IMPORTANT POINT
Where during suspension pending disciplinary proceedings employee was not given subsistence allowance and consequently he could not participate in proceedings due to financial difficulties, order of removal from service was quashed as it was a clear case of break of principles of natural justice on account of denial of reasonable opportunity to defend himself in departmental enquiry.

JUDGMENT

Y.K. Sabharwal, J.-Delay condoned. Leave granted.

2. The appellant while holding the post of a Sub-Inspector was placed under suspension by an order dated 1st June, 1977 and was transferred to Gorakhpur by an order dated 4th August, 1977 in order to face disciplinary proceedings. The appellant did not participate in the disciplinary proceedings allegedly on account of illness and being confined for medical treatment at Kanpur and also on account of financial crunch for non-payment of subsistence allowance. The appellant was served with a show cause notice dated 29th December, 1978 proposing punishment of removal from service. In reply thereto, appellant raised several objections indicating irregularities in conduct of departmental proceedings. The Deputy Inspector General of Police by an order dated 11th February, 1979 directed removal of the appellant from service. After being unsuccessful in departmental appeal and even in a claim petition filed before U.P. Public Service Tribunal, the appellant challenged his order of removal in a writ petition filed in the High Court.

3. The only contention pressed on behalf of the appellant before the High Court was that on account of non-payment of subsistence allowance, right from the date of suspension till his removal, he could not participate in the departmental enquiry and, therefore, the proceedings of the said enquiry stood vitiated for denial of grant of reasonable opportunity to him to appear in departmental enquiry. It was rejected by the High Court. The two reasons given by the High Court for rejecting the contention are:-(i) to receive subsistence allowance, the appellant was required to furnish a certificate stating that he is not engaged in any other employment, business, profession or vocation, which was not furnished; and (ii) the appellant had not taken a ground either in the claim petition or in the writ petition that he could not participate in the enquiry because of financial crunch.

4. In this appeal also, the only contention urged on behalf of the appellant is the denial of reasonable opportunity in the departmental enquiry. It is contended that on account of financial crunch created by respondents by non-payment of subsistence allowance from date of the suspension till removal, the appellant could not travel to Gorakhpur and participate in the proceedings of departmental enquiry.

5. Learned counsel for the respondents did not dispute the factual position that the subsistence allowance as urged on behalf of the appellant was not paid to him. The justification offered by the respondents for not paying the subsistence allowance is that the applicant had not furnished the address where the amount was to be sent and had also not given the requisite certificate indicating that he was not employed else during the period of suspension.

6. It is evident from the record that the High Court is not right in observing that ground sought to be urged was not taken in the claim petition or in the writ petition. In fact, the High Court in the latter part of the judgment observes that for the first time, the petitioner has taken the ground in this writ petition that he could not attend the departmental proceedings due to financial crunch as he was not paid his subsistence allowance . A perusal of the record shows that the contention urged before the High Court and again before us, was also raised before the U.P. Public Service Tribunal and even earlier before the authorities. The U.P. Public Service Tribunal considered it and on the facts of the case, the Tribunal held that Therefore, those rulings where person was unable to attend the enquiry for non-payment of subsistence allowance, resulting in enquiry being vitiated will not be applicable. Apart from it, in reply dated 22nd January, 1979 sent to show cause notice, the appellant specifically stated that he has not been paid his pay and suspension allowance which cannot be withheld and as such how could he be expected to rea