JUDGMENT Honble V.K. Shukla, J.—Petitioner has approached this Court, questioning the validity of decision dated 25/26.2.2003 taken by Joint Commissioner, Trade Tax, Mirzapur Sambhag, Mirzapur, imposing punishment by withholding two increments with cumulative effect and the order dated 2.11.2006 passed by Additional Commissioner, Grade-I, Trade Tax, Allahabad Zone, Allahabad, affirming the said punishment, in appeal preferred against the same. 2. Brief facts, giving rise to instant writ petition, are that, at the relevant time, petitioner had been performing and discharging duties as Stenographer at Regional Office, Allahabad, qua misconduct committed by him during the said period starting with effect from June, 1998 to June, 2001, proceedings had been sought to be initiated against him by issuing charge-sheet. After the charge-sheet had been issued, petitioner requested for perusal of various documents and he was permitted to carry out necessary inspection on 16.5.2002. Petitioner submitted his reply on 27.5.2002. After the said reply had been submitted, Inquiry Officer submitted his report on 27.8.2002. Petitioner was further asked to submit his reply by means of show cause notice dated 15.2.2003. To the said show cause notice, petitioner submitted reply, which was duly received on 21.2.2003, and thereafter Joint Commissioner (Executive) Trade Tax on 25.2.2003 passed order, imposing punishment of withholding two increments with cumulative effect. Against the said order, petitioner preferred Appeal, which has been dismissed by Additional Commissioner, Grade-I, Trade Tax, Allahabad. At this juncture present writ petition has been filed. 3. Pleadings inter se parties have been exchanged and record in question has also been produced, thereafter, matter has been taken up for final hearing and disposal with the consent of the parties. 4. Sri G.D. Mishra, learned Counsel, appearing for the petitioner, contended with vehemence that in the present case no inquiry, whatsoever, has been conducted, inasmuch as, Inquiry Officer at no point of time fixed any date, time and place for holding of enquiry, and as such report submitted by Inquiry officer is vitiated and punishment based on the same is unsustainable and is liable to be quashed. 5. Sri Piyush Shukla, learned Standing Counsel, on the other hand, countered the said submission and contended that no prejudice has been caused on account of non-fixing the date, time and place of enquiry and as such writ petition is liable to be dismissed. 6. 5. Sri Piyush Shukla, learned Standing Counsel, on the other hand, countered the said submission and contended that no prejudice has been caused on account of non-fixing the date, time and place of enquiry and as such writ petition is liable to be dismissed. 6. On the basis of arguments, which have been advanced, relevant Rules i.e. U.P. Government Servant (Discipline and Appeal) Rules, 1999 (in short 1999 Rules), particularly, Rule 3, which deals with penalty, and Rule 7, which deals with procedure for imposition of major penalty, are being looked into. Rules 3, 7, 8 and 9 being relevant for the purpose of the present case are being quoted below : "3. Penalties.—The following penalties may, for good and sufficient reason and as hereinafter provided, be imposed upon the Government servants : Minor penalties : (i) Censure; (ii) Withholding of increments for a specific period; (iii) Stoppage at an efficiency bar; (iv) Recovery from pay of the whole of part of any pecuniary loss caused to Government by negligence or breach of orders; (v) Fine in case of persons holding Group D posts : Provided that the amount of such fine shall in no case exceed twenty five per cent of the months pay in which the fine is imposed. Major Penalties : (i) Withholding of increments with cumulative effect; (ii) Reduction to a lower post or grade or time-scale or to a lower stage in a time-scale; (iii) Removal from the service which does not disqualify from future employment; (iv) Dismissal from the service which disqualify from future employment. Major Penalties : (i) Withholding of increments with cumulative effect; (ii) Reduction to a lower post or grade or time-scale or to a lower stage in a time-scale; (iii) Removal from the service which does not disqualify from future employment; (iv) Dismissal from the service which disqualify from future employment. Explanation.—The following shall not amount to penalty within the meaning of this rule, namely : (i) Withholding of increment of a Government servant for failure to pass a departmental examination or for failure to fulfil any other condition in accordance with the rules or orders governing the service; (ii) Stoppage at the efficiency bar in the time scale of pay on account of ones not being found fit to cross the efficiency bar; (iii) Reversion of a person appointed on probation to the service during or at the end of the period of probation in accordance with the terms of appointment or the rules and orders governing such probation; (iv) Termination of the service of a person appointed on probation during or at the end of the period of probation in accordance with the terms of appointment or the rules and orders governing such probation. 7. Procedure for imposing major penalties.—Before imposing any major penalty on a Government Servant, an inquiry shall be held in the following manner : (i) The Disciplinary Authority may himself inquire into the charges or appoint an authority subordinate to him as Inquiry Officer to inquire into the charges. (ii) The facts constituting the misconduct on which it is proposed to take action shall be reduced in the form of definite charge or charges to be called charge-sheet. The charge-sheet shall be approved by the Disciplinary authority: Provided that where the Appointing Authority is Governor, the charge-sheet may be approved by the Principal Secretary or the Secretary, as the case may be, of the concerned department. (iii) The charges so framed shall be so precise and clear as to give sufficient indication to the charged Government servant of the facts and circumstances against him. The proposed documentary evidences and the name of witnesses proposed to prove the same alongwith oral evidences, if any, shall be mentioned in the charge-sheet. (iii) The charges so framed shall be so precise and clear as to give sufficient indication to the charged Government servant of the facts and circumstances against him. The proposed documentary evidences and the name of witnesses proposed to prove the same alongwith oral evidences, if any, shall be mentioned in the charge-sheet. (iv) The charged Government servant shall be required to put in a written statement of his defence in person on a specified date which shall not be less than 15 days from the date of issue of charge-sheet and to state whether he desires to cross-examine any witnesses mentioned in the charge-sheet and whether desires to give or produce evidence in his defence. He shall also be informed that in case he does not appear or file the written statement on the specified date, it will be presumed that he has none to furnish and inquiry officer shall proceed to complete the inquiry ex parte. (v) The charge-sheet, alongwith copy of documentary evidences mentioned therein and list of witnesses and their statements, if any shall be served on the charged Government servant personally or by registered post at the address mentioned in the official records in case the charge-sheet could not be served in the aforesaid manner, the charge-sheet shall be served by publication in a daily newspaper having wide circulations : Provided that where the documentary evidence is voluminous, instead of furnishing its copy with charge-sheet, the charged Government servant shall be permitted to inspect the same before the Inquiry officer. (vi) Where the charged Government servant appears and admits the charges, the Inquiry officer shall submit his report to the Disciplinary Authority on the basis of such admission. (vii) Where the charged Government servant servant denies the charges the Inquiry Officer shall proceed to call the witness proposed in the charge-sheet and record their oral evidence in presence of the charged Government servant who shall be given opportunity to cross-examine such witnesses. After recording the aforesaid evidence, the Inquiry Officer shall call and record the oral evidence which the charged Government servant desired in his written statement to be produced in his defence : Provided that the Inquiry Officer may for reasons to be recorded in writing refuse to call a witness. After recording the aforesaid evidence, the Inquiry Officer shall call and record the oral evidence which the charged Government servant desired in his written statement to be produced in his defence : Provided that the Inquiry Officer may for reasons to be recorded in writing refuse to call a witness. (viii) The Inquiry Officer may summon any witness to give evidence or require any person to produce documents before him in accordance with the provision of the Uttar Pradesh Departmental Inquiries (Enforcement of Attendance of Witnesses and Production of Documents) Act, 1976. (ix) The Inquiry Officer may ask any question he pleases, at any time of any witness or from person charged with a view to discover the truth or to obtain proper proof of facts relevant to charges. (x) Where the charged Government servant does not appear on the date fixed in the inquiry or at any stage of the proceeding in spite of the service of notice on him or having knowledge of the date, the Inquiry Officer shall proceed with the inquiry ex part. In such a case the Inquiry Officer shall record the statement of witnesses mentioned in the charge-sheet in the absence of charged Government servant. (xi) The Disciplinary Authority, if it considers necessary to do so, may, by an order appoint a Government Servant or a legal practitioner to be known as Presenting Officer to present on its behalf the case in support of the charges proceed. (xi) The Disciplinary Authority, if it considers necessary to do so, may, by an order appoint a Government Servant or a legal practitioner to be known as Presenting Officer to present on its behalf the case in support of the charges proceed. (xii) The Government servant may take assistance of any other Government servant to present the case on his behalf but not engage a legal practitioner for the purpose unless the presenting officer appointed by the Disciplinary Authority is a legal practitioner of the Disciplinary Authority having regard to the circumstances of the case so permits : Provided that this rule shall not apply in following cases : (i) Where any major penalty is imposed on a person on the ground of conduct which has led to his conviction on a criminal charge; or (ii) Where the Disciplinary Authority is satisfied, that for reason to be recorded by it in writing, that it is not reasonably practicable to hold an inquiry in the manner provided in these rules; or (iii) Where the Governor is satisfied that, in the interest of security of the State, it is not expedient to hold an inquiry in the matter provided in these rules." 8. Submission in Inquiry Report.—When the inquiry is complete, the Inquiry officer shall submit its inquiry report to the Disciplinary Authority alongwith all the records of the inquiry. The inquiry report shall contain a sufficient record of brief facts, the evidence and statement of the findings on each charge and the reasons thereof. The Inquiry officer shall not make any recommendation about the penalty. 9. Action on Inquiry Report.—(1) The Disciplinary Authority may, for reasons to be recorded in writing, remit the case for re-inquiry to the same or any other Inquiry Officer under intimation to the charged Government servant. The Inquiry Officer shall thereupon proceed to hold the inquiry from such stage as directed by the disciplinary authority, according to the provisions of Rule 7. (2) The Disciplinary Authority shall, if it disagrees with the findings of the Inquiry Officer on any charge, record its own findings thereon for reasons to be recorded. (3) In case the charges are not proved, the charged Government servant shall be exonerated the Disciplinary Authority of the charges and informed him accordingly. (2) The Disciplinary Authority shall, if it disagrees with the findings of the Inquiry Officer on any charge, record its own findings thereon for reasons to be recorded. (3) In case the charges are not proved, the charged Government servant shall be exonerated the Disciplinary Authority of the charges and informed him accordingly. (4) If the Disciplinary Authority, having regard to its findings on all or any of charges is of the opinion that any penalty specified in Rule 3 should be imposed on the charged Government servant, he shall give a copy of inquiry report and his finding recorded under sub-rule (2) to the charged Government servant and require him to submit his representation if he so desires, within a reasonable specified time. The Disciplinary Authority shall, having regard to all the relevant records relating to the inquiry and representation of the charged Government servant, if any, and subject to the provisions of Rule 16 of these rules, pass a reasoned order imposing one or more penalties mentioned in Rule 3 of these rules and communicate the same to the charged Government servant." 7. A bare perusal of Rule 3 would go to show that for good and sufficient reason minor penalty or major penalty, may be imposed upon the Government servants. Rule 7 obligates that before imposing any major penalty on a Government servant, an inquiry shall be held in the manner prescribed. Sub-rule (i) of Rule 7 mentions that the Disciplinary Authority may himself inquire into the charges or appoint an authority subordinate to him as Inquiry Officer to inquire into the charges. Sub-rule (ii) of Rule 7 mentions that the facts constituting the misconduct on which it is proposed to take action shall be reduced in the form of definite charge or charges to be called charge-sheet. Sub-rule (iii) mentions that the charges so framed shall be so precise and clear as to give sufficient indication to the charged Government servant of the facts and circumstances against him. The proposed documentary evidences and the name of witnesses proposed to prove the same alongwith oral evidences, if any, shall be mentioned in the charge-sheet. Sub-rule (iii) mentions that the charges so framed shall be so precise and clear as to give sufficient indication to the charged Government servant of the facts and circumstances against him. The proposed documentary evidences and the name of witnesses proposed to prove the same alongwith oral evidences, if any, shall be mentioned in the charge-sheet. Sub-rule (iv) of Rule 7 provides that the charged Government servant shall be required to put in a written statement of his defence in person on a specified date which shall not be less than 15 days from the date of issue of charge-sheet and to state whether he desires to cross-examine any witnesses mentioned in the charge-sheet and whether desires to give or produce evidence in his defence. Sub-rule (v) of Rule 7 provides that charge-sheet, alongwith copy of documentary evidences mentioned therein and list of witnesses and their statements, if any, shall be served on the charged Government servant personally or by registered post at the address mentioned in the official records in case the charge-sheet could not be served in the aforesaid manner, the charge-sheet shall be served by publication in a daily newspaper having wide circulations. In the event of documentary evidence is voluminous, instead of furnishing its copy with charge-sheet, the charged Government servant shall be permitted to inspect the same before the Inquiry officer. Sub-rule (vi) of Rule 7 provides that where the charged Government servant appears and admits the charges, then the Inquiry officer shall submit his report to the Disciplinary Authority on the basis of such admission. Sub-rule (vii) of Rule 7 mentions that where the charged Government servant denies the charges, the Inquiry Officer shall proceed to call the witness proposed in the charge-sheet and record their oral evidence in presence of the charged Government servant who shall be given opportunity to cross-examine such witnesses. After recording the aforesaid evidence, the Inquiry Officer shall call and record the oral evidence which the charged Government servant desired in his written statement to be produced in his defence. The Inquiry Officer has authority to refuse to call a witness for reasons to be recorded in writing. Sub-rule (viii) of Rule 7 provides that the Inquiry Officer may summon any witness to give evidence or require any person to produce documents before him. The Inquiry Officer has authority to refuse to call a witness for reasons to be recorded in writing. Sub-rule (viii) of Rule 7 provides that the Inquiry Officer may summon any witness to give evidence or require any person to produce documents before him. Sub-rule (ix) of Rule 7 gives discretion to the Inquiry Officer to ask any question he pleases, at any time of any witness or from person charged with a view to discover the truth or to obtain proper proof of facts relevant to charges. Sub-rule (x) of Rule 7 provides that where the charged Government servant does not appear on the date fixed in the inquiry or at any stage of the proceeding in spite of the service of notice on him or having knowledge of the date, the Inquiry Officer shall proceed with the inquiry ex parte. In such a case the Inquiry Officer shall record the statement of witnesses mentioned in the charge-sheet in the absence of charged Government servant. Sub-rule (xi) of Rule 7 obligates the Disciplinary Authority to appoint Presenting Officer. Sub-rule (xii) of Rule 7 gives liberty to the Government servant to take assistance of any other Government servant to present the case on his behalf. Thereafter, Rule 8 provides for submission of inquiry report, and Rule 9 deals with the action to be taken on inquiry report. 8. Thus, the scheme of the things in the present case clearly reflect that if reply is submitted to charge-sheet and charged Government servant denies the charges of the Inquiry Officer, then the Inquiry Officer has to proceed with the inquiry, and inquiry has to be done in the manner as provided above. The scheme of the things clearly reflect that date, time and place of inquiry has to be fixed in the inquiry by the Inquiry Officer. The inquiry in question is to be undertaken in presence of charged Government servant, and only when on the date fixed, or at any stage of the proceeding, charged Government servant does not appear in spite of notice, the proceedings may be undertaken ex parte. The Inquiry Officer is free to ask any question from any witness or from person charged with a view to discover the truth or to obtain proper proof of facts relevant to charges. The Inquiry Officer is free to ask any question from any witness or from person charged with a view to discover the truth or to obtain proper proof of facts relevant to charges. Thus any inquiry by Inquiry Officer, without fixing date, time and place of enquiry, is no enquiry in the eyes of law, and same is as good as no enquiry at all. 9. In the present case, undisputed factual position which emerges is to the effect charge-sheet was issued to the petitioner on 22.4.2002. Petitioner intended to inspect the documents, for which he was permitted on 16.5.2002, and thereafter reply was submitted on 27.5.2002 denying the charges. Inquiry Officer submitted his report on 27.8.2002. After submission of report by Inquiry Officer, show cause notice was issued to petitioner, to which reply was submitted by petitioner. Thereafter, order of punishment has been passed. Inquiry Officer admittedly in the present case, as is evident from the record, has not fixed any date, time or place for holding enquiry. 10. Division Bench of this Court in the case of Sharad Kumar Verma v. State of U.P. and others, (2006) 110 FLR 630, has taken the view that even if it is accepted that petitioner was given adequate opportunity to inspect record, the present inquiry proceeding cannot be sustained as admittedly after submission of reply to the charge-sheet, Inquiry Officer did not give any opportunity to the petitioner to participate in the inquiry nor fixed any date. Further it has been held that charges unless proved, cannot form basis of any punishment, and in this background, disciplinary proceedings are vitiated. Paragraphs 9, 10, 11 and 12 of the judgment being relevant are being quoted below : "9. Even if it is accepted that the petitioner was given adequate opportunity to inspect record, the present enquiry proceeding cannot be sustained, as, admittedly after submission of reply to the charge-sheet, the enquiry officer did not give any opportunity to the petitioner to participate in the inquiry nor fixed any date for leading evidence either to the department or to the delinquent officer. In fact, the requests dated 12.10.1998 and 26.10.1998 (Annexures-5 and 6) have not at all been considered and the representation dated 6.6.2000 (Annexure-7) has been taken as reply to the charge-sheet by the enquiry officer. This fact is evident from the averments made in para 19 of the counter-affidavit. In fact, the requests dated 12.10.1998 and 26.10.1998 (Annexures-5 and 6) have not at all been considered and the representation dated 6.6.2000 (Annexure-7) has been taken as reply to the charge-sheet by the enquiry officer. This fact is evident from the averments made in para 19 of the counter-affidavit. The State admits that the enquiry officer did not fix any date, time or place for holding the enquiry or for adducing evidence and the petitioner was also not called by him to participate in the enquiry after submission of reply to the charge-sheet but defends the order by emphatically asserting that since the charges were based on documents, no oral enquiry was needed. The argument is that charges stood roved by documentary evidence, which were available with the enquiry officer and, therefore, no illegality has been committed, if the petitioner was not called for any oral hearing and no oral evidence was led. In support of the submission, it has also been argued that the petitioner in his reply dated 6.6.2000 has only prayed that an impartial enquiry report be submitted and had not asked for any personal hearing or opportunity to adduce evidence. 10. This question has come up before this Court very often and the Court had been explaining in all the cases of departmental proceedings that if the delinquent denies the charges then whether he asks for personal hearing or opportunity to participate in the proceedings or not, it is the bounden duty of the enquiry officer to afford such an opportunity. The enquiry officer requires that the charges levelled against the delinquent officer should stand proved on the basis of the material on record and the necessary evidence, which may be oral or documentary or both. The delinquent has not participated in the enquiry despite the opportunity being given is a separate issue but where no opportunity is afforded, the enquiry stands vitiated. The petitioner submitted his reply to the charge-sheet on 12.10.1998 and 21.10.1998 and in both the replies, he did not accept the charges but expressed his inability to give complete answer in the absence of the documents being supplied. In the representation dated 6.6.2000 again the petitioner raised the same plea and prayed that impartial enquiry report be submitted. The petitioner submitted his reply to the charge-sheet on 12.10.1998 and 21.10.1998 and in both the replies, he did not accept the charges but expressed his inability to give complete answer in the absence of the documents being supplied. In the representation dated 6.6.2000 again the petitioner raised the same plea and prayed that impartial enquiry report be submitted. The aforesaid request including the representation of the petitioner by no stretch of imagination can constitute an admission on his part to the charges levelled nor would mean that he has agreed for submitting of the enquiry report without associating the petitioner and without giving opportunity to lead evidence. 11. In departmental proceedings, the charges unless proved cannot from the basis of any punishment. The standard of proof is different as against the required standard in the case of a criminal trial but the charges levelled must stand proved on the basis of the relevant material. The moment charge is required to be proved, the necessity would arise for adducing evidence, which may be documentary or oral or both. The burden to prove charges lies upon the department, therefore, the department owes its liability first to adduce evidence and take steps for proving the charge. It is after this stage that the delinquent would be required to rebut the evidence adduced and also to cross-examine the witnesses produced or to nullify the documentary evidence by adducing such evidence, as may be necessary and may be available or to show the unworthiness of the documents which are sought to be relied upon but this can only be done if the enquiry officer does not fixes a date for adducing evidence and not otherwise. Merely because the delinquent did not say so in so many words about his participation in the enquiry despite the charges not being admitted to him and they having been denied, the enquiry officer does not stand absolve of his legal obligation of holding enquiry in the manner prescribed. It is to be kept in mind that denial of charges and admission of the charges cannot be taken on the same footing. It is to be kept in mind that denial of charges and admission of the charges cannot be taken on the same footing. There may be a case where the delinquent denies the charges specifically and there may be a case where the delinquent does not refer to the charge but does not admit the charge and in such a case also the enquiry officer would be under legal obligation to hold the enquiry to see that the charges are proved or not. It is only where in a case the delinquent admits the charge, the department may not lead any evidence before the enquiry officer and the charge can be taken to be proved, as the facts admitted need not be proved. 12. In the instant case, admittedly the aforesaid procedure was not followed and that at no point of time the petitioner was associated with the enquiry and, therefore, he could not get any opportunity to rebut the documentary evidence, which was relied upon nor was in a position to adduce any evidence in rebuttal. The entire proceedings was thus conducted in violation of the principles of natural justice. The charges thus cannot be said to be proved against the petitioner and the enquiry stands vitiated on this ground alone." 11. In the present case also after submission of reply to the charge-sheet, Inquiry Officer, at no point of time fixed any date, time or place for holding inquiry. In these circumstances and in this background, procedure which has been followed in imposing major penalty of withholding two increments with cumulative effect, as affirmed in Appeal, is unsustainable, being in complete violation of principles of natural justice and in complete violation of the procedure prescribed under Rule 7 of 1999 Rules. This is a case of virtually no enquiry, as Inquiry Officer after denial of charges has not fixed any date, time and place for holding disciplinary proceeding. 12. Consequently, writ petition succeeds and is allowed. This is a case of virtually no enquiry, as Inquiry Officer after denial of charges has not fixed any date, time and place for holding disciplinary proceeding. 12. Consequently, writ petition succeeds and is allowed. The impugned orders dated 25/26.2.2003 passed by Joint Commissioner, Trade Tax, Mirzapur Sambhag, Mirzapur, imposing punishment by withholding two increments with cumulative effect and the order dated 2.11.2006 passed by Additional Commissioner, Grade-I, Trade Tax, Allahabad Zone, Allahabad, affirming the said punishment, are quashed, and the matter is remitted back to be decided afresh from the stage of submission of reply by petitioner, and the said inquiry be completed and decision be taken within three months from the date of receipt of a certified copy of this order. 13. No order as to costs. ————