JUDGMENT : R.N. Misra, J. - This is an application under Article 226 of the Constitution challenging the order of removal from service dated 10-1-1972 passed by the opposite party No. 2-Accountant General and upheld by the opposite party No. 1 the Comptroller & Auditor General of India. 2. The Petitioner was appointed as a Lower Division Clerk by the Accountant General of Orissa. In 1964, he was promoted to the rank of an Upper Division Clerk. He proceeded on leave with effect from 20th of June, 1965, on the ground of illness and on 12th of July; 1965, he submitted his joining report along with a certificate of medical fitness as required under the Rules. No posting orders were given. On 31st of July, 1965, he wrote to the Deputy Accountant General of Puri of his posting order and claimed payment of salary from 12-7-1965. Posting orders, however, were not issued. Several representations were made by the Petitioner for expediting orders. In June, 1970, the Petitioner received a letter from the Accounts Officer that unless he joins immediately by submitting medical certificate and a joining report, proceedings would be taken against him. It was indicated in that letter that several notices by registered post had been issued to the Petitioner which he had refused to accept. The Petitioner immediately replied back saying that he had already submitted his joining report and was awaiting posting order. He denied the fact that any registered letter had been refused by him. On 10th of July, 1970, a set of charges were framed against the Petitioner. The Petitioner submitted his explanation to the charges and applied for inspection of, some documents. He also asked for permission to engage a lawyer on his behalf. On 7-9-1970, the request for representation by a lawyer was rejected and by letter dated 23-9-1970, the Petitioner was directed to inspect the documents of which he had asked for inspection. From 4th January, 1971, the enquiry started. The Petitioner had throughout been claiming that his relationship with one Mr. N. Panda, the then Deputy Accountant General had been strained and Mr. Panda had torn away the joining report and the medical certificate furnished by the Petitioner when the Office Superintendent had placed those documents before him for posting orders. In the disciplinary proceeding, he applied for summoning Mr. Panda for examination. N. Panda, the then Deputy Accountant General had been strained and Mr. Panda had torn away the joining report and the medical certificate furnished by the Petitioner when the Office Superintendent had placed those documents before him for posting orders. In the disciplinary proceeding, he applied for summoning Mr. Panda for examination. The enquiring officer submitted his report in December, 1971, where in he indicated that the stand of the delinquent that he had submitted the joining report and the medical certificate was probable. But he was of the opinion that the Petitioner should have submitted afresh joining report and a medical certificate and should not have created complications. The Petitioner was served with a second notice and ultimately he was removed from service by order dated 10-1-1972. His appeal before the opposite party No. 1 was dismissed on 17-5-1972. The order of removal from service is assailed in this application. 3. The allegations of the Petitioner of Mr. Panda's bias against him has been denied and the order of removal from service on the ground that the Petitioner had remained absent from service for more than five years has been justified in the counter affidavit. 4. The Petitioner impugns the orders of his removal from service on the following grounds: (1) Legal assistance has been an authorisedly refused and the Petitioner has been prejudiced in defending himself against the charges; (2) The refusal of the enquiring officer to summon Mr. Panda for examination in the disciplinary proceeding is arbitrary and since he was a material witness, the disciplinary proceeding has been vitiated on account of his non-examination ; and (3) The categorical defence of the Petitioner being that he had already submitted a joining report accompanied by the 'requisite medical certificate' on 12-7-1965, it was incumbent upon the enquiring officer as also the disciplinary authority to record a categorical finding either accepting or negativing that plea. Until that was done, the charge could not be taken to have been established. 5. Point No. 1 - The charge in the instant case was that the Petitioner while functioning as officiating U.D.C. did not resume duty after remaining absent for a contentious period of five years from 26-6-1965 to 25-6-1970. Until that was done, the charge could not be taken to have been established. 5. Point No. 1 - The charge in the instant case was that the Petitioner while functioning as officiating U.D.C. did not resume duty after remaining absent for a contentious period of five years from 26-6-1965 to 25-6-1970. The defence was that immediately after the leave expired; on 12-7-1965, the Petitioner had submitted his joining report along with a medical fitness certificate the issue for decision in the disciplinary proceeding is as to whether the defence version is true of the allegation upon which the charge is based is correct. The service (sic) categorically provides that if a confirmed employee remains continuously absent for more than five years; it would amount to termination of service. Even in such a situation; the Supreme Court said in Jai Shanker Vs. State of Rajasthan that the protests would not be automatic but a (sic) action would beneficiary to comply with the requirements of Article 311 of the Constitution. The enquiry in the instant case does not involve any complication. As has been pointed out in answer to the Petitioner's contention, the prosecution was not being represented by counsel. We do not see any justification in the claim of the Petitioner that he should be represented by a lawyer. 6. Point No. 2 - The stand of the Petitioner throughout has been that Mr. Panda the then Deputy Accountant General at Puri, had (sic) against the Petitioner on 12-7-1965, the Petitioner had submitted his joining report along with the medical certificate; the same had been placed by the Superintendent before Mr. Panda for orders but Mr. Panda had torn away the documents. That also was the Petitioner's defence in the proceeding in view of such a categorical stand, no enquiry based upon the charge in this case could have been complete without, an examination of Mr. Panda. After all the enquiry was intended to find out the truth of the charge. In Khem Chand Vs. Panda had torn away the documents. That also was the Petitioner's defence in the proceeding in view of such a categorical stand, no enquiry based upon the charge in this case could have been complete without, an examination of Mr. Panda. After all the enquiry was intended to find out the truth of the charge. In Khem Chand Vs. The Union of India (UOI )and Others, the Court categorically indicated that in a disciplinary, proceeding the delinquent was entitled to the following opportunities: (i) an opportunity to deny his guilt and establish his innocence, which he Cart only do if he is told what the charges levelled against him are and,the allegations on which such charges are based; (ii) an opportunity to defend himself by cross-examining the witnesses produced against him and by examining himself or any other witnesses in support of his defence; and finally (iii) an opportunity to make 'his representation as to, why the proposed punishment should not be inflicted on him, which he can only do if the competent authority, after the enquiry is over and after applying his mind to the gravity or otherwise of the charges proved against the Government servant tentatively proposes to inflict one of the three punishments in communicates the same to the Government servant. In view of the categorical stand of the Petitioner from the very beginning, it was appropriate that to support the charge Mr. Panda was examined. Here when Mr. Panda was not being examined to support the charge, the Petitioner had applied for his examination. In our view non-examination of Mr. Panda has prejudiced the Petitioner in substantiating his defences. 7. Point No. 3-As we have already indicated, in view of the charge and the explanation the only question to be determined in the enquiry was as to whether the Petitioner had submitted his joining report and the requisite medical certificate of, fitness on 12-7-1965, when has leave expired or he had remained away from service for a continuous period of five years as a result whereof he became liable for removal from service. We have pointed out above that the enquiring officer did not come to a positive and categorical finding as to whether the Petitioner's defence was true. A copy of his finding has been furnished by the Petitioner as Annexure-15 to the writ application. We have pointed out above that the enquiring officer did not come to a positive and categorical finding as to whether the Petitioner's defence was true. A copy of his finding has been furnished by the Petitioner as Annexure-15 to the writ application. In paragraph 5.2, the enquiring officer has rightly indicated: The main point on which the case seems to rest relates to the joining report and the medical certificate of fitness alleged to have been submitted by Defence on 12-7-1965 to O.E.S. on his return from leave. Whereas Defence stressed that he actually submitted the joining report and the fitness certificate to O.E.S. on 12-7-1965 on his return from leave, the Presenting Officer held that the said documents were not submitted at all Normally in cases of such disputes the onus rests on the prosecution side to prove that the contention of Defence is not correct. In this particular case the Presenting Officer seems to have furnished only the following arguments to substantiate his point: (i) There was no entry in the Letter Diary of O.E.S. to prove the receipt of the alleged joining report and the medical certificate of fitness; (ii) The question of handing over the joining report and the medical certificate personally to the dealing Auditor did not arise as the normal procedure was to submit such joining report to the Superintendent who would then pass it on to the Diarist for (sic) and thereafter to be handed over to the dealing Auditor for necessary action. The contention of Defence was therefore, not acceptable; (iii) In the course of inquiry the Presenting Officer referred to a D. 9. letter dated 15-11-1965 written by Deputy Accountant General, Puri, to the Senior Deputy Accountant General, Orissa, Bhubaneswar, which read as under: Shri Misra remained absent from duty without applying for leave from 10-7-1965 on the ground of suffering from filarial fever, weakness, etc., but no medical certificate was furnished in support of his illness. No further application for extension of leave from 10-7-1965 was sent. On 12-7-1965, he wanted to join office but when a fitness certificate was asked for as per rule he did not produce and left office. The presenting Officer contended that from this letter of D.A.G., Puri, it was also evident that Defence did not actually submit the required joining report and the, fitness certificate on 12-7-1965. 5. On 12-7-1965, he wanted to join office but when a fitness certificate was asked for as per rule he did not produce and left office. The presenting Officer contended that from this letter of D.A.G., Puri, it was also evident that Defence did not actually submit the required joining report and the, fitness certificate on 12-7-1965. 5. The Presenting Officer did not present any witness on behalf of Administration to counter the statement of Defence that he did actually submit the joining report and fitness certificate personally to the dealing Auditor and that the then Superintendent, O.E.S. was also aware of this. The two aforesaid witnesses, viz. Sarvashri S.S. Rath, Dealing Auditor, and R.C. Mohanty, Superintendent, were called upon by the Inquiry Officer for examination at the instance of Defence only. If the Administration wanted to establish their point effectively it would have been more logical and straightforward to present these two persons as witnesses on behalf of Administration. But this was not done. From the oral evidence given by these two witnesses it would also be evident that in regard to most of the queries they pleaded to have forgotten the past and could not remember the actual happenings that took place mote than five years ago. Although both of them denied having any knowledge of the alleged joining report and fitness certificate, neither of them asserted in a straightforward manner that they did not actually receive the alleged joining report and the fitness certificate or remember to have seen the same. Their replies, I must say, were mostly vague and not to the point. The enquiring officer after discussing &one more evidence further stated in parrgraph 5.5 of his report: ...On the other hand, the very fact that the D.A.G. Puri, himself reported in his D.O. letter dated 15-11-1965 to Senior Deputy Accountant General, Bhubaneswar, that Shri Misra 'wanted to join office' on 12-7-1965 on the expiry of his leave with the intention of reporting to duty. It is also evident that a E.S. (i.e. the Auditor and the Superintendent concerned) did bring the fact of Shri Misra's reporting, for duty for the notice of D.A.G., Puri, or else, how would he come to know about Shri Misra's intention of joining the office. It is also evident that a E.S. (i.e. the Auditor and the Superintendent concerned) did bring the fact of Shri Misra's reporting, for duty for the notice of D.A.G., Puri, or else, how would he come to know about Shri Misra's intention of joining the office. In view of the above position, one cannot entirely rule out the possibility that Shri Misra submitted a joining report with the intention of reporting to duty in the said a letter, D.A.G., Puri, further reported to Senior D.A.G., Bhubaneswar, that when a fitness certificate was asked for from Defence, he did not produce it and left office. It seems somewhat intriguing as to why an employee who had actually come to office with the object of joining duties on expiry of his leave, would refrain from submitting a fitness certificate when asked for by office and why should he take recourse to the extreme step of leaving once and not returning to duty for more than five years, just because he was asked to submit a formal fitness certificate to prove his fitness before resuming duties. Knowing, as we all do, that it is not at all difficult for a person to obtain a fitness certificate from any registered practitioner on payment of nominal fee, I find it rather difficult to reconcile myself to the fact that Defence could not furnish a fitness certificate to enable himself to join duties. Considering all these factors, I am led to conclude that the benefit of doubt (so far as reporting to duty on 12-7-1965 and submission of joining report was concerned) goes in favour of Defence. The fact that Defence made several appeals subsequently to higher authorities as well as to the Comptroller & Auditor General and even met the A.G. and D.A.G. Puri, personally for considering his case sympathetically goes to show that he had along been hoping that his joining report dated 12-7-1965 would be given due consideration. I cannot however, help observing that all these five years, Defence has been too dogmatically holding on to the stand that since he actually reported to duty on 12-7-1965 on the expiry of his leave by submitting the required joining report as well as the prescribed fitness certificate, he should be, deemed to having returned to duty on that date. I cannot however, help observing that all these five years, Defence has been too dogmatically holding on to the stand that since he actually reported to duty on 12-7-1965 on the expiry of his leave by submitting the required joining report as well as the prescribed fitness certificate, he should be, deemed to having returned to duty on that date. Even assuming for the sake of argument, that Officer had misled the joining report and fitness certificate, the action on the part of Defence in staying away from duty for years together and not complying with the installations/orders of Administration to return to duty with a fitness certificate seems hardly justified.... From what has been extracted above it appears that the enquiring officer was of the view that the Petitioner had complied with the requirements of the Service Rule when he reported to duty on expiry of the leave on 12-7-1965, The finding is, however, not very categorical. The theory of benefit of doubt has no place in the facts and circumstances of the matter. The enquiring officer had initially approached the matter from the correct perspective by saying that the proceeding required a clear determination as to whether the defence stand was true. A departmental action is not a criminal charge and, therefore, Courts have taken the view that the doctrine of benefit of doubt has no application. On the evidence, as a fact conclusion on the point should have been reached. 8. After the report was submitted, that disciplinary authority did not disturb the hesitant in finding of the enquiring officer on the question of furnishing of the joining report and the medical certificates. On the other hand, he seems to have been of the View that the alternate finding of the enquiring officer that the delinquent need not have dogmatically clung to his stand if he had already furnished the requisite papers and would not do it again even when directed was justified. If, as a fact, the Petitioner had done what he was required to do when he reported to duty on 12-7-1965, there could be no justification to require him to furnish the papers again. It only be one matter to say that the documents had been misplaced and duplicates thereof were being looked for. That, however, is not the stand of the authorities. It only be one matter to say that the documents had been misplaced and duplicates thereof were being looked for. That, however, is not the stand of the authorities. On the other hand, the Petitioner had taken the stand that those documents were placed by the concerned officials before Mr. Panda, the administrative superior of the Petitioner, and he had actuated by his bias against the Petitioner, destroyed those papers. In the facts of the case, the Petitioner could not be compelled to submit the documents afresh. He was right in his apprehension that if he furnished those documents again later on, the fact that he had joined earlier on submission of the proper documents would stand belied and he might not have been given the benefit of having reported to duty earlier. It might have amounted to break in service and he might have been put to other inconveniences. It thus transpires that while the enquiring officer had recorded a hesitating finding supporting the defence plea, the disciplinary authority had not disagreed with that conclusion. Both the enquiring officer and the disciplinary authority had proceeded on the footing that the delinquent should, have furnished the required documents afresh. There is no justification for such an approach if it be found as a fact that the Petitioner had already submitted the documents necessary for his returning to duty after the expiry of the medical leave. Mr. Panda may have been a highly placed Officer and the Petitioner was a poor subordinate of his. In a country administered by Rule of Law, there is no room for the consideration that a lapse on the part of Mr. Panda could be overlooked by requiring the delinquent to furnish afresh the documents, which according to the Petitioner. Mr. Panda had destroyed in fact, if the allegation of the Petitioner was true, it was a matter serious enough for the Administration to take note of and notwithstanding the fact that Mr. Panda, held a high, post, appropriate proceedings against him were called for. A high post necessarily calls for a greater sense of duty, complete respect for law and discipline and compassion for subordinates. Personal bias has no place in discharge of public duties and therefore, this indeed was a case where the Administration should have taken special care to find out whether the Petitioner's allegation against Mr. Panda was indeed true. 9. A high post necessarily calls for a greater sense of duty, complete respect for law and discipline and compassion for subordinates. Personal bias has no place in discharge of public duties and therefore, this indeed was a case where the Administration should have taken special care to find out whether the Petitioner's allegation against Mr. Panda was indeed true. 9. We are, therefore, satisfied that the disciplinary, proceeding has been vitiated on account of Mr. Panda having not been examined in the proceeding though the delinquent had applied for his examination. The proceeding is also vitiated on account of want of a categorical finding of the question of submission by the Petitioner of the necessary documents on 12-1-1965. If we accept the finding of the enquiring officer to be a conclusive one, in the absence of the disciplinary authority offering from him on that the punishment inflicted cannot stand. We are of the view, however, that the enquiry has not been proper; Mr. Panda has not been examined and the importance of the matter has not been appreciated. It necessarily means that the enquiry must be re-opened; Mr. Panda must be examined in the proceeding the Petitioner must be given a reasonable opportunity of cross-examining him and leading further evidences may be necessary to establish his defence after Mr. Panda has been examined and cross-examined. The Department must remain alive to the position that the charge against the Petitioner though innocuous, the defence raised is of far-reaching importance, because if ultimately it is established that Mr. Panda had destroyed the documents being actuated by bias he would really deserve to be censured. 10. We would accordingly allow the application, quash the final order removing the Petitioner from service passed on 10-1-1972 by the Accountant General of Orissa as also the appellate order the opposite party No. 1 dated 17th of May, 1972 and require the enquiry to proceed from the state it was when collection of evidence was closed. The application of the delinquent to examine Mr. Panda must stand allowed. The enquiring officer shall take steps to examine Mr. Panda, give reasonable opportunity to the Petitioner to cross-examine him. The Petitioner shall have also reasonable opportunity to lead further evidence in support of his defence. Thereafter the matter must be concluded in accordance with law. The application of the delinquent to examine Mr. Panda must stand allowed. The enquiring officer shall take steps to examine Mr. Panda, give reasonable opportunity to the Petitioner to cross-examine him. The Petitioner shall have also reasonable opportunity to lead further evidence in support of his defence. Thereafter the matter must be concluded in accordance with law. Since nine years have now lapsed and if the Petitioner ultimately succeeds the public exchequer may have to be burdened, we require the enquiry to be completed within a total period of four months from today and the disciplinary authority to conclude the proceeding within two months, thereafter. We quash the order by issue of a writ of certiorari and we command the opposite parties to give effect to our direction by issuing a writ of mandamus. The Petitioner shall have his costs. Bearing fee assessed at rupees one hundred. B.K. Ray, J. 11. I agree.