Aparesh Kumar Singh, JHeard counsel for the parties.

2. By the impugned order bearing Memo No. 2219(S) dated 14.03.2013 (Annexure-6) issued by the Engineer-in-Chief, Road Construction Department, Government of Jharkhand, a new Inquiry Officer and Presenting Officer have been appointed to inquire into the charges levelled against the petitioner in Departmental Proceeding vide Office Order No. 204 read with Memo No. 5863(S) dated 21.08.2012 (Annexure-3 and 3/1).

3. The order impugned has been challenged by the petitioner who was then serving as a Junior Engineer at Zila Parishad, Dumka on the grounds that they are in teeth of the settled law laid down by the Honble Supreme Court in such circumstances in the case of K.R. Deb Vs. The Collector of Central Excise, Shillong, AIR 1971 SC 1447 : (1971) 1 LLJ 427 : (1971) 2 SCC 102 : (1971) SCR 375 Supp thereof. He has also relied upon a judgement rendered in the case of Kanailal Bera Vs. Union of India (UOI) and Others, (2007) 115 FLR 505 : (2007) 12 JT 641 : (2007) 11 SCALE 656 : (2007) 11 SCC 517 : (2008) 1 SCC(L&S) 63 : (2007) 10 SCR 612 : (2008) 2 SLJ 127 : (2007) AIRSCW 6329 . It is submitted that the previous Inquiry Officer i.e. the Additional Commissioner, Dumka had submitted the Inquiry Report exonerating the petitioner of charges vide letter no. 1211 dated 31.12.2012 (Annexure-5 & 5/1), which on examination by the Disciplinary Authority, was held to have been submitted without cross-examination of the victim workmen. Rejecting the said Inquiry Report, a new Inquiry Officer has been appointed by the impugned order which is impermissible in law.

4. It is submitted that the petitioner has retired on 31.07.2013. The charges inter-alia were relating to the financial irregularity to the tune of Rs. 30,222/- in the matter of payment of wages to Muster Roll Daily Wage Labourers, which also led to institution of FIR on 13.07.2007 under sections 467, 468, 409 and 420 of the Indian Penal Code. It is submitted that such a course being not open in law, the impugned order cannot survive the test of legal scrutiny.

5. Learned counsel for the respondent State has defended the impugned order and submitted that upon examination of Inquiry Report, it was found that material witnesses who were the victim labourers in respect of whom fake documents were produced by the petitioner to show payments of wages, were not cross-examined by the Inquiry Officer while exonerating the petitioner of the serious charges. Therefore, the Inquiry Report was rejected and another Inquiry Officer/Conducting Officer and Presenting Officer have been appointed which will not cause prejudice to the petitioner.

6. Having considered the relevant materials on record in the light of the aforesaid submissions of the parties, it appears that in case the Disciplinary Authority found that the Inquiry Officer had not considered the material witnesses or that no proper inquiry have been made because of some serious defect or that important witnesses were not available at the time of inquiry for some other reason, the Disciplinary Authority could ask the Inquiry Officer to record further evidence. However, total rejection of the Inquiry Report and appointment of a new Inquiry Officer, is neither contemplated under the relevant rules relating to conduct of Departmental Proceeding, nor is in line with the ratio laid down by the Honble Supreme Court in such circumstances in the case of K.R. DEB (Supra) relied upon by the petitioner. Para-12 of the said judgment is quoted hereunder as it is squarely on the same point.

"It seems to us that Rule 15, on the face of it, really provides for one inquiry but it may be possible if in a particular case there has been no proper enquiry because some serious defect has crept into the inquiry or some important witnesses were not available at the time of the inquiry or were not examined for some other reason, the Disciplinary Authority may ask the Inquiry Officer to record further evidence. But there is no provision in Rule 15 for completely setting aside previous inquiries on the ground that the report of the Inquiry Officer or Officers does not appeal to the Disciplinary Authority. The Disciplinary Authority has enough powers to reconsider the evidence itself and come to its own conclusion under Rule 9."

7. It would not be out of context to refer to the Public Servants (Inquiry) Act, 1850 which lays down the procedure for regulating the inquiries into the behaviour of Public Servants. Rule 22 thereof also speaks that on consideration of the report of the Commissioner (Inquiry Officer), Government may order them to take further evidence or give further explanation of their opinion. It may also order additional articles of charge to be framed in which case the inquiry into the truth of such additional articles, shall be made in the same manner as is herein directed with respect to the original charges. The impugned order however has transgressed the fine legal distinction in rejecting the entire Inquiry Report. Instead of directing the Inquiry Officer to record further evidence or examine material witnesses in order to come to a proper finding on the charge alleged, a new Inquiry Officer and Presenting Officer have been appointed. This whole scale de-novo inquiry would definitely prejudice the petitioner after he had participated in the said inquiry.

8. In such circumstances, the impugned order cannot be sustained in the eye of law and it is quashed. Respondents are however at liberty to direct the Inquiry Officer to record any further evidence or examine any material evidence in the matter for coming to a finding relating to the charges. In the alternative, it would also be open to the Disciplinary Authority to differ with the existing Inquiry Report giving tentative reasons thereof on the basis of materials available during the course of inquiry and proceed against the petitioner after issuance of second show-cause notice, in accordance with law, for taking appropriate decision in the matter. Since the petitioner has superannuated on 31.07.2013, the respondents obviously would be guided by the relevant provisions of Pension Rules which contemplates all such punishment which can be imposed upon the retired employee of the State.

9. The writ petition is allowed in the manner and to the extent indicated hereinabove.