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2020 DIGILAW 1480 (ALL)

Rajesh Kumar v. Chairman Nagar Panchayat Jewer

2020-12-10

J.J.MUNIR

body2020
JUDGMENT : 1. This writ petition is directed against an order dated May the 14th, 2015 passed by the Executive Officer, Nagar Panchayat, Jewar, District Gautam Budh Nagar, terminating the petitioner’s service. In addition, the petitioner has been ordered to deposit a sum of Rs.11,000/- with the Employers, held to be embezzled by him. 2. Admittedly, a counter affidavit has been filed in this case on behalf of respondent nos.2 and 3, to which a rejoinder has been filed on 26th February, 2017. However, the counter affidavit has not been placed on record by the office. Learned Counsel for the petitioner has supplied a copy of the counter affidavit, which is being retained on record and shall form part of it. Thus, the parties have exchanged affidavits. 3. Admit. 4. Heard forthwith. 5. Heard Mr. Manu Saxena, learned Counsel for the petitioner and Mr. Satendra Kumar Upadhyay, learned Counsel appearing on behalf of respondent nos.1 and 6. No one appears on behalf of respondent nos.2 and 3, though the name of Mr. Devendra Kumar, learned Counsel, is shown on behalf of the said respondents. 6. The petitioner was appointed as a Tax Collector with the Nagar Panchayat, Jewar, District Gautam Budh Nagar. He was suspended pending inquiry by the Executive Officer, vide order dated 20.04.2012. The allegations indicate that there were, in the receipts relating to levies on sale of animals in the cattle fair, many irregularities found. It was indicated that in a number of receipts, the number of cattle and the sum of money collected have been tampered with. The petitioner was charged prima facie with tampering official record to commit embezzlement and placed under suspension, as aforesaid. A charge sheet was issued to the petitioner on 22.06.2012, to which he submitted his reply on 07.10.2012. An inquiry report was submitted in the matter on 17.01.2013 by the Inquiry Officer/ Naib Tehsildar. The Inquiry Officer found that the petitioner had embezzled a sum of Rs.87,370/-, but since that money was deposited in the Nagar Panchayat Account, the Inquiry Officer thought that no charge survived against the petitioner. The forwarding note of the office to the Executive Officer shows that the petitioner was recommended to be reinstated in service, with a warning not to repeat his misconduct. 7. The forwarding note of the office to the Executive Officer shows that the petitioner was recommended to be reinstated in service, with a warning not to repeat his misconduct. 7. It must be remarked that the inquiry report was considered by the Disciplinary Authority/ the Executive Officer, who held the petitioner not guilty of embezzlement, but held him guilty of charges of tampering official records and not depositing Government moneys in accordance with rules. The petitioner was reinstated in service with a warning not to repeat such a mistake in future. He was also awarded an adverse entry. This order of reinstatement with a minor punishment was made by the Executive Officer on 16.02.2013. 8. Post reinstatement in service, the petitioner was given charge of a Tax Collector. He was assigned duties at different places from time to time. Despite reinstatement, the petitioner was neither paid salary for the period during which he was suspended from service nor his subsistence allowance. These were not paid, though he was reinstated in service. It appears that post reinstatement also, the petitioner’s salary was not paid. The petitioner made a number of representations in this regard to the Nagar Panchayat, but to no avail. Still, the Executive Officer appears to have written a letter addressed to the Chairman dated 13.01.2014, apprising the latter that the petitioner has been reinstated in service with the imposition of a minor punishment, and that there was no justification to withhold his salary. It does appear from this letter that there was some issue raised by the Chairman about the jurisdiction of the Executive Officer to pass final orders in the disciplinary proceedings. The Executive Officer cited the provisions of Sections 74, 75 and 76 of the Uttar Pradesh Municipalities Act, 1916 to say that he had powers to dispose of the disciplinary proceedings against an employee of the petitioner’s cadre. 9. The course of proceedings show that the Chairman of the Nagar Panchayat and the Executive officer were not ad idem about the disciplinary proceedings initiated against the petitioner and concluded by the Executive Officer’s order dated 16.02.2013. Upon receipt of the memo dated 13.01.2014 from the Executive Officer, the Chairman ordered an inquiry afresh to be done by one Mohan Lal Gupta, an Officer of the Nagar Panchayat. Upon receipt of the memo dated 13.01.2014 from the Executive Officer, the Chairman ordered an inquiry afresh to be done by one Mohan Lal Gupta, an Officer of the Nagar Panchayat. He submitted a short report dated 22.04.2014, saying that about the added charge of threat to commit suicide by the petitioner, there was no evidence and so far as the other charges were concerned, these had already been inquired into and the disciplinary proceedings concluded against the petitioner. It is also indicated in this report that the Chairman was the Disciplinary Authority relating to employees of the clerical cadre and still higher cadres. This remark in the inquiry report dated 22.04.2014 is further reflective of some issue between the Chairman and the Executive Officer, about the disciplinary jurisdiction over an employee of the petitioner’s cadre. 10. It is alleged by the petitioner that the Chairman, on receipt of this report, sent one Vikas Sharma, a member of the Nagar Panchayat, from Ward no.16 to the Nagar Panchayat Office, with instructions to secure the entire record relating to disciplinary proceedings against the petitioner. The member concerned had instructions from the Chairman to remove the record of the disciplinary proceedings away from the Nagar Panchayat Campus. It is claimed that the member concerned forcefully took away the entire record of the disciplinary proceedings, relating to the petitioner, on 09.05.2014 at about 10 O’ clock in the morning. A report in this connection was immediately submitted by the Clerk to the Executive Officer on 09.05.2014. The petitioner also reported the matter to the Executive Officer on 09.05.2014. A First Information Report was lodged by the Executive Officer on 09.05.2014 with Police Station Kotwali Jewar, District Gautam Budh Nagar. It, however, does not appear from the record that the written information sent vide memo no. 198/3/ u-i-ts- /2014, dated 09.05.2014, led to the registration of a crime. 11. It is asserted that this action of the Executive Officer enraged and annoyed the Chairman of the Nagar Panchayat to the extent that he set aside the petitioner’s reinstatement order dated 16.02.2013 and ordered revival of his earlier suspension order dated 20.04.2012. This order was passed by the Chairman on 30.05.2014. In consequence, disciplinary proceedings against the petitioner stood revived. The petitioner says that this revival was without jurisdiction. This order was passed by the Chairman on 30.05.2014. In consequence, disciplinary proceedings against the petitioner stood revived. The petitioner says that this revival was without jurisdiction. Nevertheless, another inquiry report was submitted on 23.06.2014, followed by a further report dated 24.06.2014, both undertaken by Vikas Sharma, the member of the Nagar Panchayat, detailed by the Chairman to remove the disciplinary proceedings’ record from the Nagar Panchayat premises, earlier. Based on these two inquiry reports dated 23.06.2014 and 24.06.2014, a show cause notice dated 26.06.2014 was issued to the petitioner by the Chairman of the Nagar Panchayat. 12. The show cause notice details some five charges against the petitioner, four of which did not figure in the charge sheet issued to him. The petitioner filed a reply to the show cause on 05.07.2014. Post submission of the petitioner’s reply to the show cause notice, the Inquiry Officer, Mohal Lal Gupta, who had submitted the first inquiry report dated 11.02.2013, substantially exonerating the petitioner, submitted a fresh inquiry report. It is claimed by the petitioner that this report was made by Mohan Lal Gupta under coercion and undue influence by the Chairman. This report runs contrary to the earlier inquiry report dated 11.02.2013 authored by Gupta himself. The inquiry report dated 07.07.2014 holds the petitioner guilty. 13. It must be remarked here that the inquiry report dated 07.07.2014 is more of an office appraisal note about the inquiry reports submitted against the petitioner (without mentioning the dates of those reports). This report dated 07.07.2014 also certifies the fact that it is the Chairman, who is the competent Disciplinary and Appointing Authority, vis-a-vis an employee of the petitioner’s cadre. This report/ office note also recommends that it is not in the Nagar Panchayat’s interest for the petitioner to continue in service. 14. The Chairman, by his order dated 08.07.2014, terminated the petitioner’s services. The petitioner filed an appeal from the termination order dated 08.07.2014 to the Divisional Commissioner, under Section 77 of the Uttar Pradesh Municipalities Act, 1916. The Commissioner found that the procedure adopted by the Chairman was utterly flawed, where no proper charge sheet was issued to the petitioner. It was also found that a three member inquiry committee report dated 24.06.2014, that dealt with the charges against the petitioner, was not provided to the petitioner. The Commissioner found that the procedure adopted by the Chairman was utterly flawed, where no proper charge sheet was issued to the petitioner. It was also found that a three member inquiry committee report dated 24.06.2014, that dealt with the charges against the petitioner, was not provided to the petitioner. It was also held that the Chairman was not the petitioner’s Appointing Authority, but the jurisdiction vested with the Executive Officer, under the provisions of Sections 74 and 75 of the Act of 1916. The order of the Chairman terminating the petitioner’s services dated 08.07.2014 was, therefore, held to be without jurisdiction and the product of an essentially flawed procedure. The petitioner’s appeal was allowed by the Commissioner vide order dated 30.09.2014, setting aside the order dated 08.07.2014, terminating the petitioner’s services. It was further ordered that in case some embezzlement or other misconduct had been committed by the petitioner, the competent Authority can place him under suspension, after issuing him with a charge sheet, and conclude the disciplinary proceedings in accordance with rules. 15. In compliance with the aforesaid orders, the petitioner was reinstated in service. However, taking a cue from the liberty given by the Commissioner to proceed afresh, the petitioner was promptly placed under suspension pending inquiry, once more. The suspension order was passed by the Executive Officer, indicating added charges, apart from the claimed embezzlement. A charge about the issue of a death certificate after accepting a bribe of Rs.200/-, a charge about threat to commit suicide, a charge about misbehaving with a clerk followed by an ‘et cetera’, were included. This suspension order was followed by a charge sheet dated 22.12.2014. This charge sheet carries six charges. The petitioner filed his reply to the said charge sheet on 02.01.2015. 16. It is the petitioner’s case that post submission of his reply, no inquiry was convened. He was not intimated of any date, time or venue of inquiry. He was not shown any documents, on which the establishment relied to prove the charges, or permitted to cross-examine witnesses. In fact, no witness was examined in support of the charges. It is the petitioner’s case that entire disciplinary proceedings were held and concluded behind his back, for whatever these were. The impugned order of termination from service was passed on 14.05.2015, with no inquiry ever being held to prove the charges, on which it was founded. In fact, no witness was examined in support of the charges. It is the petitioner’s case that entire disciplinary proceedings were held and concluded behind his back, for whatever these were. The impugned order of termination from service was passed on 14.05.2015, with no inquiry ever being held to prove the charges, on which it was founded. It is claimed that the entire disciplinary proceedings culminating in the impugned order have been undertaken in utter violation of the principles of natural justice. 17. It is argued by Mr. Manu Saxena, learned Counsel for the petitioner, that the impugned order is one that has been passed without following the prescribed procedure for holding a disciplinary inquiry or adhering to the essentials of such an inquiry, like fixing a date, time and place with intimation to the petitioner. These vitiate that order. Apart from it, the impugned order has been assailed as a product of the then incumbent Chairman’s mala fides, who has virtually scripted an outcome on a premeditated basis. 18. This Court has looked into the counter affidavit filed on behalf of the Nagar Panchayat and the Executive Officer, arrayed as respondent nos.3 and 2, respectively, in that order. This Court notices that there is a plea raised in paragraph no.27 of the counter affidavit that the present challenge laid to the impugned order of termination of service is rendered meaningless, because pendente lite the petitioner has instituted Writ – A No.46921 of 2015 with a solitary prayer that the petitioner may be paid the entire arrears of his salary. That writ petition was dismissed vide order dated 27.10.2015, because the entire arrears of the petitioner’s salary were paid in the meanwhile. In order to examine the effect of institution of Writ – A No.46921 of 2015 by the petitioner on the cause of action involved in the present writ petition, this Court called for the papers of the decided case and perused the same. A perusal of the said writ petition shows that the cause of action there is quite unrelated to that involved in the present writ petition, though there are assertions of a similar kind, assailing the procedure of disciplinary proceedings undertaken against the petitioner and the unfair manner in which he was suspended and terminated from service. A perusal of the said writ petition shows that the cause of action there is quite unrelated to that involved in the present writ petition, though there are assertions of a similar kind, assailing the procedure of disciplinary proceedings undertaken against the petitioner and the unfair manner in which he was suspended and terminated from service. The cause of action is confined entirely to three heads of dues of the petitioner, to which he would be entitled, irrespective of the impugned order of termination. The reliefs claimed in Writ – A No.46921 of 2015 would be the best evidence about the unrelated and limited cause of action there. The material reliefs, sought in Writ – A No.46921 of 2015, read: “A. issue a writ, order or direction in the nature of mandamus, commanding the respondents to pay the entire salary of the petitioner w.e.f. April-2012 till October-2014 along with interest thereon @ 18% per annum, within time specified by this Hon’ble Court. B. issue a writ, order or direction in the nature of mandamus, commanding the respondents to pay the suspension allowance w.e.f. November-2014 till 14.05.2015 along with interest thereon @ 18% per annum, within time specified by this Hon’ble Court. C. issue a writ, order or direction in the nature of mandamus, commanding the respondents to pay the suspension allowance w.e.f. November-2014 till 14.05.2015 along with interest thereon @ 18% per annum, within time specified by this Hon’ble Court.” 19. Paragraph no.24 of the writ petition last mentioned discloses the fact of institution of the present writ petition and its pendency. It has been clearly disclosed, what reliefs have been sought here, so much so that the petitioner has appended as Annexure no.19, a copy of the array of parties here, the relief clause and the order made on 09.07.2015 by the Court, while entertaining the writ petition and a further order dated 04.08.2015. 20. This Court is, therefore, of opinion that the cause of action involved in the present writ petition is distinct and different from that involved in Writ – A No.46921 of 2015, which had very limited office. The institution of Writ – A No.46921 of 2015 or its eventual dismissal as infructuous vide order dated 27.10.2015, have no bearing on the petitioner’s right involved in the present petition. 21. Now, turning to the thrust of Mr. The institution of Writ – A No.46921 of 2015 or its eventual dismissal as infructuous vide order dated 27.10.2015, have no bearing on the petitioner’s right involved in the present petition. 21. Now, turning to the thrust of Mr. Manu Saxena’s submission, the specific case pleaded is that post a third round of suspension and redone disciplinary proceedings, no inquiry, whatsoever, was held after the petitioner submitted his reply to the charge sheet. No date, time and venue of inquiry were determined or the petitioner intimated about it. The impugned order was passed on a mere perusal of papers, based on the report of the inquiry committee, which did nothing more than looking into the charge sheet and the petitioner’s reply, or at best, perusing some records in the petitioner’s absence. No witnesses were examined on behalf of the establishment before the inquiry committee, or any documentary evidence properly led and proved. This Court notices that this submission of the learned Counsel for the petitioner is based on specific averments made in paragraph nos.20 and 21 of the writ petition, relative to which Grounds ‘Q’ and ‘R’ have been raised. 22. A perusal of the counter affidavit shows that the assertion in paragraph nos.20 and 21 of the writ petition have not been specifically denied, with pleadings to show, along with material, that a date, time and place for inquiry were fixed and intimated to the petitioner. Paragraph nos.20 and 21 of the writ petition have been answered in paragraph no.29 of the counter affidavit, that carries no denial, whatsoever, about those specific assertions in the writ petition. This Court also finds that whatever of the record has been enclosed with the counter affidavit, does not evidence an inquiry being held with a date, time and place intimated to the petitioner. A perusal of the inquiry report dated 12.05.2015, annexed as Annexure no. CA-15, also does not show that anyone on behalf of the establishment appeared before the inquiry committee to lead evidence in support of the charges. 23. It is, by now, the settled position of law that even if an employee does not appear before the Inquiry Tribunal/ Committee, the charges do not stand proved by the delinquent's default. These cannot be proved by the inquiry committee, going through the record of their own. 23. It is, by now, the settled position of law that even if an employee does not appear before the Inquiry Tribunal/ Committee, the charges do not stand proved by the delinquent's default. These cannot be proved by the inquiry committee, going through the record of their own. The establishment have to lead, both documentary evidence and examine witnesses in support of the charges. The charges have to be established by the establishment, even if the delinquent is ex parte. If the employee appears, he has a right not only to cross-examine witnesses, who appear on behalf of the establishment, but also to lead his own evidence – both documentary and oral. Apart from that, it is also, by now, an acknowledged principle of law that in cases involving major punishment, parole evidence ought to be led to establish the charges. A perusal of the inquiry report in this case shows that no such procedure has been adopted. The inquiry committee has perused the charge sheet, the petitioner’s reply and the documents annexed to the charge sheet of its own. No evidence before them has been led on behalf of the establishment, with the documents being proved or witnesses being examined. The inquiry committee has proceeded to accept the charges by surreptitiously rejecting the petitioner’s reply to each of them, with no evidence before them to prove the charges. 24. The first, second and fifth charges have not been held to be proved. Therefore, those need not be looked into. The third charge has been held proved, which relates to an embezzlement of a sum of Rs.11,000/-. The charge has been held proved on an inquisitorial examination of the Bank Account entries relied on by the establishment, with no witness from the Accounts Department of the Nagar Panchayat or otherwise In-charge of handling the Accounts to prove in what manner the entries precisely prove the charge about embezzlement. The entire finding has been recorded without any evidence being led before the inquiry committee. 25. The fourth charge relates to a threat by the petitioner to commit suicide. The finding has again been recorded upon a reading of the charge, the petitioner’s reply and pre-recorded statements of some employees and members of the Nagar Panchayat about an event dated 17.02.2014, when the meeting of the Board was in progress. 25. The fourth charge relates to a threat by the petitioner to commit suicide. The finding has again been recorded upon a reading of the charge, the petitioner’s reply and pre-recorded statements of some employees and members of the Nagar Panchayat about an event dated 17.02.2014, when the meeting of the Board was in progress. None of the employees or members of the Nagar Panchayat, who witnessed the alleged threat, were examined by the establishment in support of the charge. Still, the charge was held partly proved. 26. The sixth charge relates to the petitioner not constructing the demand book relating to tax or making efforts to realize the assessed tax. The charge has been held proved on a perusal of the petitioner’s reply and documents on record before the inquiry committee. It has been held that from time to time, directions have been given to the petitioner to secure assessment of house tax and to recover the same in accordance with the Board’s resolutions and applicable bylaws, but he has not shown any interest in that regard. Whatever tax he has recovered, is negligible. The demand has not been properly drawn. This charge would require the oral evidence of those officers and employees, who directed the petitioner to ensure assessment and effect recovery of taxes. There was much detail to be proved on the basis of evidence, both oral and documentary, to be led on behalf of the establishment. Nothing of the kind was done. The inquiry committee, instead recorded a finding of guilt on the sixth charge, on a mere perusal of papers that can hardly be called evidence, properly led and proved to establish the charge. 27. Here, it would be relevant to refer to the law regarding the essential requirements of holding a disciplinary inquiry, where charges are serious and imposition of major punishment is involved. In this connection, reference may be made to the decision of the Supreme Court in Chamoli District Co-operative Bank Ltd. Through its Secretary/ Mahaprabandhak and another vs. Raghunath Singh Rana and others, (2016) 12 SCC 204 . In Chamoli District Co-operative Bank Ltd. Through its Secretary, it has been held: “22. From the propositions of law, as enunciated by the Apex Court as noted above, and the facts of the present case, we arrive at the following conclusions: 22.1. In Chamoli District Co-operative Bank Ltd. Through its Secretary, it has been held: “22. From the propositions of law, as enunciated by the Apex Court as noted above, and the facts of the present case, we arrive at the following conclusions: 22.1. After service of charge-sheet dated 16-1-1993 although the petitioner submitted his reply on 4-2-1993 but neither inquiry officer fixed any date of oral inquiry nor any inquiry was held by the inquiry officer. 22.2. Mandatory requirement of a disciplinary inquiry i.e. is holding of an inquiry when the charges are refuted and serving the inquiry report to the delinquent has been breached in the present case. 22.3. Respondent 1 employee having not been given opportunity to produce his witnesses in his defence and having not been given an opportunity of being heard in person, the statutory provisions as enshrined in Regulation 85(i)(b), have been violated. 22.4. The disciplinary authority issued show- cause notice dated 4-5-1993 to Respondent 1 employee without holding of an inquiry and subsequent resolution by disciplinary authority taken in the year 2000 without there being any further steps is clearly unsustainable. The High Court has rightly quashed the dismissal order by giving liberty to the Bank to hold de novo inquiry within a period of six months, if it so desires. 22.5. The Bank shall be at liberty to proceed with the disciplinary inquiry as per directions of the High Court in para 1 of the judgment. The High Court has already held that the petitioner shall be deemed to be under suspension and shall be paid suspension allowance in accordance with the rules.” 28. In State of U.P. and others vs. Saroj Kumar Sinha, (2010) 2 SCC 772 , it has been held: “27. A bare perusal of the aforesaid sub-rule Shows that when the respondent had failed to submit the explanation to the charge-sheet it was incumbent upon the inquiry officer to fix a date for his appearance in the inquiry. It is only in a case when the government servant despite notice of the date fixed failed to appear that the inquiry officer can proceed with the inquiry ex parte. Even in such circumstances it is incumbent on the inquiry officer to record the statement of witnesses mentioned in the charge-sheet. Since the government servant is absent, he would clearly lose the benefit of cross-examination of the witnesses. Even in such circumstances it is incumbent on the inquiry officer to record the statement of witnesses mentioned in the charge-sheet. Since the government servant is absent, he would clearly lose the benefit of cross-examination of the witnesses. But nonetheless in order to establish the charges the Department is required to produce the necessary evidence before the inquiry officer. This is so as to avoid the charge that the inquiry officer has acted as a prosecutor as well as a judge. 28. 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. (Emphasis by Court)” 29. This position of law was echoed by a Division Bench of this Court in State of U.P. vs. Aditya Prasad Srivastava and another, 2017 (2) ADJ 554 (DB) (LB). In State of U.P. vs. Aditya Prasad Srivastava, it has been held by their Lordships of the Division Bench: “17. 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 charge against the eployee by adducing oral as well as documentary evidence. In case charges warrant major punishment then the oral evidence by producing the witnesses is necessary. (Emphasis by Court)” 30. Even if, an employee prefers not to participate in enquiry the department has to establish the charge against the eployee by adducing oral as well as documentary evidence. In case charges warrant major punishment then the oral evidence by producing the witnesses is necessary. (Emphasis by Court)” 30. There are some very pertinent remarks in a Division Bench decision of this Court, sitting at Lucknow in Smt. Karuna Jaiswal vs. State Of U.P. Through Secy Mahila Evam Bal Vikas, 2018 (9) ADJ 107 (DB) (LB) relevant to the issue here. It was a case where the inquiry was held ex parte, but the petitioner was not intimated of the date, time and place of inquiry, nor oral evidence was led. It was held in Smt. Karuna Jaiswal thus: “14. It is also equally relevant and significant to notice in this case that though the petitioner failed to submit her reply to the charge-sheet, however, the Enquiry Officer did not fix any date, time and place for oral enquiry. It is settled principle that even in a situation where the delinquent officer/employee does not submit reply to the charge-sheet, the Enquiry Officer still needs to prove the charges on the basis of material and evidence available on record and for the said purpose he needs to fix and intimate to the charged officer, the date, time and place for oral enquiry. 15. The law in this regard is very well settled and does not need a reiteration, however, we may refer to a judgment of Hon’ble Supreme Court in the case of State of Uttar Pradesh and others vs. Saroj Kumar Sinha, reported in [ (2010) 2 SCC 772 ], wherein it has clearly been held that Enquiry Officer acts as a quasi judicial authority and his position is that of an independent adjudicator and further that he cannot act as a representative of the department or disciplinary authority and further that he cannot act as a prosecutor neither he should act as a judge; his function is to examine the evidence presented by the department and even in the absence of the delinquent officer, has to see as to whether the unrebutted evidence is sufficient to bring home the charges. 16. 16. Hon’ble Supreme Court has further held in the said judgment of Saroj Kumar Sinha (supra) that it is only in case when the government servant, despite notice, fails to appear during the course of enquiry that Enquiry Officer can proceed ex- parte and even in such circumstances it is incumbent upon the Enquiry Officer to record the statement of witness. 17. In the instant case, no oral enquiry was held, neither the petitioner was given any notice to participate in any oral enquiry by fixing date, time and place for oral enquiry. It is only that the Enquiry Officer after noticing that despite sufficient time having been given to the petitioner, she did not furnish her reply to the charge-sheet, he proceeded to submit ex-parte report without conducting any oral enquiry by fixing date, time and place for such an oral enquiry. Accordingly, the Enquiry Officer, in this case, has violated the aforesaid principles, which clearly vitiates the enquiry proceedings and any punishment order based on such a vitiated enquiry, is clearly not sustainable.” 31. There is sterling guidance on this issue to be found in the decision of their Lordships of the Supreme Court in Roop Singh Negi vs. Punjab National Bank and others, (2009) 2 SCC 570 , where it has been held: “14. 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.” 32. In the present case, it appears without cavil, that the documents that were considered, were not proved by any evidence, particularly, parole evidence. The documents, which the inquiry committee took into consideration, were, therefore, idle papers, but not documentary evidence. In the present case, it appears without cavil, that the documents that were considered, were not proved by any evidence, particularly, parole evidence. The documents, which the inquiry committee took into consideration, were, therefore, idle papers, but not documentary evidence. Those papers had to be galvanized through a well-ordered presentation and proof, before the inquiry to be done by the establishment. Nothing of the kind was done. 33. In view of what this Court has found and the way the law bears on the issue, the impugned order dated 14.05.2015 cannot be sustained. At the same time, the impugned order, being one that is held to be bad on account of an utterly flawed procedure adopted to hold disciplinary proceedings, liberty to the respondents to proceed afresh ought not to be denied in the event they desire to proceed afresh. 34. In case, the respondents do elect to proceed afresh, they would be at liberty to do so from the stage where the charge-sheet dated 22.12.2014 was served upon the petitioner and he submitted the reply dated 02.01.2015. All subsequent proceedings would stand effaced, including the impugned order of termination of services. It is also required to be stipulated that ever if the respondents choose to proceed afresh, the petitioner shall be forthwith reinstated in service and paid all arrears of salary due upto date (excluding whatever the petitioner has already received). Also, considering the manner in which the proceedings have taken course in this case, this Court thinks that if the petitioner were to be proceeded with against afresh at all, he ought not be placed under suspension pending inquiry any more. 35. In the result, this petition succeeds and is allowed with costs. The impugned order dated 14.05.2015 passed by the Executive Officer, Nagar Panchayat, Jewar, District Gautam Budh Nagar, terminating the petitioner’s services, is hereby quashed. The respondents -the Executive Officer, Nagar Panchaway, Jewar, District Gautam Budh Nagar and the Chairman, Nagar Panchayat, Jewar, District Gautam Budh Nagar, are ordered to reinstate the petitioner in service forthwith, with all consequential benefits, including continuity of service and arrears of salary. In computing the arrears of salary due to the petitioners, the emoluments that the petitioner has already received, shall be adjusted. It will be open to the respondent, Nagar Panchayat and their various officers, if they so desire, to proceed afresh with the departmental proceedings against the petitioner. In computing the arrears of salary due to the petitioners, the emoluments that the petitioner has already received, shall be adjusted. It will be open to the respondent, Nagar Panchayat and their various officers, if they so desire, to proceed afresh with the departmental proceedings against the petitioner. If the respondents proceed afresh, they would do so from the stage of the charge-sheet dated 22.12.2014 and its reply dated 02.01.2015 submitted by the petitioner; all subsequent proceedings shall stand effaced. In the peculiar facts and circumstances, in the event the respondents choose to proceed afresh, they will do so after reinstating the petitioner and paying all his due emoluments, but shall not place him under suspension pending inquiry. 36. Let this order be communicated to the Chairman and the Executive Officer, Nagar Panchayat, Jewar, District Gautam Budh Nagar, through the learned Chief Judicial Magistrate, Gautam Budh Nagar by the Joint Registrar (Compliance).