JUDGMENT Hon’ble Ashok Pal Singh, J.—Heard Sri Hemendra Pratap, learned counsel for the petitioner, Smt. Sangeeta Chandra, learned Additional Chief Standing Counsel and perused the record. 2. The petitioner has preferred the instant writ petition challenging the order dated 4.1.2006 passed by the State Government imposing punishment of reduction of his 25% pension permanently during the departmental proceedings taken up against him. 3. The petitioner was posted as an Assistant Engineer (Mechanical) Tubewell Division, Meerut (West) having under his command area as many as 217 tubewells of district-Baghpat. The maintenance and running of the said tubewells was being done under his administrative authority. The Chief Engineer, Tubewell (West), Meerut vide his order dated 17.9.2001 directed the areawise task of 100% verification of the aforesaid 217 tubewells to four of his Executive Engineers and called upon them to report as to whether the tubewells so verified by them were found in running state or not and in case, they were not found in running state, the reasons therefor. 4. Subsequently, on the basis of the verification report received from the aforesaid Executive Engineers, a disciplinary enquiry was initiated against the petitioner for committing certain irregularities in respect of the above tubewells. A charge-sheet dated 28.10.2002 was issued to the petitioner containing as many as four charges. The documentary evidence which was being relied upon in support of the charges in essence contained the verification report of the tubewells submitted by the four Executive Engineers to the Chief Engineer and the order of Chief Engineer thereon. The request of the petitioner for the supply of the copies of said documentary evidence was turned down on the premise of said documentary evidence being voluminous. However, the petitioner was allowed to inspect the record. It appears that after making the inspection, the petitioner submitted his reply denying the charges levelled against him. 5. Thereafter, the Enquiry Officer without holding any oral enquiry, merely on the basis of the reply given by the petitioner and the aforesaid documentary evidence arrived at the conclusion of the charges to have been proved against the petitioner and submitted his enquiry report to the Disciplinary Authority i.e. the State Government for further action. The State Government, in turn, issued a show-cause notice dated 12.9.2003 to the petitioner furnishing alongwith it to him a copy of the enquiry report. In response thereto, the petitioner submitted his reply dated 28.12.2004. The State Government, in turn, issued a show-cause notice dated 12.9.2003 to the petitioner furnishing alongwith it to him a copy of the enquiry report. In response thereto, the petitioner submitted his reply dated 28.12.2004. The petitioner thereafter attained the age of superannuation on 31.12.2004. According to the respondents after obtaining necessary permission under 351-A of CSR impugned order imposing the aforesaid punishment was passed by the State Government. 6. It has been submitted by learned counsel for the petitioner that a fair and reasonable opportunity to defend his case was not provided to the petitioner in as much as no date, time or place was fixed by the Enquiry Officer to proceed with the enquiry after submission of his reply to the charge-sheet nor the same was ever intimated to him. No enquiry including any oral enquiry was also held by the Enquiry Officer. Neither any oral evidence of any witness was recorded nor any opportunity for making any cross-examination with any such witness was provided to him. In fact, no list of witness at all was provided by the department to the Enquiry Officer proposing any witness to be examined in order to prove the documentary evidence. The conclusions drawn by the Enquiry Officer were merely on the basis of the charges levelled and the explanation provided by the petitioner. 7. It has also been submitted on behalf of the petitioner that burden of proving the charges was on the department, but, the Enquiry Officer shifted the burden of proving the negative upon the petitioner. The enquiry, thus, conducted by the Enquiry Officer, was no enquiry in the eyes of law and the impugned order passed on the basis of such an enquiry deserves to be set aside. 8. Per contra, Smt. Sangeeta Chandra, learned Additional Chief Standing Counsel representing the respondents, has submitted that a fair opportunity of hearing was provided to the petitioner by the Enquiry Officer. Attention of the Court has been invited by her towards the directions given in the charge-sheet served upon the petitioner, requiring the petitioner to submit his explanation on or before 20.11.2004. Attention of the Court has been invited by her towards the directions given in the charge-sheet served upon the petitioner, requiring the petitioner to submit his explanation on or before 20.11.2004. The petitioner was further required therein to inform as to whether he wanted personal hearing and to get oral statement of any witness recorded and in case, he wanted to examine or cross-examine any witness, then to provide with his written reply, the names and addresses of such witnesses and also to provide a brief note indicating the points on which such examination or cross- examination of the witnesses was intended. It was also mentioned in the charge-sheet that if no explanation was submitted within the time stipulated, then it would be deemed that the petitioner had nothing to say in respect of the charges and orders in the enquiry would be passed accordingly. 9. It has been submitted by the learned Additional Chief Standing Counsel that despite the aforesaid directions in the charge-sheet and a reminder given, the petitioner failed to submit before the Enquiry Officer as to if he wanted any personal hearing. He also failed to provide the list of persons to whom he wanted to examine or cross-examine with a brief note indicating the points on which such examination or cross-examination was intended. The learned Additional Chief Standing Counsel, further submitted that the facts disclosed in the documentary report of the Executive Engineers regarding verification of the tubewells had not been denied by the petitioner because of which the Enquiry Officer did not consider for recording any oral evidence and drawn his conclusions on the basis of the enquiry report submitted by the Executive Engineers and the reply to the charge-sheet submitted by the petitioner. According to learned Additional Chief Standing Counsel, strict rules of evidence are not applicable to the departmental enquiries as applicable in criminal cases. Such enquiries are to be decided on the basis of preponderance of evidence. Her further submission is that under the writ jurisdiction this Court is not required to appreciate and decide the matter as if sitting in appeal. The conclusions drawn by the Enquiry Officer are based upon the documentary evidence as well as the facts admitted by the petitioner. The impugned order passed in consequence thereof by the State Government thus needs no interference. 10. The conclusions drawn by the Enquiry Officer are based upon the documentary evidence as well as the facts admitted by the petitioner. The impugned order passed in consequence thereof by the State Government thus needs no interference. 10. According to the learned counsels for the parties, U.P. Government Servant(Discipline and Appeal) Rules, 1999 (hereinafter referred to as “the rules”) governs the field in the instant case for conducting enquiry and imposing a major penalty on a Government servant. Rule 7 of the aforesaid Rules which deals with enquiry procedure reads as under : 7. Procedure for imposing major penalties.—Before imposing any major penalty on a Government servant, an inquiry shall be held in the following manner : (i) The disciplinary authority may himself inquire into the charges or appoint an authority subordinate to him as Inquiry Officer to inquire into the charges. (ii) The facts constituting the misconduct on which it is proposed to take action shall be reduced in the form of definite charge or charges to be called charge-sheet. The charge-sheet shall be approved by the disciplinary authority : Provided that where the appointing authority is Governor, the charge-sheet may be approved by the Principal Secretary or the Secretary; as the case may be, of the concerned department. (iii) The charges framed shall be so precise and clear as to give sufficient indication to the charged Government servant of the facts and circumstances against him. The proposed documentary evidence and the name of the witnesses proposed to prove the same alongwith oral evidence, if any, shall be mentioned in the charge-sheet. (iv) The charged Government servant shall be required to put in a written statement of his defence in person on a specified date which shall not be less than 15 days from the date of issue of charge-sheet and to state whether he desires to cross-examine any witness mentioned in the charge-sheet and whether desires to give or produce evidence in his defence. He shall also be informed that in case he does not appear or file the written statement on the specified date, it will be presumed that he has none to furnish and Inquiry Officer shall proceed to complete the inquiry ex parte. He shall also be informed that in case he does not appear or file the written statement on the specified date, it will be presumed that he has none to furnish and Inquiry Officer shall proceed to complete the inquiry ex parte. (v) The charge-sheet, alongwith the copy of the documentary evidences mentioned therein and list of witnesses and their statements, if any shall be served on the charged Government servants personally or by registered post at the address mentioned in the official records. In case the charge-sheet could not be served in aforesaid manner, the charge-sheet shall be served by publication in a daily newspaper having wide circulation: Provided that where the documentary evidence is voluminous, instead of furnishing its copy with charge-sheet, the charged Government servant shall be permitted to inspect the same before the Inquiry Officer. (vi) Where the charged Government servant appears and admits the charges, the Inquiry Officer shall submit his report to the disciplinary authority on the basis of such admission. (vii) Where the charged Government servant denies the charges the inquiry officer shall proceed to call the witnesses proposed in the charge-sheet and record their oral evidence in presence of the charged Government servant who shall be given opportunity to cross-examine such witnesses. After recording the aforesaid evidence, the Inquiry Officer shall call and record the oral evidence which the charged Government servant desired in his written statement to be produced in his defence.” Provided that the Inquiry Officer may for reasons to be recorded in writing refuse to call a witness. (viii) The Inquiry Officer may summon any witness to give evidence or require any person to produce documents before him in accordance with the provisions of the Uttar Pradesh Departmental Inquiries (Enforcement of Attendance of Witnesses and Production of Documents) Act, 1976. (ix) The Inquiry Officer may ask any question he pleases, at any time of any witness or from person charged with a view to discover the truth or to obtain proper proof of facts relevant to charges. (x) Where the charged Government servant does not appear on the date fixed in the inquiry or at any state of the proceeding in spite of the service of the notice on him or having knowledge of the date, the Inquiry Offi9cer shall proceed with the inquiry ex parte. (x) Where the charged Government servant does not appear on the date fixed in the inquiry or at any state of the proceeding in spite of the service of the notice on him or having knowledge of the date, the Inquiry Offi9cer 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. (xi) The disciplinary authority, if it considers it necessary to do so, may, by an order appoint a Government servant or a legal practitioner, to be know as “Presenting Officer” to present on its behalf the case in support of the charge. (xii) The Government servant may take the assistance of any other Government servant to present the case on his behalf but not engage a legal practitioner for the purpose unless the Presenting Officer appointed by the disciplinary authority is a legal practitioner of the disciplinary authority having regard to the circumstances of the case so permits : Provided that this rule shall not apply in following cases : (i) Where any major penalty is imposed on a person on the ground of conduct which has led to his conviction on a criminal charge ; or (ii) Where the disciplinary authority is satisfied that for reason to be recorded by it in writing, that it is not reasonably practicable to hold an inquiry in the manner provided in these rules; or (iii) Where the Governor is satisfied that, in the interest of security of the State, it is not expedient to hold an inquiry in the manner provided in these rules.” 11. It is clear from Rule 7(iii) that the proposed documentary evidence and the names of witnesses proposed to prove the charges are to be mentioned in the charge-sheet. But what we find from the perusal of the charge-sheet in the instant case is that in order to prove all the charges certain documentary evidence was proposed to be relied upon. For charge Nos. 1 to 3 it was in essence either the order of the Chief Engineer dated 17.9.2001 by which four of his Executive Engineers were directed to carry out 100% verification of tubewells in the command area of the petitioner and/or the verification reports or one or more of the various annexures submitted by them with said verification reports. 1 to 3 it was in essence either the order of the Chief Engineer dated 17.9.2001 by which four of his Executive Engineers were directed to carry out 100% verification of tubewells in the command area of the petitioner and/or the verification reports or one or more of the various annexures submitted by them with said verification reports. As regards charge No. 4 proposed reliance in essence was upon a letter dated 22.10.2001 of Finance Controller by which certain budget was allocated and CCL inputs of the months of September and October, 2001. However, it is observed that no witness at all has been proposed in the charge-sheet for proving any of the aforesaid documents. 12. A perusal of the enquiry report ipso facto reveals that in his reply to the charge-sheet the petitioner had not only denied the charges but had also denied the verification reports to be correct and in accordance with the spot position. The reply to show-cause notice given by the petitioner to the disciplinary authority, copy of which is annexure 6 to the petition also reveals that in it also he had reiterated his denial. We are thus unable to accept the contention of learned Additional Chief Standing Counsel that since the imputing facts had not been denied by the petitioner there was no necessity for the Enquiry Officer to record any oral evidence. In our opinion it was clearly not a case covered by the provisions of Rule 7 (vi) of the Rules. Instead it was a case covered by the provisions of Rule 7(vii) of the Rules wherein the Enquiry Officer in view of the denial of charges was under a statutory obligation to record oral evidence of the witnesses to whom the department proposed to summon in order to prove the documentary evidence relied upon by it. 13. Even if a delinquent employee does not request for personal hearing, the burden of proving charges is upon the department. Under the rules, it is obligatory for the Enquiry Officer to fix a date for such an enquiry and also to inform about the same to the delinquent employee. The Enquiry Officer is also under statutory obligation to examine the documentary as well as oral evidence, if any, adduced in support of the charges. Under the rules, it is obligatory for the Enquiry Officer to fix a date for such an enquiry and also to inform about the same to the delinquent employee. The Enquiry Officer is also under statutory obligation to examine the documentary as well as oral evidence, if any, adduced in support of the charges. In case, the delinquent employee does not participate in the enquiry, even then, the Enquiry Officer is under statutory duty to discharge his obligation as an Enquiry Officer to ascertain the truth in respect of the charges levelled against the delinquent employee on the basis of the evidence and to come to the conclusion as to whether the said charges are proved against the delinquent employee or not. Even if the delinquent employee has not demanded the opportunity of personal hearing or does not give the list of names of the witnesses with a brief note indicating the points on which he desires to examine or cross-examine the witnesses, the Enquiry Officer is still statutory bound to fix a date of enquiry and to intimate the said date to the delinquent employee and in case, the delinquent employee does not appear on the date fixed or moves an application for adjournment, the Enquiry Officer may, in his discretion, either adjourn the enquiry to some other date or to proceed ex parte against the delinquent employee. 14. In Nair Service Society v. Dr. T. Beermasthan, (2009) 5 SCC 545 , relied upon by the petitioner, their lordships of Hon’ble Supreme Court, in para 48 of the report, held as under: “48. Several decisions have been cited before us by the respondents, but it is well established that judgments in service jurisprudence should be understood with reference to the particular service rules in the State governing that field...........” 15. In State of Uttar Pradesh and others v. Saroj Kumar Sinha, (2010) 2 SCC 772 , also relied upon by the petitioner, their lordships of Hon’ble Supreme Court in para Nos. 27, 28, 29 and 30 of the report, while discussing the statutory responsibility of an Enquiry Officer conducting an enquiry and the rule of natural justice affording a reasonable opportunity to the delinquent, held as under: “27. 27, 28, 29 and 30 of the report, while discussing the statutory responsibility of an Enquiry Officer conducting an enquiry and the rule of natural justice affording a reasonable opportunity to the delinquent, held as under: “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 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 provided. In the present case the aforesaid procedure has not been observed. Sine 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. 30. When a department 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. 30. When a department 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.” 16. In Kaptan Singh v. State of U.P. and another, 2014(3) LBESR 94 (All), yet another decision relied upon by the petitioner in which facts were very closely similar to the present case a Division Bench of this Court has held that even where the delinquent employee does not dispute the veracity of the documentary evidence, oral enquiry is necessary as he may still have an explanation to offer. 17. In the present case not only a serious violation of the procedure prescribed by the rules has been made but the documentary evidence of verification report relied upon by the department has illegally been taken to be proved without any departmental witness having been examined in support thereof and that too when on the face of the record the factual matrix stated in the said verification report had not been admitted by the petitioner to be in accordance with the spot position. In the absence of any oral evidence, the documents remained not proved, and as such could not have been taken into consideration to conclude the charges to have been established. In any case placing reliance by the Enquiry Officer or the Disciplinary Authority on the aforesaid verification report would tantamount to placing reliance on a preliminary enquiry on the basis of which a decision was taken to initiate final enquiry. 18. In Nirmala J. Jhala v. State of Gujarat and another, 2013 (31) LCD 762, Hon’ble Supreme Court on the basis of consistent view taken by it in its previous decisions rendered in Amlendu Ghosh v. District Traffic Superintendent, North-Eastern Railway, Katiyar, AIR 1960 SC 992 , Chiman Lal Shah v. Union of India, AIR 1964 SC 1854 and Narayan Dattatraya Ramteerathakhar v. State of Maharashtra and others, AIR 1997 SC 2148 in para 23 and 25 of the report observed as under : “23. In view of above, it is evident that the evidence recorded in preliminary inquiry cannot be used in regular inquiry as the delinquent is not associated with it, and opportunity to cross-examine the persons examined in such inquiry is not given. Using such evidence would be violative of the principles of natural justice. 25. The preliminary enquiry may be useful only to take a prima facie view, as to whether there can be some substance in the allegation made against an employee which may warrant a regular enquiry.” 19. In view of above we are of the opinion that a grave error was committed by the Enquiry Officer as well as the Disciplinary Authority in placing reliance upon verification reports which evidence was part of preliminary enquiry and had lost its significance during the final enquiry. Any reliance could have been placed on the said documents only after they had been duly proved by the witnesses and an opportunity had been given to the delinquent to make cross-examination with them. The procedure adopted was clearly a violation of the principles of natural justice. 20. As regards, the arguments advanced by learned Additional Chief Standing Counsel that only preponderance of probabilities have to be considered and strict proof of evidence would not be required in departmental proceedings reference again may be made of the case of Nirmala J. Jhala (Supra) wherein the Hon’ble Apex Court while distinguishing the standard of proof required in disciplinary proceedings and a criminal trial after considering several earlier decisions rendered by it, held in para 6(i)G of the report about disciplinary proceedings to be quasi-judicial in which doctrine of proof beyond reasonable doubt, does not apply and instead principle of preponderance of probabilities would apply. The relevant extract of the said para is reproduced as under: “6 (i) G. In view of the above, the law on the issue can be summarised to the effect that the disciplinary proceedings are not a criminal trial, and in spite of the fact that the same are quasi-judicial and quasi-criminal, doctrine of proof beyond reasonable doubt, does not apply in such cases, but the principle of preponderance of probabilities would apply. The Court has to see whether there is evidence on record to reach the conclusion that the delinquent had committed a misconduct. The Court has to see whether there is evidence on record to reach the conclusion that the delinquent had committed a misconduct. However, the said conclusion should be reached on the basis of test of what a prudent person would have done.” 21. It would be pertinent also to note that in the above decision itself in para 29(iv) of the report Hon’ble Apex Court on the question of onus of proof in departmental proceedings has held in its conclusion that the onus to prove the charge lies on the department. 22. It has to be thus clearly borne in mind that during the course of final enquiry in the departmental proceedings although principle of preponderance of probabilities would apply yet the basic rules of pleadings and evidence cannot be allowed to be circumvented by the enquiry or Disciplinary Oficer during such proceedings. The onus of proving the charge would invariably be on the department unless the charge has been in very clear, unequivocal and unambiguous terms admitted by the delinquent. 23. Lastly, we may emphasise that we are alive to the legal proposition as argued by learned Additional Standing Counsel that this Court cannot scrutinise the matter in its writ jurisdiction as if it is sitting in appeal. We are of the considered view that taking into consideration a preliminary enquiry during a regular enquiry and that too without conducting any oral enquiry in contravention of the prescribed Rules would be a mere casual exercise violating also the rules of natural justice envisaged under Article 311(2) of the Constitution of India. Such an enquiry report cannot be sustained in the eyes of law. Resultantly, the impugned order of punishment also deserves to be quashed. 24. Accordingly, allowing the writ petition, the impugned order of punishment dated 4.1.2006 is quashed on the ground that no enquiry was held. In the peculiar facts and circumstances of the case, we are also of the view that since the petitioner has retired long ago, it would not be justifiable to continue with the departmental enquiry anymore. The petitioner is entitled to receive all his pensionary dues without any reduction. ——————