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2024 DIGILAW 199 (ALL)

Ashok Kumar Yadav v. State of U. P.

2024-01-18

J.J.MUNIR

body2024
JUDGMENT : J.J. MUNIR, J. 1. This writ petition is directed against an order of dismissal from service and recovery of the price of wheat said to be embezzled by the petitioner. This order has been made against the petitioner by the Executive Director, U.P. Rajya Karamchari Kalyan Nigam, Lucknow on 22.09.2020 and shall hereinafter be referred to as the impugned order. 2. The petitioner was a Centre Superintendent in the employ of the U.P. Rajya Karamchari Kalyan Nigam, Lucknow (for short ‘the Corporation’). He was appointed a Centre Superintendent at the Wheat Purchase Centre, Vijay Nagla, District Badaun in the month of March, 2018. The petitioner was transferred from District Badaun to District Agra on 13.07.2018. On 16th of July, 2018 in a quick movement of events, the petitioner was transferred from District Agra to District Sambhal and posted as a Salesman/Accounts Clerk by the Managing Director, Uttar Pradesh State Food and Essential Commodities Corporation Limited, Lucknow. The petitioner joined the station of transfer on 16.07.2018. On 24th July, 2019, a little over a year after his preceding transfer to Sambhal, the petitioner was transferred back to District Agra, where he joined on 19.08.2019. 3. It is the petitioner’s case that while posted as the Centre In-charge, Wheat Purchase Centre, Vijay Nagla, District Badaun, an incident took place on 15.06.2018, where records relating to purchase of wheat were forcibly taken away by one Harish Shankhdhar, a government contractor. The petitioner made a complaint regarding the incident to the Executive Director of the Corporation as well as the District Magistrate through registered post on 12.07.2018. Another complaint regarding the incident was addressed to the Director of the Corporation on 23.07.2018. The petitioner says that no action was taken by these Authorities upon his complaints. The petitioner was served with a show cause notice instead, by the Executive Director last mentioned on 03.08.2019, where it was claimed that the petitioner was guilty of short-deposit of wheat in the stocks of the Corporation, compared to the quantity purchased while posted at Badaun. The short-deposit was alleged to be a quantity of 2411.60 quintals. 4. The show cause notice was answered by the petitioner on 09.08.2019. The allegation was denied. In his reply, the petitioner said that he was transferred from Badaun on 13.07.2018, handing over charge to one Ashok Kumar Saxena. He joined the station of transfer on 14.07.2018. The short-deposit was alleged to be a quantity of 2411.60 quintals. 4. The show cause notice was answered by the petitioner on 09.08.2019. The allegation was denied. In his reply, the petitioner said that he was transferred from Badaun on 13.07.2018, handing over charge to one Ashok Kumar Saxena. He joined the station of transfer on 14.07.2018. The stand of the petitioner was that he had no information regarding any embezzlement or shortage of wheat, which took place afterwards. 5. The Executive Director of the Corporation placed the petitioner under suspension pending inquiry vide order dated 31.10.2019. He was served with a charge-sheet on the day he was suspended. The charge-sheet says that the petitioner was prima facie found to have caused a loss of Rs.46,38,592.02 to the Corporation in that, that out of a total procurement of 11000 quintals of wheat at the Centre during the Rabi Season of 2018-19, the petitioner had deposited with the Food Corporation of India 8588.40 quintals, leaving a shortfall of 2411.60 qunitals. It was said in the charge that calculating the worth of the shortfall at the rate prescribed by the Food Corporation of India, which was Rs.1923.45 per qunital, the petitioner was guilty of embezzling a sum of Rs.46,38,592.02, and thus, causing serious financial loss to the Corporation. It is also said in the charge that the petitioner was required to show cause, but his reply did not clarify the position. He was summoned by the Executive Director vide his memo dated 11.09.2019, requiring the petitioner to appear before the Director aforesaid on 13.09.2019 in his office and clarify matters. 6. The petitioner, upon appearing before the Executive Director of the Corporation, had sought a month’s time to make good the shortfall of wheat, but did not keep his word. The petitioner was, therefore, charged with serious financial irregularity and the resultant act of misconduct punishable under the Model Conduct Discipline and Appeal Rules framed by the Corporation. The petitioner was required to submit reply to the charge-sheet, which carried a solitary charge as aforesaid. The petitioner submitted his reply dated 19.11.2019 denying the charge. 7. It was the petitioner’s case in his reply that the embezzlement was done by government contractors, Santosh Mishra and Harish Shankhdhar, regarding which information had already been conveyed by the petitioner and permission also sought to lodge a first information against the said contractors. The petitioner submitted his reply dated 19.11.2019 denying the charge. 7. It was the petitioner’s case in his reply that the embezzlement was done by government contractors, Santosh Mishra and Harish Shankhdhar, regarding which information had already been conveyed by the petitioner and permission also sought to lodge a first information against the said contractors. It was pointed out that further action was not taken due to want of instructions from the Authorities of the Corporation. A First Information Report was nevertheless lodged by the petitioner on 23.09.2019 against government contractors, Santosh Mishra and Harish Shankhdhar on 23.09.2019, which was registered as Case Crime No. 238 of 2019, under Sections 406, 420, 341, 506 IPC, Police Station Vinawar, District Badaun. 8. The petitioner challenged his suspension from service by means of Writ (A) No. 2731 of 2020, which was disposed of by this Court vide an order dated 18.02.2020, directing the respondents to complete departmental proceedings expeditiously. This Court’s order was observed in breach, compelling the petitioner to move Contempt Application (Civil) No. 3699 of 2020. Pending these contempt proceedings, the petitioner was issued with a show cause notice by the respondents on 17.07.2020, requiring him to submit a reply to the inquiry report, a copy of which was supplied to him along with the show cause. This was followed by the impugned order of dismissal from service dated 22.09.2020, which further directed that a sum of Rs.15,46,197.33/- shall be recovered from the petitioner and that he will not be paid any sum of money for the period of his suspension, except the subsistence allowance. Amongst other pleas, that are urged, it is averred in Paragraph No. 32 of the writ petition that after receipt of his reply to the charge-sheet, no date, time and place of inquiry was fixed and intimated to the petitioner, where he could appear and cross-examine witnesses in support of the charge or answer other evidence led. It is averred that a namesake of inquiry was held without giving the petitioner a fair opportunity of hearing. 9. In the counter affidavit filed on behalf of the Corporation in Paragraph No. 22, Paragraph No. 32 of the writ petition, along with a host of other paragraphs, ranging from 26 to 38 of the writ petition, have been answered. All the averments in the relative paragraphs have been ‘not admitted’. 9. In the counter affidavit filed on behalf of the Corporation in Paragraph No. 22, Paragraph No. 32 of the writ petition, along with a host of other paragraphs, ranging from 26 to 38 of the writ petition, have been answered. All the averments in the relative paragraphs have been ‘not admitted’. Paragraph No. 22 of the counter affidavit reads: “22. That the contents of paragraph nos. 26 to 38 of the writ petition are not admitted. In reply thereto it is submitted that for the aforesaid embezzlement of Rs.46,38,592.02, departmental enquiry was initiated against the petitioner and vide order dated 31-01-2019 he was placed under suspension and Finance & Accounts Officer, Uttar Pradesh, Rajya Karmchari Kalyan Nigam, Lucknow was appointed as Enquiry Officer. It is further submitted that the Enquiry Officer after conducting enquiry into the matter submitted enquiry report dated 07-08-2020 in which the charge of embezzlement levelled against the petitioner was proved. On the basis of enquiry report dated 07-08-2020 submitted by the Enquiry Officer, the Executive Director, Uttar Pradesh, Rajya Karmchari Kalyan Nigam, Lucknow (respondent no. 2) after affording opportunity of hearing to the petitioner/delinquent employee, passed order dated 22-09- 2020 whereby the petitioner was dismissed from service with further direction to recover an amount of Rs.15,46,197.33 from the petitioner.” 10. Heard Mr. Sankalp Narayan, learned Counsel for the petitioner, Mr. J.N. Maurya, learned Counsel for respondent Nos. 2 and 3 and Mr. Girijesh Kumar Tripathi, learned Additional Chief Standing Counsel for respondent No. 1. 11. The thrust of the petitioner’s submission is that the inquiry held was a slipshod affair, where no date, time and place was fixed and intimated to the petitioner. Elaborating his submissions, the learned Counsel for the petitioner has urged that in matters involving the possible imposition of a major penalty, it is incumbent upon the Inquiry Officer to fix a date, time and venue, which should be intimated to the delinquent. It is also imperative that in the inquiry held, some kind of a formal proceeding be undertaken, where the Inquiry Officer should hear evidence on behalf of the establishment, requiring them to prove the charge by evidence, both documentary and oral. It is also imperative that in the inquiry held, some kind of a formal proceeding be undertaken, where the Inquiry Officer should hear evidence on behalf of the establishment, requiring them to prove the charge by evidence, both documentary and oral. It is, particularly, urged that in matters involving the likelihood of imposition of a major penalty, it is imperative for the establishment that they examine witnesses in support of the charge with opportunity to the delinquent to cross-examine them. It is after the establishment have led evidence to prove the charge/ charges, that the delinquent is to be afforded opportunity to produce evidence in his defence, both documentary and oral. 12. The learned Counsel appearing for the respondents are in unison to say that the petitioner has been given adequate opportunity in the sense that he was served with a copy of the charge-sheet, to which he submitted a reply, and further was given a copy of the inquiry report with opportunity to show cause at that stage. In the submission of the learned Counsel appearing for the respondents, there is no procedural lapse or unfairness, causing prejudice to the petitioner, calling for interference by this Court. 13. Upon hearing learned Counsel for the parties and going through the record, what this Court finds is that the inquiry indeed has been held in a slipshod manner by the establishment without following salutary principles for proving the charge they have laid. A copy of the inquiry report is not available on the record of the writ petition, but surprisingly it has not been annexed to the counter affidavit as well. The best material to know about the proceedings of the inquiry and what happened before the Inquiry Officer is the order impugned itself. A copy of the inquiry report is not available on the record of the writ petition, but surprisingly it has not been annexed to the counter affidavit as well. The best material to know about the proceedings of the inquiry and what happened before the Inquiry Officer is the order impugned itself. It is recorded about the proceedings of the inquiry in the order impugned as follows: ^^rRi'pkr Ádj.k esa dk;kZy; i= la[;k 0&18 LFkkŒ@cRrhl & 2020 fnukad 08-01-2020 }kjk vipkjh deZpkjh dh O;fDrxr lquokbZ@c;ku vfHkfyf[kr djus gsrq fnukad 13-01-2020 dh frfFk fu;r dh x;h] vipkjh deZpkjh O;fDrxr lquokbZ gsrq fu;r frfFk dks mifLFkr gqvk rFkk viuk c;ku vafdr djk;k x;kA vipkjh deZpkjh ds fo:} fuxZr vkjksi i= ÁkIr vfHkfyf[kr dFku] vipkjh deZpkjh dk vafdr c;ku rFkk vfHkys[kh; lk{;ksa dk ijh{k.k ,oa foopuksijkUr] fof/k lEer tkapksijkUr tkap vf/kdkjh }kjk viuh tkap vk[;k fnukad 07-08-2020 dks ÁLrqr dh x;h] ftlesa ek= 01 vkjksi yxk;k x;k gS] tks fd fl} ik;k x;k gSA** 14. A perusal of the aforesaid proceedings of the inquiry shows that 13th January, 2020 was the date fixed before the Inquiry Officer that was intimated to the petitioner by the respondents through their memo dated 8th January, 2020. This date was described as a date for the petitioner’s personal hearing. A perusal of the description of proceedings, above extracted, would show that on 13.01.2020, the petitioner appeared before the Inquiry Officer and his evidence or statement was recorded. The Inquiry Officer then proceeded to hold the petitioner guilty looking into the charge-sheet, the employee’s reply to the charge-sheet, the evidence or statement of the petitioner and the documents. The Inquiry Officer looked into this material and held these proceedings as above described and nothing else. In his report dated 07.08.2020, as the impugned order would show, he found on the aforesaid material the solitary charge proved against the petitioner. 15. Now, in doing all this, the Inquiry Officer fell foul of the most salutary principle governing the procedure to hold departmental inquiries. Wherever the charge/ charges is/ are serious and there is likelihood of imposition of a major penalty, the most salutary principle that applies to departmental inquiries is that charges are not to be regarded as proofs of themselves and it is the establishment’s burden to prove them before the Inquiry Officer. Wherever the charge/ charges is/ are serious and there is likelihood of imposition of a major penalty, the most salutary principle that applies to departmental inquiries is that charges are not to be regarded as proofs of themselves and it is the establishment’s burden to prove them before the Inquiry Officer. The Inquiry Officer must convene himself as an impartial arbiter, an Inquiry Tribunal, before whom the establishment must, in the first instance, lead evidence, both documentary and oral, through a Presenting Officer to prove the charge. It is also of the most salutary importance, in matters where the charge is serious that the establishment do examine witnesses to prove it in the first instance. The Inquiry Officer cannot just look into the charge-sheet and the delinquent’s reply, besides documents on record that are idle papers, to form his opinion. The documents have to be produced before the Inquiry Officer as evidence and proved by witnesses. It is after the establishment have discharged their burden of proving the charge by producing both documentary and oral evidence that the employee may be called upon to produce evidence in defence. 16. Also, when the establishment produce their witnesses in support of the charge/ charges, the employee has the right to cross-examine them. The course of proceedings before the Inquiry Officer, as extracted in the order impugned, shows that what the Inquiry Officer looked into was the charge-sheet, the petitioner’s reply and took down the petitioner’s statement, holding the charge proved. He also did look into some documents of his own that were never produced before him by a Presenting Officer and proved by witnesses. The Inquiry Officer seems to have proceeded on the supposition that the charge was proof of itself and the petitioner’s statement was virtually considered like an explanation in a preliminary inquiry that was not satisfactory. This kind of a disciplinary inquiry is no inquiry in the eye of law. The petitioner’s defence to the charge was also based on the incident dated 15.06.2018, where records relating to the purchase of wheat were forcibly taken away by Harish Shankhdhar, a government contractor. The matter was complained by the petitioner, but no action was taken as he says. The petitioner’s defence to the charge was also based on the incident dated 15.06.2018, where records relating to the purchase of wheat were forcibly taken away by Harish Shankhdhar, a government contractor. The matter was complained by the petitioner, but no action was taken as he says. The defence is further based on the fact that the petitioner had left charge of the Centre during the relevant year and his successor in office, to whom he had handed over charge, was responsible for the shortfall. Now, the charge in the very nature, would require the establishment to prove it by the testimony of witnesses on their behalf, apart from the principle that witnesses must always be examined in a charge involving the possible imposition of a major penalty. 17. Here, as already remarked, not a solitary witness was examined on behalf of the establishment nor any kind of evidence led before the Inquiry Officer. Far from functioning as an impartial arbiter, the Inquiry Officer seems to have functioned as a servant of the establishment to endorse the charge-sheet blindfoldedly. The salutary principles in regard to a departmental inquiry have been laid down by the Supreme Court in State of Uttar Pradesh and Others vs. Saroj Kumar Sinha, (2010) 2 SCC 772 , where it is 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. 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. 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.” 18. To the same end, is the decision of the Supreme Court in Roop Singh Negi vs. Punjab National Bank and Others, (2009) 2 SCC 570 , where it was observed: “14. Indisputably, a departmental proceeding is a quasi-judicial proceeding. The enquiry officer performs a quasi-judicial function. The charges levelled against the delinquent officer must be found to have been proved. The enquiry officer has a duty to arrive at a finding upon taking into consideration the materials brought on record by the parties. The purported evidence collected during investigation by the investigating officer against all the accused by itself could not be treated to be evidence in the disciplinary proceeding. No witness was examined to prove the said documents. The management witnesses merely tendered the documents and did not prove the contents thereof. Reliance, inter-alia, was placed by the enquiry officer on the FIR which could not have been treated as evidence.” 19. Dealing with the same issue, a Division Bench of this Court in State of U.P. and Another vs. Kishori Lal and Another, 2018 (9) ADJ 397 (DB), held: “14. Now coming to the question, what is the effect of non-holding of domestic/oral inquiry, in a case where the inquiry officer is appointed, oral inquiry is mandatory. The charges are not deemed to be proved suo motu merely on account of levelling them by means of the charge-sheet unless the same are proved by the department before the inquiry officer and only thereafter it is the turn of delinquent employee to place his defence. The charges are not deemed to be proved suo motu merely on account of levelling them by means of the charge-sheet unless the same are proved by the department before the inquiry officer and only thereafter it is the turn of delinquent employee to place his defence. Holding oral enquiry is mandatory before imposing a major penalty, as held by Apex Court in State of U.P. and Another vs. T.P. Lal Srivastava, 1997 (1) LLJ 831 , as well as by a Division Bench of this Court in Subhash Chandra Sharma vs. Managing Director and Another, 2000 (1) UPLBEC 541 .” 15. In another case in Subhash Chandra Gupta vs. State of U.P. 2012 (4) ADJ 4 (NOC), the Division Bench of this Court after survey of law on this issue observed as under: “It is well-settled that when the statute provides to do a thing in a particular manner that thing has to be done in that very manner. We are of the considered opinion that any punishment awarded on the basis of an enquiry not conducted in accordance with the enquiry rules meant for that very purposes is unsustainable in the eye of law. We are further of the view that the procedure prescribed under the inquiry rules for imposing major penalty is mandatory in nature and unless those procedures are followed, any out come inferred thereon will be of no avail unless the charges are so glaring and un-refutable which does not require any proof. The view taken by us find support from the judgment of the Apex Court in State of U.P. and Another vs. T.P. Lal Srivastava, 1997 (1) LLJ 831 , as well as by a Division Bench of this Court in Subash Chandra Sharma vs. Managing Director and Another, 2000 (1) UPLBEC 541 .” 16. A Division Bench decision of this Court in the case of Salahuddin Ansari vs. State of U.P. and Others, 2008 (3) ESC 1667, held that non holding of oral inquiry is a serious flaw which can vitiate the order of disciplinary proceeding including the order of punishment has observed as under: “10.......Non-holding of oral inquiry in such a case, is a serious matter and goes to the root of the case. 11. 11. A Division Bench of this Court in Subash Chandra Sharma vs. Managing Director and Another, 2000 (1) UPLBEC 541 , considering the question as to whether holding of an oral inquiry is necessary or not, held that if no oral inquiry is held, it amounts to denial of principles of natural justice to the delinquent employee. The aforesaid view was reiterated in Subash Chandra Sharma vs. U.P. Cooperative Spinning Mills and Others, 2001 (2) UPLBEC 1475 and Laturi Singh vs. U.P. Public Service Tribunal and Others, Writ Petition No. 12939 of 2001, decided on 6.5.2005.” 17. Even if the employee refuses to participate in the enquiry the employer cannot straightaway dismiss him, but he must hold and ex-parte enquiry where evidence must be led vide Imperial Tobacco Co. Ltd. vs. Its Workmen, AIR 1962 SC 1348 , Uma Shankar vs. Registrar, 1992 (65) FLR 674 (All). 18. The Division Bench of this Court in the case of Mahesh Narain Gupta vs. State of U.P. and Others, (2011) 2 ILR 570, had also occasion to deal with the same issue. It held: “At this stage, we are to observe that in the disciplinary proceedings against a delinquent, the department is just like a plaintiff and initial burden lies on the department to prove the charges which can certainly be proved only by collecting some oral evidence or documentary evidence, in presence and notice charged employee. Even if the department is to rely its own record/document which are already available, then also the enquiry officer by looking into them and by assigning his own reason after analysis, will have to record a finding that hose documents are sufficient enough to prove the charges. In no case, approach of the Enquiry Officer that as no reply has been submitted, the charge will have to be automatically proved can be approved. This will be erroneous. It has been repeatedly said that disciplinary authority has a right to proceed against delinquent employee in ex parte manner but some evidence will have to be collected and justification to sustain the charges will have to be stated in detail. The approach of the enquiry officer of automatic prove of charges on account of non filing of reply is clearly misconceived and erroneous. This is against the principle of natural justice, fair play, fair hearing and, thus, enquiry officer has to be cautioned in this respect.” 19. The approach of the enquiry officer of automatic prove of charges on account of non filing of reply is clearly misconceived and erroneous. This is against the principle of natural justice, fair play, fair hearing and, thus, enquiry officer has to be cautioned in this respect.” 19. The principal of law which emanates from the above judgments are that initial burden is on the department to prove the charges. In case of procedure adopted for inflicting major penalty, the department must prove the charges by oral evidence also. 20. From perusal of enquiry report it is demonstrably proved that no oral evidence has been led by the department. When a major punishment is proposed to be passed the department has to prove the charges against the delinquent/employee by examining the witnesses and by documentary evidence. In the present case no witness was examined by the department neither any officer has been examined to prove the documents on the basis of which charges are levelled on the claimant in the proceedings. 21. It is trite law that the departmental proceedings are quasi judicial proceedings. The Inquiry Officer functions as quasi judicial officer. He is not merely a representative of the department. He has to act as an independent and impartial officer to find out the truth. The major punishment awarded to an employee visit serious civil consequences and as such the departmental proceedings ought to be in conformity with the principles of natural justice. 22. 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.” 20. The same principle has been reiterated by the Division Bench of our Court in Smt. Karuna Jaiswal vs. State of U.P. 2018 (9) ADJ 107 (DB), where it has been held: “15. In case charges warrant major punishment then the oral evidence by producing the witnesses is necessary.” 20. The same principle has been reiterated by the Division Bench of our Court in Smt. Karuna Jaiswal vs. State of U.P. 2018 (9) ADJ 107 (DB), where it has been held: “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. 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.” 21. In State of U.P. vs. Aditya Prasad Srivastava and Another, 2017 (2) ADJ 554 (DB), again a Bench decision of this Court, it was held: “14. 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.” 21. In State of U.P. vs. Aditya Prasad Srivastava and Another, 2017 (2) ADJ 554 (DB), again a Bench decision of this Court, it was held: “14. Recently the entire law on the subject has been reviewed and reiterated in Chamoli District Co-operative Bank Ltd. vs. Raghunath Singh Rana and Others, AIR 2016 SC 2510 and Court has culled out certain principles as under: “(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 and 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. The principal of law emanates from the above judgments is that initial burden is on the department to prove the charges. In case where inquiry is initiated with a view to inflict major penalty, department must prove charges by adducing evidence by holding oral inquiry. 17. It is trite law that the departmental proceedings are quasi judicial proceedings. The Inquiry Officer functions as quasi judicial officer. He is not merely a representative of the department. He has to act as an independent and impartial officer to find out the truth. 17. It is trite law that the departmental proceedings are quasi judicial proceedings. The Inquiry Officer functions as quasi judicial officer. He is not merely a representative of the department. He has to act as an independent and impartial officer to find out the truth. The major punishment awarded to an employee visit serious civil consequences and as such the departmental proceedings ought to be in conformity with the principles of natural justice. Even if, an employee prefers not to participate in enquiry the department has to establish the 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.” 22. The said principles would show that the manner in which disciplinary proceedings have been held by the Inquiry Officer are manifestly illegal and the order impugned, founded on such proceedings, cannot be sustained. 23. It goes without saying that the charge being serious, involving allegations of embezzlement of valuable goods of the Corporation, it would be open to the respondents to hold proceedings afresh against the petitioner from the stage of the charge-sheet, in accordance with law and the guidance in this judgment. The respondents would be at liberty to pass fresh orders, if they elect the aforesaid course. 24. In the result, this writ petition succeeds and is allowed in part. The impugned order dated 22.09.2020 passed by the Executive Director of the Corporation is hereby quashed. A mandamus is issued to respondent Nos. 2 and 3, ordering them to reinstate the petitioner forthwith in service and pay him current salary from the date of this judgment. The payment of arrears of salary will abide by the result of disciplinary proceedings, if taken afresh. Else, 50% of the due emolument will become payable to the petitioner, that is, if the respondents chose not to pursue fresh proceedings. It would be open to the respondents after reinstating the petitioner to assign him duties at such station as they wish and pay him current salary or place him under suspension pending inquiry, in which event the petitioner shall be regularly paid his subsistence allowance, without asking him to furnish a non-alternative engagement certificate. If fresh proceedings are taken, the entitlement of the petitioner to receive emoluments for the period of his ouster from service will abide by the final result of those proceedings. If fresh proceedings are taken, the entitlement of the petitioner to receive emoluments for the period of his ouster from service will abide by the final result of those proceedings. If the petitioner is finally reinstated in service at the end of proceedings, with whatever punishment is meted out to him, other than a terminal punishment, he will be entitled to all benefits of seniority and continuity. 25. There shall be no order as to costs.