JUDGMENT : J.J. MUNIR, J. 1. This Writ Petition is directed against an order dated 30.06.2015 passed by the Managing Director, U.P. State Warehousing Corporation, Lucknow dismissing the petitioner from service and directing recovery of a sum of Rs. 6,34,369.52. The said order has been affirmed in Appeal by the Appellate Authority vide order dated 12.01.2016. The appellate order is also under challenge. 2. Parties have exchanged affidavits. 3. Admit. 4. Heard Mr. Ashutosh Tripathi, learned counsel for the petitioner, Mr. O.P. Singh, learned Senior Advocate assisted by Mr. Sushil Kumar Rao, learned counsel appearing on behalf of Respondent No. 2 and the learned Standing Counsel appearing on behalf of Respondent No. 1. 5. The petitioner was a Technical Officer posted at the U.P. State Warehousing Corporation Centre, District Allahabad. He was a permanent employee of the Corporation. The petitioner was to superannuate from service of the Corporation on 30.06.2015 upon attaining the age of 60 years. Disciplinary proceedings were instituted against the petitioner on 15.07.2014 on allegation of causing loss of ricestock at the Ghazipur Centre of the U.P. State Warehousing Corporation (for short ‘the Corporation’) during the period of 2003-2004 and 2009- 2010. An Inquiry Officer was appointed on 15.07.2014 and a letter was issued to the petitioner on 26.05.2015 by the Inquiry Officer, wherein the petitioner was directed to submit a reply to a charge-sheet dated 01.09.2014 and attend before the Inquiry Officer on 8.06.2015 at 3:00 p.m. 6. It is the petitioner's case that he was not served with a copy of the charge-sheet and, therefore, it was not possible for him to submit a reply. 7. Attending at the inquiry would not, according to the petitioner, serve any purpose. The petitioner after receiving the letter dated 26.05.2015 from the Inquiry Officer informed the Deputy Manager, Finance about the non-service of charge-sheet dated 01.09.2014. The Deputy Manager, Finance directed the Inquiry Officer to ensure service of the charge-sheet upon the petitioner. The petitioner was served with the charge-sheet under a letter of the Inquiry Officer dated 28.05.2015. It is the petitioner's case that without a copy of the charge-sheet, the petitioner submitted a reply of sorts dated 28.05.2015, where the stand taken was that copies of the charge-sheet and the documents, that were proposed to be produced against him in evidence, had not been served. It is the petitioner's case that without a copy of the charge-sheet, the petitioner submitted a reply of sorts dated 28.05.2015, where the stand taken was that copies of the charge-sheet and the documents, that were proposed to be produced against him in evidence, had not been served. The petitioner asserts that he was in a helpless position because he was scheduled to retire on 30.06.2015 and the charge-sheet was served upon him on 2.06.2015, along with the letter dated 28.05.2015. 8. The petitioner has come up with a specific case in paragraph 13 of the Writ Petition that the Inquiry Officer, without fixing any date, time or place for holding the inquiry, submitted his inquiry-report dated 15.06.2015 to the Disciplinary Authority, holding the petitioner guilty. It is the petitioner's case that the Inquiry Officer held the charges proved without the establishment, leading any evidence or examining witnesses to prove them. The charges were held proved by default because the petitioner did not submit a reply to the charge-sheet or produce evidence in defence. The petitioner was held responsible for causing loss of the bulk of rice i.e. subject matter of the charge by the Inquiry Officer. 9. Based on the report of the Inquiry Officer, the petitioner was dismissed from service by the impugned order dated 30.06.2015. The petitioner carried an Appeal from the order of dismissal under Regulation 21 of the Staff Service Regulation of the Corporation to the Executive Committee. The Appellate Authority by its order dated 12.01.2016 dismissed the appeal and affirmed the order of dismissal. 10. Aggrieved, this writ petition has been instituted. 11. It is argued by the learned counsel for the petitioner that the impugned orders are manifestly illegal and vitiated because it is imperative in a case involving the imposition of a major penalty that a date, time and place of inquiry be specified by the Inquiry Officer and intimated to the delinquent. In this case no date, time and place of the inquiry was communicated to the petitioner. It is next submitted that a charge, particularly one involving imposition of a major penalty, cannot be held proved by the Inquiry Officer unless the establishment examine witnesses in support of the charge at an oral inquiry and establish the charge by their evidence. In this case no date, time and place of the inquiry was communicated to the petitioner. It is next submitted that a charge, particularly one involving imposition of a major penalty, cannot be held proved by the Inquiry Officer unless the establishment examine witnesses in support of the charge at an oral inquiry and establish the charge by their evidence. It is urged by learned Counsel for the petitioner that it is not the law that merely because the delinquent does not appear or fails to submit a reply to the charge-sheet or produce evidence in his defence, the charges stand proved by default. The burden of the establishment to prove the charges cannot be cast away. A perusal of paragraph Nos. 16, 17 and 18 of the counter-affidavit shows that the averments in paragraph Nos. 13, 14, 15 and 16 of the Writ Petition have not been denied. The averments in paragraph Nos. 13 to 16 of the Writ Petition carry specific allegation that no date, time and place of the inquiry was fixed by the Inquiry Officer and that no witnesses were examined at an oral inquiry held to establish the charges before the Inquiry Officer. There is in point of fact, therefore, no denial of this position by the respondents. 12. Upon hearing learned Counsel for the parties and perusal of records, this Court finds that indeed no date, place and venue of the inquiry was fixed by the Inquiry Officer, before holding and concluding the inquiry, wherein the petitioner was judged guilty. Also, it is evident that no witnesses were examined before the Inquiry Officer by the establishment in support of the charge of which the petitioner has been held guilty. It is evident that the petitioner has been held guilty, merely because he was ex-parte and did not respond to the charge-sheet and did not appear before the Inquiry Officer or produce evidence. The legal position is too well settled to brook doubt that in a case involving the imposition of a major penalty upon a public servant, or the servant of a Corporation, whose terms and conditions of service are governed by law, the Inquiry Officer, entrusted with the task of holding inquiry, has mandatorily to fix a date, time and venue of the inquiry which he has to intimate to the delinquent before proceeding further. This requirement is imperative in all those cases, where a major penalty is proposed to be imposed. 13. Here, the admitted position is that the aforesaid requirement of the law was given a go-by. It is also trite law that in any disciplinary proceedings, the outcome of which leads to imposition of a major penalty, it is the establishment's obligation to produce witnesses and other evidence in support of charges in an oral inquiry held by the Inquiry Officer. Though the Inquiry Officer may be an officer of the same establishment, but he is not a party who might identify himself with the establishment. The Inquiry Officer has to act as an impartial arbiter. It is the establishment's obligation to prove, by evidence, the charges against the employee even if he remains ex-parte. It does not absolve the establishment of their obligation to prove the charges by examining witnesses and leading evidence. It is not that the employee’s or the delinquent's default in defending himself would lead to the charges being established ipso facto. It would be particularly relevant to refer to the relevant finding of Inquiry Officer figuring in his report on the basis of which the orders impugned have been passed. It is not that the employee’s or the delinquent's default in defending himself would lead to the charges being established ipso facto. It would be particularly relevant to refer to the relevant finding of Inquiry Officer figuring in his report on the basis of which the orders impugned have been passed. The finding reads: ^^Jh Áse ukjk;.k flag] Ákfof/kd vf/kdkjh] {ks=h; dk;kZy; bykgkckn dks miyC/k djk;s x;s vkjksi i= ds lUnHkZ esa muds }kjk vkjksi i= dk ÁR;qRrj vkt fnukad 15-06-2015 rd miyC/k ugha djk;k x;k gSA Jh Áse ukjk;.k flag }kjk mDr vkjksi i= ds vuqikyu esa i= la[;k 523 fnukad 28-05-2015 v|ksgLrk{kjh dks Ásf"kr fd;k x;k ftlesa muds }kjk fcUnq la[;k 01 ls 05 rd ij tkudkjh pkgh xbZA Á/kku dk;kZy; ds i= la[;k 4313 fnukad 25-05-2015 }kjk fcUnq la[;k 01 ls 04 ds lEcU/k esa lwpuk miyC/k djkbZ xbZ ,oa i= la[;k 4653 fnukad 03-06-2015 }kjk Jh Áse ukjk;.k flag] Ákfof/kd vf/kdkjh }kjk fcUnq la[;k 05 ij rRle; xkthiqj dsUæ ij pktZ ds vknku&Ánku gsrq xfBr dh xbZ desVh dh fjiksVZ pkgh xbZ ftls ÁkfIr gsrq mUgsa {ks=h; dk;kZy; okjk.klh@xkthiqj dsUæ ij tkus dh vuqefr nh xbZA Ásf"kr vuqLekjd i=ksa ij vkjksi i= dk mRrj fnukad 06-06-2015 rd v|ksgLrk{kjh dks Ásf"kr djus gsrq funsZf'kr fd;k x;kA ijUrq muds }kjk vkjksi i= dk mRrj fnukad 15-06-2015 rd v|ksgLrk{kjh dks miyC/k ugha djk;k x;k gS ,oa ,slk Árhr gksrk gS fd mUgsa bl lEcU/k esa dqN ugha dguk gS rFkk muds fo:} yxk;k x;k vkjksi mUgsa Lohdkj gSA bl Ádkj Jh Áse ukjk;.k flag] Ákfof/kd vf/kdkjh] ds xkthiqj dsUæ ij rSukrh ds nkSjku o"kZ 2008&09 rFkk 2009&10 esa [kk| ,oa jln foHkkx ds Hk.Mkfjr pkoy LVkd esa Á?kfVr Hk.Mkj.k {kfr dh ek=k 382]89]543 dqy dher :i;s 6]34]369-52 ¼:i;s N% yk[k pkSrhl gtkj rhu lkS mugRrj iSls ckou½ ek= gsrq mRrjnk;h ik;s tkrs gSA** 14. A perusal of the aforesaid finding by the Inquiry Officer places the matter beyond cavil that the Inquiry Officer has held the petitioner guilty by default on an assumption that since the petitioner has not filed a response to the charge-sheet, he admits the charge. This finding is absolutely contrary to the law. A perusal of the aforesaid finding by the Inquiry Officer places the matter beyond cavil that the Inquiry Officer has held the petitioner guilty by default on an assumption that since the petitioner has not filed a response to the charge-sheet, he admits the charge. This finding is absolutely contrary to the law. The course of action adopted by the Inquiry Officer, evident from the inquiry report also, is absolutely contrary to law for the reason that he did not require the establishment to prove the charges by examining witnesses or producing other evidence in support of the charge. It has already been said that this obligation of the establishment could not be wished away because the petitioner was in default, assuming that he was. The legal position adumbrated above is fortified by the decision of the Supreme Court in State of U.P. and Others vs. Saroj Kumar Sinha, (2010) 2 SCC 772 , wherein it was observed: “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. 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 un-rebutted 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 un-rebutted 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.” 15. Following the decision in Saroj Kumar Sinha (supra), a Division Bench 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) has held: “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, (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 un-rebutted 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.” 16. In view of settled position of the law and what this Court has found, the impugned orders cannot be sustained as also the Inquiry Report on which these are based. 17. The question that now arises for consideration is whether inquiry proceedings can be resumed against the petitioner from the stage of issue of charge-sheet, the petitioner having retired on the same day on which he was dismissed from service i.e. 30.06.2015. 18. Learned counsel for the petitioner here submits that the relationship of employer and employee has ceased to exist and there is nothing in the Rules of the Corporation entitling them to continue disciplinary proceedings against an ex-employee. 19. Learned Counsel for the petitioner has drawn the Court's attention to the Staff Regulations of the Corporation annexed as Annexure 9 to the Writ Petition to submit that the Corporation has no jurisdiction to continue with the inquiry against the petitioner, post retirement. Upon a perusal of the Rules, it cannot be said with certainty that the Corporation would lack jurisdiction in a matter where the disciplinary proceedings were initiated while the employee was in service. There are both possibilities, but for the purpose, the relevant Rules would have to be examined. It may require something besides the Staff Regulations annexed to the Writ Petition to be considered. 20. There are both possibilities, but for the purpose, the relevant Rules would have to be examined. It may require something besides the Staff Regulations annexed to the Writ Petition to be considered. 20. In the circumstances, this Court is of opinion that the Corporation ought to be left free to examine the issue with reference to the relevant Rules whether after retirement they can proceed against the petitioner on the basis of the charge-sheet, already issued, from the stage of inquiry. 21. In the result, this Writ Petition succeeds and is allowed. The impugned orders dated 30.06.2015 and 12.01.2016 passed by the Disciplinary Authority and the Appellate Authority respectively are hereby quashed. The report of the Inquiry Officer dated 15.06.2015 is also quashed. 22. The petitioner shall be treated to have continued in service till the date of his superannuation. He shall be paid his post retiral benefits within two months next. However, it will be open to the respondents to conclude the inquiry proceedings initiated against the petitioner from the stage of seeking his reply to the charge-sheet, provided it is permissible under the law to continue disciplinary proceedings against an ex-employee of the Corporation, who superannuates pending proceedings. In the eventuality, disciplinary proceedings are taken afresh against the petitioner, post retiral benefits shall not be paid until conclusion of proceedings, which if permissible and pursued by the Corporation, shall be completed within a period of not more than three months from the date of receipt of a copy of this order. 23. Let this order be communicated to the Managing Director, U.P. Ware Housing Corporation, New Hyderabad, Lucknow by the Registrar Compliance. 24. The original records produced before the Court in sealed cover, which have been opened and examined, are directed to be placed in a sealed cover and returned to the employee of the Corporation, who has produced them before the Court.