JUDGMENT
Mishra, J.
1. The petitioner, who was an Assistant Executive Engineer, in the Public Works Department, filed W.P. No. 569 of 1984 in this Court, questioning the validity of the order of the first respondent-State Government dismissing him from service. A charge memo had been issued to him on 10.5.1979 calling upon him to show cause, followed by an inquiry by the Executive Engineer, Public Works Department, Coimbatore Division, who submitted his report on 7.11.1979. On receipt of this report, the State Government found certain defects in the proceedings and ordered accordingly for a fresh inquiry. The inquiry this time was entrusted to the personal Assistant to Superintending Engineer, Public Works Department, Coimbatore Nilgiris Circle, who submitted his report on 6.3.1980. Acting upon the said report, the first respondent came to the provisional conclusion that the petitioner should be dismissed from service. Accordingly, a second show cause notice calling upon him to offer his explanation with regard to the proposed punishment was issued on 7.12.1981. The petitioner offered his explanation on 20.1.1982. The first respondent thereafter consulted the Tamil Nadu Public Service Commission. The Commission offered its remarks on 3.6.1983. The first respondent, in the light of the views expressed by the Commission, after examining the case, decided to impose the punishment of dismissal from service. The petitioner accordingly was dismissed from service.
2. Several contentions were raised in the petition filed under Article 226 of the Constitution of India, which eventually have been disposed of by a learned single Judge of this Court. In this appeal, however, a contention has been raised based upon a statement of fact with regard to the second inquiry. The learned Single Judge, has, in his order, noticed.
There was an enquiry by the Executive Engineer, Public Works Department, Coimbatore Division, on 7.11.1979, and he submitted his report. Not satisfied with that enquiry, there was an order of a second enquiry, which was conducted by the Personal Assistant to Superintending Engineer, Public Works Department, Coimbatore, Nilgiris Circle and the said Enquiry Officer submitted his report on 6.3.1980.
was such a discretion available to the disciplinary authority to set aside or ignore the inquiry already conducted by saying that it was not satisfied with the inquiry? To understand fully thus the implication of the aforequoted observation on facts in the judgment of the learned single Judge, we directed the respondents to produce the order under which the first inquiry was set aside, and the second inquiry was ordered. Learned Counsel for the State has produced before us the file containing the letter No. 11451Q/E2/78-1, dated 14.1.1980, from the Commissioner and Secretary to Government, Public Works Department, Madras, to the Chief Engineer (General), Public Works Department, Chepauk, Madras, on the subject of the inquiry into the charges levelled against the petitioner. In that letter, it is said;
On an examination of the charge sheet papers received with your letter cited, Government have observed the following defects in the proceedings;
1. The delinquent Officers have not been asked specifically in the charge – memoranda as to whether they desire to have an oral enquiry or personal hearing or both. Failure to specify this will vitiate the proceedings.
2. The charges are mostly based on the documentary evidences, particularly the super – check or inspection report of the Executive Engineer. The list of documents on which the charges are based as also the list of departmental witnesses if any have not been communicated to the delinquent officers along with the charge – memoranda.
3. An enquiry Officer other than the Executive Engineer who inspected the work and verified the measurements on which the charges are based, ought to have been appointed by you formally. Besides, the records do not show that an oral enquiry opted by the Assistant Executive Engineer, one of the delinquent Officers has been conducted properly and the proceedings recorded in accordance with the procedures by the Executive Engineer. Besides the findings of the enquiry officers have not been communicated with the charge sheet papers sent with your letter.
I am directed to request that these defects might be set right and then the charge sheet papers remitted to Government within two months after conducting the enquiry in. accordance with the prescribed procedure. The detailed procedures to be adopted under Rule 17(b) can be found in the ‘Hand Book on Disciplinary Proceedings. I am further to point out these aspects could have been checked up at your level even at the initial stage itself to save time.
2 The original charge sheet papers received with your letter are returned herewith. Their receipt may be acknowledged.
3. The Tamil Nadu Civil Services (Classification, Control and Appeal) Rules framed in exercise of the powers conferred by the Proviso to Article 309 of the Constitution of India contain in Rule 17 thereof a fundamental rule in the case of charges framed for holding disciplinary inquiry against the delinquent officer. It is not disputed before us that the petitioner belonged to the class of employees who are covered by the said rules. Rule 17(b) states:
Without prejudice to the provisions of the Public Servants’ Inquiries Act, 1850 (Central Act XXXVII of 1850), in every case where it is proposed to impose on a member of a service or on a person holding civil post under the State any of the penalties specified in items (iv), (vi), (vii) and (viii) in Rule 8, the grounds on which it is proposed to take action shall be reduced to the form of a definite charge or charges, which shall be communicated to the person charged, together with a statement of the allegation, on which each charge is based and of any other circumstances which it is proposed to take into consideration in passing orders on the case. He shall be required within a reasonable time to put in a return statement of his defence and to state whether he desires an oral inquiry or to be heard in person or both. An oral inquiry shall be held if such an inquiry is desired by the person charged or is directed by the authority concerned. Even if a person charged has waived an oral inquiry, such inquiry shall be held by the authority concerned in respect of charges which are not admitted by the person charged and which can be proved only through the evidence of witnesses. At that inquiry oral evidence shall be heard as to such of the allegations as are not admitted, and the person charged shall be entitled to cross- examine the witnesses to give evidence in person and to have such witnesses called, as he may wish, provided that the officer conducting the inquiry may, for special and sufficient reason to be recorded in writing, refuse to call a witness. “Whether or not the person charged desired or had an oral inquiry he shall be heard in person at any stage if he so desires before passing of final orders. A report of the inquiry or personal hearing whether or not such authority is competent to impose the penalty. Such report shall contain sufficient record of the evidence, if any and a statement of the findings and the grounds thereof.
Whenever any inquiring authority, after having heard and recorded the whole or any part of the evidence in an inquiry ceases to exercise jurisdiction therein, and is succeeded by another inquiring authority which has, and which exercises, such jurisdiction, the inquiring authority so succeeding may act on the evidence so recorded by its predecessor or partly recorded by the predecessor and partly recorded by itself.
Provided that if the succeeding inquiring authority is of the opinion that further examination of any of the witness whose evidence has already been recorded is necessary in the interest of justice, it may recall, examine and cross examine and re-examine any such witnesses as hereinbefore provided.
(ii) After the inquiry of personal hearing referred to in Clause (1) has been completed, and if the authority competent to impose the penalty mentioned in that clause is of the opinion, on the basis of the evidence adduced during the inquiry, that any of the penalties specified therein should be imposed on the Government servant it shall make an order imposing such penalty and it shall not be necessary to give the person charged any opportunity of making representation on the penalty proposed to be imposed.
Provided that in every case where it is necessary to consult the Tamil Nadu Public Service Commission, the disciplinary authority shall consult the Tamil Nadu Public Service Commission for its advice and such advice shall be taken into consideration before making an order imposing any such penalty;
Provided that in case of a person appointed to a post in a temporary department by recruitment by transfer from any other class or service, the State Government may at any time before the appointment of the said person as a full member to the said post revert him to each other class or service either for want of vacancy or in the event of his becoming surplus to requirements or if the State Government are satisfied that he has not got the necessary aptitude for work in the said post without observing the formalities prescribed in this sub-rule.
Besides the said rule, the other relevant rule is the provision for appeals. It is not in dispute before us that the order of dismissal of the petitioner was appealable. We have quoted the relevant rule in extenso only to take notice of the fact that it has acknowledged the procedure for imposition of any penalty and that no penalty can be imposed unless inquiry into the charges is concluded. Rules have nowhere contemplated any power in the appointing or the disciplinary authority to return a report with a direction to hold a fresh inquiry except as in Rule 17(e)(3), which states:
Where a penalty of dismissal, removal or compulsory retirement from service imposed upon a Government servant under suspension is set aside in appeal or on review under these rules and the case is remitted for further inquiry or action or with any other direction, the order of his suspension shall be deemed to have continued in force on and from the date of the original order of dismissal, removal or compulsory retirement and shall remain in force until further orders.
and in Rule 17(e)(4), wherein it is stated;
Where a penalty of dismissal, removal or compulsory retirement from service imposed upon a Government servant is set aside or declared or rendered void in consequence of or by a decision of a Court of law and the disciplinary authority, on a consideration of the circumstances of the case, decides to hold a further inquiry against him on the allegations on which penalty of dismissal, removal or compulsory retirement was originally imposed the Government servant shall be deemed to have been placed under suspension by the appointing authority from the date of the original order of dismissal, removal or compulsory retirement and shall continue to remain under suspension until further orders.
as well as Clause (5) thereof.
Where a Government servant is suspended or is deemed to have been suspended (whether in connection with any disciplinary proceedings or otherwise), and any other disciplinary proceeding is commenced against him during the continuance of suspension, the authority competent to place him under suspension may, for reasons to be recorded by him in writing direct that the Government servant shall continue to be under suspension until the termination of all or any of such proceedings.
These rules indisputably show that there can be remittance for further inquiry or action or any other directions in a case only after the imposition of penalty of dismissal, removal or compulsory retirement from service having been set aside in appeal or review. A rectification of any defect in the inquiry, after the conclusion of the inquiry, may in a case be described as a review of the order in an inquiry or an order initiating a departmental proceedings. But even that possibly cannot be done unless the inquiry is finally concluded and the proceeding is disposed of by the competent authority in accordance with law. In other words, the rules afore quoted protect the interests of the employee from any invasion or interference in the inquiry by any person in authority, so that the delinquent employee is not subjected to repeated proceedings for the same set of charges levelled against him only because some one in authority in his wisdom decided to undo the proceedings already initiated. There can be no such power conceded in favour of any person in authority because in case such a power is conceded, no one can assure that it can be exercised only in case there is a requirement of such order for a fresh inquiry, and not at the whim or caprice of the person concerned. Courts in India have recognised the incidence of a service as a right to life guaranteed under Article 21 of the Constitution of India, which says that no person shall be deprived of his life, except according to procedure established by law. The procedure established by law has been quoted by us above. No other procedure established by law has been brought to our notice which could be adopted by the respondents except one envisaged under Rule 17(b), which says that the disciplinary authority would act upon the evidence collected in the course of the inquiry. It is not unknown that certain defects are noticed in the inquiry and are corrected in course of the inquiry. But rectification as such is not a quashing or erasure of the inquiry already held. In other words, if some materials are already on record, those materials must form part of the record of the inquiry, which inquiry may for the reasons as envisaged in Rule 17(b) be rectified, but continued for such further evidence that may be necessary. The rule has envisaged the cessation of the jurisdiction of the inquiring authority, and the inquiry entrusted to a succeeding authority, and that succeeding authority may act on the evidence so recorded by its predecessor or partly recorded by its predecessor and partly recorded by itself. The succeeding inquiring authority, if it is of the opinion that further examination of any of the witnesses, whose evidence has already been recorded is necessary in the interests of justice, has also been empowered to recall any witness for further examination or cross-examination. In short, if there were defects in the inquiry and the rectification was needed, the rectification could have been carried out, but without erasing altogether the materials which were already on the record of the inquiry. By the said rectification, the Executive Engineer, who held the inquiry could have been removed, and another inquiry officer could have been appointed, but the succeeding authority was only succeeding, and not replacing.
4. We have had the advantage, with the assistance of the learned Government Pleader, to see the Government’s letter only envisaged a rectification. It never intended to undo the inquiry already held. The Government, it seems, was aware of its limitations, and, therefore, never ordered that the inquiry already held was non est. It could not say so, because such an order it would not make, except in the case of its exercising the power of appeal or review of the order imposing penalty of dismissal, removal or compulsory retirement.
5. We have heard learned Counsel for the parties on different contentions raised before the learned single Judge as well as before us in the appeal. We think, however, that all such contentions should be left for being decided after the proceeding of inquiry against the petitioner is concluded in accordance with law, since, in our opinion, the appointment of a new inquiry officer was only on appointment of a successor inquiry officer he had to take over the inquiry from the stage at which the first inquiry officer had left it, that is to say, at the stage the first inquiry officer had collected the evidence upon which he had prepared the report.
6. We, however, do not agree with the contention of learned Counsel for the appellant that since the inquiry officer had already submitted his report, all that the State Government could do was to act upon the report submitted by the inquiry officer.
7. Article 311 of the Constitution of India as well as the rule aforementioned do hot attach any value to the report of the inquiry officer. All that Article 311 contemplates is an inquiry into the charges and a reasonable opportunity of being heard in respect of the charges, and gives to the disciplinary authority the power to impose penalty on the basis of the evidence adduced during such inquiry Rule 17(b) also says, after the inquiry or personal hearing referred to in Clause (1) had been completed and if the authority competent to impose the penalty mentioned in that clause is of the opinion on the basis of the evidence adduced during the enquiry, that any of the evidence adduced during of the enquiry, that any of the penalties specified herein should be imposed on the Government servant, it shall make an order imposing such penalty. Where before the submission of the report or after, if defects in the inquiry are noticed and a rectification is found desirable, we think it will be permissible to order for such rectification. No fault, therefore, can be found with the Government’s letter dated 14.1.1980.
8. An incurable defect has, however, occurred in conducting a second inquiry, that is to say, a fresh inquiry into the charges, as if the first inquiry and (he materials/evidence collected in course of the first inquiry ceased to have any relevance. This, in our opinion, is not permissible. The procedure adopted in the second inquiry is not one prescribed by law. Anything done pursuant to an inquiry which has been held not in accordance with the prescribed procedure of law has to be held to be non est and without jurisdiction. As a result of this finding, the case has to be remitted for further hearing in accordance with law from the stage of the appointment of the successor enquiring officer, who after such rectifications as ate found necessary in terms of the aforequoted Government’s letter, will proceed with the inquiry and take evidence, besides the evidence already with law. The inquiry accordingly may proceed, and consequences may follow:
9. In the result, the appeal is allowed. The order imposing the penalty of dismissal from the service against the petitioner in G.O.Ms. No. 2637, Public Works Department, dated 25.11.1983 is quashed. The case is remitted for inquiry to second respondent and proceeding in accordance with law in the light of the observations made above. There will be no order as to costs.