JUDGMENT Hon’ble B. Amit Sthalekar, J.—Supplementary rejoinder-affidavit filed today is taken on record. 2. This writ petition has been filed by the petitioner seeking quashing of the order dated 22.6.2004 by which the petitioner was removed from the post of Conductor and the Appellate order dated 21.9.2004 rejecting the appeal of the petitioner. 3. The facts of the case, in brief, are that while working on the post of Conductor in the UPSRTC, the petitioner was issued a charge-sheet dated 25.2.2003 by the Assistant Regional Manager, Taj Depot District Agra wherein it was alleged that the petitioner had remained absent from duty for a considerable period of time. It appears that on 30.3.2003 a fresh charge-sheet was issued to the petitioner by the Regional Manager, Taj Depot Agra. An enquiry officer was appointed on 30.9.2003 and the first date of enquiry was fixed on 10.2.2004 at 11 a.m. It is further the case of the petitioner that a show-cause notice was issued to him on 29.1.2004 and thereafter the services of the petitioner were terminated by the order dated 22.6.2004. Aggrieved the petitioner preferred an departmental appeal which too was rejected by the order dated 22.9.2004. In paragraph 8 of the writ petition it is stated that he was suffering from T.B. and a medical certificate was also issued by the Chief Medical Officer, Agra advising the petitioner rest from 30.3.2004 to 30.6.2004 and as such he could not appear before the enquiry officer. 4. When the matter was taken up earlier, this Court by its order dated 2.12.2011 had directed the petitioner to file a supplementary affidavit bringing on record the copy of the enquiry report. By a further order dated 26.4.2012 this Court had directed the UPSRTC to supply a copy of the enquiry report to the learned counsel for the petitioner. In pursuance of the direction of this Court an affidavit has been filed on 13.5.2012 and a copy of the enquiry report has been filed as Annexure SCA-I. 5. I have heard Shri Pulak Ganguly, learned counsel for the petitioner, Shri N.N. Verma holding brief of Shri V.K. Singh learned counsel for the respondent Nos. 2 and 3 and the learned standing counsel. 6. I have heard Shri Pulak Ganguly, learned counsel for the petitioner, Shri N.N. Verma holding brief of Shri V.K. Singh learned counsel for the respondent Nos. 2 and 3 and the learned standing counsel. 6. From a perusal of the enquiry report, which is at page 6 of the second supplementary counter-affidavit it will be seen that the contents of the charges against the petitioner have been outlined and it has been stated that the petitioner was absent from duty on the following dates: MONTHS WORKING DAYS July, 2002 13 days August, 2002 24 days September, 2002 16 days October, 2002 12 days November, 2002 9 days December, 2002 4 days. 7. It is also stated that the enquiry was fixed for 8.8.2003, 8.9.2003, 23.9.2003, 1.10.2003, 12.5.2003 and lastly on 31.12.2003 but the petitioner did not appear in the enquiry but sent a letter stating that charge-sheet which had been issued to him earlier, had been lost and therefore a copy of the charge-sheet may be supplied to him. Accordingly by a letter dated 30.9.2003 a copy of the charge-sheet dated 30.3.2003 was supplied to the petitioner. Recording all these findings the enquiry officer has concluded that since the petitioner did not submit any reply to the charge-sheet and also did not participate in the enquiry, therefore, he has nothing to say in his defence and from his conduct it is, therefore, clear that the charges stand proved. 8. The Supreme Court in the case of State of U.P. v. Saroj Kumar Sinha, (2010) 2 SCC 772 , has held as follows: “26. The first inquiry report is vitiated also on the ground that the inquiry officers failed to fix any date for the appearance of the respondent to answer the charges. Rule 7 (x) clearly provides as under : “7.(x) Where the charged Government servant does not appear on the date fixed in the inquiry or at any stage of the proceeding inspite of the service of the 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 absence of the charged Government servant.” 27. In such a case the inquiry officer shall record the statement of witnesses mentioned in the charge-sheet in absence of the charged Government servant.” 27. A bare perusal of the aforesaid sub-rule shows that when the respondent had failed to submit the explanation to the charge-sheet it was incumbent upon the inquiry officer to fix a date for his appearance in the inquiry. It is only in a case when the Government servant despite notice of the date fixed failed to appear that the inquiry officer can proceed with the inquiry ex parte. Even in such circumstances it is incumbent on the inquiry officer to record the statement of witnesses mentioned in the charge-sheet. Since the Government servant is absent, he would clearly lose the benefit of cross-examination of the witnesses. But nonetheless in order to establish the charges the Department is required to produce the necessary evidence before the inquiry officer. This is so as to avoid the charge that the inquiry officer has acted as a prosecutor as well as a judge. 28. An inquiry officer acting in a quashi-judicial authority is in the position of an independent adjudicator. He is not supposed to be a representative of the department/disciplinary authority/Government. His function is to examine the evidence presented by the Department, even in the absence of the delinquent official to see as to whether the unrebutted evidence is sufficient to hold that the charges are proved. In the present case the aforesaid procedure has not been observed. Since no oral evidence has been examined the documents have not been proved, and could not have been taken into consideration to conclude that the charges have been proved against the respondents. 29. Apart from the above, by virtue of Article 311(2) of the Constitution of India the departmental enquiry had to be conducted in accordance with the rules of natural justice. It is a basic requirement of the rules of natural justice that an employee be given a reasonable opportunity of being heard in any proceedings which may culminate in punishment being imposed on the employee.” 9. A Division Bench of this Court in the case of Mahesh Narain Gupta v. State of U.P., 2011(5) ADJ 177 (DB), has held as follows: “14. In all 19 charges were mentioned in the charge-sheet. A Division Bench of this Court in the case of Mahesh Narain Gupta v. State of U.P., 2011(5) ADJ 177 (DB), has held as follows: “14. In all 19 charges were mentioned in the charge-sheet. Although in the charge-sheet certain evidence in support of the charges are shown but perusal of the Enquiry Officer’s report dated 18.3.2008 which has been pressed for awarding punishment to the petitioner, makes it clear that no evidence whatsoever was collected/recorded by the Enquiry Officer to get those charges proved. Report of the Enquiry Officer is of two pages and just after narrating the facts that letters were sent but the petitioner did not respond and filed any evidence it has been concluded that all the charges against the petitioner (Charges 1 to 19) are found to be proved.” 10. From the above legal position enunciated by the Supreme Court, it is clear that the charges are framed against an employee by the department through a charge-sheet and primary responsibility of proving the charge/charges against the Government servant lies upon the department. If a Government servant does not appear before the enquiry deliberately or otherwise the charges against him have to be proved unless the Government servant in so many words admits the charge against him. 11. In the present case in the charge-sheet the relied upon document was the report submitted by one Shri Mahesh Chandra Kamal, Sr. Station Officer, Taj Depot Agra. In the enquiry this report has been made the basis of bringing home the findings of guilt against the petitioner. However, what was stated in the said report or what was the material on the basis of which that report was submitted or the documents which were taken into consideration for writing that report have not been disclosed in the enquiry at all. Even the author of the said report namely, Shri Mahesh Chandra Kamal has not been examined in the enquiry as witness on behalf of the department. 12. The Supreme Court in the case of Roop Singh Negi v. Punjab National Bank, (2009) 2 SCC 570 , has held in paragraph 14 as follows: “14. Indisputably, a departmental proceeding is a quasi-judicial proceeding. The enquiry officer performs a quasi-judicial function. The charges levelled against the delinquent officer must be found to have been proved. 12. The Supreme Court in the case of Roop Singh Negi v. Punjab National Bank, (2009) 2 SCC 570 , has held in paragraph 14 as follows: “14. Indisputably, a departmental proceeding is a quasi-judicial proceeding. The enquiry officer performs a quasi-judicial function. The charges levelled against the delinquent officer must be found to have been proved. The enquiry officer has a duty to arrive at a finding upon taking into consideration the materials brought on record by the parties. The purported evidence collected during investigation by the investigating officer against all the accused by itself could not be treated to be evidence in the disciplinary proceeding. No witness was examined to prove the said documents. The management witnesses merely tendered the documents and did not prove the contents thereof. Reliance, inter alia, was placed by the enquiry officer on the FIR which could not have been treated as evidence.” 13. As per the law laid down by the Supreme Court it is incumbent upon the enquiry officer to have discussed the report of the Sr. Station Officer, Taj Depot, Agra and the documents relied upon while writing the said report. The author of the document was also required to have been examined in the enquiry. It is no defence to the respondents to bring home a finding of guilt against the petitioner merely on the ground that the petitioner did not participate or did not submit his defence reply to the charge-sheet. 14. In view of the above facts and circumstances of the case and the legal position settled by the Supreme Court, this writ petition deserves to be allowed. Accordingly the writ petition is allowed and the impugned order dated 22.6.2004 and 21.9.2004 are quashed. The enquiry officer shall proceed to pass fresh order after taking into consideration the relied upon document and after discussing the material on the basis of which such report has been prepared by Shri Mahesh Chandra Kamal, Sr. Station Officer, Taj Depot, Agra. This exercise shall be completed by the respondent No. 3-Assistant Regional Manager, Taj Depot, Agra within a period of two months from the date a certified copy of this order is received by him. 15. There shall be no order as to cost. ——————