JUDGMENT : N.K. Das, J. - While Petitioner was serving as a Forester, he was placed under suspension by the Divisional Forest Officer on 30-5-1950. The D.F.O. framed some charges against the Petitioner on 13-1-1951. Petitioner submitted his explanation to the charges. It is alleged that no enquiry was made and the explanation was sent for comments of the Range Officer and the Assistant Conservator of Forests. Thereafter, a notice to show cause against the proposed punishment of dismissal from service was issued to the Petitioner on 5-2-1951. Petitioner submitted his Explanation to the show-cause notice and thereafter he was removed from service. On appeal to the Conservator of Forests, the order of the D.F.O. was set aside and the matter was directed to reopen the proceeding from the stage where the irregularities crept in and to draw up fresh charges. In that order dated 15-5-1954 (Annexure-8), it was mentioned that the Petitioner was reinstated and placed under suspension with effect from the date of his removal from service. It is alleged that after that order no enquiry was conducted, nor any fresh charge was forwarded and no witnesses were examined to support the charge. The Petitioner was asked to produce defence witnesses and his statement was recorded. The D.F.O. submitted a report to the Conservator of Forests. The D.F.O. in his report stated that he found the Petitioner guilty of only one charge, i.e. charge No. 3. He relied upon the alleged depositions of one Balaram Mohapatra and Rusia Patra, the report of the Range Officer and the diary of the D.F.O. It is asserted that the depositions of the aforesaid two persons were recorded at the time of preliminary enquiry and the persons who made reports against the Petitioner were not produced for cross-examination. It was also not mentioned to the Petitioner that such report or diary would be taken into consideration. The Petitioner was intimated that the evidence of Balaram and that of Rusia were not available on records and the records were reconstructed. The D.F.O. in his report recommended to treat the period of suspension of the Petitioner as suspension and to reinstate him in service. The Conservator of Forests issued notice to show cause against the punishment of dismissal holding the Petitioner guilty of three charges. Ultimately, the Conservator passed order of dismissal. The D.F.O. in his report recommended to treat the period of suspension of the Petitioner as suspension and to reinstate him in service. The Conservator of Forests issued notice to show cause against the punishment of dismissal holding the Petitioner guilty of three charges. Ultimately, the Conservator passed order of dismissal. On appeal to the State Government, the order of dismissal was modified to that of discharge. The Petitioner filed O.J.C. No. 6 of 1963 against that order which was dismissed. Thereafter, the Petitioner filed Civil Appeal No. 54 of 1966 in the Supreme Court. The Supreme Court set aside the order and remitted the matter to the Conservator of Forests to deal with it in accordance, with law. The judgment of the Supreme Court was passed on 25-3-1969. By order dated 17-2-1970 the Petitioner was reinstated in service. He was served with a notice to show cause under Article 311(2) of the Constitution of India against the proposed punishment of discharge from service along with other punishments in respect, of charge No. 3 only. On the following date, i.e. 3-9-1970, an order was passed by the D.F.O. stating that the Petitioner was deemed to be under suspension from the date of the original order of dismissal. Again a notice was issued on 4-3-1971 purported to be under Article 311(2) of the Constitution of India treating the notice dated 2-9-1970 as provisional and asking the Petitioner to show cause against the punishment of discharge. The Petitioner submitted his explanation and pointed out that the evidence of Balaram as well as Rusia could not be taken into consideration; no enquiry had at all been held at any time and no, witnesses had been examined in support of the charges; and that the report of the Range Officer was prior w the framing of the charges. The order of discharge was passed on 18-9-1971 by the Conservator. The Petitioner preferred appeal before the Government. As the appeal was not decided, the Petitioner filed O.J.C. No. 521 of 1973 which was disposed of with a direction to the Government to dispose of the appeal within one month, giving opportunity to the Petitioner to file a fresh writ application if he was aggrieved by the decision in appeal. Since the appeal was not disposed of the Petitioner made a representation to the Government and thereafter also sent a reminder. Since the appeal was not disposed of the Petitioner made a representation to the Government and thereafter also sent a reminder. The order was communicated to the Petitioner that his appeal had been disposed of and the appeal was dismissed. The Petitioner contends that no enquiry was actually conducted and no witnesses were examined; no opportunity was given to him to cross-examine the witnesses; documents were relied upon without notice to the Petitioner and without examining witnesses; no opportunity was given to cross-examine the persons who made the reports against the Petitioner; there was no application of mind by the disciplinary, authority; the appeal was mechanically rejected; and the period of retrospective suspension was bad; 2. In the counter it has been stated that the Petitioner did not raise the questions canvassed in the writ petition in the O.J.C. as well as in the appeal before the Supreme Court and he is not entitled to challenge the said proceeding on those grounds. The Supreme Court, remitted the case back to the Conservator for dealing with it according to law. The Supreme Court took the view that Since the Petitioner was found not guilty of the first two charges by the enquiring officer, the punishing authority committed material irregularity in taking into consideration the said two charges along with charge No. 3 against the Petitioner in inflicting the punishment and held that if the punishing authority wanted to take the other two charges into account, he should have given proper notice to the Petitioner intimating him that those two charges would also be considered and having not done so, the Supreme Court set aside the order and remitted the case back for fresh disposal. The order of suspension was passed by the D.F.O. exercising his power under Rule 12(4) of the Orissa Civil Services (Classification, Control and Appeal) Rules, 1962. After the decision of the Supreme Court, the disciplinary authority did not consider to take into account the other two charges, but confined only to charge No. 3. Therefore, he issued a show-cause notice and after the order on the show-cause was passed, the Petitioner was intimated that he was deemed to be under suspension from the date of original order of dismissal under Rule 12(4) of the aforesaid Rules. In his reply dated 28-9-1970, the Petitioner did not offer any explanation against the proposed punishment. Therefore, he issued a show-cause notice and after the order on the show-cause was passed, the Petitioner was intimated that he was deemed to be under suspension from the date of original order of dismissal under Rule 12(4) of the aforesaid Rules. In his reply dated 28-9-1970, the Petitioner did not offer any explanation against the proposed punishment. On the other hand, he contended that he should be presumed that the proceeding against him would be finalised as he had already joined his duty. This was not considered as sufficient compliance. Therefore, another opportunity was given. The explanation submitted by the Petitioner was duly considered. There has been no violation of rules of natural justice. The defence of the Petitioner was that he did not receive any report from Rusia Patra and that person was inimically disposed towards him. The enquiring officer, on consideration of the statements of Rusia and Balaram, the report of the Range Officer and the diary of the D.F.O. came to hold that the Petitioner was guilty. The depositions of the aforesaid two persons were admitted into the proceeding and in the appeal memo, the Petitioner also referred to the same. This would show that the Petitioner was given opportunity to cross-examine those witnesses at the time of the preliminary enquiry. The original depositions of those two persons could not be traced out and the records of the proceeding were missing which were reconstructed at the time of disposal of the appeal on the first occasion. The Petitioner was given opportunity to adduce defence evidence and, as such, there has been no violation of rules of natural justice. 3. The undisputed facts are that the enquiring officer originally found the Petitioner guilty only in respect of charge No. 3, which runs as follows: Wilful suppression of events and facts, in so far as the Forester did not bring to the notice of the higher authorities the irregularities found in his section and did not take necessary action on information concerning these illicit fillings lodged with him by other persons of the locality. The disciplinary authority based the punishment of the Petitioner not only on charge No. 3, but also on two other charges namely, charge Nos. 1 and 2. The matter admittedly went up to Supreme) Court. The disciplinary authority based the punishment of the Petitioner not only on charge No. 3, but also on two other charges namely, charge Nos. 1 and 2. The matter admittedly went up to Supreme) Court. The Supreme, Court found that the Conservator of Forests' ordered dismissal of the Petitioner relying not only upon the third charge, but also on the other two charges which the Conservator held to have been proved and held: We accordingly set aside the order and remit the case to the Conservator of Forests for dealing with it in accordance with law. If the Conservator of Forests wants to take into account the other two charges, he shall give proper notice to the Appellant intimating to him that those charges would also be considered and afford him an opportunity of explaining them. The appeal therefore allowed. By judgment of the Supreme Court, the order of dismissal passed by the Conservator and modified by the State Government to be one of discharge was set aside and the case was sent back to the Conservator for fresh decision in accordance with law. In case the Conservator of Forests wanted to take into account the other two charges, namely charge Nos. (1) and (2), it was directed that he should give proper notice to the Petitioner to explain the same. The grievance of the Petitioner is that only a preliminary enquiry was held by the Range Officer and during that enquiry Balaram and Rusia are said to have made some statements. The statements of these two persons, the report of the Range Officer and the diary of the D.F.O. were utilised by the enquiring officer for proof of charge No. (3) against the Petitioner. On these; materials, the enquiring officer noticed the Petitioner to produce defence witnesses and his own statement was recorded. This is challenged by the Petitioner on the ground that, in fact, no proper enquiry was held according to law. The aforesaid two witnesses were not produced for cross-examination and no opportunity was given to the Petitioner to cross-examine them. Moreover, the Range Officer who made the report and the person who wrote out the diary were not produced for cross-examination and no opportunity was given to the Petitioner to cross-examine them. The aforesaid two witnesses were not produced for cross-examination and no opportunity was given to the Petitioner to cross-examine them. Moreover, the Range Officer who made the report and the person who wrote out the diary were not produced for cross-examination and no opportunity was given to the Petitioner to cross-examine them. Without considering these facts, the disciplinary authority issued notice under Article 311(2) of the Constitution of India asking the Petitioner to show cause why he should not be punished. The Petitioner all along stated that Rusia was in inimical terms with him. He also stated many facts in his explanation about the report on the preliminary enquiry. In fact, it appears that no enquiry was held. The statements of Balaram and Rusia in the preliminary enquiry were utilised as evidence against the Petitioner without affording any opportunity to cross-examine the said witnesses. Further, the report of the Range Officer and the diary of the D.F.O. were also utilised as against the Petitioner. It is very curious to note that at the first appeal stage all the enquiry records were lost and these were reconstituted and the Petitioner had been intimated about that. The disciplinary authority, after remand by the Supreme Court, cause and the order of discharge was passed preferred an appeal, but that was dismissed. 4. Further, the Petitioner was placed under suspension with retrospective effect. His contention was that he was put under suspension retrospectively from 30-5-1950 and the order was passed on 3-9-1970 making the suspension retrospective. By the decision of the Supreme Court on 25-3-1969 the entire punishment was set aside and all orders of suspension before that date were obliterated. The Petitioner was reinstated in service on 17-2-1970 and on 3-9-1970 order was passed to the effect that the Petitioner was deemed to be under suspension from the date of the original order of dismissal. The Petitioner challenges this order of retrospective suspension as bad in law. 5. It may be mentioned here, that at the first stage of enquiry, the Conservator of Forests had passed the order of dismissal on the Petitioner, but in appeal it was set aside because there were irregularities and the matter was sent back to the enquiring officer. The Petitioner challenges this order of retrospective suspension as bad in law. 5. It may be mentioned here, that at the first stage of enquiry, the Conservator of Forests had passed the order of dismissal on the Petitioner, but in appeal it was set aside because there were irregularities and the matter was sent back to the enquiring officer. But when it was sent back, the Petitioner was placed under suspension retrospectively and without holding any enquiry the Petitioner was asked to produce defence witnesses in respect of the charges framed and his own statement was recorded. Thus his challenge is that he had no reasonable opportunity to cross-examine and no date of enquiry was fixed. On submission of his explanation, a report was called for from the Range Officer and on that report the punishment was awarded. 6. The procedure for imposing major penalties has been laid down in Rule 15, of the Orissa Civil Services (Classification, Control and Appeal) Rules, 1962. The rule provides that no order imposing any major penalty shall be passed except latter an enquiry held as far as may be in the manner prescribed under the Rules. In Sub-rule (6) of Rule 15 it is provided that the enquiring authority shall, in the course of the enquiry, consider such documentary evidence and take such oral evidence as may be relevant or material in regard to the charges. The Government servant shall be entitled to cross-examine witnesses examined in support of the asked for show. The Petitioner charges and to give evidence in person, Rule 15 provides that a regular enquiry is to be held if major penalty is to be inflicted. But in the instant case no such enquiry was held. It has been held in T.K. Singh v. State of Bihar 1969 S.L.R. 18, that the statements in the preliminary enquiry cannot be utilised and a regular enquiry is necessary to be held. This Court in Bishnu Charan Swain v. District Magistrate & Collector, Ganjam 44 (1977) C.L.T. 241 has held that no evidence having been held and certain documents having only been placed at the enquiry, the Petitioner was denied the opportunity of being told to what were the materials sought to be utilised against him and, as such, he was deprived of the opportunity of defending himself. It has also been held in Khem Chand Vs. It has also been held in Khem Chand Vs. The Union of India (UOI )and Others that the legal position is settled that the delinquent in a disciplinary proceeding is entitled to the opportunity to know the materials against him; to have the evidence recorded in his presence; to have the right of cross-examining the witnesses examined; and to have a chance to examine his witnesses in support of his defence in Amalendu Ghosh Vs. District Traffic Superintendent North Eastern Railway, Katihar it was held that the findings reached by the enquiry committee as a result of the statutory enquiry cannot be said to be findings made against the delinquent in a departmental enquiry. No enquiry was made by the department and as such it was a kind of investigation made by the department under the rules. The validity of the departmental enquiry was challenged and this challenge of the delinquent was upheld by the Supreme Court. It has also been held in the State of Mysore Vs. K. Manche Gowda that the report submitted by the enquiring officer is only recommendatory in nature and the final authority which scrutinises it and imposes punishment is the authority empowered to impose the same. Whether a particular person has a reasonable opportunity or not depends, to some extent, upon the nature of the subject matter of the enquiry. Relying on several Supreme Court decisions, it has been held in Ramesh Chandra Behera v. State of Orissa 1974 (2) C.W.R. 764, that the principle that a fact sought to be proved must be supported by statements made in the presence of the person against whom,the enquiry is held and that statements made behind the back of the person charged are not to be treated as substantive evidence, is one of the basic principles which cannot be ignored on the mere ground that domestic tribunals are not bound by the technical rules of procedure contained in the Evidence Act. So also rules of natural justice are said to have been violated when reasonable opportunity is not given to the delinquent and previous records have only been utilised as against himself Kesoram Cotton Mills Ltd. Vs. Gangadhar and Others Central Bank of India Ltd. Vs. Prakash Chand Jain, and The State of Punjab v. Bhagat Ram 1975 (1) S.L.R. 2 . 7. Gangadhar and Others Central Bank of India Ltd. Vs. Prakash Chand Jain, and The State of Punjab v. Bhagat Ram 1975 (1) S.L.R. 2 . 7. A date of enquiry must be fixed for cross-examination of witnesses and to make comments on documents see Banchhanidhi Patnaik v. State of Orissa 35 (1969) C.L.T. 1128. 8. It is contended by the opposite parties that the Petitioner in his appeal had given explanation on the statements of Balaram and Rusia and on the report of, the Range Officer as well as the diary of the D.F.O. That will not amount to giving reasonable opportunity to the Petitioner at the enquiry held against him. Those are matters of preliminary enquiry, not in connection with the charges framed, but in connection with some other facts. Simply those matters were placed on record and the Petitioner was asked to adduce defence evidence and to give his statement. This clearly shows that the Petitioner has been highly prejudiced. It appears, therefore, mind has not been applied by the disciplinary authority or by the Chief Conservator of Forests. A report was obtained from the D.F.O. and the matter was decided and punishment was inflicted. We, therefore, hold that the enquiry was not according to Rule 15 of the Civil Services (Classification, Contton & Appeal) Rules, 1962 and the Petitioner has been highly prejudiced. 9. Rule 12(4) of the aforesaid Rules provides that there a penalty of dismissal, removal or compulsory retirement from service imposed upon a Government servant is set aside or declared or rendered void in consequence of or by a decision of a Court of law and disciplinary authority, on a consideration of the circumstances of the case, decides to hold a further enquiry against him on the allegations on which the penalty of dismissal, removal or compulsory retirement was originally imposed, the Government servant shall be deemed to have been placed under suspension by the appointing authority from the date of the original orders of dismissal, removal or compulsory retirement and shall continue to remain under suspension until further orders. When punishment of the Petitioner was set aside by the Supreme Court, the entire period of suspension was wiped out. After 25-3-1969, the Petitioner was again put under suspension with effect from 3-9-1970 retrospectively when he was reinstated on 17-2-1970. From 17-2-1970 to 3-9-1970 he worked. When punishment of the Petitioner was set aside by the Supreme Court, the entire period of suspension was wiped out. After 25-3-1969, the Petitioner was again put under suspension with effect from 3-9-1970 retrospectively when he was reinstated on 17-2-1970. From 17-2-1970 to 3-9-1970 he worked. Rule 12(4) of the aforesaid Rules provides that if the disciplinary authority has to take a decision to conduct a fresh enquiry, then the suspension from the original order of dismissal-which has been set aside by a Court of law is to come into operation. After remand by the Supreme Court, the suspension order passed by the D.F.O. ceased. When the Conservator is the disciplinary authority, D.F.O. is not to pass the order (Annexure-15) as he is not competent authority. The order of discharge set aside by the Supreme Court was dated 10-12-1962 (Annexure-II). If at all there could have been any suspension, it could only be from 10-12-1962. Retrospective suspension in such cases is bad see Dr. S.L. Agarwal v. General Manager, Hindusthan Steel Ltd. 1970 S.L.R. 351, West Bengal Khadi and Village Industries Board v. Dibyendu Prokash Bhattacharya 1980 (3) S.L.R. 136, Dalpratap Singh v. State of Madhya Pradesh 1980 (1) S.L.R. 19 and Om Parkash Goyal v. The State of Punjab 1980 (1) S.L.R. 643. 10. The next question is whether the case should be remitted back to be decided again by the disciplinary authority. Thirty-two years have passed in the meanwhile and the Petitioner has been out of service. The punishment inflicted is against law and against the rules provided under the Civil Services (Classification, Control & Appeal) Rules. We do not think it proper to remit back the case again in such circumstances. We are supported for this view by the decisions in Bishnu Charan Swain v. District Magistrate & Collector, Ganjam 44 (1977) C.L.T. 241. (referred to above) and Union of India v. M.B. Patnaik AIR 1981 S.C. 858 . 11. In view of the aforesaid circumstances, we hold that the enquiry held against the Petitioner is not according to law. The punishment inflicted on the Petitioner is also not according to law and the retrospective order of suspension is bad. 12. In the result, the writ petition is allowed. The impugned punishment and the retrospective suspension are set aside. The Petitioner is to be deemed to be in service and he is entitled to the consequential benefits. The punishment inflicted on the Petitioner is also not according to law and the retrospective order of suspension is bad. 12. In the result, the writ petition is allowed. The impugned punishment and the retrospective suspension are set aside. The Petitioner is to be deemed to be in service and he is entitled to the consequential benefits. The consequential benefits of the Petitioner should be decided and given to him within six months from the date of service of the writ. The Petitioner is to get costs of Rs. 250/- from the opposite parties. B.K. Behera, J. 13. I agree. Final Result : Allowed