JUDGMENT : Sudhir Agarwal, J. Heard Sri Vimlesh Kumar, learned counsel appearing for petitioner and learned Standing Counsel for respondents 1 and 2. None appeared on behalf of respondent even in the revise call. 2. This writ petition has been filed against order dated 15.01.2005 (Annexure 9 to this writ petition) passed by respondent 3 whereby petitioner has been terminated from service. 3. The facts stated in writ petition shows that petitioner was appointed as Peon on 29.08.2003 by respondent 3, Principal, Kaushambi Inter College Mau, District Chitrakoot (hereinafter referred to as 'College') and since then he is working continuously. On 17.11.2004, Principal of College placed petitioner under suspension. Order of suspension was issued by Principal of College without seeking approval from District Inspector of School, Chitrakoot (hereinafter referred to as "DIOS"). Petitioner made a representation against suspension order vide letter dated 06.12.2004 (Annexure 3 to the writ petition) and thereafter on 30.12.2004, he received a charge-sheet dated 26.12.2004 issued by Principal of College. In the meantime, petitioner also received a letter dated 24.12.2004 issued by Sri Shiv Pratap Mishra, Inquiry Officer, asking petitioner to appear before him to place his defence in respect of charges levelled against him on 05.01.2005. The letter also says that in case, petitioner fails to appear before him on that date, it would be deemed that he has nothing to say and inquiry will proceed exparte. Since petitioner was unwell, by letter dated 31.12.2004, he requested Principal of College for grant of medical leave from 01.01.2005 to 15.01.2005. No order was passed by him and instead, petitioner received a letter dated 10.01.2005 sent by Inquiry Officer, asking petitioner to appear before him on 15.01.2005 along with documents verifying his illness and also place his defence. Petitioner informed Inquiry Officer that he is not well and sought five days time vide letter dated 15.01.2005. It appears that Inquiry Officer without holding any further inquiry, concluded proceeding and submitted report on 15.01.2005, and on same date, Principal of College passed order of termination dated 15.01.2005, impugned in the present writ petition. 4. It is contended by learned counsel for petitioner that no date for oral enquiry was fixed by Inquiry Officer and in the charge-sheet also, there was no evidence (documentary or oral) sought to be relied in support of charges, hence none adduced any evidence before Inquiry Officer to prove charges. 4. It is contended by learned counsel for petitioner that no date for oral enquiry was fixed by Inquiry Officer and in the charge-sheet also, there was no evidence (documentary or oral) sought to be relied in support of charges, hence none adduced any evidence before Inquiry Officer to prove charges. Further after receiving report of alleged Inquiry, the same was not communicated to petitioner by Disciplinary Authority and therefore, entire enquiry and order of removal are patently illegal. Moreover, petitioner being a Class IV employee, could not have been terminated without prior approval of DIOS and no such approval has been obtained hence, impugned order is patently illegal and without jurisdiction. 5. A counter affidavit has been filed by respondent admitting appointment of Inquiry Officer and submission of charge-sheet against petitioner and questioning as to how petitioner could be granted medical leave when he was under suspension. In para 13 of counter affidavit, it is stated that charges were proved by documents which were produced by complainant before Inquiry Officer but I do not find reference of any document in the said charge-sheet. There is nothing to show that any document was supplied to petitioner. In para 12 of writ petition, petitioner has categorically said that along with charge-sheet dated 24.12.2004, no document was supplied to him. In reply to para 12 of writ petition, respondent 3 in para 10 of counter affidavit, has simply said that contents of para 12 is a matter of record. Respondent 3 has stated that documents relied in support of charges were referred to in the charge-sheet dated 26.12.2004. Thus, it is evident that neither any documentary evidence sought to be relied in support of charge was ever supplied to petitioner nor any oral evidence was ever adduced to him, which was to be examined by employer. In order to hold a valid disciplinary enquiry, it is well settled that documentary evidence relied in support of charges must be made available to delinquent employee otherwise disciplinary enquiry should be vitiated in law. 6. In Kashinath Dikshita v. Union Of India and others AIR 1986 SC 2118 , Court has held that documents relied on in support of charge-sheet are to be supplied to delinquent employee and this requirement is mandatory. 7. 6. In Kashinath Dikshita v. Union Of India and others AIR 1986 SC 2118 , Court has held that documents relied on in support of charge-sheet are to be supplied to delinquent employee and this requirement is mandatory. 7. Following Kashinath Dikshita (supra) in State of U.P. v. Shatrughan Lal & Another (1998) 6 SCC 651 , Court said that when charge-sheet is issued and documents are proposed to be utilized against the employee concerned, if he is required to submit reply without furnishing documents relied by the Department it would amount to denial of effective opportunity of defence. 8. This Court has also taken same view in Writ Petition (Writ-A) No. 1019 of 2002 (Shant Deo Tripathi v. Dy. General Manager/Appellate Authority S.B.I. & Others) decided on 16.09.2011. 9. It is next contended that no oral enquiry was conducted by Enquiry Officer in which charges levelled against petitioner were proved by adducing any evidence and in absence of petitioner on 15.01.2005, Enquiry Officer submitted report after closure of enquiry and on the same day, punishment order has been passed. The procedure adopted for imposing major penalty is patently illegal and vitiated in law. It is repeatedly held that oral enquiry fixing date, time and place is necessary wherein employer has to prove charges by adducing evidence and, thereafter, opportunity be given to employee petitioner to place his defence before Enquiry Officer, which has not been done in this case. Law is well settled in this regard and this Court may usefully to refer a discussion on this issue by recent judgments of Supreme Court and a series of decisions of this Court. 10. 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. 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) 11. 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." 12. This Court also has taken same view earlier in Subhash Chandra Sharma v. Managing Director, U.P. Coop. 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." 12. This Court also has taken same view earlier in Subhash Chandra Sharma v. Managing Director, U.P. Coop. 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". 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 exparte 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)." 13. The above judgment was followed by a Division Bench of this Court in Subhas Chandra Sharma v. U.P.Cooperative Spinning Mills and others reported 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 1682000." 14. 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 1682000." 14. This Court in Rajesh Prasad Mishra v. Commissioner, Jhansi Division, Jhansi and others, 2010 (1) UPLBEC 216, after a detailed analysis of earlier precedents on 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. & 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 & another, 2000 (1) U.P.L.B.E.C. 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." 15. In Mahesh Narain Gupta v. State of U.P. and others, (2011) 2 ILR 570 (All), 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 exparte 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." 16. In another case in Subhash Chandra Gupta v. State of U.P., 2012 (1) UPLBEC 166 (All), 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. & 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 & another, 2000 (1) U.P.L.B.E.C. 541 . The view taken by us find support from the judgement of the Apex Court in State of U.P. & 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 & another, 2000 (1) U.P.L.B.E.C. 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 & another, 2000 (1) U.P.L.B.E.C. 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 & others, 2001 (2) U.P.L.B.E.C. 1475 and Laturi Singh v. U.P.Public Service Tribunal & others, Writ Petition No. 12939 of 2001, decided on 06.05.2005." 17. Recently, entire law on the subject has been reviewed and reiterated in Chamoli District Cooperative 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 crossexamine 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 crossexamine 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." 18. The principal of law emanates from the above judgments is that initial burden is on the department to prove 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. 19. 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. 20. It is trite law that 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 charges against employee by adducing oral as well as documentary evidence. In case charges warrant major punishment then oral evidence by producing the witnesses is necessary. 21. I 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. In case charges warrant major punishment then oral evidence by producing the witnesses is necessary. 21. I 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 reported AIR 1984 SC 273 ; State Bank of Patiala v. S.K. Sharma reported AIR 1996 SC 1669 ; and Biecco Lawrie Ltd. v. West Bengal reported (2009) 10 SCC 32 . 22. When confronted, learned Standing Counsel could not dispute the settled legal expositions of law on aforesaid aspects and it also could not be disputed that oral inquiry was not conducted hence major penalty of removal/dismissal is vitiated in law. 23. However, I find that there is nothing to show that any oral enquiry was held in which charges were found proved by giving evidence. Hence, I am satisfied that alleged enquiry and removal of petitioner based thereon, is clearly and patently illegal and in utter violation of principles of natural justice. 24. In view of above, writ petition is allowed. Impugned order dated 15.01.2005 is hereby set aside.