' This Constitutional petition was-reheard following the setting aside of the ex parte judgment dated 28th March 1978 (N L It 1978 Service (Lah.) 533) at the instance and for the benefit of the respondent on a payment of a cost of Rs,
100. The cost has been paid.
2. The facts of the case find mention in pares. 1 to 5 of the judgment earlier pronounced ex parte against the respondent. These need not be reproduced.
3. The fact that the truck driver was not examined at the hearing by the Inquiry Officer and that he was not produced for cross-examination which the petitioner wanted and sought both from the Administrator as well as from the appellate authority is not denied. It is also clear that the inquiry report as well as the impugned orders made use of a statement of the truck driver recorded outside the inquiry when a right of cross-examination was not available to the employee- petitioner nor was be formally charged of the misconduct. The learned counsel for the respondent has tried to defend the procedure adopted at the inquiry and the material so used on the ground that under the rules particularly rule 20 of the Efficiency and Discipline Rules applicable, in an oral inquiry alone a right of cross-examination was conferred by such rules but if the evidence were recorded and a formal inquiry were held, a right was not expressly provided under the rules but could be made available under the principles of natural justice. The very concept of an oral inquiry as distinct from a formal or a written inquiry, is alien to the rules. There is only one type of inquiry and that is what is provided in rule 20. The formality or the writing part relates to the maintenance of record. Admittedly the truck driver was not examined orally. Therefore, his statement should not be before the Inquiry Officer to be availed of for arriving at guilt or innocence of the petitioner If at all such a statement was to be used as evidence then the right o cross-examination could not be denied to him whether the record of A the inquiry was maintained in writing by the Inquiry Officer or none at all. It cannot be urged that the rules recognised two types of Inquiries one oral and the other written. In the oral inquiry right of cross-examination was conferred by rules and in the written inquiry no sue right exists. An inquiry into a question of fact assumes and requires that the right of cross-examination shall be made available and it is independent of the fact whether record of the proceedings is maintained verbatim or in the form of a memorandum.
4. The other ground taken by the learned counsel for the respondent in defence of the order passed by the departmental authorities is that there was sufficient other material even after excluding the statement of the truck driver to sustain the orders. This may be so but in the Constitutional jurisdiction this Court is not to substitute itself' for the departmental authority with a view to find out the sufficiency or the insufficiency of the material but is only to ascertain whether what has been taken to be a substantial ground was at all available In drawing that conclusion or not. If a material or a substantial ground is removed from the list of grounds available for taking action then it is for the departmental authorities to examine it and in its own judgment to determine the question before it. The fact that the statement of the truck driver was a material and a substantial piece of evidence cannot be denied on the facts of the case.
5. It is also stated that no demand was made by the petitioner before the Inquiry Officer for making available the truck driver for cross-examination. This could be the case if the statement written or oral was brought on record in the presence of and to the knowledge of the petitioner during the course of the inquiry. As soon as the petitioner found out that the report was based on it he objected and even the competent authority before passing the impugned order could get the rectification.
6. It has also been urged by the learned counsel for the respondent that even if there was a defect of lack of hearing it has been made up by the hearing in appeal. This argument has been advanced on some misunderstanding because it is not the absence of hearing of the petitioner which is made a ground but the absence of the appearance of the truck driver whose earlier written statement was availed C of by the Inquiry Officer. Such a deficiency cannot be made up except by either excluding the statement of the truck driver or by exa mining him and making him available for cross-examination. The having been not done, there is no case of the deficiency having been made up.
7. It has finally been contended that in a service matter restoration to office after about ten years would be to the prejudice of the respondent and discretion should not be exercised to so restore him on technicality. A long time has passed is obvious. However the petitioner is not at fault. The constitutional petition has remained pending for about eight years and this would in any case be an act of the Court and that should cause prejudice to neither of the parties. If the petitioner had been in default certainly there would have been much point in the claim made by the respondent.
8. I find that the truck driver was a material witness for the purposes of the inquiry, that his statement could not be utilised without affording an opportunity to the petitioner to cross-examine him and in not redressing this grievance of the petitioner a fair opportunity assured to him under the rules in the conduct of the departmental inquiry has not been given. For this reason, the order got vitiated and rendered without lawful authority. The petition is, therefore, allowed with costs.