Government is not accepted by the PSC the reasons for such non-acceptance shall be furnished to the Government servant. Rule 32 of the CCA Rules is quoted below for ready reference : 32. Supply of copy of commission's advice.--Whenever the Commission is consulted as provided in these rules, a copy of the advice by the Commission, and where such advice had not been accepted also a brief statement of the reasons for such non-acceptance, shall be furnished to the Government servant concerned alongwith a copy of the order passed in the case, by the authority making the order. 10. These Rules came to be interpreted by the Division Bench of this Court in the matter of K.P. Dewangan (supra) wherein the Court held that when the Department was originally imposed the punishment by stopping three increments with cumulative effect, based on the consultation with the PSC, it was enhanced to termination. Apparently the mind of the State Government was persuaded and swayed by the opinion of the PSC. In the instant case too since the Government proposed for stoppage of two annual increments with cumulative effect, it was enhanced to stoppage of four annual increments with cumulative effect. Apparently the mind of the State Government was persuaded and swayed by the opinion of the PSC. In the instant case too since the Government proposed for stoppage of two annual increments with cumulative effect, it was enhanced to stoppage of four annual increments with cumulative effect. The Division Bench further observed that if a lesser punishment was proposed by the State authorities and the PSC recommended for higher punishment, opportunity of hearing should have been afforded to the employee concerned for satisfying the State authorities not to impose the higher punishment. 11. The Division Bench of this Court in K.P. Dewangan (supra) held thus at paras 4 to 7 : 4) We have considered the submissions on behalf of the parties and are satisfied that the order of termination in its present form is not sustainable. It is evident that the Department had originally proposed imposition of punishment by stopping three increments with cumulative effect for one year. Based on the consultation with the Commission, it was enhanced to termination. Apparently the mind of the State Government was persuaded and swayed by the opinion of the Commission. If a lesser punishment was proposed by the State authorities and the Commission recommended a higher punishment, we are of the considered opinion that an opportunity had to be furnished to the Appellant for satisfying the State authorities not to impose the higher punishment. In the absence of such an opportunity having been provided prejudice to the Appellant is writ large and does not need elaborate discussion. The question is not if the State authorities would have accepted his defence not to impose the higher punishment, but the opportunity to do so, irrespective of the final conclusion that may have been arrived at. 5) Had the Commission recommended a lesser punishment and the State authorities would then have opined a higher punishment, the considerations would have been entirely different. 6) The view taken by us finds support from Rule 32 which reads as follows:- “32. 5) Had the Commission recommended a lesser punishment and the State authorities would then have opined a higher punishment, the considerations would have been entirely different. 6) The view taken by us finds support from Rule 32 which reads as follows:- “32. Supply of copy of commission's advice.-Whenever the Commission is consulted as provided in these rules, a copy of the advice by the Commission, and where such advice had not been accepted also a brief statement of the reasons for such non-acceptance, shall be furnished to the Government servant concerned alongwith a copy of the order passed in the case, by the authority making the order.” The pleadings in paragraph-17 of the counter affidavit ignoring Rule 32 are therefore completely erroneous and unsustainable. 7) If consultation was held with the Commission and the recommendation of the Commission is adhered to by the Government to the prejudice of the employee, furnishing of a copy of the recommendation with opportunity of defence by supply of a copy of the recommendation before punishment was considered in (2014) 7 SCC 340 (Union of India v. R.P Singh) observing as follows :- “12…The said decision in S.N. Narula case is an authority for the proposition that the advice of UPSC, if sought and accepted, the same, regard being had to the principles of natural justice, is to be communicated before imposition of punishment. 13…After so stating the two-Judge Bench opined that when the disciplinary authority does not rely on the report of UPSC then it is not necessary to supply the same to the employee concerned. However, when it is relied upon then the copy of the same may be supplied in advance to the employee concerned, otherwise, there would be violation of the principles of natural justice. To arrive at the said conclusion, reliance was placed upon the decision in S.N. Narula case.” 12. In the case at hand, the documents annexed with the writ petition would suggest that after the punishment order was passed on 26-3-2013 the petitioner preferred an appeal before the Hon’ble Governor on 8-5-2013 (Annexure – P/9) along with entire documents. The letter dated 20-3-2014 (Annexure-P/10) would show that the Under Secretary remanded back the case to the enquiry officer to record fresh evidence of one Mr. Taman Singh Sonwani, Additional Collector, Surguja. Thereafter, the amended enquiry report was submitted on 29-5-2014 by the Additional Collector. The letter dated 20-3-2014 (Annexure-P/10) would show that the Under Secretary remanded back the case to the enquiry officer to record fresh evidence of one Mr. Taman Singh Sonwani, Additional Collector, Surguja. Thereafter, the amended enquiry report was submitted on 29-5-2014 by the Additional Collector. The representation of the petitioner would show that he made a hue & cry of the fact that he was not supplied the document before such order was passed. Albeit the amended enquiry report contains the fact the petitioner was served with a notice, but he did not turn up, however, nothing has been placed by the State to appreciate the said fact that after the case was remanded, the petitioner was noticed. Even otherwise, when the case was in the hold of the Hon’ble Governor then how the Under Secretary exercised its jurisdiction to remit back the case again to the enquiry officer also vitiates the proceedings as Rule 27 of the CCA Rules, which has a statutory effect, speaks about the deliberation at the end of the Hon’ble Governor, which cannot be taken away by usurping the jurisdiction. Even due opportunity of hearing was not afforded to the petitioner, therefore, rules of audi alteram partem is completely given go-bye. Subsequently, the appellate authority too failed to take into notice of this fact and dismissed the appeal vide the impugned order dated 29-7-2015 (Annexure-P/1). 13. In view of aforesaid discussion, I am of the view that the instant petition is liable to be allowed for the reason that when the punishment was enhanced by the PSC it would amount to not accepting the proposal of the State and as per the law laid down by the Division Bench of this Court in the matter of K.P. Dewangan (supra), the petitioner was required to be noticed and given opportunity of hearing followed by the fact that when the appeal was filed before the Hon’ble Governor any other State authorities could not have usurped the jurisdiction to remand back the case to the enquiry officer to record evidence afresh and even in such process, proper notice was not given and ex parte proceeding was drawn. 14. As an upshot, the petition is allowed. The order dated 29-7-2015 (Annexure – P/1) and the order dated 26-3-2013 (Annexure – P/8) are set aside. 14. As an upshot, the petition is allowed. The order dated 29-7-2015 (Annexure – P/1) and the order dated 26-3-2013 (Annexure – P/8) are set aside. Since it has been stated that the petitioner already retired from service on attaining the age of superannuation, the petitioner would be entitled to all consequential benefits including retrial benefits. The same would be calculated by taking into the fact that the subject punishment was never imposed upon the petitioner. 15. There shall be no order as to cost(s).