JUDGMENT Hon’ble Rakesh Srivastava, J.—The order dated 31.3.2011 by means of which the petitioner has been dismissed from service with retrospective effect, is under challenge in the present writ petition. 2. On 16.5.1972 the petitioner was initially appointed on the post of Clerk/Cashier/Godown keeper on temporary basis in the Allahabad District Cooperative Bank Limited, Allahabad (for short ‘Bank’), a Cooperative Society constituted under the Uttar Pradesh Cooperative Societies Act, 1965 (for short ‘Act’). The services of the petitioner were later on confirmed on the said post. On 30.9.1980 the petitioner was promoted on temporary and ad-hoc basis on the post of Branch Manager. By an order dated 29.7.2000, the petitioner was placed under suspension for the alleged irregularities committed by him during the period the petitioner was posted as Branch Manager of the Meja Branch of the Bank at Allahabad. The Senior Manager (Accounts) was appointed as Inquiry Officer to hold an inquiry against the petitioner. Subsequently, a charge-sheet dated 24.10.2000, containing in all 24 charges relating to financial irregularities, was served upon the petitioner. On 23.3.2001 the petitioner submitted his reply denying the charges leveled against him in the said charge-sheet. 3. The Inquiry Officer without holding any oral inquiry, whatsoever, submitted his report. The petitioner was, thereafter, served with a show-cause notice dated 17.5.2002 alongwith the inquiry report dated 21.5.2001 requiring the petitioner to show-cause as to why the penalty mentioned in the said show-cause notice be not inflicted upon the petitioner. Charge Nos. 1 to 19, 22 and 24 were found to be proved by the Inquiry Officer. On 2.11.2002, the petitioner submitted his reply to the show-cause notice wherein it was specifically stated by the petitioner that no oral inquiry, whatsoever, was held by the Inquiry Officer. The opposite party No. 4 on 10.1.2003 passed an order by means of which the following punishments were inflicted upon the petitioner: a. The petitioner was reduced to the minimum of the pay scale. b. The salary of the petitioner over and above the subsistence allowance was ordered to be forfeited for the period the petitioner was under suspension. c. The amount paid/payable to the depositors pertaining to the petitioner was ordered to be recovered from the petitioner. d. The petitioner was not be given independent charge of any branch of the Bank in future. 4. c. The amount paid/payable to the depositors pertaining to the petitioner was ordered to be recovered from the petitioner. d. The petitioner was not be given independent charge of any branch of the Bank in future. 4. The order dated 10.1.2003 was assailed by the petitioner in writ petition bearing number Writ A-23116 of 2003, Janhvi Prasad Pandey v. Allahabad District Co-operative Bank Ltd. and others On 30.6.2008, during the pendency of the said writ petition the petitioner attained the age of superannuation. On 16.3.2010 the said writ petition was allowed. The order dated 10.1.2003 was set aside and the matter was remanded back to the respondents to pass a fresh order, after affording an opportunity of hearing to the petitioner, within the time mentioned in the said order. The operative portion of the order dated 16.3.2010 is extracted below : “I have considered the submissions raised by the parties and in paragraph 26 of the counter-affidavit, the respondents have taken a plea that the Bank took a liberal view of the matter and awarded a minor punishment. I have perused the impugned order as also the resolution, which is the basis of the order. The same records only conclusions and no reasons except the fact that the Enquiry Officer’s report has been found to be just. There is nothing to indicate as to why the objections of the petitioner to the Enquiry Officer’s report are not tenable or acceptable. It is well-settled that the reasons are link between the conclusions drawn and the process of reasoning of the disciplinary authority. In the instant case neither the resolution nor the impugned order indicates any reason for taking a view adverse to the petitioner. The impugned order simply records the conclusions to the effect that every document has been perused and the material available on record warrants the punishment, which has been given to the petitioner. Whether the punishment was warranted or not and for what reason, has not been disclosed in the impugned order. Shri O.P. Singh, learned Senior Counsel for the petitioner contends that under the Co-operative Societies Employee Regulation 1975 the extent of the punishment to be meted out in accordance with Regulation, 84. Whether the punishment was warranted or not and for what reason, has not been disclosed in the impugned order. Shri O.P. Singh, learned Senior Counsel for the petitioner contends that under the Co-operative Societies Employee Regulation 1975 the extent of the punishment to be meted out in accordance with Regulation, 84. He submits that in this regard a circular was issued by the Board on 16th May, 2007 stating therein that the provisions of Regulation 84 are not being followed and punishments are being awarded whimsically. Having considered the aforesaid submissions I find that the impugned order does not take any cognizance of the same nor does it notice any of the objections taken by the petitioner to the proceedings against him. The submission of Shri P.S. Baghel that the petitioner has admitted his guilt has also not been indicated in the impugned order. Whether the petitioner had admitted his guilt or not has to be clearly recorded and cannot be simply inferred from the conclusions given in the impugned order. It is undisputed that the petitioner has already attained the age of superannuation. In this view of the matter and the conclusions drawn herein above, the impugned order dated 10.1.2003 (annexure 24 to the writ petition) passed by the respondent No. 2 is set aside and the matter is remitted to the said respondent to pass a fresh order within a period of three months from the date of presentation of a certified copy of this order before him. The petitioner shall cooperate with the said respondent and he shall be offered an opportunity prior to the passing of the impugned order. With the aforesaid observations, the writ petition is allowed.” 5. After a certified copy of the order dated 16.3.2010, was served upon the respondent, in pursuance of a resolution dated 23.4.2010 of the Committee of Management of the Bank a show-cause notice dated 25.5.2010 was served upon the petitioner by the respondent No. 4 requiring the petitioner to show-cause as to why he be not dismissed from service w.e.f. 10.1.2003. To the show-cause notice dated 25.2.2010, the petitioner submitted his reply on 10.8.2010. Thereafter the case of the petitioner was again considered by the Committee of Management of the Bank in its meeting held on 22.2.2011 wherein it was resolved that for the alleged embezzlement the petitioner be dismissed from service w.e.f. 10.1.2003. To the show-cause notice dated 25.2.2010, the petitioner submitted his reply on 10.8.2010. Thereafter the case of the petitioner was again considered by the Committee of Management of the Bank in its meeting held on 22.2.2011 wherein it was resolved that for the alleged embezzlement the petitioner be dismissed from service w.e.f. 10.1.2003. In pursuance of the said resolution the respondent No. 4 passed the impugned order dated 31.3.2011 by means of which the petitioner was dismissed from service w.e.f. 10.1.2003. Hence this petition. 6. Shri Siddharth Khare, learned counsel for the petitioner has raised the following contentions : i. The dismissal order could not have been passed with retrospective effect. ii. In the absence of any provision in the Regulations empowering the Bank to continue the disciplinary proceedings after the petitioner attained the age of superannuation, the punishment of dismissal could not have been inflicted upon the petitioner. iii. The order of dismissal dated 31.3.2011 was passed in gross violation of the principles of natural justice in as much as no inquiry, whatsoever, was held by the inquiry officer before submitting his inquiry report. iv. The impugned order of dismissal having been passed without prior concurrence of the U.P. Co-operative Institutional Service Board, the same could not be sustained and is liable to the set aside. 7. On the other hand Shri Neeraj Singh, holding brief of Shri Gautam Baghel, learned counsel for the respondent Nos. 3 and 4 has supported the impugned order dated 31.3.2011. He has vehemently submitted that the impugned order of punishment has been passed in pursuance of the order dated 16.3.2010 passed by this Court and as such the same was liable to be upheld. 8. Heard learned counsel for the parties and perused the record. 9. The case in R. Jeevratnam v. State of Madras, AIR 1966 SC 951 , is a complete answer to the first contention raised by the learned counsel for the petitioner. In the said case, while dealing with the challenge to an order of dismissal from service with retrospective effect, it was held by the Apex Court that an order of dismissal with retrospective effect was in substance, an order of dismissal as from the date of the order with a further direction that the said order would be operative from a retrospective date. The two parts of the order were separable. The two parts of the order were separable. Even if the second part of the order was invalid it would not effect the first part of the order. Paragraph No. 2 of the said report is extracted below: “The order dated October, 17, 1950 directed that the appellant be dismissed from service with effect from the date of his suspension, that is today, from May 20, 1949. In substance, this order directed that (1) the appellant be dismissed, and (2) the dismissal do operate retrospectively as from May 2,1949. The two parts of this composite order are separable. The first part of the order operates as a dismissal of the appellant as from October, 17, 1950. The invalidity of the second part of the order, assuming this part to be invalid, does not affect the first part of the order. The order of dismissal as from October 17,1950 is valid and effective. The appellant has been lawfully dismissed, and he is not entitled to claim that he is still in service.” 10. The principle laid down in the case of R. Jeevratnam (supra) has been followed by the Apex Court in Gujarat Mineral Development Corporation v. Shri P.H. Brahmbhatt, (1974) 3 SCC 601 . In view of the above, the impugned order of dismissal dated 31.3.2011 cannot be invalidated merely because it has been passed with retrospective effect. 11. In so far as, the second contention of the learned counsel for the petitioner is concerned, there cannot be any dispute with the proposition that an order of dismissal or removal from service can be passed only when an employee is in service. It is settled by a catena of decisions of the Apex Court that an employer can initiate a departmental proceeding and/or continue the same only in terms of rules framed by it. If a person is not in employment, the question of terminating his services ordinarily would not arise unless there is a specific rule which empowers the authorities to terminate the services even after retirement. 12. In State of Assam v. Padma Ram Boarah, a Constitution Bench of the Apex Court has held that it is not possible for the employer to continue with the enquiry after the delinquent employee stands retired. The Court observed: “7. 12. In State of Assam v. Padma Ram Boarah, a Constitution Bench of the Apex Court has held that it is not possible for the employer to continue with the enquiry after the delinquent employee stands retired. The Court observed: “7. .....According to the earlier order of the State Government itself, the service of the respondent had come to an end on 31..3.1961. The State Government could not by unilateral action create a fresh contract of service to take effect from 1-4-1961. If the State Government wished to continue the service of the respondent for a further period, the State Government should have issued a notification before 31-3-1961.” 13. In UCO Bank and others v. Rajinder Lal Capoor, (2007) 6 SCC 694, the Apex Court has held that an order of dismissal or removal from service can be passed only when an employee is in service. In paragraph No. 23 the Apex Court has held as follows: “23. An order of dismissal or removal from service can be passed only when an employee is in service. If a person is not in employment, the question of terminating his services ordinarily would not arise unless there exists a specific rule in that behalf. As Regulation 20 is not applicable in the case of the respondent, we have no other option but to hold that the entire proceeding initiated against the respondent became vitiated in law.” 14. In Ramesh Chandra v. Punjab National Bank and others, 2007 (9) SCC 15 , the Apex Court has held that continuation of disciplinary proceedings after the employee attained the age of superannuation, would depend upon the terms and conditions of the service of the employee and the power of disciplinary authority under the statute or statutory rules. In paragraph Nos. 13 & 16 of the said report the Apex Court has held as follows: “13. The question as to whether a departmental proceeding can continue despite the delinquent officer’s reaching the age of superannuation would depend upon the applicability of the extant rules. It may be true that the question of imposition of dismissal of the delinquent officer from service when he has already reached the age of superannuation would not ordinarily arise.” and then in paragraph No. 16 16. It may be true that the question of imposition of dismissal of the delinquent officer from service when he has already reached the age of superannuation would not ordinarily arise.” and then in paragraph No. 16 16. The question, thus, as to whether continuation of a disciplinary proceeding would be permissible or the employer will have to take recourse only to the pension rules, in our opinion, would depend upon the terms and conditions of the services of the employee and the power of the disciplinary authority conferred by reason of a statute or statutory rules.” 15. In Bhagirathi Jena v. Board of Directors, 1999 (3) SCC 666 , while dealing with the provisions of Orissa State Financial Corporation Employees Provident Fund Regulation 1959 the Apex Court held as follows: “6. It will be noticed from the abovesaid regulations that no specific provision was made for deducting any amount from the provident fund consequent to any misconduct determined in the departmental enquiry nor was any provision made for continuance of departmental enquiry after superannuation. 7. In view of the absence of such a provision in the abovesaid regulations, it must be held that the Corporation had no legal authority to make any reduction in the retiral benefits of the appellant. There is also no provision for conducting a disciplinary enquiry after retirement of the appellant and nor any provision stating that in case misconduct is established, a deduction could be made from retiral benefits. Once the appellant had retired from service on 30.6.1995, there was no authority vested in the Corporation for continuing the departmental enquiry even for the purpose of imposing any reduction in the retiral benefits payable to the appellant. In the absence of such an authority, it must be held that the enquiry had lapsed and the appellant was entitled to full retiral benefits on retirement.” 16. Admittedly, the inquiry against the petitioner has been held under the U.P. Co-operative Societies Employees Service Regulations, 1975 (for short ‘Regulations’). The said Regulations have been framed under Section 122 of the U.P. Co-operative Societies Act, 1965. The Regulations prescribe the detailed procedure to be followed in the matters of enforcing discipline and imposing penalty/punishment against an employee of a Co-operative Society. 17. The said Regulations have been framed under Section 122 of the U.P. Co-operative Societies Act, 1965. The Regulations prescribe the detailed procedure to be followed in the matters of enforcing discipline and imposing penalty/punishment against an employee of a Co-operative Society. 17. Despite repeated query the learned counsel for the respondents has not been able to apprise any provision which empowers the respondents to initiate and/or continue the disciplinary proceedings against an employee of the Co-operative Society after his retirement. 18. In Dev Prakash Tewari v. U.P. Cooperative Institutional Service Board, Lucknow and others, (2014) 7 SCC 260 , while dealing with the provisions of the Regulations involved in the present case, the Apex Court has held that there is no provision in the Regulations, for initiation or continuation of disciplinary proceeding after retirement. Paragraph Nos. 4 to 8 of the said report being relevant are being quoted below: “4.—Per contra the learned counsel appearing for the respondents contended that pursuant to the liberty given by the High Court in its order dated 10.1.2006 fresh disciplinary proceeding was initiated and as held by this Court in its decision rendered in U.P. Coop. Federation Ltd. Case (Supra) the right of the employer to hold a fresh inquiry cannot be denied on the ground that the employee has since retired from service and the impugned order is sustainable. 5. We have carefully considered the rival submissions. The facts are not in dispute. The High Court while quashing the earlier disciplinary proceedings on the ground of violation of principles of natural justice in its order dated 10.1.2006 granted liberty to initiate the fresh inquiry in accordance with the Regulations. The appellant who was reinstated in service on 26.4.2006 and fresh disciplinary proceeding was initiated on 7.7.2006 and while that was pending, the appellant attained the age of superannuation and retired on 31.3.2009. There is no provision in the Uttar Pradesh Co-operative Employees Service Regulations, 1975, for initiation or continuation of disciplinary proceeding after retirement of the appellant nor there is any provision stating that in case misconduct is established a deduction could be made from his retiral benefits. 6. An occasion came before this Court to consider the continuance of disciplinary inquiry in similar circumstance in Bhagirathi Jena’s case (supra and it was laid down as follows: “5. 6. An occasion came before this Court to consider the continuance of disciplinary inquiry in similar circumstance in Bhagirathi Jena’s case (supra and it was laid down as follows: “5. Learned Senior Counsel for the respondents also relied upon Clause (3) (c) of Regulation-44 of the Orrisa State Financial Corporation Staff Regulations, 1975. It reads thus; “44. (3) (c) When the employee who has been dismissed, removed or suspended is reinstated, the Board shall consider and make a specific order;- (i) Regarding the pay and allowances to be paid to the employee for the period of his absence from duty, and (ii) Whether or not the said period shall be treated as a period on duty.” 6. It will be noticed from the abovesaid Regulations that no specific provision was made for deducting any amount from the provident fund consequent to any misconduct determined in the departmental enquiry nor was any provision made for continuance of the departmental enquiry after superannuation. 7. In view of the absence of such a provision in the abovesaid Regulations, it must be held that the Corporation had no legal authority to make any reduction int he retiral benefits of the appellant. There is also no provision for conducting a disciplinary enquiry after retirement of the appellant and nor any provision stating that in case misconduct is established, a deduction could be made from retiral benefits. Once the appellant had retired from service on 30.6.1995, there was no authority vested in the Corporation for continuing the departmental enquiry even for the purpose of imposing any reduction in the retiral benefits payable to the appellant. In the absence of such an authority, it must be held that the enquiry had lapsed and the appellant was entitled to full retiral benefits on retirement.” 7. In a subsequent decision of this Court in U.P. Coop. In the absence of such an authority, it must be held that the enquiry had lapsed and the appellant was entitled to full retiral benefits on retirement.” 7. In a subsequent decision of this Court in U.P. Coop. Federation case on facts, the disciplinary proceeding against employee was quashed by the High Court since no opportunity of hearing was given to him in the inquiry and the management in its appeal before this Court sought for grant of liberty to hold a fresh inquiry and this Court held that charges levelled against the employee were not minor in nature, and therefore, it would not be proper to foreclose the right of the employer to hold a fresh inquiry only on the ground that the employee has since retired from the service and accordingly granted the liberty sought for by the management. While dealing with the above case, the earlier decision in Bhagirathi Jena’s case (supra) was not brought to the notice of this Court and no contention was raised pertaining to the provisions under which the disciplinary proceeding was initiated and as such no ratio came to be laid down. In our view the said decision cannot held the respondents herein. 8. Once the appellant had retired from service on 31.3.2009, there was no authority vested with the respondents for continuing the disciplinary proceeding even for the purpose of imposing any reduction in the retiral benefits payable to the appellant. In the absence of such an authority it must be held that the enquiry had lapsed and the appellant was entitled to get full retiral benefits. (emphasis supplied) 19. In view of the above, there cannot be any doubt or dispute with the proposition that after the petitioner had attained the age of superannuation, the respondents had no authority whatsoever to continue the disciplinary proceeding against the petitioner. 20. Learned counsel for the respondents has vehemently submitted that the impugned order of dismissal dated 31.3.2011 has been passed in pursuance of the order dated 16.3.2010 passed by this Court in the writ petition preferred by the petitioner earlier. Be it noted, that in the earlier writ petition preferred by the petitioner this Court had passed an order on 16.3.2010 setting aside the punishment order dated 10.1.2003 and remitting the matter to the respondent to pass a fresh order after giving opportunity to the petitioner prior to passing of the order. Be it noted, that in the earlier writ petition preferred by the petitioner this Court had passed an order on 16.3.2010 setting aside the punishment order dated 10.1.2003 and remitting the matter to the respondent to pass a fresh order after giving opportunity to the petitioner prior to passing of the order. Learned counsel for the respondent has submitted that the judgment dated 16.3.2010 had attained finality inter se parties and as such even though the petitioner had attained the age of superannuation on 30.6.2008, in view of the said judgment the petitioner would be deemed to continue in service for the purposes of finalization of disciplinary proceedings. 21. On the other hand, the learned counsel for the petitioner has submitted that the judgment dated 16.3.2010 was per incuriam. It was submitted that at the time of the passing the said order, neither the Regulations nor the case of Dev Prakash Tewari (supra) was brought to the notice of the Court. It was submitted that this Court cannot confer jurisdiction upon an authority which he does not have under the Regulations. 22. Be that as it may, in view of the fact that contentions Nos. 3 & 4 raised on behalf of the petitioner are liable to be upheld and the writ petition is liable to be allowed, there is no need to deal and decide the second contention raised on behalf of the petitioner. 23. In order to appreciate contention Nos. 2 & 3 raised by the learned counsel for the petitioner it is apposite to examine the relevant provisions of the said Regulations. Regulations 84, 85 & 87 being relevant are being quoted below: “84. 23. In order to appreciate contention Nos. 2 & 3 raised by the learned counsel for the petitioner it is apposite to examine the relevant provisions of the said Regulations. Regulations 84, 85 & 87 being relevant are being quoted below: “84. Penalties—(i) Without prejudice to the provisions contained in any other regulation, an employee who commits a breach of duty enjoined upon him or has been convicted for criminal offence or an offence under Section 103 of the Act or does anything prohibited by these regulations shall be liable to be punished by any one of the following penalties : [a] censure, [b] withholding of increment, [c] fine on an employee of Category IV [peon, chaukidar, etc.], [d] recovery from pay or security deposit to compensate in whole or in part for any pecuniary loss caused to the cooperative society by the employee’s conduct, [e] reduction in rank or grade held substantively by the employee, [f] removal from service, or [g] dismissal from service (ii & iii) (omitted as unnecessary) iv. (a) The charge-sheeted employee shall be awarded punishment by the appropriate authority according to the seriousness of the offence: Provided that no penalty under sub-clauses (e), (f), or (g) of clause (i) shall be imposed without recourse to disciplinary proceedings; (b) (omitted as unnecessary) (v) (omitted as unnecessary) 85. Disciplinary Proceedings—(i) The disciplinary proceedings against an employer shall be conducted by the Inquiring Officer [ referred to in clause (iv) below] with due observance of the principles of natural justice for which it shall be necessary that— (a) The employee shall be served with a charge-sheet containing specific charges and mention of evidence in support of each charge and he shall be required to submit explanation in respect of the charges within reasonable time which shall not be less than fifteen days; (b) Such an employee shall also be given an opportunity to produce at his own cost or to cross-examine witnesses in his defence and shall also be given an opportunity of being heard in person, if he so desires; (c) If no explanation in respect of charge-sheet is received or the explanation submitted is unsatisfactory the competent authority may award him appropriate punishment considered necessary. 87. Order imposing penalty under Sub-Clause (e) to (g) of clause (1) of Regulation No. 84 shall not be passed except with the prior concurrence of the Board.” 24. 87. Order imposing penalty under Sub-Clause (e) to (g) of clause (1) of Regulation No. 84 shall not be passed except with the prior concurrence of the Board.” 24. A perusal of Regulation 84, 85 and 87 would show that the penalty of reduction in rank or grade held substantively by an employee, removal or dismissal from service can be inflicted upon an employee only after disciplinary proceedings are held against the charged employee in accordance with the provisions of Regulation 85 of the Regulations and the penalty enumerated in sub clause (e) to (g) of clause (1) of Regulation 84 could be imposed only with prior concurrence of the Board. 25. In case of Vijay Singh v. State of U.P., (2012) 5 SCC 242 , the Apex Court has held that while imposing penalty, the disciplinary authority is bound to give strict adherence to statutory rules. Paragraph 15 of the said report is being quoted below : “15. Imposing the punishment for a proved delinquency is regulated and controlled by the statutory rules. Therefore, while performing the quasi-judicial functions, the authority is not permitted to ignore the statutory rules under which punishment is to be imposed. The disciplinary authority is bound to give strict adherence to the said rules. Thus, the order of punishment being outside the purview of the statutory rules is a nullity and cannot be enforced against the appellant.” 26. Even if, in the light of the judgement dated 16.3.2010, the petitioner is deemed to continue in service for the purpose of finalization of disciplinary proceedings as has been submitted by the learned counsel for the respondents, while imposing the penalty of dismissal the respondents were obliged to strictly adhere to statutory rules. It is a settled principle of law that if a manner of doing a particular act is prescribed under a statute, the act must be done in that manner or not at all. As per the proviso to Regulation 84 (iv) (a) of the Regulation no penalty under sub clause (e), (f) or (g) of clause 1 could be imposed upon the petitioner without having recourse to disciplinary proceedings. Regulation 85 enjoined upon the Inquiry Officer to hold an inquiry in accordance with the procedure prescribed in the said Regulations. As per the proviso to Regulation 84 (iv) (a) of the Regulation no penalty under sub clause (e), (f) or (g) of clause 1 could be imposed upon the petitioner without having recourse to disciplinary proceedings. Regulation 85 enjoined upon the Inquiry Officer to hold an inquiry in accordance with the procedure prescribed in the said Regulations. It was only after the inquiry was strictly completed as per the procedure laid down for the purpose, it was open to the Disciplinary Authority to impose upon the petitioner any penalty specified under sub clause (e), (f) and (g) of clause 1 of Regulation 84. 27. In the charge-sheet dated 24.10.2000 in all 24 charges pertaining to financial irregularities were levelled against the petitioner. On 23.3.2011 the petitioner submitted his reply denying the charges levelled against him and reserving his right to submit additional reply as and when the documents were made available to him. In his reply the petitioner has specifically stated that even though he was submitting the reply he was reserving his right pertaining to the principles of natural justice. On 23.3.2011 the petitioner submitted his reply denying the charges levelled against him and reserving his right to submit additional reply as and when the documents were made available to him. In his reply the petitioner has specifically stated that even though he was submitting the reply he was reserving his right pertaining to the principles of natural justice. Relevant portion of the reply is extracted below: ^^mijksDr ds dze esa izkFkhZ ds izkFkZuk i= fnukad 21-9-2000] 14-11-2000] 24-11-2000 ,oa 29-12-2000 ftudh izfrfyfi ¼Nk;k izfr½ iqu% laYkXUk gS] dk lUnHkZ xzg.k djsaA izkFkhZ us bu izkFkZuk i=ksa ds ek/;e ls Jheku th ls U;k; ds fgr esa vkjksi i= ls lEcfU/kr lk{;ksa dh ekax dh Fkh] fdUrq Jheku th ds }kjk lk{;ksa dh izfr u miyC/k djk;s tkus ds dkj.k orZeku esa Hkh izkFkhZ tokc nsus esa ;|fi fd l{ke ugha gS] fQj Hkh tks Hkh izkFkhZ dks tkudkjh izkIr gks ldh] mu rF;ksa ds vk/kkj ij ;g Li"Vhdj.k fdlh izdkj ls bl 'krZ ds lkFk izLrqr dj jgk gS] fd vki }kjk vxzsrj vkjksi ls lEcfU/kr lk{;ksa dh izfr miyC/k djk;s tkus ij izkFkhZ viuk Li"Vhdj.k rnqulkj ifjofrZr@ifjofèkZr djus dk vf/kdkj lqjf{kr j[krk gSA ¼laYkXUk 1 ls 4 ns[ks½ Jheku th ds le{k vkjksi i= dk foUnqokj Li"Vhdj.k izLrqr djus ds iwoZ ,d ckj iqu% fuosnu djuk pkgrk gS] fd Jh n'kjFk izlkn ;kno [ktk¡ph }kjk fnukad 20-9-2000 dks fn;s x;s 'kiFk i= tks vkids ikl ekSTkwn gS] dk voyksdu djuk pkgs] ftlls ;g lkQ tkfgj gS] fd cSad dh 'kk[kk estk ds [kkrsnkjksa ls vfu;fer ysu nsu ds fy, Jh n'kjFk izlkn ;kno gh ftEesnkj gS] ftls mUgksaus Lohdkj Hkh fd;k gSA Jh ;kno us vius mDRk 'kiFk&i= }kjk ;g Hkh lkQ dj fn;k gS ¼'kk[kk izcU/kd estk½ bu vfu;ferkvksa ds fy, ftEesnkj ugha gS] vFkkZRk izkFkhZ u rks dgh ls nks"kh gS] vkSj u gh blesa lafyIr jgkA esjs }kjk lk{; lfgr rF; nsus ds ckotwn Hkh fcuk fdlh iq"V vk/kkj ,oa lE;d Nkuchu fd, gh ;g vkjksi&i= fuxZr fd;k x;k gS] rFkk vkjksiksa ds lEcU/k esa vk/kkj Hkwr leLr lk{;ksa dh izfr Hkh izkFkhZ dks miyC/k ugha djkbZ x;h gSA vr% ,oa fdlh Hkh n'kk esa ;s vkjksi izkFkhZ dks ekU; ugha gSA uSlfXkZd U;k; ds rgr~ viuk vf/kdkj lqjf{kr j[krs gq, ;g Li"Vhdj.k izLrqr dj jgk gSA ftlds vkyksd esa fu"i{k fu.kZ; djkus dk d"V djsaA d`i;k layXu&5 ns[ksA** (emphasis supplied) 28. From the above, there is no iota of doubt that the petitioner had specifically and categorically denied all the charges levelled against him. 29. In paragraph No. 27 of the writ petition the petitioner has categorically stated that the Inquiry Officer had submitted his report without holding any oral inquiry, whatsoever. Reply to Paragraph No. 27 of the writ petition is to be found in Paragraph No. 18 of the counter-affidavit. Paragraph No. 27 of the writ petition and 18 of the counter-affidavit are extracted below : PARAGRAPH NO. 27 OF THE WRIT PETITION “27. That thereafter the respondents and enquiry officer without conducting regular enquiry and without giving any opportunity to the petitioner to adduce evidence in his defense and without proving the charges by legal evidence they illegally only on the basis of reply of charge-sheet prepared enquiry report and submitted the same to the respondent No. 4. The action of the enquiry officer in doing so is violative of all norms of law and the said enquiry report could not be prepared and submitted without holding regular enquiry.” PARAGRAPH NO. 18 OF THE COUNTER-AFFIDAVIT “18. That the contents of paragraph Nos. 23,24,25,26 & 27 of the Writ petition are not accepted in the manner stated and hence denied. The Enquiry Officer has made available all the desired documents to the petitioner. A perusal of the charge-sheet dated 24.10.2000 would go to show that the petitioner was intimated that the relevant records will be made available to him in case he so desires. The petitioner verified the records and he has also obtains certain documents which he has filed alongwith his reply, therefore as such the petitioner was extended the fullest opportunity of hearing by the Enquiry Officer and not only this the Enquiry Officer has himself visited the Meja Branch on several occassions to ascertain the correct facts.” 30. Thus, it is not in dispute that no oral inquiry as provided in Regulation 85 of the Regulations was held by the respondents. 31. In Roop Singh Negi v. Punjab National Bank and others, (2009) 2 SCC 570 , the Apex Court reiterated that charges levelled against the charged Government servant must be proved. In paragraph 14 & 23 of the said it was held as follows : “14. Indisputably, a departmental proceeding is a quasi judicial proceeding. The Enquiry Officer performs a quasi judicial function. In paragraph 14 & 23 of the said it was held as follows : “14. Indisputably, a departmental proceeding is a quasi judicial proceeding. The Enquiry Officer performs a quasi judicial function. The charges leveled 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.” and then in paragraph 23 : “23. The materials brought on record pointing out the guilt are required to be proved. A decision must be arrived at on some evidence, which is legally admissible. The provisions of the Evidence Act may not be applicable in a departmental proceeding but the principles of natural justice are. As the report of the Enquiry Officer was based on merely ipse dixit as also surmises and conjectures, the same could not have been sustained. The inferences drawn by the Enquiry Officer apparently were not supported by any evidence. Suspicion, as is well known, however high may be, can under no circumstances be held to be a substitute for legal proof.” 32. In the case of Saroj Kumar Sinha (supra), where the delinquent employee had not even submitted his reply to the charge-sheet, while considering the impact of Rule 7 of the Uttar Pradesh Government Servant (Discipline and Appeal) Rules, 1999, the Apex Court in paragraphs 26 & 28 of the said report has held as follows : “26. 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. 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. An inquiry officer acting in a quasi-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. and then in paragraph 28 : 28. When a departmental enquiry is conducted against the Government servant it cannot be treated as a casual exercise. The enquiry proceedings also cannot be conducted with a closed mind. The inquiry officer has to be wholly unbiased. The rules of natural justice are required to be observed to ensure not only that justice is done but is manifestly seen to be done. The object of rules of natural justice is to ensure that a Government servant is treated fairly in proceedings which may culminate in imposition of punishment including dismissal/removal from service.” 33. In Sohan Lal v. U.P. Co-operative Federation Ltd. and another, 2013 (5) ALJ 478, while dealing with a challenge to an order of dismissal, passed under the Regulations under consideration, a Division Bench of this Court has held that an oral inquiry was a must when an employer intended to impose major penalty under the Regulations. Paragraph Nos. 27 and 28 of the said report is being quoted below: “27. Paragraph Nos. 27 and 28 of the said report is being quoted below: “27. From the perusal of the enquiry report it is demonstrably proved that no oral evidence has been led by the department. When a major punishment is proposed to be passed the department has to prove the charges against the delinquent/employee by examining the witnesses and by documentary evidence. In the present case no witness was examined by the department neither any officer has been examined to prove the documents in the proceedings. 28. It is trite law that the departmental proceedings are quasi judicial proceedings. The Inquiry Officer functions as quasi judicial officer. He is not merely a representative of the department. He has to act as an independent and impartial officer to find out the truth. The major punishment awarded to an employee visits serious civil consequences and as such the departmental proceedings ought to be in conformity with the principles of natural justice. Even if, an employee prefers not to participate in the enquiry the department has to establish the charges against the employee by adducing oral as well as documentary evidence. In case the charges warrant major punishment then the oral evidence by producing the witnesses is necessary.” 34. Admittedly, the Inquiry Officer did not hold any oral inquiry and has given his report only on the basis of the reply submitted by the petitioner. As per the settled principle of law the prosecution has to prove the charges by producing documents through witnesses and placing the said witnesses to be cross-examined by the delinquent employee. Even in the absence of delinquent employee, the Inquiry Officer is obliged to examine the evidence presented by the department to reach to the conclusion as to whether the unrebutted evidence was sufficient to hold that the charges were proved. In the present case, the aforesaid procedure has not been observed. Since, no witness has been examined, the documents have not been proved, they could not have been taken into consideration to conclude that the charges have been proved against the petitioner. In view of the above, this Court is constrained to hold that the disciplinary proceedings stands vitiated as the mandatory provisions of Regulation 85 of the Regulations have not been followed. 35. The last contention of learned counsel for the petitioner is also not without substance. 36. In view of the above, this Court is constrained to hold that the disciplinary proceedings stands vitiated as the mandatory provisions of Regulation 85 of the Regulations have not been followed. 35. The last contention of learned counsel for the petitioner is also not without substance. 36. In U.P. Upbhokta Sahkari Sangh Ltd. and another v. Vijay Shanker Rai, 2006 (65) ALR 510, a Division Bench of this Court has held that Regulation 87 of the Regulations is mandatory and prior concurrence of the Board is necessary before passing any order of punishment as provided under clauses (e) to (g) of Clause (1) of Regulation 87. Paragraph No. 6 of the said report is being quoted below: “The language of the regulation makes it clear that no penalty under sub-clause (e)to (g) of Clause (1) of Regulation 87 shall be imposed upon an employee except with the prior concurrence of the Board. Two words ‘shall’ and ‘except’ are important to throw light on the effect of Regulation 87 as to whether the provision is mandatory or even a subsequent approval would be sufficient compliance of the aforesaid provision. It is not in dispute, that before imposing penalty of dismissal, which is one of the penalties provided under subclauses (e) to (g) of Clause (1) of Regulation 87, no prior concurrence of the Board were obtained. The use of word ‘shall’ makes it obligatory on the disciplinary authority to obtain concurrence of the Board before passing any order of penalty and the concurrence must precede the order of penalty. The use of the word ‘except’ mandates the appointing authority not to impose any penalty under clauses (e) to (g) of Clause (1) of Regulation 87 without prior concurrence of the Board. Where the rule framing authority simultaneously uses the words ‘shall’ and ‘except’ the intention is to make it imperative and mandatory. The language is positive as well as negative simultaneously. It makes it obligatory to the competent authority to seek prior concurrence and prevent it from passing any order without prior concurrence.” 37. It is not in dispute that the dismissal order dated 31.3.2011 was passed by respondent No. 4 without prior concurrence of the Board and as such in view of the settled legal position the impugned order of dismissal cannot be sustained. 38. In view of the above, the writ petition is allowed. It is not in dispute that the dismissal order dated 31.3.2011 was passed by respondent No. 4 without prior concurrence of the Board and as such in view of the settled legal position the impugned order of dismissal cannot be sustained. 38. In view of the above, the writ petition is allowed. The impugned order of dismissal dated 31.3.2011 passed by the Secretary/General Manager, Allahabad District Cooperative Bank Limited, Allahabad is hereby quashed. The respondents are directed to pay the arrears of salary and allowances payable to the petitioner and also to pay him all his retiral benefits in accordance with rules and regulations as if there had been no disciplinary proceedings or order passed therein. Since the petitioner has attained the age of superannuation long back, the respondents are directed to undertake the said exercise within a maximum period of four months from the date of production of a certified copy of this order. 39. There shall be no order as to cost.