JUDGMENT Honble V.K. Shukla, J.—Petitioner appeared in Subordinate Agricultural Service Examination held under the Directorate of Agriculture, U.P. in the year 1968, and stood first in Lucknow Region and was placed at sixth position in the State of U.P. He was finally selected and thereafter in pursuance of letter of Joint Director of Agriculture (Administration) dated 17.11.1971, petitioner was allocated under the District Agriculture Officer, Raebareli, and communication qua the same was sent on 30.11.1971 by Deputy Director of Agriculture, Lucknow Region, Lucknow, asking the petitioner to report and join under the District Agriculture Officer, Raebareli, within seven days of the receipt of the letter, failing which appointment order would be treated as cancelled. Relevant extract of the said order dated 30.11.1971 is being quoted below : "In pursuance of Joint Director of Agriculture (Admn.) U.P.s letter No. AC-3224-26/3 Appt. 70 dt. 17.11.1971 Sri Hausila Pandey is hereby allotted under the Distt. Agri. Officer Raebareli vice Sri V.K. Bisaria expired. Sri Hausila Pandey should report for duty to the Distt. Agri. Officer Raebareli. Formal appointment and posting order of Sri Hausila Pandey will be issued by the Distt. Agriculture, Officer Raebareli in accordance with the Planning (A) Deptt.) G.O. No. 13084/XXXXVI-NES/ dt.15.6.61 on the usual terms and condition under the intimation to the Joint Director of Agriculture (Admn.) U.P., (AG-Section) Lucknow and to this office. 1. Sri Pandey should join under the Distt. Agriculture, Officer Raebareli within 7 days of receipt of this letter, failing which appointment order would be treated as cancelled. 2. He will not get transfer T.A. For the joining of his first appointment. (R.P. SINGH) DY. DIRECTOR OF AGRICULTURE, LUCKNOW REGION, LUCKNOW " 2. Thereafter, appointment letter was issued by the District Agriculture Officer, Raebareli in following terms : "In view of the order No. 5658 dated 30.11.71 of Dy. Director of Agri. Lucknow Region, Lucknow, Sri Hausila Pandey is hereby appointed in Gr. III of S.A.S. In the scale of payof Rs.120-6-180-8-220 plus usual dearness allowance as admissible under rules and orders of the Govt. issued from time to time. The candidate must report for duty to the undersigned within 10 days from the receipt of the order. No T.A. & D.A. for joining his first appointment will be given to him. He will have to furnish the following certificates before his joining. issued from time to time. The candidate must report for duty to the undersigned within 10 days from the receipt of the order. No T.A. & D.A. for joining his first appointment will be given to him. He will have to furnish the following certificates before his joining. His services are purely temporary and can be terminated at any time without notice." 3. Thereafter, petitioner joined his duties at Raebareili and thereafter was transferred to various places in course of his service, and at the time of institution of present writ petition, petitioner had been performing and discharging duties at Gairwara under Suitha Block, District Jaunpur. On 18.05.1981, District Agriculture Officer issued an order asking petitioner to hand over 112 bags of Dy Ammonia Phosphate to Janardan Pathak, who was attached to the District Agriculture Officer without taking any receipt. Petitioner submits that in pursuance of order dated 18.05.1981 passed by District Agriculture Officer, Jaunpur, petitioner handed over 112 bags of Dy Ammonia Phosphate to Mr. Janardan Pathak and receipt was issued in lieu of the same on 29.05.1981. Petitioner was asked to hand over the charge of godown of Gariwara to one Munni Lal, and in this background petitioner submits that as the District Agriculture Officer had not paid the cost of 112 bags of Dy. Ammonia Phosphate taken vide order dated 18.05.1981 and the papers were lying with the District Agriculture Officer, petitioner requested for payment of the amount. Petitioner submits that this annoyed the District Agriculture Officer, and petitioner was placed under suspension. Petitioner has contended that said suspension order was not justifiable and same was challenged before this Court in writ petition No. 5677 of 1982, and thereafter during pendency of said writ petition, services of petitioner had been dispensed with by order dated 30.07.1983. Said order of dispensation of service has been questioned by way of amendment application, which was allowed. This Court on 02.09.1998 dismissed the writ petition of the petitioner and relegated him to the alternative remedy before U.P. Public Services Tribunal . Against the said order Special Appeal No. 893 of 1998 had been filed. The Special Appeal Bench allowed the Special Appeal on 13.11.2002 and Single Judge has been directed to decide the matter on merits on the basis of the affidavits exchanged between parties. 4. Pleadings inter se parties had already been exchanged before passing order by Special Appeal Bench. Against the said order Special Appeal No. 893 of 1998 had been filed. The Special Appeal Bench allowed the Special Appeal on 13.11.2002 and Single Judge has been directed to decide the matter on merits on the basis of the affidavits exchanged between parties. 4. Pleadings inter se parties had already been exchanged before passing order by Special Appeal Bench. Now present writ petition is being finally heard and decided with the consent of the parties. 5. Sri P.K. Srivastava, Advocate, assisted by Sri Amit Srivastava, Advocate, has assailed the validity of decision taken against the petitioner on two grounds : (i) District Agriculture Officer is not appointing authority of the petitioner, as such he had no authority to pass the order of termination, as such order is violative of Article 311 of the Constitution of India; (ii) in the present case, enquiry officer has not conducted any enquiry, whatsoever, as at no point of time after furnishing reply by petitioner, any date, time or place for enquiry was fixed by the enquiry officer for undertaking enquiry, as such this is a case of no enquiry and the decision taken on the basis of the said enquiry is of no consequence and the order dispensing with the service of petitioner based on the same is liable to be quashed. 6. Learned Standing Counsel, Sri J.K. Tiwari, on the other hand, has countered the said submission by contending that appointment letter had been issued by the District Agriculture Officer, as such petitioner is stopped in questioning the validity of the action taken against him by the District Agriculture Officer, who was appointing authority, and coupled with this full fledged opportunity had been afforded to the petitioner before passing the impugned order in question, as such impugned order is liable to be maintained and writ petition is liable to be dismissed. 7. After respective arguments have been advanced, the first question raised by petitioner in respect of authority of District Agriculture Officer to dispense with service is being adverted to Petitioner undertook Subordinate Agricultural Examination held under the Directorate of Agriculture, U.P., wherein petitioner was selected and Joint Director of Agriculture (Administration) on 17.11.1971 allotted him district Raebareli and the District Agriculture Officer, Raebareli pursuant to direction of the Joint Director of Agriculture, issued formal order of appointment and posting to the petitioner. Appointment letter was issued in Grade III SAS (Subordinate Agriculture Service) in the pay scale of Rs.120-6-180-8-220/- plus usual Dearness Allowances as admissible under the Government Orders issued from time to time. Petitioner was thus appointed in the pay scale of Rs.120-220/-. 8. At this juncture, Government Order dated 15.06.1961 is being looked into. "The said G/O/ mentioned the authorities who were the appointing authorities of the various category of employees. Clause (ii) in the heading A-APPOINTING AUTHORITY being relevant is extracted herein below : "The appointing authority in respect of the Group III posts which refer to posts carrying the pay scale the minimum pay of which does not exceed Rs.75/- P.M. will be the district level departmental officers i.e., District Cooperative Societies/District Cooperative Officer, District Agriculture Officer, as the case may be." 9. This particular Government Order has been subject matter of consideration in the case of Jagdish Kant Dubey v. U.P. Public Services Tribunal and others, decided on 20.05.1983, reported in 1983 (1) LCD page 300, and view was taken that so far a post carrying the pay scale the minimum of which does not exceed Rs.75/- in Group III, the District Agriculture Officer was the appointing authority in terms of the said G.O. Dated 15.6.1961. In the case in hand, the minimum scale of pay of the petitioner was Rs.120/- . This being the position, the District Agriculture Officer could not be the appointing authority for a member of M.S.A.S. Group III in the pay scale of Rs.120-6-180-220. Relevant extract of the judgment is being quoted below : "So far a post carrying the pay scale the minimum of which does not exceed Rs.75/- in Group III, the District Agriculture Officer was the appointing authority in terms of the said G.O. Dated 15.6.1961. In the case in hand, the minimum scale of pay of the petitioner was Rs.120/- . This being the position, the District Agriculture Officer could not be the appointing authority for a member of M.S.A.S. Group III in the pay scale of Rs.120-6-180-220. The petitioner was appointed in the pay scale of Rs.120-6-180-220. The District Agriculture Officer was, therefore, not the appointing authority of the petitioner. That is why the order Annexure-3 passed by the District Agriculture Officer states that Jagdish Kant Dubey (petitioner) was appointed. The petitioner was appointed in the pay scale of Rs.120-6-180-220. The District Agriculture Officer was, therefore, not the appointing authority of the petitioner. That is why the order Annexure-3 passed by the District Agriculture Officer states that Jagdish Kant Dubey (petitioner) was appointed. This fact further finds strength from Rule 5 of the Rules regulating appointment to and the conditions of service of the subordinate agriculture service which deals with "Recruitment Authority which reads as under : "Subject to the general control of the Government, recruitment to the service whether in substantive or in officiating vacancies or to temporary posts shall be made by the Director of Agriculture, Uttar Pradesh, provided that he may at his discretion delegate his powers of recruitment to the Principal of the Agricultural College, the Agriculture Engineer or any other officer subordinate to him not lower in rank than a Deputy Director." The recruiting authority under Rule 5 is the Director of Agriculture and if he intended to delegate his powers he could delegate it only to the Deputy Director. Under this Rule also, the District Agriculture Officer would not be the appointing authority. The petitioners appointing authority was therefore, the Deputy Director of Agriculture, Faizabad Region, Faizabad. The impugned order, Annexure No. 7 has been passed by the Plant Protection Officer, Sultanpur. Shri Diwakar Upadhyaya, the present Plant Protection Officer has stated in his counter-affidavit that the District Plant Protection Officer is also the District Level Officer and equivalent in rank to that of District Agriculture Officer. Hence according to him, the District Plant Protection could validly terminate the services of the petitioner, In this connection he has referred to G.O. No. 8378/XII(i)-1973 dated August 27, 1973 by which the authority for appointment of officials of Subordinate Agricultural Service Group III was delegated to the District Level Officers of different branches under the Agriculture set up. The copy of the said G.O. is Annexure- No. 3 to his counter-affidavit. The learned Counsel for the State relying on this G.O. lubmitted that since the Plant Protection Officer was delegated with the powers of the appointment and was, as such, appointing authority of the petitioner at the relevant time. He was competent to pass the order of termination, in view of the G.O. Dated 5.11.1958 Annexure No. 4." 10. The learned Counsel for the State relying on this G.O. lubmitted that since the Plant Protection Officer was delegated with the powers of the appointment and was, as such, appointing authority of the petitioner at the relevant time. He was competent to pass the order of termination, in view of the G.O. Dated 5.11.1958 Annexure No. 4." 10. This particular judgment has been subject matter of interpretation in Special Appeal No. 585 of 1986, State of U.P. v. Chhote Lal and others, as there were conflicting views. The Division Bench took up the matter and concluded as follows: "We are now left to consider the judgments of two learned Single Judges of this Court on account of which reference was made to this Bench. Jagdish Kant Dubeys case (supra) was decided prior to the case of Mahendra Nath (supra). Therefore, this case may be examined first. The process of appointment of Jagdish Kant Dubey was the same as in the case of the two respondents before us. Dubey was approved for temporary appointment by Joint Director of Agriculture (Administration) and he was allotted and given work under the Deputy Director of Agriculture, Faizabad Region, Faizabad. Thereafter, Deputy Director of Agriculture, Faizabad posted him to work under the District Agriculture Officer, Sultanpur. District Agriculture Officer, Sultanpur, thereafter passed the order of appointment. Dubeys service were terminated by Plant Protection Officer, who was an officer equal in rank to the District Agriculture Officer. He preferred claim petition to challenge the order of termination of service, but the same was dismissed and review petition was also rejected. Dubey thereafter approached this Court and the learned Single Judge of this Court allowed the writ petition and quashed the order dated 19.08.1968 holding that the Government Order dated 15.6.1961 did not alter Dubeys appointing authority, inasmuch as he has been in the scale of Rs.120-220. As already noticed, the appointing authority was altered in respect of the posts which carried the scale the minimum of which did not exceed of Rs.75/-. In the case of Dubey, the minimum of the pay scale exceeds Rs. 75/- and therefore obviously, the Government Order dated 15.06.1961 so far as it altered the appointing authority was not applicable to his case. In the case of Dubey, the minimum of the pay scale exceeds Rs. 75/- and therefore obviously, the Government Order dated 15.06.1961 so far as it altered the appointing authority was not applicable to his case. Further the learned Single Judge has noticed in his judgment that District Agriculture Officer had mentioned in his order that Dubey had been appointed by the Deputy Director of Agriculture." 11. Division Bench thus, has approved the judgment of Jagdish Kant Dubey to the extent it proceeds to mention `that where minimum scale of pay was Rs.120/-, the District Agriculture Officer could not be the appointing authority for a member of M.S.A.S. Group III employee in the pay scale of Rs.120-220/-. Thus, the petitioner was appointed by the Joint Director of Agriculture (Administration), who allotted District Agriculture Officer, Raebareli. The judgment quoted above and the Government Order, holding the field, clearly establish that as far as incumbents whose scale of pay was above Rs.75/-, their appointing authority, by no means, was the District Agriculture Officer. At this juncture Government Orders dated 16.05.1969 and the Government Order dated 30.08.1980 are also being looked into. Government Order dated 16.05.1969 deals with suspension of Government servants and proceeds to mention that in the matter of suspension provisions of Article 311 (2) of the Constitution are not attracted and further at the point of time when an authority proceeds to exercise the power of suspension and he has been made appointing authority, then the said authority has got jurisdiction to proceed with the matter. The Government Order dated 30.08.1980 also proceeds to interpret the Government Order dated 5.06.1961. There is clear cut distinction in the Government Order dated 15.06.1961, keeping in view the respective pay scale and the Government Order dated 30.08.1980 only reiterates the position of 15.06.1961. At thus juncture, judgment of Honble Apex Court in the case of State of U.P. v.Chandra Pal Singh, and another, (2003) (3) Supreme 346 is also being looked into. In the said case incumbent was appointed as Assistant Agriculture Inspector Group III by the Director of Agriculture. Order of dismissal had been passed by the said authority and thereafter challenge was made that District Agriculture Officer could not have initiated the disciplinary proceeding. In the said case incumbent was appointed as Assistant Agriculture Inspector Group III by the Director of Agriculture. Order of dismissal had been passed by the said authority and thereafter challenge was made that District Agriculture Officer could not have initiated the disciplinary proceeding. Said contention has been repelled by mentioning that Article 311 (1) of the Constitution does not follow that even initiation or conduct of inquiry proceedings should be by that authority itself which is empowered to dismiss or remove an official under the said Article unless there is an express rule, governing the official requiring it to be so. 12. Now facts of the present case are being adverted to. As already noted above, petitioners appointment was made on the post of M.S.A.S. Group III in the scale of Rs.120-220, and by letter of the Joint Director of Agriculture, he was allotted District Raebreli and the petitioner was asked to report for duty to District Agriculture Officer, Raebareli and the later was authorised to issue formal order of appointment and posting order. Under the Government Order dated 15.06.1961, District Agriculture Officer was authorised to act as appointing authority of the incumbents who were holding the post, carrying the pay scale, minimum of which did not exceed Rs.75/-. As far as petitioner is concerned, he was placed in the scale of Rs.120-220. In terms of Government Order dated 15.06.1961, District Agriculture officer could not be appointing authority of the petitioner, however, he could be controlling authority and being the controlling authority, District Agriculture Officer had authority to place the petitioner under suspension and to initiate disciplinary proceedings against him, but at far as final order dispensing with his services was concerned, the same was to be passed by the appointing authority i.e. Director of Agriculture/ Joint Director of Agriculture/ Deputy Director of Agriculture, as the case may be. Admittedly, in the present case it has not been done so and the order dispensing with the services of petitioner has been passed by the District Agriculture Officer, who was not competent to pass order, not being the appointing authority, as such said order is in violation of Article 311 of the Constitution, which clearly provides that no person who is member of civil service of the Union or State shall be dismissed or removed by an authority subordinate to that by which he was appointed. District agriculture officer is certainly subordinate to the appointing authority of petitioner, as such action is liable to be quashed. 13. Second issue, which has been raised is in respect of enquiry being vitiated, the same is being looked into. Charge sheet had been issued to petitioner and undisputedly, petitioner claims to have submitted reply on two occasions and on third occasion, petitioner has written that he would be submitting his reply before the Court. Such conduct of the petitioner cannot be subscribed, and once proceedings were ongoing, the charged employee was under obligation to co-operate with the enquiry, and vice versa in case there was total failure on the part of the employee to cooperate, then it was always open to the Disciplinary Authority to proceed exparte, in accordance with law. 14. Here, impugned order in question has been perused; it reflects that petitioner has failed to submit reply to the charge sheet,thereafter, Inquiry Officer has proceeded to consider the matter and found all the charges established against him. Honble Apex Court in the case of State of U.P. v. C.S. Sharma, AIR 1968 SC 158 , has taken the view that reasonable opportunity has to be afforded and enquiry should be conducted in a very fair manner by fixing the date, time and place of enquiry. Paragraphs 6, 7, 8, 9 and 10 of the said judgment are being extracted below : "6. The first question is whether this inquiry was made under sub-rule (1) or (3) of Rule 55 of the Civil Services (Classification, Control and Appeal) Rules. It is an admitted fact that Sharma was a temporary employee and therefore his case would fall to be governed by sub-rule (3) of Rule 55 if it could be said that the enquiry which was being made was for a specific fault or on account of his unsuitability for service. Sub-rule (1) of Rule 55 is a general rule for enquiries where the conduct of a person is inquired into for misconduct but sub-rule (3) says that sub-rule shall not apply where it is proposed to terminate the employment of a probationer, or to dismiss, remove or reduce in rank a temporary Government servant for any specific fault or on account of his unsuitability for the service. Sub-rule (3) says that in such cases, the probationer or temporary Government servant concerned shall be apprised of the grounds of such proposal, given an opportunity to show cause against the action to be taken against him, and his explanation in this behalf, if any, shall be duly considered before orders are passed by the competent authority. If the third sub-rule applied, it is obvious that the kind of enquiry made complied with its requirements. The first sub-rule, however, provides for a full-blooded enquiry which is the counter-part of a regular trial : witnesses have to be examined in support of the allegations, opportunity has to be given to the delinquent officer to cross-examine them and to lead evidence in his defence. In our judgment the present case was governed by the first sub-rule and not the third sub-rule. The third sub-rule coals with the unsuitability of an officer for the service or with a charge for any specific fault. This fault means a fault in the execution of his duties and not a misconduct such as taking bribe, etc. which are charges of a more serious nature affecting the character of the individual concerned. The collocation of the words any specific fault or on account of unsuitability for service give the clue of the distinction between the third sub-rule and the first sub-rule. An officer who is, for example, habitually lazy or makes mistakes frequently or is not polite or decorous may be considered unsuitable for the service. Another officer who makes a grievous default in the execution of his work may be charged for the specific individual fault, that is a dereliction or defect in the execution of that duty. Where there is an allegation that an officer is guilty of a misconduct such as accepting bribe or showing favours, the matter is not one of specific fault in the execution of his work but something more. That matter will fall to be governed by the first sub-rule because you cannot charge a man with criminal conduct without affording him adequate opportunity to clear his character. Mr. Aggarwal fairly pointed out that the Government had appointed the enquiring officer to take action under Rule 55 (1) and it is thus quite clear that Government viewed the matter also in this light. 7. Mr. Aggarwal fairly pointed out that the Government had appointed the enquiring officer to take action under Rule 55 (1) and it is thus quite clear that Government viewed the matter also in this light. 7. It, therefore, follows that if the procedure under the first sub-rule had to be followed, adequate opportunity had to be given to Sharma to lead evidence on his own behalf to clear himself of serious charges which were levelled against him and give evidence on his own behalf. It is obvious that he has not been able to lead his defence or to give evidence on his own behalf. The question is whether he has to thank himself or the omission proceeded because of some action on the part of the enquiring officer. Considering the whole matter we are satisfied that the enquiring officer was to blame and we shall now show why we think so. 8. Throughout the enquiry, as late as February 24, 1954 Sharma had again and again given indication that he would lead evidence in his defence. At first he had given a list of three witnesses which he later amplified to four leaving out one from the original list and adding two new names. He had also stated that he wanted to examine himself in his defence." The reamed Commissioner who was holding the enquiry on more than one occasion stated that he would be afforded this opportunity and also that a date would be fixed for the examination of the defence witnesses. It is true that Sharma was playing for time and on the 2nd of February (before the date of hearing came) he put in an application that he would like an adjournment of 20 days before he submitted a final list of witnesses with their addresses. This application was rejected on February 6, but between February 6 and April 8, when the report was made, two long months passed and it was possible for the Commissioner to have fixed a date, on which if he was so minded, Sharma could bring his witnesses in support of his case or tender himself for examination. No action was taken between February 6, 1954 and April 8, 1954 to enable Sharma to lead his defence, if any, in support of his part of the case. No action was taken between February 6, 1954 and April 8, 1954 to enable Sharma to lead his defence, if any, in support of his part of the case. This omission in our judgment was sufficient to vitiate the whole proceeding because no enquiry of this type in which there are charges of a criminal nature, can be said to be properly conducted when the defence of the officer is either frustrated or ruled out. 9. It was submitted by Mr. Agarwal that the witnesses were being summoned by him to clear himself of the charge of owning a car without having the visible means to afford it and this charge was not accepted by the State Government. This is true enough but the State Government came on the scene much later. In so far as the enquiring officer was concerned, he had accepted the allegation against Sharma and even if the original list be considered, Sharma was entitled to lead evidence with regard to the car itself. It is possible that if a date had been fixed, he would, not only have led evidence with regard to the car, but would have brought witnesses to clear himself of other charges, but no such opportunity was clearly afforded to him. Further, before the case closed, the Commissioner had before him a list of four witnesses and fair play demanded that he should have fixed a date and left it to Sharma to procure attendance of his witnesses on that date, but if no date was fixed Sharma was not expected to bring his witnesses day after day in the hope that the Commissioner would examine them any day. The enquiry cannot be said to comply with the elementary principles of natural justice and therefore we have no hesitation in accepting the decision of the High Court that the enquiry was vitiated. 10. We may not omit to state that there was an allegation against the Commissioner that he was biased against Sharma. It does -appear that the Commissioner, in one of his letters, stated that he had heard witnesses and satisfied himself that Sharma was definitely corrupt. This statement of the Commissioner showed that he approached the case with a feeling that Sharma was guilty although the State Government cannot be said to share this bias of the Commissioner. It does -appear that the Commissioner, in one of his letters, stated that he had heard witnesses and satisfied himself that Sharma was definitely corrupt. This statement of the Commissioner showed that he approached the case with a feeling that Sharma was guilty although the State Government cannot be said to share this bias of the Commissioner. We would have said something more about this, if the occasion had demanded this, but as we are upholding the order of the High Court on the ground that no reasonable opportunity was afforded to Sharma to lead his evidence, it is not necessary to say whether an officer in the position of the Commissioner, who on the basis of secret enquiries behind the back of delinquent officer has reached the conclusion that there are good grounds for holding that the officer is corrupt, should himself conduct the enquiry. That matter may be left for consideration in another case." 15. Honble Apex Court in the case of State of U.P. v. Ravindra Nath Chaturvedi and another, 1995 SCC (Labour and Service) 1426, has set aside the order of punishment, where reasonable opportunity was not provided. Relevant extract of the judgment is being quoted below : "1. Leave granted. Heard learned Counsel for the parties. 2. The High Court has set aside the imposition of the penalty on the respondents on the ground that no reasonable opportunity was given to the respondents during the inquiry by the Inquiry Officer. It is also found that no one was examined to prove the case of the State. It would be desirable that an officer who is acquainted with the records may also be examined to prove the documentary evidence and opportunity may be given to the respondents to cross-examine the witnesses or produce any evidence in rebuttal. Thereafter, inquiry will be conducted, the report will be given and copy thereof will be supplied to the respondents. 3. The order of the High Court is accordingly set aside. The Inquiry Officer, if he is still in service, is directed to conduct and complete the enquiry within a period of four months from the date of receipt of this order , if he is not in service, the State is directed to appoint another Inquiry Officer afresh who would do the needful within the said period. 4. The Inquiry Officer, if he is still in service, is directed to conduct and complete the enquiry within a period of four months from the date of receipt of this order , if he is not in service, the State is directed to appoint another Inquiry Officer afresh who would do the needful within the said period. 4. In case of fresh appointment of Inquiry Officer, the State Government is directed to appoint an Inquiry Officer within one month from the date of receipt of this order. After submission of the report by the Inquiry Officer, the State Government is further directed to consider the enquiry report and take appropriate decision within three months thereafter. 5. The appeal is accordingly, allowed with the above directions. No costs." 16. Division Bench of this Court in the case of Subhash Chandra Sharma v. Managing Director, U.P. Co-operative Spinning Mills Federation Ltd. Kanpur, 1999 AWC ,3227, has taken the view that for enquiry, date, time and place has to be fixed. Relevant paragraph 4 of the said judgment is being quoted below : "4. Several points have been raised in the petition, but this petition deserves to be allowed on one ground alone, and it is not necessary to go into the other grounds. In paragraph 5 of the petition, it has been stated that no enquiry was held nor any date for holding the enquiry was intimated to the petitioner nor was any evidence led in the said enquiry. The reply to paragraph 5 of the petition is contained in paragraph 5 of the counter-affidavit. There is no denial in paragraph 5 of the counter-affidavit to the allegation in paragraph 5 of the writ petition that no date for enquiry was fixed nor any evidence led in the said enquiry. All that has been said in paragraph 5 of the counter-affidavit is that in the charge-sheet fifteen days time was given to the petitioner to submit his reply, and thus the date in the enquiry was fixed. In our opinion, this does not mean that the date for the enquiry was fixed. The charge-sheet is Annexure-3 to the writ petition and a perusal of the same shows that no date was fixed for the enquiry in the same nor was any date fixed in the supplementary charge-sheet. In our opinion, this does not mean that the date for the enquiry was fixed. The charge-sheet is Annexure-3 to the writ petition and a perusal of the same shows that no date was fixed for the enquiry in the same nor was any date fixed in the supplementary charge-sheet. Thus, the allegation in paragraph 5 of the writ petition that neither the date for the enquiry was fixed nor evidence led in the same stands unrebutted. In paragraph 5 of the counter-affidavit, it has been alleged that petitioner had asked for some documents, but he was only allowed to see the documents. We are of the opinion this again does not mean that any date for the enquiry was fixed nor was any oral evidence led in the enquiry. In fact it has been admitted in paragraph 5 of the petition that no oral evidence was produced by the management." 17. Division Bench of this Court in the case of Sharad Kumar Verma v. State of U.P. and others, 2006(7) ADJ 165 (LB) : 2006(4) ESC 2534 (All)(LB), 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, can not 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 form 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 as 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 fixe 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." 18. All these judgments quoted above clearly lay down that while undertaking disciplinary proceeding against delinquent employee, date, time and place of enquiry has to be fixed by the Inquiry Officer and charges have to be brought home. Accepting that petitioner has not filed reply to the charge sheet, then also rule of fair play demanded that to substantiate the charges on the basis of evidence undertaken/collected during enquiry, enquiry ought to have been undertaken. In the present case, on the assumption that no reply had been filed by the petitioner, Inquiry Officer proceeded to examine the documents on its own without fixing any date, time or place for hearing for enquiry and found all the charges proved. Procedure which has been adopted clearly violates the principles of natural justice and in fact it is no inquiry in the eye of law and any action based on the same cannot be subscribed. 19. Consequently, writ petition succeeds and is allowed. Impugned order of dismissal is hereby quashed and set aside. Procedure which has been adopted clearly violates the principles of natural justice and in fact it is no inquiry in the eye of law and any action based on the same cannot be subscribed. 19. Consequently, writ petition succeeds and is allowed. Impugned order of dismissal is hereby quashed and set aside. District Agriculture Officer is directed to conclude the enquiry within four months from the date of receipt of a certified copy of this order, and as far as petitioner is concerned, seeing his conduct of non-cooperation, which has been noted by this Court also in the past, as even Counsel has refused to accept copy of charge sheet, he is directed to submit his reply within one month from the date of delivery of judgment. District Agriculture Officer should appoint Inquiry Officer, who shall proceed to conclude the enquiry on day to day basis and after the report is submitted, either this way or that way, further follow-up action be taken accordingly. Entire exercise be concluded preferably within next four months thereafter. 20. No Order as costs. ————