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2017 DIGILAW 366 (ALL)

MAZDA BEGUM v. STATE OF U. P.

2017-01-30

ANANT KUMAR, SUDHIR AGARWAL

body2017
JUDGMENT By the Court.—Heard Sri Vijay Dixit, learned counsel for appellants and learned Standing Counsel for respondents. 2. This intra-Court appeal under Chapter VIII Rule 5 of Allahabad High Court Rules, 1952 has arisen from judgment and order dated 5.2.2014 passed by learned Single Judge dismissing appellants’ Writ Petition No. 3156 (SS) of 1988, challenging order of dismissal dated 18.2.1988, on the ground that since Tanveer Husain did not submit any reply to charge-sheet, therefore, he cannot say that no opportunity was given and disciplinary authority was justified in treating charges proved and passing order of punishment. 3. It is also evident from judgment under appeal that petitioner-employee, Tanveer Husain died during pendency of writ petition and substituted by legal heirs, therefore, this writ petition now survive only with respect to consequential benefits, if any, in case punishment order is found vitiated in law and set aside. 4. Brief facts relevant for adjudication of issues raised in this appeal may be narrated as under. 5. Sri Tanveer Husain (original petitioner, now deceased and substituted by his legal heirs, hence would be referred to as the “deceased employee”) working as Senior Assistant in the office of Director, Planning, Research and State Planning Insitute, Kalakankar, House, Lucknow, was served with a charge-sheet dated 31.12.1986 containing allegations relating to year 1978-79 and 1982-83. It requires deceased-employee to show-cause, why a sum of Rs. 6200/- be not recovered from him and regular departmental inquiry be not initiated for misusing his position. Thereafter a show-cause notice was issued on 2.1.1987 requiring deceased-employee to show-cause why recovery of Rs. 23,552/- be not made from him. 6. Complaining against Director’s conduct, deceased-employee sent letter dated 22.6.1987 to State Government through Secretary, Planning Department, whereafter deceased-employee received another order dated 24.6.1987 to show-cause why Rs. 6,000/-, advanced to him, be not recovered in single installment. 7. A charge-sheet dated 2.7.1987 was served upon deceased-employee containing nine charges alleging that he submitted wrong report, withdrew excess amount than permitted, obtained advances in violation of rules etc. Charge-sheet was issued by Sri Babu Lal Singh, the then Director, Planning and Research, State Planning Institute himself and we find from record that in respect of some of the charges like Charges No. 1 and 4, Director’s own documents were relied in evidence. 8. Charge-sheet was issued by Sri Babu Lal Singh, the then Director, Planning and Research, State Planning Institute himself and we find from record that in respect of some of the charges like Charges No. 1 and 4, Director’s own documents were relied in evidence. 8. Deceased-employee sent a letter dated 16.7.1987 to State Government requesting for change of officer to conduct inquiry alleging that he has already made serious complaints against Director and, therefore has no hope of getting justice from him (Director) particularly when Director himself has issued charge-sheet and conducting inquiry. A reminder was also sent by deceased-employee which is Annexure-7 to the affidavit accompanying stay application, in this appeal. 9. Director also lodged a First Information Report against deceased-employee on 4.8.1987 in respect of same allegations which constitute part of charge-sheet dated 2.7.1987. 10. On 19.8.1987 Director placed deceased-employee under suspension. Deceased-employee then again represented to Government vide letter dated 7.12.1987 requesting for change of officer conducting inquiry and take final decision since Director was seriously prejudiced as deceased-employee has repeatedly made complaint against him. 11. Thereafter no oral inquiry was conducted at all and a show-cause notice was issued by Director on 2.1.1988 stating that charges levelled in charge-sheet stand proved since deceased-employee has not denied same by submitting any reply. It also held that oral inquiry was not necessary since charges are based on documents and stand proved. Consequently, Sri Babu Lal Singh, the then Director required deceased-employee to show-cause, why he should not be dismissed from service. Thereafter, same Director passed impugned order of punishment dated 18.2.1988 dismissing deceased-employee from service. Deceased-employee then preferred an appeal which was rejected by State Government vide order dated 19.5.1990. 12. Challenging aforesaid order of punishment, deceased-employee filed Writ Petition No. 3156 of 1988 (SS) but same has been dismissed by learned Single Judge observing that despite time granted by disciplinary authority, i.e., Director, neither deceased-employee submitted any reply to charge-sheet nor to show-cause notice dated 2.1.1988 and it shows that deceased-employee had no intention to participate in proceedings or deposit amount embezzled by him. Learned Single Judge has held that firstly charges were founded on documents and secondly since deceased-employee himself did not particulate in inquiry, therefore, he cannot raise any grievance that principles of natural justice have been violated. 13. Learned Single Judge has held that firstly charges were founded on documents and secondly since deceased-employee himself did not particulate in inquiry, therefore, he cannot raise any grievance that principles of natural justice have been violated. 13. Learned counsel for petitioners-appellants firstly contended that in the present case disciplinary authority and Inquiry Officer was same, i.e., Director and his own documents were relied as evidence, hence Director also stood in the position of witness. It is true that in support of charges only documents were relied but when a documentary evidence is relied, author of document has to appear in inquiry proceedings, not only to prove the contents of documents but also for examination by delinquent employee, otherwise such a document, author whereof is not examined, is a mere hearsay and inadmissible even in departmental inquiry. 14. Secondly, it is contended, when Director himself was in the position of witness, since in respect of some charges his own documents were relied in evidence, he stood disqualified either to hold inquiry himself or pass an order in the capacity of disciplinary authority inasmuch as it is a case where he himself would have become a judge in his own cause and hence should have recused and requested Government to authorise any other officer of same rank or appropriate action could have been taken by next higher authority but Director, who passed impugned order was clearly disqualified. 15. Thirdly, it is contended that even if deceased-employee did not reply charge-sheet, but non submission of reply does not mean that charges are accepted. In these circumstances it was incumbent upon Inquiry Officer to undertake oral inquiry to prove charges and mere levelling of charges in charge-sheet per se cannot be deemed proved and a major penalty of removal cannot be imposed without holding oral inquiry. 16. It is contended that allegations in charges are not such which could have been said to be proved by documents only. For example, in charge No. 1, it is said that deceased-employee has shown a forged purchase voucher of Scooter. Whether document was forged or not, require due evidence. Similarly, in charge No. 4 it is said that certain documents were removed from record by deceased-employee. For example, in charge No. 1, it is said that deceased-employee has shown a forged purchase voucher of Scooter. Whether document was forged or not, require due evidence. Similarly, in charge No. 4 it is said that certain documents were removed from record by deceased-employee. This allegation has to be proved by adducing evidence since no such document is relied which may show that either deceased-employee admitted such removal of document or there was anything else to prove this charge. Record was an evidence which only could have shown that certain documents, part of record are not there but who removed those documents, how and when, is a matter of investigation of facts and this allegation which is foundation of charge No. 4 could not have been said to be proved merely by documents and without holding oral inquiry. It is thus contended that learned Single Judge in observing that charges, since were founded only on documents, hence no oral inquiry was necessary, has erred in law inasmuch as even documents per se could not have been held proved for the reason that contents of documents have to be proved by author of documents when those documents are not admitted, otherwise such document is inadmissible in evidence even in departmental inquiry. 17. So far as first submission is concerned, it is settled law that unless contents of a document which is not admitted, are proved by its author, who is examined before inquiry officer and is made available for cross-examination by delinquent employee, such document cannot be deemed to be proved and therefore such document cannot be relied to hold a delinquent employee guilty and impose punishment upon him. We are fortified in taking this view by Apex Court’s judgment in M/s Bareilly Electricity Supply Co. Ltd. v. The Workmen and others, AIR 1972 SC 330 , where Court in para 14 of judgment has observed as under: “But the application of principle of natural justice does not imply that what is not evidence can be acted upon. On the other hand what it means is that no materials can be relied upon to establish a contested fact which are not spoken to by persons who are competent to speak about them and are subjected to cross-examination by the party against whom they are sought to be used. On the other hand what it means is that no materials can be relied upon to establish a contested fact which are not spoken to by persons who are competent to speak about them and are subjected to cross-examination by the party against whom they are sought to be used. When a document is produced in a Court or a Tribunal the question that naturally arises is, is it a genuine document, what are its contents and are the statements contained therein true. When the Appellant produced the balance-sheet and profit and loss account of the Company, it does not by its mere production amount to a proof of it or of the truth of the entries therein. If these entries are challenged the Appellant must prove each of such entries by producing the books and speaking from the entries made therein. If a letter or other document is produced to establish some fact which is relevant to the enquiry the writer must be produced or his affidavit in respect thereof be filed and opportunity afforded to the opposite party who challenges this fact. This is both in accord with principles of natural justice as also according to the procedure under Order XIX Civil Procedure Code and the Evidence Act both of which incorporate these general principles. Even if all technicalities of the Evidence Act are not strictly applicable except in so far as Section 11 of the Industrial Disputes Act, 1947 and the rules prescribed therein permit it, it is inconceivable that the Tribunal can act on what is not evidence such as hearsay, nor can it justify the Tribunal in basing its award on copies of documents when the originals which are in existence are not produced and proved by one of the methods either by affidavit or by witness who have executed them, if they are alive and can be produced. Again if a party wants an inspection, it is incumbent on the Tribunal to give inspection in so far as that is relevant to the enquiry. The applicability of these principles are well recognised and admit of no doubt.” (para-14) (emphasis added) 18. Again if a party wants an inspection, it is incumbent on the Tribunal to give inspection in so far as that is relevant to the enquiry. The applicability of these principles are well recognised and admit of no doubt.” (para-14) (emphasis added) 18. Similar view has also been taken in Union of India v. Sardar Bahadur, 1972(4) SCC 618 ; Rajesh Prasad Mishra v. The Commissioner Jhansi Division, Jhansi and others, 2011(1) ADJ 135 and State of U.P. v. Aditya Prasad Srivastava and another (Service Bench No. 585 of 2011), decided on 17.1.2017. 19. Now we come to second submission, i.e., none shall be judge in his own cause. The two principles considered to be the pillars of principles natural Justice are: (1) nobody shall be condemned unheard, i.e., without hearing and (2) none shall be judge in his own cause. The above twin pillars, however, admits certain exceptions to their application for the reason that these are principles of administrative law and one of the exception which is well recognized is exclusion by a Statute. If a Statute provides otherwise, the above principle may/cannot be applied strictly. 20. Similarly, there are some other exceptions also like doctrine of “Useless formality’. One of them is “doctrine of necessity”. Then there may be certain cases where no substitution is possible. None other may have been empowered to act since the power is conferred upon the person who is the complainant himself. In such circumstances, the principle of necessity has been applied and it has been said that the natural justice will have to make way to necessity otherwise there would not be anyone to take a decision and such a situation cannot be conceived and also cannot be countenanced in any system of justice or administration. 21. There are ample authorities on the subject which are well recognized in administrative law. One of the earliest case is A.K. Kraipak v. Union of India, AIR 1970 SC 150 , where this doctrine was considered vis-a-vis the plea of bias of a Selection Committee. 21. There are ample authorities on the subject which are well recognized in administrative law. One of the earliest case is A.K. Kraipak v. Union of India, AIR 1970 SC 150 , where this doctrine was considered vis-a-vis the plea of bias of a Selection Committee. It was alleged that one of the Member of Selection Committee was closely related to a candidate appearing for selection and, therefore, his mere withdrawal when the candidate concerned came to be interviewed by the Selection Committee would make no difference since very factum of his being Member of Selection Committee is bound to affect selection and non-selection of a candidates when it is a competitive test. Court did not agree with the widest proposition but held that where selection is to be made by a constitutional authority like Public Service Commission, if substitution of the Members is not possible, the selection in such circumstances by itself would not be vitiated. However, when a close relative of a Member of Public Service Commission appears for interview such Member must withdraw from participating in interview of that candidate and must not take part in any discussion in regard to the merits of that candidate and even the marks and credits given to that candidate should not be disclosed to such Member. 22. The “doctrine of necessity” has been discussed by various Jurists and Prof. H.W.R. Wade in Administrative Law (5th Edn.) at pages 426 and 427, in para 14, and has said: “In all the cases so far mentioned the disqualified adjudicator could be dispensed with or replaced by someone to whom the objection did not apply. But there are many cases where no substitution is possible, since no one else is empowered to act. Natural justice then has to give way to necessity, for otherwise there is no means of deciding and the machinery of justice or administration will break down.” 23. It has further said: “In administrative cases the same exigency may easily arise. Where statute empowers a particular minister or official to act, he will usually be the one and only person who can do so. There is then no way of escaping the responsibility, even if be is personally interested. Transfer of responsibility is, indeed, a recognized type of ultra vires. Where statute empowers a particular minister or official to act, he will usually be the one and only person who can do so. There is then no way of escaping the responsibility, even if be is personally interested. Transfer of responsibility is, indeed, a recognized type of ultra vires. In one case it was unsuccessfully argued that the only minister competent to confirm a compulsory purchase order for land for an airport had disqualified himself by showing bias and that the local authority could only apply for a local Act of Parliament. The Court will naturally not allow statutory machinery to be frustrated in this way. For similar reasons a governor of a colony may validly assent to an Act of indemnity for his own actions, since otherwise the Act could not be passed at all. It is generally supposed, likewise, that a minister must act as best he can even in a case where he, for instance, himself owns property which will be benefited if he approves a development plan. Such cases of private and personal interest are conspicuous by their absence in the law reports. But there have been cases involving public funds. The Local Government Superannuation Act, 1937 gave employees of local authorities statutory rights to pensions under certain conditions, but provided that any question concerning these rights should be decided first by the local authority, and then in case of dispute by the minister, whose decision on questions of fact was to be final. The Court of Appeal held that there was no escape from these clear provisions.” 24. In Election Commission of India and another v. Dr. Subramaniam Swamy and another, (1996) 4 SCC 104 , Court, applying doctrine of necessity, in para 16 of the judgment, observed: “16. We must have a clear conception of the doctrine. It is well-settled that the law permits certain things to be done as a matter of necessity which it would otherwise not countenance on the touchstone of judicial propriety. Stated differently, the doctrine of necessity makes It imperative for the authority to decide and considerations of judicial propriety must yield. It is often invoked in cases of bias where there is no other authority or Judge to decide the issue. Stated differently, the doctrine of necessity makes It imperative for the authority to decide and considerations of judicial propriety must yield. It is often invoked in cases of bias where there is no other authority or Judge to decide the issue. If the doctrine of necessity is not allowed full play in certain unavoidable situations, it would impede the course of Justice itself and the defaulting party would benefit therefrom. Take the case of a certain taxing statute which taxes certain perquisites allowed to Judges. If the validity of such a provision is challenged who but the members of the judiciary must decide it. If all the Judges are disqualified on the plea that striking down of such a legislation would benefit them, a stalemate situation may develop. In such cases the doctrine of necessity comes into play. If the choice is between allowing a biased person to act or to stifle the action altogether, the choice must fall in favour of the dormer as it is the only way to promote decision making. In the present case also, if the two Election Commissioners are able to reach a unanimous decision, there is no need for the Chief Election Commissioner to participate, if not the doctrine of necessity may have to be invoked.” 25. In Badrinath v. Government of Tamil Nadu and others, JT 2000 (Suppl 1) SC 346, Court said that unless there is a statute or statutory rule compelling the person to take a decision and there is no legally permissible alternative to substitute the adjudicator by another adjudicator, the doctrine of necessity cannot be pressed in the service. 26. In Amar Nath Chowdhury v. Braithwaite and Co. Ltd. and others, AIR 2002 SC 678 : 2002(1) AWC 517 (SC), Court discussing the doctrine of necessity, said: “One of the principles of natural justice is that no person shall be a judge in his own cause or the adjudicating authority must be impartial and must act without any kind of bias. The said rule against bias has its origin from the maxim known as “Debet Esse Judex in Propria Causa’, which is based on the principle that justice not only be done but should manifestly be seen to be done. This could be possible only when a Judge or an adjudicating authority decides the matter impartially and without carrying any kind of bias. This could be possible only when a Judge or an adjudicating authority decides the matter impartially and without carrying any kind of bias. Bias may be of different kind and form. It may be pecuniary, personal or there may be bias as to the subject-matter etc. In the present case, we are not concerned with any of the aforesaid form of bias. What we are concerned with in the present case is whether an authority can sit in appeal against its own order passed in the capacity of Disciplinary Authority.” 27. In Financial Commissioner (Taxation), Punjab and others v. Harbhajan Singh, (1996) 9 SCC 281 , Court said: “Settlement Officer has no jurisdiction to sit over the order passed by him as an Appellate Authority. In the present case, the subject-matter of appeal before the Board was whether the order of removal passed by the Disciplinary Authority was in conformity with law. It is not disputed that Shri S. Krishnaswami, the then Chairman-cum-Managing Director of the Company acted as a Disciplinary Authority as well as an Appellate Authority when he presided over and participated in the deliberations of the meeting of the Board while deciding the appeal of the appellant. Such a dual function is not permissible on account of established rule against bias. In a situation where such a dual function is discharged by one and the same authority, unless permitted by an act of legislation or statutory provision, the same would be contrary to rule against bias. Where an authority earlier had taken a decision, he is disqualified to sit in appeal against his own decision, as he already prejudged the matter otherwise such an appeal would be termed an appeal from Caesar to Caesar and filing of an appeal would be an exercise in futility. In that view of the matter, in the present case, fair play demanded that Shri Krishnaswami, the then Chairman-cum-Managing Director of the Company ought not to have participated in the “deliberations of the meeting of the Board when the Board heard and decided the appeal of the appellant.” 28. Dealing with this principle, a Division Bench of this Court in Dr. Virendra Kumar Sharma v. State of U.P., 2006(5) ADJ 233 (DB), has crystallized certain aspects on the doctrine of necessity and in para 21 it says: “21. Dealing with this principle, a Division Bench of this Court in Dr. Virendra Kumar Sharma v. State of U.P., 2006(5) ADJ 233 (DB), has crystallized certain aspects on the doctrine of necessity and in para 21 it says: “21. In view of foregoing discussions following legal propositions emerge in respect of administrative or quasi-judicial decisions tainted with bias: (1) If a selection committee constituted for the purpose of selecting candidates on merits and one of the member of the selection committee is closely related to a candidate appearing for selection it would not be enough for such member merely to withdraw from participation in the interview of the candidate related to him but must withdraw altogether from entire process of selection and ask the authorities to nominate another person in his place on the selection committee, otherwise selection would be vitiated. (2) The above principle as it stands cannot be applied in respect of selection made by Central or State Public Service Commissions, where member of the commission whose close relative is appearing for selection, consisting of interview or promotions etc. without interview, he need not to withdraw from selection altogether rather he should abstain in interview of his close relative and further deliberations in allocation of marks, but in multimember commissions where other alternatives are available, it would be most appropriate to leave the matter of interview and deliberations of allocations of marks to another member comprising Board of selection. (3) Where the selection committee is constituted under statutory rules or Government orders, a member is disqualified in a given situation vis-a-vis a particular candidate whose promotion or selection is in question there can be no difficulty in his recusing himself and requesting another officer to be substituted in his place in committee. Alternatively, when there are three or more members in such committee, the disqualified member could leave it to the other remaining members to take decision. In case however they differ then authority which constituted the committee, could be requested to nominate a third member In case of committee having three members. (4) The aforesaid rule shall also be applied with necessary modification in the matter pertaining to disciplinary action where the commission is to be consulted and in cases where the Inquiry Officer or Disciplinary or Appellate Authority is disqualified to take decision on account of bias, affecting such decision. (4) The aforesaid rule shall also be applied with necessary modification in the matter pertaining to disciplinary action where the commission is to be consulted and in cases where the Inquiry Officer or Disciplinary or Appellate Authority is disqualified to take decision on account of bias, affecting such decision. (5) There can be no difficulty in applying the rule in connection of members of screening committee constituted for the purpose of compulsory retirement with necessary modification, if any member of screening committee is disqualified on account of bias in taking even advisory decision. (6) However, before setting-aside such decisions tainted with bias, it is necessary for the Courts or Tribunals to examine that as to whether the decision can be saved by applying the doctrine of necessity in the manner indicated herein before as exception to the rule against bias affecting the decision but where there is no such statutory compulsion, the doctrine of necessity cannot be pressed into service.” (emphasis added) 29. It is not in dispute that Director was a witness in respect of certain charges and if that be so, he was disqualified to act as disciplinary authority. Instead, a superior authority could have functioned as disciplinary authority which has not been done, therefore, proceedings are vitiated being in violation of aforesaid principle. A person who himself was a witness has passed the impugned order of punishment and acted like a judge in his own cause. This is impermissible. 30. Now coming to third and last submission, i.e., effect of non-holding of oral inquiry, we find that, in a case where inquiry officer is appointed, oral inquiry is mandatory. When a departmental inquiry has been initiated with an intention to impose major penalty and Inquiry Officer is appointed, it is incumbent upon Inquiry Officer to hold oral inquiry else entire proceedings are vitiated in law. This Court may usefully refer to a discussion on this issue by a recent judgment of Supreme Court and a series of decisions of this Court. 31. In State of Uttar Pradesh v. Saroj Kumar Sinha, (2010) 2 SCC 772 , Court has held: “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. 31. In State of Uttar Pradesh v. Saroj Kumar Sinha, (2010) 2 SCC 772 , Court has held: “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.” (emphasis added) 32. Similar view was taken in Roop Singh Negi v. Punjab National Bank, (2009) 2 SCC 570 , where Court said : “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. Reliance, inter alia, was placed by the enquiry officer on the FIR which could not have been treated as evidence.” 33. This Court also has taken same view earlier in Subhash Chandra Sharma v. Managing Director, U.P. Co-op. 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.” 33. This Court also has taken same view earlier in Subhash Chandra Sharma v. Managing Director, U.P. Co-op. Spinning Mills Federation Ltd., Kanpur and another, 2000(1) UPLBEC 541 and 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.” “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”. In S.C. Girotra v. United Commercial Bank, 1995 Supp. 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”. In S.C. Girotra v. United Commercial Bank, 1995 Supp. (3) SCC 212, the Supreme Court set aside a dismissal order which was passed without giving the employee an opportunity of cross-examination. In State of U.P. v. C.S. Sharma, AIR 1968 SC 158 , the Supreme 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. In Punjab National Bank v. A.I.P.N.B.E. Federation, AIR 1960 SC 160 , (vide para 66) the Supreme Court held that in such enquiries evidence must be recorded in the presence of the charge-sheeted employee and he must be given an opportunity to rebut the said evidence. The same view was taken in A.C.C. Ltd. v. Their Workmen, (1963) II LLJ 396, and in Tata Oil Mills Co. Ltd. v. Their Workmen, (1963) II LLJ 78 (SC). Even if the employee refuses to participate in the enquiry the employer cannot straightaway dismiss him, but he must hold 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).” 34. The above judgment was followed by a Division Bench in Subhas Chandra Sharma v. U.P.Co-operative Spinning Mills and others, 2001 (2) UPLBEC 1475 , wherein Court held: “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.” 35. 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.” 35. This Court in Rajesh Prasad Mishra v. Commissioner, Jhansi Division, Jhansi and others, 2011(1) ADJ 135 , after a detailed analysis of earlier precedents on the subject, observed as under: “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 . The question as to whether non holding of oral inquiry can vitiate the entire proceeding or not has also been considered in detail by a Division Bench of this Court (in which I was also a member) in the case of Salahuddin Ansari v. State of U.P. and others, 2008(3) ESC 1667 and the Court has clearly held that non holding of oral inquiry is a serious flaw which vitiates the entire disciplinary proceeding including the order of punishment.” 36. In Mahesh Narain Gupta v. State of U.P. and others, 2011(5) ADJ 177 (DB), also this Court had an occasion to deal with the same issue and 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.” 37. In another case in Subhash Chandra Gupta v. State of U.P., 2012 (1) UPLBEC 166, a Division Bench of this Court, after survey of law on this issue, said: “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. 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 . 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. Co-operative 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.” 38. 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. 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. (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.” 39. The principal of law emanates from the above judgments is that initial burden is on the department to prove the charges. In case where inquiry is initiated with a view to inflict major penalty, department must prove charges by adducing evidence by holding oral inquiry. 40. From perusal of enquiry report it is demonstrably proved that no oral evidence has been held. When a major punishment could have been imposed, department has to prove charges against delinquent/employee by examining witnesses and by documentary evidence. In the present case no witness was examined by department neither any one has been examined to prove relied on documents in oral inquiry. 41. 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. In case charges warrant major punishment then the oral evidence by producing the witnesses is necessary. 42. We may hasten to add that the a 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. 42. We may hasten to add that the a 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 . 43. In view of aforesaid exposition of law and well established principals, the judgment impugned in this appeal cannot be sustained. 44. In the result, appeal is allowed. Impugned judgment dated 5.2.2014 as well as punishment order dated 18.2.1988 are hereby quashed. Appellants are entitled for all consequential benefits.