WP/16750/2000 of A.SADABABD CKERJ HYDERABAD. Vs SYNDICATE BANK ITS G.M I.R.D AND 2ORS on 29 December 2010

ORDER:

This writ petition is filed seeking a declaration that theproceedings of the 2[nd] respondent dated 23.11.1999 dismissing thepetitioner from service as confirmed on appeal by the 1[st] respondentby order dated 20.03.2000 is arbitrary, illegal and in violation ofprinciples of natural justice.

The petitioner was recruited as a Clerk in the Syndicate Bankon 15.9.1976. While working at Shalibanda Branch, by proceedingsdated 30.04.1996 the petitioner was placed under suspension pendingenquiry into various irregularities amounting to gross misconduct. Thereafter, charge-sheet dated 25.06.1996 was issued and afterconducting enquiry, all the charges were held proved. Accordingly the2[nd] respondent by proceedings dated 23.11.1999 ordered penalty ofdismissal from service with immediate effect and on appeal the samewas confirmed by 1[st] respondent by order dated 20.03.2000. The saidorders are under challenge in this writ petition.FACTS : - The facts which are not in dispute are as under:

The petitioner was served with a charge-sheet dated 25.6.1996alleging gross misconduct by doing acts prejudicial to the interest ofthe Bank and engaging in trade or business outside the scope of hisduties while working at Shalibanda Branch of the 1[st] respondent Bankduring the period from 7.10.1991 till he was placed under suspension on 30.04.1996. The six irregularities alleged in the charge-sheet are as under:

“1. The petitioner had received / collected payment of Rs.10,000/- purportedly in respect of SB A/c. No.27797of Miss Heba Samdhani on 25.2.1994;of Miss Heba Samdhani on 25.2.1994;

2. On 30.8.1994 he had cancelled a cash debit entry of Rs.30,000/- in the sub-day book in respect of ChequeNo.880891 purportedly drawn on SB A/c No.6043;No.880891 purportedly drawn on SB A/c No.6043;

3. He made a credit entry of Rs.17,000/- in SB A/c No.9953 of Sri E. Rajaiah on 7.2.1994;

4. He made alteration /cancellation in the Bank recordsin respect of payment of Rs.2,000/- on 5.10.1995 whilefunctioning as payment cashier;in respect of payment of Rs.2,000/- on 5.10.1995 whilefunctioning as payment cashier;

5. He had availed LFC for self and family members;andand 6 . He had issued/drawn cheque on his SB A/cNos.25552 and 26425.”Nos.25552 and 26425.”

The petitioner was directed to submit his written statement ofdefence within 15 days from the date of receipt of the charge-sheet. The petitioner by letter dated 25.07.1996 requested to provide allrelevant documents on which the charge-sheet was based upon so asto enable him to submit his written statement of defence. By letterdated 31.07.1996 the petitioner was informed that all documentsconnected to the case would be made available for verification at theappropriate stage and he was advised to submit his written statementof defence within seven days.

Aggrieved by the said action of the respondents, the petitionerfiled W.P.No.16216 of 1996. The said writ petition was disposed of bythis Court by order dated 5.11.1996 directing the respondents tofurnish all the relevant material in support of the imputations of theallegations made against the petitioner within two weeks. The 1[st]respondent Bank was also directed to complete the departmentalenquiry within six months from the date of furnishing the copies ofdocuments to the petitioner. Pursuant thereto, the 2[nd] respondent videhis letter dated 16.12.1996 furnished Photostat copies of 179

documents on which the Bank had relied upon to substantiate thecharges levelled against the petitioner and called upon the petitionerto submit his written statement of defence within seven days. Thepetitioner while contending that some of the relevant documents werenot still made available, by letter dated 26.12.1996 requested to furnishthe copies of 21 documents specified therein. The petitioner had alsorequested in the letter dated 26.12.1996 to furnish a copy of the reportof the investigating officer, who was cited as a witness, if therespondents were relying upon the said report. In response to thesame, the 2[nd] respondent by letter dated 5.2.1997 whilesending copies of 11 documents informed the petitioner that the otherdocuments sought by the petitioner were missing from the records ofthe Branch as mentioned in the charge-sheet itself. It was also statedthat the respondents did not rely upon the report of the investigatingofficer for issuing the charge-sheet and therefore the same was notfurnished to the petitioner. By letter dated 15.2.1997 the petitionermade it clear that unless all the documents requested in his letterdated 26.12.1996 were furnished he was unable to give the reply tothe charge-sheet. In response to the same, the 2[nd] respondent byletter dated 28.02.1997 while reiterating that the 8 documents out ofthe documents sought by the petitioner were missing from the recordsof the Bank, alleged that as mentioned in the charge-sheet thepetitioner while acting as Supervisor in the capacity of a TemporarySpecial Assistant at Shalibanda Branch had not onlywithdrawn the Bank’s funds in a fraudulent manner but also resorted totampering / destruction / stealthily removal from branch records ofrelevant documents to conceal the factual position. Thus the petitioner was called upon to submit his explanation within three daysalleging that he was deliberately attempting delaying tactics and wasnot co-operating to conduct the enquiry. As there was no responsefrom the petitioner, by letter dated 10.04.1997 the 2[nd] respondent informed the petitioner that one K.L.N. Joshi, Manager, I.R. Section,Zonal Office, Hyderabad was appointed as the Enquiry Officer toconduct an enquiry into the matter and to submit a report. Pursuantthereto, the Enquiry Officer, having initiated the enquiry, called uponthe petitioner to participate in the enquiry along with his DefenceAssistant.

In the meanwhile the petitioner filed Contempt Case No.271 of1997 alleging that by proceeding with the enquiry without furnishingthe copies of all the documents sought by the petitioner, therespondents had flouted the order in W.P.No.16216 of 1996. Whileinforming the said fact, the petitioner requested the Enquiry Officer notto proceed with the enquiry till the contempt case was decided. Thesaid request was rejected and the petitioner was called upon toparticipate in the enquiry. Though the enquiry was adjourned fromtime to time, the petitioner did not appear. On 09.06.1997 the EnquiryOfficer had proceeded with the enquiry ex parte and examined-in-chiefthree witnesses on behalf of the Management. On 10.06.1997 twomore witnesses were examined on behalf of the Management. Thecopies of the proceedings of the enquiry held on 9.6.1997 and10.6.1997 were sent to the petitioner by registered post and theenquiry was adjourned to 26.6.1997. As the petitioner failed to appeareven on 26.6.1997, the matter was adjourned to 8.7.1997 informing thepetitioner that the cross-examination of management witnesses waskept pending and if he failed to appear on 8.7.1997, the evidence onbehalf of the management would be closed and the enquiry would betreated as concluded. The petitioner by letter dated 3.7.1997 whilepointing out various infirmities / lapses in the enquiry proceedings, made a request to stop the proceedings and order re-investigation byan experienced unbiased officer. The evidence on behalf of themanagement was concluded on 8.7.1997 and the petitioner wasinformed of the said fact stating that the next date of the enquiry wouldbe communicated separately and if the petitioner wanted to avail the opportunity, he should inform his willingness in time.

Meanwhile C.C.No.271 of 1997 was heard and disposed ofby this Court by order dated 4.9.1997. Though this Court did not agreewith the petitioner’s contention that the respondents had flouted theorder in W.P.No.16216 of 1996, it was held that if the respondent Bankwanted to rely upon the evidence of M.W.3 and M.W.4, the petitionerwas entitled to have a copy of the preliminary enquiry report whereinM.W.3 and M.W.4 had recorded their own impressions after goingthrough the records of the Bank. It was also held that the action of therespondent Bank in not furnishing the copy of the preliminary enquiryreport submitted by M.W.3 and M.W.4 while examining them asManagement Witnesses had vitiated the entire proceedings. Accordingly, the enquiry officer was directed to eschew the evidenceof M.Ws.3 and 4 while determining the guilt of the petitioner. Aggrieved by the said order, the respondent Bank preferred ContemptAppeal No.13 of 1998. The said Appeal was allowed and thedirections in C.C.No.271 of 1997 were set aside by a Division Benchof this Court by order dated 16.10.1998 holding as under:

“We have gone through the investigation reportfurnished by the learned counsel for the appellant-Bank and also the depositions of M.Ws.3 and 4, whosubmitted the preliminary investigation report. It isnoticed that M.Ws.3 and 4 have only reiterated what they stated in the investigation report. It is furthernoticed that M.Ws.3 and 4 have only referred to andproduced various documents which according to themprove the commissions and omissions which are thesubject-matter of the various charges. TheManagement had made it clear that the preliminaryenquiry report as such is not being relied upon. Itcannot be said that having regard to the contents of theinvestigation report and the substance of thedepositions of M.Ws.3 and 4, the evidence of M.Ws.3and 4 will have no value at all and has got to beeschewed at the threshold. It is for the Enquiry Officerto assess to what extent the evidence of M.Ws.3 and 4will go to substantiate the charge. It is needless to state that mere opinion expressed by M.Ws.3 and 4that for so and so reasons the charges are provedshould not be mechanically acted upon by the EnquiryOfficer. The Enquiry Officer should make independentappraisal of the evidence and reach his ownconclusion. To what extent and how far the evidenceof M.Ws.3 and 4 go to substantiate the charges is amatter for the Enquiry Officer and Disciplinary Authorityto decide ultimately and it is premature to express anyopinion at this stage. At this stage, we are of the viewthat the direction to eschew the evidence of M.Ws.3and 4 in the absence of furnishing the preliminaryinvestigation report is not warranted. The clarificationsgiven above would, however, suffice to serve asguidance to the Enquiry Officer in the conduct of theenquiry.

We therefore allow the Appeal and set aside thedirections given by the learned Judge subject to theclarifications given above.“

Pursuant thereto, the Enquiry Officer called upon the petitionerto attend the enquiry on 8.2.1999 for cross-examining M.Ws.3 and 4. On 8.2.1999 though the petitioner had appeared before the enquiryofficer, he expressed his unwillingness to participate in the enquiryand to cross-examine the Management Witnesses stating that theenquiry officer had no authority to reopen the case which wasconcluded on 8.7.1997. In the circumstances, the enquiry wasconcluded and the enquiry officer submitted his report dated29.4.1999 holding that the charges levelled against the petitionerwere proved. While communicating a copy of the said enquiry report,the 2[nd] respondent – The Disciplinary Authority – vide his letter dated30.04.1999 called upon the petitioner to send his submissions on thefindings of the enquiry officer within fifteen days failing which thematter would be proceeded further and a suitable decision would betaken. Having received the same, the petitioner by letter dated15.5.1999 informed the 2[nd] respondent that he did not say that hewas not interested to participate in the enquiry but only objected to

the authority of the enquiry officer to reopen the enquiry. It was alsoalleged that the enquiry officer was not fair in conducting the enquiry.The petitioner had also pointed out certain alleged lapses on the partof the enquiry officer in proceeding with the enquiry and soughtclarifications from the 2[nd] respondent. While acknowledging the same,the 2[nd] respondent by letter dated 29.5.1999 had again called upon the petitioner to submit his representation, if any, against the enquiryreport within a week. In response, the petitioner had again soughtcertain clarifications by his letter dated 4.6.1999 so as to enable him toprepare himself for making his submissions on the enquiry report. Asthe petitioner failed to avail the opportunity given to him to make hissubmissions on the findings of the enquiry report but went on seekingclarifications, the 2[nd] respondent after considering the enquiry report,accepted all the findings recorded by the Enquiry Officer and held that the charges levelled against the petitioner were established. It wasalso held that the enquiry was held in accordance with the provisionsof the Bipartite Settlement after giving sufficient opportunity to thepetitioner to defend his case. Accordingly, having proposed to awardthe punishment of dismissal from service with immediate effect, the 2[nd]respondent by letter dated 15.6.1999 called upon the petitioner toattend the personal hearing on 30.06.1999 so as to make hissubmissions on the punishment proposed. The hearing wasadjourned from time to time and ultimately on 11.8.1999 the petitionerattended the personal hearing and made his submissions.

By that time W.P.No.13983 of 1999 filed by the petitioner seeking a declaration that the proceedings of the 2[nd] respondent dated15.6.1999 proposing punishment of dismissal from service wasarbitrary, illegal and in violation of the principles of natural justice wasdismissed by this Court by order dated 21.07.1999. Against the saidorder, the petitioner preferred W.A.No.1140 of 1999. The said WritAppeal was disposed of by a Division Bench of this Court by Judgement dated 18.08.1999 holding as under:

“Thus, in the totality of the circumstances, withoutinterfering with the orders of the learned single judgeand even affirming the finding of the learned singlejudge, we are of the considered view that ends of thesubstantial justice will be squarely met if the principlesof fair play are allowed to operate reasonably in theproceedings. In view of the fair concession given by thelearned counsel for the appellant that he desires tocross-examine only the two management witnessesM.Ws.3 and 4, the respondents are directed to grant anopportunity to cross examine the witnesses, may be,before the disciplinary authority itself. And it is only afterthe cross examination is over that the disciplinaryauthority would proceed with respect to making of hismind whether or not the charges have been proved andalso with respect to the issuing of show-cause notice forawarding of punishment in accordance with the rules.The appellant would appear before the disciplinaryauthority on 30.8.1999 at 10.00 a.m. when thedisciplinary authority shall fix the date and summon thewitnesses M.Ws.3 and 4 for cross-examination. Noother date will be given on any account whatsoever forcross-examination of witnesses except the one fixed on30.8.1999 by the disciplinary authority. Thedisciplinary authority will be at liberty to permit thecross-examination either before him or before theenquiry officer.

In view of the above observations, the writ appealis disposed of in the above terms. No costs.”

In terms of the directions of the Division Bench, the petitioner had appeared before the 2[nd] respondent and cross-examined M.Ws.3and 4 on 30.09.1999 and 1.10.1999. The copies of their evidencewere provided to the petitioner in the enquiry itself.

Conclusion

After considering the evidence of M.Ws.3 and 4 in the cross-examination as well as the other evidence already on record, the 2[nd]respondent held that the charges levelled against the petitioner wereproved and again proposed punishment of dismissal from service.

Accordingly, a show-cause notice dated 7.10.1999 was issued callingupon the petitioner to appear for personal hearing on 20.10.1999 tomake his submissions on the punishment proposed. On a requestmade by the petitioner, the hearing was postponed from time to time. Ultimately the petitioner appeared before the 2[nd] respondent on10.11.1999 and sought permission to take the assistance of hisDefence Representative N.R. Srinivasan. Accordinglythe hearing was fixed on 17.11.1999 on which date the petitionerappeared before the 2[nd] respondent along with his DefenceRepresentative and made written submissions to drop the chargesagainst him. After considering the same, the 2[nd] respondent byproceedings dated 23.11.1999 ordered dismissal of the petitioner fromservice holding that the petitioner was guilty of all the charges levelledagainst him even after taking into account the evidence brought out inthe subsequent cross-examination of M.Ws.3 and 4. Challenging thesame, the petitioner preferred an appeal before the General Managerof the 1[st] respondent Bank requesting to order re-investigation and toreinstate him into service by exonerating the charges. After giving apersonal hearing on 18.2.2000, the Appellate Authority while holdingthat there was sufficient evidence on record to sustain the chargesand that the punishment of dismissal from service awarded was notdisproportionate to the gravity of misconduct committed by thepetitioner, dismissed the Appeal by order dated 20.03.2000.

Aggrieved by the said orders, the present writ petition is filedcontending that the impugned order of dismissal from service wasbased on no evidence and therefore it is liable to be dismissed on thatground alone. It is also contended that the entire enquiry was vitiatedfor violation of principles of natural justice, particularly for non-supplyof preliminary enquiry report to the petitioner. It is further contendedthat the impugned order of dismissal was contrary to the order passedby this Court in Contempt Case No.271 of 1997 and Contempt Appeal No.13 of 1998 inasmuch as neither the Enquiry Officer nor theDisciplinary Authority nor the Appellate Authority had gone into thereasons and effect of non-supply of preliminary enquiry report.

COUNTER AFFIDAVIT FILED BY THE RESPONDENTS:

Arguments

The incident alleged against the petitioner took place in theyear 1994 which came to light during 1995-1996 and the disciplinaryaction was initiated against the petitioner at the earliest opportunity. The petitioner was placed under suspension pending disciplinaryaction during May, 1996 and he was served with the charge sheetduring June, 1996. The copies of all the available documents werefurnished to the petitioner as per the order of this Court inW.P.No.16216 of 1996. In spite of the same, the petitioner did notsubmit his explanation nor attended the enquiry. The insistence uponthe petitioner to produce the documents which were suspected to havebeen destroyed by some interested parties was only to avoid theenquiry proceedings on untenable grounds. The allegation that therespondent-Bank had intentionally and deliberately suppressed thecrucial documents is false and without any basis. The investigationwas made by the officials of the Bank strictly in accordance with thepractice prevailing in the respondent-Bank and investigation report isbased on the documents collected during the investigation. All thecharges against the petitioner were framed on the basis of thedocuments collected by the investigating officers and they had alsodeposed in the enquiry on the basis of the said documents only andthe investigation report was not relied upon at any stage of theproceedings. The investigation report may also contain allegationsagainst the other staff members including the higher authorities in thebranch and it will not be in the interest of the Bank to part with suchreports to the sub-ordinate employees. Action will be initiated againstall the cadres who are found involved or who are found negligent. Thepetitioner in spite of having received communication of dates ofenquiry failed to participate in the enquiry for the reasons best known to him. The petitioner’s apprehension that the 3[rd] respondent wasinfluencing the enquiry officer was also without any basis. All otherallegations made by the petitioner, including that the disciplinaryaction was initiated for the trade union activities of the petitioner, thatthe petitioner was harassed by the 3[rd] respondent and that themanagement had intentionally denied opportunity to the petitioner toparticipate in the enquiry have been specifically denied.

SUBMISSIONS MADE BY THE COUNSEL FOR THE PETITIONER:The contentions advanced by the learned counsel for thepetitioner may be summed up as under:

(1) Since the disciplinary enquiry was admittedly precededby a preliminary enquiry, the respondents were bound to furnish acopy of the preliminary enquiry report and the failure of therespondents to furnish the preliminary enquiry report had vitiated theentire enquiry proceedings.

(2) Since no independent witness or the account-holders orthe affected parties were examined and there was no direct evidenceagainst the petitioner, the conclusion of the respondents 1 and 2 thatall the charges against the petitioner were established was erroneousand unsustainable.

(3) The enquiry is also vitiated for violation of principles ofnatural justice for the following reasons :

(a) The report of the enquiry officer after the cross- examination of M.Ws.3 and 4 was not furnished tothe petitioner.

(b) The pre-recorded statement of M.W.2 wasmarked which was contrary to law.

(c) M.W.2 who was not cited in the list of witnesseswas examined which vitiated the enquiry.was examined which vitiated the enquiry.

(4) Since neither the enquiry officer nor the disciplinaryauthority nor the appellate authority had gone into the reasons andaffect of non-supply of preliminary enquiry report, the impugned dismissal was contrary to the orders passed by this Court in Contempt Appeal No.13 of 1998. SUBMISSIONS OF THE COUNSEL FOR THE RESPONDENTS:

Per contra, it is contended by the learned counsel for therespondents that as the charges against the petitioner were basedupon the documents collected during the investigation and not on thepreliminary investigation report as such, and moreover a full-fledgedenquiry was held after affording an opportunity to the petitioner atevery stage, the preliminary enquiry had lost its importance and themere non-supply of the preliminary enquiry report cannot be said tohave vitiated the enquiry. At any rate since the petitioner failed toshow the prejudice, if any, suffered by him for non-supply of thepreliminary enquiry report, the petitioner’s contention that thedisciplinary proceedings were vitiated for violation of principles ofnatural justice is untenable. While inviting this Court to the findingsrecorded by the enquiry officer as well as the disciplinary authority, thelearned counsel further contended that the said findings which werearrived at on proper appreciation of the evidence available on recordwarrant no interference by this Court. In support ofher submissions, the learned counsel for the respondent relied uponthe decisions in VIJAY KUMAR NIGAM v. STATE Of M.P.[[1]],NARAYANA DATTATRAYA RAMTEERTHAKHAR v. STATE OF MAHARASHTRA AND OTHERS[[2]], SUPERINTENDENT, GOVT.,T.B. SANATORIUM AND ANOTHER v. J.SRINIVASAN[[3]], PEPSUROAD TRANSPORT CORPORATION v. RAWEL SINGH[[4]],DEBOTOSH PAL CHOUDHURY v. PUNJAB NATIONAL BANK ANDOTHERS[[5]], STATE OF U.P. AND ANOTHER v. T.P.LALSRIVASTAVA[[6]], STATE OF U.P. AND OTHERS v. RAMESHCHANDRA MANGALIK[[7]], CHAIRMAN, GANGA YAMUNA GRAMINBANK AND OTHERS v. DEVI SAHAI[[8]], STATE OF U.P. v. SHEO

SHANKER LAL SRIVASTAVA AND OTHERS[[9]], APPOINTINGAUTHORITY, G.B.P.SPL.S.I. AND ANOTHER v. R.K.SINGH[[10]],SURESH PATHRELLA v. ORIENTAL BANK OF COMMERCE[[11]],U.P.STATE TEXTILE CORPORATION LTD. v. P.C. CHATURVEDIAND OTHERS[[12]]and STATE OF U.P. v. SHATRUGHAN LAL ANDANOTHER[[13]].

POINTS FOR CONSIDERATION:-

In the light of the rival contentions noticed above, the followingpoints arise for consideration:

1 . Whether the enquiry is vitiated for non-supply of (i)preliminary enquiry report and (ii) copies of all the documents reliedupon in the charge-sheet?

(2) Whether the enquiry is vitiated on any of the other groundsraised by the petitioner?raised by the petitioner?

(3) Whether the finding that the petitioner was guilty of chargesis perverse warranting interference by this Court in exercise ofjurisdiction under Article 226 of the Constitution of India?

4. Whether the penalty of dismissal from service is justified inthe facts and circumstances of the case?

Point No.1:-

(a) Non-supply of Preliminary Enquiry Report :- It is contended by the learned counsel for the petitioner that thenon-supply of the preliminary enquiry report which was the only basisfor framing the charges against the petitioner had vitiated the entireenquiry proceedings since the same had deprived the petitioner a fairand reasonable opportunity to defend his case. In support of the saidsubmission the learned counsel for the petitioner relied upon thedecisions in STATE OF U.P. v. MOHAMMED SHAREEF[[14]],KASHINATH DIXIT v. UNION OF INDIA[[15]], STATE OF U.P. v.SHATRUGHANLAL (13 supra) and STATE OF U.P. v. SAROJKUMAR SINHA[[16]].

One of the principles of natural justice is that a person against whom an action is proposed to be taken has to be given an opportunityof hearing. The law is well-settled that in departmental proceedingswhere charge-sheet is issued, the delinquent must be supplied copiesof all the documents which are proposed to be utilized against him andare indicated in the charge-sheet. Non-supply of the documents whichconstitute the whole basis of the charge-sheet results in denying aneffective opportunity to the delinquent to defend and consequently theentire enquiry proceedings would be vitiated for violation of principlesof natural justice. While reiterating the above principles, it was held inCHANDRAMA TEWARI v. UNION OF INDIA[[17]]as under:

“It is now well settled that if copies of relevantand material documents including the statement ofwitnesses recorded in the preliminary enquiry orduring investigation are not supplied to the delinquentofficer facing the enquiry and if such documents arerelied in holding the charges framed against theofficer, the enquiry would be vitiated for the violationof principles of natural justice. Similarly, if thestatement of witnesses recorded during theinvestigation of a criminal case or in the preliminaryenquiry is not supplied to the delinquent officer thatwould amount to denial of opportunity of effectivecross-examination. It is difficult to comprehendexhaustively the facts and circumstances which maylead to violation of principles of natural justice ordenial of reasonable opportunity of defence. Thisquestion must be determined on the facts andcircumstances of each case. While considering thisquestion it has to be borne in mind that a delinquentofficer is entitled to have copies of material andrelevant documents only which may include the copyof statement of witnesses recorded during theinvestigation or preliminary enquiry or the copy of anyother document which may have been relied insupport of the charges. If a document has no bearingon the charges or if it is not relied by the enquiryofficer to support the charges, or if such document ormaterial was not necessary for the cross-examinationof witnesses during the enquiry the officer cannot insist upon the supply of copies of such documents,as the absence of copy of such document will notprejudice the delinquent officer. The decision of thequestion whether a document is material or not willdepend upon the facts and circumstances of eachcase.”

In a later decision in STATE OF UP v.SHATRUGHANLAL (13 supra) it was explained as under :“Preliminary inquiry which is conductedinvariably on the back of the delinquent employeemay, often, constitute the whole basis of the charge-sheet. Before a person is, therefore, called upon tosubmit his reply to the charge-sheet, he must, on arequest made by him in that behalf, be supplied thecopies of the statements of witnesses recorded duringthe preliminary enquiry particularly if those witnessesare proposed to be examined at the departmentaltrial.”

In the instant case, the charge-sheet dated 25.06.1996contained six charges. All the charges related to the irregularities thattook place at Shalibanda Branch of the 1[st] respondent-Bank during theperiod from 07.10.1991 to 30.04.1996 during which the petitionerworked as clerk and also discharged the duties of Special Assistanttemporarily. The charge sheet contained all the details of thetransactions referring to the relevant records furnishing the respectiveaccount numbers and the names of the account holders as well as theconcerned staff members in respect of each transaction. Theallegations were specific and the details of the amounts allegedlymisappropriated were furnished together with the entries in the daybooks, ledgers, cheque numbers and etc. Even the statements of theconcerned accounts were furnished in detail. It is true that the chargesheet dated 25.06.1999 was preceded by investigation/verification ofrecords of Shalibanda Branch by M.Ws.3 and 4 and the charges wereframed on the basis of the documents collected and the irregularities observed during the investigation. However, this is not a casewhere the charge-sheet had merely referred to the report of the saidinvestigation, but the particulars of each and every document andtransaction forming basis for the irregularities alleged were furnishedin detail. A perusal of the charge sheet itself makes clear all thealleged commissions and omissions on the part of the petitionermentioning even the minute details. It is also clear that the report ofM.Ws.3 and 4 as such did not form the foundation for the charge sheet,but it was issued on the basis of the information gathered in theinvestigation. The details of all the transactions noticed from therecords during the investigation were furnished in the charge-sheetreferring to the respective documents and records and the copies ofthe said documents were also furnished to the petitionersubsequently. It is also not in dispute that except verification of therecords, M.Ws.3 and 4 did not record the statements of anyone duringinvestigation.

As held by the Supreme Court in VIJAY KUMAR NIGAM v.STATE OF M.P. (1 supra), the preliminary report is only to decide andassess whether it would be necessary to take any disciplinary actionagainst the delinquent officer and it does not form any foundation forpassing the order of dismissal against the employee. It was furtherexplained in NARAYAN DATTATRAYA RAMATEERTHAKHAR v.STATE OF MAHARASHTRA (2 supra) that the preliminary enquiryhad nothing to do with the enquiry conducted after the issue of thecharge sheet and that the preliminary enquiry is only to find outwhether disciplinary enquiry should be initiated against thedelinquent. It was also added that after full-fledged enquiry was held,the preliminary enquiry had lost its importance.

In STATE OF U.P. v. MOHD. SHARIF (14 supra) relied upon bythe petitioner, a departmental enquiry was initiated against a HeadConstable of police for his alleged misconduct of hunting a bull in theGovernment forest by taking advantage of his office and rank.

However, the charge sheet served on the delinquent did not evenmention the date and time of the alleged misconduct and even thelocation of the alleged incident was not indicated. The copies ofstatement of witnesses recorded during preliminary enquiry were notfurnished to the delinquent. Though a preliminary enquiry hadpreceded the disciplinary enquiry and during the preliminary enquirystatements of witnesses were recorded, the copies of the same werenot furnished to the petitioner at the time of the disciplinary enquiry. Inthe said facts and circumstances, it was held by the Supreme Courtthat the delinquent was denied reasonable opportunity to defendhimself at the disciplinary enquiry and therefore, the penalty ofdismissal was illegal.

In KASHINATH DIXIT v. UNION OF INDIA (15 supra) as manyas 8 charges were levelled against the delinquent who was holdingthe post of Superintendent of Police and ultimately he was dismissedfrom service. The order of dismissal was challenged on a number ofgrounds including that the enquiry was vitiated by reason of the failureto supply the statements made by the witnesses at the pre-enquirystage and that the copies of the documents sought to be used againstthe delinquent in order to establish the charges were also not madeavailable. The High Court repelled the said contention and dismissedthe writ petition. However, having found from the record that eventhough the delinquent had demanded copies of the documents andstatements in question, the disciplinary authority had turned down therequest, the Supreme Court held that the delinquent had been denieda reasonable opportunity of exonerating himself. While observing thatthe delinquent would have needed the documents and statements inorder to cross-examine the witnesses effectively with reference to thecontents of the documents, it was held that the order of dismissal wasviolative of Article 311 (2) of the Constitution of India inasmuch as thedelinquent was denied reasonable opportunity of defending himselfand the order of dismissal was on that account null and void.

In STATE OF U.P. v. SHATRUGHANLAL (13 supra) also itwas found as a fact that copies of the documents which were proposedin the charge-sheet to be produced in the departmental proceedingsas proof in support of the articles of charge were not supplied to thedelinquent officer. Having regard to the said undisputed fact, the U.P.Public Services Tribunal held that the departmental proceedings aswell as the order of removal from service were illegal and void. Thewrit petition filed by the State against the order of the Tribunal wasdismissed summarily by the High Court. The State carried the matterin appeal to the Supreme Court. While dismissing the said appeal,the Supreme Court held that since the copies of the statements,though asked for, were not supplied to the delinquent, the Tribunalwas justified in coming to the conclusion that the principles of naturaljustice were violated.

In STATE OF U.P. v. SAROJ KUMAR SINHA (16 supra) it wascontended on behalf of the State that the documents which formed thefoundation of the charge-sheet pertained to the same division in whichthe delinquent had been posted as the Executive Engineer andtherefore he being in knowledge and custody of the said documents,there was no requirement for the said documents to be supplied to him.The High Court did not accept the said contention and set aside theorder of removal observing that the State had miserably failed to giveany reasonable explanation as to why the documents had not beensupplied to the delinquent. The Supreme Court upheld the order ofHigh Court and held that non-disclosure of documents having apotential to cause prejudice to the delinquent in the enquiryproceedings would clearly amount to denial of a reasonableopportunity to submit an effective rebuttal to the charges beingenquired into against him.

As could be seen, in all the above decisions cited by thelearned counsel for the petitioner namely STATE OF U.P. v. MOHD.SHARIF (14 supra); KASHINATH DIXIT v. UNION OF INDIA

(15 supra); STATE OF U.P. v. SHATRUGHANLAL (13 supra) andSTATE OF U.P. v. SAROJ KUMAR SINHA (16 supra), a finding offact was recorded that the copies of the documents relied on in thecharge-sheet were not supplied to the delinquent officers. Havingfound that the non-supply of the documents caused prejudice to thedelinquent officers since they were denied an opportunity to effectivelyrebut the charges levelled against them, it was held by the SupremeCourt that the impugned orders of dismissal / removal being inviolation of the principles of natural justice were null and void.

However, this is not a case where the charges were levelled bymerely referring to the preliminary enquiry report. As noticed above,basing on the investigation/verification of records made by M.Ws.3 and4, the charges were framed mentioning the irregularities noticed andfurnishing all the details. Thereafter a regular enquiry was conductedby the enquiry officer in which all the persons concerned wereexamined, the relevant records/documents were marked and anopportunity was given to the petitioner to produce his evidence. Hencethe mere non-supply of the report given by M.Ws.3 and 4 has notcaused any prejudice to the petitioner’s case and therefore in myconsidered opinion the enquiry is not vitiated in any mannerwhatsoever on the said ground.

(b) Non-furnishing of the copies of the documents relied uponin the charge-sheet :- The petitioner was admittedly furnished all the documents thatwere referred to in the charge-sheet except the eight documents whichwere missing from the records of the respondent Bank. It is relevant tonote that in the charge-sheet itself it was mentioned that thosedocuments were missing and it was alleged that the said missingdocuments were suspected to have been destroyed by the petitionerhimself to suppress the fraudulent acts committed by him. Hence nomotive can be attributed to the respondents for not supplying thosedocuments and the petitioner’s allegation that the said documents

were not supplied with an intention to deny him an effectiveopportunity of hearing is unfounded. Moreover this is a case wherethe petitioner did not submit any reply to the charges levelled againsthim. He did not even deny the allegations nor pleaded that he had noaccess to the documents allegedly missing from the records of theBank. Except the eight (8) documents which were said to be missingfrom the records of the Bank, since all other documents referred to inthe charge-sheet were admittedly supplied, the petitioner could have submitted his explanation explaining the prejudice caused to him onaccount of non-availability of those eight documents. However thepetitioner did not choose to even respond to the show-cause notice inspite of several opportunities given. The petitioner could not plead orestablish any such prejudice even before this Court. Therefore, theenquiry proceedings cannot be held to be vitiated for violation ofprinciples of natural justice on the ground that the copies of the someof the documents were not furnished to the petitioner.Point No.2:- The learned counsel for the petitioner contended that since theshow-cause notice dated 7.10.1999 was issued by the disciplinaryauthority without furnishing a copy of the report of the Enquiry Officerafter cross-examination of M.Ws.3 and 4 on 30.09.1999 and 1.10.1999respectively amounted to violation of the principles of natural justice.

It is also contended that the marking of the pre-recordedstatement of M.W.2 before the enquiry officer was contrary to law sincethe said statement was admittedly recorded behind the back of thepetitioner. The learned counsel in support of the said contentionrelied upon KHARDAH AND COMPANY LTD., v. WORKMEN[[18]]andCENTRAL BANK OF INDIA v. PRAKASHCHAND JAIN[[19]].

The further contention is that the examination of M.W.2 wasimpermissible under law since he was not cited in the list of witnesses.

So far as the contention that the petitioner was not furnished acopy of the Enquiry Officer’s report after the cross-examination of M.Ws.3 and 4 is concerned, it is to be noticed that M.Ws.3 and 4 werecross-examined before the Disciplinary Authority itself as directed bythe Division Bench in Writ Appeal No.1140 of 1999. It is not in disputethat the copies of the evidence of M.Ws.3 and 4, including their cross-examination were furnished to the petitioner. Thereafter the 2[nd]respondent (Disciplinary Authority) had re-examined the whole issuein the light of the evidence of M.Ws.3 and 4 in their cross-examinationand reiterated that all the charges against the petitioner were proved. Thus there was no further report of the enquiry officer as sought to becontended by the petitioner. Therefore the petitioner’s allegation thatthe report of the Enquiry Officer after the cross-examination of M.Ws.3and 4 was not furnished to him is without any basis. It is relevant tonote that the Division Bench in W.A.No.1140 of 1999 while directingthe management to grant an opportunity to the petitioner to cross-examine M.Ws.3 and 4 made it clear that the Disciplinary Authoritywould be at liberty to permit the cross-examination either before him orbefore the Enquiry Officer. Hence the procedure followed by the 2[nd]respondent is in accordance with the judgment of the Division Benchin W.A.No.1140 of 1999.

The further contention is that the enquiry officer had committeda grave error in marking the pre-recorded statement of M.W.2 and thatthe same had vitiated the entire enquiry proceedings. In support of thesaid contention, the learned counsel relied for the petitioner relied upon KHARDAH AND COMPANY LTD., v. WORKMEN (18 supra)and CENTRAL BANK OF INDIA v. PRAKASHCHAND JAIN (19supra).

There can be no dispute about the well-settled principle that the evidence should be recorded in the presence of the delinquentwho was charged with the commission of acts constitutingmisconduct. In the instant case, the person who was working atShalibanda Branch during the relevant point of time was examined as M.W.2 before the enquiry officer, through whom MEx.2 - a letter addressed by him to the Vigilance Unit, Hyderabad during the enquiryabout the payment of Rs.10,000/- made by the petitioner on 25.2.1994was marked. It is true that he did not reiterate the contents of MEx.2 letter. However this Court fails to understand as to how the procedurefollowed by the enquiry officer amounted to marking the pre-recordedstatement of M.W.2. Even according to the petitioner, the statement ofM.W.2 was not recorded during the investigation of records of the Bankat Shalibanda Branch. Admittedly MEx.2 is only a letter addressed byM.W.2 to the Vigilance Unit, Hyderabad. Marking the said letterthrough M.W.2 is in accordance with law and therefore the petitioner’scontention is untenable.

It is true that M.W.2 (M. Madhusudhan) was not cited as awitness initially. As could be seen from the proceedings of the enquirydated 9.6.1997, the management was permitted to examine thesaid M. Madhusudhan, who was working as Cashier at therelevant point of time at Shalibanda Branch as additional witness onbehalf of the Management. It is not disputed by the petitioner that thesaid M. Madhusudhan worked at Shalibanda Branch atrelevant point of time and he was acquainted with the transactions inquestion. In the circumstances, the mere fact that he was not cited inthe list of witnesses does not preclude the Management to examinehim as a witness on their behalf with the permission of the enquiryofficer. It is clear from the proceedings of enquiry that such permissionwas granted by the enquiry officer for examination of M. Madhusudhanas additional witness. The petitioner did not raise any objection beforethe enquiry officer nor challenged the permission so granted by theenquiry officer. He did not even raise such contention inW.P.No.13983 of 1999 or Writ Appeal No.1140 of 1999. Hence he cannot now be permitted to contend that the enquiry was vitiated onthe ground that the Management had examined M.W.2 though he wasnot cited as a witness.

POINT No.3 :-

It is contended by the learned counsel for the petitioner thatthere was absolutely no evidence to establish the allegations againstthe petitioner. It is contended by the learned counsel that M.W.1 in hisevidence did not mention anything against the petitioner exceptalleging that the petitioner had temporarily misappropriated Rs.2,000/-and similarly M.W.2 had merely stated that the contents of M.Ex.2 letterwere true. It is also contended that the evidence of M.Ws.3 and 4, whoare the investigating officers are liable to be ignored since thepreliminary enquiry report was not furnished to the petitioner. Thus,according to the learned counsel for the petitioner it is a case of noevidence and therefore the findings of the 2[nd] respondent areunsustainable. In support of his contention that the findings in thedepartmental enquiry which are based on no evidence are liable to berejected as perverse, the learned counsel for the petitioner relied uponthe decisions in CENTRAL BANK OF INDIA v. PRAKASH CHANDJAIN (19 supra), KULDEEP SINGH v. COMMISSIONER OFPOLICE[[20]]and ROOP SINGH NEGI v. PUNJAB NATIONALBANK[[21]].

At the outset, it is to be noticed that M.Ws.1 and 2 who were working along with the petitioner at the relevant point of time in therespondent Bank are the crucial witnesses. M.W.1, who worked asManager of Shalibanda Branch deposed that at the time of takingcharge of the Branch, he found that the SB Head of Account did nottally for more than two years and all the documents which reflected thediscrepancies were marked through him. His evidence is supportedby M.W.2. So far as the evidence of M.Ws.3 and 4 is concerned, thepetitioner’s contention that their evidence was liable to be ignoredsince the preliminary enquiry report was not furnished to the petitionerwas already considered and rejected by a Division Bench of thisCourt in Contempt Appeal No.13 of 1998. Hence it is not open to the petitioner to re-agitate the said issue.

In the light of the evidence of M.Ws.1 to 5 and on appreciation ofthe documentary evidence available, the 2[nd] respondent recorded aclear finding that the charges against the petitioner were establishedand the said finding under no circumstances can be held to be basedon no evidence.

Such finding of fact based on evidence cannot be interferedwith by this Court in exercise of jurisdiction under Article 226 of theConstitution of India. As held in B.C. CHATURVEDI v. UNION OFINDIA[[22]]the Court/tribunal cannot interfere with the findings of factbased on evidence and substitute its own independent findings sincejudicial review is not an appeal from a decision but a review of themanner in which the decision is made and that power of judicial reviewis meant to ensure that the individual receives fair treatment and not toensure that the conclusion which the authority reaches is necessarilycorrect in the eye of the Court.

It was further held in the said decision as under :

"When an inquiry is conducted on charges ofmisconduct by a public servant, the court/tribunal isconcerned to determine whether the inquiry washeld by a competent officer or whether rules ofnatural justice are complied with. Whether thefindings or conclusions are based on someevidence, the authority entrusted with the power tohold inquiry has jurisdiction, power and authority toreach a finding of fact or conclusion. But thatfinding must be based on some evidence. Neitherthe technical rules of Evidence Act nor of proof offact or evidence as defined therein, apply todisciplinary proceeding. Adequacy of evidence orreliability of evidence cannot be permitted to becanvassed before the Court/tribunal. When theauthority accepts the evidence and the conclusionreceives support therefrom, the disciplinaryauthority is entitled to hold that the delinquentofficer is guilty of the charge. The disciplinaryauthority is the sole judge of facts. Where appeal is presented, the appellate authority has co-extensivepower to re-appreciate the evidence or the natureof punishment. The Court/tribunal in its power ofjudicial review does not act as appellate authorityto re-appreciate the evidence and to arrive at itsown independent findings on the evidence. TheCourt/tribunal may interfere where the authorityheld that the proceedings against the delinquentofficer in a manner inconsistent with the rules ofnatural justice or in violation of statutory rulesprescribing the mode of inquiry or where theconclusion or finding reached by the disciplinaryauthority is based on no evidence. If the conclusionor finding be such as no reasonable person wouldhave ever reached, the Court/tribunal may interferewith the conclusion or the finding and mould therelief so as to make it appropriate to the facts of thatcase. "

Having regard to the above settled legal position, the findingrecorded by the 2[nd] respondent that the petitioner was guilty ofcharges, as confirmed on appeal by the 1[st] respondent, cannot beheld to be perverse. The petitioner was afforded ample opportunity atevery stage to put forth his case and to cross-examine the witnesses ofmanagement. The findings recorded by the 2[nd] respondent are basedupon the evidence properly received in a validly conducted enquiry. Such findings of fact warrant no interference by this Court.

POINT No.4 :-

In view of the gravity of the charges established against thepetitioner, this Court is satisfied that the penalty of dismissal fromservice is justified. As held in V. RAMANA v. A.P. SRTC[[23]], the lawis well-settled that the Court should not interfere with theadministrator’s decision unless it was illogical or suffered fromprocedural impropriety or was shocking to the conscience of the Courtin the sense that it was in defiance of logic or moral standards.

The penalty of dismissal which in the facts and circumstancesof the present case cannot be held to be shockingly disproportionatewarrants no interference by this Court in exercise of the powerof judicial review.

For the aforesaid reasons, the Writ Petition is devoid of anymerit and the same is accordingly dismissed. No costs.

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G. ROHINI, J.

Dt. 29.12.2010Note:- LR copy to be marked. (B/O) gbs [1](1996) 11 SCC 599[2](1997) 1 SCC 299[3](1998) 8 SCC 572[4](2008) 4 SCC 42[5](2002) 8 SCC 68[6](1996) 10 SCC 702[7](2002) 3 SCC 443[8](2009) 11 SCC 266[9](2006) 3 SCC 276[10](2005) 10 SCC 131[11](2006) 10 SCC 572[12](2005) 8 SCC 211[13](1998) 6 SCC 651[14]AIR 1982 SC 937[15]AIR 1986 SC 2118[16]2010 (2) SCC 772[17]AIR 1988 SC 117[18]AIR 1964 SC 719[19]AIR 1969 SC 983[20](1999) 2 SCC 10[21](2009) 2 SCC 570[22]AIR 1996 SC 484[23](2005) 7 SCC 338