Case: Ghanshyam Das Shrivastava Vs. State Of Madhya Pradesh

appellant was paid the subsistence allowance at any time before the disposal of the hearing before the Enquiry Officer, and whether on account of non-payment of the subsistence allowance he was unable to appear before the Enquiry Officer." The High Court was directed to dispose of the writ petition in the light of its finding on the question.3. In the High Court the appellant and the respondent filed affidavits in support of their case on the question. On a perusal of the entire evidence on record the High Court answered the question against the appellant. This appeal by special leave is directed against the order of the High Court dismissing the writ petition.4. The High Court has found the following facts : The hearing of the case started before the Enquiry Officer at Jagdalpur on February, 1965. The case was heard on February 10, 11 and March 13, 1965. It appears that a part of the evidence for the Government was recorded on those dates. On March, 20, 1965, the appellant received Rs. 312/- as subsistence allowance for the months of November and December, 1964 and January, 1965. Further evidence for the Government was recorded on April 3, 6 and 15, 1965. A second payment of Rs. 213/- as subsistence allowance was made to the appellant on May 13, 1965. As already stated, the Enquiry Officer submitted his report to the Government on May 28, 1965. These facts plainly show that a part of the evidence had already been recorded before the first payment of substance allowance was made to the appellant. Nevertheless, the High Court has held that he was not unable to appear before the Enquiry Officer on account of the non-payment of his subsistence allowance. The principal reasons given by the High Court in support of its view are these :(1) The appellant did not complain specifically in the writ petition that he could not attend the enquiry as he had not been paid subsistence allowance and had no means of his own to meet the expenses of going to Jagdalpur from Rewa for facing the enquiry;(2) His affidavit gives no particulars about the sources of his income and the estimate of expenses to be incurred by him in the enquiry and does not explain how he was unable to meet those expenses;(3) The third class railway fare from Rewa to Jagdalpur is about Rs. 20/-. He would need a few more rupees for expenses during his stay at Jagdalpur. He had been drawing a pay of Rs. 300/- per month;(4) After he was dismissed from service, he filed a writ petition in the High Court. After his writ petition was dismissed by the High Court he came in appeal to this Court. This shows that he had enough money to attend the enquiry at Jadalpur. The High Court summed up: "In all these circumstances we find that it was not financial stringency which prevented the petitioner from co-operating in the departmental enquiry but that he was otherwise unwilling to do so."5. With respect, we find it difficult to share the view taken by the High Court. Paragraph 5 of the writ petition expressly alleges that on December 5, 1964, the appellant sent a letter to the Enquiry Officer informing him that unless he was paid subsistence allowance he would not be able to face the enquiry proceedings. The letter was filed along with the petition. It is annexure H. The letter stated that "Until and unless I am paid subsistence allowance.......I categorically refuse to face any proceeding......asI have no capacity to do so because of acute shortage of funds."(emphasis added).This is obviously specific pleading on the point that for non-payment of subsistence allowance he was short of funds and could not attend the enquiry. It is true that his affidavit does not give any particulars about his sources of income and the estimate of expenses to be incurred in the enquiry. But it would prima facie suggest that he had no other sources of income except his pay. If he had no other sources of income, he could not invent them for the purpose of mentioning them in the affidavit. More significantly, the Government affidavit does not allege that he had any other source of income except pay. The fact that he had been drawing a monthly pay of Rs. 300/- till October 1964 would not necessarily show that he had sufficient money to enable him to go to Jagdalpur to attend the enquiry in February, 1965. He was suspended on October 30, 1964 and thereafter he did not get subsistence allowance until March 20, 1965. Having regard to the prevailing high prices, it is not possible to draw any adverse inference against him from the mere circumstance that he had been receiving a monthly pay of Rs. 300/- till October, 1964. The fact that he filed a writ petition immediately on the passing of the order of dismissal and thereafter came in appeal to this Court, would not establish that he had enough resources to enable him to attend the enquiry. It seems to us that on the whole the High Court has gone by conjectures and surmises. There is nothing on the record to show that he has any other source of income except pay. As he did not receive subsistence allowance till March 20, 1965 he could not, in our opinion, attend the enquiry. The first payment of subsistence allowance was made to him on March 20, 1965 after a part of the evidence had already been recorded on February 9, 10 and 11, 1965. The enquiry proceedings during those days are vitiated accordingly. The report of the Enquiry Officer based on that evidence is infected with the same defect. Accordingly, the order of the Government dismissing him from service cannot stand. It was passed in violation of the provisions of Art. 311 (2) of the Constitution for the appellant did not receive a reasonable opportunity of defending himself in the enquiry proceedings.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]These facts plainly show that a part of the evidence had already been recorded before the first payment of substance allowance was made to the appellant. Nevertheless, the High Court has held that he was not unable to appear before the Enquiry Officer on account of the non-payment of his subsistence allowance. The principal reasons given by the High Court in support of its view are these :(1) The appellant did not complain specifically in the writ petition that he could not attend the enquiry as he had not been paid subsistence allowance and had no means of his own to meet the expenses of going to Jagdalpur from Rewa for facing the enquiry;(2) His affidavit gives no particulars about the sources of his income and the estimate of expenses to be incurred by him in the enquiry and does not explain how he was unable to meet those expenses;(3) The third class railway fare from Rewa to Jagdalpur is about Rs. 20/-. He would need a few more rupees for expenses during his stay at Jagdalpur. He had been drawing a pay of Rs. 300/- per month;(4) After he was dismissed from service, he filed a writ petition in the High Court. After his writ petition was dismissed by the High Court he came in appeal to this Court. This shows that he had enough money to attend the enquiry at Jadalpur. The High Court summed up: "In all these circumstances we find that it was not financial stringency which prevented the petitioner from co-operating in the departmental enquiry but that he was otherwise unwilling to do so."5. With respect, we find it difficult to share the view taken by the High Court. Paragraph 5 of the writ petition expressly alleges that on December 5, 1964, the appellant sent a letter to the Enquiry Officer informing him that unless he was paid subsistence allowance he would not be able to face the enquiry proceedings. The letter was filed along with the petition. It is annexure H. The letter stated that "Until and unless I am paid subsistence allowance.......I categorically refuse to face any proceeding......asI have no capacity to do so because of acute shortage of funds."(emphasis added).This is obviously specific pleading on the point that for non-payment of subsistence allowance he was short of funds and could not attend the enquiry. It is true that his affidavit does not give any particulars about his sources of income and the estimate of expenses to be incurred in the enquiry. But it would prima facie suggest that he had no other sources of income except his pay. If he had no other sources of income, he could not invent them for the purpose of mentioning them in the affidavit. More significantly, the Government affidavit does not allege that he had any other source of income except pay. The fact that he had been drawing a monthly pay of Rs. 300/- till October 1964 would not necessarily show that he had sufficient money to enable him to go to Jagdalpur to attend the enquiry in February, 1965. He was suspended on October 30, 1964 and thereafter he did not get subsistence allowance until March 20, 1965. Having regard to the prevailing high prices, it is not possible to draw any adverse inference against him from the mere circumstance that he had been receiving a monthly pay of Rs. 300/- till October, 1964. The fact that he filed a writ petition immediately on the passing of the order of dismissal and thereafter came in appeal to this Court, would not establish that he had enough resources to enable him to attend the enquiry. It seems to us that on the whole the High Court has gone by conjectures and surmises. There is nothing on the record to show that he has any other source of income except pay. As he did not receive subsistence allowance till March 20, 1965 he could not, in our opinion, attend the enquiry. The first payment of subsistence allowance was made to him on March 20, 1965 after a part of the evidence had already been recorded on February 9, 10 and 11, 1965. The enquiry proceedings during those days are vitiated accordingly. The report of the Enquiry Officer based on that evidence is infected with the same defect. Accordingly, the order of the Government dismissing him from service cannot stand. It was passed in violation of the provisions of Art. 311 (2) of the Constitution for the appellant did not receive a reasonable opportunity of defending himself in the enquiry proceedings.