JUDGMENT By the Court.—Heard Sri A.P. Singh, learned counsel for appellant and learned Standing Counsel for respondents. 2. This intra Court appeal filed under Chapter VIII Rule 5 of Allahabad High Court Rules, 1952 has arisen from judgment and order dated 10.12.2012 passed by learned Single Judge, dismissing appellant’s Writ Petition No. 2927 (SS) of 2009. 3. Petitioner had challenged dismissal order dated 12.5.2005 on various grounds including that no enquiry was conducted against petitioner and even charge-sheet was not served. It has been non suited by learned Single Judge by observing that original record was perused and therefrom it was noted that notice sent to petitioner on 29.3.2004 by process server, who submitted report that petitioner has refused to accept the same. Similarly, a charge-sheet dated 20.5.2004 was issued and sought to be served by special messenger, Sri Ram Lot, Z.O. Staff, Gonda who also reported that on 21.5.2004 when he went to petitioner’s residence he was present but refused to receive the same. Thereafter Enquiry Officer submitted report and dismissal order was passed. Learned Single Judge has held that in view thereof, petitioner himself is responsible for not accepting the documents and cannot complain of non service of documents and hence it cannot be said that no opportunity was given. 4. However, learned counsel for appellant, contended that for the purpose of service of ‘’charge-sheet’ upon a delinquent employee, a specific procedure has been prescribed under Rule 7 (v) of U.P. Government Servant (Discipline and Appeal) Rules, 1999 (hereinafter referred to as “Rules 1999”) which reads as under : “7. Procedure for imposing major penalties ................ (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 servant 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.” (emphasis added) 5. 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.” (emphasis added) 5. In the present case, no oral enquiry has been conducted, since delinquent employee did not submit reply to the charge-sheet and Enquiry Officer directly submitted report hold charges proved and thereafter punishment order was passed. Sri Singh urged that this procedure was patently illegal, in utter violation of principles of natural justice and also contrary to Rules. 6. From the record it is evident that pursuant to order of transfer dated 22.6.2001, appellant Subhash Chandra was relieved from office of Divisional Officer, Lucknow so as to join in office of Superintendent of Police, Intelligence Office, Faizabad. He was relieved on 28.6.2001 from office at Lucknow. However he did not submit joining report at Faizabad till August 2003. He was placed under suspension by order dated 30.8.2003 in a contemplated disciplinary enquiry. Thereafter a charge-sheet was attempted to be served upon petitioner by special messenger but he declined to accept the same. It was also sent by registered post but again appellant refused. Ultimately a show-cause notice was served by pasting at the residence of appellant at House No. 49, Seventh Lane, Nishatganj, Lucknow on 2.3.2005. Since appellant was a peon, procedure for departmental enquiry was governed by Rules 1999. It is said that repeated information was given to petitioner to submit reply to charge-sheet by Enquiry Officer and he fixed 29.5.2004 for oral enquiry but appellant did not appear. Hence Enquiry Officer proceeded with oral enquiry and submitted report on 18.8.2004. Again Enquiry Officer sent a notice dated 1.9.2004 alongwith charge-sheet and same was attempted to be served by registered post/special messenger and through Senior Superintendent of Police, Lucknow. Registered post was received back unserved and the special messenger also could not serve since appellant was not available and his wife and children refused to receive the documents and special messenger then affixed the same and submitted report on 4.9.2004. Enquiry Officer again submitted another report on 30.9.2004 to the disciplinary authority. Agreed with Enquiry Officer’s report, disciplinary authority issued notice dated 6.12.2004 and thereafter passed punishment order dated 12.4.2005. Enquiry Officer again submitted another report on 30.9.2004 to the disciplinary authority. Agreed with Enquiry Officer’s report, disciplinary authority issued notice dated 6.12.2004 and thereafter passed punishment order dated 12.4.2005. These facts have been stated in the counter-affidavit filed by respondents before this Court. 7. Learned Single Judge has observed that oral enquiry was not conducted to prove the charge, but looking to nature of allegations made against appellant, charge was self proved and nothing further was required to prove it. It has been observed in the judgment under appeal that petitioner’s absence from duty from 28.6.2001 is itself evident since he has admitted that he fell ill since 24.6.2001 and when declared fit attended office, but he was not permitted to join. Learned Single Judge has observed that explanation of appellant was unbelievable and since his absence from duty was unauthorised and as admitted by him there was no occasion to proceed for further enquiry since it would be an empty formality. It is urged that in a case where procedure for enquiry is governed by statutory Rules and particularly when Constitution also confers a right upon holder of a civil post that he would not be dismissed or removed or reduced rank except after giving adequate opportunity of defence, if procedure prescribed giving adequate opportunity of defence is not followed, punishment of dismissal would be in the teeth of constitutional promotion and cannot be upheld. Moreover, learned Single Judge has treated absence of appellant from duty as intentional deliberate though there was no such admission of appellant. Mere absence from duty without permission is not per se, wilfull, intentional and deliberate so as to constitute misconduct since it would depend to the facts whether absence was for valid reasons or not. In absence of specific admission by delinquent employee that he willfully avoided joining of duty the burden of proof is upon department. It has to prove that absence of duty without permission is not only unauthorised but also willful and intentional and therefore, constitute misconduct under Rules. Such misconduct could not and ought not have been presumed by Court in absence of specific admission that absence is willful and deliberate. The reason given by employee explaining absence, without there being any evidence adduced by department to prove charge could not to have been examined in directly by Court in writ jurisdiction. 8. Such misconduct could not and ought not have been presumed by Court in absence of specific admission that absence is willful and deliberate. The reason given by employee explaining absence, without there being any evidence adduced by department to prove charge could not to have been examined in directly by Court in writ jurisdiction. 8. First of all, we find that for the purpose of service of charge-sheet, the procedure required in Rule 7 was not followed. It very specifically contemplates that a charge-sheet shall be served on the charged Government servant, personally or by registered post at the address mentioned in official records. In case it could not be served in the aforesaid manner then charge-sheet shall be served by publication in a daily newspaper having wide circulation. Service of charge-sheet is mandatory. If personal service or registered post, if did not yield result of service of charge-sheet upon appellant, then Rules contemplate a mandatory procedure of publication of such charge-sheet in a daily newspaper having wide circulation. 9. Admittedly in the present case such procedure was not followed. Reasons for non observance could not be explained by learned Standing Counsel and on the contrary after having gone through the record he admits that said procedure was not followed. This lapse itself vitiates entire proceedings for the reason, when charge-sheet itself was not served upon delinquent employee, further question that he did not appear or reply to charge-sheet, or that enquiry could have proceeded ex parte, would not arise. It is also evident from record that even before service of charge-sheet, Enquiry Officer submitted some report and thereafter again he attempted to serve charge-sheet alongwith notice and treated service by affixation as sufficient so as to proceed to submit his report. Service of affixation at the address given by employee is not a recognised mode of service under Rule 7. It was not open to respondents to treat a mode of service not recognised under the Rules for deeming service of charge-sheet upon the delinquent employee. The efficacy of Rules could not have been added or supplemented by Enquiry Officer or disciplinary authority by evolving their own process though under the Rule such procedure has not been recognised. 10. It was not open to respondents to treat a mode of service not recognised under the Rules for deeming service of charge-sheet upon the delinquent employee. The efficacy of Rules could not have been added or supplemented by Enquiry Officer or disciplinary authority by evolving their own process though under the Rule such procedure has not been recognised. 10. Copy of charge-sheet is also on record which is dated 20.5.2004 and it contains a single charge that appellant did not comply with order of transfer and is unauthorisedly absent since the date he was relieved on 28.1.2001. The evidence in support of charges included documentary as as well as oral and ten witnesses are mentioned in charge-sheet besides three documentary evidences. 11. Neither there is anything to show that relied upon documents were supplied to appellant nor we find anything from record that all ten witnesses were actually examined by Enquiry Officer. 12. In para 4 of counter-affidavit filed by respondents 1, 2 and 3 and sworn by Sri Lala Ram, Deputy Superintendent of Police (M), Abhisuchna Mukhyalaya, U.P. Lucknow, it is not stated anywhere as to what enquiry was conducted by Enquiry Officer. It only says that after treating service of charge-sheet by affixation as informed by two witnesses on 23.3.2005, proceedings were concluded and order of punishment was passed. Service report by affixation dated 4.9.2004 shows that appellant was not present when special messenger alongwith witnesses visited appellant’s residence and notice in charge-sheet was read before wife and children of appellant and affixed on the main gate of residence. 13. It appears that respondents treated service of charge-sheet as a summon, process whereof is governed by procedural Code and for the reasons best known to them they totally ignored the procedure prescribed under statutory Rules which govern departmental enquiry of appellant. 14. We have quoted Rules 7 of Rules 1999 which is very clear and admittedly service of charge-sheet in the manner stated in Rule 7 has not been given effect to and admittedly there was no publication in daily newspaper having wide circulation. 14. We have quoted Rules 7 of Rules 1999 which is very clear and admittedly service of charge-sheet in the manner stated in Rule 7 has not been given effect to and admittedly there was no publication in daily newspaper having wide circulation. However, learned Single Judge has also admitted that procedure of oral enquiry has not been observed but he has not taken it a serious flaw since he treated the charge proved due to admission of appellant though there was no such admission and to this extent we find that assumption on the part of learned Single Judge is not based on record. So far as mandatory nature of oral enquiry is concerned and its consequence on major penalty is concerned it is well-settled. 15. In Meenglas Tea Estate v. The workmen, AIR 1963 SC 1719 , the Supreme Court observed “It is an elementary principle that a person who is required to answer a charge must know not only the accusation but also the testimony by which the accusation is supported. He must be given a fair chance to hear the evidence in support of the charge and to put such relevant questions by way to cross-examination as he desires. Then he must be given a chance to rebut the evidence led against him. This is the barest requirement of an enquiry of this character and this requirement must be substantially fulfilled before the result of the enquiry can be accepted. 16. In State of U.P. v. C.S. Sharma, AIR 1968 SC 158 , Court held that omission to give opportunity to the officer to produce his witnesses and lead evidence in his defence vitiates the proceedings. 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. 17. In Punjab National Bank v. A.I.P.N.B.E. Federation, AIR 1960 SC 160 , (vide para 66), 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). 18. 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). 18. In S.C. Girotra v. United Commercial Bank, 1995 Supp. (3) SCC 212, Court set aside a dismissal order which was passed without giving employee an opportunity of cross-examination. 19. This Court in Subhas Chandra Sharma v. Managing Director and another, 2000(1) UPLBEC 541 , said : “In our opinion after the petitioner replied to the charge-sheet a date should have been fixed for the enquiry and the petitioner should have been intimated the date, time and place of the enquiry and on that date the oral and documentary evidence against the petitioner should have been led in his presence and he should have been given an opportunity to cross-examine the witnesses against him and also he should have been given an opportunity to produce his own witnesses and evidence. If the petitioner in response to this intimation had failed to appear for the enquiry then an ex parte enquiry should have been held but the petitioner’s service should have not been terminated without holding an enquiry. In the present case it appears that no regular enquiry was held at all. All that was done that after receipt of the petitioner’s reply to the charge-sheet he was given a show-cause notice and thereafter the dismissal order was passed. In our opinion this was not the correct legal procedure and there was violation of the rules of natural justice. Since no date for enquiry was fixed nor any enquiry held in which evidence was led in our opinion the impugned order is clearly violative of natural justice.” 20. The above judgment was followed by a Division Bench in Subhash Chandra Sharma v. U.P. Co-operative Spinning Mills and others (supra) the Court held thus: “In cases where a major punishment proposed to be imposed an oral enquiry is a must, whether the employee request, for it or not. For this it is necessary to issue a notice to the employee concerned intimating him date, time and place of the enquiry as held by the Division Bench of this Court in Subhash Chandra Sharma v. Managing Director, (2000) 1 UPLBEC 541 , against which SLP has been dismissed by the Supreme Court on 16-8-2000.” 21. For this it is necessary to issue a notice to the employee concerned intimating him date, time and place of the enquiry as held by the Division Bench of this Court in Subhash Chandra Sharma v. Managing Director, (2000) 1 UPLBEC 541 , against which SLP has been dismissed by the Supreme Court on 16-8-2000.” 21. In the State of Uttar Pradesh v. Saroj Kumar Sinha, (2010) 2 SCC 772 , Court held that : “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. 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.” 22. Similar view was taken in Roop Singh Negi v. Punjab National Bank, (2009) 2 SCC 570 , as under : “Indisputably, a departmental proceeding is a quasi-judicial proceeding. The enquiry officer performs a quasi-judicial function. The charges levelled against the delinquent officer must be found to have been proved. The enquiry officer has a duty to arrive at a finding upon taking into consideration the materials brought on record by the parties. The purported evidence collected during investigation by the investigating officer against all the accused by itself could not be treated to be evidence in the disciplinary proceeding. No witness was examined to prove the said documents. The management witnesses merely tendered the documents and did not prove the contents thereof. 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.” 23. One of us (Sudhir Agarwal, J.) in Rajesh Prasad Mishra v. Commissioner, Jhansi Division, Jhansi and others, 2011(1) ADJ 135 , observed as under after detail analysis: “Now coming to the question, what is the effect of non-holding of oral inquiry, I find that, in a case where the inquiry officer is appointed, oral inquiry is mandatory. The charges are not deemed to be proved suo motu merely on account of levelling them by means of the charge-sheet unless the same are proved by the department before the inquiry officer and only thereafter it is the turn of delinquent employee to place his defence. Holding oral enquiry is mandatory before imposing a major penalty, as held by Apex Court in State of U.P. and another v. T.P. Lal Srivastava, 1997 (1) LLJ 831 as well as by a Division Bench of this Court in Subhash Chandra Sharma v. Managing Director and another, 2000 (1) UPLBEC 541 .” 24. In another case in Subhash Chandra Gupta v. State of U.P., 2011(8) ADJ 395 (DB), the Division Bench of this Court after survey of law on this issue observed as under: “It is well-settled that when the statute provides to do a thing in a particular manner that thing has to be done in that very manner. We are of the considered opinion that any punishment awarded on the basis of an enquiry not conducted in accordance with the enquiry rules meant for that very purposes is unsustainable in the eye of law. We are further of the view that the procedure prescribed under the inquiry rules for imposing major penalty is mandatory in nature and unless those procedures are followed, any out come inferred thereon will be of no avail unless the charges are so glaring and unrefutable which does not require any proof. We are further of the view that the procedure prescribed under the inquiry rules for imposing major penalty is mandatory in nature and unless those procedures are followed, any out come inferred thereon will be of no avail unless the charges are so glaring and unrefutable which does not require any proof. The view taken by us find support from the judgement of the Apex Court in State of U.P. and another v. T.P.Lal Srivastava, 1997 (1) LLJ 831 as well as by a Division Bench of this Court in Subash Chandra Sharma v. Managing Director and another, 2000 (1) UPLBEC 541 . A Division Bench decision of this Court in the case of Salahuddin Ansari v. State of U.P. and others, 2008(3) ESC 1667, held that non holding of oral inquiry is a serious flaw which can vitiate the order of disciplinary proceeding including the order of punishment has observed as under : “ 10....... Non holding of oral inquiry in such a case, is a serious matter and goes to the root of the case. 11. A Division Bench of this Court in Subash Chandra Sharma v. Managing Director and another, 2000 (1) UPLBEC 541 , considering the question as to whether holding of an oral inquiry is necessary or not, held that if no oral inquiry is held, it amounts to denial of principles of natural justice to the delinquent employee. The aforesaid view was reiterated in Subash Chandra Sharma v. U.P. Cooperative Spinning Mills and others, 2001 (2) UPLBEC 1475 and Laturi Singh v. U.P. Public Service Tribunal and others, Writ Petition No. 12939 of 2001, decided on 6.5.2005.” 25. Even if the employee refuses to participate in the enquiry the employer cannot straightaway dismiss him, but he must hold and ex parte enquiry where evidence must be led vide Imperial Tobacco Co. Ltd. v. Its Workmen, AIR 1962 SC 1348 , Uma Shankar v. Registrar, 1992 (65) FLR 674 (All). 26. A Division Bench of this Court in Mahesh Narain Gupta v. State of U.P. and others, (2011) 2 ILR 570, had also occasion to deal with the same issue. Ltd. v. Its Workmen, AIR 1962 SC 1348 , Uma Shankar v. Registrar, 1992 (65) FLR 674 (All). 26. A Division Bench of this Court in Mahesh Narain Gupta v. State of U.P. and others, (2011) 2 ILR 570, had also occasion to deal with the same issue. It held: “At this stage, we are to observe that in the disciplinary proceedings against a delinquent, the department is just like a plaintiff and initial burden lies on the department to prove the charges which can certainly be proved only by collecting some oral evidence or documentary evidence, in presence and notice charged employee. Even if the department is to rely its own record/document which are already available, then also the enquiry officer by looking into them and by assigning his own reason after analysis, will have to record a finding that hose documents are sufficient enough to prove the charges. In no case, approach of the Enquiry Officer that as no reply has been submitted, the charge will have to be automatically proved can be approved. This will be erroneous. It has been repeatedly said that disciplinary authority has a right to proceed against delinquent employee in ex parte manner but some evidence will have to be collected and justification to sustain the charges will have to be stated in detail. The approach of the enquiry officer of automatic prove of charges on account of non filing of reply is clearly misconceived and erroneous. This is against the principle of natural justice, fair play, fair hearing and, thus, enquiry officer has to be cautioned in this respect.” 27. Recently the entire law on the subject has been reviewed and reiterated in Chamoli District Co-operative Bank Ltd. v. Raghunath Singh Rana and others, AIR 2016 SC 2510 and Court has culled out certain principles as under: “(i) The enquiries must be conducted bona fide and care must be taken to see that the enquiries do not become empty formalities. (ii) If an officer is a witness to any of the incidents which is the subject-matter of the enquiry or if the enquiry was initiated on a report of an officer, then in all fairness he should not be the Enquiry Officer. (ii) If an officer is a witness to any of the incidents which is the subject-matter of the enquiry or if the enquiry was initiated on a report of an officer, then in all fairness he should not be the Enquiry Officer. If the said position becomes known after the appointment of the Enquiry Officer, during the enquiry, steps should be taken to see that the task of holding an enquiry is assigned to some other officer. (iii) In an enquiry, the employer/department should take steps first to lead evidence against the workman/delinquent charged and give an opportunity to him to cross-examine the witnesses of the employer. Only thereafter, the workman/delinquent be asked whether he wants to lead any evidence and asked to give any explanation about the evidence led against him. (iv) On receipt of the enquiry report, before proceeding further, it is incumbent on the part of the disciplinary/punishing authority to supply a copy of the enquiry report and all connected materials relied on by the enquiry officer to enable him to offer his views, if any.” 28. The principal of law emanates from the above judgments are that initial burden is on the department to prove the charges. In case of procedure adopted for inflicting major penalty, the department must prove the charges by oral evidence also. 29. From perusal of 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. 30. 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 visit 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 enquiry the department has to establish the charges against the employee by adducing oral as well as documentary evidence. The major punishment awarded to an employee visit 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 enquiry the department has to establish the charges against the employee by adducing oral as well as documentary evidence. In case charges warrant major punishment then the oral evidence by producing the witnesses is necessary. 31. We may hasten to add that the above mentioned law is subject to certain exception. When the facts are admitted or no real prejudice has been caused to employee or no other conclusion is possible, in such situation the order shall not be vitiated. Reference may be made to the some of the decision of Supreme Court in K.L. Tripathi v. State Bank of India, AIR 1984 SC 273 ; State Bank of Patiala v. S.K. Sharma, AIR 1996 SC 1669 ; and Biecco Lawrie Ltd. v. West Bengal, (2009) 10 SCC 32 . 32. In view of aforesaid exposition of law and facts stated therein, the entire procedure followed by respondents in passing impugned order of dismissal is patently illegal and we are also of the view that learned Single Judge has erred in law in not considering Rule 7 (v) of Rules 1999, which specifically provides procedure for service of charge-sheet. 33. In the result, judgment under appeal cannot be sustained. Appeal is allowed. Judgment 10.12.2012 passed by learned Single Judge in Writ Petition No. 2927 (SS) of 2009 is hereby set aside and dismissal order impugned in the writ petition dated 12.5.2005 is also set aside and the writ petition is allowed. 34. Petitioner shall be entitled for all consequential benefits. However, this judgment shall not preclude respondents from proceeding in law against petitioner-appellant and pass a fresh order in accordance with law.