JUDGMENT By the Court.—Heard counsel for the parties and perused the record. By means of this petition, the petitioner has prayed for the following relief : I. issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 21.6.2005 passed by respondent No. 1. II. issue a writ, order or direction in the nature of mandamus commanding and directing the respondents to pay the salary to the petitioner regularly month to month, and III. issue any other writ, order or direction which this Hon. Court may deem fit and proper in the circumstances of the case. 2. Brief facts as culled out from from are that the petitioner while posted as Assistant Commissioner, Trade Tax, was served with three charge-sheets, first dated nil March, 2000, second dated 16.5.2001 and the last dated nil, July 2001. 3. The first charge-sheet basically states that petitioner granted trade tax registration to M/s. Pragya Enterprises, Fatehpur in the year 1999 without making proper enquiry about the whereabouts of the dealer. He gave away 67 number of form 31 to business persons on various dates between 2.9.1999 to 24.12.1999 without ensuring and enquiring that the firm was paying desired amount of tax in its returns. 4. The second charge-sheet contains the charge that in the year 1997 while posted at Fatehpur, the petitioner graned trade tax registration to three firms i.e. M/s. Agrawal Traders, Fatehpur, M/s. B.M. Steel Traders, Fatehpur and M/s. R.S. Trading Co., Fatehpur. On enquiry on 29.12.1998, no business activity was found. For the period April 1997 to July 1997 and January 1998 to July 1998, M/s. Agrawal Trader was issued 1185 form 31 and 775 form C, M/s. R.S. Trading Co. was issued 775 form 31 and 75 form C, and M/s. B.M. Steel Traders was issued 810 form 31 and 25 form C. Another firm Gupta Traders was also issued 425 form 31 during this period. The petitioner did not check the records/monthly returns properly before issuing these forms to ensure that the firm does not misuse these forms. These firms did not obtain any forms during the period September 1997 to December 1997. It is also alleged that Moble squad intercepted and sized the goods of M/s. R.S. Trading Co. on various dates from 15.12.1997 to 8.6.1998 but inspite of information given, the petitioner did not pass penalty orders on the dealer in time. These firms did not obtain any forms during the period September 1997 to December 1997. It is also alleged that Moble squad intercepted and sized the goods of M/s. R.S. Trading Co. on various dates from 15.12.1997 to 8.6.1998 but inspite of information given, the petitioner did not pass penalty orders on the dealer in time. 5. The third and the last charge-sheet states that being Sales Tax Officer (Incharge), Fatehpur for the period June 1996 to August 1997 and December 1997 to July 2000, the petitioner did not pay proper attention to obtain informations about the contractors extracting sand and morang from the Yamuna river to obtain tax and further did not try to implement compounding scheme launched by the Government in regard to dealers engaged in mining and brick kiln work. The efforts in this regard at his end would have yielded sizable revenue to the Government but he did not make sincere efforts. 6. The aforesaid charge-sheets were replied by the petitioner. However, in the departmental enquiry, neither any witness in support of the charges was examined nor documents were proved or exhibited. This fact finds support from paragraph Nos. 15,16,18,19 of the writ petition and paragraph No. 2 of the affidavit dated 19.9.2006. The enquiry report submitted appears to be based only on the replies given by the petitioner. 7. Contention of the learned counsel for petitioner is that burden lies on the department to prove the guilt and not upon the delinquent employee to prove otherwise by adducing any negative evidence. In this regard, he has relied upon Rule 7 of the U.P. Government Servant (Discipline and Appeal) Rules (hereinafter referred to as the Rules), which provides detailed procedure to be adopted in inflicting any major penalty. According to him, since the enquiry was not held in the manner as provided under Rule 7(7) of the Rules, it was against the principles of natural justice and void ab initio. According to him, since the enquiry was not held in the manner as provided under Rule 7(7) of the Rules, it was against the principles of natural justice and void ab initio. In support of his contention, learned counsel for the petitioner, has relied upon the decisions of Apex Court rendered in State of U.P. v. Saroj Kumar Sinha, (2010) 2 SCC 772 , Roop Singh Negi v. Punjab National Bank, (2009) 2 SCC 570 and Subhas Chandra Sharma v. Managing Director and another, 2001(1) UPLBEC 541, of this Court, wherein the ratio laid down is that infliction of major penalty of dismissal, without holding oral evidence and proving the document in such oral evidence, is bad in law and cannot be the basis for awarding major punishment. 8. Counsel for the petitioner has further relied upon the judgment rendered in Inspector Prem Chand v. Government of N.C.T., Delhi and others, 2007 (5) JT 294 , wherein it is held that any act to be shown as misconduct has to be transgression of some establish and definite rule of action a forbidden act a dereliction of duty, unlawful behavior willful in character, improper or wrong behavior, its synonyms are misdemeanor, misdeed, misbehavior, delinquency, impropriety, mismanagement, offence but not negligence or carelessness. 9. It is lastly submitted that perusal of the order impugned appended as Annexure 12 to the writ petition, would show that none of the aforesaid elements of misconduct stands proved and a mere official act of issuing a Ghosna Patra/declaration or registration of a firm without spot inspection can never constitute misconduct. It is urged that since the petitioner has attained the age of superannuation in the year 2011, he is entitled to arrears of salary and other benefits including retiral benefits which have been denied to him pursuant to the impugned order dated 21.6.2005. 10. Per contra, learned standing counsel for the respondent submits that petitioner was dismissed from service vide order dated 21.6.2005 for dereliction of duty and causing loss of revenue to the Government, hence he was served upon three charge-sheets as stated above, to which he submitted his reply. It is only after conducting fair and proper domestic enquiry and affording reasonable opportunity of defence to him as well as opportunity of hearing that he has been removed from service. It is only after conducting fair and proper domestic enquiry and affording reasonable opportunity of defence to him as well as opportunity of hearing that he has been removed from service. In this regard, he has relied upon clause 84, in Chapter V of Part III of the Sales Tax Manual, which reads thus : ^^84& iath;u izek.k&i= nsus dk vkns'k [k.Mkf/kdkjh }kjk gh fd;k tk;sxkA vkns'k djus ds iwoZ dh tkus okyh tkap [k.Mkf/kdkjh Lo;a dj ldrs gSa ;k vko';drkuqlkj [k.M ls lEc) vij fcdzhdj vf/kdkjh ;k fcdzhdj vf/kdkjh Js.kh&2 ls djk ldrs gSa ijUrq iath;u nsus dh ftEesnkjh [k.Mkf/kdkjh dh gh gksxhA** It is submitted on the basis of above that it is amply clear that before granting registration to the dealer, sector officer can also make enquiry and final responsibility of granting registration, rests upon Trade Tax Officer (Incharge). Moreover, the petitioner has admitted to have been given an opportunity of hearing by the Inquiry Officer before whom he appeared on 13.6.2005 and has reiterated the facts mentioned by him in his reply. All this goes to show that there has been no denial of reasonable opportunity to him. 11. After hearing counsel for the parties at length and on perusal of record, we find that admittedly the petitioner was issued charge-sheets alleging various misconducts as noted above. 12. Term “misconduct” implies a wrongful intention and not a mere error of judgment. It is not equivalent to a conduct involving moral turpitude. Rather is a relative term and has to be construed with reference to the subject-matter and context wherein the term occurs having regard to the scope of the act which is being construed. Misconduct liberally means wrong conduct or improper conduct. Misconduct in office has been defined as any unlawful behavior by a public officer in relation to the duties of his office willful in character. Term embraces acts which the officer holders has no right to perform acts, performed improperly and failure to act in the face of an affirmative duty to act. 13. The judgments cited by the learned counsel for petitioner apply with full force to the facts of the present case. It is no longer res integra that mere filing of documents by the prosecuting officer in departmental enquiry to prove the charges is not sufficient. 13. The judgments cited by the learned counsel for petitioner apply with full force to the facts of the present case. It is no longer res integra that mere filing of documents by the prosecuting officer in departmental enquiry to prove the charges is not sufficient. In every departmental enquiry, not only the charges are to be proved on the basis of oral and documentary evidence in the enquiry. If the employer relies only on the documentary evidence filed by the department in support of the charges that are to be duly proved and exhibited by witnesses who are liable to cross-examination by the charged employee to to bring out falsity of the documents and oral evidence adduced by the department. This is done to comply with the principles of natural justice as well as to provide an opportunity of reasonable defence to the delinquent employee. 14. In cases where there is no oral evidence adduced and documentary evidence is not proved or exhibited by witnesses, it cannot be read into evidence for proving guilt of the employee. It is for this reason that many unscrupulous employer/establishment/department fabricate documents for proving charge against innocent employee and punish him without proving the same, thus denying a reasonable opportunity to him to defend himself. 15. In the instant case also, the department has neither proved nor exhibited the documents or even adduced any oral evidence in support of the charges, therefore, merely because the enquiry officer provided him an opportunity of hearing on charge, would not fill up the legal lacuna and would not be sufficient compliance of the principles of natural justice. Even the disciplinary authority/punishing authority, has not given the petitioner any chance in this regard. 16. For all the reasons stated above, the departmental enquiry in the present case which was the basis for passing the impugned order of dismissal, cannot be sustained, and accordingly as a result the impugned order is also liable quashed. The writ petition is therefore allowed and the order impugned dated 21.6.2005 is quashed. Since the petitioner has attained the age of superannuation and he has not worked after the impugned order, he would be entitled to 20 % of the salary which he would have drawn till the date of his retirement in terms of prayer (ii). The writ petition is therefore allowed and the order impugned dated 21.6.2005 is quashed. Since the petitioner has attained the age of superannuation and he has not worked after the impugned order, he would be entitled to 20 % of the salary which he would have drawn till the date of his retirement in terms of prayer (ii). In term of prayer (iii), it is directed that petitioner shall also be entitled to all retiral and post retiral benefits in accordance with law. No order as to costs. —————