JUDGMENT Hon’ble Anil Kumar, J.—Heard Sri Sharad Pathak, learned counsel for the petitioner and Sri R.K. Chaudhary and Sri Ashutosh on behalf of the opposite parties and learned Standing Counsel. 2. By means of the present writ petition, the petitioner has challenged the order dated 26.04.2003 as contained in Annexure- 1 to the writ petition passed by O.P. No. 3/5. 3. Factual matrix of the present case are that the petitioner who was working as a Driver in the Uttar Pradesh Cooperative Processing & Cold Storage Federation Ltd. (hereinafter referred to as the federation). A notice dated 8.10.2002 was served on him thereby calling his explanation on the following charges : (a) Driving the vehicle in the 1st gear at the speed of 70 Kms per hour. (b) Driving the vehicle in the top gear at the speed of 20 Kms per hour. (3) Minimum use of horn during driving the vehicle. (4) Could not ascertain that puncture caused in the tyres of the car. (5) Could not understand the dipper signal given by the truck driver etc. 4. After receiving the notice, the petitioner submitted his reply on 9.10.2002 denying the charges leveled on him by notice dated 08.10.2002. Thereafter, the petitioner was suspended by order dated 19.10.2002 psssed by O.P. No. 3/5 and on the same day a charge-sheet was also issued by which five charges were leveled against him. Further the petitioner submitted his reply on 25.11.2002 denying the charges leveled on him. 5. Moreover, as per the averments made by the petitioner in the writ petition, he proceeded on medical leave. Thereafter no time, date and place has been fixed for conducting the inquiry proceedings. However, the Inquiry Officer on the basis of ex-parte inquiry, the Inquiry Officer submitted inquiry report dated 7.12.2002. Subsequently, 13.12.2002, a notice has been published in the daily Newspaper “Swantratra Bharat” requiring the petitioner to submit his reply within 15 days as to explain that why he should not be dismissed from services and 10.1.2003 was fixed for personal hearing in the matter in question. Lastly, by order dated 26.4.2003 as contained in Annexure-1 to the writ petition passed by O.P. No. 3/5 petitioner was dismissed from service. Hence present writ petition. 6. Lastly, by order dated 26.4.2003 as contained in Annexure-1 to the writ petition passed by O.P. No. 3/5 petitioner was dismissed from service. Hence present writ petition. 6. Sri Sharad Pathak, learned counsel for the petitioner while assailing the impugned order which is under challenge in the present writ petition submits that after submitting the reply to the charge-sheet dated 22.10.2002 neither any date time place for conducting the inquiry was fixed nor petitioner has been informed in this regard, entire inquiry proceeding was an ex-parte one and taken place behind the back of the petitioner. He further submits that the mala fide and extreme arbitratines on the part of opposite party No. 5 can be judged only from this fact that on 26.12.2002 notice was published in the newspaper namely, “Swatantra Bharat” calling upon the petitioner to submit his reply within 15 days. The period of 15 days expires on 10.1.2003, whereas in the same notice 10.1.2003 the date was fixed for personal hearing. It is highly arbitrary and illegal and shows the hurriedness in the mind of opposite party No. 5 that before expiry of 15 days notice period a date has been fixed for personal hearing. However, since the notice was published in a newspaper like “Swatantra Bharat” which is not widely circulated and, therefore, the petitioner could not know about the said notice and could not submit his reply to the said notice and also could not be present for personal hearing on 10.1.2003. So, the impugned action taken on the basis of inquiry report thereby dismissing the petitioner from services by order dated 26.4.2003 is illegal, arbitrary and in violation of principal of natural justice. 7. Learned counsel on behalf of the respondent in rebuttal submits that in the present case after submitting of the reply to the charge-sheet the petitioner himself remain absent and did not take part in the inquiry proceedings as such the same was conducted ex-parte, accordingly, the inquiry report was submitted by the Inquiry Officer on 7.12.2002 thereafter the notice was published in the daily newspaper “Swatantra Bharat” on 13.12.2003. So, an opportunity was also given to the petitioner to submit his reply that why his services should not be dismissed. So, an opportunity was also given to the petitioner to submit his reply that why his services should not be dismissed. However, in spite of the said facts, the petitioner neither avail the said opportunity nor submitted his reply, as such order dated 24.4.2003 was passed by which he was dismissed from services. In these circumstance, the order which is under challenge is perfectly valid and needs no interference. 8. I have heard learned counsel for the parties and perused the record. 9. Admittedly, in the present case the petitioner who was working on the post of driver in the Federation was placed under suspension by order dated 19.10.2002, and thereafter the charge-sheet was served on him on 19.10.2002 to which the petitioner submitted his reply on 25.11.2002 thereafter no time, date place has been fixed for conducting inquiry in the present case and straightway an ex-parte inquiry has been conducted against the petitioner and on the basis of the same, Inquiry Officer submitted his report and taking into consideration the order of dismissal dated 26.4.2003 was passed by O.P. No. 3/5. Further from the perusal of the impugned order, the said fact is crystal clear that no time, date and place was fixed for conducting the inquiry in the present case as after submitting the reply by the petitioner to the charge-sheet by which certain charges were leveled to the petitioner, the Inquiry Officer had scrutinized the matter in question and submitted his report that the charges are proved against the petitioner. 10. In view of the above said facts, it is clear that no date, time and place for conducting inquiry has been fixed. It is well settled proposition of law that regular inquiry means opportunity to submit reply to charge-sheet and also to lead evidence in defence. Even if the delinquent employee does not cooperate , it shall always be incumbent on the inquiry officer to record oral evidence to substantiate the charges. If the enquiry is not done in the manner as stated herein above then in that circumstances the enquiry conducted is in utter disregard to the principles of natural justice and the impugned order passed on the basis of enquiry report, suffers from substantial illegality and violative of principles of natural justice and the order of punishment vitiates. 11. If the enquiry is not done in the manner as stated herein above then in that circumstances the enquiry conducted is in utter disregard to the principles of natural justice and the impugned order passed on the basis of enquiry report, suffers from substantial illegality and violative of principles of natural justice and the order of punishment vitiates. 11. In the case of Radhey Shayam Gupta v. U.P. State Agro Industries Corporation Limited, (1999) 2 SCC 21 Hon’ble Supreme Court has held that : “But in cases where the termination is preceded by an enquiry and evidence is received and findings as to misconduct of a definitive nature are arrived at behind the back of the officer and where on the basis of such a report, the termination order is issued, such an order will be violative of the principles of natural justice inasmuch as the purpose of the enquiry is to find out the truth of the allegations with a view to punish him and not merely together evidence for a future regular departmental enquiry. In such cases, the termination is to be treated as based or founded upon misconduct and will be punitive . These are obviously not cases where the employer feels that there is a mere cloud against the employees conduct but are cases where the employer has virtually accepted the definitive and clear findings of the enquiry officer, which are arrived at behind the back of the employee-even though such acceptance of findings is not recorded in the order of termination. That is why the misconduct is the foundation and not merely the motive in such cases”. 12. In the case of Gyan Das Sharma v. State of U.P. and others, 2009 (27) LCD 926 this Court has held that : “In the present case, undoubtedly, no oral evidence was recorded during the course of inquiry proceedings. It is incumbent on the inquiry officer to record oral evidence to substantiate charges. Documents on record should have been proved by cogent reasons by recording finding of fact on merit by the inquiry officer but the same has not been done. The inquiry has been conducted in utter disregard to principle of natural justice. Since the impugned order has been passed on the basis of the inquiry report which suffers from substantial illegality and violative of principles of natural justice, the order of punishment vitiates . The inquiry has been conducted in utter disregard to principle of natural justice. Since the impugned order has been passed on the basis of the inquiry report which suffers from substantial illegality and violative of principles of natural justice, the order of punishment vitiates . The writ petitioner deserved to be allowed.” 13. Further the Division Bench of this Court in the case of Lucknow Kshetriya Gramin Bank and others v. Shri Devendra Kumar Upadhyay, 2009 (27) LCD 990 has held that : “In case an employee is charged of misconduct and charge-sheet is issued, it is to contain precise and specific charges along with the evidence which the department wants to rely upon, in proving the charge and the charges along with the copy of document should be provided to the delinquent. After asking the reply from the delinquent, the enquiry is to proceed where he charges are to be proved by the department concerned, on the basis of the evidence of the evidence which the department chooses to produce, oral as well as documentary. The delinquent also has to be provided, adequate and reasonable opportunity to lead evidence in rebuttal, may be oral or documentary or both. It is on the basis of evidence so led and the material available on record that the Inquiry Officer has to apply his mind to find out whether the charge levelled against him stands proved or not.” 14. In the present case, neither inquiry was held nor any evidence was led and the witnesses were examined only on the basis of the reply submitted by the petitioner, the Inquiry Officer had submitted his report and the same was the basis for passing of the impugned order of dismissal. As such the order under challenge is in contravention to the principle of natural justice and cannot sustain. 15. Needless to mention herein that in the case of Canara Bank and others v. Debasis Das and others, (2003) 4 SCC 557 in which Hon’ble Supreme Court has held that whenever an order is struck down an invalid being in violation of principles of natural justice, there is no final decision of the case and fresh proceedings are left upon. All that is done is to vacate the order assailed by virtue of its inherent defect, but the proceedings are not terminated. 16. All that is done is to vacate the order assailed by virtue of its inherent defect, but the proceedings are not terminated. 16. Further, Hon’ble Supreme Court in the case of NTC (WBAB&O) Ltd. v. Anjan K. Saha, (2004) 7 SCC 581 after taking into consideration the Constitutional Bench in the case of Managing Director, ECIL v. B. Karunakar, (1993) 4 SCC 727 has held as under : “The language of clause 14(4)(c) of the Model Standing Orders is not mandatory. In any case, non-compliance therewith cannot be held to be more vitiating factor than non supply of enquiry report . If the Constitution Bench of the Supreme Court in cases of non supply of enquiry report directs the procedure to be adopted by allowing the employers to restart the enquiry from the stage of supply of enquiry report without reinstating the employee, why such a course should not be directed to be adopted where the other grievance of the employee is denial of opportunity to show cause against proposed penalty? When the Court can direct a fresh enquiry from the stage of supply of enquiry report the next step in the enquiry of giving opportunity against the proposed penalty can also be directed to be taken. After the fresh enquiry is over from the stage of supply of enquiry report, the employee can be granted opportunity against proposed penalty in terms of clause 14(4)(c) of the Model Standing Orders. Consequential order, if any passed, shall abide the final result of the proceedings . As held in the case of B. Karunakar, (1993) 4 SCC 727 if the employee is cleared of the charges and is reinstated , the disciplinary authority would be at liberty to decide according to law how it will treat the period from the date of dismissal till the period of reinstatement and the consequential benefits.” 17. In view of the above said facts, the order of dismissal dated 26.04.2003 as contained as Annexure-1 to the writ petition passed by O.P. No. 3/5 is set aside. The matter is remitted back to the Disciplinary Authority to proceed with inquiry in accordance with law from the stage of submitting the reply to the charge-sheet by the petitioner. The petitioner will be reinstated in service but he is not entitled for any back wages. 18. The matter is remitted back to the Disciplinary Authority to proceed with inquiry in accordance with law from the stage of submitting the reply to the charge-sheet by the petitioner. The petitioner will be reinstated in service but he is not entitled for any back wages. 18. It is further provided that the Disciplinary Authority may conclude the matter in question and take final decision expeditiously. 19. With the above observation the writ petition is allowed. ————