ORDER : Sudhir Agarwal, J. 1. Heard Sri Kamleshwar Singh, learned counsel for petitioner and Sri Lokesh Kumar Dwivedi, learned counsel for respondent-2. 2. Notice was issued to respondent-1, sent by registered post A.D. on 29.01.2019. Office Report dated 07.03.2019 reads as under: “Service Report In compliance of Hon'ble Court's order dated 23.01.19, service report is that neither acknowledgement nor unserved notice has been received in the office as yet. Report is humbly submitted.” 3. Petitioner has also filed an affidavit of service stating that he has served notice to Clerk working in the office of respondent-1 on 23.04.2019. None has appeared on behalf of respondent-1. 4. In the circumstances, I proceed to hear and decide the matter at this stage after hearing learned counsel for petitioner. 5. This writ petition under Article 226 of Constitution of India has been filed against order dated 08.08.1994 passed by Chairman, Zila Panchayat, Varanasi, terminating petitioner from service. 6. Petitioner was appointed as Clerk in 1966 in educational Institution, managed by Zila Parishad, Varanasi. A charge-sheet dated 11.04.1991 was served upon petitioner containing five charges with evidence relied in respect of said charges. 6. Petitioner was appointed as Clerk in 1966 in educational Institution, managed by Zila Parishad, Varanasi. A charge-sheet dated 11.04.1991 was served upon petitioner containing five charges with evidence relied in respect of said charges. Said charges read as under:- ^^vkjksi la[;k % 1 vkKk mYya?ku djuk%& vki vkKk mYya?ku ds iw.kZ:i ls nks"kh gSaA fo|ky; ds lEcfU/kr vfHkys[kksa dks iw.kZ djus ,oa vius iVy ls lEcfU/kr vfHkys[k dk pktZ lacaf/kr ÁfrLFkkuh dks lqiqnZ djus esa vkius ges'kk vkKk mYya?ku fd;k gSA vkjksi la[;k % 2 ykijokgh] vuq'kklughurk ,oa mnklhurk cjrus ds vknh%& vki ges'kk vius dk;Z ,oa nkf;Roksa ds Áfr ykijokg ,oa mnklhu jgs gSa vkSj bl vksj vkidks vxkg fd;s tkrs jgus ds ckotwn Hkh vkius vius drZO; ,oa nkf;Roksa ds fuoZgu esa dksbZ lq/kkj u dj vuq'kklughurk dk ifjp; fn;k gSA vkjksi la[;k % 3 >wB cksyuk rFkk /kks[kk&/kM+h djuk%& vki ges'kk >wB cksyus rFkk /kks[kk/kMh djus ds vHk;Lr gSaA ckj&ckj xksihxat fo|ky; ls lacaf/kr vfHkys[kksa dk pktZ fn;s tkus ds vkns'k ds laca/k esa vkius >wB dk gh lgkjk fy;k gSA blds vykok fo|ky; ds ys[kk&tks[kk ls lacaf/kr vfHkys[kksa dks xk;c djds mldk laca/k Á/kkukpk;kZ ls gksuk crkdj vius nkf;Roksa ls cpus dk vlQy Á;kl vkius fd;k gSA ys[kk&tks[kk ls lacaf/kr /ku&jkf'k;ksa dks lacaf/kr en esa tek u dj mls Á/kkukpk;kZ ds ikl gksuk crk;k x;k gS tks dnkfi O;ogkfjd ,oa fo'oluh; ugha gSA vkjksi la[;k % 4 fo|ky; Nk= fuf/k dks O;igfjr djuk ,oa fo|ky; esa lacaf/kr vU; fuf/k;ksa dh /kujkf'k dks O;igfjr dj ysuk%& vkius pkj ckj lacaf/kr vf/kdkfj;ksa ds funsZ'k nsus ds ckn Hkh fo|ky; ds ys[kk&tks[kk ls lacaf/kr vfHkys[kksa dk lEiw.kZ pktZ ugha fn;k] D;ksafd vki }kjk blesa Hkkjh /kujkf'k dk xcu fd;k x;k gSA tks Hkh vfHkys[k ÁkIr gks lds mldh tkap foRrh; ijke'kZnkrk] ftyk ifj"kn ls djk;s tkus ij Nk=fuf/k ds fofHkUu enksa esa ls dqy 65]308@& :i;s dh /kujkf'k dk xcu dk ekeyk Ádk'k esa vk;kA vki d{kk v/;kfidkvksa ls 'kYdk; dh /kujkf'k dks ÁkIr djus ds ckn mldk lR;kiu Á/kkukpk;Z ls djkus ds ckn vius gh ikl j[k ysrs gSa vkSj lacaf/kr enksa esa tek ugha djrs FksA vkius vius cpr esa Á/kkukpk;kZ ds lR;kiu Lo:i gLrk{kj dks lgkjk cukus dk dqfVy Á;kl fd;k gSA vki }kjk lEiw.kZ vfHkys[kksa dk pktZ vc rd miyC/k u djk;s tkus dh n'kk esa lEiw.kZ vfHkys[kksa dh tkap ugha gks ik;h] ftlls vkSj /kujkf'k O;igfjr djus dh laHkkouk gSA vki }kjk HkwŒiwŒ fyfid dh nsojkt ;kno ls iksLVst en esa ÁkIr 8&75 :i;s dh /kujkf'k dks Hkh O;igfjr dj fy;k gS] ftls vkius vius LFkkukUrj.k ds i'pkr vkius ÁfrLFkkuksa dks pktZ esa ugha fn;k gS vkSj u mls vkt rd tek gh fd;k gSA bl rF; dks fNikus dh xjt ls vkius pktZ esa ÁnRr iksLVst jftLVj dks gh fNik fn;k Fkk] ftlesa vc Hkh mi;ksx gsrq lkns iUus ekStwn gSA pfd;k fo|ky; ds vius dk;Zdky esa Hkh vkius fo|ky; dh Nk=fuf/k rFkk vU; enksa ls /ku O;igfjr dj fy;k gS vkSj dqy O;igfjr /kujkf'k 4]357-20 dks vkius dbZ ckj esa dkQh foyEc ls tek fd;k gSA mijksDr lHkh rF;ksa ls Li"V gS fd Nk= fuf/k ls lacaf/kr lHkh /kujkf'k vki Lo;a vius gh ikl j[krs gSa vkSj cjkcj /ku dk O;igj.k djrs jgs gSaA vkns'kksa ds ckotwn Hkh vkius O;igfjr /kujkf'k dks vc rd Nk= fuf/k ds fofHkUu enksa esa tek u gh fd;k gSA vkjksi la[;k 5 % vfu;fer dk;Z lEiknu rFkk fu;eksa dh vufHkKrk%& vki }kjk dHkh Hkh fu;fer :i ls fu;eksa ds rgr dk;Z lEiknu ugha fd;k x;k gSA dŒfoŒ xksihxat ds vius iwoZ ÁfrLFkkuh Jh nsojkt ;kno fyfid ls ÁkIr iksLVst jftLVj ,oa ÁkIr /kujkf'k dk mi;ksx vkius fo|ky; dk;Z ls ugha fd;k rFkk iksLVst ds en esa o"kZ 1979 ls vkius vius dk;kZy; esa iksLVst en esa 'kk[kk dk;kZy; Hknksgh Kkuiqj okjk.klh ls ÁkIr djus dh dksbZ dk;Zokgh ugha fd;kA lkekuksa dh vkiwfrZ rFkk foKkiu fcyksa ds Hkqxrku vkfn esa vki }kjk fu;eksa dk ikyu ugha fd;k x;k gS vkSj u djk;k x;kA lkekuksa dk vadu Hkh fu;ekuqlkj vki }kjk LVkd cqd esa ugha fd;k x;k gSA ÁkIr /kujkf'k;ksa dks vki }kjk lacaf/kr enksa esa tek ugha fd;k x;k gS vkSj vfu;fer :i ls O;; fd;k x;k gSA blls Li"V gS fd vkidks fu;eksa dh tkudkjh ugha gS vkSj vki vfu;fer dk;Z djus ds nks"kh gSaA** “Charge No. 1 - Disobeying orders:- You are squarely guilty of disobeying orders. You have always indulged in disobedience in completing the documents related to the school and handing over to your replacement the charge of the documents belonging to your counter. Charge No. 2 - Negligence, indiscipline and habitual indifference:- You have always been careless and indifferent to your duties and responsibilities; and despite being warned on this account, you, having not made any improvement in the discharge of your duties and responsibilities, have showed indiscipline. Charge No. 3 - Speaking lies and practising fraud:- You have always been habitual in telling lies and practicing fraud. Regarding the persistent orders to hand over the charge of documents related to Gopiganj Vidyalaya, you have resorted to lies only. Apart from this, you have made an unsuccessful attempt to avoid your responsibilities by concealing the documents related to the account of the school and stating it to have belonged to the Principal. By not depositing the amounts related to the account under the respective heads, it has been stated to be with the Principal, which is impractical and unreliable. Charge No. 4 - Misappropriating student fund and other funds related to the school:- Even after being given the instructions four times by the concerned officers, you did not give full charge of the documents related to the school account, because you have embezzled a heavy amount therein. With whatever documents could be obtained, inquiry by the Financial Advisor, Zila Parishad was carried out, and the case of the embezzlement of Rs. 65,308/- under different heads of the student fund came into light. You, after receiving the amounts from the class teachers and getting it verified by the Principal, kept them with yourself and did not deposit the same against the relevant heads. You have made a malicious attempt to defend yourself with the verifying signatures of the principal. As you did not provide the charge of all the documents till now, the documents could not be examined in their entirety, which is likely to cause misappropriation of more amount. You have also misappropriated the amount of Rs. 8-75 received from Ex-clerk Devraj Yadav under the postage head, which you have not given in the charge of your replacement after your transfer, and you have not deposited it till date. With an intent to conceal this fact, you had hidden the Postage Register provided in your charge, which still has blank paper-sheets for use. 8-75 received from Ex-clerk Devraj Yadav under the postage head, which you have not given in the charge of your replacement after your transfer, and you have not deposited it till date. With an intent to conceal this fact, you had hidden the Postage Register provided in your charge, which still has blank paper-sheets for use. You have misappropriated the money from student fund and other heads during your tenure in the Chakiya School, and you have deposited a total misappropriated amount of Rs. 4,357.20 after a considerable delay in many instalments. From all the aforesaid facts, it is clear that you have been keeping all amount related to student fund with yourself and indulging in misappropriation of funds. Despite the orders, you have not deposited the misappropriated amount under the different heads of student fund till date. Charge No. 5 - Irregular execution of work and ignorance of rules:- You have never duly performed work in accordance with the rules. You did not utilize for the school work the postage register and amount received from Shri Devraj Yadav, clerk, your predecessor-in-office at Kanya Vidyalaya, Gopiganj. You did not even take any action for obtaining to itself the amounts under the postage head from branch office Bhadohi Gyanpur, Varanasi. The rules have been neither followed by you nor ensured to be followed in the supply of goods and payments of advertisement bills, etc. The entry of goods has not been made by you in the stock book according to the rules. The amounts received have not been deposited by you in concerned heads; rather, these amounts have been spent in an irregular manner. Hence, it is clear that you do not have the knowledge of rules and are guilty of commission of irregularity.” (English Translation by Court) 7. The amounts received have not been deposited by you in concerned heads; rather, these amounts have been spent in an irregular manner. Hence, it is clear that you do not have the knowledge of rules and are guilty of commission of irregularity.” (English Translation by Court) 7. Evidence relied on in support of aforesaid charges read as under:- ^^lk{; 1%& 1- Á/kkukpk;kZ] dŒmŒekŒ fo|ky; xksihxat }kjk vkidks fy[ks x;s 36 i=A 2- Á/kkukpk;kZ] dŒmŒekŒ fo|ky; pfd;k }kjk vkidks fn;s x;s funsZ'k fnukad 23-5-1990] 15-7-1990 3- Á/kkukpk;kZ] dŒmŒekŒ fo|ky; pfd;k dk vfrfjDr eq[; vf/kdkjh] ftyk ifj"kn] okjk.klh dks lacksf/kr i= fnukad 18-8-1990A 4- Á/kkukpk;kZ] dŒmŒekŒ fo|ky; pfd;k dk i= fnukad 21-8-1990 tks vfrfjDr eq[; vf/kdkjh] ftyk ifj"kn dks fy[kk x;k gSA lk{; 2%& 1- HkwŒiwŒ Á/kkukpk;kZ] dŒmŒekŒ fo|ky; xksihxat ds 36 i= tks vkidks fy[ks x;s gSaA 2- Á/kkukpk;kZ] dŒmŒekŒ fo|ky; pfd;k }kjk vkidks fn;s x;s funsZ'k fnukad 23-5-1990] 15-7-1990A 3- Á/kkukpk;kZ] dŒmŒekŒ fo|ky; pfd;k ds i= fnukad 10-8-1990 o 21-8-1990 tks vfrfjDr eq[; vf/kdkjh dks lacksf/kr gSA 4- vfrfjDr eq[; vf/kdkjh] ftyk ifj"kn] okjk.klh ds vkns'k la[;k&21@ftŒiŒfjŒ@f'k{kk 90&91 fnukad 31-5-1990A lk{; 3%& 1- foRrh; ijke'kZnkrk dh tkap vk[;k fnukad 26-9-1990A 2- vki }kjk xksihxat fo|ky; ds pijklh Jh lqHkk"k ik.Ms; dks fnukad 5-6-1990 dks fy[kh fyf[kr :i ls gLrxr djk;s x;s n`'; JO; 'kqYd] fu/kZu xYlZ xkbM] jsMØkl] foKku [ksy ,oa L;kgh 'kqYd ls lacaf/kr iklcqdksa dh lwphA 3- vkidk mRrj fnukad 20-4-1990A 4- vfrfjDr eq[; vf/kdkjh dk i= fnukad 31-5-1990A 5- Á/kkukpk;Z ¼HkwŒiwŒ½ dŒmŒekŒ fo|ky; xksihxat dk v/;{k ftyk ifj"kn okjk.klh dks lacksf/kr i= fnukad 15-11-1989 lk{; 4%& 1- foRrh; ijke'kZnkrk dh tkap vk[;k fnukad 26-9-1990A 2- HkwŒiwŒ Á/kkukpk;Z xksihxat dk i= fnukad 15-11-1989A 3- vfrfjDr eq[; vf/kdkjh dk i= fnukad 31-5-1990A 4- HkwŒiwŒ Á/kkukpk;Z dk i= fnukad 24-5-1990A 5- Á/kkukpk;Z dŒmŒekŒ fo|ky; pfd;k dk i= fnukad 10-8-1990 o 21-8-1990A 6- Jh nsojkt ;kno ls ÁkIr iksLVst jftLVjA 7- vkidk mRrj fnukad 24-4-1990A lk{; 5%& 1- foRrh; ijke'kZnkrk dh tkap vk[;k fnukad 26-9-1990A 2- vfrfjDr eq[; vf/kdkjh ds i= fnukad 31-5-1990 ,oa ml ij ys[kkdkj rFkk dk;kZf/kdkjh Kkuiqj dh vk[;k Øe'k% fnukad 19-6-1990 ,oa 22-6-1990A 3- HkwŒiwŒ Á/kkukpk;Z] dŒmŒekŒ fo|ky; xksihxat dk i= fnukad 24-5-1990A 4- dŒmŒekŒ fo|ky; xksihxat dk LVkd ,oa iksLVst jftLVjA** “Evidence 1:- 1. 36 letters written to you by the Principal, Kanya Uchhtar Madhyamik Vidyalaya, Gopiganj. 2. Directions dated 23.5.1990 and 15.7.1990 issued to you by the Principal, Kanya Uchhtar Madhyamik Vidyalaya, Chakia. 3. 36 letters written to you by the Principal, Kanya Uchhtar Madhyamik Vidyalaya, Gopiganj. 2. Directions dated 23.5.1990 and 15.7.1990 issued to you by the Principal, Kanya Uchhtar Madhyamik Vidyalaya, Chakia. 3. Letter dated 18.8.1990 of the Principal, Kanya Uchhtar Madhyamik Vidyalaya, Chakia addressed to the Additional Chief Officer, Zila Parishad, Varanasi. 4. Letter dated 21.8.1990 of the Principal, Kanya Uchhtar Madhyamik Vidyalaya, Chakia addressed to the Additional Chief Officer, Zila Parishad. Evidence 2:- 1. 36 letters written to you by the Principal, Kanya Uchhtar Madhyamik Vidyalaya, Gopiganj. 2. Directions dated 23.5.1990 and 15.7.1990 issued to you by the Principal, Kanya Uchhtar Madhyamik Vidyalaya, Chakia. 3. Letters dated 10.8.1990 and 21.8.1990 of the Principal, Kanya Uchhtar Madhyamik Vidyalaya, Chakia addressed to the Additional Chief Officer, Zila Parishad. 4. Order no. 21/Zi.Pa.Ri/ Shiksha 9091 dated 31.5.1990 of the Additional Chief Officer, Zila Parishad, Varanasi. Evidence 3:- 1. Inquiry report dated 26.9.1990 of the Financial Advisor. 2. List of passbooks related to audiovisual fee, poor girls guide, Redcross, science, sports and ink fee given on 5.6.1990 in writing by you to Sh Subhash Pandey, Peon, Gopiganj Vidyalaya. 3. Your reply dated 20.4.1990 4. Letter dated 31.5.1990 of the Additional Chief Officer. 5. Letter dated 15.11.1989 of the Ex-Principal, Kanya Uchchatar Vidyalaya, Gopiganj. Evidence 4:- 1. Inquiry report dated 26.9.1990 of the Financial Advisor. 2. Letter dated 15.11.1989 of the Ex-Principal, Gopiganj. 3. Letter dated 31.5.1990 of the Additional Chief Officer. 4. Letter dated 24.5.1990 of the Ex-Principal. 5. Letters dated 10.8.1990 and 21.8.1990 of the Principal, Kanya Uchhtar Madhyamik Vidyalaya, Chakia. 6. Postage register received from Sh. Devraj Yadav. 7. Your reply dated 24.4.1990. Evidence 5:- 1. Inquiry report dated 26.9.1990 of the Financial Advisor. 2. Letter dated 31.5.1990 of the Additional Chief Officer and reports dated 19.6.1990 and 22.6.1990 of the Auditor and Officer-on-Duty, Gyanpur respectively. 3. Letter dated 24.5.1990 of the Ex. Principal, Kanya Uchha Madhyamik Vidyalaya, Gopiganj. 4. Stock and Postage Register of the Kanya Uchha Madhyamik Vidyalaya, Gopiganj.” (English Translation by Court) 8. No author of documentary evidence relied in support of charges, was examined in oral enquiry. Petitioner submitted reply to charge-sheet. Thereafter on his request, Smt. Shanti Devi, the then Principal, Uchtar Madhyamik Vidyalaya, Chakiya and Smt. Satyawati Srivastava, the then Principal, Uchtar Madhyamik Vidyalaya, Gopiganj were allowed to be cross-examined though they were not produced by employer as witness in support of charges. Petitioner submitted reply to charge-sheet. Thereafter on his request, Smt. Shanti Devi, the then Principal, Uchtar Madhyamik Vidyalaya, Chakiya and Smt. Satyawati Srivastava, the then Principal, Uchtar Madhyamik Vidyalaya, Gopiganj were allowed to be cross-examined though they were not produced by employer as witness in support of charges. Oral enquiry was closed and Enquiry Officer submitted report dated 21.10.1991 pursuant thereto, a further show-cause notice was issued to petitioner on 16.04.1994. In reply thereto, petitioner sought some more time but punishment order was passed on 08.08.1994 dismissing petitioner from service and also recovery of Rs. 63,47560/-. 9. It is contended that that entire procedure following in enquiry illegal. Neither documents which were relied on in support of charges nor authors of evidence were examined at all. No person was examined to prove charges levelled against petitioner before Enquiry Officer. Enquiry Officer deemed that charges levelled against petitioner are self-proved and proceeded ex-parte requiring petitioner to disprove the charges. This procedure is wholly illegal and being in violation of principles of natural justice. 10. It is well settled that unless contents of document which are not admitted, are proved by the author(s), who is/are examined before inquiry officer and is/are available for cross examination by the delinquent employee, such documents cannot be deemed to be proved and therefore such documents cannot be relied to hold a delinquent employee guilty and to impose punishment upon him. 11. I am fortified in taking above view with Supreme Court's judgment in M/s Bareilly Electricity Supply Co. Ltd., Vs. The Workmen and others, AIR 1972 SC 330 where Court in para 14 of the 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. 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 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." (para14) (emphasis added) 12. Moreover, 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 some recent judgments of Supreme Court and a series of decisions of this Court. 13. In State of Uttar Pradesh Vs. This Court may usefully refer to a discussion on this issue by some recent judgments of Supreme Court and a series of decisions of this Court. 13. In State of Uttar Pradesh Vs. Saroj Kumar Sinha, (2010) 2 SCC 772 , Court has held :- "An inquiry officer acting in a quasijudicial 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) 14. 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 quasijudicial proceeding. The enquiry officer performs a quasijudicial 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." (Emphasis added) 15. 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." (Emphasis added) 15. This Court also has taken same view earlier in Subhash Chandra Sharma Vs. 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. 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. (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)." (Emphasis added) 16. The above judgment was followed by a Division Bench 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. The above judgment was followed by a Division Bench 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." (Emphasis added) 17. This Court in Rajesh Prasad Mishra v. Commissioner, Jhansi Division, Jhansi and others reported 2010 (1) UPLBEC 216, 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. & another Vs. T.P.Lal Srivastava, 1997 (1) LLJ 831 as well as by a Division Bench of this Court in Subhash Chandra Sharma Vs. 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 Vs. 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." (Emphasis Added) 18. 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." (Emphasis Added) 18. In Mahesh Narain Gupta v. State of U.P. and others, (2011) 2 ILR 570, 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." (Emphasis added) 19. 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 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 judgment 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 . 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. 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." (Emphasis Added) 20. Recently the entire law on the subject has been reviewed and reiterated in Chamoli District Cooperative Bank Ltd. Vs. 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. Recently the entire law on the subject has been reviewed and reiterated in Chamoli District Cooperative Bank Ltd. Vs. 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. 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.” 21. 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. 22. 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 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 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. 23. I may hasten to add that 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 . 24. Looking to the facts of this case in the light of above exposition of law discussed hereinabove, it is evident that after receiving reply from petitioner, Enquiry Officer did not fix any date, time or place for oral enquiry so that employer's representative may appear and adduce evidence to prove charges. Without such exercise, Enquiry Officer thought as if charges are self-proved in the light of documents mentioned in charge-sheet itself and it is for the petitioner to disprove the charges by adducing evidence. Interestingly, here also, two persons allowed to be cross-examined by petitioner are not witnesses of employer to prove charges but without any examination-in-chief, these two persons were called and produced before petitioner for cross-examination. This is again a strange procedure and not consistent with the well settled procedure of disciplinary enquiry. Since major penalty has been imposed without holding disciplinary enquiry in accordance with law, I have no option but to declare it illegal. 25. In the result, writ petition is allowed. Impugned order dated 08.08.1994 is hereby set aside. Petitioner shall also be entitled to all consequential benefits. 26. However, this order shall not preclude respondents from passing afresh order after giving opportunity to parties concerned in accordance with law.