JUDGMENT Hon’ble P.K.S. Baghel, J.—The petitioner is a Junior Engineer. He has filed this writ petition aggrieved by the order of the Director/Chief Engineer, Rural Engineering Services, dated 8.1.2008 whereby punishment of the recovery of an amount of Rs. 56,526.87, withholding of two annual increments and making two censured entries have been made. His appeal has also been rejected by the Principal Secretary. Both the orders impugned have been annexed as Annexures-1 and 2 respectively. 2. The short facts leading to the present writ petition are the petitioner was initially appointed as Junior Engineer in Rural Engineering Services, in November 1987. While he was posted as Junior Engineer at Siddartha Nagar in the year 2003 he was subjected to disciplinary proceedings. The disciplinary proceedings were initiated in terms of the U.P. Government Servants (Discipline and Appeal) Rules, 1999 (hereinafter referred to as 1999 Rules). A charge-sheet was issued to him on 14.7.2004 (A copy of which is annexed as Annexure-3 to the writ petition) wherein one of the charge was that on 10.12.2002 the petitioner deposited 80 drums Bitumen on the main road adjoining the Central Stores, Siddartha Nagar without any information to the Store Junior Engineer. Out of 80 drums of Bitumen 25 drums were stolen on 17.1.2003. Thus the petitioner was charged for the negligence. The petitioner submitted his reply to the charge-sheet where he denied the charges made against him. The Enquiry Officer found him guilty and a show-cause notice was issued to him on 3rd September, 2007 (a copy of which is annexed as Annexure-6 to the writ petition). The petitioner submitted his reply to the show-cause notice. However, the Disciplinary Authority was not satisfied and the punishment mentioned herein above was imposed on him. 3. Aggrieved by the said order the petitioner had filed a writ petition in this Court. However, the writ petition was dismissed by means of order dated 5.2.2008 on the ground of alternative remedy. Thereafter the petitioner filed an Appeal before the State Government in terms of the U.P. Government Servants (Discipline and Appeal) Rules, 1999. (A copy of ground of Appeal is annexed as Annexure-10 to the writ petition). The said Appeal was also rejected by the State Government. 4. I have heard learned counsel for the petitioner Sri U.N. Sharma assisted by Sri Shrikrishana Shukla and learned Standing Counsel. (A copy of ground of Appeal is annexed as Annexure-10 to the writ petition). The said Appeal was also rejected by the State Government. 4. I have heard learned counsel for the petitioner Sri U.N. Sharma assisted by Sri Shrikrishana Shukla and learned Standing Counsel. Learned counsel for the petitioner Sri Sharma has submitted that the entire disciplinary proceeding is vitiated on the ground of violation of principles of natural justice as the enquiry report on which the disciplinary authority has placed reliance was obtained behind the back of the petitioner ex parte without any notice or knowledge of the petitioner. He has further pointed out that in the earlier enquiries petitioner was not found guilty. However, the Director/Chief Engineer by means of letter dated 10.5.2007 had asked to ignore the earlier report and a fresh report was called for. Sri Sharma further submitted that no date was fixed for the enquiry and the entire enquiry has been conducted without any intimation of the date and place of the enquiry. Sri Sharma has relied on the judgment of the Apex Court passed in Kulwinder Singh Gill v. State of Punjab, 1991 Supp. (1) SCC 504; Jagdamba Prasad Shukla v. State of U.P and others, (2000) 7 SCC 90 ; Mohd. Younus Khan v. State of U.P. and others, (2010) 10 SCC 539 and a Judgment of learned Single Judge passed by this Court in Ashok Kumar Sagar v. High Court of Judiciature at Allahabad (MANU/UP/0782/2011) decided on 20.4.2011. 5. Learned Standing Counsel has submitted that the petitioner has been given full opportunity as a charge-sheet was issued to him and under Rule 9 of the U.P. Government Servants (Discipline and Appeal) Rules, 1999 the Disciplinary Authority has power to order a fresh enquiry. In the present case the Disciplinary Authority has exercised his power under Rule 9 and he asked for a fresh enquiry report. 6. I have considered the rival submissions of the learned counsel for the petitioner and learned standing counsel. The order of the Disciplinary Authority is cryptic and no reason has been given in the order only conclusion has been mentioned. Aggrieved by the order of the disciplinary authority the petitioner filed an appeal wherein he has specifically raised the issue that the enquiry was ex parte, unilaterally and without giving any opportunity. The order of the Disciplinary Authority is cryptic and no reason has been given in the order only conclusion has been mentioned. Aggrieved by the order of the disciplinary authority the petitioner filed an appeal wherein he has specifically raised the issue that the enquiry was ex parte, unilaterally and without giving any opportunity. The ground No. 8, 9 and 12 of his Ground of Appeal, so far material for the present controversy is set out below : “That the said enquiry report is wholly illegal, arbitrary and in violation of principle of natural justice in so far as the enquiry report has been prepared ex parte unilaterally without giving the appellant any opportunity of appearing in the enquiry proceedings and without issuing any charge-sheet to the appellant and without calling upon the appellant to submit his written statement to the charge-sheet or to express his desire for cross-examining the witnesses or to produce evidence in defence. The appellant was also not given any copy of enquiry report dated 11.3.2007 and the order dated 22.3.2007 passed by the Executive Engineer Siddhartha Nagar or the final report submitted by the police in the matter or the letter of the Executive Engineer dated 20.6.2007 and the document accompanying with the said letter which have been relied upon by the Inquiry Officer and thus the enquiry has been conducted in violation of Rule 7 of the Rules. That in view of the matter the appellant has not been intimated any date time or place of enquiry and even the appointment of the Inquiry Officer have not been intimated or informed to the appellant and the enquiry proceedings have been conducted unilaterally ex parte and behind the back of the appellant. That it is noteworthy that the appellant has not been given any notice or opportunity of hearing of any other enquiry and all the reports referred to in the enquiry report are unilateral ex parte and prepared behind the back of the appellant without participation of the appellant at any stage.” 7. A perusal of the order of the State Government Annexure-1 to the writ petition would go to show that the appellate authority had not adverted to the issue raised by the petitioner. A perusal of the order of the State Government Annexure-1 to the writ petition would go to show that the appellate authority had not adverted to the issue raised by the petitioner. In the writ petition also the petitioner has stated in paragraphs 16 and 17 that the enquiry was ex parte and behind the back of the petitioner without his knowledge. The reply to the said paragraphs have been given in the counter-affidavit 11 clubbing paragraph 15, 16, 17 and 18 together vague and evasive reply has been given. In paragraphs 28 and 29 of the writ petition petitioner has again reiterated this fact and in reply to it in the counter-affidavit in paragraph 14 again evasive reply has been given. From the pleadings of the case and perusal of the grounds of appeal it is manifestly clear that the petitioner was not given proper opportunity in the enquiry. 8. The order of the Disciplinary Authority, as stated above, it totally cryptic and non-speaking. Appellate Authority has also not considered the various grounds taken by the petitioner in his appeal. The Appellate Authority has only affirmed the order of the Disciplinary Authority without adverting the issues raised by the petitioner. 9. Apart from the aforesaid fact, from perusal of the enquiry report, the order of the Disciplinary Authority and the Appellate Authority it is manifestly clear that no oral evidence was adduced by the Department in the disciplinary proceedings and the Inquiry Officer had only referred some letters and communications of the officials as an evidence to hold the petitioner guilty. The Department has not examined any witness in support of the charge. It was the duty of the Department to prove the charges. From perusal of the aforesaid orders it also transpires that no date and place has been fixed by the Inquiry officer. This Court has held that in the case of ex parte enquiry it is the duty of the Department/Employer to prove charges mentioned in the charge-sheet. 10. In the present case the respondents have issued a show-cause notice dated 14.7.2004 purported to be under Rule 10. The said Rule deals with the procedure for imposing minor penalties. However, later on, on 14.7.2007 and Enquiry Officer was appointed and a regular enquiry has been conducted. 10. In the present case the respondents have issued a show-cause notice dated 14.7.2004 purported to be under Rule 10. The said Rule deals with the procedure for imposing minor penalties. However, later on, on 14.7.2007 and Enquiry Officer was appointed and a regular enquiry has been conducted. This fact is also evident from a show-cause notice dated 3rd September, 2007 (Annexure-6 to the writ petition) wherein enquiry report has been sent to the petitioner and his reply was sought within 14 days. The show-cause notice has been issued in terms of Rule 9 Sub. clause 4. However, after considering the reply the disciplinary authority inflicted minor punishment in terms of the Rule 3 of the 1999 Rules. 11. A perusal of the enquiry report would indicate that the Enquiry Officer has relied only on the documentary evidence. No witness was called to prove those documents neither any oral evidence was adduced by the Department as stated above. Rule 7 of the 1999 Rules gives the detailed procedure for imposing major penalties. 12. Once an Enquiry Officer was appointed and full fledged enquiry was held it was obligatory on the part of the disciplinary authority to follow procedure laid down under Rule 7 of 1999 Rules. As initially the enquiry was initiated for imposing minor penalty but later on a regular enquiry was held and as such irrespective of the punishment imposed on the petitioner, the procedure laid down for regular enquiry for major punishment should have been followed. 13. A Division bench of this Court in case of Surya Bhan Singh v. U.P. Lok Sewa Adhikaran and others, 2008 (1) AWC 623 (in para 8) has held as follows : “Even in a case where only documentary evidence is to be relied upon for proving the charges, it cannot be said that such documents need not be proved at all, may be that rigour of proof, as is required in the criminal trial are not needed but some sort of proof is necessary to attach authenticity to such document. While doing so, it cannot be lost sight of that the delinquent has every right to appear before the Enquiry Officer and to bring to his notice that the documentary evidence which is being made the basis of the charges cannot be relied upon for very many reasons ; for example, the said record/ documentary evidence is not admissible in law or for any other reason, such documentary evidence could not have been looked into and if such a documentary evidence is shown to the petitioner, he may adduce some evidence to rebut such documentary evidence and prove that the documentary evidence adduced by the department is not worthy of any reliance. Merely because the department was of the view that the charges are based on documentary evidence and, therefore, there was no necessity to either prove those documents/record or to give any opportunity to the petitioner in the enquiry proceedings cannot be said to be correct approach, according to law.” 14. The same law has been laid down in Subhash Chandra Sharma v. Managing Director and another, 2000(1) UPLBEC 541 . The relevant part of the judgment is quoted hereunder below : “The Court also held that in the enquiry witnesses have to be examined in support of the allegations, and opportunity has to be given to the delinquent to cross-examine these witnesses and to lead evidence in his defence. In Punjab National Bank v. AIPNBE Federation. AIR 1960 SC 160 (vide para 66), the Supreme Court held that in such enquiries evidence must be recorded in the presence of the charge-sheeted employee and he must be given an opportunity to rebut the said evidence. The same view was taken in A.C.C. Ltd. v. Their Workmen, 1963 II LLJ 396, and in Tata Oil Mills Co. Ltd. v. Their Workmen. 1963 II LLJ 78 SC. Even if the employee refuses to participate in the enquiry, the employer cannot straightaway dismiss him, but he must hold an ex parte enquiry where evidence must be led vide Imperial Tobacco Co, Ltd. v. its workmen. AIR 1962 SC 1348 , Uma Shanker v. Registrar. 1992 (651 FLR 674 All).” 15. 1963 II LLJ 78 SC. Even if the employee refuses to participate in the enquiry, the employer cannot straightaway dismiss him, but he must hold an ex parte enquiry where evidence must be led vide Imperial Tobacco Co, Ltd. v. its workmen. AIR 1962 SC 1348 , Uma Shanker v. Registrar. 1992 (651 FLR 674 All).” 15. The Supreme Court in the case of Ministry of Finance and another v. S.B. Ramesh, AIR 1998 SC 853 , has emphasized that in case of disciplinary proceedings if Enquiry Officer relies on the documents then those documents should be proved in accordance with law and any inference drawn from the documents which were not proved in accordance with law would be illegal and opposed to law. 16. The Apex Court in Kulwant Singh Gill v. State of Punjab, JT 1990 (4) SC 70, has held : “Obviously, the disciplinary authority felt that the enquiry into minor penalty is not necessary and adhering to the principles of natural justice issued the show-cause notice and on receipt of the reply from the delinquent officer passed the impugned order imposing penalty thinking it to be a minor penalty. If it is considered, as stated earlier, that it would be only a minor penalty, the procedure followed certainly meets the test of the principles of natural justice and it would be a sufficient compliance with the procedure. In view of the finding that the impugned order is a major penalty certainly then a regular enquiry has got to be conducted and so the impugned order is clearly illegal. The Trial Court rightly granted the decree. The judgment and the decree of the High Court is vitiated by manifest illegality. At this distance of time it is not expedient to direct an enquiry under rules 8 and 9 of the Rules. The appeal is accordingly allowed and the judgment and decree of the High Court is set aside and that of the trial Court is restored but in the circumstances without costs.” 17. The same view has been taken by the Supreme Court in the case of Jagdamba Prasad Shukla v. State of U.P. and others, JT 2000 (9) SC 457. The appeal is accordingly allowed and the judgment and decree of the High Court is set aside and that of the trial Court is restored but in the circumstances without costs.” 17. The same view has been taken by the Supreme Court in the case of Jagdamba Prasad Shukla v. State of U.P. and others, JT 2000 (9) SC 457. In the background of the aforesaid facts I am of the considered view that the disciplinary proceedings has vitiated, as the procedure laid down in 1999 Rules has not been followed and the petitioner has not been given appropriate opportunity of hearing. 18. Orders dated 17.4.2008 (Annexure-1 to the writ petition) passed by the respondent No. 1 and the order dated 8.1.2008 (Annexure-2 to the writ petition) passed by the respondent No. 2 are hereby set aside. 19. Respondent No. 2 is directed to hold a fresh enquiry after giving fullest opportunity of hearing to the petitioner in the light of procedure laid down under the U.P. Government Servants (Discipline and Appeal) Rules, 1999. 20. With the above observations and order, the writ petition is finally disposed of. ——————