JUDGMENT : 1. Heard Sri Rajat Rajan Singh, learned counsel for the petitioner and Sri Virendra Singh, learned counsel for the State-respondent. 2. Petitioner, a medical officer, working with the State-respondents was served upon a charge sheet dated 19.09.2012, levelling imputation of misconduct on two charges alleging to have caused pecuniary loss to the State. Prior to issue of the charge sheet, petitioner was placed under suspension on 11.06.2012. The disciplinary proceedings against the petitioner is mandated under the Uttar Pradesh Government Servant (Discipline and Appeal) Rules, 1999 (for short 'Rules 1999'). The petitioner responded by filing reply on 24.08.2015, denying the charges and further demanded documents which were not supplied to him. 3. It appears that the documents were in the custody of Central Bureau of Investigation (C.B.I.). The relevant documents were supplied to the petitioner on 02.09.2015, calling upon the petitioner to submit his reply. Petitioner submitted his reply on 16.09.2015 and further submitted a list of witnesses he proposed to examine, which included 100-150 witnesses as noted in the enquiry report. The enquiry officer declined to examine the officers as in the opinion of the enquiry officer they were not relevant to the charge or for raising defence by the petitioner. Thereafter, petitioner was called upon for personal hearing. Petitioner appeared on 22.09.2015, before the enquiry officer and the personal hearing was recorded in question-answer format. Thereafter, vide show cause notice dated 05.11.2015, petitioner came to be served with an enquiry report calling upon him to file objections, if any. Petitioner responded by filing reply to the show cause notice on 21.12.2015. 4. Thereafter, the disciplinary authority passed the impugned punishment order dated 13.04.2016, imposing major punishment of reversion from Level-III to Level-II and directing recovery at Rs. 3,36,300/-and censure entry. Thereafter, petitioner retired on attaining the age of superannuation on 30.06.2021, from the post of Senior Medical Officer (Level-II). 5. It is informed that petitioner has received pension and post retiral dues. 6. 3,36,300/-and censure entry. Thereafter, petitioner retired on attaining the age of superannuation on 30.06.2021, from the post of Senior Medical Officer (Level-II). 5. It is informed that petitioner has received pension and post retiral dues. 6. In this backdrop, learned counsel for the petitioner has made two fold submissions:(i) that the procedure as mandated under Rule 7 of Rules, 1999, in particular, Rule 7 (vii), the enquiry officer has not fixed any date, time or place after receiving the reply of the petitioner; (ii) the department did not produce any documentary or oral evidence before the enquiry officer to prove/establish the charges; (iii) the enquiry officer submitted the enquiry report on the reply submitted by the petitioner and the documents that were supplied to the petitioner for raising his defence. It is not the case of the State-respondent that the department relied upon the very same documents to prove the charge. 7. On specific query, learned counsel for the State-respondent admits that neither presenting officer was appointed, nor, any document noted in the enquiry report or oral evidence was led to prove the charges against the petitioner. 8. The second leg of the argument of the learned counsel for the petitioner is that at this stage since petitioner has superannuated, it is not open for the State-respondent to de-novo initiate disciplinary proceedings against the petitioner in view of the embargo mandated under Article 351-A of the Civil Service Regulations. It is urged that the charges pertain to the year 2011 which is beyond four years, further, approval is to be sought from the Hon'ble Governor to initiate disciplinary proceedings since petitioner has retired. 9. In rebuttal, learned Standing Counsel does not dispute on perusal of the enquiry report that the procedure as contemplated under Rule 7 (vii) of the Rules, 1999, has not been followed. The enquiry officer submitted the report after calling upon the petitioner for personal hearing. The hearing was recorded in a question-answer format on the documents that were supplied to the petitioner to raise his defence. Enquiry report does not reflect or refer to any such documents that was presented by the department before the enquiry officer to press the charges against the petitioner. The charge sheet does not flag the documents or witnesses in support of the charges. 10. Enquiry report does not reflect or refer to any such documents that was presented by the department before the enquiry officer to press the charges against the petitioner. The charge sheet does not flag the documents or witnesses in support of the charges. 10. In other words, petitioner came to be punished on the documents that were supplied to the petitioner on his asking for raising defence. In the alternative, it is submitted that petitioner was called upon to prove his innocence against the charges. The department did not produce any evidence, documentary or oral to prove the charge, nor any date, time or place was fixed by the enquiry officer to supply the list of documents/witnesses upon which the department would rely upon to prove the charges. 11. The Rules, 1999, prescribe detailed procedure to be followed in matters of enforcing discipline and imposing penalties/punishments against government servants in U.P., in cases of proven misconduct. Rule 3 gives a list of minor and major penalties that may be imposed by the appointing authority on the government servants. 12. Rule 7 prescribes in detail, the procedure and the manner in which an enquiry shall be conducted before imposing any major penalty on a government servant. Rule 7 sub rule (2) provides the facts constituting the misconduct on which it is proposed to take action shall be reduced in the form of definite charge or charges to be called charge sheet. This charge sheet has to be approved by the disciplinary authority. Rule 7 sub rule (3) further provides that the charge(s) framed shall be so precise and clear as to give sufficient indication to the charged government servant of the facts and circumstances against him. It is mandatory that the proposed documentary evidence and the name of witnesses proposed to prove the charges together with any oral evidence(s) that may be recorded be mentioned in the charge sheet. 13. Thereafter under Rule 7 sub rule (4) the government servant is given an opportunity to put in a written statement, of his defence, within a specified period of time which shall not be less than 15 days. The government servant is also required to indicate whether he desires to cross examine any witnesses mentioned in charge sheet. 14. 13. Thereafter under Rule 7 sub rule (4) the government servant is given an opportunity to put in a written statement, of his defence, within a specified period of time which shall not be less than 15 days. The government servant is also required to indicate whether he desires to cross examine any witnesses mentioned in charge sheet. 14. Sub rule (v) of Rule 7 mandates that the copies of the documentary evidence mentioned in the charge sheet has to be served on the government servant along with the charge sheet. The aforesaid sub rule is as under: "7(v) The charge-sheet, along with the copy of documentary evidences mentioned therein and list of witnesses and their statements, if any shall be served on the charged Government servant personally or by registered post at the address mentioned in the official records in case the charge-sheet could not be served in aforesaid manner the charge-sheet shall be served by publication in a daily newspaper having wide circulation: Provided that where the documentary evidence is voluminous, instead of furnishing its copy with charge-sheet, the charged Government servant shall be permitted to inspect the same before the Inquiry Officer." 15. A perusal of the aforesaid rule would clearly show that the disciplinary authority is duty bound to make available all relevant documents which are sought to be relied upon against the government servant in proof of the charges. It is only when the charge sheet together with documents is supplied that the government servant can be said to have had an effective and reasonable opportunity to present his written statement of defence. 16. The inquiry report is vitiated also on the ground that the inquiry officer failed to fix any date for the appearance of the petitioner to inspect the documentary evidence to press the charge. The list of evidence-documentary or oral was not prepared nor supplied to the petitioner. 17. An inquiry officer acting in a quasi judicial proceedings is in the position of an independent adjudicator. He is not supposed to be a representative of the department/disciplinary authority/Government. His function is to examine the evidence presented by the department, even in the absence of the delinquent official to see as to whether the unrebutted evidence is sufficient to hold that the charges are proved. In the present case the aforesaid procedure has not been observed. He is not supposed to be a representative of the department/disciplinary authority/Government. His function is to examine the evidence presented by the department, even in the absence of the delinquent official to see as to whether the unrebutted evidence is sufficient to hold that the charges are proved. In the present case the aforesaid procedure has not been observed. Since no documents have been produced by the department nor proved to conclude that the charges have been proved against the respondents. 18. When a department 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 enquiry officer has to be wholly unbiased. 19. In the oral enquiry, what evidence is required to prove the charges is a fact which may differ from case to case. If the allegations in the charges are such which can be proved by oral evidence, it is necessary for the employer to bring oral evidence to prove the charges but if the allegations in an enquiry are such which can be proved from the documents, it is not obligatory for the employer to bring oral evidence. Moreover, even in cases where the charges are based on documents, employer may be required to prove the documents in an event when the genuineness or veracity of the documents has been denied by the delinquent. In a case where the genuineness or veracity of the documents has not been denied by the delinquent, the employer may not fail on the ground that no witness has come forward to prove the document. The disciplinary enquiry is not governed by strict rules of evidence. (Refer: Raj Babu Agnihotri v. Labour Commissioner, [2002(20) LCD 1354]) 20. In State of Haryana and another versus Rattan Singh, (1982) 1 LLJ 46 (SC), it was held in paragraph 4 by the Apex Court : "4. It is well-settled that in a domestic enquiry the strict and sophisticated rules of evidence under the Indian Evidence Act may not apply. All materials which are logically probative for a prudent mind are permissible. There is no allergy to hearsay evidence provided it has reasonable nexus and creditability. It is well-settled that in a domestic enquiry the strict and sophisticated rules of evidence under the Indian Evidence Act may not apply. All materials which are logically probative for a prudent mind are permissible. There is no allergy to hearsay evidence provided it has reasonable nexus and creditability. It is true that departmental authorities and administrative Tribunals must be careful in evaluating such material and should not glibly swallow what is strictly speaking not relevant under the Indian Evidence Act…..The simple point is, was there some evidence or was there no evidence not in the sense of the technical sides governing regular Court proceedings but in a fair common sense way as men of understanding and worldly wisdom will accept.” 21. The learned Standing Counsel fairly submits that the respondents be permitted to conclude the enquiry from the stage of reply submitted by the petitioner after following the mandate of Rule 7 of Rules, 1999, as the petitioner is alleged to have caused monetary loss to the State. 22. Insofar as Article 351-A is concerned, it merely provides that in the event disciplinary proceedings has to be initiated against the retired employee, sanction of the Governor is to be obtained. The proviso to Article 351-A carves out an exception that in the event the disciplinary proceedings has not been initiated prior to retirement of the government servant or he was not under suspension in that event an approval has to be obtained from the Governor. Further, the enquiry would not be conducted on allegation which is prior to four years. 23. Regulations 351A of Civil Service Regulations, for the purpose of the case is extracted:- “351A. The Governor reserves to himself the right of withholding or withdrawing a pension or any part of it, whether permanently or for a specified period and the right of ordering the recovery from a pension of the whole or part of any pecuniary loss caused to Government, if the pensioner is found in departmental or judicial proceedings to have been guilty of grave misconduct, or to have caused pecuniary loss to Government by misconduct or negligence, during his service, including service rendered on re-employment after retirement: Provided that- (a) Such departmental proceedings, if not instituted while the officer was on duty either before retirement or during reemployment i) shall not be instituted save with the sanction of the Governor. ii) shall be in respect of an event which took place not more than four years before the institution of such proceedings; and (Provided further …….For the purpose of this article - (a) departmental proceedings shall be deemed to have been instituted when the charges framed against the pensioner are issued to him or, if the officer has been placed under suspension from an earlier date, on such date; and 24. The substantive part of Regulation 351A confers the power upon the Government of withholding or withdrawing a pension or any part of it, whether permanently or for a specified period and the right of ordering the recovery from a pension of the whole or part of any pecuniary loss caused to Government, if the pensioner is found in departmental or judicial proceedings to have been guilty of grave misconduct, or to have caused pecuniary loss to Government by misconduct or negligence, during his service, including service rendered on re-employment after retirement. There is a proviso appended to the Regulation which circumscribes the power conferred by the substantive part of the Regulation. Clause (a) of the proviso with which we are concerned here uses the expression -if not instituted while the officer was on duty either before retirement or during re-employment. Clause (a) of the proviso will, therefore, get attracted only when the departmental proceedings are instituted against the officer after his retirement or when he is not in re-employment. If the departmental proceedings are instituted before an officer has attained the age of superannuation and before his retirement, proviso (a) can have no application. In order to remove any doubt regarding the date of institution of enquiry or the judicial proceedings an Explanation has been appended after the proviso. According to Explanation (a), departmental proceedings shall be deemed to have been instituted (i) when the charges framed against the officer are issued to him, or (ii) if the officer has been placed under suspension from an earlier date, on such date. By incorporating the explanation, the rule framing authority has notionally fixed two dates as the date on which the departmental proceedings shall be deemed to have been instituted against an officer. By incorporating the explanation, the rule framing authority has notionally fixed two dates as the date on which the departmental proceedings shall be deemed to have been instituted against an officer. A combined reading of the proviso and the explanation would show that there is no fetter or limitation of any kind for instituting departmental proceedings against an officer if he has not attained the age of superannuation and has not retired from service. If an officer is either placed under suspension or charges are issued to him prior to his attaining the age of superannuation, the departmental proceedings so instituted can validly continue even after he has attained the age of superannuation and has retired and the limitations imposed by subclause (i) or sub-clause (ii) of clause (a) of proviso to Regulation 351A will not apply. 25. The proceedings for recovery of the amount from a Government servant can be passed in the event he is held to be guilty of grave misconduct or caused pecuniary loss to Government by his misconduct or negligence during his service. Some procedural safeguards, however, have been laid down in terms of proviso appended thereto, including the requirement to obtain an order of sanction of the Governor. Such order of sanction, however, would not be necessary if the departmental proceedings have been initiated while the delinquent was on duty. Proviso appended to Regulation 351-A merely controls the main proceedings. The same would apply in the exigencies of the situation envisaged therein, namely, when the proceedings were initiated after retirement and not prior thereto. 26. Learned Standing Counsel, in the given facts, submits that in the instant case, admittedly, the petitioner was placed under suspension and the disciplinary proceedings was initiated against the petitioner prior to his attaining the age of superannuation. Though the enquiry concluded before the petitioner could superannuate would not mean that a fresh approval has to be obtained from the Hon'ble Governor in terms of the proviso to Article 351-A of the Civil Service Regulations. The State-respondents are not required to issue any fresh charge sheet, rather, on the same charge sheet which admittedly was issued before the retirement of the petitioner disciplinary proceedings would proceed from the stage of the defect committed by the enquiry officer. In other words, it is urged that Article 351-A in the given facts would not be attracted. The State-respondents are not required to issue any fresh charge sheet, rather, on the same charge sheet which admittedly was issued before the retirement of the petitioner disciplinary proceedings would proceed from the stage of the defect committed by the enquiry officer. In other words, it is urged that Article 351-A in the given facts would not be attracted. The matter would be different in case the enquiry proceedings is quashed. 27. It is a settled legal proposition that, once the Court set asides an order of punishment on the ground, that the enquiry was not properly conducted, the Court should not severely preclude the employer from holding the inquiry in accordance with law. It must remit the concerned case to the disciplinary authority, to conduct the enquiry from the point that it stood vitiated, and to conclude the same in accordance with law. However, resorting to such a course depends upon the gravity of delinquency involved. (Refer: Managing Director, ECIL, Hyderabad etc.etc. v. B. Karunakar etc.etc. AIR 1994 SC 1074 ; Hiran Mayee Bhattacharyya v. Secretary, S.M. School for Girls & Ors., (2002) 10 SCC 293 ; U.P. State Spinning C. Ltd. v. R.S. Pandey & Anr., (2005) 8 SCC 264 ; and Union of India v. Y.S. Sandhu, Ex-Inspector AIR 2009 SC 161 ). 28. Supreme Court in NOIDA Entrepreneurs Association v. NOIDA & Ors., AIR 2011 SC 2112 , held that the competence of an authority to hold an enquiry against an employee who has retired, depends upon the statutory rules which govern the terms and conditions of his service, and while deciding the said case, reliance was placed on various earlier judgments of the Court, including, B.J. Shelat v. State of Gujarat & Ors., AIR 1978 SC 1109 ; Ramesh Chandra Sharma v. Punjab National Bank & Anr., (2007) 9 SCC 15 ; and UCO Bank & Anr. v. Rajinder Lal Capoor, AIR 2008 SC 1831 . 29. As noted in the preceding paragraphs that the embargo of Article 351-A of Civil Service Regulations would not come on the way of the State to conclude the proceedings from the stage of defect even though the petitioner has retired. The departmental proceedings commenced before the retirement of the petitioner. The impugned order is unsustainable due to the procedural defect in concluding the enquiry and not owing to an illegality that would vitiate the departmental enquiry itself. The departmental proceedings commenced before the retirement of the petitioner. The impugned order is unsustainable due to the procedural defect in concluding the enquiry and not owing to an illegality that would vitiate the departmental enquiry itself. The charges against the petitioner pertain to having caused pecuniary loss to the State which can be pressed even after the retirement of the petitioner. The recovery, on the charges being proved, can be made from the pension after approval of the Hon’ble Governor. 30. Having regard to the facts and circumstances of the case and upon perusal of the material documents, in particular, the enquiry report, with the assistance of learned counsel for the parties, the impugned order dated 13.04.2016, passed by the first respondent, Principal Secretary, Department of Medical and Health, Government of U.P., Lucknow, cannot be sustained as the same has been passed without following the mandate of Rule 7 of Rules, 1999. 31. Accordingly, the order dated 13.04.2016, passed by the first respondent, Principal Secretary, Department of Medical and Health, Government of U.P., Lucknow, is set aside and quashed. Liberty is granted to the first respondent to appoint an enquiry officer who shall proceed from the stage of the reply submitted by the petitioner. The department shall appoint a presenting officer who shall present the documents to be relied upon in support of the charges and, thereafter, disciplinary proceedings shall be concluded, expeditiously, preferably, within six months from the date of receipt of certified copy of this order, provided the petitioner cooperates and there is no other impediment. 32. With the aforesaid observations, the writ petition is allowed in part. No cost.