VERMA, J. - (1.) THE petitioner was a Junior Engineer in the Irrigation Department, was charge-sheeted on 15. 12. 1983 on the allegations mentioned in Annexure-1. An Enquiry Officer was appointed vide Annexure-6. During the pendency of the enquiry, the petitioner was reinstated vide order dated 16. 11. 1987. THE Enquiry report was submitted on 16. 10. 1987. THE petitioner was punished with stoppage of five annual grade increments with cumulative effect on 21. 9. 1988, copy of which is attached as Annexure-7. For the reason that the enquiry report was not given to the petitioner, he had applied for supply of the report on 24. 1. 1989 which was made available to him on 23. 8. 1989, copy of which is attached as Annexure-8. From the enquiry report it was revealed that none of the charge had been proved and he had been totally exonerated.
(2.) IT is also submitted that initially on the same allegations, enquiry was proposed against Shri O. P. Yadav Executive Engineer but enquiry against him was dropped by Annexure-9 on 29. 3. 1989. The petitioner is challenging the order Annexure-7. Challenge is made on the following grounds; (1) that the enquiry ought to have been initiated by the Chief Engineer who is appointing authority/head of Department and no enquiry was initiated by the disciplinary authority, rather it was initiated by the appellate authority i. e. the respondent State; (2) that none of the charge had been proved as per enquiry report Annexure-8 and the petitioner had been exonerated and in case the competent authority wanted to dis-agree with the finding of the enquiry officer, it was mandatory for him to give a note of disagreement which has not been given; (3) that on similar charges as against the petitioner, an enquiry of Shri O. P. Yadav, Executive Engineer had been dropped. The allegations as contained in the statement of allegations were (i) that the muster roll did not appear to have been maintained from day to day; (ii) daily labour report did not appear to have been prepared from day to day; (iii) thumb impressions were un-identifiable: (iv) under part I of the muster roll the details of the material used are not given; (v) loop- holes for misappropriation of cement are thus left; (vi) the muster rolls are more or less false. The allegations in regard to muster roll No. 412 and 549 caused a loss of Rs. 5784/ -. The petitioner had asked for as many as 45 documents. He had submitted an interim reply. The enquiry officer after going through the evidence as attached as Annexure- 8 had found that none of the allegation had been proved. Admittedly, no enquiry report was supplied to the petitioner, however, in the impugned order Annexure-7, the authority while inflicting the punishment had disagreed with the finding of the enquiry. Counsel for the petitioner submits that the order is in violation of the principles of natural justice as it was incumbent and obligatory for the competent authority to have issued show cause notice and should have given reasons for disagreement with the finding of the enquiry and only after giving such opportunity to the petitioner, the order could have been passed. It is also not denied that no report of the enquiry was given to the petitioner and, therefore, there was no proper opportunity ever given to the petitioner to reply to the show cause.
(3.) THE petitioner is governed by the Rajasthan Civil Services (Classification, Control & Appeal) Rules, 1958 and relies on Rule 16 (9) and (12) which read as under:- `16 (9)- THE Disciplinary Authority shall, if it is not the Inquiring Authority, consider the record of the inquiry and record its findings on each charge. THE Disciplinary Authority may while considering the report of the Enquiring Authority for just and sufficient reasons to be recorded in writing remand the case for further/denovo enquiry, in case it has reason to believe that the enquiry already conducted has been laconic in some respect or the other. ' 16 (12)-Orders passed by the Disciplinary Authority shall be communicated to the Government servant who shall also be supplied with a copy of the report of the Inquiring Authority and where the Disciplinary Authority is not the Inquiring Authority, a statement of its findings together with brief reasons of disagreement, if any, with the findings of the Inquiring Authority, unless they have already been supplied to him, and also a copy of the advice, if any, given by the Commission and, where the Disciplinary Authority has not accepted the advice of the Commission, a brief statement of the reasons for such non- acceptance. It will, however, not be necessary to furnish a copy of the report of the Enquiry Officer in the case where any of penalties specified in clauses (i) to (iii) of rule 14 is imposed on the Government servant. ' Reliance is placed on 1998 (7) SCC 84 (1 ). 1997 (7) SCC 739 (2), 1993 (3) WLC 579 (3), 1989 RLR 99 (4), 1997 (3) WLC (Raj.) 277 (5) and the counsel for the respondent relies on a judgment reported in 2000 (1) SCC 416 In the case of Yoginath D. Bagde vs. State of Maharashtra & Anor. (supra), relying on Punjab National Bank vs. Kunj Behari Misra (supra), it was held that the requirement of affording opportunity of hearing as laid in Kunj Behari Misra case, being in consonance with Art. 311 (2) and being a constitutional right to be heard, has to be read into a rule which does not make specific provisions to this effect. Disciplinary Authority before forming its final opinion, has to convey to charged employee its tenta- tive reasons for disagreeing with the findings of the Enquiry Officer. Mere issuance of show cause notice to the delinquent official with regard to proposed punishment could not meet the requirement of law because final decision to disagree with the Enquiry Officer had already been taken before issuing show cause notice. It was held that the post decisional hearing was of no avail, atleast, in the circumstances of the case. ;