JUDGMENT : Karunesh Singh Pawar, J. 1. Heard learned counsel for the applicant, Shri Shiv Pravesh Dhar Dubey as well as Sanjeev Singh, learned CSC for the State. 2. By this petition, the petitioner has prayed for the following relief:- (i) Issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 25.11.2011, contained in Annexure No. 1 with this writ petition. (ii) Issue a writ, order or direction in the nature of mandamus commanding the respondents to accept joining of the petitioner and pay all his consequential benefits immediately. (iii) Issue any other writ, order or direction in the nature which this Hon'ble Court may deem just and proper in the circumstances of the case." 3. Brief facts of the case are that the petitioner was appointed in the year 1987 under the opposite party No.2. On 16.03.1988, the petitioner was posted as Tractor Driver at Ruramallu. The petitioner became absent without any intimation to the authorities since November, 1991 hence an explanation was called from him as the petitioner neither reported duty nor any explanation was submitted by him with regard to registered letter dated 31.08.1992 by which the petitioner was intimated that if he does not come to his duty within a week, the action will be taken against him under the provisions of U.P. Government Servant's Conduct Rules, 1956. In spite of that letter, he has not reported on duty. The letter was ultimately served to the petitioner on 01.07.1993 to which the petitioner replied that he is ill since November, 1991 and still has not recovered. He submitted his joining report on 15.03.1996. The matter of the petitioner was referred to the opposite party No.2 for further course of action who sought direction from the Additional Director of Agriculture (Administration) U.P. Lucknow. In the meantime, the petitioner filed Writ Petition No.4154 (S/S) of 1998 for acceptance of his joining. The writ petition was disposed of vide judgment and order dated 23.07.2008 with a direction to the opposite party No.3 to take a decision in the matter. In the meantime, the petitioner filed Writ Petition No.4154 (S/S) of 1998 for acceptance of his joining. The writ petition was disposed of vide judgment and order dated 23.07.2008 with a direction to the opposite party No.3 to take a decision in the matter. In compliance of the order dated 23.07.2008 passed by this Court, the petitioner's case was considered by the Additional Director of Agriculture (Administration) U.P. Lucknow who vide order dated 21.01.2009 directed the Joint Director of Agriculture Jhansi Mandal Jhansi (Appointing Authority) to decide the matter of the petitioner on merits after making enquiry and affording the opportunity of hearing. Pursuant to the order dated 21.01.2009 passed by the Additional Director of Agriculture, the Enquiry Officer was appointed, charge-sheet was issued to the petitioner on 17.02.2009 containing charge that he was absent from duty since November, 1991 to 14.03.1996 and also he was in jail in Case Crime No.130A/91 under Sections 147, 148, 149, 307 & 504 I.P.C. Reply to the charge-sheet was submitted by the petitioner and after that Enquiry Officer submitted his report after conducting the enquiry and recommended for punishment and disciplinary authority ultimately has passed the order of punishment. 4. Learned counsel for the petitioner submits that after suplly of the copy of the charge sheet, the petitioner though has submitted reply, however, during course of the entire enquiry, no oral hearing was done. No documents on which the charges were pasted were supplied to the petitioner. Documents relied by the enquiry officer has not been proved by the witnesses. No evidence has been recorded in presence of the petitioner, neither any opportunity to cross examine was given to the petitioner. No date, time and place of enquiry was fixed. enquiry report was submitted only on the basis of reply to the charge sheet. 5. In support of his contention, learned counsel for the petitioner has relied on the following judgments: (i) Moti Ram Vs. State {2013 L.C.D. Page 1319} (ii) Vinod Kumar Vs. Bank of Baroda {2013 (31) L.C.D. page 2116} (iii) Rajender Prasad Srivastava Vs. State {2011 (29) L.C.D. page 2417} (iv) Dr. Abha Gupta Vs. State {2013 (31) L.C.D. page 2568} (v) Arun Kumar Pandey Vs. U.P. Vikas Ayukt {2004 (22) L.C.D. page 964) (vi) Abdul Salam Vs. State of U.P. and others {2011 (29) L.C.D. page 832) 6. Bank of Baroda {2013 (31) L.C.D. page 2116} (iii) Rajender Prasad Srivastava Vs. State {2011 (29) L.C.D. page 2417} (iv) Dr. Abha Gupta Vs. State {2013 (31) L.C.D. page 2568} (v) Arun Kumar Pandey Vs. U.P. Vikas Ayukt {2004 (22) L.C.D. page 964) (vi) Abdul Salam Vs. State of U.P. and others {2011 (29) L.C.D. page 832) 6. Per contra, Shri Sanjeev Singh, learned Additional CSC opposed the contention submitting that the petitioner was unauthorizedly absent w.e.f. 01.11.1991 to 14.03.1996 without information. He also submits that the petitioner remained in jail for 17 days i.e. from 25.01.1991 to 09.12.1991. The petitioner concealed this fact from the department. Vide letter dated 10.12.1991, 29.02.1992 and 12.08.1992 he was directed to show cause and to remained present on duty, however, the petitioner ignored this letter and did not report on duty. The Additional Director (Agriculture) vide order dated 01.07.1993 directed the petitioner to join the duty, to which the petitioner replied that he is not well and as early as he is declared fit, he will report for duty along with medical certificate. 7. In compliance of the order dated 23.07.2008 passed in writ petition No. 4154/SS/1998, the Additional Director (Agriculture) directed the appointing authority to initiate the departmental proceedings against the petitioner for his unauthorized absence and concealment of fact that he was confined in civil prison. The Deputy Director, Jalaun was appointed as enquiry officer vide letter dated 24.01.2009. Charge sheet dated 17.02.2009 was issued and charges were framed first for absence of the applicant from November, 1991 to 14.03.1996. Second charge was regarding concealment of fact regarding detention in civil prison in crime No. 130M/1991, under Section 147/148/149/307/506 I.P.C. from the department which is against The U.P. Government Servant's Conduct Rules, 1956. 8. The applicant has replied to the charge sheet admitting his detention from 25.11.1991 to 09.12.1991 and submitted that thereafter he became ill and after that he submitted joining on 15.03.1996 with medical certificates. Enquiry report dated 04.06.2011 was submitted by the Deputy Director, Jalaun holding the petitioner guilty of unauthorized absence from 01.11.1991 to 14.03.1996 and concealment of fact from the department regarding his confinement to jail. Enquiry report dated 04.06.2011 was submitted by the Deputy Director, Jalaun holding the petitioner guilty of unauthorized absence from 01.11.1991 to 14.03.1996 and concealment of fact from the department regarding his confinement to jail. On 25.11.2011 the impugned punishment order passed by Joint Director, Jhansi Division by concluding with enquiry report that the petitioner concealed the fact regarding his detention from the department and therefore, accepting report is not in the interest of the State and consequently the joining report of the petitioner after four years and four month and thirteen days was rejected. 9. The petitioner filed a claim petition No. 721/2005 "Ram Gopal Lodhi Vs. State of U.P. and others", before the Services Tribunal, UP, Lucknow which was dismissed and opposite parties were directed to complete the enquiry and pass consequential order within a period of three months. 10. Heard learned counsel for the parties. 11. It is not disputed at bar that during course of enquiry, no opportunity of hearing was provided to the petitioner. The enquiry officer did not conduct any oral hearing. The documents relied on by the enquiry officer were not proved by examining any witness and no opportunity to examine or cross-examine the witnesses of the enquiry was given to the petitioner. Even after submission of the enquiry report, copy of the report was not given to the petitioner. The Division Bench of this Court in the case of Moti Ram (supra) has held that a proper opportunity must be afforded to the government servant at the stage of enquiry after the charge sheet is supplied to the delinquent employee as well as at the stage when punishment is about to be imposed on him. It has also been held that an oral enquiry is must whether employee demands it or not. Relevant para 8, 9 and 17 are extracted below:- "In State of Madhya Pradesh vs. Chintaman Sadashiva Waishampayan; AIR 1961 SC 1623 ; State of U.P. vs. Shatrughan Lal and another; (1998) 6 SCC 651 and State of Uttaranchal and others vs. Kharak Singh (2008) 8 SCC 236 , the Apex Court has emphasized that a proper opportunity must be afforded to a government servant at the stage of enquiry, after the charge sheet is supplied to the delinquent as well as at the second stage when punishment is about to be imposed on him. In State of Uttaranchal & ors. In State of Uttaranchal & ors. V. Kharak Singh (supra), the Apex Court has enumerated some of the basic principles regarding conducting the departmental inquiries and consequences in the event, if these basic principles are not adhered to, the order is to be quashed. The principles enunciated are reproduced herein:- (a) The enquries must be conducted bona fide and care must be taken to see that the enquiries do not become empty formalities. (b) If an officer is a witness to any of the incident which is the subject matter of the enquiry or if the enquiry was initiated on the report of an officer, then in all fairness he should not be the Enquiry Officer. If the said position becomes known after the appointment of the Enquiry Officer, during the enquiry, steps should be taken to see that the task of holding an enquiry is assigned to some other officer. (C) In an enquiry, the employer/department should take steps first to lead evidence against the workman/delinquent charged, give an opportunity to him to cross-examine the witnesses of the employer. Only thereafter, the workman/delinquent be asked whether he wants to lead any evidence and asked to give any explanation about the evidence led against him. A Division Bench of this Court in Radhey Kant Khare vs. U.P. Cooperative Sugar Factories Federation ltd. [2003] (21) LCD 610] held that after a charge-sheet is given to the employee an oral enquiry is a must, whether the employee requests for it or not. Hence a notice should be issued to him indicating him the date, time and place of the enquiry. On that date so fixed the oral and documentary evidence against the employee should first be led in his presence. Thereafter the employer must adduce his evidence first. The reason for this principle is that the charge-sheeted employee should not only know the charges against him but should also know the evidence against him so that he can properly reply to the same. The person who is required to answer the charge must be given a fair chance to hear the evidence in support of the charge and to put such relevant questions by way of cross-examination, as he desires. The person who is required to answer the charge must be given a fair chance to hear the evidence in support of the charge and to put such relevant questions by way of cross-examination, as he desires. Then he must be given a chance to rebut the evidence led against him." xxxxx Even, if we assume that most of the charges have been admitted by the petitioner in his reply, but still there are some charges which are to be proved against him. For this purpose also, petitioner has to be afforded an opportunity of hearing before submission of enquiry report. In an enquiry, the employer/department should take steps first to lead evidence against the workman/delinquent charged, give an opportunity to him to cross-examine the witnesses of the employer. Only thereafter, the workman/delinquent be asked whether he wants to lead any evidence and asked to give any explanation about the evidence led against him, as has been observed by the Apex Court in the case of State of Uttaranchal & ors. V. Kharak Singh (supra). Further, the person who is required to answer the charge must be given a fair chance to hear the evidence in support of the charge and to put such relevant questions by way of cross-examination, as he desires. Then he must be given a chance to rebut the evidence led against him, as has been held by this Court in the case of Radhey Kant Khare (supra). While entertaining the writ petition, this Court stayed the impugned order, by means of order dated 29.10.1999. 12. In the case of Vinod Kumar (supra), the Division Bench of this Court has enumerated the basic principles or conducting departmental enquiries. Relevant para No. 19 is extracted below:- In State of Madhya Pradesh vs. Chintaman Sadashiva Waishampayan; AIR 1961 SC 1623 ; State of U.P. vs. Shatrughan Lal and another; (1998) 6 SCC 651 and State of uttaranchal and others vs. V. Kharak Singh (2008) 8 SCC 236 , the Apex Court has emphasized that a proper opportunity must be afforded to a government servant at the stage of the enquiry, after the charge sheet is supplied to the delinquent as well as at the second stage when punishment is about to be imposed on him. In State of Uttaranchal & ors. In State of Uttaranchal & ors. V. Kharak Singh (supra) the Apex Court has enumerated some of the basic principles regarding conducting the departmental inquiries and consequences in the event, if these basic principles are not adhered to, the order is to be quashed. The principles enunciated are reproduced herein: (a) The enquries must be conducted bona fide and care must be taken to see that the enquiries do not become empty formalities. (b) If an officer is a witness to any of the incident which is the subject matter of the enquiry or if the enquiry was initiated on the report of an officer, then in all fairness he should not be the Enquiry Officer. If the said position becomes known after the appointment of the Enquiry Officer, during the enquiry, steps should be taken to see that the task of holding an enquiry is assigned to some other officer. (C) In an enquiry, the employer/department should take steps first to lead evidence against the workman/delinquent charged, give an opportunity to him to cross-examine the witnesses of the employer. Only thereafter, the workman/delinquent be asked whether he wants to lead any evidence and asked to give any explanation about the evidence led against him. 13. In the aforesaid judgment of Vinod Kumar it has further held that after charge sheet is given to the employee, an oral enquiry is must. Relevant para 24 is extracted below:- A Division Bench of this Court in Radhey Kant Khare vs. U.P. Cooperative Sugar Factories Federation ltd. [2003] (21) LCD 610] held that after a charge-sheet is given to the employee an oral enquiry is a must, whether the employee requests for it or not. Hence a notice should be issued to him indicating him the date, time and place of the enquiry. On that date so fixed the oral and documentary evidence against the employee should first be led in his presence. Thereafter the employer must adduce his evidence first. The reason for this principle is that the charge-sheeted employee should not only know the charges against him but should also know the evidence against him so that he can properly reply to the same. The person who is required to answer the charge must be given a fair chance to hear the evidence in support of the charge and to put such relevant questions by way of cross-examination, as he desires. The person who is required to answer the charge must be given a fair chance to hear the evidence in support of the charge and to put such relevant questions by way of cross-examination, as he desires. Then he must be given a chance to rebut the evidence led against him. 14. In the case of Rajendra Prasad Srivastava (supra), it was held that before any major punishment is awarded, the charges should be proved. The relevant para No. 14 is extracted below:- We also take notice of the fact that the earlier dismissal order dated 1.9.2001 was set aside by this Court in earlier writ petition with the specific direction to the respondents to pass a fresh order after affording adequate opportunity to the appellant but the department though was concious, that the opportunity as required under Article 311(2) of the Constitution need be afforded, actually did not afford the said opportunity. There cannot be a presumption of guilt where the law requires that the charges should stand proved before any major punishment is awarded, unless there is an unqualified admission of the delinquent to the charges levelled against him. 15. In the case of Dr. Smt. Abha Gupta (supra) again it was held that not holding oral enquiry is a serious flaw which can vitiate the order of disciplinary authority. Relevant para 32 and 35 are extracted below:- 32. The Division Bench of this Court, in the case of Salahuddin Ansari v. State of U.P. and others, reported in 2008 (3) ESC 1776, has held that not holding of oral enquiry is a serious flaw which can vitiate the order of the Disciplinary authority, including the order of the punishment. It has been observed that "Non-holding of oral enquiry in such a case is a serious matter and goes to the root of the case." 35. The Division Bench of this Court, in the case of Vijay Kumar Sinha v. State of U.P. and others, reported in 2011 (4) ESC, 2949, has held that "in cases where no oral evidence in the presence of charged government servant has been recorded, there is no question of opportunity to cross-examine to him and in respect to providing opportunity to award major punishment like dismissal, holding of full-fledged enquiry must be there." The Division Bench in the said case has observed as under: 16. In the case of Arun Kumar Pandey (supra) it was held that not intimating the petitioner about date and time of oral enquiry and not recording any evidence in presence of the petitioner and no opportunity of cross examination to the petitioner vitiates the enquiry. The relevant para 7 is extracted below:- "There was a denial of charges. Oral enquiry into the charges was required. There is an avermes) in the respective paras of writ petition that the petitioner was never intimated about date and time of such oral enquiry and no evidence was recorded in his presence or no opportunity of cross-examination was afforded. It is also said that he was never asked to adduce evidence in detence (see paras 19, 19-8, 19-D, 19-E, 20, 21, of the writ petition). A perusal of counter-affidavit would reveal that though there are averments to the effect that the petitioner was given ample opportunity to have his say in the matter but it was not specified as to whether he was intimated about the date or dates of oral enquiry if so in what manner. General denial was not sufficient. The department ought to have disclosed that such and dales were fixed for oral enquiry, and the petitioner was informed by such and such mode, about such dates etc. Even if the petitioner was not cooperating as alleged in para- (sic) of the counter-affidavit, oral enquiry after intimation of the date or dates was the legal requirement. The Court is of the view that the order of punishment is vitiated for the said reasons and for denial of reasonable opportunity of hearing." 17. In the case of Abdul Salam (supra), it was held that basing the entire enquiry proceedings on the basis of charge sheet and reply submitted by the employee without fixing date, time and place for holding such oral enquiry and without examining the witnesses in support of his charges, it was held that departmental enquiry was not in accordance with the settled law and orders were set aside. Relevant para No. 16, 17, 24, 25, 26, 27 and 29 are extracted below:- 16. Before coming to any conclusion, it would be relevant to mention the legal position with regard to the conduction of the departmental enquiry and award of punishment to a delinquent employee. Relevant para No. 16, 17, 24, 25, 26, 27 and 29 are extracted below:- 16. Before coming to any conclusion, it would be relevant to mention the legal position with regard to the conduction of the departmental enquiry and award of punishment to a delinquent employee. Time and again, the Hon'ble Apex Court as well as this Court has pronounced that in the matter of enquiry for awarding major punishment, no short-cut is permissible. The charge-sheet has to be furnished to the delinquent to apprise him of the charges, which should be specific along with the evidence, both oral and documentary, which the department intends to rely for upholding the charges. In case after service of charge-sheet, the delinquent needs any documents or copy thereof, such prayer has to be considered by the enquiry officer and the documents which are found relevant for enquiry are to be supplied to the delinquent. In case copies of any such document can not be supplied for any valid reason, free access has to be afforded to the delinquent for making inspection of such records. After this stage, the reply is to be submitted by the delinquent within the given time schedule and the enquiry is to proceed, fixing the date, time and place calling the delinquent. 17. Normally, the evidence by the department is required to be led first to prove the charges wherein the delinquent is also allowed to participate, who can cross-examine the witnesses, with opportunity of adducing the evidence either in rebuttal or for disproving the charges. It is thereafter that the enquiry officer has to submit its report either saying that any of the charges stand proved or not. There has to be corroborating evidence to prove the charge and without any material being placed by the department to substantiate the documentary evidence, the charge can not be found to be proved. There has to be a corroboration of facts from the documents on record and if any report is also being relied upon, the said report is also required to be authenticated by the person who has submitted the report, therefore, for this purpose the oral enquiry is required to be held for proving the charges. xxxxxx 24. There has to be a corroboration of facts from the documents on record and if any report is also being relied upon, the said report is also required to be authenticated by the person who has submitted the report, therefore, for this purpose the oral enquiry is required to be held for proving the charges. xxxxxx 24. In the present case it is evident from the records that the enquiry officer during the course of enquiry by order dated 03.07.2002 had come to the conclusion that it is necessary to provide opportunity of hearing to the delinquent employee and for that purpose had fixed 15.07.2002. However, on 15.07.2002 enquiry could not be held, so another date was fixed. Thereafter certain dates were fixed by the enquiry officer and it was by an order dated 29.8.2002, the enquiry officer had observed that no other document is required to be given to the delinquent employee, therefore, 07.09.2002 was fixed for submitting reply by the delinquent. It is admitted fact as borne out from the enquiry report dated 17.10.2002 that the delinquent employee had submitted his written reply on 05.10.2002. However, from the perusal of record it appears that no date, time and place was fixed by the enquiry officer for holding oral enquiry after submission of the reply to the charge-sheet by the delinquent employee and the entire enquiry proceedings were completed on the basis of chargesheet and the reply submitted by the delinquent employee, relying on the documentary evidence submitted in support of the alleged charges. 25. The learned Single Judge in the impugned judgment has come to the conclusion that the enquiry officer did not examine any witnesses as there was no need to summon any witness for the simple reason that in support of the charges, only the documents were relied upon and the documents were so categorical that they were not required to be proved by any witness. It has been further observed by the learned Single Judge that if we examine the report of the enquiry officer, indeed, the documentary evidence seems to be so whelming that it was not obligatory for the enquiry officer to have called any witness in support of the charges. 26. It has been further observed by the learned Single Judge that if we examine the report of the enquiry officer, indeed, the documentary evidence seems to be so whelming that it was not obligatory for the enquiry officer to have called any witness in support of the charges. 26. The learned Single Judge, however, did not take into consideration that if the witnesses were not required to be examined in support of the charges, even then it was incumbent upon the enquiry officer to have fixed the date, time and place after submission of the reply to the charge-sheet by the delinquent for holding oral enquiry in order to appreciate the evidences filed in support of the charges in presence of the delinquent employee and call upon the department to prove the alleged charges. There is no denial about the fact that such exercise was not done by the enquiry officer in the present case. 27. In this view of the matter, we are of the considered opinion that the departmental enquiry conducted against the appellant-petitioner on the basis of which the punishment of dismissal from service was awarded, was not held in accordance with law as propounded by the Apex Court as well as this Court, as discussed above. xxxxx 29. In view of the above, the impugned judgment and order dated 31.01.2007 passed by the learned Single Judge in writ petition no.151(SS) of 2003 is not sustainable and it is hereby set aside. The punishment order dated 27.12.2002 passed by the opposite party no.3, is also liable to be quashed, which is hereby quashed. 18. In the case of State of U.P. v. Saroj Kumar Sinha, (2010) 2 SCC 772 , the Apex Court has held that the employee should be treated fairly in any proceedings which may culminate in punishment being imposed on him. 19. Learned Standing Counsel has relied on the following judgments in support of his contention:- (i) Vijay S. Sathaye Vs. Indian Airlines and others { 2013 (31) LCD 1938 }. (ii) North Eastern Karnataka R.T. Corporation Vs. Ashappa (MANU/SC/8174/2006). (iii) Haryana Financial Corporation and others Vs. Kailash Chandra Ahuja {MANU/SC/7804/2008}. 20. So far as the judgment relied on by the learned Standing Counsel in the case of Vijay S. Sathaye (supra) is concerned, in that case, the petitioner has voluntarily abandoned the services of the respondent. Here is not such case. Ashappa (MANU/SC/8174/2006). (iii) Haryana Financial Corporation and others Vs. Kailash Chandra Ahuja {MANU/SC/7804/2008}. 20. So far as the judgment relied on by the learned Standing Counsel in the case of Vijay S. Sathaye (supra) is concerned, in that case, the petitioner has voluntarily abandoned the services of the respondent. Here is not such case. Here the petitioner has requested for joining in the year 1996, hence, on facts, the judgment is distinguished. 21. So far as the judgment of North Eastern Karnataka R.T. Corporation (supra) is concerned, the Supreme Court was dealing with whether the punishment of dismissal from service is disproportionate or not. Here is not such case. 22. So far as the judgment in a case of Haryana Financial Corporation (supra) is concerned, the oral enquiry during course of enquiry was not in question before the Supreme Court, only non-supply of enquiry report by the enquiry officer to the delinquent employee was under consideration where employee had to show prejudice. Here is not such case. Here is the case where no oral enquiry at all has been conducted by the enquiry officer, hence, this judgment is also distinguishable. 23. In view of the settled position of law and undisputed facts that no oral enquiry has been conducted by the enquiry officer and no date, time and place for oral enquiry was provided, charges and the documents relied on the enquiry officer have not been proved by examining or cross-examining the witnesses, hence, in view of the settled preposition of law, the impugned order contained in Annexure No. 1 is set aside. 24. The matter is remanded to the Disciplinary Authority directing him to conduct a de novo enquiry from the stage of supplying of charge sheet within a period of three months from the date of receiving of certified copy of this order. No order as to cost.