Failure to attend a departmental enquiry and non-payment of subsistence allowance may not vitiate the proceeding if the individual had opportunities to participate and did not avail them.

P.K.Sinha, J.

1. C.W.J.C. No. 3690 of 1998, out of which this appeal arises, was dismissed after hearing learned counsel for the petitioner-appellant and for the respondent (Biscomaun) by order dated 7.4.1999. The petitioner-Appellant was proceeded against departmentally while posted as Assistant Depot Manager at Tehak in which enquiry officer found the charges to have been proved and the disciplinary authority, agreeing with aforesaid finding, passed the order terminating the services of the petitioner-appellant.

2. It may be noted that while the departmental proceeding was pending, the petitioner-appellant came to this court in C.W.J.C. No. 11297 of 1995 which was disposed of on 16.3.1997 with the observation that if the proceeding was not concluded within six months from the date of receipt/production of a copy of the order, the impugned order of suspension would stand automatically revoked, with further observation that the petitioner-Appellant would also be entitled to subsistence allowance in accordance with law for the period of suspension.

3. The first point that was taken by Shri Mukherji was that the enquiry, which was held ex-parte, was vitiated since the petitioner-appellant always received the notices relating to the enquiry, sent through ordinary post, after expiry of the date fixed. In the impugned order the observation of the Enquiry Officer has been taken note of that even if the notice was received beyond the fixed time, the petitioner appellant could have presented himself before the Conducting Officer for getting another date fixed which he never did. It was, therefore, observed in the impugned order that from the conduct of the petitioner-appellant it appeared that he deliberately tried to take advantage of the order of the High Court in which specific direction was given about conclusion of the proceeding within six months failing which the order of suspension was to stand revoked.

4. Even if the notice was received after expiry of the date, the petitioner-appellant could have presented himself before the Enquiry Officer to know about the next date fixed. Had he once appeared, before the Enquiry Officer, then he would have been in a position to know subsequent dates fixed in the enquiry. It, therefore, appears that petitioner-appellant himself had contributed in getting the enquiry held ex-parte. Therefore, I am not inclined to disagree with the finding of the learned Judge on this account, in the impugned order.

5. Two points which do not appear to have been argued before the learned Single Judge, were placed by Shri Mukherji in course of arguments, viz, the enquiry was vitiated as subsistence allowance was not paid to the proceedee and, secondly, that the petitioner-Appellant had demanded certain documents which were not supplied to him. Mr. Mukherji, learned counsel for the appellant, in support of his first contention, has relied upon the decision of the Honble Supreme Court in the case of Capt. M. Paul Anthony vs. Bharat Gold Mines Ltd. & Anr. [1999 (3) SCC page-679] in which the enquiry was found to have been vitiated also on account of non- payment of subsistence allowance as that was held to have prevented the petitioner from going to Kolar Gold Field at Karnataka to participate in enquiry from his home town in Kerala. This fact was specifically pleaded before the High Court also, as well before the Apex Court. It was held that non-payment of subsistence allowance had prevented the proceedee from attending the departmental proceeding which was, therefore, held ex-parte, hence was vitiated.

6. No doubt that the petitioner-appellant was entitled to the payment of subsistence allowance in accordance with rules which, if not paid, could be recovered from the employer. But it has not been pleaded specifically in the writ petition as to how non-payment of subsistence allowance did prevent the petitioner appellant from attending the departmental enquiry. It has only been pleaded in paragraph 46 o