JUDGMENT : 1. Heard Sri Amit Kumar Singh, Advocate, for petitioners and Sri V.K. Upadhyay, learned Senior Advocate, assisted by Sri Arun Prakash, Advocate, for respondent-University. 2. The Writ Petition No. 21669 of 2004 (hereinafter referred to as “WP-1”) under Article 226 of the Constitution of India has been filed by sole petitioner, Ram Jatan, being aggrieved by order dated 26.11.1996 (Annexure-5 to WP-1) imposing punishment of dismissal and order dated 07.01.2004 (Annexure-9 to WP-1) communicating him that his appeal has been rejected and punishment imposed vide order dated 26.11.1996 has been upheld. 3. Facts in brief, giving rise to present dispute, as pleaded in WP-1, are that petitioner was appointed as Farrash in 1977 in Banaras Hindu University (hereinafter referred to as “BHU”) and posted to work in Vishwanath Temple situated in Campus of BHU. An incident of theft occurred in the intervening night of 26/27.03.1996 in the Garbh-Grih of Vishwanath Temple situated in Campus of BHU in respect whereof a First Information Report was lodged under Sections 457, 380, 411 I.P.C. by Ram Auatar, an employee of BHU against petitioner and four others. Petitioner was placed under suspension vide order dated 29.03.1996 passed by Registrar, BHU exercising power under Section 4(5)(a) of Statute of BHU. A charge-sheet dated 10/12.04.1996 was issued containing a charge that he was indulged in theft, in the Temple, committed on 26/27.03.1996 and in the past also he was indulged in such type of thefts which he has admitted. Petitioner was placed under suspension vide order dated 29.03.1996 passed by Registrar, BHU exercising power under Section 4(5)(a) of Statute of BHU. A charge-sheet dated 10/12.04.1996 was issued containing a charge that he was indulged in theft, in the Temple, committed on 26/27.03.1996 and in the past also he was indulged in such type of thefts which he has admitted. Entire charge levelled against petitioner reads as under: ^^1- fnukad 26@27 ekpZ] 1996 dks Jh jke tru flag] QjkZl] Jh fo'oukFk efUnj ds vU; O;fDr;ksa ds lkFk pksjh djus ds mn~ns'; ls Jh fo'oukFk efUnj] dk'kh fgUnw fo'ofo|ky; ds xHkZ&x`g ds vUnj nkf[ky gq,A 2- fo'ofo|ky; ds lqj{kk lSfudksa ,oa LFkkuh; iqfyl ds la;qDr Nkis ds nkSjku Jh jke tru flag] QjkZl] vU; yksxksa ds lkFk xHkZ&x`g ls pksjh djrs gq, jaxs gkFk idM+k x;k ,oa :0 1808-50 udn cjken gqvkA 3- iqfyl }kjk iwN&rkN ds nkSjku Jh jke tru flag] QjkZl bl rjg dh pksfj;ksa esa fiNys lkr&vkB o"kksZ ls ¼gj eaxyokj½ dks fyIr jguk Lohdkj fd;k gS vkSj ;g Hkh Lohdkj fd;k gS fd bl dk;Z ds fy, muds ikl MqIyhdsV pkfc;ka gSaA 4- pksjh dh mDr ?kVukvksa ds i'pkr] idM+s tkus ij cjken dh x;h /kujkf'k] rkyk&pkch] xUuh cSx vkfn dks yadk iqfyl Fkkuk ds dCts esa dj fn;k x;kA Jh jke tru flag] QjkZl dks yadk iqfyl }kjk tsy Hkst fn;k x;kA 5- Jh jke tru flag] QjkZl dk mijksDr izdkj dk vkpj.k ?kksj vkifRrtud gS ftlls fo'ofo|ky; dh ifo=rk o xfjek ij vk?kkr yxk gS vkSj mudk bl izdkj dk vkpj.k xSj f'k{k.k deZpkjh dh lsok 'krsZa dh vkpj.k lafgrk @ fu;e 2-1 ds izfrdwy gSA** “1. On 26/27 March, 1996 Sri Ram Jatan Singh, Farrash, along with some other persons associated with Sri Vishwanath Temple, entered the Garbhagrih (sanctum sanctorum) of Sri Vishwanath Temple, Banaras Hindu University with an intent to commit theft. 2. During the joint raid of security personnel of the University and the local police, Sri Ram Jatan Singh, Farrash was caught red handed along with other accomplishes while committing theft in the Garbhagrih and a cash amount of Rs. 1808.50 was recovered. 3. While being interrogated by the police, Sri Ram Jatan Singh, Farrash has confessed his involvement in similar thefts over the past seveneight years (on every Tuesday) and also having duplicate keys for the said act. 4. 1808.50 was recovered. 3. While being interrogated by the police, Sri Ram Jatan Singh, Farrash has confessed his involvement in similar thefts over the past seveneight years (on every Tuesday) and also having duplicate keys for the said act. 4. On being arrested for the aforesaid theft incidents, recovered amounts, locks & keys, gunny bags, etc were given into possession of the Lanka police station. Sri Ram Jatan Singh, Farrash was sent to jail by the police of P.S. Lanka. 5. The aforesaid type of conduct of Sri Ram Jatan Singh, Farrash is highly objectionable having undermined the sanctity and dignity of the University and this type of conduct of his is contrary to the Conduct Code/ Rule 2.1 of the Service Conditions of the Nonteaching Employees.” (English Translation by Court) 4. Petitioner was required to submit reply within ten days. In the charge-sheet, there was no reference to any evidence relied in support of charges, whether oral or documentary. 5. Petitioner submitted reply dated 19.04.1996 (Annexure-3 to WP-1) wherein he denied all the charges and also stated that relevant documents and statements, which are foundation of charge, have not been supplied, therefore, the same may be made available to him so that he may give a further effective reply. He also stated that he shall give his evidence and cross-examine witnesses produced against him in support of charge. 6. It appears that besides petitioner, three other employees were also similarly charged and BHU constituted an Inquiry Committee consisting of Prof. Janardan Singh, Department of Entomology and Agricultural Zoology, Dr. M.N.P. Srivastava, Reader, Faculty of Law; and, Dr. Babu Lal Mishra, Honorary Manager of Vishwanath Temple and also clubbed all the inquiries together which comprised of petitioner and Shiv Charan, Farrash, Rama Shankar Singh Yadav, Chowkidar and Lal Bahadur Singh, Chowkidar. 7. Vide letter dated 23.07.1996, Assistant Registrar (Administration)-II and Secretary, Inquiry Committee informed petitioner and others that Inquiry Committee shall hold its meeting on 2nd and 3rd, August 1996 at 2.00 PM in the Chamber of Chairman, i.e., Prof. Janardan Singh. 8. Petitioner and other charged employees appeared before Inquiry Committee on the dates, scheduled and informed, as above, when no evidence was recorded by Inquiry Committee and petitioner and others were only required to sign some papers and thereafter they were asked to leave campus. No further inquiry was held and no date, time or place was fixed. Janardan Singh. 8. Petitioner and other charged employees appeared before Inquiry Committee on the dates, scheduled and informed, as above, when no evidence was recorded by Inquiry Committee and petitioner and others were only required to sign some papers and thereafter they were asked to leave campus. No further inquiry was held and no date, time or place was fixed. Instead, Inquiry Committee submitted inquiry report dated 14.10.1996. Thereafter petitioner was straightway served with an order of dismissal dated 26.11.1996 (Annexure-5 to WP-1). 9. Petitioner appealed against dismissal order vide representation dated 01.01.1997 in which he specifically pleaded that no adequate opportunity of defence was provided and no proper inquiry was conducted. 10. In the meantime, petitioner was also tried in Criminal Case No. 596 of 1996 in the Court of Special Chief Judicial Magistrate, Varanasi, who vide judgment dated 19.02.2000 convicted petitioner under Section 457, 380 and 401 I.P.C. and awarded four years rigorous imprisonment (hereinafter referred to as “R.I.”) and 1000/-fine under Section 457 I.P.C., three and half years R.I. and fine of Rs. 1,000/- under Section 380 I.P.C. and 2 years R.I. and fine of Rs. 500/-under Section 411 I.P.C. Criminal Appeal No. 52 of 2000 was preferred by petitioner which came to be heard along with other appeals by Sri T.N. Pandey, Additional Sessions Judge, Court No. 13, Varanasi who allowed appeal vide judgment dated 10.04.2003, set aside order of sentence awarded by Magistrate and held that there was no credible evidence and circumstances to convict petitioner, hence, judgment of Special Chief Judicial Magistrate dated 19.02.2000 was set aside. 11. The above judgment of Appellate Court was communicated by petitioner to Registrar, BHU vide letter dated 02.09.2003. However, vide letter dated 07.01.2004, Deputy Registrar (Administration)-II has informed petitioner that his appeal has been rejected and earlier order of punishment has been maintained. 12. Respondents have filed counter affidavit contesting WP-1 stating that in the night of 26/27.03.1996 petitioner and four others were caught red handed in the night about 2.00 AM while emptying Dan-Patra, kept at ground floor of Garbh-Grih of Vishwanath Tempt at BHU Campus. Police registered Case No. 77 of 1996 under Section 457, 380, 411 I.P.C. and sent all the culprits to Jail. Police registered Case No. 77 of 1996 under Section 457, 380, 411 I.P.C. and sent all the culprits to Jail. Considering seriousness of criminal incident and involvement of petitioner and other employees, an order of suspension was passed on 28.03.1996 by Vice-Chancellor, BHU, which was communicated to petitioner vide Registrar, BHU's letter dated 29.03.1996. 13. A disciplinary inquiry was initiated for act of misconduct, i.e., violation of Ordinance 23, Sub-Rule (2) which governs terms and conditions of service of non-teaching employees of BHU. It was served upon petitioner vide letter dated 10/12.04.1996 issued by Deputy Registrar (Administration), BHU. Further vide Office Order dated 12.04.1996 an Inquiry Committee was constituted and petitioner was given opportunity to submit his defence before Inquiry Committee. Inquiry Committee submitted inquiry report dated 14.10.1996 and a copy thereof has been filed along with counter affidavit as Annexure CA-3. It is not disputed that in the criminal trial, petitioner has been acquitted by Appellate Court vide judgment dated 10.04.2003. Thereafter, petitioner submitted representation dated 02.09.2003 requesting for the reinstatement but since he was not dismissed from service on the basis of conviction in criminal case but after finding him guilty in a departmental inquiry, hence, question of his reinstatement on the basis of Appellate Court's judgment had not arisen, hence his request was not accepted. It is also said that petitioner and others confessed their involvement in theft before Sri Ram Auatar, Assistant Security Officer in the office of Chief Proctor and others, hence report was lodged against them, besides initiating departmental inquiry. However, after service of charge-sheet in disciplinary proceedings, since petitioner denied all the charges vide reply dated 19.04.1996, therefore competent authority in BHU passed order dated 14.05.1996 requesting Inquiry Committee to proceed with the disciplinary proceedings. Petitioner and others were given ample opportunity of defence. Representation dated 01.01.1997 submitted by petitioner against punishment order was considered by competent authority and its decision was communicated to petitioner vide Assistant Registrar (Administration), BHU's letter dated 03/06.03.1997. The punishment order has been passed by Vice-Chancellor after considering report of Inquiry Committee and same has been ratified by Appointments Committee of BHU constituted under Section 26 of Banaras Hindu University Act, 1915 (hereinafter referred to as “Act, 1915”). 14. The punishment order has been passed by Vice-Chancellor after considering report of Inquiry Committee and same has been ratified by Appointments Committee of BHU constituted under Section 26 of Banaras Hindu University Act, 1915 (hereinafter referred to as “Act, 1915”). 14. In the Rejoinder Affidavit, petitioner has reiterated that no departmental inquiry was conducted in accordance with relevant Statute and he was never communicated about the order dated 03/06.03.1997 whereby his representation was rejected. He specifically denied that he was caught red handed at any point of time. 15. Writ Petition No. 31995 of 2005 (hereinafter referred to as “WP-2”) has been filed by Rama Shankar Singh Yadav, who was appointed as Chowkidar in BHU and posted in Vishwanath Temple. Rest of the facts are similar to that of WP-1 including punishment order dated 26.11.1996 (Annexure-5 to WP-2) and all other pleadings are similar. Hence, I am not repeating the same. 16. Writ Petition No. 21210 of 2004 (hereinafter referred to as “WP-3”) has been filed by Shiv Charn, who was appointed as Farrash on 01.10.1963 and posted in Vishwanath Temple and all other facts are similar to WP-1 including the punishment order dated 26.11.1996 and the letter dated 07.01.2004 whereby Assistant Registrar, BHU has communicated him rejection of his representation dated 03.09.2003. All other pleadings are common, hence are not repeated. 17. Inquiry Report dated 14.10.1996 placed on record by University along with its Counter Affidavit filed in WP-1 shows that it recommended punishment to petitioners as per Rules of University but further proposed that they should be kept in active service with immediate effect, except Temple, and be required to deposit Rupees three hundred per month for five years in the form of draft/cash/cheque in 'Dan Patra', in the presence of Manager and Poojari, after taking proper oath before donating money, in front of Lord Shiva Idol, for not committing any such illegal and immoral act in future and if any of them is retired before five years, he shall be required to deposit consolidated amount for remaining period and also to take proper oath that he will not commit any such illegal or immoral act in future. 18. 18. In view thereof petitioners sought amendments in their writ petitions that Inquiry Committee since recommended for a corrective measure and not punishment in accordance with Rules, and recommended for reemployment/reinstatement in active service, University in taking a different decision has erred. 19. Thereafter order sheet also shows that on a statement made by counsel for BHU that matter of petitioners would be considered afresh sympathetically by BHU, indulgence was granted and matter was postponed but no concrete result came. In these circumstances matter was heard by Court on merits on 16.05.2009 when it was argued that inquiry was not conducted in accordance with procedure prescribed in Statute and there was a gross violation of principles of natural justice resulting in denial of adequate opportunity of defence to petitioners. Hence, this Court observed that perusal of record of inquiry would be necessary and directed BHU to produce inquiry record before this Court. 20. A supplementary Counter Affidavit was filed by BHU in WP-2 and affidavit has been sworn by Sri Neeraj Tripathi, Registrar stating that record of inquiry was not available/traceable and for its discovery a Committee consisting of Prof. H.B. Srivastava as Chairman and Prof. Rakesh Singh as Member was constituted wherein Pushya Mitra Dwivedi was Member Secretary and they submitted report on 28.06.2019 that record of inquiry is not available and responsible persons, supposed to be custodian of record, had either retired about two decades ago or expired. 21. In this backdrop, Court proceeded to hear matter again on the basis of record whatever is available and pleadings of parties. 22. The common case of all the petitioners is that they received information to appear before Inquiry Committee vide letter dated 23.07.1996 on the scheduled dates, i.e. 2nd and 3rd, August, 1996. On these dates they appeared and they were required to sign some papers and nothing further happened and they were directed to leave the premises. Thereafter no date, time or place was fixed for oral inquiry whatsoever. On the contrary, Inquiry Report dated 14.10.1996 submitted by Committee consisting of Sri Janardan Singh, Chairman and Sri M.N.P. Srivastava, Member shows that it recorded statements of Dr. S.K. Singh, Deputy Chief Proctor, Ram Autar, Assistant Security Officer, Dinkar Kumar Singh, a Student of B.Com.-II, Sri Chandra Bhan Ram, a student of B.Com.-II and also statement of these petitioners. Dr. On the contrary, Inquiry Report dated 14.10.1996 submitted by Committee consisting of Sri Janardan Singh, Chairman and Sri M.N.P. Srivastava, Member shows that it recorded statements of Dr. S.K. Singh, Deputy Chief Proctor, Ram Autar, Assistant Security Officer, Dinkar Kumar Singh, a Student of B.Com.-II, Sri Chandra Bhan Ram, a student of B.Com.-II and also statement of these petitioners. Dr. Babu Lal Mishra, Honorary Manager of Temple also submitted a written statement before Committee. 23. Inquiry Committee held its meeting on 30.04.1996, 07.06.1996, 02.08.1996, 03.08.1996 and 04.09.1996. It is evident that petitioners were communicated to participate in the inquiry before Inquiry Committee for the first time vide letter dated 23.07.1996 and they were required to appear before Inquiry Committee only on 2nd and 3rd August, 1996 while Inquiry Committee had already held its meeting twice earlier, i.e., on 30.04.1996 and 07.06.1996 in respect whereof no information was given to petitioners and thereafter also held proceedings on 04.09.1996 and this date was also not communicated to petitioners. 24. It is also not stated in the entire inquiry report that statements of various witnesses in support of charges were recorded in presence of delinquent employees namely petitioners and they were given opportunity to cross-examine those witnesses. 25. In the findings recorded by Inquiry Committee, it says that statements of witnesses are corroborative to each other; there is no contradiction and they have repeated the same facts regarding occurrence of incident and involvement of petitioners in the theft committed in temple in the night of 26/27.03.1996, hence charges levelled against petitioners are established. Petitioners have only denied charges but failed to produce any evidence, hence their defence is not acceptable. Inquiry Committee has also held that Rama Shankar, petitioner of WP-2 was arrested in connection with theft incident occurred on 10.08.1994 and therein he was granted bail which also prove his character and involvement in the present incident though from inquiry report it does not appear that there was any material evidence to prove involvement of petitioner of WP-2 in the alleged incident of 10.08.1994 since witnesses examined by Inquiry Committee all corroborated alleged incident of 26/27.03.1996 and not of 10.08.1994. 26. 26. It cannot be doubted that it was incumbent upon Inquiry Committee, constituted to hold inquiry, to examine witnesses of employer in presence of charged employees and these witnesses appeared in support of charges ought to have been allowed to be cross examined by charged employees. Only thereafter, when employer prima facie succeed to prove the charges, question of defence by employee could have arisen. However, in the present case, charged employees have specifically pleaded that virtually no oral inquiry was held. They were called to appear on 2nd and 3rdAugust, 1996 on which date they appeared and they were required to sign certain papers only and thereafter nothing happened except they were served with the punishment order. To contradict above submission, respondents, despite repeated opportunity, could not bring anything on record to show that oral inquiry was conducted with due participation of charged employees and they were given due opportunity to cross examine the witnesses. 27. Oral evidence recorded in a departmental inquiry without giving opportunity to cross-examine is not admissible in evidence, even though Evidence Act, 1872 (hereinafter referred to as “Act, 1872”) is not applicable in departmental inquiry. The statement of such person is an ex-parte version with which charged employee remained un-confronted and such ex-parte version is in the nature of hearse evidence which is not admissible even in departmental inquiry. 28. Moreover, record clearly shows that as per own stand taken by Inquiry Committee, it held its meetings on five dates, i.e., 30.04.1996, 07.06.1996, 02.08.1996, 03.08.1996 and 04.09.1996 but petitioners were called only on two dates, i.e., 02.08.1996 and 03.08.1996 and not others. Neither respondents' counsel could explain nor anything has been placed on record nor during the course of argument, this Court could be informed of any reason as to why Inquiry Committee, as and when held its meetings for holding oral inquiry, on all such dates charged employees were not called. Therefore, finding of guilt recorded against petitioners, based on such inadmissible evidence, amounts to holding petitioners guilty in an inquiry held in utter violation of principles of natural justice and the same cannot be sustained in law. 29. There is another flaw in the proceedings. Petitioners have quoted Rule 24.4 of the Ordinance dealing with departmental proceedings, and in particular, action on the inquiry report. Its applicability is not disputed before this Court. 29. There is another flaw in the proceedings. Petitioners have quoted Rule 24.4 of the Ordinance dealing with departmental proceedings, and in particular, action on the inquiry report. Its applicability is not disputed before this Court. It reads as under: “24.4 If the disciplinary authority having regard to its findings on all or any of the articles of charge is of the opinion that any of the penalties specified in clauses (v) to (ix) of rule 20 should be imposed on the employee, it shall: (a) Furnish to the employee a copy of the report of the inquiry held by it and its findings on each article of charge, or where the inquiry has been held by an inquiring authority appointed by it, a copy of the report of such authority and a statement of its findings on each article of charge together with brief reasons for the inquiring authority. (b) Give the employee a notice stating the penalty proposed to be imposed on him and calling upon him to submit within fifteen days of receipt of the notice or such further time not exceeding fifteen days, as may be allowed, such representation as he may wish to make on the proposed penalty on the basis of the evidence adduced during the inquiry held under rule 23. The disciplinary authority shall consider the representation, if any, made by the employee in pursuance of the notice given to him under clause (1) and determine what penalty, if any, should be imposed on him and made such order as it may deed fit. (emphasis added) 30. Above Rule clearly says that Disciplinary Authority having regard to finding on the charge if, of the opinion that any of the penalty specified in Clauses (v) to (ix) of Rule 20 should be imposed, then it shall furnish a copy of report of inquiry and also its own findings, if any, and give the employee an opportunity informing him about proposed penalty to submit his reply and after considering his representation, if any, only thereafter an order of punishment, if necessary, would be passed. 31. In the present case, learned counsel appearing for BHU could not dispute that no inquiry report was furnished to petitioners. 31. In the present case, learned counsel appearing for BHU could not dispute that no inquiry report was furnished to petitioners. In fact, respondents treated the charge-sheet and reply submitted by petitioners as also petitioners' participation on 2nd and 3rd August' 1996 before Inquiry Committee to be sufficient compliance of requirement of Rule 24.4. In this regard, I may reproduce Para-14 of WP-1 and its reply contained in para-20 of Counter Affidavit submitted by BHU in WP-1 as under: “14. That petitioner was served with the impugned order dated 26-11-96 by means of which services of the petitioner were terminated by the Registrar. That it is pertinent to mention here that no Show cause was ever issued to the petitioner before inflicting the ultimate punishment i.e. order of termination.” “20. That the contents of paragraph no. 14 of the writ petition are wrong and denied. In reply, it is stated that it is wrong to allege that no show cause was ever issued to petitioner before inflicting the order of termination. In fact the petitioner was directed to submit his written defence of the office memorandum dated 10/12.4.1996 and thereafter he was accorded sufficient opportunity of hearing vide letter dated 23.7.1996 of the Assistant Register (Admit) II, BHU. Since the petitioner and other accused were caught red handed in the incident of theft and the charges levelled against them were established by the Disciplinary enquiry committee, as such the services of the petitioner was terminated vide letter dated 26.11.1996 after initiating proper disciplinary proceedings by the respondent university under Ordinance 23 governing the terms and conditions of service of the non-teaching employees of the University.” 32. Learned Senior Counsel, Sri Upadhyay, when confronted to the above pleadings, could not dispute that after receiving inquiry report, it was never supplied to petitioners and this is virtually an admitted fact from the pleadings of University also. There is nothing to contradict it. Therefore, even procedure laid down in Rule 24 of Ordinance, which is consistent to principles of natural justice made with an intention to give adequate opportunity of defence to employee concerned, has not been followed by BHU. 33. There is nothing to contradict it. Therefore, even procedure laid down in Rule 24 of Ordinance, which is consistent to principles of natural justice made with an intention to give adequate opportunity of defence to employee concerned, has not been followed by BHU. 33. In a departmental inquiry an employee is entitled to be given adequate opportunity of defence and if a particular procedure is prescribed in relevant Rules, employer is bound to follow and observe the same in words and spirit and violation thereof would vitiate an order of punishment. 34. In view of above discussion, I have no hesitation in holding that impugned orders of punishment cannot be sustained. 35. In the result, writ petitions are allowed. Impugned orders dated 26.11.1996 are hereby quashed and the orders dated 07.01.2004 whereby representation of petitioner in Writ Petition No. 21669 of 2004 and Writ Petition No. 21210 of 2004 have been rejected are also set aside.