P. B. Bajanthri, J.—Heard learned counsels for the respective parties.

2. The instant appeal is filed by State of Bihar. They have questioned the validity of order of the learned Single Judge dated 22.07.2015 passed in C.W.J.C. No. 12672 of 2000.

3. The respondent – Md. Shafique Ansari who was a Constable of the Police Department (Railway Police) alleged to have remained unauthorized absent on two spells namely from 09.05.1995 to 22.01.1996 and from 12.04.1996 to 05.07.1996. For remaining unauthorized absent for the aforesaid period, respondent was subjected to disciplinary proceedings and it was concluded in imposing penalty of dismissal from service on 08.07.1997. Thereafter, respondent preferred appeal before the appellate authority and it was affirmed by the appellate authority on 15.09.1998. Further respondent is stated to have submitted representation to Inspector General of Police, Railway against the order of the disciplinary and appellate authority and it was rejected on 26.11.1999. Thus, the respondent preferred C.W.J.C. No. 12672 of 2000 in which he has questioned the orders dated 08.07.1997, 15.09.1998 and 26.11.1999.

4. The learned Single Judge proceeded to set aside all the orders on the score that disciplinary authority has failed to provide opportunity of hearing or say of the respondent in respect of disagreeing with the inquiring officer’s report. The order of the learned Single Judge is extracted herein:—

“10. Consequences of quashing of the orders shall follow. The respondents are directed to reinstate the petitioner in service forthwith. In the facts and circumstances of the case, I hold that the petitioner shall be entitled for entire back wages for the period during which he had to remain out of service because of illegal orders passed by the respondents.

11. It will, however, be open to the respondents to proceed against the petitioner after giving him due opportunity by supplying him notes of disagreement from the report of the Inquiry Officer. The disciplinary authority may thereafter, upon considering the petitioner’s explanation against the tentative notes of disagreement come to his own finding and pass appropriate orders in accordance with law. The order directing the respondents to reinstate the petitioner has been passed, in view of the submissions made on behalf of the petitioner that he has not yet attained the age of superannuation.”

5. No doubt the disciplinary authority has not followed Rule 18 of Bihar Government Servants (Classification, Control & Appeal) Rules, 2005 (for short ‘Rules, 2005’) or corresponding any provision of the Police Manual to the extent that if the disciplinary authority is disagreeing with the inquiring officer’s report, in that event, the disciplinary authority had option of remanding the matter to the inquiring authority from the defective stage or he or she himself/herself can continue the disciplinary proceedings by issuing show cause notice from the defective stage. Further, holding of inquiry in the event of any oral evidence are to be adduced. Such proceedings have not been undertaken by the disciplinary authority before imposing the penalty of dismissal from service and it was affirmed by the next two higher authorities. In all fairness, learned Single Judge should have remanded the matter to the disciplinary authority to continue the disciplinary proceedings from the defective stage like remanding the matter to the inquiring authority or he himself should have issued a show cause notice from the defective stage and continue the proceedings in accordance with the Rules, 2005 or relevant Police Manual. Apex Court time and again held that if any penalty order or appellate authority’s order are set aside on the technicality, matter should be referred back to the disciplinary authority to continue the inquiry from the defective stage. In the case of Managing Director, ECIL vs. B Karunakar reported in (1993) 4 SCC 727 read with Chairman-cum-Managing Director, Coal India