S.S.BYAS,J. - (1.) THIS special appeal under Section 18 of the Rajasthan High Court Ordinance, 1949 is directed against the judgment of a learned Single Judge of this Court dated March 27, 1985, by which the respondent's (Tarsemlal) writ petition was allowed, his removal from service was set -aside and directions were issued restraining the appellants from initiating a fresh inquiry against him on the same charges.
(2.) BRIEFLY recounted, the relevant facts are that the respondent Tarsemlal (hereinafter referred to as 'the petitioner') presented a writ petition with the averments that he was initially appointed as Lower Division Clerk in the Ministry of Food and Agriculture, Government of India by the then General Manager of the Central Mechanised Farm and was confirmed in due course. His services were lent on deputation to the State Farms Corporation of India Ltd. (for short, 'the Corporation'). In 1972, he was working as the Upper Division Clerk in the Central State Farms of the Corporation at Suratgarh (Rajasthan). He proceeded on two days' earned leave from November 21, 1972 to November 22, 1972, He however, did not joint duty on November 23, 1972 and remained unauthorisedly absent from duty from November 23, 1972 to May 8, 1973. The management took it a case of gross misconduct on his part and initiated a domestic inquiry against him. By the order Annexure 2 dated September 8 1973, he was placed under suspension and his Headquarters were fixed at Suratgarh, where he was directed to remain present. On July 24, 1973, he was issued charge -sheet Annexure 5, which reads as under: That the said Shri Tarsem Lal. UDC, while functioning as Upper Division Clerk proceeded on 2 days earned leave from 21 -11 -72 to 22 -11 -972 and remained unauthorisedly absent from duty from 23 -11 -1972 to 8 -5 -1973 and has committed gross misconduct by absenting himself deliberately, wilfully and unauthorisedly. The petitioner refuted the charge and submitted that on account of the serious ailment of his wife, he could not join duty on November 23, 1972 and remained in his village to attend her. He sought a change of his Headqurters from Suratgarh to his home town by his various letters to the Director of the Farm, but the Director refused to change his Headquarters. The petitioner also prayed for the payment of subsistence allowance to him payable to a suspended employee under the relevant provisions. The management refused to pay him subsistence allowance and passed orders that no subsistence allowance will be paid to the petitioner for the period of his absence from the Headquarters. The petitioner did not attend the domestic inquiry and as a result, it was conducted ex -parte against him. The inquiry officer held him guilty of misconduct of the charge and submitted his report to the Director. The Director came to the conclusion that the penalty of removal from service be imposed on the petitioner. He, therefore, issued a show cause notice to the petitioner as to why the aforesaid penalty be not imposed on him. The petitioner submitted a representation against the proposed penalty stating therein that the inquiry was not conducted in a fair and impartial manner and he could not attend it because no subsistence allowance was paid to him Thus, a fair opportunity to defend himself was denied to him by the management. The Director, by his order Annexure -15 dated May 21, 1975, imposed the penalty of removal from service on the petitioner. The petitioner went in appeal which was dismissed by the Joint Secretary to the Government of India, Food and Agriculture Ministry, somewhere in 1976. The petitioner thereafter filed the writ petition challenging his removal from service. In the writ petition the main ground by him is that since he was not paid subsistence allowance which the managemant was obliged to pay to him during his suspension period he could not attend the inquiry. He was a poor -man with no means. His wife was seriously ill. Thus, he was deprived of the reasonable opportunity to defend himself. The inquiry was, thus not fair and impartial It was further submitted that the subsistence allowance could not be denied to him on the ground that he did not remain at the Headquarters at Suratagrh. He applied for a change in his Headquarters from Suratgarh to his home town due to the serious illness of his wife but the management refused to accept his request. In the return filed by the Corporation, all these facts were admitted, but the stand was taken that the petitioner was bound to be at the Headquarters and not to leave it without the permission of the management. Since he did not remain at the Headquarters and disobeyed the order passed in that connection, the non -payment of subsistence allowance to him was perfectly justified. It was made clear to the petitioner by the management that subsistence allowance could be paid to him only when he remained at the headquaters Suratgarh.
(3.) THE learned Single Judge took the view that if a person is suspended, he must be paid subsistence allowance, otherwise the suspended official cannot attend the inquiry because of his financial restrains. He, therefore, set -aside the petitioner's removal and looking to the nature of the misconduct, passed the directions as mentioned at the very out -set.;