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1. This is a petition under Article 226 of the Constitution by the Manager of Parlakimedi Municipality against an order of dismissal from service passed by the Commissioner and Special Officer of the Municipality (hereinafter referred to as the Special Officer) Sri K.M. Das on 1-4-51 after a departmental enquiry. The petitioner filed an appeal to the State Government on 1-5-51. But it appears that no orders were passed by the Government on the appeal. It is indeed strange that an appeal of this type should have remained undisposed of by the Government for such a long period. In sheer despair the petitioner came to this Court for relief under Article 226 of the Constitution on 22-9-55 and though the learned Advocate General appeared for the State of Orissa during the hearing of this petition he has not been able to enlighten us as to what happened to the petitioners' appeal.

6. The Special Officer has completely overlooked the fundamental principle governing all departmental proceedings. It is too elementary that before coming to a finding as regards the guilt or otherwise of a public servant the enquiring officer should give the public servant concerned an opportunity to test the evidence collected against him by cross examining the witness and also to adduce evidence on his behalf. It will not be proper for an officer holding such a departmental enquiry on the basis of the materials collected during the preliminary scrutiny after taking into consideration the explanation given by the public servant. Such preliminary scrutiny is made for the purpose of satisfying the officer that there are prima facie grounds for framing charges against the public servant and calling upon him to explain. But once the public servant submits his explanation and therein does not admit the facts on the basis of which the charges are made it is obvious that a regular enquiry should be held in his presence. Witnesses should be examined, if necessary, and he should be given an opportunity to cross examine them and to adduce evidence on his behalf. Doubtless, if all the facts are admitted by him in his explanation the necessity of a regular enquiry may not arise and it may be open to the enquiring officer to dispose of the proceeding on the basis of the materials collected during the preliminary scrutiny and the explanation submitted by the public servant. But in the present case as already pointed out, the petitioner denied every one of the allegations made against him. He also made a grievance of the fact that during the preliminary scrutiny witnesses had been examined behind his back and that he did not get an opportunity to test their statements by cross examination. Moreover, while answering some of the charges he made statements which would necessitate the examination of some witnesses. For instance, charge No. 5 related to his omission to account for a sum of Rs. 200/- advanced for the purchase of lights. In his explanation the petitioner stated that the said sum was advanced to One D. Narayana in January 1949 in connection with the visit of His Excellency the Governor to Parlakimedi. Without examining the said D. Narayana in the presence of the petitioner and giving him an opportunity to cross examine him the Special Officer came to a hasty finding to the effect that the explanation was false. Charge No. 22 related to his receipt of a sum of Rs. 4/-/3 towards cycle licence of one T. Balakrishnamma in 1949-50 and his omission to credit the same either in Chitta or Collection Register. The petitioner's explanation was that the Warrant Officer received the money and did not credit the same. This Warrant Officer was not examined in the presence of the petitioner to disprove his explanation nor was he given an opnortunity to cross examine him. Charge No. 23 related to the petitioner's omission to disburse, Rs. 14/- and Rs. 10/11/- due to one N.C. Misra Lascar, for May and April, 1950 respectively. The petitioner's explanation was that the sums were disbursed to N.C. Misra when he returned to Parlakimedi town. This N. C. Misra was not examined in the presence of the petitioner nor was he given an opportunity to cross examine him. There are innumerable instances of this type and it is unnecessary to describe them in detail. It is also clear that the petitioner was not given an opportunity to adduce evidence on his behalf.

10. I would, therefore, set aside the order of dismissal dated 1-4-51 passed by the Special Officer. Parlakimedi Municipality. The petitioner is entitled to costs. Hearing fee is assessed at Rs. 100/-.

11. It is open to the authority concerned to continue the departmental enquiry by framing fresh charges against the petitioner and terminating the same after giving him due opportunity to cross-examine the witnesses in respect of those allegations which are not admitted and also giving him an opportunity to adduce rebutting evidence. Government may also examine the circumstances under which the appeal filed by the petitioner on 1-5-51 against the decision of the Special Officer to the Secretary to the Government of Orissa, Local Self Government has yet remained undisposed of and take effective measures to avoid such delays in future.