JUDGMENT 1. 1. This writ petition is directed against the order dated, 18.7.84, passed by the Superintendent of Police, A.C.D., Rajasthan, Jaipur, by which punishment of dismissal from service has been imposed on the petitioner on the basis of an enquiry held under the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958. It has also been ordered that the petitioner shall not be entitled to the payment of salary for the period of suspension. 2. The petitioner was holding the post of Constable in Anti Corruption Department. A memorandum dated, 30th April 1983, was issued by the Disciplinary Authority, namely, Superintendent of Police, Anti Corruption Department, under Rule 16 of the Rules of 1958. The petitioner was called upon to submit his reply to the charges within 15 days and was also directed to state as to whether he wants personal hearing and whether he wants to produce any evidence in defence etc. This memorandum was served on the petitioner some times in the month of May 1983. On 1.6.83, the petitioner made an application for permission to inspect the record and further stated that he will be able to submit his reply only after inspection of the record. He also made a request for supply of the copies of the documents, details of which were given in the said application. This application has been submitted within a period of 15 days of the receipt of memorandum dated, 30.4.83. 3. By a communication dated 24.9.83, issued by the disciplinary authority, the petitioner was directed to appear before the Dy. Superintendent of Police, A.C.D., Jaipur, City (II) (Enquiry Officer) for inspection of the record. A similar direction was given to him in the month of October, 1983. Much before the petitioner could inspect the record and submit his reply, the Disciplinary Authority had passed the order appointing Shri Narendra Kumar Vidharia, Dy. Superintendent of Police (ACE)) Jaipur City (II) as Enquiry Officer in respect of the charges levelled against the petitioner. Shri Narendra Kumar could not conclude the enquiry and instead of him, Shri Madan Singh, Dy. S.P. (ACD), Jaipur issued a notice to the petitioner to appear before him on 25.10.83. Shri Madan Singh, Dy. S.P., ultimately held the inquiry. The petitioner's assertion is that no order appointing Shri Madan Singh as Enquiry Officer, was either issued or served upon him. S.P. (ACD), Jaipur issued a notice to the petitioner to appear before him on 25.10.83. Shri Madan Singh, Dy. S.P., ultimately held the inquiry. The petitioner's assertion is that no order appointing Shri Madan Singh as Enquiry Officer, was either issued or served upon him. It has further been asserted by the petitioner that in the list of witnesses which was furnished to him alongwith the memorandum dated, 30.4.83, only two persons, namely, Abdul Rehmen and Mst. Rajamma were cited as witnesses on behalf of the department. However, the Enquiry Officer recorded the statement of six persons, namely, S/Shri Harish Chand Pareek, Mst. Rajamma, Chhote Lal, Ram Kishore, Shiv Datt Sharma and Bhagwan Sahai. One of the witnesses cited in the list of witnesses, Shri Abdul Rehman was not examined during the course of enquiry. On his part he submitted a list of three witnesses as defence witnesses, but the statement of only one Babu Lal was recorded by the Enquiry Officer. It is also the case of the petitioner that Shri Harish Chand Pareek was examined on 13.9.83; by that time, the petitioner had not even been given permission to inspect the record. Shri Madan Singh, Dy. S.P., held enquiry and submitted a report on 26.12.83. In the report, he recorded a finding that all the three charges levelled against the petitioner had been proved. On the basis of the report of Shri Madan Singh, a show cause notice dated, 7.1.84 was issued by the Disciplinary Authority and the petitioner was called upon to submit his explanation against the proposal of a penalty of dismissal from service. On 18.2.84, the impugned order of punishment of dismissal from service was passed by the Disciplinary Authority. 4. The petitioner filed an appeal before the Dy. Superintendent of Police (A.C.D.) under Rule 23 of 1958 Rules, but the same has not been decided. He served a notice of demand of justice in the month of August 1984 for decision of appeal. But, even the notice for demand of justice was not decided therefore he filed a Writ Petition before this Court. 5. From the averments made in the writ petition it does appear that the prosecution was launched against the petitioner under sections 323, 342, 504 of the Indian Penal Code. Learned counsel for the petitioner stated that the petitioner has been acquitted by the Court of competent jurisdiction. 6. 5. From the averments made in the writ petition it does appear that the prosecution was launched against the petitioner under sections 323, 342, 504 of the Indian Penal Code. Learned counsel for the petitioner stated that the petitioner has been acquitted by the Court of competent jurisdiction. 6. No reply to the writ petition has been filed, even though, the case has remained pending before this Court for almost 8 years. When the case was taken for hearing today learned Dy. Government Advocate stated that he is not in a position to render any assistance because he does not have the file of the case. Neither of the parties is in a position to state whether the appeal filed by the petitioner before the Dy. Inspector General of Police has been disposed of or not. This Court ordinarily does not interfere in disciplinary matters when statutory remedy of appeal is available to the employee. But, if the appeal preferred by the employee is not decided within a reasonable time, the court has to proceed on an assumption that the remedy of appeal provided under the rules is not effective. Failure of the Dy. Inspector General of Police to decide the appeal of the petitioner despite a notice for demand of justice served by him through his counsel leaves much to be desired. An important function which requires to be discharged by the appellate authority has been taken too casually by the concerned authorities. As early as in the year 1971, this Court in M.R. Arjuna v. Union of India, 1971 RLW 177 , ruled that remedy of departmental appeal cannot be a bar to the maintainability of the writ petition, if the appeal preferred by the employee is not decided within a reasonable time. Therefore, I proceed to decide this writ petition notwithstanding the fact that the appeal filed by the petitioner under Rule 23 of 1958 Rules had not been decided by the time of filing of the writ petition. 7. The first contention advanced by the learned counsel for the petitioner is that the action of the disciplinary authority in appointing Enquiry Officer even before the petitioner could submit his reply to the charge-sheet, is wholly arbitrary, illegal and has resulted in gross violation of the principles of natural justice apart from being contravention of Rule 16(2), (3) and (4). The first contention advanced by the learned counsel for the petitioner is that the action of the disciplinary authority in appointing Enquiry Officer even before the petitioner could submit his reply to the charge-sheet, is wholly arbitrary, illegal and has resulted in gross violation of the principles of natural justice apart from being contravention of Rule 16(2), (3) and (4). The argument of Shri Mehta is that the delinquent has a right to satisfy the disciplinary authority by submitting the reply that the charge/charges levelled against him are unfounded and no further enquiry is warranted. Once a reply is filed by the delinquent Officer, the disciplinary authority is under an obligation to apply his mind and then proceed with the enquiry. In my opinion, the argument of Shri Mehta deserves to be accepted. The very object of enacting rule 16(2) and 16(3) is to enable the disciplinary authority to consider the circumstances which are brought forward by a delinquent in his reply in response to his charge-sheet and to decide as to whether it is at all necessary to proceed with the disciplinary enquiry or not. At times when the charges levelled against a delinquent are based on preliminary Inquiry or otherwise, the material available to the disciplinary authority at this stage is such on the basis of which it is not possible to finally make up mind as to whether the disciplinary proceedings should continue till their logical end. At this stage, the delinquent can produce the material to show that he is not at all concerned with the charges or that the basis of the charges is erroneous or that the charge is so trivial that the matter may be dropped at this stage. And therefore the disciplinary authority is to give delinquent an opportunity to submit reply to the charge-sheet and if the reply is submitted to take a decision to proceed or not to proceed with the enquiry after an objective consideration of the reply submitted by the delinquent. 8. The second submission of Shri Mehta is that the proceedings of the enquiry have been held in clear violation of the principles of natural justice and on that ground the order of punishment is vitiated. He argued that the petitioner was not given reasonable opportunity of defending himself. 8. The second submission of Shri Mehta is that the proceedings of the enquiry have been held in clear violation of the principles of natural justice and on that ground the order of punishment is vitiated. He argued that the petitioner was not given reasonable opportunity of defending himself. Shri Mehta submitted that in the list of witnesses which was furnished to the petitioner alongwith the charge sheet only two witnesses namely Shri Abdul Rehman and Mst. Rajamma had been cited. However, during the course of enquiry in all six witnesses including Mst. Rajamma were examined in support of charges although five persons were not even cited as witnesses in the list of witnesses furnished to them. Shri Mehta also submitted that evidence of Shri Harish Chand Pareek, to whom the petitioner is alleged to have given beating, was examined even before the petitioner could inspect the record for the purpose of submitting his reply. I find considerable force in the submission of Shri Mehta. Rule 16(6), (6-a) of 1958 rules are couched in mandatory form. These rules read together With rule 16(2) required that a list of witnesses who are to be examined in support of the charges, should be made available to the delinquent alongwith the memorandum of charges. The object of furnishing a list of witnesses to the delinquent employee alongwith the charge sheet, is to give him advance notice of the persons who are likely to depose against him so that he may make his preparation for effective cross-examination of these witnesses. Even during the course of enquiry the Enquiry Officer is free to examine additional witnesses after giving proper notice to the delinquent. But it is not open to the Enquiry Officer to examine witnesses who are not cited in the list of witnesses or regarding whom no advance notice is given to the delinquent employee. In the present case five witnesses have been examined without prior notice to the petitioner. He has thus been denied reasonable opportunity to his defence. The petitioner's statement that Shri Harish Chand Pareek was examined even before the disciplinary authority had give permission to the petitioner to inspect the record has not been disputed by the respondents in their reply. The petitioner had continuously made applications for permission to inspect the record. This permission was accorded to him on 24.9.83. The petitioner's statement that Shri Harish Chand Pareek was examined even before the disciplinary authority had give permission to the petitioner to inspect the record has not been disputed by the respondents in their reply. The petitioner had continuously made applications for permission to inspect the record. This permission was accorded to him on 24.9.83. The Enquiry Officer However, proceeded to record the statement of Shri Harish Chand Pareek before that date. This shows that the Enquiry Officer had acted in hot haste and the petitioner was denied an opportunity of effective cross-examination of Shri Harish Chand Pareek. Right to cross-examine the witnesses produced on behalf of the department includes a right to effectively cross-examine the witnesses. This is part and parcel of the requirement of reasonable opportunity of hearing in departmental enquiries. The examination of Shri Harish Chand Pareek before giving opportunity of inspection of record to the petitioner, on whose testimony much reliance has been placed by the Enquiry Officer and the disciplinary authority has resulted in serious prejudice to the petitioner and on that ground also the order of punishment is liable to be quashed. 9. The next submission of Shri Mehta, learned Counsel for the petitioner is that Mst. Rajamma in her statement during the course of departmental enquiry clearly negated the case of the department. Shri Mehta drew my attention to the statement of Smt. Rajamma and argued that the Enquiry Officer discarded her statement given by her during the course of departmental enquiry and has placed reliance on her statement recorded under Section 161 Cr.P.C. by the Police. Shri Mehta argued that statement of Smt. Rajamma recorded under Section 161 Cr.P.C. can at the best tc be treated as the statement recorded during the course of a preliminary enquiry. Such statement cannot be made basis for bringing a charge home in a departmental enquiry particularly when the witness has appeared in the departmental enquiry and has made a particular statement. A perusal of the statement of Smt. Rajamma which finds reference in the enquiry report shows that she has clearly discounted the case of the department about petitioner having given beating to Shri Harish Chand Pareek. She categorically stated that two policemen had earlier come to her house and got her thumb impression on a piece of paper. A perusal of the statement of Smt. Rajamma which finds reference in the enquiry report shows that she has clearly discounted the case of the department about petitioner having given beating to Shri Harish Chand Pareek. She categorically stated that two policemen had earlier come to her house and got her thumb impression on a piece of paper. The Enquiry Officer proceeded to observe that the statement given by Smt. Rajamma during the course of departmental enquiry cannot be relied upon. He then adverted to her statement recorded under Section 161 Cr. P.C. and relying on that statement the Enquiry Officer held that the charge levelled against the petitioner stands proved. The procedure adopted by the Enquiry Officer is in my opinion clearly contrary to the principles of natural justice. Statement record during preliminary enquiry or under Section 161 Cr. P.C. is so recorded behind the back of a delinquent or an accused person. Such statement cannot be treated as a piece of evidence, on the basis of which any finding of guilt can be recorded. By the very nature of such proceedings, it is clear that requirements of natural justice are not necessary to be complied with at this stage. Therefore, statements made in the preliminary enquiry or recorded under Section 161 Cr. P.C. cannot be used for holding a person guilty. In Central Bank of India v. Prakash Chand Jain, 1969 (1) SCR 735 , their Lordships of the Supreme Court have laid down the following principle of considering evidence in domestic enquiry. Their Lordships of the Supreme Court observed : "A domestic tribunal though not bound by the technical rules about evidence contained in the Indian Evidence Act cannot ignore substantive rules which would form part of principles of natural justice. 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 such basic principles which a domestic tribunal cannot disregard. The previous statement of witness is not substantive evidence unless affirmed as truthful by the witness when actually examined in the presence of the workman charged. The previous statement of witness is not substantive evidence unless affirmed as truthful by the witness when actually examined in the presence of the workman charged. A finding by the domestic tribunal based not on substantive evidence but on hearsay, is perverse, because hearsay is not legal evidence." 10. That was a case in which the Bank Officer had been found guilty of some charges on the basis of evidence recorded during the course of preliminary enquiry. The Supreme Court held that consideration of such an evidence is not permissible because of the fact that such statements are not made in the presence of the persons against whom the enquiry is hold. 11. As already noticed, the Enquiry Officer has placed reliance on the statement of Smt. Rajamma recorded under Section 161 Cr. P.C. and has discarded the statement given by her during the regular enquiry. Thus the finding of the Enquiry Officer suffers from a serious infirmity. 12. On the basis of the above discussions it has to be held that:- (i) The petitioner was not given opportunity of submitting his written statement and the provisions contained in Rule 16(2), (3) and (4) have been violated, in as much as the Enquiry Officer was appointed even before the petitioner could get an opportunity to inspect the record for the purpose of submitting his written statement. (ii) The proceedings of enquiry held against the petitioner is vitiated on account of the violation of rule 16 and the principles of natural justice in as much as even before the petitioner was given permission to inspect the record for the purpose of submitting his reply, the statement of Shri Harish Chand Pareek was recorded and the Enquiry Officer relied upon the statement of Smt. Rajamma recorded under Section 161 Cr. P.C. by the Police and also that statements of 5 persons were recorded and relied upon in enquiry proceedings even though they were not cited as witnesses in the list given to the petitioner alongwith the chargesheet. 13. In the result, the writ petition succeeds and it is hereby allowed. The order dated 18.2.84 passed by the Superintendent of Police, Anti Corruption Department, Rajasthan, Jaipur, is set aside and quashed. Respondents are directed to reinstate the petitioner with all consequential benefits. 13. In the result, the writ petition succeeds and it is hereby allowed. The order dated 18.2.84 passed by the Superintendent of Police, Anti Corruption Department, Rajasthan, Jaipur, is set aside and quashed. Respondents are directed to reinstate the petitioner with all consequential benefits. Government is however free to make recovery of the amount of back wages which will have to be paid to the petitioner as a result of the quashing of the impugned order from the Disciplinary Authority who had acted in utter disregard of the Statutory Rules as well as the principles of natural justice. 14. Parties are left to bear their own costs.Petition allowed. *******