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2001 DIGILAW 573 (ALL)

RADHEY SHYAM PANDEY v. CHIEF SECRETARY U. P.

2001-05-25

M.KATJU, R.B.MISRA

body2001
R. B. MISHRA, J. ( 1 ) THE petitioner has filed the present Writ Petition No. 7133 of 2001 seeking a writ of certiorari to quash the ex parte Inquiry report and for a mandamus commanding the respondents not to give effect or not to take any action against the petitioner on the basis of the ex parte inquiry report against him. The petitioner has also prayed for a writ of mandamus commanding the respondent No. 1 to get the Inquiry conducted, if any, against the petitioner through any competent authority of any department other than the present one which is under the ministry of sri Markandey Chand, the Minister for Rural Engineering Services and Minor Irrigation department Government of U. P. The petitioner has made initially five respondents, e. g. , (i) The chief Secretary, State of Uttar Pradesh. (ii) Sri Markandey Chand. Minister for Rural engineering Services and Minor Irrigation Department. (iii) The Secretary. Minor Irrigation department and Rural Engineering Services, (iv) Sri AJai Kumar Joshi. Secretary Minor irrigation Department and Rural Engineering Services, (v) Sri R. P. Birla. Inquiry officer/superintending Engineer Rural Engineering Services. Varanasi Circle and (vi) The Uttar pradesh Public Service Commission Allahabad through its Secretary. The petitioner has. however, finally Indicated that he is not willing to press the allegations of mala fide made against original respondent No. 2 (i. e. , Sri Markandey Chand) and the respondent No. 5 (Sri R. P. Birla ). The petitioner subsequently filed an amendment application dated 30. 3. 2001 seeking a direction in the nature of certiarari to quash the dismissal order dated 27. 3. 2001 passed by respondent No. 3 and the same was allowed by this Court. ( 2 ) THE brief facts necessary in the case are that the petitioner was recruited initially as Junior engineer and was promoted as Assistant Engineer and was posted as incharge Executive engineer, Rural Engineering Services, Ballia from 14. 7. 1995 to 24. 7. 1997. It is alleged that the district Magistrate. Ballta, wrote a letter to the State Government that a departmental inquiry against the petitioner should be conducted for his involvement in embezzlement and financial loss of money to the State Government. It is also alleged that a vertical audit report was also made by the Accountant General, U. P. , for financial irregularities committed by the petitioner. Ballta, wrote a letter to the State Government that a departmental inquiry against the petitioner should be conducted for his involvement in embezzlement and financial loss of money to the State Government. It is also alleged that a vertical audit report was also made by the Accountant General, U. P. , for financial irregularities committed by the petitioner. It is also alleged that the trouble started when the petitioner claimed his regularisation as an executive Engineer and he could not please the Honble Minister, therefore, he had to approach the U. P. Public Service Tribunal whereby the main claim of the petitioner along with his seniority became final having not been challenged further by the department. However, the petitioner was placed under suspension vide order dated 22. 12. 1998 [enclosed as Annexure-3 to the writ petition) and Sri Ram Prakash. Chief Engineer Eastern Zone, Rural Engineering services was appointed as Inquiry Officer. A detailed charge-sheet was framed against the petitioner for huge financial loss caused by unauthorised work and making negative payment (i. e. , for drawing more amount than sanctioned for the work) causing financial loss by purchasing unnecessary materials. The petitioner challenged the order of suspension in Writ petition No. 928 of 1999 on the ground of mala fide and this Court on being prima facie satisfied stayed the operation of the suspension by its order dated 12. 4. 1999. However, despite the stay of suspension of the petitioner, he was neither reinstated nor was paid subsistence allowance or his regular salary. After the superannuation of Sri Ram Prakash, Chief Engineer the Inquiry officer on 30. 4,1999, the State Government appointed after about four months, one Sri R. P. Birla the superintending Engineer who is alleged to be yes man of Honble the Minister (as indicated in paragraph 15 of the writ petition) and at whose instance and complaint, the inquiry against the petitioner was started. The petitioner became apprehensive that no fair inquiry shall be conducted against him, therefore, he represented to the Chief Secretary. U. P. , for nominating another inquiry officer other than Sri R. P. Birla who should be not from the department under the Ministry of Sri Markandey Chand (as alleged in para 16 of the writ petition ). The petitioner became apprehensive that no fair inquiry shall be conducted against him, therefore, he represented to the Chief Secretary. U. P. , for nominating another inquiry officer other than Sri R. P. Birla who should be not from the department under the Ministry of Sri Markandey Chand (as alleged in para 16 of the writ petition ). ( 3 ) BY not getting proper response, the petitioner filed a Writ Petition No. 25072 of 2000 seeking a direction for a decision on his representation for changing the inquiry officer. The High Court vide its order dated 23. 5. 2000 directed the Chief Secretary, U. P. , to decide the representation of the petitioner. As referred in para 18 of the writ petition, no decision in pursuance to the direction of High Court was communicated to the petitioner. In those circumstances, the petitioner had to prefer Contempt Petition No. 986 of 2001. This Court has taken very strong view and directed the opposite parties to make payment of salary to the petitioner within a month vide Its order dated 6. 11. 2000 (referred in para 30 of the writ petition ). Subsequently, it appears that in order to avert the pressure of contempt proceeding, a cheque amounting Rs. 3,86,376 towards the dues from the date of order of suspension, i. e. , 22. 12. 1998 to 30. 11. 2000 was purported to have been issued to the petitioner but that too was not cashed and the same was got bounced on the indication of stop payment request of the inquiry officer. Admittedly, the petitioner was not paid the subsistence allowance as well as the salary or any amount from the date of suspension till the conclusion of inquiry dated 12. 1. 2000 as contended in para 31 of the writ petition. This lapse on the part of the State Government as well as of the contemners was taken note of by this Court in its order dated 3. 1. 2001 where the State Government was asked to file counter-affidavit on behalf of the contemners explaining the reason for dishonour of the cheque. ( 4 ) THE petitioner contended that since he was not paid subsistence allowance as well as his legal dues, therefore, in the circumstances, he was seriously financial handicapped and he was compelled to shift to his home town. i. e. . ( 4 ) THE petitioner contended that since he was not paid subsistence allowance as well as his legal dues, therefore, in the circumstances, he was seriously financial handicapped and he was compelled to shift to his home town. i. e. . to his village Agror Khurd post Agror Kala. Tahsil vlkramganj, district Rohtas (presently Sahabad Bihar), an address duly recorded in his service records. The petitioner has contended that no effort was made by the respondents, neither he was served a copy of the charge-sheet nor he was given information in respect of the inquiry proceedings as a result of which the petitioner could not be aware about the inquiry proceeding and for want of subsistence allowance and salary due to him, he could not go to participate in the inquiry proceedings and an ex parte inquiry was concluded behind his back without providing the petitioner to defend himself and contrary to the rules and procedures and consequently the dismissal order from service against the petitioner was passed against the principle of natural justice. The petitioner also contended that despite his request, the inquiry officer, the interested party, Sri R. P. Birla who was under the Influence of the Honble Minister, was not changed and from this aspect also, the ex parte inquiry is vitiated. The petitioner also contended that no show cause was given to him even after the conclusion of the ex parte inquiry report. ( 5 ) THE counter-affidavit as well as supplementary counter-affidavit dated 30. 3. 2001 were filed on behalf of the respondent Nos. 1 to 3. However, no reply was preferred on behalf of the other respondents. The contesting respondents on the other-hand have asserted that effort was made to serve the charge-sheet on the petitioner but he avoided the service in every possible manner. The respondent inquiry officer has claimed that the petitioner attended the office of the superintending Engineer, Varanasi, on 25. 2. 1999 when he tried to serve the charge-sheet, but the petitioner threw the envelop containing the charge-sheet and went away. The petitioner had absconded and his whereabouts were neither known nor he intimated about it, therefore, the notices were published in Daily Newspaper (Dainik Jagran) on 17. 2. 1999 and 19. 12. 1999. By the said notices, the petitioner was directed to come to the office of the inquiry officer to accept the charge-sheet and submit his reply. The petitioner had absconded and his whereabouts were neither known nor he intimated about it, therefore, the notices were published in Daily Newspaper (Dainik Jagran) on 17. 2. 1999 and 19. 12. 1999. By the said notices, the petitioner was directed to come to the office of the inquiry officer to accept the charge-sheet and submit his reply. The respondents have also asserted that the charge-sheet was also served on 23. 3. 1999 through his counsel in the Writ Petition No. 928 of 1999 where the charge-sheet was enclosed to the supplementary counter-affidavit and thereby the petitioner was brought to his knowledge about the charge-sheet. The respondents have also asserted that since the petitioner has neither given reply to the charge-sheet nor has ever appeared before Inquiry officer in these circumstances, the inquiry officer had no alternative but to proceed ex parte and submit his Inquiry report to the State Government on 12. 1. 2000. The respondent has asserted that disciplinary inquiry has been conducted under the provisions of the Civil Services (Classification, Control and Appeal) Rules. 1930 (in short C. C. A. Rules) as applicable to the state of U. P. and in consultation with the U. P. Public Services Commission Allahabad on 21. 3. 2001, the State Government has passed the order on 27. 3. 2001 dismissing the petitioner from service. The respondents have asserted that since the petitioner was a high rank officer being incharge Executive Engineer drawing salary more than Rs. 15,000 per month and was posted at Bhadohi, Sant Ravi Das Nagar and the inquiry was being conducted at Varanasi at a distance of 65 kms. from Bhadohi, as such, the petitioner could have easily participated in the inquiry proceeding, whereas the petitioner inspite of participating in the disciplinary inquiry was busy in filing writ petitions as well as contempt petitions and engaging senior advocates along with junior advocates. The subsistance allowance could not be paid to the petitioner because he never attended the head quarter. Had he attended the head quarter, he would have been paid the subsistence allowance already. The respondents have also tried to impress that since the petitioner was transferred from Ballla to district Sant Ravi Das Nagar (Bhadohi) on 28. 7. The subsistance allowance could not be paid to the petitioner because he never attended the head quarter. Had he attended the head quarter, he would have been paid the subsistence allowance already. The respondents have also tried to impress that since the petitioner was transferred from Ballla to district Sant Ravi Das Nagar (Bhadohi) on 28. 7. 1998 and he had embezzled huge money (for which F. l. R. was also lodged at police station Kotwali, sant Ravi Das Nagar and another F. l. R. was lodged against the petitioner at police station kotwali. Ballla, on 19. 2. 1999 ). as such the petitioner was not suffering from any type of financial crunch and he was able to attend the inquiry proceeding. We have perused the inquiry report where no receipt of proof is available regarding service of charge-sheet. It has been mentioned in the inquiry report that effort was made to serve the charge-sheet to the petitioner which was specifically by publishing in the news paper, where it has also been mentioned in the inquiry report that "no any step appears to have been taken in this file". According to para 3 of the inquiry report by the news publication dated 5. 10. 1999 in dainik Jagran Varanasi, the petitioner was expected to submit his defence response within a month to the inquiry officer from the date of publication, otherwise by not submitting the reply further action in respect of the inquiry on the basis of the records was to be taken. It is also revealed in para 3 of the inquiry report that by publication dated 4. 11. 1999. the petitioner was also expected to give further reply within 15 days from 4. 11. 1999. ( 6 ) THE assertion of the respondents regarding avoidance of charge-sheet on 25. 2. 1999 by the petitioner in the office of the inquiry officer Sri R. P. Birla was never referred earlier in the counter- affidavit or by way of affidavit and it has for the first time been brought by way of written argument. While going through the contents of letter No. M-252 dated 25. 2. 1999. it only appears that some sealed envelop was placed before the petitioner which was declined by the petitioner and the contents of the letter do not reveal that charge-sheet was contained in the letter. While going through the contents of letter No. M-252 dated 25. 2. 1999. it only appears that some sealed envelop was placed before the petitioner which was declined by the petitioner and the contents of the letter do not reveal that charge-sheet was contained in the letter. The contents of the letter do not further fortify the stand of respondent that the charge-sheet was duly served to the petitioner whereas the petitioner also denied the service of the charge-sheet through the counsel of the petitioner in Writ Petition No. 928 of 1999 in March, 1999. ( 7 ) IT is, therefore, evident from the records that no steps were taken by the respondents to serve the charge-sheet to the petitioner by registered post, more specifically, on the permanent address mentioned in the service record of the petitioner. It appears that only formality of serving the charge-sheet has been made through publication in the news paper. This attempt to serve the charge-sheet, notice, as well as inquiry report, through the news paper which is mainly in circulation in U. P. only, whereas, the petitioner for want of subsistence allowance and salary was residing at his permanent address in Bihar. where no communication was received by him. Steps for communication to the charged person through the newspaper publication was necessary to be resorted only when other means of communication were exhausted. The explanation for non-payment of subsistence allowance by the respondents was not justified. ( 8 ) REGARDING the contentions of the petitioner referred in para 16 of the writ petition where the petitioner had prayed for change of Sri R. P. Birla. the inquiry officer, the respondents have simply indicated in the counter-affidavit dated 30. 3. 2001 that the State Government after considering the request of the petitioner has found no Justification to change the inquiry officer. ( 9 ) IN para 7 of rejoinder-affidavit dated 3. 4. 2001. the petitioner has reiterated his contentions that the ex parte inquiry report was made without following the rules and against the principles of natural justice, and at the instance of Honble Minister concerned, the dismissal order has been passed. The petitioner through a Civil Application No. 29010 of 2001 dated 27. 3. 2001 (annexed as Annexure-S. A. 1) contended that by the G. O. dated 6. 6. The petitioner through a Civil Application No. 29010 of 2001 dated 27. 3. 2001 (annexed as Annexure-S. A. 1) contended that by the G. O. dated 6. 6. 1985, only 5% responsibility lies upon the Executive Engineer, while 20% on Assistant Engineer and 75% responsibility lies upon the junior Engineer in respect of the financial Joss and irregularities committed in construction work of the State Government. However, for reasons best known to them, ignoring the Government order, the entire responsibility was attempted to be fixed on the petitioner. This contention of the petitioner has not been denied by the respondent in para 4 of the supplementary counter-affidavit dated 30. 3. 2001. ( 10 ) THERE are Civil Services (Classification, Control and Appeal) Rules, 1930 (hereinafter called rules. 1930. Rule 55 (1) of Rules 30 provides : "55. (1) Without prejudice to the provisions of the Public Servants Inquiries Act. 1850. no order (other than an order passed on facts which had led to his conviction in a criminal court or by a court Martial) of dismissal. removal or reduction in rank (which includes reduction to a lower post or, time-scale or to a lower stage in a time-scale but excludes the reversion to a lower post of a person who is officiating in a higher post) shall be passed on a person who is member of a civil service or holds a civil post under the State unless he has been informed in writing of the grounds on which it is proposed to take action and has been afforded an adequate opportunity of defending himself. (4) This rule shall not apply where the person concerned has absconded, or where it is for other reasons impracticable to communicate with him. All or any of the provisions of the rule may, for sufficient reasons to be recorded in writing, be waived, where there is difficulty in observing exactly the requirements of the rule and those requirements can in the opinion of the inquiry officer be waived without injustice to person charged. " ( 11 ) THERE is also U. P. Government Servant (Discipline and Appeal) Rules, 1999 (called Rules. J999 ). Para 2 of this rule deals with the definitions, para 3 deals with the penalties of minor or major and para 4 deals with the suspension ; para 5 deals with pay and allowances, etc. " ( 11 ) THERE is also U. P. Government Servant (Discipline and Appeal) Rules, 1999 (called Rules. J999 ). Para 2 of this rule deals with the definitions, para 3 deals with the penalties of minor or major and para 4 deals with the suspension ; para 5 deals with pay and allowances, etc. during the suspension period, para 7 deals with the procedure for imposing major penalties ; the relevant part of para 7 are given here as under : "7 (iii) The charges framed shall be so precise and clear as to give sufficient indication to the charged Government servant of the facts and circumstances against him. The proposed documentary evidences and the name of witnesses proposed to prove the same along with oral evidence, if any, shall be mentioned in the charge-sheet. 7 (iv) The charged Government servant shall be required to put in a written statement of his defence in person on a specified date which shall not be less than 15 days from the date of issue of charge-sheet and to state whether he desires to cross examine any witness mentioned in the charge-sheet and whether desires to give or produce evidence in his defence. He shall also be informed that in case he docs not appear or file the written statement on the specified date, it will be presumed that he has none to furnish and inquiry officer shall proceed to complete the inquiry ex parte. 7 (v) The charge-sheet, along with the copy of documentary evidences mentioned therein and list of witnesses and their statements, if any shall be served on the charged Government servant personally or by registered post at the address mentioned in the official records in case the charge-sheet could not be served in aforesaid manner, the charge-sheet shall be served by publication in a daily newspaper having wide circulation. 7 (viii) The inquiry officer may summon any witnesses to give evidence or require any person to produce documents before him in accordance with the provisions of the Uttar Pradesh departmental Inquiries (Enforcement of attendance of Witnesses and Production of Documents)Act, 1976. 7 (viii) The inquiry officer may summon any witnesses to give evidence or require any person to produce documents before him in accordance with the provisions of the Uttar Pradesh departmental Inquiries (Enforcement of attendance of Witnesses and Production of Documents)Act, 1976. 7 (x) Where the charged Government servant does not appear on the date fixed in the inquiry or at any stage of the proceeding in spite of the service of the notice on him or having knowledge of the date, the Inquiry officer shall proceed with the inquiry ex parte. In such a case the inquiry officer shall record the statement of witnesses mentioned in the charge-sheet In absence of the charged Government servant. ( 12 ) HEARD Sri T. P. Singh, senior advocate learned counsel for the petitioner and Sri Virendra swaroop, learned Additional Advocate General. U. P. . for the respondents. ( 13 ) THE counter-affidavit, supplementary counter-affidavit, rejoinder-affidavit along with other records and written statements of the parties have been perused. ( 14 ) THE petitioner has placed reliance on the decision Jagdamba Prasad Shukla v. State of U. P. and others, (2000) 7 SCC 90 and Para 8, "where the Supreme Court has held that" the payment of subsistence allowance, in accordance with the rules, to an employee under suspension is not a bounty. It is a right. An employee is entitled to be paid the subsistence allowance. No justifiable ground has been made out for non-payment of the subsistence allowance all through the period of suspension, i. e. , from suspension till removal. One of the reasons for not appearing in inquiry as intimated to the authorities was the financial crunch on account of non-payment of subsistence allowance, and the other was the illness of the appellant. The appellant in reply to the show cause notice stated that even if he was to appear in inquiry against medical advice, he was unable to appear for want of funds on account of nonpayment of subsistence allowance. It is a clear case of breach of principles of natural justice on account of the denial of reasonable opportunity to the appellant to defend himself in the departmental inquiry. Thus, the departmental inquiry and the consequent order of removal from service are quashed. It is a clear case of breach of principles of natural justice on account of the denial of reasonable opportunity to the appellant to defend himself in the departmental inquiry. Thus, the departmental inquiry and the consequent order of removal from service are quashed. " the petitioner also relied on AIR 1973 SC 1183 , Constitutional Bench Judgment of Supreme court in the matter of Ghanshyam Das v. State of U. P. , wherein the inquiry was declared invalid because delinquent had failed to attend the Inquiry due to paucity of funds resulting from nonpayment of subsistence allowance. The petitioner has also placed reliance on Capt. M. Paul Anthony v. Bharat Gold Mines Lid. and another. AIR 1995 SC 1416, Para 33. where the employee was not provided any subsistence allowance during the period of suspension and the adjournment prayed for by him on account of his illness, duly supported by medical certificates, was refused resulting in ex parte proceedings against him it was held that the appellant has been punished in total violation of the principles of natural justice and he was literally not afforded any opportunity of hearing. Moreover, on account of his penury occasioned by non-payment of subsistence allowance, during pendency of departmental proceedings he could not undertake a Journey to attend the disciplinary proceedings from his home town, the findings recorded by the inquiry officer at such proceedings, which were held ex parte, stood vitiated. The petitioner also placed reliance on the judgments of this High Court K. P. Girt v. State of U. P. and others. 20o1 (1) UPLBEC 908, Paras 7 and 8. as well as on Bajrang Prasad Srivastava v. U. P. Pariyojana Prabandha, U. P. State Bridge Corporation Ltd. and others. 2001 UPLBEC 1321. It was held in the case of K. P. Giri (supra) : "even in the absence of any reply submitted by the petitioner to the charge-sheet, it was incumbent upon the inquiry officer to fix the date in the inquiry and to intimate the petitioner about the same which has not been done in the present case. Moreover, from a perusal of the order of dismissal dated 20,3. 1998 it will be seen that the management had produced the evidence in support of the charges levelled against the petitioner which had been accepted by the inquiry officer without making any effort to confront the same to the petitioner. Moreover, from a perusal of the order of dismissal dated 20,3. 1998 it will be seen that the management had produced the evidence in support of the charges levelled against the petitioner which had been accepted by the inquiry officer without making any effort to confront the same to the petitioner. Thus, the entire proceedings have been conducted in gross violation of equity, fair play and is in breach of the principles of natural justice. " In respect of change of inquiry officer, the petitioner has further placed reliance on Registrar of cooperative Societies, Madras and another v. F. X. Farnando, 1994 (2) SCC 746 Para 12. where it was held that Justice must not only be done but must be seen to be done. Therefore, the supreme Court directed that another Inquiry officer be appointed in order to remove any apprehension of bias on the part of the respondent. In Sndrani Bai (Smt.) v. Union of India and others, 1994 Supp (2) SCC 256 (Para 5 ). The Supreme Court has held that :"it is seen that right through, the delinquent officer had entertained a doubt about the impartiality of the inquiry to be conducted by the inquiry officer. When he made a representation at the earliest, requesting to change the inquiry officer, the authorities should have acceded to the request and appointed another inquiry officer, other than the one whose objectivity was doubted. " The petitioner has placed reliance on Subhash Chand Shanna v. M. D. , U. P. Co-op. Spg. Mills fed. Ltd. 1999 (4) AWC 3227 Para 5. In this judgment of this Court in which one of us (Honble mr. Justice M. Katju) was a party has expressed that :"in our opinion, after the petitioner replied to the charge-sheet, a date should have been fixed for the inquiry and the petitioner should have been intimated the date, time and place of the inquiry and on that date, the oral and documentary evidence against the petitioner should have been led in his presence and he should have been given an opportunity to cross-examine the witnesses against him and also he should have been given an opportunity to produce his own witnesses and evidence. If the petitioner in response to this intimation had failed to appear for the inquiry, then an ex parte inquiry should have been held but the petitioners service should have not been terminated without holding an inquiry. In the present case, it appears that no regular inquiry was held at all. All that was done that after receipt of the petitioners reply to the charge-sheet, he was given a show cause notice and thereafter the dismissal order was passed. In our opinion, this was not the correct legal procedure and there was violation of the rules of natural justice. Since no date for inquiry was fixed nor any Inquiry held in which evidence was led ; in our opinion, the impugned order is clearly violative of natural Justice. In Meenglas Tea Estate v. Workmen, AIR 1963 SC 719. the Supreme Court observed : "it is an elementary principle that a person who is required to answer a charge must know not only the accusation but also the testimony by which the accusation is supported. He must be given a fair chance to hear the evidence in support of the charge and to put such relevant questions by way of cross-examination as he desires. Then he must be given a chance to rebut the evidence led against him. This is the barest requirement of an Inquiry of this character and the requirement must be substantially fulfilled before the result of the inquiry can be accepted. " In S. C. Girotra v United Commercial Bank, 1995 Supp (3) SCC 212, the Supreme Court set aside the dismissal order which was passed without giving the employee an opportunity of cross-examination. In Punjab National Bank A. I. P. N. B. E. Federation. AIR 1960 SC 160 (vide para 66), the Supreme Court held that In such Inquiries, evidence must be recorded in the presence of the charge-sheeted employee and he must be given an opportunity to rebut the said evidence. The same view was taken in A. C. C. Ltd. v. Their Workman. 1963 (II) LLJ 396 and in tata Oil Mills Co. Ltd. v. Their Workmen. 1963 (II) LLJ 78 SC. In these circumstances, it has to be held that the respondents have not taken care to serve the charge-sheet as well as inquiry report and without doing so, the dismissal order has beenpassed against the petitioner. 1963 (II) LLJ 396 and in tata Oil Mills Co. Ltd. v. Their Workmen. 1963 (II) LLJ 78 SC. In these circumstances, it has to be held that the respondents have not taken care to serve the charge-sheet as well as inquiry report and without doing so, the dismissal order has beenpassed against the petitioner. The respondents have asserted that the since charged officer did not participate In the inquiry, the inquiry officer could proceed ex parte. For this purpose, the respondents have relied on (1) State of Tamil Nadu and another, 1997 (6) SCC 415 , wherein the supreme Court has found that the declaration of ex parte proceedings against the charged employee, can not be declared Invalid when he did not participate on the plea that criminal case was pending against them. On careful analysis the facts of the above case is distinguishable and do not support the assertion of the respondents. The respondent has also placed his reliance on bank of India v. Apurba Kumar Saha, 1994 (2) SCC 615 :"where it was found that there is no violation of natural Justice in his case. The records of disciplinary proceedings show that the respondent had avoided filing of written explanation for the charges of misconduct levelled against him and also had for no valid reason refused to participate In the disciplinary proceedings. A bank employee who had refused to avail of the opportunities provided to him in a disciplinary proceedings of defending himself against the charges of misconduct involving his integrity and dishonesty, cannot be permitted to complain later that he had been denied a reasonable opportunity of defending himself and the disci-pllnary proceedings conducted against him had resulted in violation of principles of natural justice," This case is distinguishable because in the referred case, the disciplinary inquiry was conducted in consonance to the prescribed procedure whereas, the respondent by his action wanted the inquiry to be conducted in a specific and different manner which was treated as refusal from participation in the disciplinary inquiry, whereas in the present case of the petitioner, the protection of above cases Apurba Kumar Saha (supra) cannot be extended to the respondent. In the present case we are of the view that the petitioner did not deliberately refuse from participating in the disciplinary inquiry since he was unable to participate for the reasons submitted by him. In the present case we are of the view that the petitioner did not deliberately refuse from participating in the disciplinary inquiry since he was unable to participate for the reasons submitted by him. The respondents have asserted that non-supply of the inquiry officers report to the petitioner does not render the departmental proceedings invalid unless prejudice is called by non-supply of the report. The respondents have placed reliance on two cases State Bank of Patiala v. S. K. Sharma, AIR 1996 SC 1669 Paras 24 and 27 and S. K. Singh v. Central Bank of India, 1996 (6)SCC 415 Paras 3 and 4. The facts of these cases are different where the charged officer has occasion to participate in the proceedings and thereafter the aspect of charged officer being prejudiced by non supply of inquiry report was considered, whereas in the present case, the facts and circumstances are different and distinguishable. ( 15 ) ADMITTEDLY, in the present case, the petitioner has not been paid the subsistence allowance for the period from the date of suspension to the dale of ex parte inquiry. It was thus for non-payment of subsistence allowance that the petitioner had suffered prejudice, and as held by the Honble Supreme Court in the case of Capt. M. Paul Anthony (supra) his constitutional rights have been violated. Further, for non-issuance of the show cause notice for the proposed punishment and also for not giving the inquiry report and also because the petitioner was not given the charge-sheet, the petitioner has suffered great hardship and has been denied his right to put his explanation which has vitiated the entire proceedings. Non-payment of subsistence allowance, not furnishing the charge-sheet, not informing, the date fixed in the inquiry and not giving the copy of the inquiry report and the show cause notice regarding proposed punishment only lead to the inference that the respondents have conducted the entire proceedings in a manner which is not warranted in law and has thus vitiated the entire proceedings. Thus, the entire proceedings commencing from suspension of the petitioner leading to his dismissal being actuated with malice in law is liable to be quashed. The respondents have not conducted the inquiry according to the proper procedure prescribed under Rule 99. No specific date, time and place of Inquiry was fixed. Thus, the entire proceedings commencing from suspension of the petitioner leading to his dismissal being actuated with malice in law is liable to be quashed. The respondents have not conducted the inquiry according to the proper procedure prescribed under Rule 99. No specific date, time and place of Inquiry was fixed. Oral and documentary evidence against the petitioner should have been adduced in his presence and he should have been given an opportunity to cross-examine the witnesses against him and also he should have been given an opportunity to produce his own witnesses and evidence. A dismissal order is a major punishment having serious consequences and hence should be passed only after complying with the rules of natural justice. Since in the present case no regular and proper inquiry was held nor was subsistence allowance paid, hence in these circumstances, it is clear case that the petitioner had not been afforded a fair opportunity much less a reasonable opportunity to defend himself that has resulted in violation of principle of natural justice and fair play. The ex parte inquiry is illegal and the order of dismissal dated 27. 3. 2001 is quashed. In the circumstances, the writ petition of the petitioner is allowed. ( 16 ) HOWEVER, keeping in view the financial loss and irregularities, it would be open to the respondents to hold a fresh inquiry in accordance with law and pass a fresh order. No order as to costs.