By the Court.—The special appeal has arisen from a judgment and order of the learned Single Judge dated 8 July 2015. By the judgment impugned, the learned Single Judge has rejected a writ petition challenging the legality of an order dated 8 April 2015 by which the appellant was dismissed from service.

2. The appellant is a Junior Accounts Clerk in the District Rural Development Agency at Fatehpur. An order of suspension was passed against the appellant in contemplation of a disciplinary enquiry. A charge-sheet was issued to the appellant on a charge of misconduct. Four charges were framed. The Enquiry Officer concluded the enquiry ex parte on the ground that despite several opportunities, the appellant had neither filed his statement of defence nor participated in the enquiry. The appellant was dismissed from service after a notice to show-cause and a due opportunity to submit his reply. Principally two submissions were urged in support of the writ proceedings before the learned Single Judge. The first submission was that the enquiry was held under the provisions of the U.P. Government Servant (Discipline and Appeal) Rules, 1999 which have been framed under the proviso to Article 309(1) of the Constitution but since DRDA is a registered society, the Rules were not applicable. The second submission was that the enquiry was held in violation of the principles of natural justice. The learned Single Judge rejected the first submission on the ground that a mere reference to the Rules of 1999 would not invalidate the enquiry or render the order of dismissal as without jurisdiction. The learned Single Judge relied on the provisions of Section 16 of the U.P. General Clauses Act, 1904 to hold that the power of removal and dismissal was inherent in the power to appoint and hence there was no illegality in the order. On the second aspect, the learned Single Judge came to the conclusion that the charge-sheet was issued to the appellant on the basis of documentary material and since the appellant did not either submit his reply or participate in the enquiry, the Enquiry Officer had no option but to proceed ex parte. The learned Single Judge held that the charges were proved on the basis of the documentary evidence on the record and independently came to the conclusion that there was ample evidence to prove the guilt of the petitioner. Finding that the charges were serious, the learned Single Judge held that no infirmity in the order of dismissal could be found.

3. The only submission which has been urged in support of the appeal is that even if an employee against whom a charge of misconduct is being enquired into does not participate in the enquiry, that does not obviate the burden which is cast upon the employer to prove the charge of misconduct during the course of the enquiry. In the present case, it was submitted that a reading of the enquiry report would establish that there is no finding that the misconduct had been proved. The Enquiry Officer has merely held that the appellant did not participate in the enquiry and must therefore be deemed to have admitted the charges in the enquiry.

4. On reading the report of the Enquiry Officer, we find merit in the submission of the appellant. The Enquiry Officer has adverted to the four charges and has itemised the evidence below each of the charges. Having said this, the Enquiry Officer has found fault with the appellant for not participating in the enquiry and has come to the conclusion that the appellant must be deemed to have admitted the charges. There is a basic fallacy in the findings of the Enquiry Officer. The burden to establish a charge of misconduct lies on the employer. Whether or not the charge of misconduct is established has to be deduced on the basis of the evidence on the record. When an employee whose misconduct is being inquired into does not participate in the enquiry despite notice, the consequence is that the employee would not be entitled to urge that the enqui