JUDGMENT R.B. Misra, J.
1. In this writ petition the petitioner has challenged the dismissal order dated 2.7.1991 and a direction for subsistence allowance to the petitioner. In another Writ Petition No. 8827 of 1992 the order dated 10.1.1992 and order dated 24.1.1992 have been challenged.
Assistant Agriculture Inspector in the year 1968 while posted at Aligarh, the petitioner was suspended and a charge-sheet was served to him on 8.12.1988. The petitioner has submitted his reply 27.1.1989 (Annexure-1). The project officer was appointed as an inquiry officer, who after receiving the explanation of the petitioner, was transferred from district Aligarh to another district. After receiving of the reply of the petitioner, no notice was served to the petitioner and no inquiry was conducted by the inquiry officer and on 2.7. 1991, the dismissal order was passed affixing the same at the residence of the petitioner by way of forwarding letter dated 27.7.1991. According to the petitioner, no show cause notice whatsoever was given to the petitioner, the ex parte inquiry report dated 1.8.1989 was submitted by the inquiry officer and a dismissal order was passed on 2.7.1991 which itself reveals that no opportunity was given to the petitioner and merely on the basis of explanation given by the petitioner in response to the charge-sheet dated 8.12.1988, the order dated 2.7.1991, dismissing the services of the petitioner has been passed. It has further been stated on behalf of the petitioner that no opportunity was given to the petitioner to inquire in respect of the charges levelled against him. It has also been contended on behalf of the petitioner that he was not paid subsistence allowance with effect from January, 1985 to January, 1988.
3. The order of dismissal dated 2.7.1991 was challenged in Writ Petition No. 28635 of 1991 and this Court while issuing notice was pleased to stay on 3.10.1991 the operation of the dismissal order dated 2.7.1991 till further orders.
4. The counter-affidavit on behalf of the respondents have been filed. According to para 4 of the counter-affidavit, the petitioner was suspended due to absence from duty in the year 1984-85 for which the charge-sheet was served and after conducting the inquiry in accordance with law and the report was submitted where the petitioner was found guilty and the amount of money was said to be embezzled by him. The petitioner was never asked to cross-examine the witnesses nor was asked to produce his defence witnesses during the course of disciplinary proceedings whereby it is established that the charges levelled against the petitioner was true. After the transfer of the former project officer (inquiry officer) Sri U.D. Misra, the subsequent designated inquiry officer has concluded the inquiry after giving full opportunity of hearing to the petitioner. According to para 10 of the counter-affidavit, the petitioner was attached with Block Development Officer, Jawan, Aligarh, during suspension from service but he did not attend the office of Block Development Officer, Jawan, Aligarh in whole month of July, 1991, as such the termination order was pasted in front door of the petitioner's house. After the order dated 3.10.1991, the subsequent order in compliance thereto the order dated 10.1.1992 was passed vide (Annexure-1) which has been challenged in Writ Petition No. 8827 of 1992. The director of agriculture had taken cognizance of the order dated 3.10.1991 passed by this Court in Writ Petition No. 28635 of 91 and kept in abeyance the dismissal order dated 2.7.1991 in its order dated 10.1.1991 indicated that the petitioner shall be given subsistence allowance from the date of dismissal. The counter-affidavit has been filed by the respondent. According to para 9 of the counter-affidavit, subsistence allowance has already been paid to the petitioner from 21.1.1995 to 31.5.1995.
5. The petitioner has placed reliance on the decision Jagdamba Prasad Shukla v. State of U.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 to 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."
6. The petitioner also relied on AIR 1973 SC 1183 Constitutional Bench judgment of Supreme Court in the matter of Ghanshyam Das v. State of U.P. wherein the enquiry was declared invalid because delinquent had failed to attend the enquiry due to paucity of funds resulting from nonpayment of subsistence allowance.
7. The petitioner has also placed reliance on Capt. M. Paul Anthony v. Bharat Gold Mines Ltd. and Anr., 1999(2) AWC 1579(SC) : AIR 1999 SC 1416 para 33 "Where employee was not provided any 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 in ex pane proceedings against him, the appellant has been punished in total violation of the principles of natural justice and he was literally not afforded any opportunity of hearing. Moreover, on account of his penury occasioned by non-payment of subsistence allowance, during pendency of departmental proceedings, he could not undertake a journey to attend the disciplinary proceedings from his home town, the findings recorded by the inquiry officer at such proceedings, which were held ex parte stand vitiated :
"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 Srivastava v. U.P. Pariyojana Prabandha U.P. State Bridge Corporation Ltd. and Ors., (2002) 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 which 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."
8. In respect of change of inquiry officer, the petitioner has further placed reliance on Registrar of Co-operative Societies. Madras and Anr. v. F. X. Farnando, 1994 (2) SCC 746 para 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 (Smt.) Indrani Bai v. Union of India and Ors., SCC 1994 Supp (2) SCC 256 p 5. 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."
9. The petitioner has placed reliance on Subhash Chand Sharma v. M.D. U.P. Co-op. Spg. Mills Fed. Ltd., 1999(4) AWC 3227 para 5. In this judgment of this Court in which one of us Hon'ble Mr. Justice M. Katju was part has expressed 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 violatlve of natural justice."
10. In Meengias 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."
11. 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 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 Workman 1963 (II) LLJ 396 and in Tata Oil Mills Co. Ltd. v. Their Workmen, 1963 (II) LLJ 78 SC.
12. In the case of Radhey Shyam Pandey v. Chief Secretary, State of Uttar Pradesh, Lucknow and Ors., 2001 (3) AWC 2043 : (2001) 2 UPLBEC 1676, this Court (D.B.) has held that :
"The respondents have not conducted the inquiry according to the proper procedure prescribed under Rule 99. No, specific date, time and place of inquiry was fixed oral and documentary evidence against the petitioner should have been adduced 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. A dismissal order is a major punishment having serious consequences and hence should be passed only after complying with the rules of natural justice. Since in the present case no regular and proper inquiry was held nor was subsistence allowance paid, hence in these circumstances, it is clear cause 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. The ex parte inquiry is illegal and the order of dismissal dated 27.3.2001 is quashed."
13. I have heard learned counsel for the petitioner and perused the pleadings of both the writ petitions and also I have heard learned standing counsel for the respondents and I find that proper procedure for making the disciplinary inquiry has not been followed. The petitioner has not been given subsistence allowance and taking into consideration only the explanation of petitioner, the dismissal order has been passed, and no date, time and place has been fixed while making an inquiry. The petitioner has not been afforded opportunity to adduce the evidence and cross-examine the witnesses which Indicates that the principle of natural justice has not been observed. Therefore for lack of opportunity of hearing to the petitioner, the dismissal in question based on illegal and erroneous disciplinary inquiry could not be sustained. The dismissal order dated 2.7.1991 is set aside and petitioner is directed to be re-instated in service with all consequential benefits. However, keeping in view the gravity of charges alleged against the petitioner, it is open to the employer, after giving charge-sheet, to hold a fresh proper inquiry in accordance with law. With these observations the writ petition is allowed.