ORDER S.M.N. Raina, J. 1. This is a petition under Article 226 of the Constitution. 2. The petitioner was a senior Co-operative Inspector and on 17-8-66 he was posted at Bhind. In July 1967 the Registrar, Co-operative Society instituted a departmental inquiry against him on charges specified in the annexure to the letter dated 26-7-67 (Annexure A). The inquiry was held by the Deputy Registrar, Co-operative Society, Gwalior, who submitted a report on the basis of which a notice dated 2-8-69 (annexure G) was issued to the petitioner by the Joint Registrar to show cause why he should not be dismissed from service. The Registrar, however, subsequently passed an order dated 25-11-1969 withdrawing the show cause notice on the ground that the report had not been properly drawn up in as much an marshalling of evidence was not properly done and the findings were not specific. The Registrar remanded the case for writing out a proper report. Thereupon The Deputy Registrar, Shri A.S. Verma submitted a second report dated 16-2-70 (annexure B to the return) on the basis of which final orders dated 17-6-70 compulsorily retiring the petitioner were passed by the Registrar (annexure J Co the petition). 3. The petitioner has challenged the order of compulsory retirement on two grounds. His first contention is that reasonable opportunity to defend himself as required by Article 311(2) of the constitution was not afforded to him inasmuch as the witnesses were not examined-in-chief in his presence and their statements previously recorded at a preliminary inquiry were merely read over to them. His second contention is that after submitting the first report the Deputy Registrar, Shri A. S. Verma had become functus officio, and therefore, the second report submitted by him was not a valid report and as the impugned order is based on the said report, it is vitiated and is liable to be set aside. 4. The chief defect pointed out by the Learned Counsel for the applicant in the procedure followed by the Inquiry Officer is that the prosecution witnesses were not examined in the presence of the applicant. Their statements previously recorded at a preliminary inquiry were merely read over to them during the course of the enquiry and they acknowledged having made such statements. Thus, according to the petitioner the action taken against him is based on the statements of witnesses not recorded in his presence. Their statements previously recorded at a preliminary inquiry were merely read over to them during the course of the enquiry and they acknowledged having made such statements. Thus, according to the petitioner the action taken against him is based on the statements of witnesses not recorded in his presence. In paragraph 6 of the return it is stated that proceedings of the Inquiry Officer dated 12-8-68 show that the statements were recorded at the enquiry but a reference to the statements of the witnesses vide annexure B, C, D, E and F clearly indicates that there was no examination of the witnesses in respect of the matters relating to the charges against the petitioner. The witnesses were merely shown their statements recorded at the preliminary enquiry held about 2 years earlier and they merely admitted having made such statements. It is, therefore, clear that there was no examination-in-chief of the witnesses at the enquiry and the statements of the witnesses recorded earlier were treated as evidence in the case. Learned Counsel for the State Shri Swami Saran also did not dispute this fact in view of the intrinsic evidence furnished by the aforesaid statements and the affidavit of the petitioner in support of the petition. He however, urged that this defect does not vitiate the proceedings because the petitioner did not raise any objection at that time and he was given due opportunity to cross-examine the witnesses. 5. In Union of India v. T.R. Verma 1958 SCR 499 : AIR 1957 SC 882 their Lordships stated the following principles of natural justice applicable to inquiries : Stating it broadly and without intending it to be exhaustive, it may be observed that rules of natural justice require that a party should have the opportunity of adducing all relevant evidence on which he relies, that the evidence of the opponent should be taken in his presence, and that he should be given the opportunity of cross-examining the witnesses examined by that party, and that no materials should be relied on against him without his being given an opportunity of explaining them. From the above observations it would appear that one of the essential principles of natural justice is that evidence of the opponent should be taken in the presence of the party concerned. This principle was reiterated by their Lordships in State of M. P. v. Chintnman AIR 1961 SC 1623 . From the above observations it would appear that one of the essential principles of natural justice is that evidence of the opponent should be taken in the presence of the party concerned. This principle was reiterated by their Lordships in State of M. P. v. Chintnman AIR 1961 SC 1623 . 6. While dealing with a similar question their Lordships of the Allahabad High Court in State of U. P. v. C. S. Shauna AIR 1963 All 94 observed as under in paragraph 17 :-- There is one great danger in having statements recorded earlier behind the back of the charged officer read out and relied upon, and that is that such statements as are recorded behind the back of the charged officer could have been obtained through inquisitorial methods or could be obtained by cajolery, coercion or any of the undesirable methods by which witnesses can be made to depart from strict truth; and reading out to the witness of such statement and asking him just one question whether he made such a statement or not was likely to destroy the witness's freedom of stating what he wished to in the presence of the enquiring officer and the charged officer. There are many other reasons for coming to the conclusion that the procedure of reading out the earlier statement of the witness and then asking the charged officer to cross-examine the witness on that earlier statement was based with many dangers, but we need not go into this question in any great detail in as much as there was high authority pronouncing on the wisdom or otherwise of this kind of procedure. 7. There can be no doubt that it is absolutely essential that in an inquiry into misconduct the witnesses on whose testimony the prosecution relies must be examined in the presence of the person charged with misconduct, because what the witnesses state at the inquiry is first-hand evidence or the best evidence and there is no justification for departing from the rule of best evidence particularly where such evidence is available. We also agree with the Allahabad High Court that there is great danger in relying upon the earlier statements of witnesses recorded behind the back of the party concerned and it would be unfair to base any conclusions on such evidence. We also agree with the Allahabad High Court that there is great danger in relying upon the earlier statements of witnesses recorded behind the back of the party concerned and it would be unfair to base any conclusions on such evidence. The mere fact that the party concerned was given an opportunity to cross-examine the witnesses would not cure the defect. Thus, where the conclusions of the Inquiry Officer as well as of the Disciplinary Authority are based on Statements recorded behind the back of the person accused of misconduct the conclusions as well as the findings must be held to be vitiated on the ground that there was a denial of reasonable opportunity to the person on account of the violation of an important principle of natural justice. 8. In this case the petitioner has asserted that even the earlier statements on which reliance was placed were not recorded in his presence, and that was not disputed before us. Thus, there was a violation of a salutary principle of natural justice in the inquiry against the petitioner, and on this ground alone the action taken against him on the basis of such inquiry is liable to be quashed. It has been urged that the petitioner did not raise any objection about the non-examination of the witnesses at the inquiry, but this would not preclude him from raising the objection now because the defect in the inquiry is of a vital nature and the prejudice caused to the petitioner thereby cannot be overlooked merely because he failed to raise the objection at the appropriate time, apparently in ignorance of his rights. 9. The order of compulsory retirement passed against the petitioner is, therefore, liable to be quashed on the aforesaid ground. In view of this conclusion it is not necessary to consider the other contention of the petitioner on which he has challenged the said order. 10. The petition is, therefore, allowed and the impugned order dated 27-8-1970 retiring the petitioner from service from 20-7-1970 is hereby quashed. We do not, however, make any order as to costs because it appears that no objection to the procedure adopted by the Inquiry Officer was raised by the petitioner at the time of the inquiry. Petition allowed