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2010 DIGILAW 1356 (AP)

A. Sadanand v. Syndicate Bank

2010-12-29

G.ROHINI

body2010
Judgment This writ petition is filed seeking a declaration that the proceedings of the 2nd respondent dated 23.11.1999 dismissing the petitioner from service as confirmed on appeal by the 1st respondent by order dated 20.03.2000 is arbitrary, illegal and in violation of principles of natural justice. The petitioner was recruited as a Clerk in the Syndicate Bank on 15.9.1976. While working at Shalibanda Branch, by proceedings dated 30.04.1996 the petitioner was placed under suspension pending enquiry into various irregularities amounting to gross misconduct. Thereafter, charge-sheet dated 25.06.1996 was issued and after conducting enquiry, all the charges were held proved. Accordingly the 2nd respondent by proceedings dated 23.11.1999 ordered penalty of dismissal from service with immediate effect and on appeal the same was confirmed by 1st respondent by order dated 20.03.2000. The said orders 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 25.6.1996 alleging gross misconduct by doing acts prejudicial to the interest of the Bank and engaging in trade or business outside the scope of his duties while working at Shalibanda Branch of the 1st respondent Bank during 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.27797 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 Cheque 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 records in respect of payment of Rs.2,000/- on 5.10.1995 while functioning as payment cashier; 5. He had availed LFC for self and family members; and 6. He had issued/drawn cheque on his SB A/c Nos.25552 and 26425.” The petitioner was directed to submit his written statement of defence within 15 days from the date of receipt of the charge-sheet. The petitioner by letter dated 25.07.1996 requested to provide all relevant documents on which the charge-sheet was based upon so as to enable him to submit his written statement of defence. The petitioner by letter dated 25.07.1996 requested to provide all relevant documents on which the charge-sheet was based upon so as to enable him to submit his written statement of defence. By letter dated 31.07.1996 the petitioner was informed that all documents connected to the case would be made available for verification at the appropriate stage and he was advised to submit his written statement of defence within seven days. Aggrieved by the said action of the respondents, the petitioner filed W.P.No.16216 of 1996. The said writ petition was disposed of by this Court by order dated 5.11.1996 directing the respondents to furnish all the relevant material in support of the imputations of the allegations made against the petitioner within two weeks. The 1st respondent Bank was also directed to complete the departmental enquiry within six months from the date of furnishing the copies of documents to the petitioner. Pursuant thereto, the 2nd respondent vide his letter dated 16.12.1996 furnished Photostat copies of 179 documents on which the Bank had relied upon to substantiate the charges levelled against the petitioner and called upon the petitioner to submit his written statement of defence within seven days. The petitioner while contending that some of the relevant documents were not still made available, by letter dated 26.12.1996 requested to furnish the copies of 21 documents specified therein. The petitioner had also requested in the letter dated 26.12.1996 to furnish a copy of the report of the investigating officer, who was cited as a witness, if the respondents were relying upon the said report. In response to the same, the 2nd respondent by letter dated 5.2.1997 while sending copies of 11 documents informed the petitioner that the other documents sought by the petitioner were missing from the records of the Branch as mentioned in the charge-sheet itself. It was also stated that the respondents did not rely upon the report of the investigating officer for issuing the charge-sheet and therefore the same was not furnished to the petitioner. By letter dated 15.2.1997 the petitioner made it clear that unless all the documents requested in his letter dated 26.12.1996 were furnished he was unable to give the reply to the charge-sheet. By letter dated 15.2.1997 the petitioner made it clear that unless all the documents requested in his letter dated 26.12.1996 were furnished he was unable to give the reply to the charge-sheet. In response to the same, the 2nd respondent by letter dated 28.02.1997 while reiterating that the 8 documents out of the documents sought by the petitioner were missing from the records of the Bank, alleged that as mentioned in the charge-sheet the petitioner while acting as Supervisor in the capacity of a Temporary Special Assistant at Shalibanda Branch had not only withdrawn the Bank’s funds in a fraudulent manner but also resorted to tampering / destruction / stealthily removal from branch records of relevant documents to conceal the factual position. Thus the petitioner was called upon to submit his explanation within three days alleging that he was deliberately attempting delaying tactics and was not co-operating to conduct the enquiry. As there was no response from the petitioner, by letter dated 10.04.1997 the 2nd respondent informed the petitioner that one K.L.N. Joshi, Manager, I.R. Section, Zonal Office, Hyderabad was appointed as the Enquiry Officer to conduct an enquiry into the matter and to submit a report. Pursuant thereto, the Enquiry Officer, having initiated the enquiry, called upon the petitioner to participate in the enquiry along with his Defence Assistant. In the meanwhile the petitioner filed Contempt Case No.271 of 1997 alleging that by proceeding with the enquiry without furnishing the copies of all the documents sought by the petitioner, the respondents had flouted the order in W.P.No.16216 of 1996. While informing the said fact, the petitioner requested the Enquiry Officer not to proceed with the enquiry till the contempt case was decided. The said request was rejected and the petitioner was called upon to participate in the enquiry. Though the enquiry was adjourned from time to time, the petitioner did not appear. On 09.06.1997 the Enquiry Officer had proceeded with the enquiry ex parte and examined-in-chief three witnesses on behalf of the Management. On 10.06.1997 two more witnesses were examined on behalf of the Management. The copies of the proceedings of the enquiry held on 9.6.1997 and 10.6.1997 were sent to the petitioner by registered post and the enquiry was adjourned to 26.6.1997. On 10.06.1997 two more witnesses were examined on behalf of the Management. The copies of the proceedings of the enquiry held on 9.6.1997 and 10.6.1997 were sent to the petitioner by registered post and the enquiry was adjourned to 26.6.1997. As the petitioner failed to appear even on 26.6.1997, the matter was adjourned to 8.7.1997 informing the petitioner that the cross-examination of management witnesses was kept pending and if he failed to appear on 8.7.1997, the evidence on behalf of the management would be closed and the enquiry would be treated as concluded. The petitioner by letter dated 3.7.1997 while pointing out various infirmities / lapses in the enquiry proceedings, made a request to stop the proceedings and order re-investigation by an experienced unbiased officer. The evidence on behalf of the management was concluded on 8.7.1997 and the petitioner was informed of the said fact stating that the next date of the enquiry would be 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 of by this Court by order dated 4.9.1997. Though this Court did not agree with the petitioner’s contention that the respondents had flouted the order in W.P.No.16216 of 1996, it was held that if the respondent Bank wanted to rely upon the evidence of M.W.3 and M.W.4, the petitioner was entitled to have a copy of the preliminary enquiry report wherein M.W.3 and M.W.4 had recorded their own impressions after going through the records of the Bank. It was also held that the action of the respondent Bank in not furnishing the copy of the preliminary enquiry report submitted by M.W.3 and M.W.4 while examining them as Management Witnesses had vitiated the entire proceedings. Accordingly, the enquiry officer was directed to eschew the evidence of M.Ws.3 and 4 while determining the guilt of the petitioner. Aggrieved by the said order, the respondent Bank preferred Contempt Appeal No.13 of 1998. The said Appeal was allowed and the directions in C.C.No.271 of 1997 were set aside by a Division Bench of this Court by order dated 16.10.1998 holding as under: “We have gone through the investigation report furnished by the learned counsel for the appellant-Bank and also the depositions of M.Ws.3 and 4, who submitted the preliminary investigation report. The said Appeal was allowed and the directions in C.C.No.271 of 1997 were set aside by a Division Bench of this Court by order dated 16.10.1998 holding as under: “We have gone through the investigation report furnished by the learned counsel for the appellant-Bank and also the depositions of M.Ws.3 and 4, who submitted the preliminary investigation report. It is noticed that M.Ws.3 and 4 have only reiterated what they stated in the investigation report. It is further noticed that M.Ws.3 and 4 have only referred to and produced various documents which according to them prove the commissions and omissions which are the subject-matter of the various charges. The Management had made it clear that the preliminary enquiry report as such is not being relied upon. It cannot be said that having regard to the contents of the investigation report and the substance of the depositions of M.Ws.3 and 4, the evidence of M.Ws.3 and 4 will have no value at all and has got to be eschewed at the threshold. It is for the Enquiry Officer to assess to what extent the evidence of M.Ws.3 and 4 will go to substantiate the charge. It is needless to state that mere opinion expressed by M.Ws.3 and 4 that for so and so reasons the charges are proved should not be mechanically acted upon by the Enquiry Officer. The Enquiry Officer should make independent appraisal of the evidence and reach his own conclusion. To what extent and how far the evidence of M.Ws.3 and 4 go to substantiate the charges is a matter for the Enquiry Officer and Disciplinary Authority to decide ultimately and it is premature to express any opinion at this stage. At this stage, we are of the view that the direction to eschew the evidence of M.Ws.3 and 4 in the absence of furnishing the preliminary investigation report is not warranted. The clarifications given above would, however, suffice to serve as guidance to the Enquiry Officer in the conduct of the enquiry. We therefore allow the Appeal and set aside the directions given by the learned Judge subject to the clarifications given above.“ Pursuant thereto, the Enquiry Officer called upon the petitioner to attend the enquiry on 8.2.1999 for cross-examining M.Ws.3 and 4. We therefore allow the Appeal and set aside the directions given by the learned Judge subject to the clarifications given above.“ Pursuant thereto, the Enquiry Officer called upon the petitioner to 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 enquiry officer, he expressed his unwillingness to participate in the enquiry and to cross-examine the Management Witnesses stating that the enquiry officer had no authority to reopen the case which was concluded on 8.7.1997. In the circumstances, the enquiry was concluded and the enquiry officer submitted his report dated 29.4.1999 holding that the charges levelled against the petitioner were proved. While communicating a copy of the said enquiry report, the 2nd respondent – The Disciplinary Authority – vide his letter dated 30.04.1999 called upon the petitioner to send his submissions on the findings of the enquiry officer within fifteen days failing which the matter would be proceeded further and a suitable decision would be taken. Having received the same, the petitioner by letter dated 15.5.1999 informed the 2nd respondent that he did not say that he was not interested to participate in the enquiry but only objected to the authority of the enquiry officer to reopen the enquiry. It was also alleged that the enquiry officer was not fair in conducting the enquiry. The petitioner had also pointed out certain alleged lapses on the part of the enquiry officer in proceeding with the enquiry and sought clarifications from the 2nd respondent. While acknowledging the same, the 2nd respondent by letter dated 29.5.1999 had again called upon the petitioner to submit his representation, if any, against the enquiry report within a week. In response, the petitioner had again sought certain clarifications by his letter dated 4.6.1999 so as to enable him to prepare himself for making his submissions on the enquiry report. As the petitioner failed to avail the opportunity given to him to make his submissions on the findings of the enquiry report but went on seeking clarifications, the 2nd 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 was also held that the enquiry was held in accordance with the provisions of the Bipartite Settlement after giving sufficient opportunity to the petitioner to defend his case. It was also held that the enquiry was held in accordance with the provisions of the Bipartite Settlement after giving sufficient opportunity to the petitioner to defend his case. Accordingly, having proposed to award the punishment of dismissal from service with immediate effect, the 2nd respondent by letter dated 15.6.1999 called upon the petitioner to attend the personal hearing on 30.06.1999 so as to make his submissions on the punishment proposed. The hearing was adjourned from time to time and ultimately on 11.8.1999 the petitioner attended 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 2nd respondent dated 15.6.1999 proposing punishment of dismissal from service was arbitrary, illegal and in violation of the principles of natural justice was dismissed by this Court by order dated 21.07.1999. Against the said order, the petitioner preferred W.A.No.1140 of 1999. The said Writ Appeal 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, without interfering with the orders of the learned single judge and even affirming the finding of the learned single judge, we are of the considered view that ends of the substantial justice will be squarely met if the principles of fair play are allowed to operate reasonably in the proceedings. In view of the fair concession given by the learned counsel for the appellant that he desires to cross-examine only the two management witnesses M.Ws.3 and 4, the respondents are directed to grant an opportunity to cross examine the witnesses, may be, before the disciplinary authority itself. And it is only after the cross examination is over that the disciplinary authority would proceed with respect to making of his mind whether or not the charges have been proved and also with respect to the issuing of show-cause notice for awarding of punishment in accordance with the rules. The appellant would appear before the disciplinary authority on 30.8.1999 at 10.00 a.m. when the disciplinary authority shall fix the date and summon the witnesses M.Ws.3 and 4 for cross-examination. No other date will be given on any account whatsoever for cross-examination of witnesses except the one fixed on 30.8.1999 by the disciplinary authority. The disciplinary authority will be at liberty to permit the cross-examination either before him or before the enquiry officer. No other date will be given on any account whatsoever for cross-examination of witnesses except the one fixed on 30.8.1999 by the disciplinary authority. The disciplinary authority will be at liberty to permit the cross-examination either before him or before the enquiry officer. In view of the above observations, the writ appeal is disposed of in the above terms. No costs.” In terms of the directions of the Division Bench, the petitioner had appeared before the 2nd respondent and cross-examined M.Ws.3 and 4 on 30.09.1999 and 1.10.1999. The copies of their evidence were provided to the petitioner in the enquiry itself. After considering the evidence of M.Ws.3 and 4 in the cross-examination as well as the other evidence already on record, the 2nd respondent held that the charges levelled against the petitioner were proved and again proposed punishment of dismissal from service. Accordingly, a show-cause notice dated 7.10.1999 was issued calling upon the petitioner to appear for personal hearing on 20.10.1999 to make his submissions on the punishment proposed. On a request made by the petitioner, the hearing was postponed from time to time. Ultimately the petitioner appeared before the 2nd respondent on 10.11.1999 and sought permission to take the assistance of his Defence Representative N.R. Srinivasan. Accordingly the hearing was fixed on 17.11.1999 on which date the petitioner appeared before the 2nd respondent along with his Defence Representative and made written submissions to drop the charges against him. After considering the same, the 2nd respondent by proceedings dated 23.11.1999 ordered dismissal of the petitioner from service holding that the petitioner was guilty of all the charges levelled against him even after taking into account the evidence brought out in the subsequent cross-examination of M.Ws.3 and 4. Challenging the same, the petitioner preferred an appeal before the General Manager of the 1st respondent Bank requesting to order reinvestigation and to reinstate him into service by exonerating the charges. After giving a personal hearing on 18.2.2000, the Appellate Authority while holding that there was sufficient evidence on record to sustain the charges and that the punishment of dismissal from service awarded was not disproportionate to the gravity of misconduct committed by the petitioner, dismissed the Appeal by order dated 20.03.2000. After giving a personal hearing on 18.2.2000, the Appellate Authority while holding that there was sufficient evidence on record to sustain the charges and that the punishment of dismissal from service awarded was not disproportionate to the gravity of misconduct committed by the petitioner, dismissed the Appeal by order dated 20.03.2000. Aggrieved by the said orders, the present writ petition is filed contending that the impugned order of dismissal from service was based on no evidence and therefore it is liable to be dismissed on that ground alone. It is also contended that the entire enquiry was vitiated for violation of principles of natural justice, particularly for non-supply of preliminary enquiry report to the petitioner. It is further contended that the impugned order of dismissal was contrary to the order passed by this Court in Contempt Case No.271 of 1997 and Contempt Appeal No.13 of 1998 inasmuch as neither the Enquiry Officer nor the Disciplinary Authority nor the Appellate Authority had gone into the reasons and effect of non-supply of preliminary enquiry report. COUNTER AFFIDAVIT FILED BY THE RESPONDENTS: The incident alleged against the petitioner took place in the year 1994 which came to light during 1995-1996 and the disciplinary action was initiated against the petitioner at the earliest opportunity. The petitioner was placed under suspension pending disciplinary action during May, 1996 and he was served with the charge sheet during June, 1996. The copies of all the available documents were furnished to the petitioner as per the order of this Court in W.P.No.16216 of 1996. In spite of the same, the petitioner did not submit his explanation nor attended the enquiry. The insistence upon the petitioner to produce the documents which were suspected to have been destroyed by some interested parties was only to avoid the enquiry proceedings on untenable grounds. The allegation that the respondent-Bank had intentionally and deliberately suppressed the crucial documents is false and without any basis. The investigation was made by the officials of the Bank strictly in accordance with the practice prevailing in the respondent-Bank and investigation report is based on the documents collected during the investigation. The allegation that the respondent-Bank had intentionally and deliberately suppressed the crucial documents is false and without any basis. The investigation was made by the officials of the Bank strictly in accordance with the practice prevailing in the respondent-Bank and investigation report is based on the documents collected during the investigation. All the charges against the petitioner were framed on the basis of the documents collected by the investigating officers and they had also deposed in the enquiry on the basis of the said documents only and the investigation report was not relied upon at any stage of the proceedings. The investigation report may also contain allegations against the other staff members including the higher authorities in the branch and it will not be in the interest of the Bank to part with such reports to the subordinate employees. Action will be initiated against all the cadres who are found involved or who are found negligent. The petitioner in spite of having received communication of dates of enquiry failed to participate in the enquiry for the reasons best known to him. The petitioner’s apprehension that the 3rd respondent was influencing the enquiry officer was also without any basis. All other allegations made by the petitioner, including that the disciplinary action was initiated for the trade union activities of the petitioner, that the petitioner was harassed by the 3rd respondent and that the management had intentionally denied opportunity to the petitioner to participate in the enquiry have been specifically denied. SUBMISSIONS MADE BY THE COUNSEL FOR THE PETITIONER: The contentions advanced by the learned counsel for the petitioner may be summed up as under: (1) Since the disciplinary enquiry was admittedly preceded by a preliminary enquiry, the respondents were bound to furnish a copy of the preliminary enquiry report and the failure of the respondents to furnish the preliminary enquiry report had vitiated the entire enquiry proceedings. (2) Since no independent witness or the account-holders or the affected parties were examined and there was no direct evidence against the petitioner, the conclusion of the respondents 1 and 2 that all the charges against the petitioner were established was erroneous and unsustainable. (3) The enquiry is also vitiated for violation of principles of natural 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 to the petitioner. (3) The enquiry is also vitiated for violation of principles of natural 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 to the petitioner. (b) The pre-recorded statement of M.W.2 was marked which was contrary to law. (c) M.W.2 who was not cited in the list of witnesses was examined which vitiated the enquiry. (4) Since neither the enquiry officer nor the disciplinary authority nor the appellate authority had gone into the reasons and affect 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 the respondents that as the charges against the petitioner were based upon the documents collected during the investigation and not on the preliminary investigation report as such, and moreover a full-fledged enquiry was held after affording an opportunity to the petitioner at every stage, the preliminary enquiry had lost its importance and the mere non-supply of the preliminary enquiry report cannot be said to have vitiated the enquiry. At any rate since the petitioner failed to show the prejudice, if any, suffered by him for non-supply of the preliminary enquiry report, the petitioner’s contention that the disciplinary proceedings were vitiated for violation of principles of natural justice is untenable. While inviting this Court to the findings recorded by the enquiry officer as well as the disciplinary authority, the learned counsel further contended that the said findings which were arrived at on proper appreciation of the evidence available on record warrant no interference by this Court. While inviting this Court to the findings recorded by the enquiry officer as well as the disciplinary authority, the learned counsel further contended that the said findings which were arrived at on proper appreciation of the evidence available on record warrant no interference by this Court. In support of her submissions, the learned counsel for the respondent relied upon the decisions in VIJAY KUMAR NIGAM v. STATE Of M.P. (1996) 11 SCC 599 , NARAYANA DATTATRAYA RAMTEERTHAKHAR v. STATE OF MAHARASHTRA AND OTHERS (1997) 1 SCC 299 , SUPERINTENDENT, GOVT., T.B. SANATORIUM AND ANOTHER v. J.SRINIVASAN (1998) 8 SCC 572 , PEPSU ROAD TRANSPORT CORPORATION v. RAWEL SINGH (2008) 4 SCC 42 , DEBOTOSH PAL CHOUDHURY v. PUNJAB NATIONAL BANK AND OTHERS (2002) 8 SCC 68 , STATE OF U.P. AND ANOTHER v. T.P.LAL SRIVASTAV (1996) 10 SCC 702 , STATE OF U.P. AND OTHERS v. RAMESH CHANDRA MANGALIK (2002) 3 SCC 443 , CHAIRMAN, GANGA YAMUNA GRAMIN BANK AND OTHERS v. DEVI SAHAI 2009) 11 SCC 266 , STATE OF U.P. v. SHEO SHANKER LAL SRIVASTAVA AND OTHER (2006) 3 SCC 276 , APPOINTING AUTHORITY, G.B.P.SPL.S.I. AND ANOTHER v. R.K.SINGH (2005) 10 SCC 131 , SURESH PATHRELLA v. ORIENTAL BANK OF COMMERCE (2006) 10 SCC 572 , U.P.STATE TEXTILE CORPORATION LTD. v. P.C. CHATURVEDI AND OTHERS (2005) 8 SCC 211 and STATE OF U.P. v. SHATRUGHAN LAL AND ANOTHER (1998) 6 SCC 651 ). POINTS FOR CONSIDERATION:- In the light of the rival contentions noticed above, the following points arise for consideration: 1. Whether the enquiry is vitiated for non-supply of (i) preliminary enquiry report and (ii) copies of all the documents relied upon in the charge-sheet? (2) Whether the enquiry is vitiated on any of the other grounds raised by the petitioner? (3) Whether the finding that the petitioner was guilty of charges is perverse warranting interference by this Court in exercise of jurisdiction under Article 226 of the Constitution of India? 4. Whether the penalty of dismissal from service is justified in the facts and circumstances of the case? (3) Whether the finding that the petitioner was guilty of charges is perverse warranting interference by this Court in exercise of jurisdiction under Article 226 of the Constitution of India? 4. Whether the penalty of dismissal from service is justified in the 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 the non-supply of the preliminary enquiry report which was the only basis for framing the charges against the petitioner had vitiated the entire enquiry proceedings since the same had deprived the petitioner a fair and reasonable opportunity to defend his case. In support of the said submission the learned counsel for the petitioner relied upon the decisions in STATE OF U.P. v. MOHAMMED SHAREEF AIR 1982 SC 937 , KASHINATH DIXIT v. UNION OF INDIA AIR 1986 SC 2118 , STATE OF U.P. v. SHATRUGHANLAL (13 supra) and STATE OF U.P. v. SAROJ KUMAR SINHA 2010 (2) SCC 772 . 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 opportunity of hearing. The law is well-settled that in departmental proceedings where charge-sheet is issued, the delinquent must be supplied copies of all the documents which are proposed to be utilized against him and are indicated in the charge-sheet. Non-supply of the documents which constitute the whole basis of the charge-sheet results in denying an effective opportunity to the delinquent to defend and consequently the entire enquiry proceedings would be vitiated for violation of principles of natural justice. While reiterating the above principles, it was held in CHANDRAMA TEWARI v. UNION OF INDIA AIR 1988 SC 117 as under: “It is now well settled that if copies of relevant and material documents including the statement of witnesses recorded in the preliminary enquiry or during investigation are not supplied to the delinquent officer facing the enquiry and if such documents are relied in holding the charges framed against the officer, the enquiry would be vitiated for the violation of principles of natural justice. Similarly, if the statement of witnesses recorded during the investigation of a criminal case or in the preliminary enquiry is not supplied to the delinquent officer that would amount to denial of opportunity of effective cross-examination. Similarly, if the statement of witnesses recorded during the investigation of a criminal case or in the preliminary enquiry is not supplied to the delinquent officer that would amount to denial of opportunity of effective cross-examination. It is difficult to comprehend exhaustively the facts and circumstances which may lead to violation of principles of natural justice or denial of reasonable opportunity of defence. This question must be determined on the facts and circumstances of each case. While considering this question it has to be borne in mind that a delinquent officer is entitled to have copies of material and relevant documents only which may include the copy of statement of witnesses recorded during the investigation or preliminary enquiry or the copy of any other document which may have been relied in support of the charges. If a document has no bearing on the charges or if it is not relied by the enquiry officer to support the charges, or if such document or material was not necessary for the cross-examination of 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 not prejudice the delinquent officer. The decision of the question whether a document is material or not will depend upon the facts and circumstances of each case.” In a later decision in STATE OF UP v. SHATRUGHANLAL (13 supra) it was explained as under : “Preliminary inquiry which is conducted invariably on the back of the delinquent employee may, often, constitute the whole basis of the charge-sheet. Before a person is, therefore, called upon to submit his reply to the charge-sheet, he must, on a request made by him in that behalf, be supplied the copies of the statements of witnesses recorded during the preliminary enquiry particularly if those witnesses are proposed to be examined at the departmental trial.” In the instant case, the charge-sheet dated 25.06.1996 contained six charges. All the charges related to the irregularities that took place at Shalibanda Branch of the 1st respondent-Bank during the period from 07.10.1991 to 30.04.1996 during which the petitioner worked as clerk and also discharged the duties of Special Assistant temporarily. All the charges related to the irregularities that took place at Shalibanda Branch of the 1st respondent-Bank during the period from 07.10.1991 to 30.04.1996 during which the petitioner worked as clerk and also discharged the duties of Special Assistant temporarily. The charge sheet contained all the details of the transactions referring to the relevant records furnishing the respective account numbers and the names of the account holders as well as the concerned staff members in respect of each transaction. The allegations were specific and the details of the amounts allegedly misappropriated were furnished together with the entries in the day books, ledgers, cheque numbers and etc. Even the statements of the concerned accounts were furnished in detail. It is true that the charge sheet dated 25.06.1999 was preceded by investigation/verification of records of Shalibanda Branch by M.Ws.3 and 4 and the charges were framed on the basis of the documents collected and the irregularities observed during the investigation. However, this is not a case where the charge-sheet had merely referred to the report of the said investigation, but the particulars of each and every document and transaction forming basis for the irregularities alleged were furnished in detail. A perusal of the charge sheet itself makes clear all the alleged commissions and omissions on the part of the petitioner mentioning even the minute details. It is also clear that the report of M.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 the investigation. The details of all the transactions noticed from the records during the investigation were furnished in the charge-sheet referring to the respective documents and records and the copies of the said documents were also furnished to the petitioner subsequently. It is also not in dispute that except verification of the records, M.Ws.3 and 4 did not record the statements of anyone during investigation. As held by the Supreme Court in VIJAY KUMAR NIGAM v. STATE OF M.P. (1 supra), the preliminary report is only to decide and assess whether it would be necessary to take any disciplinary action against the delinquent officer and it does not form any foundation for passing the order of dismissal against the employee. As held by the Supreme Court in VIJAY KUMAR NIGAM v. STATE OF M.P. (1 supra), the preliminary report is only to decide and assess whether it would be necessary to take any disciplinary action against the delinquent officer and it does not form any foundation for passing the order of dismissal against the employee. It was further explained in NARAYAN DATTATRAYA RAMATEERTHAKHAR v. STATE OF MAHARASHTRA (2 supra) that the preliminary enquiry had nothing to do with the enquiry conducted after the issue of the charge sheet and that the preliminary enquiry is only to find out whether disciplinary enquiry should be initiated against the delinquent. 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 by the petitioner, a departmental enquiry was initiated against a Head Constable of police for his alleged misconduct of hunting a bull in the Government forest by taking advantage of his office and rank. However, the charge sheet served on the delinquent did not even mention the date and time of the alleged misconduct and even the location of the alleged incident was not indicated. The copies of statement of witnesses recorded during preliminary enquiry were not furnished to the delinquent. Though a preliminary enquiry had preceded the disciplinary enquiry and during the preliminary enquiry statements of witnesses were recorded, the copies of the same were not furnished to the petitioner at the time of the disciplinary enquiry. In the said facts and circumstances, it was held by the Supreme Court that the delinquent was denied reasonable opportunity to defend himself at the disciplinary enquiry and therefore, the penalty of dismissal was illegal. In KASHINATH DIXIT v. UNION OF INDIA (15 supra) as many as 8 charges were levelled against the delinquent who was holding the post of Superintendent of Police and ultimately he was dismissed from service. The order of dismissal was challenged on a number of grounds including that the enquiry was vitiated by reason of the failure to supply the statements made by the witnesses at the pre-enquiry stage and that the copies of the documents sought to be used against the delinquent in order to establish the charges were also not made available. The High Court repelled the said contention and dismissed the writ petition. The High Court repelled the said contention and dismissed the writ petition. However, having found from the record that even though the delinquent had demanded copies of the documents and statements in question, the disciplinary authority had turned down the request, the Supreme Court held that the delinquent had been denied a reasonable opportunity of exonerating himself. While observing that the delinquent would have needed the documents and statements in order to cross-examine the witnesses effectively with reference to the contents of the documents, it was held that the order of dismissal was violative of Article 311 (2) of the Constitution of India inasmuch as the delinquent was denied reasonable opportunity of defending himself and the order of dismissal was on that account null and void. In STATE OF U.P. v. SHATRUGHANLAL (13 supra) also it was found as a fact that copies of the documents which were proposed in the charge-sheet to be produced in the departmental proceedings as proof in support of the articles of charge were not supplied to the delinquent officer. Having regard to the said undisputed fact, the U.P. Public Services Tribunal held that the departmental proceedings as well as the order of removal from service were illegal and void. The writ petition filed by the State against the order of the Tribunal was dismissed summarily by the High Court. The State carried the matter in 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 Tribunal was justified in coming to the conclusion that the principles of natural justice were violated. In STATE OF U.P. v. SAROJ KUMAR SINHA (16 supra) it was contended on behalf of the State that the documents which formed the foundation of the charge-sheet pertained to the same division in which the delinquent had been posted as the Executive Engineer and therefore 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 the order of removal observing that the State had miserably failed to give any reasonable explanation as to why the documents had not been supplied to the delinquent. The High Court did not accept the said contention and set aside the order of removal observing that the State had miserably failed to give any reasonable explanation as to why the documents had not been supplied to the delinquent. The Supreme Court upheld the order of High Court and held that non-disclosure of documents having a potential to cause prejudice to the delinquent in the enquiry proceedings would clearly amount to denial of a reasonable opportunity to submit an effective rebuttal to the charges being enquired into against him. As could be seen, in all the above decisions cited by the learned 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) and STATE OF U.P. v. SAROJ KUMAR SINHA (16 supra), a finding of fact was recorded that the copies of the documents relied on in the charge-sheet were not supplied to the delinquent officers. Having found that the non-supply of the documents caused prejudice to the delinquent officers since they were denied an opportunity to effectively rebut the charges levelled against them, it was held by the Supreme Court that the impugned orders of dismissal / removal being in violation of the principles of natural justice were null and void. However, this is not a case where the charges were levelled by merely referring to the preliminary enquiry report. As noticed above, basing on the investigation/verification of records made by M.Ws.3 and 4, the charges were framed mentioning the irregularities noticed and furnishing all the details. Thereafter a regular enquiry was conducted by the enquiry officer in which all the persons concerned were examined, the relevant records/documents were marked and an opportunity was given to the petitioner to produce his evidence. Hence the mere non-supply of the report given by M.Ws.3 and 4 has not caused any prejudice to the petitioner’s case and therefore in my considered opinion the enquiry is not vitiated in any manner whatsoever on the said ground. (b) Non-furnishing of the copies of the documents relied upon in the charge-sheet :- The petitioner was admittedly furnished all the documents that were referred to in the charge-sheet except the eight documents which were missing from the records of the respondent Bank. (b) Non-furnishing of the copies of the documents relied upon in the charge-sheet :- The petitioner was admittedly furnished all the documents that were referred to in the charge-sheet except the eight documents which were missing from the records of the respondent Bank. It is relevant to note that in the charge-sheet itself it was mentioned that those documents were missing and it was alleged that the said missing documents were suspected to have been destroyed by the petitioner himself to suppress the fraudulent acts committed by him. Hence no motive can be attributed to the respondents for not supplying those documents and the petitioner’s allegation that the said documents were not supplied with an intention to deny him an effective opportunity of hearing is unfounded. Moreover this is a case where the petitioner did not submit any reply to the charges levelled against him. He did not even deny the allegations nor pleaded that he had no access to the documents allegedly missing from the records of the Bank. Except the eight (8) documents which were said to be missing from the records of the Bank, since all other documents referred to in the charge-sheet were admittedly supplied, the petitioner could have submitted his explanation explaining the prejudice caused to him on account of non-availability of those eight documents. However the petitioner did not choose to even respond to the show-cause notice in spite of several opportunities given. The petitioner could not plead or establish any such prejudice even before this Court. Therefore, the enquiry proceedings cannot be held to be vitiated for violation of principles of natural justice on the ground that the copies of the some of the documents were not furnished to the petitioner. Point No.2:- The learned counsel for the petitioner contended that since the show-cause notice dated 7.10.1999 was issued by the disciplinary authority without furnishing a copy of the report of the Enquiry Officer after cross-examination of M.Ws.3 and 4 on 30.09.1999 and 1.10.1999 respectively amounted to violation of the principles of natural justice. It is also contended that the marking of the pre-recorded statement of M.W.2 before the enquiry officer was contrary to law since the said statement was admittedly recorded behind the back of the petitioner. It is also contended that the marking of the pre-recorded statement of M.W.2 before the enquiry officer was contrary to law since the said statement was admittedly recorded behind the back of the petitioner. The learned counsel in support of the said contention relied upon KHARDAH AND COMPANY LTD., v. WORKMEN AIR 1964 SC 719 and CENTRAL BANK OF INDIA v. PRAKASHCHAND JAIN AIR 1969 SC 983 . The further contention is that the examination of M.W.2 was impermissible under law since he was not cited in the list of witnesses. So far as the contention that the petitioner was not furnished a copy 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 were cross-examined before the Disciplinary Authority itself as directed by the Division Bench in Writ Appeal No.1140 of 1999. It is not in dispute that the copies of the evidence of M.Ws.3 and 4, including their cross-examination were furnished to the petitioner. Thereafter the 2nd respondent (Disciplinary Authority) had re-examined the whole issue in the light of the evidence of M.Ws.3 and 4 in their cross-examination and reiterated that all the charges against the petitioner were proved. Thus there was no further report of the enquiry officer as sought to be contended by the petitioner. Therefore the petitioner’s allegation that the report of the Enquiry Officer after the cross-examination of M.Ws.3 and 4 was not furnished to him is without any basis. It is relevant to note that the Division Bench in W.A.No.1140 of 1999 while directing the management to grant an opportunity to the petitioner to cross-examine M.Ws.3 and 4 made it clear that the Disciplinary Authority would be at liberty to permit the cross-examination either before him or before the Enquiry Officer. Hence the procedure followed by the 2nd respondent is in accordance with the judgment of the Division Bench in W.A.No.1140 of 1999. The further contention is that the enquiry officer had committed a grave error in marking the pre-recorded statement of M.W.2 and that the same had vitiated the entire enquiry proceedings. In support of the said 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 (19 supra). In support of the said 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 (19 supra). There can be no dispute about the well-settled principle that the evidence should be recorded in the presence of the delinquent who was charged with the commission of acts constituting misconduct. In the instant case, the person who was working at Shalibanda 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 enquiry about the payment of Rs.10,000/- made by the petitioner on 25.2.1994 was 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 procedure followed by the enquiry officer amounted to marking the pre-recorded statement of M.W.2. Even according to the petitioner, the statement of M.W.2 was not recorded during the investigation of records of the Bank at Shalibanda Branch. Admittedly MEx.2 is only a letter addressed by M.W.2 to the Vigilance Unit, Hyderabad. Marking the said letter through M.W.2 is in accordance with law and therefore the petitioner’s contention is untenable. It is true that M.W.2 (M. Madhusudhan) was not cited as a witness initially. As could be seen from the proceedings of the enquiry dated 9.6.1997, the management was permitted to examine the said M. Madhusudhan, who was working as Cashier at the relevant point of time at Shalibanda Branch as additional witness on behalf of the Management. It is not disputed by the petitioner that the said M. Madhusudhan worked at Shalibanda Branch at relevant point of time and he was acquainted with the transactions in question. In the circumstances, the mere fact that he was not cited in the list of witnesses does not preclude the Management to examine him as a witness on their behalf with the permission of the enquiry officer. It is clear from the proceedings of enquiry that such permission was granted by the enquiry officer for examination of M. Madhusudhan as additional witness. The petitioner did not raise any objection before the enquiry officer nor challenged the permission so granted by the enquiry officer. He did not even raise such contention in W.P.No.13983 of 1999 or Writ Appeal No.1140 of 1999. The petitioner did not raise any objection before the enquiry officer nor challenged the permission so granted by the enquiry officer. He did not even raise such contention in W.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 on the ground that the Management had examined M.W.2 though he was not cited as a witness. POINT No.3 :- It is contended by the learned counsel for the petitioner that there was absolutely no evidence to establish the allegations against the petitioner. It is contended by the learned counsel that M.W.1 in his evidence did not mention anything against the petitioner except alleging that the petitioner had temporarily misappropriated Rs.2,000/-and similarly M.W.2 had merely stated that the contents of M.Ex.2 letter were true. It is also contended that the evidence of M.Ws.3 and 4, who are the investigating officers are liable to be ignored since the preliminary enquiry report was not furnished to the petitioner. Thus, according to the learned counsel for the petitioner it is a case of no evidence and therefore the findings of the 2nd respondent are unsustainable. In support of his contention that the findings in the departmental enquiry which are based on no evidence are liable to be rejected as perverse, the learned counsel for the petitioner relied upon the decisions in CENTRAL BANK OF INDIA v. PRAKASH CHAND JAIN (19 supra), KULDEEP SINGH v. COMMISSIONER OF POLICE (1999) 2 SCC 10 and ROOP SINGH NEGI v. PUNJAB NATIONAL BANK 2009) 2 SCC 570 .. 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 the respondent Bank are the crucial witnesses. M.W.1, who worked as Manager of Shalibanda Branch deposed that at the time of taking charge of the Branch, he found that the SB Head of Account did not tally for more than two years and all the documents which reflected the discrepancies were marked through him. His evidence is supported by M.W.2. So far as the evidence of M.Ws.3 and 4 is concerned, the petitioner’s contention that their evidence was liable to be ignored since the preliminary enquiry report was not furnished to the petitioner was already considered and rejected by a Division Bench of this Court in Contempt Appeal No.13 of 1998. His evidence is supported by M.W.2. So far as the evidence of M.Ws.3 and 4 is concerned, the petitioner’s contention that their evidence was liable to be ignored since the preliminary enquiry report was not furnished to the petitioner was already considered and rejected by a Division Bench of this Court 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 of the documentary evidence available, the 2nd respondent recorded a clear finding that the charges against the petitioner were established and the said finding under no circumstances can be held to be based on no evidence. Such finding of fact based on evidence cannot be interfered with by this Court in exercise of jurisdiction under Article 226 of the Constitution of India. As held in B.C. CHATURVEDI v. UNION OF INDIA AIR 1996 SC 484 the Court/tribunal cannot interfere with the findings of fact based on evidence and substitute its own independent findings since judicial review is not an appeal from a decision but a review of the manner in which the decision is made and that power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the eye of the Court. It was further held in the said decision as under : "When an inquiry is conducted on charges of misconduct by a public servant, the court/tribunal is concerned to determine whether the inquiry was held by a competent officer or whether rules of natural justice are complied with. Whether the findings or conclusions are based on some evidence, the authority entrusted with the power to hold inquiry has jurisdiction, power and authority to reach a finding of fact or conclusion. But that finding must be based on some evidence. Neither the technical rules of Evidence Act nor of proof of fact or evidence as defined therein, apply to disciplinary proceeding. Adequacy of evidence or reliability of evidence cannot be permitted to be canvassed before the Court/tribunal. When the authority accepts the evidence and the conclusion receives support therefrom, the disciplinary authority is entitled to hold that the delinquent officer is guilty of the charge. The disciplinary authority is the sole judge of facts. Adequacy of evidence or reliability of evidence cannot be permitted to be canvassed before the Court/tribunal. When the authority accepts the evidence and the conclusion receives support therefrom, the disciplinary authority is entitled to hold that the delinquent officer is guilty of the charge. The disciplinary authority is the sole judge of facts. Where appeal is presented, the appellate authority has co-extensive power to re-appreciate the evidence or the nature of punishment. The Court/tribunal in its power of judicial review does not act as appellate authority to re-appreciate the evidence and to arrive at its own independent findings on the evidence. The Court/tribunal may interfere where the authority held that the proceedings against the delinquent officer in a manner inconsistent with the rules of natural justice or in violation of statutory rules prescribing the mode of inquiry or where the conclusion or finding reached by the disciplinary authority is based on no evidence. If the conclusion or finding be such as no reasonable person would have ever reached, the Court/tribunal may interfere with the conclusion or the finding and mould the relief so as to make it appropriate to the facts of that case. " Having regard to the above settled legal position, the finding recorded by the 2nd respondent that the petitioner was guilty of charges, as confirmed on appeal by the 1st respondent, cannot be held to be perverse. The petitioner was afforded ample opportunity at every stage to put forth his case and to cross-examine the witnesses of management. The findings recorded by the 2nd respondent are based upon 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 the petitioner, this Court is satisfied that the penalty of dismissal from service is justified. As held in V. RAMANA v. A.P. SRTC (2005) 7 SCC 338 , the law is well-settled that the Court should not interfere with the administrator’s decision unless it was illogical or suffered from procedural impropriety or was shocking to the conscience of the Court in the sense that it was in defiance of logic or moral standards. As held in V. RAMANA v. A.P. SRTC (2005) 7 SCC 338 , the law is well-settled that the Court should not interfere with the administrator’s decision unless it was illogical or suffered from procedural impropriety or was shocking to the conscience of the Court in the sense that it was in defiance of logic or moral standards. The penalty of dismissal which in the facts and circumstances of the present case cannot be held to be shockingly disproportionate warrants no interference by this Court in exercise of the power of judicial review. For the aforesaid reasons, the Writ Petition is devoid of any merit and the same is accordingly dismissed. No costs.