Rajinder Sachar, J. - (1.) This is a petition under Article 226 impugning the order of dismissal dated 1 -7 -68 passed by the Collector, Jaipur respondent No. 2 as affirmed by the Board of Revenue respondent No. 1 by its order dated 20 -8 -71.
(2.) On 28 -11 -68 the petitioner was served with 9 charges on which it was proposed to hold an inquiry against him The inquiry was thereafter held in accordance with the Rajasthan Civil Services (Classification, Control and Appeal) Rules, (hereinafter to be called "the Rules"). An inquiry was held into them by the Sub Divisional Officer and the Inquiry Officer by his order held all the charges not proved except Charges 2 and 3 which he held to have established. The Collector thereupon on 21 -9 -61 passed an order of dismissal of the petitioner. An appeal was taken before the Board of Revenue which was allowed on 14 -5 -62 and the order of Collector was set aside and the case was remitted back to him for further inquiry in accordance with law. The matter having come back, the Collector entrusted the inquiry to the Sub -Divisional Officer, Jaipur who by his report dated 20 -9 -67 found that no charges have been proved against the petitioner. A show cause was thereafter issued to the petitioner by the Collector dated 23 -1 -68 in which it was stated that it was proposed to dismiss him from service. The petitioner showed cause and was also heard in person and thereafter the Collector by his order dated 16 -7 -68 dismissed the petitioner holding that charges 2 to 9 have not been proved but that charge No. 1 was found established which was a serious one. He also referred to the previous service record of the petitioner and took the view that the past record also showed that here were no circumstances for taking a lenient view and therefore be directed petitioner's dismissal. An appeal against the order was dismissed by the Board of Revenue on 20 -8 -71 and the petitioner being aggrieved has come to this Court.
(3.) The first grievance of Mr. Lodha, the learned counsel for the petitioner is that the order of dismissal is vitiated because of the non -compliance with the rules. It will be seen that the Inquiry Officer had by his report dated 20 -9 -67 found that none of the 9 charges have been proved against the petitioner Rule 16(10) of the Rules provide that if the disciplinary authority having regard to its findings on the charges is of the opinion that any of the penalties specified in clauses (iv) to (vi) of rule 14 should be imposed, it shall furnish to the Government servant with a copy. Rule 16(10) runs as under: - - "16(10)(i): If the Disciplinary Authority, having regard to its findings on the charges is of the opinion that any of the penalties specified in clauses (iv) to (vii) of rule 14 should be imposed, it shall - - (a) furnish to the Government servant a copy of the Inquiring Authority and, where the Disciplinary Authority is not the Inquiring Authority a statement of its findings together with brief reasons for disagreement, if any, with the findings of the Inquiring Authority; and (b) give him a notice stating the penalty proposed to be imposed on him and calling upon him to submit within a specified time such representation as be may wish to make on the proposed penalty provided that such representation shall be based only on the evidence adduced during the enquiry. (ii) (a) In every case in which it is necessary to consult the Commission the record of the Inquiry together with a copy of the notice given under clause (i) and the representation made in response to such notice, if any, shall be forwarded by the Disciplinary Authority to the Commission, for its advice. (b) On receipt of the advice of the Commission, the Disciplinary Authority shall consider the representation, if any, made by Government servant as aforesaid, and the advice given by the Commission and determine what penalty, if any, should be imposed on the Government servant and pass appropriate orders in the case. (iii) In any case in which it is not necessary to consult the Commission, the Disciplinary Authority shall consider the representation, if any, made by the Government servant in response to the notice under clause (i) and determine what penalty, if any, should be imposed on the Government servant and pass appropriate orders in the case." A reference to the show cause notice Ex. 2 shows that after having stated that the Inquiry Officer has given his findings on the charges in the charge sheet goes on to say that the Collector had after a consideration of those had come to this provisional conclusion that the petitioner should be dismissed from service and calling upon him to make his representation within a period of 15 days. Now what is most significant in this is that though a reference is made to the findings given by the Inquiry Officer the show cause notice is totally silent as to whether the Collector is disagreeing with all the findings or with any particular out of the 9 charges. The non application of the mind by the Collector is clear from the fact that it has not even been stated in the show cause notice that he was taking a different view from that of be Inquiry Officer though no doubt the fact that he suggested that it was intended to dismiss the petitioner may indicate though by inference that the Collector was not agreeing with the Inquiry officer's findings. Even though it may be possible, however unsatisfactorily, (sic) the Collector was disagreeing with the Enquiry Officer's finding, nowhere does one find in the Show Cause Notice the brief reasons for disagreement with the findings of the Inquiring Authority, as was mandatorily to be stated by the Collector in terms of rule 16(10). The purpose of proving the requirement is obviously apparent. The reason is that it the Inquiry Officer has accepted the defence of the official and has exonerated him of all the charges, the least the official is entitled in all fairness to is to be told the reasons why the disciplinary authority is disagreeing with the Enquiry Officer so that in his representation he could clarify and remove any doubts in the mind of the disciplinary authority. Now when with the exoneration on all the nine charges, the petitioner received a show cause notice without any indication as how the mind of the disciplinary authority was working it was impossible for him to give a proper and effective representation in his defence. That rule 16(10) is mandatory and its non -compliance would vitiate a dismissal has been held by Kan Singh, J. in S.N. Misra Vs. State of Rajasthan ( : 1970 RLW 287). I can therefore see no escape from the conclusion that the non compliance with the rules has caused a prejudice to the petitioner in a much as he did not get a reasonable opportunity to defend himself. Mr. Kalla learned counsel for the State however sought to point out that the petitioner even appeared in person before the Collector and therefore even if there was any flaw in the show cause notice the same must be deemed to have been removed. I cannot agree. It is nowhere in the order of the Collector that even at that stage the reasons for disagreement with the findings of the Inquiry Officer had been made available to the petitioner before he was given a hearing. The petitioner undoubtedly remained in an uncertain state without knowing which were the charges he had to meet and in this state of affair it cannot be held that a reasonable opportunity as required by the Constitution and the Rules has been given to the petitioner.;