G.K. Misra, C.J.
1. The petitioner was served with the following charges:
'Charge No. 1. You have disobeyed the Government order of transfer, transferring you to Dhenkanal Power House in office order No. 4795 dated 16-9-50 of the Executive Engineer, General Electrical Division, Cuttack, and tried to avoid the transfer by false pretensions.
Charge No. 2. You have not vacated the Government quarters even after receiving your above-mentioned transfer order. Several wild efforts of Government proved futile because of your adamant nature, which proves your disobedience and insubordination. Your claim that the house has been donated to you by the Ex-Ruler of Nayagarh is definitely not correct. The land on which the house stands belongs to the Government. So, the house cannot belong to you. The house was only allotted to you as Engine Driver of the Power House for occupation.
Charge No. 3. You have remained absent from duty wilfully for more than a year after the above transfer and always tried to malinger on false pretence and baseless grounds.
Charge No. 4. You have approached the higher authorities of the State without the permission of the superiors through the proper channel.
Charge No. 5. Your behaviour while you were called upon to explain your grievances by the Chief Engineer, Electricity and the Superintending Engineer, Electrical Circle, Cuttack, was not proper and your attitude towards the officers was repulsive.'
2. In his explanation, the petitioner denied the charges and clearly asserted that he was not guilty of any of the charges. Prior to that he had asked for the documents on which some of the charges were based. Though he was given an opportunity to examine the documents, he did not avail of it. The fact, however, remains that he did not admit his guilt. After receipt of the explanation, the Superintending Engineer who is the appointing authority of the petitioner passed the following order:
'After carefully going through the explanation submitted by Sri Banchchanidhi Patnaik, Engine Driver (under suspension), submitted by him on 10-4-57 and 17-6-57 the undersigned is satisfied that his explanations are vague and do not substantially defend against the charges. The charges framed against him in this office No. 38/Con dated 22-2-57 have, therefore, been established and Sri Banchchanidhi Patnaik is hereby ordered to be dismissed from his service from the date of receipt of this order by him.'
This order of dismissal is challenged by the petitioner as being contrary to the provisions of Article 311(2) of the Constitution.
3. Mr. Rath contends that the petitioner should not have been dismissed except after an enquiry. Article 311(2) makes the position very clear. It says:
'No such person, as aforesaid, shall be dismissed or removed or reduced in rank, except after an enquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges.'
4. It is now settled by a series of decisions of the Supreme Court commencing with AIR 1958 SC 300, Khem Chand v. Union of India, that after the charges are framed, the delinquent should be given a reasonable opportunity to file an explanation and thereafter the appointing authority should fix a date for enquiry wherein witnesses would be examined, to be cross-examined by the delinquent, and the delinquent would be gven a further opportunity of giving evidence in his own defence. It is only after these opportunities are given that the delinquent can be dismissed from service if he is found to be guilty. In this connection we may refer to our decision in O. J. C. No. 327 of 1965, D/- 9-7-1969, (reported in AIR 1970 Orissa 1), wherein the procedure to be followed has been given in detail. Admittedly, in the present case there was no enquiry after the denial of the charges. The appointing authority says that though opportunity was given to the delinquent he did not defend himself. In fact, no opportunity was given. A date should have been fixed calling upon the petitioner to cross-examine the witnesses and to make comments upon the documents presented on behalf of the appointing authority. No such date was fixed and it cannot therefore be said that the delinquent did not avail of the opportunity though given.
5. On the aforesaid analysis, the impugned order of dismissal cannot stand.
We accordingly issue a writ of certiorari directing the opposite parties to treat the petitioner as continuing in service. It is to be noted that the petitioner has superannuated long since. Our order saying that the petitioner shall be deemed to continue in service would not affect his superannuation having taken perfect (effect?) in law.
The writ application is accordingly allowed but there will be no order as to costs.
R.N. Misra, J.
6. I agree.