D. P. Singh, J. - (1.) -Heard counsel for the parties.
(2.) THIS petition is directed against an order dated 4.4.1991, whereby the services of the petitioner, a clerk in Nagar Palika, Bijnor, has been terminated. The petitioner was a clerk in Nagar Palika, Bijnor, since 1965. By an order dated 2.2.1991 he was suspended for alleged misappropriation of funds. It was alleged that the petitioner was given Rs. 16,940 to be distributed to census workers but on complaints it was found that the petitioner had not made payments of Rs. 840. He was asked to refund the aforesaid amount of Rs. 840 and on his refusal he was suspended and a charge-sheet signed by the Chairman was served on the petitioner on 5.2.1991. The petitioner alleges that in spite of repeated demands, all the documents were not supplied to him and, therefore, he could not file his reply. The authority came to the conclusion that since no reply has been filed, the charges stood proved and, thus, terminated his services by the impugned order. Learned counsel for the petitioner has urged that even though the petitioner did not file his reply, enquiry should have been held to prove the charges. It is apparent from the impugned order and also the counter-affidavit that no date for enquiry was fixed. Only dates for filing of the replies by the petitioner was fixed. It is by now well-settled that even in a case where the incumbent does not file his reply, he can take part in the enquiry proceedings and prove that no charge is made out against him even on the basis of the documents of the employer. The delinquent can also cross-examine the author of the documents which are relied upon by the employer to prove the charges. But all this can only be done if any specific date, time and place is fixed. One of the sacrosanct object of fixing a date for enquiry is to enable the delinquent to make oral submissions and cross-examine the employer. Even if no reply is filed by the delinquent, the documents have to be proved by the employer before the enquiry officer by leading oral evidence with an opportunity for cross-examination. From the charge-sheet in the present case, it is apparent that the employer sought to rely upon several documents for proving the charges, therefore, it was all the more necessary for the enquiry officer to have fixed a date, time and place for enquiry where the delinquent could, if he chose, appear and participate in the enquiry. The Supreme Court in Imperial Tobacco Company of India Limited v. Its Workmen, AIR 1962 SC 1348 and a Division Bench of our Court in Subhash Chandra Sharma v. Managing Director and another, 1999 (4) AWC 3227 : 2000 (1) UPLBEC 541, have taken the view that even if the delinquent refuses to participate in the enquiry, the employer must hold an ex-parte enquiry and lead evidence to prove the charges. He cannot straightaway pass a dismissal order.
(3.) SINCE, no date, time and place was fixed in the enquiry, in my view, the procedure adopted for terminating the services of the petitioner is vitiated in law and is against settled principle of natural justice. In view of discussions hereinabove, this petition succeeds and is allowed and the impugned order dated 4.4.1991 is hereby quashed. The petitioner would be entitled to all consequential benefits. No order as to costs.;