JUDGMENT : Rajesh Singh Chauhan, J. 1. Heard Sri Amrendra Nath Tripathi along with Sri Salil Tripathi, learned counsel for the petitioner, Sri Ashutosh Shukla, Advocate holding brief of Sri Rakesh Kumar Chaudhary, learned counsel for the respondents no. 2 and 3 and Sri Ran Vijay Singh, learned Additional Chief Standing Counsel for the State-respondents no. 1,5, 6 and 7. 2. By means of this writ petition, the petitioner has assailed the order dated 17.08.2005 issued by the Secretary, Rajdhani Nagar Sahkari Bank Ltd. Lucknow, the opposite party No.3, whereby the petitioner has been dismissed from service. It has been informed at the Bar that had the petitioner been in service, he would have retired on 14.01.2014. 3. The brief facts of the case are that the petitioner was engaged as Security Guard in Rajdhani Nagar Sahkari Bank Ltd, Lucknow (here-in-after referred to as the 'Bank') on adhoc basis. The services of the petitioner have been regularized on 01.04.1994 in the pay-scale of Rs.312-520. Thereafter, the services of the petitioner in the Bank were confirmed on 01.05.1995. 4. Since the petitioner was President of the Employees Association of the Bank, therefore, the authorities of the Bank were inimical against the petitioner. The petitioner was placed under suspension on the ground that after giving leave application he has allegedly mislead the employees of the different branches of the Bank and was creating hindrance in smooth functioning of the Bank. As per learned counsel for the petitioner, the charges levelled against the petitioner were absolutely baseless and misconceived and he was placed under suspension due to malafide exercise of the powers for the reason that the petitioner was office bearer of the Employees Association. Since the explanation was called from the petitioner, therefore, the petitioner demanded certain documents/ evidences for submitting suitable reply to the charges levelled against him, but no demanded documents were provided to the petitioner. It has been noticed that along with the petitioner one Sri Pooran Chand Joshi was also suspended. However, the services of Sri Pooran Chand Joshi were terminated on 26.02.2005, whereas the services of the petitioner have been dispensed with on 17.08.2005. 5. Learned counsel for the petitioner has submitted that neither the demanded documents were provided to the petitioner nor the departmental enquiry has been conducted strictly in accordance with law inasmuch as the petitioner has never been associated with the enquiry proceedings. 5. Learned counsel for the petitioner has submitted that neither the demanded documents were provided to the petitioner nor the departmental enquiry has been conducted strictly in accordance with law inasmuch as the petitioner has never been associated with the enquiry proceedings. As a matter of fact, an ex-parte enquiry was conducted against the petitioner. Learned counsel for the petitioner has referred the impugned punishment order dated 17.08.2005 submitting that the charges levelled against the petitioner were misconceived on the face of it and the said charges could not have been proved against the petitioner, therefore, he should not have been placed under suspension. 6. Learned counsel for the petitioner has further submitted that the impugned suspension order does not reveal as to how the departmental enquiry was conducted as per law and what efforts have been taken by the Competent Authority to conduct the departmental enquiry strictly in accordance with law. The perusal of the impugned punishment order dated 17.08.2005 reveals that an ex-parte enquiry was conducted and concluded for the reason that the petitioner did not participate in the enquiry proceedings. However, it has nowhere been indicated in the punishment order as to how the charges levelled against the petitioner were proved. It is settled proposition of law that if the incumbent did not participate in the departmental enquiry willingly and the Disciplinary Authority is of the view that the incumbent should be awarded major punishment, the full fledged enquiry should have been conducted strictly in accordance with law. 7. Learned counsel for the petitioner has also submitted that through the entire period of suspension the petitioner has not been paid his subsistence allowance, therefore, on account of that reason, the departmental enquiry vitiates and the impugned punishment order looses its efficacy. Another employee, namely, Sri Poorn Chand Joshi whose services have been terminated on 26.02.2005, has assailed the order of termination by filing writ petition bearing Writ Petition No.6827 (S/S) of 2005; Pooran Chand Joshi vs. U.P. Coop. Institutional Service Board & others, and the said writ petition was allowed by this Court vide judgment and order dated 28.07.2014. The operative portion of the aforesaid order is being reproduced here-in-below:- "As observed earlier, the enquiry report does not indicate the charges against the petitioner and no oral evidence was lead during the course of enquiry. Institutional Service Board & others, and the said writ petition was allowed by this Court vide judgment and order dated 28.07.2014. The operative portion of the aforesaid order is being reproduced here-in-below:- "As observed earlier, the enquiry report does not indicate the charges against the petitioner and no oral evidence was lead during the course of enquiry. The Enquiry Officer only contacted the complainant and considered several letters and on the basis of those letters, the charges were held proved and the enquiry report was submitted. A show cause notice was published in a Newspaper but the copy of the enquiry report was not provided to the petitioner. In these circumstances the impugned order of punishment suffers from manifest error of law and cannot be allowed to sustain. In the result, the petition succeeds and is allowed. The impugned order of termination dated 26.2.2005, passed by the opposite parties no.3 and 4, contained in Annexure No.1 to the writ petition, is hereby quashed. The petitioner shall be allowed to work on the post on which he is presently working and shall also be paid regular salary. However, it will be open for the opposite parties to proceed in accordance with law and the relevant rules. There shall be no order as to costs." 8. On being confronted as to why the demanded documents were not provided to the petitioner and as to why he was not associated with the enquiry proceedings and also as to why an ex-parte enquiry has not been conducted strictly in accordance with law, learned counsel for the respondents could not demonstrate anything which could justify the order of punishment. It has also been submitted by learned counsel for the respondents that if it is presumed that it is a case of defective enquiry, then in view of the amended provisions in the Cooperative Rules, the denovo enquiry can be conducted against the retired employee. 9. Sri Ran Vijay Singh, learned Additional Chief Standing Counsel for the State-respondents has also submitted that since the petitioner has not cooperated with the departmental proceedings, therefore, the impugned punishment order may not be interfered with unless the petitioner demonstrates that any actual prejudice is caused to him. 9. Sri Ran Vijay Singh, learned Additional Chief Standing Counsel for the State-respondents has also submitted that since the petitioner has not cooperated with the departmental proceedings, therefore, the impugned punishment order may not be interfered with unless the petitioner demonstrates that any actual prejudice is caused to him. On the strength of the aforesaid arguments, Sri Singh has cited the judgment of Hon'ble Apex Court in re: Indra Bhanu Gaur vs. Committee, Management of M.M. Degree College and others reported in AIR 2004 SC 248 . 10. The submission of Sri Ran Vijay Singh, learned Additional Chief Standing Counsel is not acceptable in the instant case inasmuch as since the Competent Authority of the Bank has not conducted the departmental enquiry strictly in accordance with law, even if it is an ex-parte departmental enquiry but ex-parte departmental enquiry must have been conducted by following due procedure of law. 11. I have perused the contents of the counter affidavit and find that the specific contents in respect of defective enquiry has not been replied properly. 12. The Hon'ble Apex Court in the cetana of judgments has held that even if an ex-parte enquiry is conducted, the same should have been conducted by following due procedure of law. 13. In the case of Meenglas Tea Estate v. The workmen., AIR 1963 SC 1719 , the Hon'ble Supreme Court observed that 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. 14. In State of U.P. v. C. S. Sharma, AIR 1968 SC 158 , the Hon'ble Apex Court held that omission to give opportunity to the officer to produce his witnesses and lead evidence in his defence vitiates the proceedings. 14. In State of U.P. v. C. S. Sharma, AIR 1968 SC 158 , the Hon'ble Apex 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. 15. In Punjab National Bank v. A.I.P.N.B.E. Federation, AIR 1960 SC 160 , (vide para 66), the Hon'ble Apex 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). 16. In S.C. Girotra v. United Commercial Bank, 1995 Supp. (3) SCC 212, the Hon'ble Apex Court set aside a dismissal order which was passed without giving employee an opportunity of cross-examination. 17. This Court in Subhas Chandra Sharma v. Managing Director and another, 2000 (1) UPLBEC 541 has held as under:- "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. 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." 18. In the State of Uttar Pradesh v. Saroj Kumar Sinha, reported in (2010) 2 SCC 772 , the Hon'ble Apex 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." 19. Similar view was taken by the Hon'ble Apex Court 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 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." 20. In another case in Subhash Chandra Gupta v. State of U.P., 2012 (1) UPLBEC 166, 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. The view taken by us find support from the judgement of the Apex Court in State of U.P. & another Vs. T.P.Lal Srivastava, 1997 (1) LLJ 831 as well as by a Division Bench of this Court in Subash Chandra Sharma Vs. Managing Director & another, 2000 (1) U.P.L.B.E.C. 541 . 21. A Division Bench decision of this Court in the case of Salahuddin Ansari Vs. 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 Vs. 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 Vs. 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 Vs. U.P.Cooperative Spinning Mills & others, 2001 (2) U.P.L.B.E.C. 1475 and Laturi Singh Vs U.P.Public Service Tribunal & others, Writ Petition No. 12939 of 2001, decided on 06.05.2005." 22. 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). 23. The Division Bench of this Court in the case of Mahesh Narain Gupta v. State of U.P. and others, (2011) 2 ILR 570 has held as under:- "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. 24. 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. 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. 25. Recently the entire law on the subject has been reviewed and reiterated in Chamoli District Co-operative Bank Ltd. Vs. Raghunath Singh Rana and others, AIR 2016 SC 2510 and the Hon'ble Apex 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. 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." 26. Considering the facts and circumstances of the issue, I am of the view that the punishment order dated 17.8.2005 passed by the respondent no. 3, which is contained in Annexure no. 1 to the writ petition, is violative of Article 14, 21 and also violative of principles of natural justice, therefore, the same is liable to be quashed. 27. Accordingly, the order of punishment dated 17.08.2005 passed by the respondent no. 3 is hereby quashed. 3, which is contained in Annexure no. 1 to the writ petition, is violative of Article 14, 21 and also violative of principles of natural justice, therefore, the same is liable to be quashed. 27. Accordingly, the order of punishment dated 17.08.2005 passed by the respondent no. 3 is hereby quashed. The respondents are directed to provide all consequential service benefits to the petitioner ignoring the punishment order dated 17.08.2005 preferably within a period of four months from the date of production of the certified copy of this order. 28. Since the petitioner has already retired from service on 14.01.2014, therefore, despite noticing the fact that this is a case of defective enquiry and as per the amended provision in the concerning cooperative rules, the de-novo enquiry can be conducted against the retired employee within four years of retirement, no fresh enquiry can be directed, inasmuch as, four years period has already lapsed on 14.01.2018. 29. Accordingly, the writ petition is allowed. 30. No order as to costs.