JUDGMENT 1. - By this writ petition, the petitioner has challenged punishment order dated 11.4.1988 (Ex.7) inflicting penalty of dismissal from service so also order of appellate authority dated 7.8.1991 (Ex.9) in an inquiry u/R. 16 of Rajasthan Civil Services (Classification, Control & Appeal) Rules, 1958 ('CCA Rules'). 2. Facts, in brief, are that the petitioner, while working as LDC in substantive capacity, was placed under suspension vide order dated 10.3.1983 (Ex.1) u/R. 13, CCA Rules, for a delinquency committed by him. A criminal case was also registered against him for offences u/ss. 419 & 420, IPC and was tried by Court of ACJM No. 2, Sawai Madhopur. While under suspension, respondents changed his head quarters from Bharatpur to Jaipur vide order dated 17.11.1983 (Ex.2), against which he submitted representation dated 2.12.1983 (Ex.3) to the effect that looking to the financial crunch and family circumstances during his suspension period, it was difficult for him to stay at changed headquarters-Jaipur. Pending his representation for recalling the order of changing head quarters, respondent No. 2 vide order dated 7.12.1984 without serving him any charge-sheet, appointed Inspector, Factories & Boilers, Alwar as Inquiry Officer. However, upon having come to the notice that the petitioner has not been served with charge-sheet, the order dated 7.12.1984 appointing inquiry officer was withdrawn by respondent No. 2 vide order dated 26.5.1985. The petitioner was served with charge-sheet dated 28.4.1985 (Ex.4) issued u/R. 16 of CCA Rules, to which he submitted an application on 10.10.1985 for inspection of documents on record but despite his request, he was not allowed to inspect requisite documents and without which, he submitted his reply to the charge-sheet (Ex.5) on 24.2.1986. Respondent No. 2 vide order dated 2.9.1986 appointed Inspector Factories & Boilers, Alwar as Inquiry Officer to hold the enquiry against the petitioner. 3. Respondent No. 2 vide order dated 2.9.1986 appointed Inspector Factories & Boilers, Alwar as Inquiry Officer to hold the enquiry against the petitioner. 3. The case of petitioner is that during inquiry proceedings, no one was examined, rather the inquiry officer completed inquiry ex-parte without affording him reasonable Opportunity of hearing which has been initiated in disregard of rules of natural justice and the procedure provided under CCA Rules, and finally submitted his report dated 21.12.1987 (Ex.6), thereafter the disciplinary authority based on the finding recorded by inquiry officer holding him guilty for both the charges, ultimately inflicted penalty of dismissal from service vide order dated 11.4.1988 (Ex.7), against which he preferred appeal before the appellate authority but since it remained undecided, that compelled him to approach this Court by filing writ petition No. 4546/90, which was decided by this Court vide order dated 25.4.1991 (Ex.8) with the direction to respondents to consider submissions made by the petitioner in his pending appeal and pass a speaking order with one from the date of order. However, his appeal after direction of this Court in terms of order (Ex.8) was decided by respondents vide order dated 17.8.1991 (Ex.9). Hence this writ petition. 4. Ms. Ashish Joshi, counsel for the petitioner has raised following submissions in assailing impugned orders of disciplinary & appellate authorities inflicting penalty of dismissal from service against the petitioner: (1) Since the petitioner was not paid subsistance allowance from September, 1985 till date of his dismissal from service, despite his reminders, it prevented him from participating in the inquiry, inasmuch as due to his financial crunch & family circumstances, he could not participate in the inquiry, in such circumstances, the very ex-parte inquiry initiated against him is in violation of rules of natural justice, and in support of her submission, counsel relied upon decision of the Apex Court in Capt. M. Paul Anthony v. Bharat Gold Mines Ltd., (1999) 3 SCC 679 , Jagdamba Prasad Shukla v. State of U.P., (2000) 2 SCC 90 & Anwarun Nisha Khatoon v. State of Bihar, (2002) 6 SCC 703 . M. Paul Anthony v. Bharat Gold Mines Ltd., (1999) 3 SCC 679 , Jagdamba Prasad Shukla v. State of U.P., (2000) 2 SCC 90 & Anwarun Nisha Khatoon v. State of Bihar, (2002) 6 SCC 703 . (2) The inquiry officer recorded findings on the basis of affidavit of Shri Suresh Goswami, Inspector, who was neither summoned nor appeared before inquiry officer, but the inquiry officer proceeded on the affidavit furnished by Shri Goswami, which deprived the petitioner from cross-examining the deponent of affidavit, and it resulted in violation of R. 16(6)(a) of CCA Rules, and in support of her submission, the counsel placed reliance on the decision of Apex Court in Ministry of Finance v. S.B. Ramesh, (1998) 3 SCC 227 . (3) There was no material on record in holding the petitioner guilty and the inquiry officer, who was only the fact finding officer has not only proposed but also recommended for punishment of penalty of dismissal from service, to be inflicted upon the petitioner, which was beyond his competence and domain under the CCA Rules, which has caused great prejudice to him. (4) The disciplinary authority did not supply a copy of inquiry report so also material, which was made to be the basis for holding him guilty for both the charges, and without supplying such adverse material based by disciplinary authority, that too without due compliance of R. 16(9) of CCA Rules, accepted the finding recorded by the inquiry officer, and without taking note of the explanation furnished by the petitioner, inasmuch as has not recorded any finding of its own, which was the requirement u/s. 16(9) of CCA Rules, absence of which, vitiate the final decision of the disciplinary authority. (5) Along with the penalty of dismissal from service inflicted by the disciplinary authority, a copy of inquiry report was made available, and the appeal against the punishment order was preferred by him, raising all objections pointing out defects in the inquiry officer in letter & spirit which is required under the scheme of CCA Rules, which the respondent failed to follow, thereby it resulted in causing prejudice to him, especially when subsistence allowance was not paid from September 1985 till the order of dismissal, and further adverse material based & noticed by inquiry officer & disciplinary authority, particularly affidavit of Shri Goswami, were not furnished to him nor Shri Goswami was summoned so as to enable the petitioner to cross-examine upon his affidavit, despite all objections raised, and despite the judgment dated 25.4.1991 passed by this Court in his earlier writ petition, whereby respondent was directed to dispose of the appeal by a speaking order, but the respondent still did not care to take notice of compliance of requirement u/R. 30(2) of CCA Rules, besides ignoring direction of this Court while dismissing his appeal by a non-speaking order dated 7.8.1991 (Ex.9), and in support of her submission, placed reliance on the decision of the Apex Court in Ramchander v. Union of India, AIR 1986 SC 1173 and of this Court in Prabhulal Agrawal v. State of Rajasthan, 1991(2) WLC 469 and Pratap Singh v. Supdt. of Police, 2003(1) WLC 80 . 5. Shri B.K. Sharma, Deputy Government Advocate filed reply to writ petition and submitted that so far as payment of subsistence allowance is concerned, since the head quarter of petitioner was shifted from Bharatpur to Jaipur and he has not reported on duty on change of his head quarters at Jaipur, vide order dated 17.11.1983 (Ex.2) and apart from it, as he never demanded subsistence allowance after September, 1985, therefore, there was no occasion available for respondents to pay subsistence allowance to him. 6. 6. The respondent further submitted that so far as affidavit of Shri Goswami is concerned, no prejudice could have caused to the petitioner because he was not appearing in the inquiry proceedings despite notices having been given to him of all dates fixed during pendency of inquiry, as such, statement of Shri Goswami even if would have been recorded by summoning him before inquiry officer, was not going to cause any prejudice to him since he failed to avail of opportunity to appear before the inquiry officer to defend his case. 7. It has further been submitted by respondents that inquiry officer has considered the material on record and recorded his findings which is a finding of fact, and ordinarily will not be re appreciated by this Court in its limited jurisdiction u/Art. 226 of the Constitution of India, and apart from it, what has been suggested by inquiry officer for proposing punishment, was merely a suggestion to the disciplinary authority but was not binding upon him. 8. It has further been submitted by the respondent that so far as punishment order passed by disciplinary and appellate authority are concerned, adequate reasons have been assigned by making full compliance of Rr. 16(9) & 30(2) of CCA Rules. The disciplinary authority after due application of mind has taken its independent decision based on the record of inquiry in holding the petitioner guilty and looking to nature of delinquency under impugned charges which were found proved by inquiry officer, considered it proper to inflict punishment of dismissal from service. As regards appellate order, Shri Sharma submitted that since that was an order of affirmance and no new grounds were urged by the petitioner in his appeal, which was mere a reiteration of his case put forth by him in his explanation, which was already considered by inquiry officer in his report so also by disciplinary authority before inflicting impugned penalty upon him, the reasons were not required to be recorded by the appellate authority in such like circumstances. 9. The petitioner has also filed his rejoinder to the respondent's reply and submitted inter alia that so far as criminal case is concerned, he has been acquitted under judgment dated 31.7.1992 (Ex. 15) and there was no requirement for the employee under suspension to report on duty and mark his attendance every day as there is no such rule existing under the RSR. 15) and there was no requirement for the employee under suspension to report on duty and mark his attendance every day as there is no such rule existing under the RSR. He has placed on record-his representations (Ann. 17, 18 & 19) submitted before competent authority for reconsideration of change of his head quarter and also for grant of subsistence allowance time & again, but those remain unattended and no decision was communicated to him thereon, rather by holding inquiry ex-parte, without affording him a reasonable opportunity of hearing, the disciplinary authority passed an order dismissing him from service. 10. I have heard learned counsel for the parties and perused material on record. 11. First contention raised by the petitioner is that because of subsistence allowance having remained withheld by respondents since September, 1985, till date of punishment inflicted, despite his reminders, it has resulted in causing him serious prejudice from participating in the inquiry and that apart, such an action of respondents vitiates final decision against him. 12. Subsistence allowance is paid by employer so that the employee against whom an order of suspension is passed on account of pendency of any disciplinary proceedings or a criminal case instituted against him could maintain himself and his dependents until the departmental proceeding or the criminal case, as the case may be, comes to an end and appropriate orders are passed against the Government servant regarding his right to continue in service etc., depending upon final outcome of proceedings instituted against him. The very nomenclature of the allowance makes it clear that the amount paid to such a Government servant should be sufficient for bare subsistence in this world in which prices of the necessaries of life are increasing every day on account of the conditions of inflation obtaining in the country. It is to be noted that a Government servant cannot engage himself in any other activity during suspension period. Amount of subsistence allowance payable to the Government servant is reviewed from time to time where the proceedings drag on or a long time Order of suspension of the Government servant does not put to an end to his services under the Government. Amount of subsistence allowance payable to the Government servant is reviewed from time to time where the proceedings drag on or a long time Order of suspension of the Government servant does not put to an end to his services under the Government. The real effect of the order of suspension is that he continues to be a member of the Government service but is not permitted to work any further during the period of suspension he is paid only some allowance, generally called subsistence allowance, which is normally less than the salary instead of the pay and allowances he would have been entitled to if he had not been suspended. Certainly an order of suspension unless the departmental inquiry is concluded within a reasonable, time, affects a Government servant injuriously. Very expression 'subsistence allowance' has undeniable penal significance. 'Subsistence' means-means of supporting life, especially a minimum livelihood. The expression, 'life' does not merely connote animal existence or a continued drudgery through life. It has a much wider meaning. Although the suspension is not one of the punishments specified in R. 14 of the CCA Rules. 13. From perusal of the record, it is clear that head quarter of petitioner was shifted from Bharatpur to Jaipur vide order dated 17.11.1983, pursuant to which he did not join at Jaipur, rather made his representation dated 2.12.1983 (Ex.3) for cancellation of the change of his head quarter, and also few reminders (Ex. 17, 18 & 19) but the same remained unattended and the respondents failed to dispose of the same. 14. In the present matter, the petitioner was suspended in contemplation of inquiry vide order dated 10.3.1983 (Ex.1) and the charge-sheet was issued vide memo dated 28.4.1985 (Ex.4), and despite order dated 17.11.1983 (Ex.2) of changing his head quarter from Bharatpur to Jaipur and keeping his representation against it (Ex.2) pending, subsistence allowance and withheld from September, 1985 onwards and despite requests made by him, pointing out his family circumstances & financial Crutch, which he was facing as allowance was only the source of civil hood for maintenance of his family, the same remained withheld till conclusion of the inquiry by passing of final order dated 11.4.1988 (Ex.7) dismissing him from service. 15. 15. It remains undisputed that subsistence allowance since September, 1985, was not paid while the delinquent was asked to appear before inquiry officer inasmuch as his representations remained undecided rather kept pending; and even if he had failed to join upon change of his head quarter from Bharatpur to Jaipur, withholding of payment of his subsistence allowance for want of non-joining upon change of head quarters, in my opinion, was not justified, which has certainly caused a great prejudice to him in participating in the inquiry. 16. Here I would like to take note of clarification inserted vide Notification dated 4.6.1970 u/R. 53 of RSR, where a question arose as to whether the suspending authority can stop payment of subsistence allowance in case Government servant under suspension leaves his head quarters without obtaining prior permission. The authority concerned upon examination of it opined that since the suspending authority has no discretion to stop payment of subsistence allowance, a Government servant under suspension has to be paid subsistence allowance during suspension period. Only option left with competent authority is to initiate another inquiry against suspended Government servant who left his head quarters without prior permission. The aforesaid clarification reads as under: "Clarification A case has come to the notice of the Government in which a Government servant under suspension left his headquarters without obtaining prior permission of the competent authority. The suspending authority thereupon stopped payment of subsistence allowance to the Government servant concerned. The matter has been considered and it is clarified that the suspending authority has no discretion to stop payment of subsistence allowance. A Government servant under suspension has to be paid subsistence allowance during suspension period. The competent authority may however initiate another enquiry under provisions of the Rajasthan Civil Services (Classification, Control & Appeal) Rules, 1958 against suspended Government servant concerned who has left the headquarters without permission of the competent authority." 17. Even sub-rule (2) of R. 53 of RSR provides for withholding of payment of subsistence allowance if the Government servant fails to furnish a certificate that he is not engaged in any other employment, business, profession or vocation. The petitioner while submitting his application (Ex. 17, Ex. 18 & Ex. 19), enclosed certificate during pendency of the inquiry for the period in question. The petitioner while submitting his application (Ex. 17, Ex. 18 & Ex. 19), enclosed certificate during pendency of the inquiry for the period in question. But, apart from it, no such certificate, if at all in terms of R. 53 of RSR, was asked for by the Government at any point of time. 18. After suspension, it is not necessary that employee must attend the work and he cannot be compelled to mark attendance. In an identical situation, the Apex Court in Jagdamba Prasad Shukla v. State of U.P. (supra) has considered that if the State requires such certificate, they should ask for it and in the absence of asking for such certificate, the State cannot reject claim for subsistence allowance. Similarly in Capt. M. Paul Anthony v. Bharat Gold Mines (supra), the Apex Court held that a suspending employee is entitled to subsistence allowance as relationship of employer/employee subsists during suspension. In another recent judgment in Anwarunisha Khatoon v. State of Bihar , (supra), the Apex Court observed' that non-payment of subsistance allowance to suspended employee unables him to attend the inquiry proceedings. Payment of subsistence allowance in accordance with scheme of the Rules to a suspended employee is not bounty but is his right and the employer is bound to pay subsistence allowance to suspended employee. No justifiable grounds have been made out for non-payment of subsistence allowance to the petitioner all throughout the period from September 1985 till his dismissal from service. 19. In the present case, inquiry was fixed on 28.4.1987, 29.6.1987 at Jaipur, on 22.9.1987 at Sawai Madhopur and on 18.12.1987 at Bharatpur. On 22.9.1987, as is evident from inquiry report, statement of Jagdish Pd. Yadav was recorded and a written affidavit of Shri Suresh Goswami was taken on record and no reasonable opportunity was afforded at least to cross-examine Shri Yadav whose statement was recorded by inquiry officer, and deponent of affidavit Shri Goswami was neither summoned nor he appeared before inquiry officer, right to cross-examine was denied to him. In such circumstances, I am of the opinion that reasonable opportunity to defend was not afforded to him on account of his penury occasioned by non-payment of subsistence allowance, which failed him to take journey so as to attend inquiry proceedings. / 20. In such circumstances, I am of the opinion that reasonable opportunity to defend was not afforded to him on account of his penury occasioned by non-payment of subsistence allowance, which failed him to take journey so as to attend inquiry proceedings. / 20. As regards submission of taking affidavit without summoning its deponent to appear as witness in the inquiry, which violates R. 16(6)(a) of CCA Rules, suffice to say that as per scheme of CCA Rules, procedure has been prescribed for calling the witness and summoning the record which is necessary for examining the charge levelled against delinquent, with reasonable opportunity to be afforded to the delinquent but merely because witness was not summoned and his affidavit was taken on record, will not always violate R. 16(6)(a) of CCA Rules. In fact it has to be examined in the facts of each case as to how prejudice has been caused to the delinquent. 21. With regard to submission made that after holding the petitioner guilty, inquiry officer has exceeded in his jurisdiction in proposing/suggesting penalty of dismissal to be inflicted upon the delinquent, true it is that u/R. 16(8) of CCA Rules, inquiry officer is a fact finding officer, who submits the record of inquiry including inquiry report, when he is other than disciplinary authority, for his consideration, and which has to be independently examined by disciplinary authority, itself, but certainly once the inquiry officer has proposed punishment of dismissal from service in his report against the petitioner in the record of inquiry u/R. 16(8) of CCA Rules to the disciplinary authority independently ruled out in the present case that the disciplinary authority independently proceeded in examining the record of inquiry without being prejudiced and biased against the petitioner on account of the finding recorded by inquiry officer by his proposed punishment while holding him guilty for both the charges and that is very much evident from the order of punishment inflicted upon the petitioner. 22. 22. As regards next submission that R. 16(9) of CCA Rules, has not been complied with by disciplinary authority and it casts an obligation upon it to record its own finding based on record of inquiry, furnished by inquiry officer u/R. 16(8) of CCA Rules, suffice it to say that when the inquiry proceeding, itself, has been vitiated because of non-payment of subsistence allowance, which has caused substantial prejudice to the petitioner, who was unable to cross-examine Shri Suresh Goswami and other witnesses, who never appeared before inquiry officer, thus the reasons assigned for holding the petitioner guilty on the basis of aforesaid affidavit or adverse material based by inquiry officer, even if considered to be finding of disciplinary authority in compliance of R. 16(9) of CCA Rules, while inflicting penalty upon him, that loose its very significance, for the reason that when the finding recorded by the inquiry officer, itself, has been vitiated, then the order of punishment dated 11.4.1988 (Ex.7), in present circumstances cannot be upheld. 23. So far as last submission with regard to non-speaking order by appellate authority and non-compliance of R. 30(2) of CCA Rules, is concerned, from a perusal of appeal (Ann. 10) preferred by the petitioner u/R 23 of CCA Rules it shows that numerous grounds were raised by the petitioner questioning the procedure followed by inquiry officer & disciplinary authority, besides as to the prejudice caused to him on account of non-payment of subsistence allowance, which made him failure to participate in the inquiry, and that apart, opportunity to cross-examine Shri Goswami who submitted his affidavit during inquiry proceedings, was not afforded to him, despite his reminders to representation for change of his headquarters from Jaipur to Bharatpur and so also for release and above all, other submissions questioning the findings recorded by inquiry and disciplinary authority in holding him guilty and inflicting penalty of dismissal from service upon him. Rule 30(2) of CCA Rules casts an obligation upon appellate authority to examine record of inquiry and other material on record and then record its independent reasons. 24. Rule 30(2) of CCA Rules casts an obligation upon appellate authority to examine record of inquiry and other material on record and then record its independent reasons. 24. A bare look at R. 30(2) of CCA Rules makes it clear that the appellate authority is required to consider of its own as to whether inquiry has been held in accordance with CCA Rules and after due compliance of rules of natural justice and there is any violation of Rules of procedure and what prejudice has been caused to the appellant (delinquent). Thus the appellate order must show re-application of mind on the part of appellate authority, as required u/R. 30(2) of CCA Rules, while deciding the appeal against the order of inflicting penalty upon the delinquent. Non-compliance of R. 30(2) of CCA Rules results in vitiating the appellate order. 25. The similar view has been expressed by the Supreme Court in Ram Chander v. Union of India, AIR 1986 SC 1173 . Their Lordships of the Supreme Court were considering the provisions of Railway Servants (Discipline and Appeal) Rules, 1968 which are peri material with the provisions of present CCA requirement of passing an order by the appellate authority in accordance with R. 30(2) of CCA Rules. The fact which has been recorded does not show his application of mind and the appellate authority while affirming the infliction of impugned penalty, in my opinion, has failed to examine the finding recorded by the enquiry officer, which was accepted in totality and so also is not in conformity with the R 30(2) of CCA Rules. 26. The recording of reasons has been considered to be mandatory, and to pass the speaking order in the light of R. 16 as well as R. 14 of CCA Rules has been examined by this Court in Prabhulal Agarwal v. State of Rajasthan, 1991(2) WLC (Raj.) 469 & Pratap Singh v. Supdt. of Police, 2003(1) WLC (Raj.) 80. In the facts & circumstances of present case, the appellate order is not in conformity with CCA Rules and is in violation of R. 30(2) of CCA Rules.As regards the question of determining the entitlement of a person to pecuniary benefits as a consequence of punishment inflicted being vitiated, the Apex Court in Kendriya Vidyalaya Sangathan v. S.C. Sharma, 2005 AIR SCW 377 has held that the employee has to show that he was not gainfully employed. The initial burden is on him and if he places materials in that regard, the employer can bring on record materials to rebut the claim. Therefore, for determination of entitlement of pecuniary benefits for the period from the initial order of dismissed till he joins duty pursuant to the order of this Court, the matter is to be left open for decision during disciplinary proceedings. 27. For aforesaid reasons, this writ petition is allowed. The orders dated 11.4.1988 (Ex.7) & dated 7.8.1991 (Ex.9) of disciplinary & appellate authority are hereby quashed & set aside. The petitioner shall be deemed to be in service, and will be entitled for all benefits on account of quashing of the order impugned except the pecuniary benefits and the entitlement of pecuniary benefits for the period from the initial order of dismissal till he joins service in pursuance of this order, will be decided in the disciplinary proceedings. 28. However, it will be open for the State Government to start enquiry afresh against the petitioner, if so desires, after due compliance of rules of natural justice so also the provisions contained in CCA Rules. The delinquent is directed to co-operate and participate in disciplinary proceedings and if he fails to do so, it shall be at his own risk and peril. No order as to costs.Writ petition allowed - Order of disciplinary and appellate authority set aside/Government free to start enquiry afresh. *******