JUDGMENT : (Manoj Kumar Gupta, A.C.J.) 1. The instant intra-court appeal is directed against the judgement of learned Single Judge dated 20.09.2022 by which the writ petition,[Writ-A No.11059 of 2012] filed by the non-appellant (hereinafter referred to as ‘the petitioner’) was allowed and the orders dated 15.01.2009, 4.11.2011 and 16.12.2011 were set aside. By order dated 15.01.2009, permission was granted by the Governor under Article 351-A of Civil Service Regulations to continue the disciplinary proceedings against the petitioner after he had attained the age of superannuation. By order dated 4.11.2011, the State Public Service Commission granted its approval to the proposed action against the petitioner and by order dated 16.12.2011, the Special Secretary, Government of U.P. has forfeited the entire gratuity of the petitioner and had directed for withholding of pension until the pecuniary loss allegedly suffered by the Government is recovered. FACTS 2. The petitioner was appointed as Marketing Inspector in the Civil Supplies Department of Government of U.P. in 1972-73. In 1998, he was promoted to the post of Senior Marketing Inspector. In the year 2004, he was suspended and was served with a charge sheet dated 22.09.2004 levelling four charges. The first charge related to shortage in stock of sugar, wheat and rice; the second charge related to 6-8 months’ delay in submitting bank draft of PDS Khadyan Nirgaman resulting in loss of interest to the Government; the third charge related to transferring stock of sugar and rice from Sikandarpur Centre to Pandah Centre; and the fourth charge related to dispatch of sugar from Pandah Centre to Account Office during the year 2001-02, the receipt of which was not being confirmed by the Account Office. 3. The suspension of the petitioner was revoked by order dated 1.08.2005, but the departmental proceedings were continued. The petitioner submitted his reply on 10.10.2005 denying all the charges. In reply to charge no.1, he took the defence that Deputy Senior Marketing Officer took the charge in his absence. He specifically pleaded that in fact, the stocks when compared with daily stock register would reveal that there was no shortage but only storage losses. In respect of charge no.2, he took specific defence that he alongwith guard went to Azamgarh to deliver the cheque to concerned clerk, but he demanded bribe and did not accept the cheque. He specifically pleaded that in fact, the stocks when compared with daily stock register would reveal that there was no shortage but only storage losses. In respect of charge no.2, he took specific defence that he alongwith guard went to Azamgarh to deliver the cheque to concerned clerk, but he demanded bribe and did not accept the cheque. The petitioner also stated that he made a complaint in this respect to the Assistant Marketing Inspector, but no heed was paid to the same. He consequently sent the cheque by registered post and as such, charge no.2 relating to delay in handing over the cheque and consequent loss of interest was wholly baseless. In respect of third charge, he explained that Sikandarpur and Pandah godowns were in same building at the time of his transfer. Physical verification of the stock would have taken several hours and would have delayed handing over of charge. Therefore, under due intimation to Regional Food Controller and Deputy Regional Food Officer, the stock was transferred to the stock of Pandah and this facilitated immediate handing over of charge of Sikandarpur godown. It had not resulted in any loss to the Government. In respect of charge no.4, the explanation was that entire sugar sent to Account Office was duly received and DTS between 1.11.2001 to 31.03.2001 were sent to Regional Accounts Officer (Foods), Azamgarh. Entry of the said transaction duly finds place in the records of Pandah Centre which can be easily obtained to verify the stand of the petitioner. 4. According to the petitioner, he was not being supplied with the documents on which reliance was placed in the charge sheet. The petitioner was compelled to file Writ Petition No.14105 of 2007 before this Court for supplying him the documents mentioned in the charge sheet. The said writ petition was disposed of by order dated 15.03.2007 directing the respondents to supply the documents to the petitioner within six weeks, but according to the petitioner, even thereafter, the documents were not supplied to him. 5. The enquiry was conducted by one Arvind Kumar Dwivedi, Sambhagiya Khadya Niyantrak, Varanasi. He did not hold any oral enquiry nor examined any witness. He also did not give any opportunity to the petitioner to place his defence and in great hurry, submitted enquiry report dated 19.05.2007, as the petitioner was due to retire on 31.05.2007. 5. The enquiry was conducted by one Arvind Kumar Dwivedi, Sambhagiya Khadya Niyantrak, Varanasi. He did not hold any oral enquiry nor examined any witness. He also did not give any opportunity to the petitioner to place his defence and in great hurry, submitted enquiry report dated 19.05.2007, as the petitioner was due to retire on 31.05.2007. The specific case of the petitioner before the Writ Court was that the Enquiry Officer fixed 11.12.2006 for cross-examination of the then District Food Marketing Officer, Mau. On that day, the petitioner remained present, but the District Food Marketing Officer did not appear for cross-examination. As the petitioner was due to retire on 31.05.2007, another date was not fixed for cross-examination and straight away enquiry report was submitted on 19.05.2007. 6. After almost two years of submission of enquiry report, the petitioner was issued a show cause notice dated 15.01.2009 seeking his explanation in respect of the enquiry report. He gave a detailed reply mentioning therein how the findings returned by the Enquiry Officer were not correct. It seems that thereafter approval from Public Service Commission was obtained on 13.07.2009 followed by passing of the punishment order dated 16.12.2011. 7. The respondents filed counter affidavit before the Writ Court and in paragraph 23 thereof, it was admitted that the Enquiry Officer fixed 11.12.2006 for cross-examination of the then District Food Marketing Inspector, Mau. However, his cross-examination could not take place, as he remained absent, while the petitioner was present. Thereafter, without fixing any further date in the enquiry, it was concluded, as the petitioner was due to retire on 31.05.2007. 8. The Writ Court held that although charges were serious but they were specifically denied by the petitioner and, therefore, it was incumbent for the employer to have examined the witnesses to prove the charges and also afford opportunity to the petitioner to cross- examine the witnesses. However, that was not done and in tearing hurry, as the petitioner was due to retire shortly, the Enquiry Officer concluded the enquiry proceedings and submitted his report dated 19.12.2006. It has been held that although in disciplinary enquiry, strict rules of evidence do not not apply but principles of natural justice demanded that the petitioner should have been given opportunity to cross-examine the witnesses. Moreover, it was the burden of the employer to have examined witnesses to prove the charges. It has been held that although in disciplinary enquiry, strict rules of evidence do not not apply but principles of natural justice demanded that the petitioner should have been given opportunity to cross-examine the witnesses. Moreover, it was the burden of the employer to have examined witnesses to prove the charges. No such course was adopted and, therefore, it resulted in the enquiry getting vitiated and the said inherent defect was not a curable one. The fact that the petitioner was given opportunity to submit reply in response to the enquiry report, was not sufficient to cure the defect which had occurred at the initial stages of the enquiry proceedings. Accordingly, the enquiry was held to be invalid and non-est in the eyes of law and the punishment order was quashed. The Writ Court also held that since the petitioner had died on 27.02.2014 and, therefore, no purpose would be served in remitting the matter back to the stage of enquiry. The widow of the petitioner, who came to be substituted in place of the petitioner, was held entitled to all consequential benefits accruing in favour of the deceased petitioner as a result of setting aside of the order dated 16.12.2011. CONTENTIONS 9. Sri Manish Goyal, learned Additional Advocate General assisted by Sri Ramanand Pandey, learned Additional Chief Standing Counsel made the following submissions:- (a) The petitioner in his reply to the enquiry report did not raise any plea of prejudice having been caused to him because of non-examination of witnesses or denial of opportunity of crossexamination. It proves that the same had not resulted in any prejudice to him. In any case, he had waived the said rights and, therefore, learned Single Judge erred in going into the said aspect and in setting aside the disciplinary proceedings. In support of his submission, he has placed reliance on P.D. Agrawal Vs. State Bank of India, 2006 (8) SCC 727, Union of India and others Vs. Alok Kumar : 2010 (5) SCC 349 , Smith Vs. Mcknight : 240 S.W. 2nd 368 (Tex. Civ. App. 1951) and the Covington Virginian Vs. Woods, 182 Va. 538 (Va.1944). (b) The learned Single Judge erred in not remitting the matter back for holding enquiry from the stage it stood vitiated. 10. Alok Kumar : 2010 (5) SCC 349 , Smith Vs. Mcknight : 240 S.W. 2nd 368 (Tex. Civ. App. 1951) and the Covington Virginian Vs. Woods, 182 Va. 538 (Va.1944). (b) The learned Single Judge erred in not remitting the matter back for holding enquiry from the stage it stood vitiated. 10. Per contra, learned counsel for the petitioner submitted that the petitioner, while replying to show cause notice issued to him alongwith the enquiry report, stated in great detail how the findings recorded by the Enquiry Officer are not sustainable in law. He specifically pointed out to various documents which, if considered, would have proved that the charges were incorrect. It was implicit in his reply that had the petitioner been given opportunity during course of enquiry to produce evidence and cross-examine witnesses, he would have successfully countered the charges. Moreover, it was incumbent upon the employer to have followed the procedure prescribed under Rule 7 of the U.P. Government Servants (Discipline and Appeal) Rules, 1999 (hereinafter referred to as ‘1999 Rules’) which mandates that even if enquiry is being held ex-parte, the Enquiry Officer shall record the statement of witnesses to bring home the charges. Therefore, the plea of waiver is not sustainable in law. ANALYSIS 11. The petitioner was a government servant. The Government had passed the order for withholding his gratuity and recovery of losses from him, in exercise of power under Article 351-A of the Civil Service Regulations. Thereunder, it is specifically provided that the “procedure applicable to proceedings on which an order of dismissal from service may be made” is to be followed for taking action under Article 351-A. Consequently, the procedure stipulated under the U.P. Government Servants (Discipline and Appeal), Rules, 1999 was applicable. Rule 7 of the 1999 Rules stipulates that: “7. Procedure for imposing major penalties–Before imposing any major penalty on a Government servant, an inquiry shall be held in the following manner: (i) The disciplinary authority may himself inquire into the charges or appoint an authority subordinate to him as Inquiry Officer to inquire into the charges. (ii) 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. (ii) 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. The charge-sheet shall be approved by the disciplinary authority: Provided that where the appointing authority is Governor, the charge-sheet may be approved by the Principal Secretary or the Secretary; as the case may be, of the concerned department. (iii) The charges framed shall be so precise and clear as to ?) The charges framed shall be so precise and clear as to give sufficient indication to the charged Government servant of the facts and circumstances against him. The proposed documentary evidence and the name of the witnesses proposed to prove the same alongwith oral evidence, if any, shall be mentioned in the charge-sheet. (iv) The charged Government servant shall be required to put in a written statement of his defence in person on a specified date which shall not be less than 15 days from the date of issue of charge-sheet and to state whether he desires to cross-examine any witness mentioned in the charge-sheet and whether desires to give or produce evidence in his defence. He shall also be informed that in case he does not appear or file the written statement on the specified date, it will be presumed that he has none to furnish and Inquiry Officer shall proceed to complete the inquiry ex parte. (v) The charge-sheet, alongwith the copy of the 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. (vi) Where the charged Government servant appears and admits the charges, the Inquiry Officer shall submit his report to the disciplinary authority on the basis of such admission. (vi) Where the charged Government servant appears and admits the charges, the Inquiry Officer shall submit his report to the disciplinary authority on the basis of such admission. (vii) Where the charged Government servant denies the charges, the Inquiry Officer shall proceed to call the witnesses proposed in the charge-sheet and record their oral evidence in presence of the charged Government servant who shall be given opportunity to cross-examine such witnesses. After recording the aforesaid evidence, the Inquiry Officer shall call and record the oral evidence which the charged Government servant desired in his written statement to be produced in his defence: Provided that the Inquiry Officer may for reasons to be recorded in writing refuse to call a witness. (viii) The Inquiry Officer may summon any witness to give evidence or require any person to produce documents before him in accordance with the provisions of the Uttar Pradesh Departmental Inquiries (Enforcement of Attendance of Witnesses and Production of Documents) Act, 1976. (ix) The Inquiry Officer may ask any question he pleases, at any time of any witness or from person charged with a view to discover the truth or to obtain proper proof of facts relevant to charges. (x) Where the charged Government servant does not appear on the date fixed in the inquiry or at any stage of the proceeding in spite of the service of the notice on him or having knowledge of the date, the Inquiry Officer shall proceed with the inquiry ex parte. In such a case the Inquiry Officer shall record the statement of witnesses mentioned in the charge-sheet in absence of the charged Government servant. (xi) The disciplinary authority, if it considers it necessary to do so, may, by an order appoint a Government servant or a legal practitioner, to be known as "Presenting Officer" to present on its behalf the case in support of the charge. (xi) The disciplinary authority, if it considers it necessary to do so, may, by an order appoint a Government servant or a legal practitioner, to be known as "Presenting Officer" to present on its behalf the case in support of the charge. (xii) The Government servant may take the assistance of any other Government servant to present the case on his behalf but not engage a legal practitioner for the purpose unless the Presenting Officer appointed by the disciplinary authority is a legal practitioner of the disciplinary authority having regard to the circumstances of the case so permits: Provided that this rule shall not apply in following cases: (i) Where any major penalty is imposed on a person on the ground of conduct which has led to his conviction on a criminal charge; or (ii) Where the disciplinary authority is satisfied that for reason to be recorded by it in writing, that it is not reasonably practicable to hold an inquiry in the manner provided in these rules; or (iii) Where the Governor is satisfied that, in the interest of the security of the State, it is not expedient to hold an inquiry in the manner provided in these rules." 12. In State of Uttar Pradesh and others vs. Saroj Kumar Sinha, (2010) 2 SCC 772 the Supreme Court while considering the 1999 Rules held that failure on part of the Enquiry Officer to fix date for appearance of the delinquent to answer the charges would vitiate the proceedings. It has also been observed that even when the enquiry is proceeding ex parte, the Enquiry Officer is under mandate to record the statement of witnesses. In such a situation, the delinquent being absent would loose the benefit of cross-examination but nonetheless in order to establish the charges, the department is required to produce necessary evidence before the Enquiry Officer. The relevant observations are as follows: “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 enquiry officer can proceed with the inquiry ex parte. It is only in a case when the Government servant despite notice of the date fixed failed to appear that the enquiry officer can proceed with the inquiry ex parte. Even in such circumstances, it is incumbent on the enquiry 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 enquiry officer. This is so as to avoid the charge that the enquiry officer has acted as a prosecutor as well as a judge .” 13. Again, in Sur Enamel and Stamping Works Ltd. v. The Workmen, 1963, AIR SC 1914 the Supreme Court emphasised on the importance of giving opportunity to the delinquent to cross-examine witnesses. It has been held as follows: “An enquiry cannot be said to have been properly held unless (i) the employee proceeded against has been informed clearly of the charges levelled against him, (ii) the witnesses are examined - ordinarily in the presence of the employee - in respect of the charges, (iii) the employee is given a fair opportunity to cross-examine witnesses, (iv) he is given a fair opportunity to examine witnesses including himself in his defence if he so wishes on any relevant matter, and (v) the enquiry officer records his findings with reasons for the same in his report.”….. In State Of Uttar Pradesh & Anr v. Sri C.S. Sharma, AIR 1968 SC 158 , the apex court took the view that an opportunity has to be given to the charge-sheeted employee to produce his witnesses or to lead evidence in defence in absence whereof, the entire disciplinary proceeding gets vitiated…..” 14. The Supreme Court has summarized the legal principles in respect of the procedure to be followed in departmental enquiries in State of Uttaranchal & others vs. Kharak Singh, (2008) 8 SCC 236 . Relevant part of the judgment is extracted below: “From the above decisions, the following principles would emerge: (i) The enquiries must be conducted bona fide and care must be taken to see that the enquiries do not become empty formalities. Relevant part of the judgment is extracted below: “From the above decisions, the following principles would emerge: (i) The enquiries must be conducted bona fide and care must be taken to see that the enquiries do not become empty formalities. (ii) If an officer is a witness to any of the incidents which is the subject matter of the enquiry or if the enquiry was initiated on a 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. (iii) 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. (iv) On receipt of the enquiry report, before proceeding further, it is incumbent on the part of the disciplinary/punishing authority to supply a copy of the enquiry report and all connected materials relied on by the enquiry officer to enable him to offer his views, if any.” 15. A Division Bench of this Court in Brij Bhushan Maurya vs. State of U.P. and another, 2021 (4) ADJ 370 again emphasised the importance of fixing date for an oral enquiry and also held that failure to fix a date in this behalf would vitiate the enquiry. Paragraph-18 of the Law Report wherein the said aspect has been dealt with is extracted below: “A conspectus of the decisions noticed above would show that where, in a major penalty enquiry, after service of the chargesheet, the charge-sheeted employee in his reply to the chargesheet does not admit the charge or refutes the charge, it is mandatory to fix a date for an oral enquiry. Failure to fix a date for the oral enquiry in such circumstances would vitiate the enquiry and the consequential order of punishment. Failure to fix a date for the oral enquiry in such circumstances would vitiate the enquiry and the consequential order of punishment. It is not necessary for the charge-sheeted officer to pray for an oral enquiry inasmuch as the moment the charge-sheeted officer does not admit the charge or refutes the charge, an oral enquiry is required not only to comply with the provisions of the 1999 Rules but also the principles of natural justice. In a disciplinary enquiry, even if evidence is in the form of documents, the documents would have to be produced and their authenticity certified either by production of a witness or on the basis of an admission of the charge-sheeted employee made by him after receipt of those documents or production of those documents before him in the inquiry. After the department has led its evidence, the charge-sheeted employee is to be given opportunity to lead evidence in defence. Defence evidence may be oral or documentary depending upon the nature of the evidence which the defence wishes to rely on.” 16. In the same judgment, the Division Bench also considered the plea of non-prejudice taken by the employer and repelled the same holding as follows: “In the instant case, the appellant had not admitted the charges. He had pleaded not guilty. In these circumstances, he had a right to lead evidence in defence in the inquiry. Not holding an inquiry in these circumstances most certainly was prejudicial to his defence more so when the reversion order dated 01.10.2020 recites that the appellant had not led any evidence to substantiate his defence. The view taken by the learned Single Judge that the writ petitioner (the appellant herein) had failed to demonstrate as to what prejudice was caused to him by not holding an oral enquiry, in our considered view, is not correct.” 17. Another Division Bench in Smt. Mazda Begum and others vs. State of U.P. and others, 2017 (3) ADJ 352 after considering a number of precedents both of Supreme Court and this Court, observed as follows: “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 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 charges against the employee by adducing oral as well as documentary evidence. In case charges warrant major punishment then the oral evidence by producing the witnesses is necessary.” 18. Another judgment on which the petitioner has placed reliance is in Ghanshyam Das Varshney v. State of U.P. and others, 2015 (2) ESC 706 wherein also a Division Bench of this Court held that where the procedure under Rule 7 of the 1999 Rules is not followed, it would vitiate the entire enquiry. The relevant paragraph is extracted below: “A perusal of the enquiry report ipso facto reveals that in his reply to the charge sheet the petitioner had not only denied the charges but had also denied the verification reports to be correct and in accordance with the spot position. The reply to show cause notice given by the petitioner to the disciplinary authority, copy of which is annexure 6 to the petition also reveals that in it also he had reiterated his denial. We are thus unable to accept the contention of learned Additional Chief Standing Counsel that since the imputing facts had not been denied by the petitioner there was no necessity for the Enquiry Officer to record any oral evidence. In our opinion it was clearly not a case covered by the provisions of Rule 7 (vi) of the Rules. Instead it was a case covered by the provisions of Rule 7(vii) of the Rules wherein the Enquiry Officer in view of the denial of charges was under a statutory obligation to record oral evidence of the witnesses to whom the department proposed to summon in order to prove the documentary evidence relied upon by it. Even if a delinquent employee does not request for personal hearing, the burden of proving charges is upon the department. Even if a delinquent employee does not request for personal hearing, the burden of proving charges is upon the department. Under the rules, it is obligatory for the Enquiry Officer to fix a date for such an enquiry and also to inform about the same to the delinquent employee. The Enquiry Officer is also under statutory obligation to examine the documentary as well as oral evidence, if any, adduced in support of the charges. In case, the delinquent employee does not participate in the enquiry, even then, the Enquiry Officer is under statutory duty to discharge his obligation as an Enquiry Officer to ascertain the truth in respect of the charges levelled against the delinquent employee on the basis of the evidence and to come to the conclusion as to whether the said charges are proved against the delinquent employee or not. Even if the delinquent employee has not demanded the opportunity of personal hearing or does not give the list of names of the witnesses with a brief note indicating the points on which he desires to examine or cross-examine the witnesses, the Enquiry Officer is still statutory bound to fix a date of enquiry and to intimate the said date to the delinquent employee and in case, the delinquent employee does not appear on the date fixed or moves an application for adjournment, the Enquiry Officer may, in his discretion, either adjourn the enquiry to some other date or to proceed ex-parte against the delinquent employee.” 19. In the instant case, concededly the petitioner had filed a detailed reply to the charge-sheet traversing each and every charge levelled against him. In the charge sheet, the appellants had relied on various documents and records to prove the charges. The charges were required to be proved as the petitioner had specifically refuted all the charges. He also requested for summoning the Deputy Regional Marketing Officer during course of enquiry to controvert the charges levelled against him. He also annexed various documents along with his reply in support of his case. The Enquiry Officer, having regard to the defence set up by the petitioner, directed the then District Food Marketing Officer, Mau to appear on 19.12.2006 for cross-examination by the petitioner. The petitioner was also informed about the same. Admittedly, the petitioner appeared before the Enquiry Officer on 19.12.2006 for cross-examining the District Food Marketing Officer, Mau. The Enquiry Officer, having regard to the defence set up by the petitioner, directed the then District Food Marketing Officer, Mau to appear on 19.12.2006 for cross-examination by the petitioner. The petitioner was also informed about the same. Admittedly, the petitioner appeared before the Enquiry Officer on 19.12.2006 for cross-examining the District Food Marketing Officer, Mau. It is admitted in paragraph-23 of the counter affidavit that the District Food Marketing Officer, Mau did not appear and therefore on that date, the petitioner was deprived of his right to cross-examine him. Thereafter, for almost five months no effort was made to get him cross-examined. Since the petitioner was due to superannuate on 31.05.2007, the Enquiry Officer without holding any further enquiry submitted his report dated 19.05.2007. It is, thus, evident that the procedure prescribed under Rule 7 of the 1999 Rules was not followed. The department did not prove the documents nor led any oral evidence to bring home the charges. The petitioner was deprived of valuable right to cross-examine the witnesses and to lead evidence in support of his defence. 20. The disciplinary enquiry in the facts and circumstances noted above, was only an eyewash. No legal sanctity could be accorded to such an enquiry. The question which now arises is whether the petitioner could be non-suited on basis of the doctrine of “non prejudice” and by setting up “plea of waiver”. 21. Before we dwell on the above submissions, we would first advert to the judgments cited on behalf of the appellants. In P.D. Agrawal (supra), the issue was regarding delay in initiation of disciplinary proceedings. It was held in the aforesaid context that where the employee did not raise any objection in respect of delay in initiation of proceedings during course of enquiry, in appeal and before High Court nor could show any prejudice, the sanctity of the enquiry cannot be doubted. Paragraph-17, on which reliance has been placed, is extracted below: “The validity of the disciplinary proceeding and/or justifiability thereof on the ground of delay or otherwise had never been raised by the appellant before any forum. It was not his case either before the Appellate Authority or before the High Court that by reason of any delay in initiating the disciplinary proceeding he had been prejudiced in any manner whatsoever. It was not his case either before the Appellate Authority or before the High Court that by reason of any delay in initiating the disciplinary proceeding he had been prejudiced in any manner whatsoever. It may be true that delay itself may be a ground for arriving at a finding that enquiry proceeding was vitiated in the event it is shown that by reason thereof the delinquent officer has been prejudiced, but no such case was made out.” 22. The facts of the instant case as noted above are completely different. In case of delay in initiation of disciplinary proceedings undoubtedly the delinquent should raise the plea at the first opportunity. However, the same principle would not apply to the facts of the instant case where the enquiry itself was found to be faulty and held in complete violation of the procedure prescribed under the Statute. The lacuna in the enquiry, in the facts of the instant case, goes to the root of the matter whereas the plea of delay was only relevant for determining the issue of prejudice which if not pleaded was definitely not fatal. 23. Again, in Union of India and others vs. Alok Kumar (supra), it was held that a very hyper technical approach should not be adopted to frustrate departmental enquiries if upon admitted or indisputable facts only one conclusion was possible. The infraction of principles of natural justice is in itself not sufficient unless prejudice is proved. It was held that every case should be examined on its own merits. Paragraph-85 on which reliance has been placed is extracted below: “Doctrine of de facto prejudice has been applied both in English as well as in Indian Law. To frustrate departmental inquiries on a hyper technical approach has not found favour with the Courts in the recent times. In S.L. Kapoor v. Jagmohan, (1980) 4 SCC 379 , a three-Judge Bench of this Court while following the principle in Ridge v. Baldwin, 1964 AC 40:(1963) 2 WLR 935:(1963) 2 All ER 66 (HL) stated that if upon admitted or indisputable facts only one conclusion was possible, then in such a case that principle of natural justice was in itself prejudice would not apply. Thus, every case would have to be examined on its own merits and keeping in view the statutory rules applying to such departmental proceedings. Thus, every case would have to be examined on its own merits and keeping in view the statutory rules applying to such departmental proceedings. The Court in S.L. Kapoor held as under: "18. In Ridge v. Baldwin [1964 AC 40 at p. 68 : All ER at p. 73] one of the arguments was that even if the appellant had been heard by the Watch Committee nothing that he could have said could have made any difference. The House of Lords observed at (p. 68): "It may be convenient at this point to deal with an argument that, even if as a general rule a watch committee must hear a constable in his own defence before dismissing him, this case was so clear that nothing that the appellant could have said could have made any difference. It is at least very doubtful whether that could be accepted as an excuse. But, even if it could, the watch committee would, in my view, fail on the facts. It may well be that no reasonable body of men could have reinstated the appellant. But at between the other two courses open to the watch committee the case is not so clear. Certainly on the facts, as we know them, the watch committee could reasonably have decided to forfeit the appellant's pension rights, but I could not hold that they would have acted wrongly or wholly unreasonably if they had in the exercise of their discretion decided to take a more lenient course.” 24. In Covington Virginian (supra), the theory of waiver has been explained and the established principle that for waiver to apply there must be intentional relinquishment of a known right, was reiterated. Again, the first principles governing the theory of waiver, have been noted. It has been observed as follows: “A waiver such as is claimed here may be generally defined as a voluntary abandonment of some known legal right, advantage, or privilege, or such conduct as warrants an inference of the abandonment of such right, or the intentional doing of an act inconsistent with claiming it, all of which is usually dependent upon the peculiar circumstances of the case.” 25. In the instant case, as already noted, the disciplinary enquiry held by the appellants was for namesake only. They had not examined any witness nor proved any document in support of their case. In the instant case, as already noted, the disciplinary enquiry held by the appellants was for namesake only. They had not examined any witness nor proved any document in support of their case. The petitioner was not given any opportunity to cross-examine the witnesses. Merely on basis of the charge-sheet and reply, enquiry report was submitted. Thereafter, once again on basis of reply submitted by the petitioner challenging the correctness of the finding recorded in the enquiry report, the appellants have proceeded to pass the order for withholding gratuity and deduction from pension. The instant case is clearly distinguishable from the cases where procedure prescribed was substantially followed but the delinquent employee comes up with some technical plea to assail the enquiry proceedings and in such a case, undoubtedly he has to prove prejudice. Moreover, the plea has to be raised at the first available opportunity, otherwise he would be deemed to have waived the plea. The same would not apply to the facts of the instant case. Mere fact that the petitioner did not raise the plea of not being given opportunity to cross-examine the witnesses or to lead evidence in his reply to the enquiry report, would not infuse life into the proceedings which as noted above were non est in the eyes of law. The appellants in fact failed to bring home the charges, in absence of oral enquiry. The illegality was not a curable one so as to sustain the plea of ‘non-prejudice’ and ‘waiver’. We are in complete agreement with the learned Single Judge that the inherent defects in the enquiry had rendered the same vulnerable in law. We also find no good ground to interfere with the order of learned Single Judge insofar it declines to remit the matter for fresh enquiry as the petitioner had died long back and holding enquiry in his absence at this distance in time would not only be a futile but a sham exercise. 26. In view of foregoing discussion, we find no merit in the instant appeal. It is, accordingly, dismissed.