JUDGMENT D.B. Bhosale, J.
1. By this petition, the petitioner takes an exception to the order dated July 9, 1986 issued by the Secretary of the respondent - Textiles Committee, whereby the petitioner has been dismissed from the service of the respondent. The order of dismissal is based on the findings of the ex parte departmental enquiry conducted against the petitioner in respect of the alleged irregularities and illegalities committed by him during the month of April, 1981 while functioning as an Inspector of the Textiles Committee at its Head Office at Bombay. The petitioner is seeking relief of withdrawal and/or cancellation of the order of dismissal dated July 9, 1986 passed by the respondent and has further prayed for direction to the respondent to pay the pay and allowances from the date of dismissal till the petitioner is allowed to resume duty. The respondent is a Textiles Committee constituted under the Textiles Committee Act, 1963. The respondent, being an authority set up under the Statute, is the State under Article 12 of the Constitution of India.
2. The petitioner joined the services of the Textiles Committee as an Inspector on May 7, 1966. By an order of the Secretary of the Textiles Committee dated March 29, 1984, the petitioner was placed under suspension and, during suspension he was posted at Salem, with a direction to report at the office of the Textiles Committee at Salem. On May 3, 1984, a Memorandum was issued to the petitioner informing him that the Secretary of the Textiles Committee proposed to cause an enquiry to be held against the petitioner under the Textiles Committees Employees' (Discipline and Appeal) Regulations, 1968 (for short "Regulations'").
3. The Articles of charges with statements, and supporting documents were supplied to the petitioner, requiring him to submit a written statement of his defence within ten days. The charge against the petitioner in the Memorandum issued by the Secretary of the Textiles Committee reads thus:
"(i) Shri S.N. Thampy, while functioning as an Inspector of Textiles Committee at its Head Office at Bombay, during the month of April, 1981.
i) Issued quality inspection Certificate in respect of lot No. 302, 303, 304, 306 and 308 of Shree Krishna Woollen Mills P. Ltd., Bombay without inspection of. material;
(ii) Prepared false and fictitious inspection reports;
(iii) Drew samples outside the lot and
(iv) Allowed the free use of his stamps and plier by the Mills staff.
4. To understand the charges framed against the petitioner and to appreciate the, material placed on record, it would be advantageous to know what alleged wrong the petitioner committed while carrying out his function. The petitioner was acting as an Inspector at the relevant time and was the lowest in the hierarchy of inspecting officers. The Textile Inspectorate of the Committee is headed by the Chief Inspecting Officer. There are about 200 well qualified experienced and competent textiles technologists working in the cadre of Inspector. The Textiles Committee has framed, in consultation and with the previous sanction of the Central Government, Regulations establishing inspection standards for Woollen, Worsted and Mixed Woollen and Worsted Fabrics meant for export. It also lays down for the type of inspection to be applied. Under Clause (3) of the Regulations, the manufacturer/exporter offers material for inspection. The manufacturer/exporter has to apply for inspection in the prescribed format. The Committee then deputes the Inspectors for Inspection. Clause (4) of the Regulations lays down the inspection criteria. Sampling of inspection, drawing of samples are laid down by Clauses (5) and (6) of the Regulations, Clause (10) related to packing and sealing, Clause (11) provides for issuance of certificate.
In the instant petition, we are concerned with the aforesaid regulations and the procedure laid down under the said clauses. The petitioner is charged for issuing quality inspection certificate in respect of lot Nos. 302, 303, 304, 306 and 308 to Shree Krishna Woollen Mills Private Limited, Bhandup, Bombay, without inspection; for preparing false and fictitious inspection reports; for drawing samples outside the lot and for allowing the free use of his stamps and plier by the Mills' staff. The petitioner was deputed to inspect shoddy woollen blankets which were to be inspected in Shree Krishna Woollen Mills Private Limited, Bhandup, Bombay. The said Mill made application for inspection during the month of April, 1981 of Woollen Blankets of different sizes in order to export the same to Nigeria and Iran. The petitioner claims to have carried out the inspection in accordance with the Regulations. The respondent's Vigilance Cell alleged to have detected that the petitioner has issued certificate without inspecting the goods and as such made surprise visit and alleged to have discovered the number of discrepancies in the inspection conducted by the petitioner. He was, therefore, charge-sheeted and suspended pending enquiry.
5. The Textiles Committee, on January 21, 1985, appointed one Shri A.R. Banarji, Commissioner for Departmental Inquiries, Central Vigilance Commission as an Enquiry Officer and one Shri R.N. Guhathakurtha was appointed as the Presenting Officer. The Memorandum issued to the petitioner, also made reference to certain conditions such as filing of the written statement within ten days, appointment of defence assistant etc. requiring the petitioner to comply with all those within the time specified in the Memorandum.
6. Thereafter, on March 6, 1985, the Enquiry Officer sent a letter to the petitioner informing him April 2, 1985 as a date for preliminary enquiry at his office in New Delhi. The petitioner and the presenting officer attended the preliminary enquiry at the office of the Enquiry Officer on April 2, 1985 when it was decided to hold regular hearings from the last week of May, 1985. The petitioner was directed to give name of defence assistant. within one week's time and to take inspection of the documents relied upon by the Secretary of the Textiles Committee. Thereafter, lot of correspondence ensued between the petitioner and the Enquiry Officer wherein the petitioner. was asked to appoint defence assistant and every time, in reply, the petitioner expressed his inability to get defence assistant from the staff of the Textiles Committee due to fear of victimisation and sought permission to appoint -defence assistant from outside. This went on till the last week of May, 1985 when the petitioner was in Bombay, for inspection of the documents from May 21 to May 23, 1985. On May 24, 1985, the petitioner was informed by the presenting officer that the enquiry was postponed. Then again there was exchange of letters and telegrams between the petitioner and the Enquiry Officer and at last, the enquiry was once again fixed on September 11, 1985. The controversy is raised in the instant petition by the petitioner contending that he never received intimation of the enquiry held on September 11, 1985. However, he admits to have received telegram on September 14, 1985 informing hin^ that the enquiry would be held on September 14, itself, which was humanly not possible for the petitioner to attend hearing at Bombay since he was, at the relevant time, at Salem. As a result, the enquiry was conducted ex parte by the Enquiry Officer and he submitted the report on September 30, 1985 holding that the charge against the petitioner is established.
7. On January 20, 1986, a show cause notice was issued to the petitioner which was replied by him through representation dated February 22, 1986. After considering the reply/representation of the petitioner, on July 9, 1986 the Vice Chairman/Competent Authority passed the impugned order which reads as under:
"In accordance with and in terms of Regulation 4(3) read with 4(2) of the Textile Committee's Employees' (Discipline and Appeal) Regulations, 1968 the undersigned, being the competent authority to impose a penalty of dismissal on Inspector S.N. Thampy, according to the Schedule attached to the said Regulations, hereby orders and imposes the penalty of dismissal from service, prescribed under Regulation 4(l)(v) of the said Regulations, with immediate effect.
Inspector S.N. Thampy shall be paid arrears of his salary and other dues, if any, in accordance with the service and other Regulations, framed by the Committee, from time to time, for the employees and as may be applicable to him."
By this order the petitioner was dismissed from service with immediate effect.
8. We heard the learned counsel for the parties at length, perused the petition and its annexures and the affidavit filed by the respondent and the annexures thereto. Ms. Mehta, learned counsel for the petitioner, raised the following issues for our consideration. Firstly, while conducting the enquiry, the Enquiry Officer has given go-by to the principles of natural justice without even caring to see whether the petitioner was properly intimated the date of hearings. Secondly, even on the basis of the material placed on the record by the presenting officer before the Enquiry Officer, it is not possible to hold the petitioner guilty for the charges framed against him. And, lastly, even if the charges are held to be proved, the punishment imposed is disproportionate.
9. In support of her first contention, she took us through the copy of the statement of imputations of misconduct or the misbehaviour in support of the charge framed against the petitioner, the ex parte report of the Enquiry : Officer dated September 30, 1985, the order dated July 9, 1986 passed by the Vice Chairman/Competent Authority and also the averments made in the affidavit filed by the respondent-Textiles Committee controverting 1 the case set up by the petitioner. She tried to demonstrate as to how the principles of natural justice have been violated by the Enquiry Officer while conducting the enquiry against the petitioner. Ms. Mehta also made her comments on the proceedings and findings recorded by the Enquiry Officer and the order passed by the Vice Chairman/Competent Authority, of Textiles Committee. We would make reference to her specific contentions 2 while recording our reasons on the issues raised in the petition.
10. On the other hand, Mr. Ramaswamy, learned counsel for the respondent, relying on the affidavit of the respondents, contended that the petitioner was given fullest opportunity by the Enquiry Officer, however, he used all tactics to prolong hearings and did not cooperate with the Enquiry Officer as a result of which the Enquiry Officer was compelled to proceed ex parte against the petitioner. He also made reference to several documents placed on record and tried to justify the action of the Enquiry Officer proceeding ex parte against the petitioner, putting blame on the petitioner alone for not remaining present during enquiry. He also tried to justify the order passed by the Enquiry Officer and the Competent Authority, against the petitioner. Lastly, he submitted that the petitioner ought to have exercised alternative remedy available to him under Clause 17 of the Regulations. To avoid repetition, we will make reference to the arguments advanced by Mr. Ramaswamy while recording our reasons on the issues raised in the petition.
11. In order to appreciate the contention on the issue of non-observance of the principles of natural justice, we would like to see how the enquiry proceeded right from the stage of issuance of the memorandum on May 3, 1984 till the impugned order was passed. The petitioner joined the services of the respondent as an Inspector on May 7, 1966. Admittedly, the petitioner had rendered 15 years unblemished service with the respondent. The memorandum was issued by the Secretary of the respondent on May 3, 1984 in respect of . the alleged irregularities and illegalities committed by the petitioner while inspecting the goods and certifying them during the month of April, 1981.
12. The record shows that a preliminary enquiry was held on April 2, 1985 at the office of the Enquiry Officer at Delhi when the petitioner and the presenting officer were present. On that date it was decided that the enquiry would commence from the end of May, 1985, i.e. May 24, 1985. Before that date the petitioner claims to have sent two letters dated April 17, 1985 and May 2, 1985 and in both the letters he expressed his difficulty in getting the defence assistant from the Textiles Committee. In his letter dated May 2, 1985, he sought permission to inspect documents himself as no employee was willing to act as defence assistant from the Textiles Committee.
13. On May 3, 1985, the petitioner was informed by the vigilance officer of the respondent that the enquiry might be held ex parte if the petitioner fails to comply with the instructions of the Enquiry Officer. On May 13, 1985, the petitioner informed the Enquiry Officer that he is proceeding to Bombay from Salem for inspection of documents and for attending the enquiry on May 24, 1985. Undisputedly from May 20, 1985 to May 23, 1985 the petitioner took inspection of documents relied upon by the respondent. However, on May 24, 1985, the petitioner was informed by the presenting officer that the enquiry was postponed without assigning any reason. The petitioner, by his letter dated May 27, 1985, once, again requested the Enquiry Officer to allow him to engage a government servant as defence assistant from outside the respondent establishment. He also requested by the same letter to give an intimation of the next date of hearing well in advance as he had to come all the way from Salem which is far off place.
14. On June 1, 1985, the petitioner returned to the place of duty. On June 3, 1985, two separate telegrams were placed in his hand by the office of the respondent at Salem dated May 18, 1985 and May 31, 1985. The first telegram probably was sent when it was decided to postpone the hearing which was scheduled on May 24, 1985. The telegram dated May 18, 1985, mentions that the petitioner had not inspected documents, nor submitted a list of additional documents and witnesses, This telegram probably was sent before the petitioner's visit to Bombay between May 20, to May 27, 1985. By telegram dated May 31, 1985, the petitioner was informed the next date of hearing, viz. June 10, 1985. The petitioner, again by his letter dated June 5, 1985, repeated his request to allow him to engage defence assistant from outside. The petitioner thereafter by letter dated June 7, 1985, expressed his inability to attend enquiry on June 10, 1985, on the ground of indisposition. However, before his letter dated June 7, 1984 reached the enquiry officer, he received a telegram on June 7, 1985 itself from the Enquiry Officer, whereby he was informed the postponement of the enquiry fixed on June 10, 1985 without assigning any reason.
15. Thereafter the petitioner proceeded on leave for 15 days on the ground of his illness and after recovering from the illness he sent three letters dated July 8, 1985, July 26, 1985 and September 2, 1985 to the Enquiry Officer, once again requesting him to allow him to engage defence assistant from outside the Textiles Committee/respondent. According to the petitioner, thereafter, he received a telegram from the Enquiry Officer on September 6, 1985 informing him regarding regular hearing to begin at the office of the respondent at Bombay. Admittedly, this telegram does not give the date and time of the hearing fixed by the Enquiry Officer. According to the petitioner, for the first time, by this telegram he was informed by the Enquiry Officer that they have no objection in appointing defence assistant from outside the Textiles Committee with the concurrence of the Secretary of the respondent.
16. Thereafter on September 14, 1985, the petitioner was handed over a telegram by the peon from the office of the respondent at Salem, informing the petitioner that the Enquiry Officer reached Bombay for regular hearing on September 11, 1985. The telegram also made a grievance that the Enquiry Officer waited for the petitioner for hearing and he did not turn up, nor did he send an intimation about his absence. The petitioner was directed by he said telegram to physically appear before the Enquiry Officer and represent himself in person or through defence assistant on September 14, 1985 giving him warning that if he fails to appear, the enquiry would proceed exparte. The petitioner, received that telegram on September 14, 1985 itself requiring him to appear before the Enquiry Officer on the same date which was not possible for him to attend the enquiry and therefore on September 15, 1985 he sent a reply telegram explaining the circumstances under which he could not attend the enquiry from September 11 to 14, 1985, at Bombay.
17. The Enquiry Officer, on September 17, 1985, sent a letter to the petitioner along with a copy of the ex parte order passed by him together with a set of depositions. The petitioner once again, on September 25, 1985, addressed a letter to the Enquiry Officer clarifying why he could not attend the enquiry and requested for fresh enquiry. Thereafter, the petitioner was served with a show cause notice on January 20, 1986 requiring him to show cause why major penalty of dismissal from service should not be imposed on him in pursuance of the report of the Enquiry Officer. The Vice Chairman of the respondent who was also Competent Authority, after considering the reply of the petitioner dated February 27, 1986, dismissed the petitioner from service with immediate effect.
18. On close scrutiny of the sequence of events and the correspondence ensued between the parties, we find that practically, on the first date of hearing, viz. September 14, 1985, the Enquiry Officer proceeded ex parte without even bothering to verify whether the petitioner was given advance intimation of the hearing on September 11 to 14, 1985. Why, in our opinion, the enquiry was concluded on the first date of hearing itself because after the preliminary enquiry on April 2, 1985 on two subsequent dates of hearing namely May 24, 1985 and June 10, 1985 the enquiry was postponed by the Inquiry Officer on his own without assigning any reason. This fact has not been disputed by Mr. Ramaswamy, learned counsel for the respondent. In view of this, it cannot be said that the petitioner was any how responsible for the postponement of the hearing of the enquiry on both these occasions. Thereafter, on September 14, 1985 the enquiry was concluded ex parte.
19. Mr. Ramaswamy, learned counsel for the respondent, contended that initially the. enquiry was fixed in the last week of May at the request of the petitioner himself and for that purpose he relied on the statement of Shri S. Madhavan, Vigilance Officer of the respondent in his affidavit in para 20 wherein, there is a reference to the letter of the petitioner dated April 17, 1985. By this letter, the petitioner informed the Enquiry Officer that the date of hearing be fixed in the last week of May 1985 as decided. However, in para 19 of the same affidavit, it is stated that the minutes of the meeting held on April 2, 1985 recorded that subsequent hearing would take place at the Textiles Committee's office at Bombay at the end of May, 1985. Recording of the minutes shows that the next date, namely the last week of May, was fixed on April 2, 1985 itself and not on the petitioner's request alleged to have made by his letter dated April 17, 1985. In view of above, the report of the Enquiry Officer in para 2.1.2 which records that the regular hearing of the enquiry was fixed on May 24, 1985 as per the specific request of the petitioner is not correct. Mr. Ramaswamy, learned counsel for the respondent, also invited our attention to para 2.1.3 of the enquiry report and contended that even on June 10, 1985 the petitioner did not attend the hearing and for his absence the hearing was adjourned and that is how the hearing was further delayed. This also does not appear to be correct particularly in view of the statement made by Mr. Madhavan in the affidavit filed on behalf of the respondent in its para 22 contending that the hearing of the enquiry on June 10, 1985 was adjourned by sending a telegram to the petitioner on June 7, 1985.
20. The main controversy is on the point of receipt of the telegram dated August 21, 1985 by which, according to Mr. Ramaswamy, the petitioner was informed the date and place of hearing being September 11 to 14, 1985. The petitioner has flatly denied to have received this telegram. We made specific query in respect of this telegram to Mr. Ramaswamy, whether the respondent has anything on record to show that the telegram dated August 21, 1985, was in fact, sent to the petitioner and it was either received by the petitioner or by the office at Salem. His reply to both these queries was in negative. In the absence of any material it is hard to believe that the petitioner received it and still did not remain present on September 11 to 14, 1985. It is also worth noting that the respondent did not examine anybody from their office at Salem to establish that the telegram dated August 21, 1985 sent to the address of officer, was, in fact, received by the petitioner. By this telegram, the petitioner alleged to have informed that the enquiry would be held on September 11, 1985 and at the office library at Bombay and further, if necessary, it would be conducted till September 14, 1985. It appears that since the petitioner did not remain present on September 11, 1985, another telegram was sent to the petitioner which the petitioner received on September 14, 1985 itself, as a result of which he could not remain present before the enquiry officer on that date.
21. We would also like to make a reference to the telegram sent by the Enquiry Officer on September 6, 1985 informing the petitioner that the hearing of the enquiry would be conducted at the office of the Textiles Committee at Bombay.
This telegram is of one page which does not make any reference to the date and time fixed by the Enquiry Officer for conducting enquiry at Bombay between September 11 and 14, 1985.
Mr. Ramaswamy, learned counsel for the respondent, could not give any justifiable reason for not making reference to the date and time of the enquiry of this telegram. However, he submitted that on receipt of this telegram it was the bounden duty of the petitioner to make enquiry either at their Bombay office or at Delhi office to find out the date of enquiry. We do not find ourselves in agreement with Mr. Ramaswamy, particularly in view of the fact that it was the responsibility of the Enquiry Officer to intimate the date and time of the hearing. On our specific query, Mr. Ramaswamy admitted that there is a specific provision in the Regulations, 1968 to that effect. There was no valid reason in not informing the petitioner about the date of hearing in the telegram dated September 6, ] 1985. From the circumstances mentioned above, it is clear that the petitioner was not given fair opportunity of hearing before the Enquiry Officer.
22. The petitioner has also contended that right from the date of preliminary enquiry till last, he was making request to the Enquiry Officer to allow him to engage a government servant as defence assistant from outside the. respondent establishment and there was no response from the Enquiry Officer, as a result of which he could not engage defence assistant of his choice within a given time. Mr. Ramaswamy, learned counsel for the. respondent contended that in view of the provisions in the Regulations, there was no need for permission to engage defence assistant from outside and the petitioner was seeking this permission only with a view to prolong the. hearing. We do not agree with Mr. Ramaswamy, learned counsel for the respondent. It transpires from the record that the petitioner had sent several letters to the Enquiry Officer seeking permission to engage defence assistant from outside and his request in all these letters remained unanswered. No just and valid reason is placed before us for not responding to the petitioner's request. However, it appears from telegram dated September 6, 1985 that, for the first time, the Enquiry Officer gave no objection for appointing defence assistant from outside. We find this no objection was also qualified, in the sense that the petitioner was allowed to appoint, defence assistant with the concurrence of the Secretary of the Textiles Committee. Mr. Ramaswamy, could not point out from the Regulations that such concurrence of the Textiles Committee is necessary for appointing defence assistant from outside the respondent-establishment. This further proves that while conducting the enquiry, the petitioner was not given fair opportunity to engage defence assistant of his choice.
23. In the circumstances, we have no hesitation in holding that principles of natural justice were given go-by and it was not proper on the part of the punishing authority, namely the Vice Chairman of the respondent who passed the order of dismissal on the basis of the report of the Enquiry Officer, without even bothering to see whether the petitioner was given proper opportunity of being heard in the matter during the enquiry. In view of the above, we are constrained to hold that the impugned order passed by the respondent herein stands vitiated on solitary ground, namely, non-observance of principles of natural justice. The matter can be looked at from the angle of justice and from the natural justice. The object of principles of natural justice is to ensure that the justice is done, that there is no failure of justice and that every person whose rights are going to be affected by the proposed action, gets an opportunity of hearing. Principles of natural justice are the means to achieve the ends of justice which, in our view, have not been followed in the instant petition. On this ground alone, the petition succeeds.
24. Mr. Ramaswamy, learned counsel for the respondent, also raised a preliminary objection to the effect that right of Appeal is provided under Clause 17 of the Regulations and in view of the alternative remedy, the writ petition under Article 226 would not lie and deserves to be dismissed on this count alone. He further contended that there is a long delay of two years in filing the writ petition challenging the impugned order of dismissal.
25. In so far as the first contention of Mr. Ramaswamy is concerned, it is true that Clause 17 of the Regulations provides right of Appeal but, it is now well settled position of law that the alternate remedy is not a bar for entertaining the writ petition under Article 226 of the Constitution. In A.V. Venkateswaran, Collector of Customs, Bombay v. Ramchand Sobhraj Wadhwani and Anr. the Apex Court in para 8 of the judgment held thus:
"The only point, therefore, requiring to be considered is whether the High Court should have rejected the writ petition of the respondent inlimine because he had not exhausted all the statutory remedies open to him for having his grievance redressed. The contention of the learned Solicitor-General was that the existence of an alternative, remedy was a bar to the entertainment of a petition under Article 226 of the Constitution unless (1) there was a complete lack of jurisdiction in the officer or authority to take the action impugned, or (2) where the order prejudicial to the writ petition has been passed in violation of the principles of natural justice and could, therefore, be treated as void as non est. In all other cases, he submitted, Courts should not entertain petitions under Article 226 or in any event not grant any relief to such petitioners. In the present case, he urged, the High Court in appeal had expressly dissented from the reasoning of the learned single Judge as regards the lack of jurisdiction of the Customs Officers to adjudicate regarding the item under which the article imported fell and the duty leviable thereon. Nor was there any complaint in this case that the. order had been passed without an opportunity to the importer to be heard, so as to be in violation of the principles of natural justice. The learned Solicitor-General questioned the correctness of the reasoning of the learned Chief Justice in condoning the conduct of the respondent in not moving the Government in revision by taking into account the time that had elapsed between the date of the impugned order and that on which the appeal was heard. The submission was that if this was a proper test, the rule as to a petitioner under Article 226 having to exhaust his remedies before he approached the Court would be practically a dead letter because in most cases by the date the petition comes on for hearing, the time for appealing or for applying in revision to the departmental authorities would have lapsed."
26. It is apparent from the aforesaid observations that in case of violation of the principles of natural justice where an order prejudicial to the writ petitioner has been passed, the writ petition could be entertained under Article 226 of the Constitution of India. In the instant petition, we have already held that there is blatant violation of principles of natural justice by not affording fair, and proper opportunity to the petitioner. The Division Bench of this Court, comprising of G.D. pATIL & D.B. bHOSALE, JJ. has taken a similar view, in Shri Rajan Ramnath Patil v. State of Maharashtra and Ors. reported in 2001 Vol. 103 (2) Bom. L.R. 1002. We have already recorded our finding on the main issue involved in the present petition holding that the impugned order is passed without following the principles of natural justice. We, therefore, have no hesitation to interfere in our writ jurisdiction under Article 226 of the Constitution of India to quash and set aside the impugned order. An alternate remedy, in the instant petition, would not operate as a bar.
27. In so far as the objection of the respondent with regard to delay is concerned, we do not find any substance in the same since the writ petition was admitted in the year 1988 itself and this Court has inherent powers to condone the delay particularly in a case of this nature.
28. In the circumstances, we allow the writ petition. The impugned order of dismissal dated July 9, 1986 issued by the Secretary of the respondent is quashed and set aside.
29. In view of setting aside of the inquiry for being in breach of natural justice, the question came up with respect to the other two submissions of Ms. Mehta. As recorded earlier in para 8, she had submitted that even on the basis of the present record of the inquiry the misconduct was not proved and in any case the punishment was disproportionate. Adopting such a course would avoid holding of the inquiry afresh and in view of the fact that nearly 15 years have gone since the order of dismissal it could have been considered. This will, however, require a concession from the petitioner that, the question of fairness of the inquiry was not pressed whereas the petitioner had very much pressed it into service. Besides Mr. Ramaswamy for the respondent opposed such a course contending that if the inquiry is vitiated, the respondent must get a chance to prove the misconduct. Hence we are refraining 1 from going into the above two submissions. Then came the question as to how the service of the employee is to be treated in case the impugned order is set aside. Mr. Ramaswamy submitted that in that event the Court may direct that the petitioner be treated as under continuous suspension.
30. At this stage, a question arose as to whether the petitioner who has been under suspension since 1984 and who was getting 75 per cent of the salary till his dismissal, is entitled for subsistence allowance including revision. The learned counsel for the respondent invited our attention to the Rules for dismissal, removal and suspension and Sub-rule (10) 2(a) of FR 53. Sub-rule (10) deals with revision of scale of pay while under suspension. Clause 2 of Sub-rule (10) deals with cases in which the revised scale of pay takes effect from a date failing within the period of suspension. Clause (a) of the said Rule (10) 2 reads thus:
"(a) Under suspension a Government servant retains a lien on his substantive post. As the expression 'holder of a post' occurring in FR 23 includes also a person who holds a lien or a suspended lien on the post even though he may not be actually holding the post, such a Government servant should be allowed the option under FR 23 even while under suspension. The benefit of option will, however, practically accrue to him in respect of the period of suspension, only after reinstatement depending on the fact whether the period of suspension is treated as duty or not."
On the basis of the aforesaid Rule, he submitted that the petitioner is not entitled for subsistence allowance with the revision of scale of pay which has taken effect during the aforesaid" period of suspension from 1984 till this date. On the other hand, learned counsel for the petitioner placed reliance on the judgment of Rajasthan High Court in Kan Singh v. State of Rajasthan reported in 1989 (4) SLR 763 and contended that during suspension the contract of service subsists and the employee is entitled to the subsistence allowance including revision. The Apex Court while dealing with somewhat similar situation in Umesh Chandra Mishra v. Union of India reported in 1993 Supp (2) SCC 210 : 1993-I-LLJ-187 has given direction to pay the subsistence allowance on the basis of revised scale of salary, if any, which was prevalent and due to the appellant during the relevant period for which subsistence allowance is directed to be paid.
31. In our opinion, it is now well settled position of law that an order of suspension is not an order imposing punishment on a person found to be guilty. It is an order made against him before he is found guilty to ensure smooth disposal of the proceedings initiated against him. The contract of service subsists during the period of suspension and an employee remains in service and he is entitled to all benefits of service, even though he is not expected to work during the period of suspension. An employee during the period of suspension cannot engage himself in any other activity to earn his bread. In the present case, the respondents have not even alleged that the petitioner was engaged elsewhere and was earning his bread during the period of suspension. We are therefore of the view that the amount of subsistence allowance payable to the employee concerned should be reviewed from time to time where proceedings drag on for a long time, even in the absence of an express rule. It is true that the authority concerned has to take into account whether the government servant is in any way responsible for the undue delay in the disposal of the proceedings initiated against him. In the present case since we have already held that the petitioner was not at all responsible for dragging the enquiry and causing delay in disposal and which enquiry is to be vitiated, we are of the view that the petitioner is entitled to 75% subsistence allowance as per rules including the revisions in pay that were done during the pendency of the proceedings. This will however exclude the increments which one has to earn and he cannot get them automatically. However, we are of the opinion that in the interest of justice, the petitioner shall not be entitled for subsistence allowance for the first period of two years from the date of dismissal till filing of the present writ petition. In view of the above, we direct the respondent to pay to the petitioner 75 percent subsistence allowance from the date of dismissal till the disposal of the enquiry on the basis of the revised scale of salary if any which was prevalent and due to the petitioner during the pendency of these proceedings excluding: increments and excluding the period till filing of the petition.
32. In the result, we allow the petition, quash and set aside the impugned order of. dismissal dated July 9, 1985 and the matter is remanded to the respondent for de novo inquiry against the petitioner from the stage of appointing Enquiry Officer. Looking to the facts and circumstances of the case and the passage of time, we direct the respondents to conduct the enquiry against the petitioner and conclude the same preferably within a period of six months from the date of receipt of copy of this order. The respondent shall give proper opportunity of being heard. The petitioner is directed to co-operate and shall not seek adjournments, except in an unavoidable circumstance. The petitioner will be paid his arrears of subsistence allowance as stated above within three months hereof and the monthly subsistence allowance regularly thereafter by 10th of subsequent month till the inquiry is completed and order served on the petitioner.
33. Rule is made absolute in the above terms. There will be no order as to costs.
34. Mr. Ramaswamy, learned counsel appearing for the respondent, requests for stay of this order. Inasmuch as the arrears of subsistence allowance are to be paid within three months, there is no need to grant any stay. The respondent Committee has itself stated that in the event the enquiry is vitiated, it be permitted to hold the enquiry afresh. That being so, the respondent must proceed with the enquiry at the earliest. For this reason also, the request for stay is rejected.
35. Authenticated copy of this Order may be made available to the parties.