VERMA, J. - (1.) THE petitioner was working as UDC when he was suspended vide Ex. 2 on 30. 4. 1987 in contemplation of the enquiry. Charge-sheet was issued vide Ex. 3 on 5. 6. 1987 on the allegation that he had made certain interpolation in the accounts of advance receipts and had used about Rs. 35,000/- for himself and despite the repeated reminders he had not deposited the total amount of Rs. 37,510/- in the Government Treasury. He had denied the charges vide Ex. 4 stating therein that he had not interpolated any accounts. THE advance amount used to be received under the signatures of the Assistant Engineer and spent as per his direction. According to the delinquent official, if at all there was any temporary misappropriation, that was by the Assistant Engineer and not by the petitioner who was not concerned with the received or spending of amount. He had further stated that the documents as asked by him vide letter dated 18. 7. 1987 had not been supplied to him. Reply of the charge-sheet was filed on 29. 4. 1988. He further states that as per Ex. 5 & 6, the advance receipts were issued from Shri S. P. Singh. Assistant Engineer to whom even the letters were being written by the department for refund of the amount.
(2.) ENQUIRY Officer was appointed vide Ex. 7, prosecution witnesses J. P. Mandana A. En. was examined on 16. 7. 1988, one Bahadur Singh was examined on 26. 7. 1988 and Suresh Chand was also examined. One S. K. Gupta was also examined on 2. 9. 1988, S. P. Singh, the then A. En. was examined on 12. 9. 1988. The Executive Engineer was examined who had stated that the excess advance has been deposited back by the petitioner. The Executive Engineer as per the copy of the statement attached with the writ petition had stated that the temporary advance is normally drawn on the demand of the A. En. on his requisition which is accountable by the A. En. He had stated that it was A. En. who had violated the rules. It was further stated that he had been writing to be A. En. to deposit the excess amount back. Show cause notice was issued vide Ex. 10 dated 27. 1. 1989. The Enquiry Officer had submitted his report as attached with the writ petition holding that it had been proved that the temporary advance was withdrawn and proper account was not maintained and the amount was kept with the official instead of depositing in the bank and on having been charge-sheeted, the amount has been returned back in protest and that the original vouchers have not been kept properly. It was further observed by the Enquiry Officer that keeping of the account in the office of A. En. was irregular. There was no coordination between the two departments, neither there was any register, nor cash book, nor ledger book nor there was any control of the receipt of advanced money, entries are not properly made. Suggestion was given that the procedure should be adopted as to maintain accounts properly in future. Reply to show cause was submitted by the petitioner stating therein (1) that the documents as summoned by the petitioner were not called for and if the documents would have been called, the report could not have been made against the petitioner; (2) he had further submitted in the reply that he was not concerned with the amount in question and it was the A. En. who could be held responsible if at all there was any temporary mis-appropriation; (3) that the report is not based on documents but on oral evidence; (4) principles of natural justice were violated. It is submitted by the petitioner that except one Bahadur Singh witness, the opportunity was not given to the petitioner to cross-examine any other witness whereas reliance has been placed on the statement of all other witness as well. In reply submitted by the respondents, this fact has been denied. In the rejoinder to the said denial, the petitioner has come up with the plea that except the statement of Bahadur Singh which was recorded in the hands of the Enquiry Officer, statements of all other witnesses were not recorded in the hands of the enquiry officer but were recorded in the hands of the witnesses themselves and he had not been given opportunity of cross-examination. Faced with the above situation the original enquiry file has been called for which has been produced for perusal.
(3.) THERE is a statement of the petitioner at page 43 to 45 recorded on 21. 6. 1988 and signed by the Enquiry Officer as well the petitioner. THERE is statement of one Shri J. P. Mandana at page 47 to 48 signed by said Mandana and the enquiry officer on 16. 7. 1988. THERE is a statement of one Bahadur Singh recorded on 26. 7. 1988 who has been cross examined by the petitioner. This statement is also signed at the bottom by the petitioner. One Suresh Chand has also been examined on 26. 7. 1988. The statement recorded on 16. 7. 1988 and 26. 7. 1988 are in different hands. Similar is the situation with regard to statement of one S. K. Gupta, X. En. which is on the pages 54 to 56 whereas statement of Suresh Chand is at page 51 to 53 recorded on 26. 7. 1988 itself. Statement of S. K. Gupta is though singed by the enquiry officer but it is not dated. The statement of Shri S. P. Singh is found at page 63 to 66, it is dated 12. 9. 1988. He has been cross-examined on 12. 9. 1988 by the petitioner. Except the oral statement of the witness, the is no other record of withdrawing or depositing etc. made available on the enquiry file as has been produced. As per the enquiry proceedings the first date of enquiry was 2. 5. 1988 when it was adjourned on 9. 5. 1988 and from 9. 5. 1988 it was adjourned to 13. 5. 1988. The petitioner was present on 9. 5. 1988. There are no proceedings of 13. 6. 1988 however, the proceedings are held on 14. 6. 1988 which proceeding does not bear the signatures of Shri Khanna and the case was adjourned to 18. 6. 1988 which is clear from page 84. There are no proceedings of 18. 6. 1988 on the file as produced. However, there is a letter at page 85 that a proceeding shall be taken on 16. 7. 1988 instead of 14. 7. 1988. The letter bears the despatch number 1984 dated 18. 7. 1988. Instead the case is taken on 15. 7. 1988 when it is adjourned to 16. 7. 1988 and on 16. 7. 1988 statement of Mandana is placed on record. Case is adjourned to 18. 7. 1988. There is a letter of 18. 7. 1988 addressed to S. P. Singh. S. K. Gupta and Suresh Jain to appear as witness on 26. 7. 1988. On 18. 7. 1988 the Enquiry Officer had noted the proceedings that on earlier occasions the witnesses were not present and, therefore, case was adjourned to 26. 7. 1988 which has been signed by Rajesh Khanna as well. On 26. 7. 1988 there is a noting of the enquiry officer at page 93 that the statement of certain persons have been placed on record and the case is adjourned to 5. 8. 1988 for statement of S. K. Gupta and S. P. Singh and A. S. Dixit. There is no proceeding of 5. 8. 1988. however, on 12. 8. 1988 there is a nothing that the statement of Gupta has been placed on record. The case was adjourned to 17. 8. 1988. There is no proceeding of 17. 8. 1988 but the case is taken up on 2. 9. 1988 when further statement of Gupta and Dixit are taken on record. On 23. 9. 1988 there is a noting that Mr. S. P. Singh has been cross-examined by the official and the case fixed on 28. 9. 1988 for arguments. The statutory rule prescribed that the statement shall be recorded in the presence of the delinquent official and he shall have an opportunity to cross-examine the witnesses. In my opinion, in the present case the enquiry officer has not conducted the enquiry in accordance with the principles of natural justice except the witness of Bahadur Singh and S. P. Singh, no other witness has been allowed to be cross examined, nor there is any such note made by the enquiry officer of the proceedings which had been gone through thoroughly. The statement of Mandana, Gupta and Jain have been just placed on record. It is so borne out from the enquiry proceedings. From the totality of the facts and proceedings adopted by the enquiry officer, it cannot be said that the enquiry has been conducted in accordance with the prescribed procedure as provided under the statutory rule. The rules provide that the enquiry officer shall first record the evidence of the prosecution and shall afford an opportunity to the delinquent official to cross-examine the witnesses of the prosecution. On the conclusion of the prosecution witness, the delinquent official is to be given an opportunity of producing his defence. In the present case, the enquiry officer even before recording evidence of the prosecution had recorded the statement of delinquent official. There is a force in the submission of the learned counsel for the petitioner that except two witnesses Bahadur and S. P. Singh, no opportunity was given to the petitioner to cross-examine the prosecution witness who had been relied upon by the enquiry officer and thus whole of the enquiry proceedings become defective and are to be vitiated for being not having been conducted in accordance with law and in violation of principles of natural justice. ;