JUDGMENT R.B. Misra, J.
1. In this writ petition the petitioner has prayed to quash the order dated 9.4.1999 (Annexure-9 to the writ petition) whereby the service of the petitioner has been dismissed.
2. Heard Sri M.D. Singh, learned counsel for the petitioner as well as learned standing counsel for the respondents.
3. The facts necessary for adjudication of the writ petition are that the petitioner was appointed on 21.12.1982 to the post of Class III as Ahalmad under the control of District Magistrate, Meerut at the relevant time now under the control of District Magistrate, NOIDA district Gautam Budh Nagar. While working in Land Acquisition Unit 'NOIDA' Ghaziabad, the petitioner was suspended by an order dated 19.3.1997 (Annexure-1 to the writ petition). A charge-sheet dated 14.3.1997 was served to the petitioner along with suspension order. The petitioner made a representation dated 1.4.1997 for supply of the documents/inspection by giving a list of 17 documents so that the petitioner may give effective reply of the charge-sheet. Similar requests were made by the petitioner on 4.4.1997 and 10.4.1997, however, neither the documents were furnished to him nor the petitioner was permitted to Inspect the documents as desired by him, therefore, the petitioner filed Writ Petition No. 4960 of 1997 in respect of non-supply of the documents and non-payment of subsistence allowance. The above writ petition was disposed of by order dated 30.11.1998 (Annexure-3 to the writ petition) with following directions :
"(i) Inquiry Officer/Disciplinary Authority directed to furnish the relevant document to the petitioner within 15 days. In case the document could not be supplied, the petitioner should be permitted to inspect the document and take note of the said document ;
(ii) Inquiry Officer had been directed to conclude the inquiry within a period of 10 weeks and disciplinary authority had been directed to pass final order within a period of 6 weeks ;
(iii) In case the departmental proceeding is not concluded within the stipulated period, suspension order shall stand revoked ; and
(iv) The disciplinary authority was directed to pay subsistence allowance within a period of one month from the date of production of copy of the order with condition if the petitioner is not paid subsistence allowance within the period, suspension order shall stand revoked. "
4. The petitioner made a detail representation on 20.2.1999 (Annexure-4 to the writ petition) to the District Magistrate submitting :
(i) for payment of subsistence allowance ;
(ii) for supply of the documents by making reference to the order of Hon'ble High Court dated 30.11.1998 ; and
(iii) a request was made to change the inquiry officer.
5. According to the paras 12 and 13 of the writ petition, the petitioner has stated about the non-supply of the relevant documents as well as non-permission to inspect the relevant document by the petitioner and noh-providing the proper opportunity to defend the petitioner before the Inquiry Officer. The petitioner also made a request for payment of subsistence allowance by his application dated 20.2.1999 and before disciplinary authority in his reply to the show cause notice dated 3.4.1999, however, admittedly the subsistence allowance had not been paid to the petitioner. The enquiry was concluded and punishment of dismissal order dated 9.4.1999 (Annexure-9) to the writ petition was passed which has been challenged in the present writ petition. The petitioner by his application dated 20.2.1999 (Annexure-4 to the writ petition) requested for change of the inquiry officer but before the disposal of the said application, ex parte enquiry report dated 15/17.3.1999 (Annexure-7 to the writ petition) was submitted.
6. The counter-affidavit was filed and according to para 7 of the same, it revealed that all the documents enclosed with the charge-sheet were since already made available to the petitioner, therefore, there was no necessity felt by respondents to furnish any other documents to the petitioner other than which were supplied to him. The fact that the petitioner was not paid subsistence allowance despite the request made by the petitioner from time to time, was admitted in 14 of the counter-affidavit while replying the contents of para 31 of the writ petition, therefore, it is clear that the subsistence allowance was not paid in spite of the direction of this Court dated 30.11.1998, as indicated above.
7. The averments in respect of change of inquiry officer made in para 10 of the writ petition was not controverted in para 5 of the counter-affidavit.
8. On the other hand, it has been argued by learned standing counsel on behalf of the respondents that the petitioner was given sufficient opportunities and the relevant documents were furnished to him and there was no necessity to change the inquiry officer, therefore, dismissal has been correctly made. Learned standing counsel on behalf of the respondents contended that there was no specific pleading pointing out which particular relevant document was not supplied to the petitioner due to which he was prejudiced. It was also submitted in reference to (a) Chandrama Tewari v. Union of India, AIR 1988 SC 117 ; (b) State of Tamil Nadu v. Thiru K. V. Perumal and Ors., AIR 1996 SC 2474 and (c) Secretary to Government and Ors. v. A. C. J. Britto, AIR 1997 SC 1393, where Supreme Court found that it was not necessary to supply every document asked for rather the obligation was only to supply material and relevant documents only, thus, the enquiry proceedings had not vitiated for non-supply of irrelevant documents.
9. The relevant part of Article 311(2) of the Constitution of India read as follows :
"(2) No such person as aforesaid shall be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges :
Provided that where it is proposed after such inquiry, to impose upon him any such penalty, such penalty may be Imposed on the basis of the evidence adduced during such inquiry and it shall not be necessary to give such person any opportunity of making representation on the penalty proposed.............."
10. In Ghanshyam Das Srivastava v. State of Madhya Pradesh, AIR 1973 SC 1183, when the delinquent Forest Ranger failed to attend the departmental enquiry due to paucity of funds resulting from non-payment of subsistence allowance, the 5 Judges Constitution Bench quashed the order of the Government dismissing him from service though giving liberty to the Government to start a fresh enquiry in accordance with law against him, observing as follows :
"5. As he did not receive subsistence allowance till March 20. 1965, he could not, in our opinion, attend the enquiry. The first payment of subsistence allowance was made to him on March 20, 1965, after a part of the evidence had already been recorded on February 9. 10 and 1 1. 1965. The enquiry proceedings during those days are vitiated accordingly. The report of the Inquiry Officer based on that evidence is infected with the same defect. Accordingly, the order of the Government dismissing him from service cannot stand. It was passed in violation of the provisions of Article 311(2) of the Constitution for appellant did not receive a reasonable opportunity of defending himself in the enquiry proceedings."
11. In State of Maharashtra v. Chandrabhan Tale. (1983) 3 SCC 387, the Supreme Court has held the second proviso to Rule 151 (1) (ii) (b) as unreasonable and void being violative of Article 311(2) of the Constitution of India providing payment of allowance of only rupee 1 per month to a suspended Government servant holding that normal subsistence allowance must be paid during the pendency of the trial of the criminal proceedings, appeal and even appeal before the Supreme Court, which is evident from paragraph 23 of the judgment which reads as follows :
"Any departmental enquiry made without payment of subsistence allowance contrary to the provision for its payment, is violative of Article 311(2) of the Constitution as has been held by this Court in the above decision.
Similarly, any criminal trial of a civil servant under suspension without payment of the normal subsistence allowance payable to him under the rule would be violative of that Article. Payment of subsistence allowance at the normal rate pending the appeal filed against the conviction of a civil servant under suspension is a step that makes the right of appeal fruitful and it is therefore, obligatory. Reduction of the normal subsistence allowance to the nominal sum of Re. 1 per month on conviction of a civil servant under suspension in a criminal case pending his appeal filed against that conviction, whether the civil servant is on bail or has been lodged in prison on conviction pending consideration of his appeal, is an action which stultifies the right of appeal and is consequently unfair and unconstitutional just as it would be impossible for a civil servant under suspension who has no other means of subsistence to defend himself effectively in the trial court without the normal subsistence allowance-there is nothing on record in these cases to show that the civil servants concerned in these cases have any other means of subsistence, it would be impossible for such civil servant suspended to prosecute his appeal against his conviction fruitfully without payment of the normal subsistence allowance pending his appeal. Therefore, Baban's contention in the writ petition that the subsistence allowance is required to support the civil servant and his family not only during the trial of the criminal case started against him but also during the pendency of the appeal filed in the High Court or this Court against his conviction is correct. If any provision in any rule framed under Article 309 of the Constitution is illusory or unreasonable. It is certainly open to the civil servant concerned to seek the aid of the Court for declaring that provision to be void. In these circumstances, I hold that the second proviso is unreasonable and void and that a civil servant under suspension is entitled to the normal subsistence allowance even after his conviction by the trial court pending consideration of his appeal filed against his conviction until the appeal is disposed of finally one way or the other, whether he is on bail or lodged in prison on conviction by the trial court."
12. In Fakirbhai Fulabhai Solanki v. Presiding Officer. AIR 1986 SC J168, it was held as follows :
"Denial of payment of at least a small amount by way of subsistence allowance would amount to gross unfairness and violative of principles of natural justice." (Paragraphs 8 and 9)
13. In Captain M. Paul Anthorny v. Bharat Gold Mines Ltd. and Ors., 1999 (2) AWC 1579 (SC) ; (1999) 2 UPLBEC 1280 (SC) : AIR 1999 SC 1416, the Supreme Court had held as follows :
"....Suspension notwithstanding non-payment of subsistence allowance is an inhuman act which has an unpropitious effect on the life of an employee. When the employee is placed under suspension, he is demobilised and the salary is also paid to him at a reduced rate under the nick name of 'subsistence allowance', so that the employee may sustain himself. This Court in O. P. Gupta v. Union of India and Ors., JT 1987 (3) SC 532, made the following observations with regard to subsistence allowance :
"An order of suspension of a Government servant does not put an end to his service under the Government. He continues to be a member of the service in spite of the or der of suspension. The real effect of suspension as ex plained by this Court in Khem Chand v. Union of India, is that he continues to be a member of the Government service but is not permitted to work and further during the period of suspension he is paid only some allowance--
generally called subsistence allowance, which is normally less than the salary instead of the pay and allowances he would have been entitled to if he had not been suspended.
There is no doubt that an or der of suspension, unless the departmental inquiry is con cluded within a reasonable time, affects a Government servant injuriously. The very expression 'subsistence allowance' has an undeniable penal significance. The dictionary meaning of the word 'subsist' as given in Shorter Oxford English Dictionary.
Vol. (II) at p. 2171 is "to re main alive as on food to continue u e to exist".
"Subsistence" means--means of supporting life, especially a minimum livelihood."
If, therefore, even that amount is not paid, then the very object of paying the reduced salary to the employee during the period of suspension would be frustrated. The act of nonpayment of subsistence allowance, would gradually starve himself to death.
On joining Government service, a person does not mortgage or barter away his basic rights as a human being, including his fundamental rights, in favour of the Government. The Government, only because it has the power to appoint, does not become the master of the body and soul of the employee. The Government by providing job opportunities to its citizens only fulfils its obligations under the Constitution, including the Directive Principles of the State Policy. The employee, on taking up an employment only agrees to subject himself to the regulatory measures concerning his service. His association with the Government or any other employer. like Instrumentalities of the Government or Statutory or Autonomous Corporations etc., is regulated by the terms of contract of service or Service Rules made by the Central or the State Government. Under the proviso to Article 309 of the Constitution or other Statutory Rules including Certified Standing Orders. The fundamental rights, including the Right to Life under Article 21 of the Constitution or the basic human rights are not surrendered by the employee. The provision for payment of subsistence allowance made in the Service Rules only ensures non-violation of the right to life of the employee. That was the reason why this Court In State of Maharashtra v. Chanderbhan, 1983 (3) SCR 337 : 1983 (3) SCC 387 : AIR 1983 SC 803, struck down a Service Rule which provided for payment of a nominal amount of rupee one as subsistence allowance to an employee placed under suspension. This decision was followed in Fakirbhai Fulabhai Solanki v. Presiding Officer and another, JT 1986 SC 394, and it was held in that case that if an employee could not attend the departmental proceedings on account of financial stringencies caused by non-payment of subsistence allowance, and thereby could not undertake a journey away from his home to attend the departmental proceedings, the order of punishment, including the whole proceedings would stand vitiated. For this purpose, reliance was also placed on an earlier decision in Ghanshyam Das Srivastava v. State of Madhya Pradesh, (1973) 1 SCC 656 ; AIR 1973 SC 1183.
Since in the instant case the appellant was not provided any A.W.C. 144 subsistence allowance during the period of suspension and the adjournment prayed for by him on account of his illness, duly supported by medical certificates, was refused resulting an ex parte proceedings against him. We are of the opinion that the appellant has been punished in total violation of the principles of natural justice and he was liberally not afforded any opportunity of hearing. Moreover, as pleaded by the appellant before the High Court as also before us that on account of his penury occasioned by non payment of subsistence allowance, he could not undertake a Journey to attend the disciplinary proceedings, the findings recorded by the Inquiry Officer at such proceedings, which were held ex parte, stand vitiated."
In view of the discussions aforesaid, we hold that due to non-payment of subsistence allowance, the inquiry, the punishment of dismissal of the petitioner and dismissal of his appeal, all are void and liable to be quashed by this Court by grant of a writ of certiorari."
14. The petitioner has placed reliance on the decision in Jagdamba Prasad Shukla v. State of V. P. and Ors., 2000 (4) AWC 2982 (SC) : (2000) 7 SCC 90 para 8 :
"Where the Supreme Court has held that the payment of subsistence allowance. In accordance with the Rules, to an employee under suspension is not a bounty. It is a right. An employee is entitled to be paid the subsistence allowance. No justifiable ground has been made out for non-payment of the subsistence allowance all through the period of suspension, i.e., from suspension till removal. One of the reasons for not appearing in inquiry as intimated to the authorities, was the financial crunch on account of nonpayment of subsistence allowance and the other was the illness of the appellant. The appellant in reply to the show cause notice stated that even if he was to appear in inquiry against medical advice, he was unable to appear for want of funds on account of non-payment of subsistence allowance. It is a clear case of breach of principles of natural justice on account of the denial of reasonable opportunity to the appellant to defend himself in the departmental enquiry. Thus, the departmental enquiry and the consequent order of removal from service are quashed."
15. The petitioner also placed reliance on the judgments of this High Court in K. P. Giri v. State of U. P. and Ors., 2001 (1) UPLBEC 908, paras 7 and 8 as well as on Bajrang Prasad Sriuastaua v. U. P. Partyojana Prabandha. U. P. State Bridge Corporation Ltd. and Ors., 2O02 UPLBEC 1321. It was held in the case of K. P. Giri (supra) :
"Even in the absence of any reply submitted by the petitioner to the charge-sheet, it was incumbent upon the enquiry officer to fix the date in the enquiry and to intimate the petitioner about the same which has not been done in the present case. Moreover, from a perusal of the order of dismissal dated 20.3.1998, it will be seen that the management had produced the evidence in support of the charges levelled against the petitioner had been accepted by the enquiry officer without making any effort to confront the same to the petitioner. Thus, the entire proceedings have been conducted in gross violation of equity, fair play and is in breach of the principles of natural justice."
16. In respect of change of Inquiry officer the petitioner has further placed reliance on Registrar of Co-operative Societies, Madras and another u, F. X. Farnando, 1994 (2) SCC 746 page 12, where it was held that justice must not only be done but must be seen to be done, therefore, the Supreme Court has directed that an another enquiry officer be appointed in order to remove any apprehension of bias on the part of the respondent. In Indrani Bai (Smt.) v. Union of India and Ors., 1994 Supp. (2) SC 256 para 2. The Supreme Court has held that :
"It is seen that right through, the delinquent officer had entertained a doubt about the impartiality of the enquiry to be conducted by the enquiry officer. When he made a representation at the earliest, requesting to change the enquiry officer, the authorities should have acceded to the request and appointed another enquiry officer, other than the one whose objectivity was doubted."
17. The petitioner has placed reliance on Subhash Chand Sharma v. M. D., U. P. Co-operative Spg. Mills Fed. Ltd., 1999 (4) AWC 3227 para 5. In this judgment of this Court, it was held that :
"In our opinion, after the petitioner replied to the charge-sheet a date should have been fixed for the enquiry and the petitioner should have been intimated the date, time and place of the enquiry and on that date the oral and documentary evidence against the petitioner should have been led in his presence and he should have been given an opportunity to cross-examine the witnesses against him and also he should have been given an opportunity to produce his own witnesses and evidence. If the petitioner in response to this intimation had failed to appear for the enquiry, then an ex parte enquiry should have been held but the petitioner's service should have not been terminated without holding an enquiry. In the present case, it appears that no regular enquiry was held at all. All that was done that after receipt of the petitioner's reply to the charge-sheet, he was given a show cause notice and thereafter the dismissal order was passed. In our opinion, this was not the correct legal procedure and there was violation of the rules of natural justice. Since no date for enquiry was fixed nor any enquiry held in which evidence was led in our opinion, the impugned order is clearly violative of natural justice."
18. In Meenglas Tea Estate v. Workmen, AIR 1963 SC 1719, the Supreme Court observed :
"It is an elementary principle that a person who is required to answer a charge must know not only the accusation but also the testimony by which the accusation is supported. He must be given a fair chance to hear the evidence in support of the charge and to put such relevant questions by way of cross-examination as he desires. Then he must be given a chance to rebut the evidence led against him. This is the barest requirement of an enquiry of this character and the requirement must be substantially fulfilled before the result of the enquiry can be accepted."
19. In S, C. Girotra v. United Commercial Bank, 1995 Supp. (3) SCC 212, the Supreme Court set aside the dismissal order which was passed without giving the employee an opportunity of cross-examination. In Punjab National Bank v. AIPNBE Federation, AIR 1960 SC 160 (vide Para 66), the Supreme Court held that in such enquiries evidence must be recorded in the presence of the charge-sheeted employee and he must be given an opportunity to rebut the said evidence. The same view was taken in A. C. C. Ltd. v. Their Workmen, (1963) 11 LLJ 396 and in Tata Oil Mills Co. Ltd. v. Their Workmen, (1963) 11 LLJ 78 (SC).
20. The petitioner has also placed reliance on P. C. Chaturvedi v. U. P. State Textile Corporation Ltd. and another, 2001 (4) AWC 3061, where the subsistence allowance were not paid despite the request made by the petitioner and the Inquiry Officer passed ex parte order and recommended dismissal against the petitioner and the disciplinary authority passed the dismissal on the recommendation made by the Inquiry Officer such dismissal was quashed.
21. The writ-petitioner when not paid the subsistence allowance for the period from the date of suspension to the date of ex parte inquiry and for non-payment of subsistence allowance, the writ-petitioner had suffered constitutional rights of the writ-petitioner were found to have been violated, thus the entire proceedings commencing from suspension of the petitioner leading to his dismissal treated to be actuated with malice in law was, therefore, quashed.
22. The petitioner placed reliance on the judgment dated 25.5.2001 of this Court (DB) (M. Katju and R. B. Misra, JJ.) in Writ Petition No. 7133 of 2001, Radhey Shyam v. Secretary Minor Irrigation Department and Rural Engineering Services U. P. and Ors., where the writ petitioner working as incharge executive engineer in the rural engineering services and minor irrigation department was charge-sheeted for his alleged involvement of embezzlement, financial irregularities and financial loss however was made handicapped to participate in the inquiry for non-payment of subsistence allowance as well as legal dues during his suspension and the request of change of inquiry officer was not accepted by the competent authority and the ex parte inquiry was conducted behind his back without adopting proper procedure, no specific date, time and place of inquiry was fixed, oral and documentary evidence against the writ-petitioner was not adduced in his presence and he was not given opportunity to cross-examine the witnesses against him and he was not afforded opportunity to produce his own witnesses and evidences. The ex parte inquiry was found illegal and the order of dismissal of writ petitioner was quashed while allowing the writ petition, however, keeping in view the financial loss and irregularities. It was made open to the respondents to hold a fresh inquiry in accordance with law and pass a fresh order. It is pertinent to mention that the Special Leave Petition 15226 of 2001. State of U. P. v. Radhey Shyam Pandey and Ors., preferred against the above order dated 25.5.2001 was dismissed on 1.2.2002 by the Supreme Court.
23. It appears that the petitioner has not been furnished of the documents which he was demanding during the course of enquiry. Since in this case, no regular and proper inquiry was held nor was subsistence allowance paid, hence in this circumstances, it is clear that the petitioner had not been afforded a fair opportunity, much less a reasonable opportunity to defend himself that has resulted in violation of principle of natural justice and fair play. A dismissal order being major punishment have serious consequences and should be passed only after complying with the rules of natural justice. The inquiry report Is not sustainable and, therefore, it cannot be relied upon. Therefore, the dismissal order dated 30.11.1998 is liable to be set aside. However, keeping in view the gravity of the charges against the petitioner the State Government is at liberty to make inquiry afresh and to conclude the inquiry preferably within six months from the date of receipt of the certified copy of this order, in accordance with the law and in the light of the observations made above, till then the respondent is at liberty not to engage the petitioner on employment.
24. Let a certified copy of this order be given to the learned counsel for the petitioner on payment of usual charges within a week.