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2009 DIGILAW 110 (CAL)

State Bank of India v. Shyamal Kumar Mukherjee

2009-02-17

MANIK MOHAN SARKAR, PRATAP KUMAR RAY

body2009
Judgment : PRATAP KUMAR RAY, J. (1) Challenging the interim order dated 1st August, 2003 passed in writ application no. 11117 (W) of 2003 whereby and whereunder learned trial Judge restrained the respondents from proceeding further with the disciplinary proceeding without supplying the writ petitioner the copies of the documents as prayed for, this appeal was preferred by State Bank of India and Ors. The interim order against which this appeal arose reads such: "Let affidavit-in-opposition be filed by four weeks reply thereto, if any, be filed within two weeks thereafter and the matter will appear eight weeks hence under the heading Hearing. The respondent authorities are directed to release the subsistence allowance of the petitioner month by month in accordance with law. There will be a further interim order restraining the respondents from proceeding with the disciplinary proceeding without allowing the petitioner the copies of the documents as prayed for by the petitioner. The proceeding may continue after giving copies of the documents as directed above and the authorities are restrained from passing any final order in respect of the disciplinary proceeding against the petitioner until further orders. Let the Supplementary affidavit and the affidavit of service be kept with the record and the Supplementary Affidavit be treated as part of the writ petition. Urgent xerox certified copy of the order, if applied for, same be supplied expeditiously." (2) By the order dated 26th August, 2004, the Division Bench (Coram: Honble Justice Altamas Kabir (as His Lordship then was) and Honble Justice Asit Kumar Bisi (as His Lordship then was)) directed the appellant-bank to pay the subsistence allowance and on consent of the parties passed a direction for hearing of the writ application along with the appeal, by considering the application for recalling of order dated 17th May, 2004 as filed in the appeal. The order dated 26th August, 2004, reads such: "This application has been made in the appeal for recalling and/or modification of the order passed by us on 17th May, 2004 whereby we had, inter alia, directed the appellant Bank, pending hearing of the stay application, to pay to the writ petitioner/respondent his subsistence allowance, which is said to be due and payable since 17th July, 2002. We had directed that for the present payment of such subsistence allowance was to be made from July, 2002 along with the current dues. We had directed that for the present payment of such subsistence allowance was to be made from July, 2002 along with the current dues. Since this application has been made for verification and/or recalling the said order, admittedly such payments have not been made. Appearing in support of the said application, Mr. Joydeep Kar, learned Advocate, submitted that in the writ petition itself, the writ petitioner had prayed for subsistence allowance only from the month of October, 2002 and hence, the writ petitioner could not be given the benefit of payment of such allowance from a prior date. Mr. Kars submission, in this regard, is not acceptable to us on account of the fact that the learned Single Judge had by his order dated 17th July, 2002 in W.P. No. 18255 (W) of 99 directed that the petitioner would be under deemed suspension, which automatically would entitle him to payment of subsistence allowance. We had, accordingly, directed payment of subsistence allowance from the month of July 2002 and the prayer, as made in the writ petition, relates to the other directions given by the learned Single Judge that in the event the disciplinary proceeding was not completed within the stipulated period, the petitioner would be automatically entitled to subsistence allowance at the rate of 50% of the last pay drawn by him, from the date of expiry of the period till the proceeding was concluded. Prayer (c) of the writ petition relates to the subsequent direction given by the learned Single Judge. We are, accordingly, disinclined to modify and/or recall our order of 17th May, 2004 to the said extent and the appellant-Bank is directed to comply with the said order regarding payment of subsistence allowance from the month of July, 2002, within an extended period of two weeks from date. The other portion of Mr. Kars submission regarding supply of the documents, as prayed for by the writ petitioner, will be considered at the time of hearing of the appeal. On consent of the parties, let the writ application itself be taken up for hearing along with the appeal and the stay application on the next date. Let the contempt application stand over for consideration for a period of three weeks for the present. Let these matters be taken up for consideration next Tuesday (31.08.04). On consent of the parties, let the writ application itself be taken up for hearing along with the appeal and the stay application on the next date. Let the contempt application stand over for consideration for a period of three weeks for the present. Let these matters be taken up for consideration next Tuesday (31.08.04). Having regard to the nature of the order passed, let a xerox plain copy of this order, duly counter signed by the Assistant Registrar (Court), be made available to the learned advocates for both the parties, on their usual undertakings." (3) In pursuance thereof, parties filed their respective affidavits of the writ application and stay application. Paper Books filed annexing all papers. (4) A short question involved in the writ application and the connected appeal as to whether the documents in a departmental proceeding, which are not relied upon by the disciplinary authority, delinquent employee would be entitled to pray for supply those documents and thereby as a matter of right would be entitled to pray for stay of departmental proceeding till the documents are not supplied. The said point is not at all res-integra. It is a settled legal position in view of various judgments of Apex Court that (1) only the documents in a departmental proceeding as to be relied upon by the disciplinary authority, those must be supplied to the delinquent, failing which, punishment if any, is imposed could be assailable under judicial review to quash it, if the delinquent satisfies the test of prejudice theory by sufficient ground that non-service of documents caused prejudice to his defence. (2) That departmental proceeding is not a civil proceeding alike a civil suit with all trappings of the procedural law as is followed therein but it is simply an adjudication of misconduct by hearing the delinquent on the charges as to be framed and the documents as to be relied upon and the documents, which would not be relied upon, as a matter of right cannot be asked for by the delinquent and non-supply of documents cannot be a ground to stop the departmental proceeding. (3) that subsequent to department proceeding if punishment is imposed, non-supply of documents as relied upon, under the anvil of prejudice theory could be set aside and quashed. (3) that subsequent to department proceeding if punishment is imposed, non-supply of documents as relied upon, under the anvil of prejudice theory could be set aside and quashed. Reliance is placed to the judgments passed in the cases Chandrama Tewari vs. Union of India, reported in 1987 (Supp) SCC 518, State Bank of Patiala and Ors., vs. S.K. Sharma, reported in AIR 1996 SC 1669 , State of Tamil Nadu vs. Thiru K.V. Perumal and Ors., reported in AIR 1996 SC 2474 , m.c. Mehta vs. Union of India and Ors., reported in AIR 1999 SC 2583 , Aligarh Muslim University and Ors. Vs. Mansoor Ali Khan, reported in AIR 2000 SC 2783 , State of U.P. vs. Harendra Arora and Anr., reported in AIR 2001 SC 2319 , U.P. State Textile Corpn. Ltd. vs. P.C. Chaturvedi and Ors., reported in (2005) 8 SCC 211 , Syndicate Bank and Ors. Vs. Venkatesh Gururao Kurati, reported in (2006) 3 SCC 150 and Pandit D. Aher vs. State of Maharashtra, reported in (2007) 1 SCC 445 . This case has a checkered history, which required to be highlighted. Long back on 24th February, 1995, the writ petitioner, a Clerk-cum-Typist of New Alipore Branch of State Bank of India was placed under suspension and subsequently charge of misconduct was framed on 20th May, 1996 on the allegation of fraudulent credit of Rs. 42,790/-in State Bank Account no. NC/9828 maintained by the writ petitioner and one Smt. Moulastree Mukherjee and withdrawal of the same. The charge of the departmental proceeding reads such: "CHARGE SHEET Please show cause why disciplinary action should not be taken against you for the following acts, alleged to have been committed by your, while you were posted and functioning as Clerk-Typist at our New Alipore Branch: i) That, in terms of Branch Letter No. PBD/29-65 dt. 30-3-91, you were authorized to encash altogether 7 (seven) National Savings Certificates for Rs. 5,000/- aggregating Rs. 35,000/-, all favouring Stm. S.N. Mukherjee and Smit. Nilima Mukherjee issued from Sarsuna Post Office, Calcutta 700 061, which were held as security for an overdraft account in the name of Shri S.N. Mukherjee and outstanding in the account stands at that time for Rs. 50,483.33. But subsequently, it was observed that your deposited only one Cheque No. 076428 for Rs. 43,400/, drawn on Alipore Branch. Nilima Mukherjee issued from Sarsuna Post Office, Calcutta 700 061, which were held as security for an overdraft account in the name of Shri S.N. Mukherjee and outstanding in the account stands at that time for Rs. 50,483.33. But subsequently, it was observed that your deposited only one Cheque No. 076428 for Rs. 43,400/, drawn on Alipore Branch. The cheque was presented in clearing by New Alipore Branch on 23-05-91 for credit to Current Account No. CA/P 285. The outstanding in the overdraft account which should have been fully liquidated from the proceeds as the same should be more than Rs. 70,000/-, but consequent upon deposit of only Rs. 43,400/-, the said account is showing outstanding of Rs. 10,384.59, which has become doubtful of recovery. You have, therefore, managed to divert another cheque elsewhere and led the Bank to a financial loss and not found acted with desired honesty and integrity in safeguarding the interest of the Bank as also to that of customer. ii) By virtue of your having State Bank Cards, you have encashed altogether 569 cheques between 21-09-89 and 28-04-94 (from 2109-89 to 15-10-89, each cheque for Rs. 500/- and thereafter, you managed to get high value cheque Cards for Rs. 2,500/- each) for an aggregate amount of Rs. 8,00,650/-. The Branch being an evening one, you encashed almost all the cheques from local branches, such as, N.S. Road, Kalighat, Bhowanipore, Southern Avenue, etc. without keeping balance in your C.A. No. P/410. It has also been observed that the cheques were accounted for at the Branch through Schedule No. 6 of Branch Clearing General Account; you encashed further cheques from these branches and deposited cash in the account No. NC/9828, wherefrom funds transferred to your Current A/c. No. P/410 to honour the cheques drawn under State Bank Card. Thus, you have enjoyed funds continuously, encashed cheque without keeping balance and also in some days, deferred presentation of cheques through Schedule No. 6 at the Branch by manipulation for want of funds in the account, which you managed subsequently by encashing further cheques from neighbouring branches. Thus, you have enjoyed funds continuously, encashed cheque without keeping balance and also in some days, deferred presentation of cheques through Schedule No. 6 at the Branch by manipulation for want of funds in the account, which you managed subsequently by encashing further cheques from neighbouring branches. One list, illustrative but not exhaustive is given below showing how, with your malafide motive you used to encash cheques under State Bank Card system on different dates from different local Branches: iii) You opened a Joint S.B. Account No. NC/9828 with Smt. Moulishree Mukherjee on 13.3.91 (Smt. Mukherjee declared by you as your sister-in-law) and since then, you deposited funds mostly in cash in the said account on different dates aggregating approx Rs. 7.50 lacs and although it is a Joint S.B. A/c., all withdrawals were made by you alone by cheques/withdrawal forms. Since Smt. Mukherjee is a housewife (as her husband is a SBI Officer and has not declared his wife of being employed or having regular source of earning), the entire dealings in the account represent transactions of commercial nature which you have not intimated to your employer. By your above acts, you have, by cancealing the truth, managed to open the above S.B. A/c. with your calculated intention of depriving the Bank from its regular earnings by way of exchanges on DRRtransactions against commercial cheques under the camouflage of "Staff Account". iv) You have brought Shri K.G. Ravindran of P-23, Darga Road, Calcutta 700 017 in the Bank, introduced him for a S.B. A/c. No. 9529 opened on 15.6.90, who is a partner of M/s. Trade Vista of 8/1/C. Diamond Harbour Road, Calcutta 700 027 and influenced the Branch Manager in getting one loan for Rs. 90,000/- under Big Buy scheme for purchase of a motor car. The amount has become a loss asset of the Bank with outstanding of Rs. 1,92,280.94. After opening of S.B. A/c. on 15.6.90, you got the documents of Big Buy loan executed by Shri Ravindran on the same day, knowing fully well that the loan was not sanctioned (which was sanctioned by the Branch on 16.6.90 and the sanction was formally advised to Shri Ravindran by the Branch on 20.6.90). Therefore, by your deliberately getting the documents executed by the borrower prior to the date of sanction, you have helped the borrower to disown the liability and the Banks money of around Rs. Therefore, by your deliberately getting the documents executed by the borrower prior to the date of sanction, you have helped the borrower to disown the liability and the Banks money of around Rs. 1,92,280.94 has become completely irrecoverable. By your above action, indirectly you became a party in causing damage/loss to the Bank. v) You had been doing commercial transactions since long with Shri S.K. Ravindran and Shri K.G. Surindran, the partners of M/s. Trade Vista, a partnership firm doing/attempting to commit all sorts of mischief with our various Branches, such as, Mominpur, Tollygunge Circular Road, Federal Bank, Behala, etc. and you are directly helping them in this exercise. From your above chain of actin, it is found that you have not only helped one fraudulent firm in causing losses to the Bank directly or indirectly but also you have been found involved with such mischievious group and thereby violated your service condition as per different Awards/Agreement. vi) Taking advantage of working in DDRR/Bankers Cheque section, you obtained payment through DDRR account against cheque Nos. 253550 and 253543, both favouring Smt. Moulishree Mukherjee, drawn on Federal Bank, Behala Branch for Rs. 16,450/- and Rs. 14,870/- respectively (aggregating Rs. 31,320/-) by credit to your Joint S.B. Account No. NC/9828 maintained with the payee and withdrew Rs. 30,000/-on the same day. The instruments were returned on 31.3.94. Even in the absence of specific instructions of the Paying Banker (as the drawer had no balance in the account), you presented these two cheques again in the clearing as on the date of returning the cheques, your Joint S.B. A/c. was showing a balance of Only Rs. 148.96, which were bounced again on 5.4.94. Thus, knowing fully well that the drawer of the cheques have no fund in their account, you had accommodated them for an unauthorized overdraft, which is not only an instance of your insubordinating towards the Branch management but also you have indulged yourself directly in getting unauthorized accommodation to a fraudulent firm. vii) On 5.4.94, being totally aware that a debit of Rs. 36,320/-would be raised in your Joint S.B.A/c. No. NC/9828, out of your above calculated malafide transactions (i.e. return of the 2 cheques as specified in (vi) above), you obtained another cheque No. 253557 for Rs. vii) On 5.4.94, being totally aware that a debit of Rs. 36,320/-would be raised in your Joint S.B.A/c. No. NC/9828, out of your above calculated malafide transactions (i.e. return of the 2 cheques as specified in (vi) above), you obtained another cheque No. 253557 for Rs. 42,790/- from the same drawer and drawn on the same bank [as per (vi) above] favouring Smt. M. Mukherjee and putting through the same cheque through DDRR A/c., you credited the proceeds in the Joint S.B. A/c. just to honour the previous 2 (two) fraudulent cheques, as you withdraw the almost entire money from the account on 5.4.94 and 6.4.94. On 11.4.94, against the Branchs measures to exercise control over DDRR account, it was observed that out of 33 cheques put through the account on 5.4.94 (mostly Dividend Warrants), the only cheque which was put through by you on 5.4.94, i.e., Cheque No. 253557 for Rs. 42,790/-is outstanding in the account. Since you were working in the DDRR section, the fact that the payment of the Cheque No. 253557 for Rs. 42,790/- was not received through clearing, it was your duty to look about the whereabouts of the instrument, especially when the funds availed of by you and the payment was not received by the Bank, and finally, the cheque was not presented through clearing. Thus, you have not only established a doubt before the Bank regarding your honesty and integrity but also you have been found grossly negligent in the discharge of your duties as a Clerk having 20 years of service seniority. viii) While working in DDRr section, in almost all cheques fovouring Smt. Moulishree Mukherjee, which were purchased by you and availed of the staff cacility while encashing such chdques through DDRR A/c., writing the word "Staff" against the payee, when she is not at all a staff of the Bank, despite the fact that there were no orders of authorized officials of the Branch in negotiating the cheques "At Par". Thus, you have not only furnished wrong/false information and misguided them but you became a direct party in losing "exchange" to the Branch by way of income leakages. Thus, you have not only furnished wrong/false information and misguided them but you became a direct party in losing "exchange" to the Branch by way of income leakages. ix) It is observed from Branch records that you received the payment of the following cheques, by putting the same through DDRR A/c. and crediting the proceeds to your Joint S.B. Account No. NC/9828 on 21.1.94 and on 25.1.94 and the entire amount was withdrawn by you from the above account establishing your involvement in commercial transactions as a Bank staff and for which you have not taken any prior permission from the Branch: Sl No. Cheque No. Amount Drawn on Payee 1. 453092 Rs. 18,300/-Allahabad Bank Smt. Moulishree Mukherjee 2. 265199 Rs. 6,640/-Citi Bank -do 3. 265200 Rs. 8,235/- -do- do 2. By your above acts, which are unbecoming of a Bank employee and, therefore, prejudicial to the interest of the Bank, you have been found prima facie responsible for having committed "Gross Misconduct" as defined in paragraph 521(4)(a)(d)(e) and (j) of the Sastry Award, the provision of which have been retained by the Desai Tribunal in their Award. 3. The above charges, if proved, would attract the provision of Paragraph 521(5) of the Sastry Award, the provisions of which have also been retained by the Desai Tribunal in their Award. 4. Your reply to the above charges should reach the Asstt. General Manager, State Bank of India, New Alipore Branch within 10 days from the date of receipt hereof, failing which it will be construed that you have no defence to offer and the Bank will be free to take such action against you, as it will deem fit and proper without making further reference to you. In that event, the entire responsibility shall devolve on you. Please acknowledge receipt on the duplicate of this letter and hand it over to your Asstt. General Manager for our necessary action. Yours faithfully, Sd/Disciplinary Authority (Asstt. General Manager, Region-I). (5) Enquiry proceeding concluded. Writ petitioner submitted reply of the said charge-sheet promptly. On 20th March, 1999, disciplinary authority passed punishment discharging the writ petitioner from service, which became the subject matter of challenge in the writ application being W.P. No. 18255 (W) of 1999, and it was allowed by the order dated 17th July, 2002 by quashing the dismissal order by directing de novo enquiry. On 20th March, 1999, disciplinary authority passed punishment discharging the writ petitioner from service, which became the subject matter of challenge in the writ application being W.P. No. 18255 (W) of 1999, and it was allowed by the order dated 17th July, 2002 by quashing the dismissal order by directing de novo enquiry. The order dated 17th July, 2002, reads such: "This matter was time to time heard by me. In course of hearing I felt that this matter requires reconsideration at the higher level of the Bank. Accordingly, I granted adjournment. Instruction has been received by Mr. Kundu, learned counsel appearing for the Bank. Upon hearing Mr. J.K. Mitra, learned counsel appearing for the petitioner and Mr. Dilip Kumar Kundu, learned counsel appearing for the Bank I feel that the interest of justice will be subserved if I direct de novo enquiry to be held by the Bank strictly in accordance with the Service Rules. The order of dismissal and the enquiry report are quashed and set aside. The disciplinary authority would start the proceeding de novo from the stage of submission of the reply by the delinquent after appointing an Enquiry Officer for the said purpose. Needness to say that the petitioner would be entitled to engage a "friend" of his choice strictly in accordance with the Service Rules. The petitioner would also be entitled to apply to the Bank for having legal assistance and the Bank authority must dispose of the said application at an early date. The disciplinary authority could complete the proceeding and pass the final order within a period of 12 weeks from date. The application for appointment of "friend" and/or having legal assistance must be made in course of the day and the same must be disposed of by the Bank within a period of one week thereafter. The petitioner would be under deemed suspension. The question of back-wages as also the subsistence allowances would also be decided by the disciplinary authority while passing the final order. In case the proceeding is not completed within the stipulated period, the petitioner would be automatically entitled to the subsistence allowances at the rate of 50% of his last pay drawn from the date of expiry of the stipulated period till the proceeding is over. The petitioner will also be at liberty to file re-joinder to his reply within a week from date. The petitioner will also be at liberty to file re-joinder to his reply within a week from date. I have not gone into the merits of the matter in detail. Hence the authority would be free to decide all questions which are urged including those which have been taken in the writ petition. The petitioner is present in court. He undertakes before this court that he would co-operate with the disciplinary authority in the matter of conduction, the proceeding. The writ petition is disposed of. There will be no order as to costs. Urgent xerox certified copy of this order, if applied for, be supplied to the parties expeditiously." (6) An appeal was preferred unsuccessfully by the writ petitioner against the said order since it was dismissed for non-prosecution. By the said order dated 17th July, 2002, Court directed completion of hearing by specified period. But it was not completed for different reasons, namely, taking time by the delinquent and a dispute raised for supply of 13 documents as was submitted on 7th October, 2002, for the first time before the Enquiry Officer. The 13 documents as prayed for by delinquent are to this effect: "1) Banks sanctioned letter issued to Shri S. N. Mukherjee for granting overdraft against pledge of the NS certificate face value Rs.35,000/on C/A P 285. 2) C/A statements of Shri S. N. Mukherjee and Smt. N. Mukherjee for dated 30.3.1991 and 20.5.1996 and statements of deposit thereafter. 3) Banks usual commission vouchers realised from S.B A/c No.S/91 for excess issue of Bank card cheques. 4) Opening ledger sheet of Shri K. G. Ravindran A/c No.C/9529 5) A/c. opening form of the said a/c. 6) Copy of proforma invoice issued from Machine Techno Sales Ltd. for Maruti Omni Van submitted by Shri K. G. Ravindran. 7) Copies of the documents of other applications sanctioned under Big Buy Scheme during the period of my dealing as clerk for the job at least in respect of 3 to 4 cases on different dates. 8) Copy of letter of complain made to D.A of the charges as shown in the charge sheet by the initial authority. 9) Ledger sheet of NC 9828 after deposits made 25th April 1994 uptodate. 10) D.D.R.R. voucher Dr. and Cr. (General Voucher) for transaction of 42790-/ dt. 5.4.1994. 8) Copy of letter of complain made to D.A of the charges as shown in the charge sheet by the initial authority. 9) Ledger sheet of NC 9828 after deposits made 25th April 1994 uptodate. 10) D.D.R.R. voucher Dr. and Cr. (General Voucher) for transaction of 42790-/ dt. 5.4.1994. 11) Book of the schedule no.6 as mentioned in charge sheet charge no.II 12) Book of the weekly and monthly O/S. DDRR The DDRR a/c return prepared by H.C for controlling office from 1992 to 1994. 13) Further I should be allowed to inspect the DDRR Register at the time of hearing." (7) As the time expired to complete the departmental proceeding, an application was filed by the appellant-bank seeking extension of time to complete the departmental proceeding and on 29th April, 2003 in the said writ application time was extended. The order of 29th April, 2003 reads such: "This is an application for extension of time to complete the disciplinary proceeding against the writ petitioner. Upon hearing the rival contentions of the parties, I pass the order in terms of prayer (a) of the application. The respondent authority is, however, directed to furnish copies of the documents as asked by the petitioner at the earliest opportunity. The application being C.A.N. No. 2142 of 2003 is disposed of accordingly." (8) So far as the supply of the documents as asked for on 26th May, 2003, enquiry authority requested the Manager of the bank to supply it as would be available. On 28th May, 2003, disciplinary authority informed the writ petitioner that no further documents could be provided. On 30th May, 2003, enquiry proceedings completed. An enquiry report was served, which has been replied by the writ petitioner and matter is now at the stage of passing the final order by the disciplinary authority on taking note of enquiry report submitted by the Enquiry Officer and the reply thereof, as has been filed by the delinquent writ petitioner. However, the disciplinary authority had informed the writ petitioner that since a point was taken in the reply that some documents out of said 13 documents as asked for were not supplied, the delinquent should satisfy the disciplinary authority whether non-supply of those had caused any prejudice to him since the bank did not rely upon those documents in departmental proceeding. No reply has been given on that point detailing how the delinquent was prejudiced. (9) In course of hearing, it has been submitted frankly by the learned advocate of the writ petitioner-respondent that out of 13 documents as sought for, the bank has supplied some documents. A chart has been filed to that effect annexing in the written notes by the writ petitioner-respondent, which reads such: Documents asked for Relevancy with Documents Documents offered Charge received by letter dt.15.7.2004 i) Banks sanctioned letter issued 1 Not Bank sanctioned to Shri S.N. Mukherjee for gran-received letters issued to Sri ting overdraft against pledge of S.N. Mukherjee for the NS Certificate face value Rs. Granting overdraft 35,000/-on Current a/c.P285. against NSCs valued Rs. 35,000/-. ii) Current a/c statements of Shri 1 Partial copy Statement for the dates. S.N. Mukherjee and Smt. N. MukherJee dated 30.3.1991 and 20.5.1996 period from January 1996 to 13.6.1996. And statements of deposit thereafter iii) Banks usual commission vouchers realized from S.B. A/c. No. S/91 for excess issue of Bank card Cheques. 2 Not received Statement of S.B. only partial Account No.S/91 for statement of the period from 3.4. A/c. No.S/91 1991 to 22.3.1993. received. iv) Opening ledger sheet of Shri K. G. Ravindran A/c. No.C/9529 4 Not received Opening Ledger Sheet of Sri K.G. Ravindran. v) A/c. opening form of the said a/c. 4 Not received Account opening form of S.B. Account No.C-9529. vi) Copy of proforma invoice issued from machine Techno Sales Ltd. 4 Received for Maruti Omni Van submitted by Shri K.G. Ravindran. vii) Copies of the documents of other applications sanctioned under Big. Buy scheme during the period of my dealing as clerk for the job at least in respect of 3 to 4cases on different 4 Partial docu- Not offered remaiments recei- ning partial docu- ved. ments. viii) Copy of the letter of complain 1,2,3,4,5,6,7,8 One letter not offered remain made to D.A. of the charges as and9 regarding ing complaint letters shown in the charge sheet by the charge no.2 initial authority. was received but complai nant was not present for cross exami nation Com plaint letter for charge No. 1,3,4,5,6,7, 8 and 9 not received. ix) Ledger Sheet of NC 9829 after 7 Received -deposits made 25th April 1994 uptodate. x) D.D.R.R. voucher Dr. and Cr. was received but complai nant was not present for cross exami nation Com plaint letter for charge No. 1,3,4,5,6,7, 8 and 9 not received. ix) Ledger Sheet of NC 9829 after 7 Received -deposits made 25th April 1994 uptodate. x) D.D.R.R. voucher Dr. and Cr. (Gen 6 and 7 Received eral Voucher) for transaction of 42790/-dated 5.4.1994 xi) Bank of the schedule no.6 as 2 Not received Entries in Book of mentioned in charge sheet charge Schedule No.6 No.II. from 6.1.1993 to Office from 1992 to 1994. 2.2.1993. xii) Book of the weekly and monthly 6 and 7 Not received Not offered O/S. DDRR the DDRR a/c. return Prepared by H.C. for controlling xiii) Inspection of DDRR Register 3,6,7 and 8 Partial vouchers Commission and relating to DD Exchange vouch- RR a/c. recei-ers relating to DD Ved. RR a/c. during 1992 to 1994." In the letter dated 19th October, 2002, the delinquent admitted supply of some documents out of 13 documents as prayed for. The letter reads such: " From: S. K. Mukherjee P32/1, Block H New Alipore, Kolkata-53 Sri S. S. Mondal, Enquiry Officer and Chief Manager (CSC) 19.10.2002 State Bank of India, Region II, Zonal Office, 11 and 13, Shakespeare Sarani, Kolkata-700 071 Through Asst. General Manager, State Bank of India New Alipore Branch, Kolkata-53 Dear Sir, With reference to your letter No.EO/23 dated 8.10.2002, addressed to the Assistant General Manager, SBI, New Alipore Branch and the copy of the said letter given to me to make prior appointment with the AGM, New Alipore Branch to collect the copies of the documents as prayed for, during the course of hearing held on 7.10.2002. On 9.10.2002 I have been asked by the AGM, New Alipore Branch to meet him on 16th Oct. Accordingly I visited on 16th, 17th and 18th to get the copies of the documents. On 18th I have received only the following documents out of the 13 documents as listed in the annexure of Defence Documents. 1) Item No.2: Statement received upto 1995 further statement upto 1996 not yet received. 2) Item No.6: Received 3) Item NO.8: For letter of complain I have received the same copy which is handed over to me as P. Exhibit No.18 on 4.10.02 4) Item No.9: Received 5) Item No.10:Received For rest of the items I have been again asked to come on 23.10.2002. 2) Item No.6: Received 3) Item NO.8: For letter of complain I have received the same copy which is handed over to me as P. Exhibit No.18 on 4.10.02 4) Item No.9: Received 5) Item No.10:Received For rest of the items I have been again asked to come on 23.10.2002. I, therefore, request you to kindly persue the matter with the Branch to enable me to get the copies of the documents as early as possible. Thanking you, Yours faithfully, Sd/ S. K. Mukherjee(CSE)" (10) The appellant has vehemently opposed the maintainability of the writ application on the ground that there was no violation of any statutory provision and/or violation of fundamental rights, which are the only grounds for judicial review. It has been further contended that having regard to the settled legal position that delinquent as per his choice cannot ask for any document unless those documents are relied upon by the disciplinary authority. It has been submitted further that disciplinary authority is required to prove the charge of misconduct against the delinquent. It is further contended that only those documents, which are relied upon, if not supplied, punishment if any is imposed, that to be looked into differently to quash it subject to fulfillment of prejudice theory. (11) The respondent-writ petitioner, however, has opposed the appeal and the maintainability question of writ application by contending, inter alia, that non-supply of the documents has caused prejudice to set up his defence properly. (12) Having regard to the judgments as referred to earlier it is a settled legal proposition of law that documents, which are not relied upon by the prosecution, namely, the disciplinary authority, delinquent is not entitled to claim it as a matter of right to stop the process of departmental proceeding. It is also a settled legal position that only those documents as to be relied upon are required to be furnished to the delinquent and failing to do that, the punishment as to be imposed may be assailable under the anvil of judicial review, in the event, the delinquent succeeds that he was prejudiced for such non-supply of documents. It is a settled legal position further that natural justice principle is contoured and limited by the prejudice theory. It is a settled legal position further that natural justice principle is contoured and limited by the prejudice theory. Reliance may be placed to the judgment passed in the case Haryana Financial Corporation vs. Kailash Chandra Ahuja, reported in (2008) 9 SCC 31 , wherein the Court held that prejudice is required to be proved. The evolve of said theory could be traced from the judgments passed in the cases K.L. Tripathi vs. State Bank of India and Ors., reported in (1984) 1 SCC 43 , M.D., CIL vs. B. Karunakar, reported in (1993) 4 SCC 727 , State Bank of Patiala vs. S.K. Sharma, reported in (1996) 3 SCC 364 , Rajendra Singh vs. State of M.P., reported in (1996) 5 SCC 460 , Ranjit Kr. De Chowdhury vs. State of West Bengal and Ors., reported in 1997 WBLR (Cal) 235. (13) It appears from the records that the delinquent was charge-sheeted long back in 1996 and he is getting subsistence allowance regularly. Hence, it appears that for last 12 years, the delinquent-writ petitioner has been successful to prolong the departmental proceeding. Initially, he moved a writ application, which was allowed by directing de novo enquiry and when such de novo enquiry started, he intended to stop the departmental proceeding on the plea of non-supply of some documents, which practically never was relied upon in the list of documents as submitted in the charge-sheet. Furthermore, at the present moment many documents have already been supplied and writ petitioner-delinquent even failed to satisfy before us that how he would be prejudiced for such non-supply of the documents if the final order is passed by the disciplinary authority on hearing his reply of the enquiry report and the second show-cause notice. (14) Furthermore, on scrutiny of the documents as asked for and the charge of departmental proceeding, it appears that the document no.1 was delivered, which relates to charge no.1, document no.2 relates to charge no.1 and it has been partially supplied, document no.2 relates to charge no.2, document no.4 and 5 relates to charge no.4, document no.6 relates to charge no.4, which was served. Document no.7 relates to charge no.4, which was partially supplied. Document no.8, 9 and 10 were supplied and document no.9 relates to charge no.6, 7 and 8. Document no.11 relates to charge no.2, document no. 12 also relates to charge no. Document no.7 relates to charge no.4, which was partially supplied. Document no.8, 9 and 10 were supplied and document no.9 relates to charge no.6, 7 and 8. Document no.11 relates to charge no.2, document no. 12 also relates to charge no. 6 and 7 and document no. 13 is not a document but seeking an inspection of demand draft receipt requisition. The bank has not relied upon those documents to prove the charge. Furthermore, charge no. 5 and 9 are concerned no document asked for and there is no grievance against the proceeding under charge no. 5 and 9. The delinquent also failed to satisfy the Court that how he would be prejudiced if those documents, which are not relied upon, but charge could be proved by other documents as supplied to him. (15) Considering the gravity of the issue that a departmental proceeding is being prolonged without any valid reason and having regard to the legal position that the delinquent has no right even to ask for any documents as per his choice, which are not relied upon by the disciplinary authority to conclude the departmental proceeding, there was no breach of any legal right of the writ petitioner to move the writ application in the High Court at Calcutta. It is a settled legal position that writ application is maintainable and particularly writ of mandamus could be issued when an authority under Article 12 of the Constitution of India and/or a public authority fails to discharge its statutory duty and/or constitutional function encroaching upon the right of the writ petitioner. To decide a writ, the basic ingredients are existence of the right of the writ petitioner on the issue in question and non-performance of the duty by the respondents. Reliance is placed to the judgment passed in the cases Manosubrata Jain vs. State of Haryana, reported in AIR 1977 SC 276 , State of Kerala vs. A. Lakshmikutty and Ors., reported in AIR 1987 SC 331 , Kalyan Singh Sardar Singh vs. State of Uttar Pradesh, reported in AIR 1962 SC 1183 , a judgment of Constitution Bench, Director of Settlements A.P. and Ors. Vs. M.R. Apparao and Anr., reported in (2002) 4 SCC 638 and Vinoy Kumar vs. State of U.P. and Ors., reported in (2001) 4 SCC 734 . Vs. M.R. Apparao and Anr., reported in (2002) 4 SCC 638 and Vinoy Kumar vs. State of U.P. and Ors., reported in (2001) 4 SCC 734 . (16) In the instant case it appears that writ petitioners prayed for writ of mandamus with other prayers in the following nature: " a) A Writ of or in the nature of Certiorari commanding the respondents to transmit to this Honble Court the records of the case including the records of the disciplinary proceedings conducted de-novo from the stage of giving reply to the charge sheet as well as the letter dated 3.7.2003 issued by the Disciplinary Authority being annexure "P-35" herein so that conscionable justice may be administered by quashing the same. b) A Writ of or in the nature of Mandamus commanding the respondents to rescind, recall, revoke and/or withdraw the disciplinary proceedings conducted against your petitioner without furnishing copies of the relevant documents as directed to be given to your petitioner by this Honble Court and also to forbear from proceeding any further with the said Disciplinary proceedings. c) A Writ of or in the nature of Mandamus commanding the respondents to pay to your petitioner subsistence allowance at the rate of fifty per cent of his last drawn wages from 8th October, 2002 till the conclusion of the disciplinary proceedings after directing conducting of a fresh enquiry from the stage of furnishing the defence documents as requisitioned by your petitioner. d) A Writ of or in the nature of Mandamus commanding the respondents to forthwith release the medical expenses of your petitioner arising out of his cardiac ailment. e) Any other appropriate Writ or Writs. f) Rule Nisi in terms of prayers (a), (b), (c), (d) and (e) above. g) An interim order restraining the respondents from proceeding with the disciplinary proceedings any further till the disposal of this application. h) An interim order restraining the respondents from giving any effect or further effect to the letter dated 3.7.2003 being annexure "P-35" herein till the disposal of this application. i) An interim order restraining the respondents to immediately release the admitted amount of subsistence allowance and reimbursement of medical expenses. j) Ad-interim order in terms of the prayers (g), (h), and (I) above. k) Costs of incidental to this application. i) An interim order restraining the respondents to immediately release the admitted amount of subsistence allowance and reimbursement of medical expenses. j) Ad-interim order in terms of the prayers (g), (h), and (I) above. k) Costs of incidental to this application. l) Such other or further order or orders and/or direction or directions as to this Honble Court may deem fit and proper." (17) On a bare reading of the pleading, this Court is of the view that writ petitioner had no legal right to claim any documents, which are not relied upon by the disciplinary authority and more particularly there was no breach of any right as no case of prejudice has been informed despite the direction given by the disciplinary authority to answer it. Hence, we are of the view that writ application itself is not maintainable on that pleading applying the right and duty tests as earlier observed. Beside such, the prejudice if any is suffered by the delinquent due to non-supply of any document, same could be the subject matter of challenge if and only if any punishment is imposed. Prior to imposition of any punishment by the disciplinary authority, there is no cause of action to assail it on the ground that documents were not supplied. There may be many possibilities about the fate of the disciplinary proceeding. It may end by exonerating the delinquent from the charges when the disciplinary authority will consider the enquiry report and the reply of the delinquent or it may end without passing any punishment vitally affecting the service career or it may end with the major punishment by dismissing or discharging the delinquent. Hence, until and unless the cause of action arises by finality of the departmental proceeding by issuing a final order by the disciplinary authority, we are of the view that there is no scope to challenge it even on the ground of non-supply of the documents as may have been relied upon by the disciplinary authority under the anvil of natural justice coupled with prejudice theory principle. In the instant case, the case of the writ petitioner-delinquent is much weaker than the said situation above, namely, where documents relied upon are not supplied. It is the case of the bank that they have supplied all the documents relied upon and the documents as asked for have not been relied upon by them. In the instant case, the case of the writ petitioner-delinquent is much weaker than the said situation above, namely, where documents relied upon are not supplied. It is the case of the bank that they have supplied all the documents relied upon and the documents as asked for have not been relied upon by them. So there is absolutely no cause of action as yet to the writ application. 18. Considering all aspect of the matter, we are of the view that the writ application is pre-matured and there was no cause of action to move the writ application, far to say, the right of the writ petitioner to assail the action as already discussed for the reason that delinquent has no right to claim any document as per his choice, until and unless, such documents are relied upon and any prejudice is caused for such non-supply in a departmental proceeding as culminated to a final decision. (18) Having regard to all settled legal position and our finding, writ application stand dismissed with a cost of Rs. 20,000/-to be paid to the bank as the writ application is a misconceived application and abuse of process of law. The appeal succeeds. Impugned order under appeal is set aside and quashed. Appellant-bank is directed to complete the departmental proceeding as expeditiously as possible and to pass a final order thereon.