JUDGMENT 1. - This is a petition under Article 226 of the Constitution of India against the order of dismissal dated 5.8.69 passed by the respondent No. 2, Director, Printing and Stationery, Government of Rajasthan, Jaipur affirmed in appeal by the State of Rajasthan on 26.8.71. 2. The petitioner initially joined the Government Press and a Binder and by 1958 was promoted as a Printer Grade I. On 4.9.63 the petitioner was transferred to Udaipur Government Printing Press. While he was working there a charge sheet dated 26.8.65 was served upon him levelling 5 charges on which it was a proposed to hold an enquiry against him. In pursuance of the inquiry held against him the petitioner was ordered to be reverted from Printer Grade I to Printer Grade II vide order dated 10.11.65. The petitioner preferred an appeal against the order of reversion. It appears that the Government referred the appeal to the Rajasthan Public Service Commission which by its communication dated 1.9.67 seems to have advised the Government to allow the appeal and to hold a fresh inquiry. Pursuance of this the Government by its letter of 12.1.68 informed the Director of Printing and Stationery that the appeal which had been preferred by the petitioner had been accepted and was directed that there should a fresh inquiry. The petitioner was also informed by the respondent 2 by his letter of 7.2.68 that this appeal had been accepted and it had been directed to hold a fresh inquiry. The petitioner was also informed by the respondent 2 by his letter of 7.2.68 that his appeal had been accepted and it had been directed to hold a fresh inquiry. 3. Thereafter on 26.4.68 an order was passed by the respondent 2 appointing the Superintendent Government Press, Jaipur as an Inquiry Officer to hold an inquiry into the charges framed against the petitioner. A long correspondence ensued in which the petitioner insisted that before he could join the inquiry he must be reinstated as printer Grade I and paid his full emoluments and pointing out the difficulties in joining without being reinstated as Grade I Printer. The respondent however did not agree and informed him by a letter dated 26.8.68 that this request of his could not be entertained. The respondent however did not agree and informed him by a letter dated 26.8.68 that this request of his could not be entertained. This was repeated by the respondent 2 by his letter dated 2.11.68 and 10.12.68 and the petitioner was told by the latter that the petitioner must face the inquiry otherwise he will be responsible for the consequences that may arise for such disobedience. On 18.10.68 the Inquiry Officer went to Udaipur where the petitioner was then working but the petitioner refused to participate in the inquiry saying that unless he is first restored to Printer Grade I he would not participate in the inquiry. Thereafter the petitioner received a communication dated 13.6.69 informing him that he should present himself before the Inquiry Officer on 19.6.69 for inquiry. The petitioner however on 17.6.69 asked for an adjournment and reiterated the earlier objection to participate in the enquiry. Evidently the Inquiry Officer felt that the petitioner was not going to participate in the inquiry and the proceedings were thereafter held expects. Ultimately the petitioner received a show cause notice dated 15.7.69 from respondent No. 2 in which it was stated that on a careful consideration of the report and in particular the conclusion reached by the Inquiry Officer in respect of the charges framed against the petitioner it had provisionally been decided that the petitioner is liable to be dismissed from service and calling upon him to show cause against the action proposed to be taken and informing him any representation which he may make should be made in writing and submitted so as to reach respondent no. 2 not later than 15 days from the receipt of this letter by the petitioner. The petitioner's reply dated 31.7.69 to the show cause was submitted in the office of the Superintendent of Printing Press, Udaipur for being forwarded to respondent no. 2. Thereafter the petitioner received an order dated 5.8.69 of respondent No. 2 wherein punishment of dismissal was inflicted on the petitioner. The petitioner filed his appeal to the State Government which was rejected by order dated 25.8.71 and a communication in that regard was received by him from the Government by its letter dated 18.11.71. Thereafter the petitioner has come to this Court and has impugned both the orders of dismissal and appellate order. 4. The first objection that Mr. The petitioner filed his appeal to the State Government which was rejected by order dated 25.8.71 and a communication in that regard was received by him from the Government by its letter dated 18.11.71. Thereafter the petitioner has come to this Court and has impugned both the orders of dismissal and appellate order. 4. The first objection that Mr. Mridul the learned counsel for the petitioner raises is that the petitioner's appeal which he had filed against the order or reversion dated 8.11.69 was only decided by the State Government 30.9.69 and therefore during the pendency of the appeal there could have been no occasion to hold any further inquiry against him resulting in his dismissal of 5.8.69 i.e. much earlier than even the dismissal of his appeal against the earlier reversion order. I am afraid the construction put on this letter by Mr. Mridul is not warranted. As a matter of fact this letter itself mentions that an appeal filed by the petitioner was sent to the Public Service Commission which had informed the State Government that the appeal of the petitioner should be accepted. It is noted in this order that the State Government had in pursuance of that directed by its order of 12.1.68 that the appeal of the petitioner was accepted but direction was being given to remand the matter for further inquiry. The purpose of this order was merely to direct that as order of 10.11.65 had been set aside the petitioner will work as Printer Grade I during the inquiry. It is true that no specific appellate order by which the petitioner's appeal had been accepted has been placed on record but it is quite clear that what has happened is that after the petitioner had filed he appeal against the order of reversion on 10.11.65 the matter was referred on the Public Service Commission which had informed the Government by its letter on 1.9.67 that the appeal of the petitioner should be allowed. Subsequent actions of the State Government by its letter of 16.11.67 and the information conveyed to the petitioner on 7.2.68 clearly show that the petitioner's appeal had also earlier been allowed before proceedings to hold a fresh inquiry were started against the petitioner. The grievance that the impugned inquiry was held against the petitioner during the pendency of the appeal must be rejected. 5. The grievance that the impugned inquiry was held against the petitioner during the pendency of the appeal must be rejected. 5. The next contention of the petitioner is that he has not been given his difference in pay between Grade II and Grade I which he was entitled to do after the acceptance of this appeal. The respondents in their reply have filed Ex. R/4 dated 20.7.70 by the Superintendent Printing Press, Udaipur by which the petitioner has been treated to be as Printer Grade I from 11.11.65 to 8.8.69. It will be seen that the period governs the period from the date of the reversion i.e. 10.11.65 to the period of dismissal order of 5.8.69. The grievance of Mr. Mridual is that this order has been passed after the petitioner has been dismissed and as rule 31 of the Rajasthan Civil Services (Classification, Control and Appeal) Rules 1958 to be called the "Rules") provides that the authority which made the order appealed against shall give effect to the order of the appellate authority, and therefore it was incumbent on the respondent no. 2 to have passed the order of paying the difference in pay before starting inquiry and as the same has not been done the impugned order of dismissal dated 5.8.1969 is bad. I cannot agree. It is no doubt true that the subordinate authority must carry out the directive given by the appellate authority and if the order of the 20.2.70 had not been passed giving the requisite payment to the petitioner he might have been able to insist upon the same being complied with by the Department. Though therefore the action of the respondents in delaying payments to the petitioner may not be very proper yet it can have no adverse effect on the impugned order of dismissal provided it is otherwise valid. The petitioner therefore cannot invoke this ground to challenge the impugned order of dismissal. 6. The next grievance of the petitioner is that he could not participate in the inquiry because he was not given the pay of Printer Grade I and therefore he has been denied an opportunity of hearing provided by Article 311. The argument is that the petitioner was at least getting anything between Rs. 6. The next grievance of the petitioner is that he could not participate in the inquiry because he was not given the pay of Printer Grade I and therefore he has been denied an opportunity of hearing provided by Article 311. The argument is that the petitioner was at least getting anything between Rs. 25 to 30/- P.M. less than what he would have got as a Printer Grade I and as he is a poor man, this non payment was a great hindrance in his having participated properly in the inquiry. Mr. Mridul refers me to Ghanshyam Dass v. State of M.P. 1973 (1) S.L.R. 638 . In that case the Government employee had been suspended and was staying at Rawa while the inquiry was being held at Jagdalpur. The Inquiry Officer had recorded some evidence even before payment of any subsistence allowance to the Government servant and on employee's insistence, some part of the subsistence allowance was made to him subsequently, in those circumstances the Supreme Court held that as the distance between the two places was about 500 Kilometers & as the petitioner had not been paid the subsistence allowance at the time when some of the witnesses were examined by the Inquiry Officer he did not have a proper opportunity to participate in the inquiry and the same was therefore vitiated. That case is clearly distinguishable. In the present case the petitioner was in enjoyment of his full salary of a Printer Grade II. At the maximum the difference between pay which he would have got as Grade I was approximately between Rs. 25 to 30/- P.M. Though the said amount may be material for the petitioner; yet it cannot be ignored that the Inquiry Officer was going to Udaipur where the petitioner was working and therefore no expenditure was required to be incurred by the petitioner in travelling and other expenses as was situation in the case before the Supreme Court. The witnesses were also to be examined at Udaipur. No doubt the subsequent order passed on 20.2.70 by the Government itself shows that the petitioner was entitled to have been paid the remuneration for Printers Grade I from 10.11.65 and it is a matter of regret that the Department should not have itself chosen to make all these payments even though the petitioner was insisting a number of times all these years. This conduct of the respondents though it cannot appreciated would not lead to the inevitable finding that no proper opportunity was given to the petitioner, to participate in the inquiry because of the financial stringency. The petitioner did not choose to join the inquiry because of his insistence that he must be placed first as a Printer Grade I and in the absence of that he did not feel that it was possible for him to participate in the inquiry. Opportunity was made available to him a number of times.Even when the Inquiry Officer had gone to Udaipur and the petitioner had not participated, the matter had been adjourned to enable the petitioner to join. It is therefore not possible to accept the argument that the petitioner was not given a proper opportunity. 7. The next argument and which is really formidable one is that the petitioner's reply to the show cause has not been considered at all by the dismissing authority and thus there has been a complete non application of mind and the order is therefore vitiated. As already mentioned above the show cause was issued to the petitioner on 15.7.69 and he was asked to give his reply and it was stated that such representation should be in writing & should be submitted so as to reach the Director not later than 15 days from the receipt of letter by him. Show cause was admittedly served on the petitioner on 16.7.69 through the Superintendent of Press, Udaipur. The petitioner submitted his reply to the show cause on 31.7.69 and delivered a copy of the same to the Superintendent, Government Press on the same day. It is admitted by the respondents that the reply was received by the Superintendent Press on 31.7.69 but this was not forwarded till 6th August, 69 with the result that when the dismissing authority passed his order on 5.8.69 he did not have the reply to the show cause before him. It may he mentioned that in the reply to the show cause the petitioner made a grievance that neither the charges were served on him nor the relevant documents and witnesses were supplied to him before starting the inquiry. He also made a grievance that the charges were baseless and were not based on any document. It may he mentioned that in the reply to the show cause the petitioner made a grievance that neither the charges were served on him nor the relevant documents and witnesses were supplied to him before starting the inquiry. He also made a grievance that the charges were baseless and were not based on any document. It is admitted in the return by respondents that though the petitioner did submit a reply and delivered the copy of the same to the Superintendent Government Press, Udaipur on 31.7.69, but as the same did not reach the Director within 15 days it could not be considered. The justification for not considering the reply are reiterated by Mr. Calla the learned Counsel for the State, and is that as the petitioner was asked to sent his reply so as to reach the Director not later than 15 days the petitioner should have seen that the reply should reach the Director by 31st July and if he chose to deliver the same to the Superintendent of Press it was not in compliance with the directions given to show cause so as to reach the Director not later than fifteen days from the receipt of show cause by the petitioner. It seems to be not only a hyper technical objection but also cannot be sustained on any principle of equity or the proper working of the rules. Undoubtedly the show cause was served on the petitioner through the Superintendent of Press, Udaipur where he was working. In the normal course the reply to the show cause was submitted through the Superintendent Government Press, Udaipur and their conduct could not be faulted. If the Superintendent did not choose to forward the same detailed it upto 6.8.69 as is alleged by the petitioner, surely the fault cannot be placed on the petitioner.The Director no doubt had not received the reply to the show cause by 5.8.69 when he passed the order but he also did not care to find out whether any reply of the show cause has been received and submitted to the Superintendent Government Press, Udaipur. Now, rule 16 (10) (ii) (b) directs that the Disciplinary Authority shall consider the representation made by the Government servant in reply to the notice under Clause (7) and then pass appropriate orders in the case. It is apparent that this rule has not been complied with. Now, rule 16 (10) (ii) (b) directs that the Disciplinary Authority shall consider the representation made by the Government servant in reply to the notice under Clause (7) and then pass appropriate orders in the case. It is apparent that this rule has not been complied with. Not only that but when the petitioner filed an appeal against the order of dismissal he made a specific grievance that the petitioner to his representation had denied all the charges and had submitted it in time on 31.7.69 through proper channel and that it never reached the office of the Director who decided the matter on 5.8.69 ex parte without the consideration of the reply. In the appellate order this later grievance of the petitioner is noticed but while disposing it of it did not deal with the first aspect at all but only referred some representation of July 21, 69 made by the petitioner wherein he had asked for certain documents and reiterated the point regarding reinstatement to his original post i.e. Printer Grade I and stated that this representation cannot be considered to be reply to show cause notice. It is surprising that the appellate authority though it noticed the point but gave no finding on it that the petitioner had made in his grounds of appeal that he had submitted the representation on 31.7.69 to the Superintendent Government Printing Press who had however detained it upto August 6, 1969 and it was not correct for the dismissing authority to say that reply to the show cause had not been given. The unfortunate result is that the same infirmity of non consideration of the petitioner's reply to the show cause has continued both in the order of Disciplinary authority as well as the appellate authority. Mr. Kalla has tried to justify the action of the respondents by urging that as 15 days time had been given within which reply by the petitioner should have reached the Disciplinary authority and as it did not reach the respondents were correct in assuming that no reply to the show cause had been given. He had also urged that if the petitioner though that 15 days was less he should have asked for extension of time. He had also urged that if the petitioner though that 15 days was less he should have asked for extension of time. But what is missed in the argument is that grievance of the petitioner is not that he wanted more time and hence could not submit his reply within 15 days. The grievance is that the petitioner did submit his reply within the specified 15 days through proper channel in the office of the Superintendent Government Printing Press and this was proper mode. I am of the view that it is not open to the respondent No.2 to choose to follow a procedure of serving a show cause on the petitioner through the Superintendent of Press, Udaipur but refuse to treat the reply submitted by the petitioner in the same manner as being proper. On the admitted position therefore that the reply to the show cause by the petitioner has not been considered it is apparent that the petitioner's grievance that he has not had a reasonable opportunity of hearing in accordance with the service rules is justified and is not possible to uphold the impugned order of Disciplinary authority as well as the appellate order. Mr. Kalla pointed out to the seriousness of the charges, which according to him suggested that the petitioner was responsible for damaging of the machine and was indulging in rude behaviour with the Supervisor which was subversive of discipline in Government service (all these charges of course are denied by the counsel for the petitioner Mr. Mirdul). But I am not concerned with the veracity or otherwise of the charges. I had already held that there was nothing wrong in holding a fresh inquiry by the respondent. I have also found that the decision to hold an ex-parte inquire was justified and the petitioner can not have any grievance because his refusal to participate in the inquiry was not justified. However, infirmity in the order of dismissal has crept in because the reply to the show cause was not considered by the Disciplinary authority. There is no explanation for the non consideration except the unacceptable one that it was not received in time which I have already rejected. However, infirmity in the order of dismissal has crept in because the reply to the show cause was not considered by the Disciplinary authority. There is no explanation for the non consideration except the unacceptable one that it was not received in time which I have already rejected. Obviously it needs no emphasis to find that if the Disciplinary authority without considering the reply to the show cause passes an order of dismissal the same having been passed in violation of the mandate of statutory rules, cannot be held to be legal. No doubt it is true that the proceedings up to end including the stage of issue of show cause notice have been found to be valid, yet as the essential pre-requisite of consideration of the reply to the show cause notice was not followed by respondent No. 2 the ultimate order of dismissal dated 5th August, 1969 and the appellate order dated August 26, 1971 affirming it have to be quashed in this limited point only. It will not however preclude the Government from proceeding afresh in the matter from the stage of the reply to the show cause accordance with law and in the light of the observations made in this judgement. This course was also followed in S.N. Misra v. State of Rajasthan 1970 RLW 287 and State of Mysore v. Manche Gowda, AIR 1964 SC 506 . 8. The result is that the petition is allowed as above but there will be no order as costs. *******