JUDGMENT Hon’ble Sudhir Agarwal, J.—The Petitioner Laxmi Narain Tripathi aggrieved by the orders dated 30.3.2002, 11.11.2002 and 21.1.2003 passed by the respondent No. 1, Deputy Director (Fisheries) Basti has sought a writ of certiorari for quashing the said orders and a mandamus commanding the respondents to pay all his dues and fix his seniority. 2. Since counter and rejoinder affidavits have been exchanged, as agreed by the learned Counsel for the parties, this matter was heard for final disposal at the time of admission itself under the Rules of the Court and is being decided accordingly. 3. The facts in brief relevant for understanding the controversy are that petitioner was working as Senior Clerk in the office of Deputy Director (Fisheries) Basti. His wife died in 1988 and a young son at the age of 18/19 died in the year 1999 causing shock and serious hardship to him on account whereof he suffered heart disease. It appears that he was transferred to Aligarh whereagainst he made representation. The transfer order was modified and, thereafter, he was transferred to Gorakhpur, but he did not join thereat and continued to stay at Basti. He was placed under suspension vide order dated 12.9.2000 and a charge-sheet was issued on 1.11.2000 containing 7 charges relating to unauthorized absence, attending office in drunken condition, creating obstruction in the official functions, misbehaviour with other colleagues, non-discharge of official function within time etc. Petitioner denied charges and requested for supply of the documents relied upon in the charge-sheet vide his letter dated S.2.2001. A departmental enquiry, thereafter, was conducted by the enquiry officer. Deputy Director (Fisheries) Faizabad. Oral enquiry was conducted on 19.7.2001 when certain documents were inspected by the petitioner and statement of witnesses were also recorded whereafter the enquiry officer permitted the petitioner to reply the charge sheet. In the meantime, the petitioner on 19.7.2001 said to have submitted a letter seeking voluntary retirement but no decision was taken thereon. The enquiry officer submitted his report whereafter a punishment order was issued on 30.3.2002 declaring period from 1.9.1999 to 6.9.1999 as leave without pay which would not qualify for pension, reduction at the lowest in the scale of 4000-6000 with effect from 12.9.2000, i.e., from the date of suspension and no salary other than suspension allowance already paid during suspension. The enquiry officer submitted his report whereafter a punishment order was issued on 30.3.2002 declaring period from 1.9.1999 to 6.9.1999 as leave without pay which would not qualify for pension, reduction at the lowest in the scale of 4000-6000 with effect from 12.9.2000, i.e., from the date of suspension and no salary other than suspension allowance already paid during suspension. The said order further provides that his application seeking voluntary retirement is accepted and he will be deemed to have retired voluntarily from the afternoon of 30th March, 2002. Besides above, the aforesaid order further provides that his integrity shall be withheld and an entry to this effect shall be made in his service record. The petitioner claimed to have filed a review on 30.10.2002 which has been rejected by orders dated 11.11.2002 and 21.1.2003 by the Deputy Director (Fisheries) Basti. 4. The respondent have filed counter-affidavit stating that the charge-sheet was served upon the petitioner vide enquiry officer’s letter dated 11.1.2001. The petitioner demanded documents vide letter dated 8.2.2001, which were supplied to him vide enquiry officer’s letter dated 9th May, 2001, but thereafter he did not submit any reply. The enquiry officer fixed 19th July, 2001 for oral enquiry and the information was communicated to the petitioner on which date whatever documents the petitioner wanted to inspect were made available to him and thereafter statement of witnesses were recorded. The enquiry officer gave an opportunity to the petitioner to submit his reply vide letter dated 4.8.2001 but instead of complying the same the petitioner sought a month’s time on the ground of his illness and poor financial condition. The enquiry officer vide his letter dated 1.9.2001 granted time upto 10.9.2001 but no reply was submitted, whereafter the enquiry report was submitted holding charges No. 1, 3, 4, 5, 6 and 9 as fully proved and charge No. 2 partly proved. Consequently, the disciplinary authority, i.e., Deputy Director (Fisheries) Basti passed a punishment order on 30th March, 2002. Further, in the meantime, since the petitioner has submitted an application seeking voluntary retirement, the same was also allowed and he was retired voluntarily with effect from 30th March, 2002 vide the same order. It is said that the departmental enquiry has been conducted against the petitioner giving him due opportunity of defence and, therefore, the writ petition deserves to be dismissed. 5. It is said that the departmental enquiry has been conducted against the petitioner giving him due opportunity of defence and, therefore, the writ petition deserves to be dismissed. 5. The petitioner, in his rejoinder affidavit, has denied that the documents were supplied to him vide letter dated 9th May, 2001 and it has been said that on account of non-availability of the relevant documents he could not submit his reply. It is also complained that no suspension allowance was paid to him despite repeated demand causing serious financial scarcity and on account whereof he was not in position to defend his case effectively. It is also said that the entire enquiry has been conducted ex parte without affording adequate opportunity of defence and, therefore, the punishment order is vitiated in law and liable to be set aside. It is further averred that the Deputy Director is not the appointing authority of the petitioner and, therefore, the impugned order of punishment passed by him is vitiated in law. 6. Sri A.P.N. Giri, learned Counsel for the petitioner has assailed the impugned orders mainly on the ground that neither adequate opportunity of defence was afforded to the petitioner nor the Deputy Director (Fisheries) Basti is competent to pass the impugned order of punishment and, therefore, the entire proceedings are ex parte and violative of Article 311(2) of the Constitution of India read with Rule 7 of the Government Servant (Discipline and Appeal) Rules, 1999 (hereinafter referred to as the "1999 Rules”). He further contended that the alleged letter of voluntary retirement has wrongly been acted upon by the respondents inasmuch on the face of it, the said letter cannot be said to be a letter seeking voluntary retirement and even otherwise since the same has not been allowed in accordance with the procedure prescribed under Fundamental Rule 56(c), the authorities have erred in law by retiring him voluntarily with effect from 30th March, 2002. 7. The learned Standing Counsel on the contrary, opposed the writ petition and relied on the stand taken in the counter-affidavit and contended that the entire proceedings have been conducted in accordance with the law. 8. I have heard learned Counsel for the parties and perused the record. 9. 7. The learned Standing Counsel on the contrary, opposed the writ petition and relied on the stand taken in the counter-affidavit and contended that the entire proceedings have been conducted in accordance with the law. 8. I have heard learned Counsel for the parties and perused the record. 9. Before coming to the validity of the order of punishment as well as the disciplinary proceedings, it would be appropriate first to consider the validity of the order impugned in the writ petition insofar as it retires the petitioner voluntarily purporting to accept his application dated 19th July, 2001. A Government Servant is entitled to seek voluntary retirement after he has attained the age of 45 years or after having 20 years of qualifying service by serving a notice. The period of such notice is prescribed under Fundamental Rule 56 (in short FR-56) as three months. However, it is open to the appointing authority to allow a Government servant to retire without any prior notice without incurring any penalty in lieu of period of notice but where a departmental enquiry is pending the appointing authority has to inform the Government servant before expiry of period of notice that the same has not been accepted where the Government servant is not being permitted to retire voluntarily on the expiry of three months notice period. To appreciate the point, it would be appropriate to reproduce the FR-56, which reads as under : “56(c) Notwithstanding anything contained in clause (a) or clause (b), the appointing authority may, at any time, by notice to any Government Servant whether permanent or temporary, without assigning any reason, require him to retire after he attains the age of fifty years of such Government servant may by notice to the appointing authority voluntarily retire at any time after attaining the age of forty five years age or after he has qualifying service of twenty years. 56(d). 56(d). The period of such notice shall be three months provided that,- (i) Any such Government servant may by order of the appointing authority, without such notice or by a shorter notice, be retired forthwith at any time after attaining the age of fifty years, and on such retirement the Government servant shall be entitled to claim a sum equivalent to the amount of his pay plus allowances, if any, for the period of the notice, or as the case may be, for the period by which such notice falls short of three months, at the same rates at which he was drawing immediately before his retirement; (ii) It shall be open to the appointing authority to allow a Government servant to retire without any notice or by a shorter notice without requiring the Government servant to pay any penalty in lieu of notice. Provided further that such notice given by the Government servant against whom a disciplinary proceeding is pending or contemplated, shall be effective only if it is accepted by the appointing authority, provided that in the case of a contemplated disciplinary proceeding the Government servant shall be informed before the expiry of his notice that it has not been accepted : Provided also that the notice once given by a Government servant under clause (c) seeking voluntary retirement shall not be withdrawn by him except with the permission of the appointing authority. (emphasis added) 10. The alleged letter dated 19.7.2001 submitted by the petitioner whereby he sought voluntary retirement as claimed by the respondents, reads as under : **lsok esa] mi funskd eRL;] cLrh egksn;] fuosnu gS fd eSaus ckj&ckj vius ns;ksa dks Hkqxrku djus gsrq fuosnu fd;k Fkk vHkh rd vizkIr gS esjh lsok iqfLrdk Hkh v/kwjh gSA Ñi;k leLr ns;dksa dks Hkqxrku djus dh Ñik djsaA mDr Hkqxrku ds ipkr eSa Los{kk ls lsok fuo`fUr djus gsrq fuosnu d:axk vkSj vkxs ?kjsyq ifjfLFkfr;ksa ,oa LokLF; ds dkj.k lsok fuo`Ÿk gksuk Hkh pkgrk gw¡A Hkonh; ¼,y0 ,u0 f=ikBh½ ofj"B fyfid ¼fu0½ dk;kZy; lgk;d funskd eRL; fl)kFkZuxj^^ 11. A bare perusal of the letter shows that the petitioner informed the Deputy Director (Fisheries) Basti that he has repeatedly requested for payment of his dues but the same has not been paid till date and his service book is also incomplete, therefore, he sought payment of his dues and after payment he would request for voluntary retirement since on account of his family circumstances and ill health he intends to retire. The aforesaid letter in my opinion cannot be read and termed as a letter seeking voluntary retirement submitted by the Government servant giving due notice to the appointing authority. This letter in whatever manner reads would only show that the petitioner discloses his intention to be followed in future that after payment of dues, he would request for voluntary retirement since on account of his personal problems, he intends to retire. Therefore, on the face of it, this letter by itself cannot be said to be a notice of voluntary retirement as contemplated under Fundamental Rule 56(c) and in my view the respondents acted only illegally in treating the said letter to be a letter of voluntary retirement and retiring him voluntarily by impugned order dated 30.3.2002. Hence, the same cannot sustain. Moreover, the respondent have also not treated the said letter as a three months notice seeking voluntary retirement is evident from the fact that had it been so, the appointing authority was under an obligation to inform the petitioner before expiry of the notice that his request has not been accepted, otherwise, after expiry of the notice, the petitioner would stood retire voluntarily and there would not have been any occasion for the respondents to continue with the departmental enquiry and impose major punishment of reduction in pay and other punishments. Admittedly no such letter was communicated by the appointing authority by 19.10.2001, that is the date on which the three months period of the aforesaid notice expires, had the letter dated 19.7.2001 would have been treated as notice of voluntary retirement under FR-56. Such a communication by appointing authority was obligatory under FR-56(c). The respondents treated the petitioner as continuing in service meaning thereby there was no notice of the petitioner seeking voluntary retirement and he has not retired after expiry of the period of notice. Such a communication by appointing authority was obligatory under FR-56(c). The respondents treated the petitioner as continuing in service meaning thereby there was no notice of the petitioner seeking voluntary retirement and he has not retired after expiry of the period of notice. A Government servant against whom departmental enquiry is pending, if has submitted a letter seeking voluntary retirement would stand retired after expiry of period of notice, if no information is given by the appointing authority before expiry of the period of notice that the request for retirement has not been accepted and this provision is mandatory as held in B.J. Shelat v. State of Gujarat and others, (1978) 2 SCC 202 ; Dinesh Chandra Sangma v. State of Assam and others, (1997) 4 SCC 441 and a Division Bench of this Court in Special Appeal No. (52) of 2003, State of U.P. and others v. Krishna Chandra Agrawal, decided on 3.11.2006. In my view, the appointing authority did not give any such information for the reason that the language of the letter dated 19.7.2001 does not make it a letter seeking voluntary retirement or a notice giving voluntary retirement but it appears that in order to get rid of the petitioner, while passing the punishment order dated 30th March, 2002, the respondent No. 1 retired him with effect from 30th March, 2002 purporting to act on the basis of letter dated 19th July, 2001 and it is nothing but a malicious exercise of the power vitiated in law and, cannot be sustained. 12. Now comes the question whether in imposing various punishments, the respondents have adopted a valid procedure consistent with the principles of natural justice as well as Rule 7 of the 1999 Rules. In my view the answer is in negative and the punishment order can also not sustain. From a perusal of Rule 7(i) it is apparent that the disciplinary authority may himself enquire into the charges or appoint an Authority subordinate to him as Inquiry Officer to enquire into the charges. The disciplinary authority is also defined under Rule 6 providing that appointing authority of a Government servant shall be his disciplinary authority. From a perusal of Rule 7(i) it is apparent that the disciplinary authority may himself enquire into the charges or appoint an Authority subordinate to him as Inquiry Officer to enquire into the charges. The disciplinary authority is also defined under Rule 6 providing that appointing authority of a Government servant shall be his disciplinary authority. However, under third proviso, the appointing authority in respect to Group C & D employees may be any authority subordinate to the appointing authority provided such power has been delegated by the Government by a notified order but such authority can impose punishment other than dismissal or removal. The petitioner has said in para-7 of the writ petition that his appointing authority is Director (Fisheries) U.P. Lucknow, respondent No. 2, in reply whereof the respondents in para-6 of the counter-affidavit have said that the Deputy Director (Fisheries) has been authorized to impose punishment and, therefore, he is the authority competent to impose the aforesaid punishment. In para-10 of the rejoinder affidavit, the petitioner has denied that the Deputy Director is the appointing authority. However, the parties have not placed before this Court either the alleged order of delegation of power or the appointment letter of the petitioner to show as to who actually appointed him on the post of Senior Clerk. Therefore, in the absence of relevant material I am inclined to hold that even if the contention of the petitioner is accepted that his appointing authority is Director, the Deputy Director (Fisheries) appears to have been delegated power under Rule 6 (third proviso) who could have impose punishments other than dismissal or removal. I am fortified in coming to this conclusion for the reason that in para-2 (Kha) of the counter-affidavit, the respondents themselves have stated that the enquiry officer in the case of the petitioner was appointed by the Director (Fisheries) U.P. Lucknow vide his letter dated 30th October, 2000 whereby the Deputy Director (Fisheries) Faizabad was appointed as enquiry officer. Under the Rules, the enquiry officer could have been appointed by the disciplinary authority, i.e., appointing authority or the authority to whom power is delegated under Rule 6. Where Director has appointed enquiry officer, it leads to the conclusion that he was the disciplinary authority, i.e., the appointing authority. The enquiry has been conducted by the Deputy Director (Fisheries) Faizabad. Under the Rules, the enquiry officer could have been appointed by the disciplinary authority, i.e., appointing authority or the authority to whom power is delegated under Rule 6. Where Director has appointed enquiry officer, it leads to the conclusion that he was the disciplinary authority, i.e., the appointing authority. The enquiry has been conducted by the Deputy Director (Fisheries) Faizabad. Under Rule 7(1) of 1999 Rules, the disciplinary authority could have appointed the enquiry officer who must be an authority subordinate to him. It is then inconceivable that the enquiry could have been conducted by an authority of coordinate rank and the punishment order could be passed by another officer of the same rank. In the present case, the respondents have said that the enquiry officer Deputy Director (Fisheries) Faizabad conducted enquiry and submitted enquiry report whereupon the Deputy Director (Fisheries) Basti passed the impugned order of punishment. It is impermissible under the Rules and the proceeding obviously cannot be said to be consistent with the procedure prescribed under 1999 Rules, therefore, are vitiated in law. The rules framing authority in providing that the disciplinary authority may appoint an enquiry officer who should be an authority subordinate to him must be well aware of the fact that the finding of the enquiry officer is not binding upon the disciplinary authority and it is always open to the disciplinary authority to accept or take a different view than that of the enquiry officer. Where the enquiry is conducted by an officer of equal or higher rank and the disciplinary authority is of a coordinate or subordinate rank, in the administrative hierarchy and propriety, it is improbable and difficult for such an authority to take a view different than that of enquiry officer, if there is no difference in the status or if the enquiry officer is of higher rank. Therefore, a valid procedural caution has been maintained under the Rules itself providing that the disciplinary authority may appoint enquiry officer subordinate in rank to the disciplinary authority. It neither can be said nor has been argued or pleaded by the respondents that the Deputy Director (Fisheries) Faizabad was an authority subordinate to the Deputy Director (Fisheries) Basti. Therefore the entire enquiry and the order of punishment passed by respondent No. 1 pursuant to the enquiry report submitted by the Deputy Director (Fisheries) Faizabad is unsustainable. It neither can be said nor has been argued or pleaded by the respondents that the Deputy Director (Fisheries) Faizabad was an authority subordinate to the Deputy Director (Fisheries) Basti. Therefore the entire enquiry and the order of punishment passed by respondent No. 1 pursuant to the enquiry report submitted by the Deputy Director (Fisheries) Faizabad is unsustainable. The proceedings cannot be said to be consistent with the procedure prescribed under the Rules. 13. Coming to other grievances of the petitioner, I find that the enquiry proceedings have also been conducted in gross violation of principles of natural justice and the entire proceedings are ex parte. The petitioner demanded copies of the documents sought to be relied in support of the charge referred to in the charge-sheet. Though in para 2 (Ga) of the counter-affidavit, it has been stated that the documents were furnished vide Deputy Director (Fisheries)’s letter dated 9.1.2001 but the aforesaid averment has been denied by the petitioner in para 4(c) of the rejoinder affidavit. The respondents have not pleaded or placed on record anything to show that the aforesaid documents as demanded by the petitioner were made available to him. It has been stated by the respondents in Para-2(Gha) of the counter-affidavit that on 19.7.2001 an oral enquiry was conducted and the petitioner was allowed inspection of such documents as he desired. I failed to understand when he was already supplied copies of the documents, as claimed in para 2(Ga) of the counter-affidavit, where was the occasion for the respondents to allow him inspection of the same documents and this shows that the documents demanded by the petitioner were not earlier supplied. It is also evident from the pleading that only on one date, i.e., 19.7.2001 oral enquiry was held when some witnesses in support of the charges were examined. Thereafter whether any further date for oral hearing was fixed by the enquiry officer has not been stated in the counter-affidavit. It appears that the enquiry officer after close of the evidence of the department adjourned the proceeding and thereafter sent a letter to the petitioner to submit his reply but without fixing any further date or to proceed with the departmental enquiry ex parte on failure of the petitioner to attend such inquiry on such date, submitted enquiry report. It appears that the enquiry officer after close of the evidence of the department adjourned the proceeding and thereafter sent a letter to the petitioner to submit his reply but without fixing any further date or to proceed with the departmental enquiry ex parte on failure of the petitioner to attend such inquiry on such date, submitted enquiry report. It is true where a Government servant tries to avoid participation is a departmental enquiry or is guilty of negligence or delay or prolonging the proceeding, it is always open to the enquiry officer to proceed with the enquiry on such date on which the Government servant does not appear but without fixing a date for oral enquiry on which the Government servant can be said to be guilty of non-appearance, the enquiry officer has no authority to proceed ex parte and submit enquiry report and such procedure adopted in the case in hand is inconsistent with Rule 7(x) of 1999 Rules read with Article 311(2) of the Constitution of India, which amounts to denial of adequate opportunity of defence to the petitioner vitiating the entire proceedings. 14. Lastly, it also appears from the record that after receipt of the enquiry report, the respondent No. 1 passed the impugned order of punishment without serving copy of the enquiry report to the petitioner and giving him any opportunity to defend himself. This is another flaw in the proceedings. 15. In view of the aforesaid facts and discussions made above, I have no hesitation in holding that the impugned order of punishment and others are illegal, vitiated in law and consequently quash the same. The writ petition is accordingly allowed. The petitioner shall be deemed to continue in service and is also entitled for all consequential benefits except arrears of salary in respect whereto the disciplinary authority would pass appropriate order under the relevant rules. The disciplinary authority is also at liberty to take action against the petitioner afresh in accordance with law and pass a fresh order after giving due opportunity of defence. There shall be no order as to costs. ————