Judgment D.S. Sinha, J. 1. Heard Sri Amar Nath Srivastava, learned counsel for the petitioner and Sri S.K. Saxena, learned Standing Counsel representing the respondents no. 1 and 2. No body appears from the respondent no. 3. 2. The petitioner, an erstwhile clerk in the Judgeship of Shahjahanpur, invokes the jurisdiction of this Court under Article 226 of the Constitution of India, and prays that the order dated 20th February, 1987, passed by the District Judge, Shahjahanpur, the respondent no. 2, dismissing him from service, and the order dated 26th November, 1987 passed by High Court of Judicature at Allahabad, the respondent no. 1, on its administrative side, and whereby the order dismissing the petitioner has been affirmed an appeal, be quashed. At the relevant time, the petitioner was posted as Suits clerk in the court of II Addl. Civil Judge, Shahjahanpur, and in that capacity he was custodian of the record of Original Suit No. 334 of 1985, Allahabad Bank v. M/s. Shanker Rice Mills and others., pending in the said court. The original agreements, containing seven papers, which formed the basis of the suit were lost. This led to institution of art inquiry to find out the person responsible for the loss of the documents. A preliminary inquiry was held. On the basis of the preliminary enquiry the petitioner was charge-sheeted for having deliberately caused loss of the documents, mentioned above. The petitioner submitted a written statement before the enquiring officer. On 9th January, 1987, the enquiring officer found that the charges against the petitioner were established. On the basis of the findings arrived at by the enquiring officer, the punishing authority, namely, the District Judge, Shahjahanpur, the respondent no. 2, came to the conclusion that the dismissal was the only suitable punishment for the petitioner. He, therefore, passed the impugned order dated 20th February, 1987, a copy whereof is to be found on record as Annexure 17' to the petition. Against the order dated 20th February, 1987, aforesaid, the petitioner preferred an appeal before this court under Rule 7 of the U. P. Subordinate Courts Staff (Punishment and Appeals) Rules, 1976 hereinafter called the Rules. The appeal of the petitioner was dismissed by the order dated 26th November, 1987, which is annexure 19' to the petition. 3. Against the order dated 20th February, 1987, aforesaid, the petitioner preferred an appeal before this court under Rule 7 of the U. P. Subordinate Courts Staff (Punishment and Appeals) Rules, 1976 hereinafter called the Rules. The appeal of the petitioner was dismissed by the order dated 26th November, 1987, which is annexure 19' to the petition. 3. To assail the impugned dismissal of the petitioner, Sri Amar Nath Srivastave, learned counsel for the petitioner, has pressed only one ground, namely, the lack of opportunity to represent against the proposed punishment of dismissal, as envisaged in sub-rule (4) of Rule 5 of the Rules. 4. In paragraph 30 of the petition, it has been specifically pleaded by the petitioner that no show cause notice had been issued to him before awarding the extreme punishment of dismissal from service. This pleading of the petitioner has not been denied in the counter affidavit sworn by Sri Raj Kumar Singh Addl. District and Sessions Judge, Shahjahanpur, filed on behalf of the respondent no. 2. It would be pertinent to notice to reply on behalf of the respondent no. 2 to the pleading of the petitioner contained in paragraph 30 of the petition, which is contained in paragraph 26 of the counter affidavit. Paragraph 26 of the counter affidavit reads as follows : "26. That in reply to the contents of para 30 of the petition it is stated that the petitioner was given full opportunity to defend him and to produce evidence in his defence and to cross-examine the witness. The District Judge before passing the order has perused the entire record and has recorded finding on all the issues involved in the enquiry. It was not necessary to issue a show cause notice before punishing the petitioner. The order passed by the District Judge does not suffer from any error of procedure, law and jurisdiction." (Emphasis added). A perusal of the averments contained in paragraph 26 extracted above, shows that the plea of the petitioner contained in paragraph 30 of the petition with regard to the lack of opportunity to represent against the proposed punishment of dismissal from service, has not been denied either specifically or by necessary implication What is pleaded in the aforesaid paragraph is that it was not necessary to issue a show-cause notice before punishing the petitioner. 5. The plea on behalf of the respondent no. 5. The plea on behalf of the respondent no. 2 that it was not necessary to issue a show-cause notice before punishing the petitioner is untenable in view of the express provision of sub-rule (4) of Rule 5 of the Rules, which runs as under : "(4) After the inquiry against a Government servant has been completed and after the punishing authority has arrived at provisional conclusion in regard to the penalty to be imposed, the Government servant charged shall, if the penalty proposed is dismissal, removal or reduction in rank, be supplied with a copy of the report of the enquiring officer prepared under sub-rule (1) together with the recommendation, if any in regard to punishment, made by the officer conducting the inquiry and be given a notice stating the penalty proposed to be imposed on him and calling upon him to submit by a particular date which affords him reasonable time, such representation as he may wish to make on the proposed penalty provided that such representation shall be based on the evidence adduced before the inquiry." 6. Sub-rule (4), quoted above, enjoins upon the punishing authority, after he arrives at a conclusion in regard to the penalty to be imposed and if the penalty proposed is dismissal, removal or reduction in rank, to supply to the delinquent Government servant a copy of the report of the enquiring officer together with his recommendation, if any, in regard to the punishment made by the officer conducting the inquiry and to give a notice stating the penalty proposed to be imposed on him and calling upon him to submit, within a reasonable time, such representation as he may wish to make on the proposed penalty. This provision is mandatory and violation thereof will render the order of imposition of penalty of the delinquent Government servant invalid. The order dated 20th February, 1987, dismissing the petitioner was passed by the punishing authority straightway after the receipt of the findings of the enquiring officer. While passing the order of dismissal, the punishment authority observed as follows : ".........Considering all the aspects of the case I think that dismissal is the only suitable punishment. Sri Chet Ram, suits clerk of the court of II Additional Civil Judge, Shahjahanpur, is, therefore, dismissed from service with immediate effect on the charge of gross negligence and misconduct. While passing the order of dismissal, the punishment authority observed as follows : ".........Considering all the aspects of the case I think that dismissal is the only suitable punishment. Sri Chet Ram, suits clerk of the court of II Additional Civil Judge, Shahjahanpur, is, therefore, dismissed from service with immediate effect on the charge of gross negligence and misconduct. This observation clearly indicates that the punishing authority did not call upon the petitioner to show cause against the proposed penalty of dismissal from service. 7. Since the fate of the petition was to turn on the answer to the question as to whether the petitioner was given any opportunity to represent against the punishment of dismissal from service in terms of sub rule (4) of Rule 5 of the Rules and it was basically a question of fact, the court considered it appropriated to give one more opportunity to the respondents no. 1 and 2 to reply to the assertion of the petitioner that he was not given opportunity to represent against the punishment of dismissal. It, therefore, passed the following order on 8th July, 1993 : "The principal grievance of (he petitioner is that before the penalty of dismissal from service was inflicted upon him, he was not given any opportunity to make a representation as contemplated by sub-rule (4) of Rule 5 of the U.P. Subordinate Courts Staff (Punishment and Appeals) Rules, 1976. The position about the fact as to whether the opportunity, as claimed by the petitioner, was given or not is not clear. The interest of justice requires that the respondents no. 1 and 2 be called upon to apprise the court on this aspect by filing affidavit, specifically disclosing therein as to whether the opportunity to the petitioner, as contemplated by sub-rule (4) of Rule 5 of the aforesaid Rules was given. The respondents no 1 and 2 are, therefore, directed to file affidavit, as aforesaid, for which purpose, as prayed by Sri S.K. Saxena, learned Standing Counsel, a fortnight's time is granted. List for further hearing upon expiry of the period fixed herein for filing affidavit by the respondents no. 1 and 2." It is deplorably unfortunate that no heed was paid by the respondents no. 1 and 2 to the above order of the court dated 8th July. 1993. No affidavit has been filed. List for further hearing upon expiry of the period fixed herein for filing affidavit by the respondents no. 1 and 2." It is deplorably unfortunate that no heed was paid by the respondents no. 1 and 2 to the above order of the court dated 8th July. 1993. No affidavit has been filed. Thus, it has to be presumed and concluded that before the imposition of penalty of dismissal, the petitioner was not given opportunity to make: representation and the penalty was imposed without complying the provisions of sub-rule (4) of Rule 5 of the Rules. The penalty of dismissal of the petitioner, having been imposed without complying the provisions of sub-rule (4) of Rule 5 of the Rules, cannot be allowed to stand. The order dated 20th February, 1987, dismissing the petitioner from service cannot be countenanced by law and, therefore, must perish. SINCE the order of dismissal of the petitioner is held to be invalid, the order dated 26th November, 1987 confirming the said order falls through automatically. 8. In the result, the petition succeeds and is allowed. The order dated 20th February, 1987 (Annexure 17' to the petition), so far as it relates to the petitioner, and the order dated 26th November, 1987 (Annexure 19' to the petition), passed by respondents no. 2 and 1 respectively, are quashed. The petitioner shall be deemed to be continuing in service and entitled to all the benefit thereof. However, this judgment will not preclude the punishing authority from passing a fresh order in the matter, after complying the provisions of sub-Rule (4) of Rule 5 of the Rules. 9. THERE will be no order as to costs. Petition allowed.