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Madhya Pradesh High Court · body

2011 DIGILAW 1269 (MP)

Vikram Sharma v. State Bank of Indore

2011-11-10

SUJOY PAUL

body2011
ORDER 1. Brief facts necessary for adjudication of this matter are as under : 2. The petitioner has invoked the jurisdiction of this Court under Article 226 of the Constitution to assail the disciplinary proceedings, which ended with imposition of punishment of “removal from service with superannuation benefits, i.e., pension and/or provident fund and gratuity as would be due otherwise in the Rules of Regulation prevailing at the relevant time and without disqualification from future employment”. The petitioner after unsuccessfully challenging this removal order dated 1.4.2008 before departmental appellate authority, filed this writ petition. The appellate authority by order dated 5.9.2008 rejected the said appeal. 3. Shri S.K. Singh, learned counsel for the petitioner has assailed the procedural part of the departmental enquiry and also the enquiry report, punishment and appellate orders. Shri S.K. Singh, in nutshell, raised following points : (a) The documents on the strength of which charge-sheet was drawn were also not provided to the petitioner; (b) The documents which were demanded by the petitioner to defend himself were not provided to him; (c) The preliminary enquiry officer was higher/superior in rank qua the enquiry officer in the regular departmental enquiry, which vitiates the enquiry; (d) For the same set of allegations the petitioner is subjected to a criminal case and since both are grounded upon the same set of facts, the departmental enquiry should have been kept in abeyance; (e) The petitioner prayed for change of enquiry officer on the ground of bias against him, which was illegally declined; (f) The petitioner’s application for getting the handwriting examined by Government authorities at Calcutta was illegally declined; (g) The petitioner’s right of reasonable defence in the enquiry was taken away. He was not permitted to cross-examine the prosecution witnesses and lead his own evidence; (h) The petitioner was made scapegoat and there is discrimination in imposition of punishment. 4. Shri S.K. Rao, learned counsel, on the other hand vehemently opposed the petition and raised a preliminary objection that the petitioner was a “Award Staff” and was working as Computer Technical Officer (CTO), an employee of clerical cadre. Shri Rao submits that since he belongs to an award staff, he is a “workman” within the meaning of section 2(s) of Industrial Disputes Act, 1947 and, therefore, he has a statutory, alternative and efficacious remedy to get his grievances redressed before the Industrial Tribunal. Shri Rao submits that since he belongs to an award staff, he is a “workman” within the meaning of section 2(s) of Industrial Disputes Act, 1947 and, therefore, he has a statutory, alternative and efficacious remedy to get his grievances redressed before the Industrial Tribunal. In support of the aforesaid preliminary objection, Shri Rao relied on (2005)6 SCC 725 (Hindustan Steel Works Construction Ltd. v. Hindustan Steel Works Construction Ltd. Employees Union); (2006)1 SCC 567 (State of Karnataka v. KGSD Canteen Employees’ Welfare Association); (2004)9 SCC 786 (National Textile Corporation Ltd. v. Haribox Swalram); (2000)5 SCC 531 (State Bank of India v. State Bank of India Canteen Employee’s Union (Bengal Circle)); and (2003)4 SCC 364 (Chairman and Managing Director, United Commercial Bank v. P.C. Kakkar). On the strength of these authorities, Shri Rao submits that the petitioner should be relegated to avail the alternative remedy under the Industrial Disputes Act, 1947. 5. Dealing with the preliminary objection first, in the opinion of this Court, none of the judgments cited by learned senior counsel are applicable in the facts and circumstances of this case. Each judgment cited by learned senior counsel shows that in all those cases there was a serious dispute of fact before the High Courts and despite that High Court entertained those petitions. This is settled in law that where disputed questions of facts are involved, writ proceeding is not the appropriate remedy and in such cases the petitioner should be relegated to avail a statutory alternative remedy available under the law. In the present case there is no disputed question of fact involved. The documents filed by the petitioner or by the Bank are not disputed by either side. In other words, the genuineness of the documents and enquiry proceedings filed by the parties are not in dispute, therefore, on the basis of admitted documents, this Court can very well examine as to whether procedural part of domestic enquiry was in consonance with the principle of natural justice or not. On the basis of admitted enquiry report, the perversity of findings can very well be examined. Similarly the punishyment and appellate orders can be examined on its face value whether the same are in consonance with the established principle of law or not. On the basis of admitted enquiry report, the perversity of findings can very well be examined. Similarly the punishyment and appellate orders can be examined on its face value whether the same are in consonance with the established principle of law or not. Thus, in the opinion of this Court, in absence of any disputed question of fact involved, these judgments cited are of no help to the Bank and, therefore, this preliminary objection deserves rejection. 6. This objection is required to be overruled for yet another reason that this petition was admitted by this Court way back on 30.3.2009 and now the pleadings are complete. In catena of judgments it has been held that when no disputed questions of facts are involved and when petition was admitted long back, the petition should not be thrown technically to avail the alternative remedy. In 2002(5) MPLJ 161 (Rajendra Singh v. Jawaharlal Nehru Krishi Vishwavidyalaya, Jabalpur); (2003)2 SCC 107 (Harbanslal Sahnia v. Indian Oil Corporation Ltd.); and 2008(3) JLJ 64 =ILR (2008) M.P. 1683 (Bhuvneshwar Prasad @ Guddu Dixit v. State of M.P.), this view was taken by various Courts. In the light of these legal pronouncements, there is no iota of doubt that in the facts and circumstances of this case it will not be proper to force the petitioner to avail the alternative remedy. Thus, the preliminary objection is overruled. 7. Reverting back to first issue raised by the petitioner, i.e., non-supply of documents is concerned, learned counsel for the petitioner submits that by Annexure P-9 dated 29.11.2004 the documents were demanded and certain documents were supplied on 3.1.2005 (Annexure P-12). The petitioner again demanded the documents vide Annexure P-14 dated 11.1.2005. On the strength of these representations, the petitioner submits that he wanted to have the copies of documents on the strength of which charge-sheet was framed and also the documents which were required for his defence. Since all documents were not provided to him, the principles of natural justice are violated. He relied on (2007)1 SCC 338 (Government of Andhra Pradesh v. A. Venkata Raidu), para 9 thereof is reproduced here as under : “9. We respectfully agree with the view taken by the High Court. Since all documents were not provided to him, the principles of natural justice are violated. He relied on (2007)1 SCC 338 (Government of Andhra Pradesh v. A. Venkata Raidu), para 9 thereof is reproduced here as under : “9. We respectfully agree with the view taken by the High Court. It is a settled principle of natural justice that if any material is sought to be used in an enquiry, then copies of that material should be supplied to the party against whom such enquiry is held. In Charge 1, what is mentioned is that the respondent violated the orders issued by the Government. However, no details of these orders have been mentioned in Charge 1. It is well settled that a charge-sheet should not be vague but should be specific. The authority should have mentioned the date of the GO which is said to have been violated by the respondent, the number of that GO, etc. but that was not done. Copies of the said GOs or directions of the Government were not even placed before the enquiry officer. Hence, Charge 1 was not specific and hence no finding of guilt can be fixed on the basis of that charge. Moreover, as the High Court has found, the respondent only renewed the deposit already made by his predecessors. Hence, we are of the opinion that the respondent cannot be found guilty for the offence charged.” He further relied on 2010(1) MPJR (CG) 126 (Gupteshwar Prasad Sinha v. State of M.P.), para 19 thereof is reproduced here as under: “19. Applying well settled principles of law in respect of enquiry procedure to the facts of the present case, wherein despite an application made to the enquiring authority, the documents were not supplied, the petitioner was told that the next date of hearing would be intimated to him, no notice was given to him, the Enquiry Officer without intimating the delinquent employee examined the Naib Tahsildar on 15.9.1982 at the back of the petitioner, without affording an opportunity of hearing to cross-examine closed the case, passed the order and submitted the Enquiry Report, the entire enquiry procedure was vitiated on account of the fact that mandatory provisions of rule 14(II) of the Rules, 1966 was not followed.” On the strength of these judgments, Shri Singh submits that the enquiry stands vitiated and principles of natural justice were not followed. 8. 8. Per contra, Shri S.K. Rao, learned senior counsel by placing reliance on various documents submits that necessary documents were supplied to the petitioner. 9. A bare perusal of Annexure P-15 shows that the Bank replied that necessary documents have already been supplied to the petitioner and if petitioner is still aggrieved, he may inspect/examine the remaining relevant documents at the branch. Thereafter in the departmental enquiry also on various dates various sets of documents were provided to the petitioner. A bare perusal of Annexure R-8 at page 76 of the return and Annexure R-10 at page 79 of the return, shows that various documents were supplied to the petitioner and petitioner accepted those documents in enquiry proceedings.Thereafter in the enquiry proceedings the petitioner started participating. True it is that the petitioner has filed a list of documents which he wanted to have for his defence or to demolish the story of the prosecution. However, the documents daqted 8.1.2005 (Annexure P-13) and 11.1.2005 (Annexure P-14) do not indicate what was the relevance of those documents. It is settled in law that merely because documents are not supplied, the enquiry will not stand vitiated automatically, one has to plead/show the relevance of the documents while demanding the same and then in absence of supply of those documents, one has to prove as to what prejudice is caused to him. The apex Court has dealt with this issue in catena of judgments. In (2005)8 SCC 211 (U.P. State Textile Corporation Ltd. v. P.C. Chaturvedi); and (2011)2 SCC 316 (State Bank of India v. Bidyut Kumar Mitra), the apex Court held that mere allegation of non-supply of documents will not result in vitiating the enquiry. On has to prove that non-supply of documents has caused serious prejudice to the delinquent employee. The apex Court in U.P. State Textile Corporation Ltd. v. P.C. Chaturvedi [ (2005)8 SCC 211 ], held as under : “It has not been shown as to how the non-supply of this list caused any prejudice. The stand of the respondent was that additional documents had been entertained which plea the High Court had wrongly accepted.As noted above, no additional document was brought on record, and it was the list. The stand of the respondent was that additional documents had been entertained which plea the High Court had wrongly accepted.As noted above, no additional document was brought on record, and it was the list. On that score, the HighCourt’s view is clearly untenable.” In State Bank of India v. Bidyut Kumar Mitra [ (2011)2 SCC 316 ], the apex Court held as under : “The respondent herein is merely trying to make capital out of his own lapse in not submitting the list of documents in time and alsonot stating the relevance of the documents required to be produced. By now, the legal position is well settled and defined. It was incumbent on the respondent to plead and prove the prejudice caused by the non-supply of the documents.The respondent has failed to place on record any facts or material to prove what prejudice has been caused to him.” (Emphasis supplied) In absence of showing any such prejudice before this Court, this point deserves to be decided against the petitioner. Accordingly, I am unable to hold that if any document was not supplied to the petitioner, it vitiated the departmental enquiry, more so when the Bank permitted the petitioner to inspect the documents at the branch and petitioner did not pay any heed to that. 10. So far the question that Preliminary Enquiry Officer was superior in rank than the Enquiry Officer is concerned, there is no material which shows that either statutorily or under the provision of settlement there was any such prohibition that Preliminary Enquiry Officer should be inferior in rank than the main Enquiry Officer, who conducts the regular domestic enquiry. Apart from this, since the main departmental enquiry was conducted after recording evidence of prosecution witnesses and Enquiry Officer has assigned independent reasons without getting influenced with Preliminary Enquiry Officer on the basis of evidence led before him, even assuming that the preliminary Enquiry Officer was superior in rank than the main Enquiry Officer, it will not vitiate the departmental enquiry. It is also gathered that petitioner raised such objection against the Enquiry Officer in the enquiry itself.The objection with regard to superiority of Preliminary Enquiry Officer from main Enquiry Officer is raised in the proceedings of domestic enquiry and this objection was not raised before the disciplinary authority. It is also gathered that petitioner raised such objection against the Enquiry Officer in the enquiry itself.The objection with regard to superiority of Preliminary Enquiry Officer from main Enquiry Officer is raised in the proceedings of domestic enquiry and this objection was not raised before the disciplinary authority. This is settled principle that the Enquiry Officer is only an agent of disciplinary authority.The Enquiry Officer has no authority, jurisdiction and competence to either change himself or to give finding on such an application.This application should have been preferred to the disciplinary authority. In absence thereof, such an objection was of no consequence and, therefore, this cannot be held that the enquiry stands vitiated on this score. 11. The petitioner took an objection for change of Enquiry Officer in the departmental enquiry.The main reason for raising such objection is that the Enquiry Officer himself is involved in some CBI matter and, therefore, no free and fair enquiry can be expected from him. In the judgment reported in State of Punjab v. V.K. Khanna [ (2001)2 SCC 330 ], the apex Court held as under : “Whereas fairness is synonymous with reasonableness. -- bias stands included within the attributes and broader purview of the word”malice” which in common acceptation means and implies “spite” or “ill will”. One redeeming feature in the matter of attributing bias or malice and is now well settled that mere general statements will not be sufficient for the purposes of indication of ill will. There must be cogent evidence available on record to come to the conclusion as to whether in fact, there was existing a bias or a mala fide move which results in the miscarriage of justice.” In South Indian Cashew Factories Workers’ Union v. Kerala State Cashew Development Corporation Ltd. [ (2006)5 SCC 201 ], the apex Court held as under : “The bias of the Enquiry Officer has to be specifically pleaded and proved before the adjudicator.Such a plea was significantly absent before the Labour Court. We also note that the Labour Court itself found that the Enquiry Officer relied on the evidence adduced in the enquiry and his findings were not perverse. We also note that the Labour Court itself found that the Enquiry Officer relied on the evidence adduced in the enquiry and his findings were not perverse. After such a finding, even if he has stated some unwarranted observations, it cannot be stated that the report is biased.” Accordingly, it is clear that mere allegation of bias will not cut any ice and there should be sufficient material to establish that there is actual likelihood of bias on the part of the Enquiry Officer. Shri S.K. Singh relied on (2010)10 SCC 539 (Mohd. Yunus Khan v. State of Uttar Pradesh), para 27 thereof reads as under : “27. The existence of an element of bias renders the entire disciplinary proceedings void.Such a defect cannot be cured at the appellate stage even if the fairness of the appellate authority is beyond dispute. (Vide S. Parthasarathi v. State of Andhra Pradesh and Tilak Chand Magatram Obhan v. Kamala Prasad Shukla). This judgment would apply in such cases where the bias is established.Even in cases where the procedure adopted by Enquiry Officer is erroneous or not in consonance with the principle of natural justice, in all cases it cannot be presumed that he is biased. The procedural irregularity is not synonymous of “bias”. Therefore, I am unable to hold that merely there were some allegations against the Enquiry Officer and since there is some procedural irregularity in the enquiry, he was biased against the petitioner. Merely because the Enquiry Officer was facing some allegations in some other matter will not preclude him to act as Enquiry Officer when allegations against him do not have relation with the enquiry in question. Thus, this issue is decided against the petitioner. 12. The petitioner has also raised objection that since charge-sheet in the domestic enquiry is founded upon the same facts on which a criminal case is pending, departmental enquiry should have been stayed. This question is also no more res integra. The basic principle which was laid down by Supreme Court in AIR 1988 SC 2118 (Kusheshwar Dubey v. M/s. Bharat Cooking Coal Ltd.), the apex Court held that the enquiry may be kept in abeyance so that petitioner’s defence in the enquiry is not prejudiced. This question is also no more res integra. The basic principle which was laid down by Supreme Court in AIR 1988 SC 2118 (Kusheshwar Dubey v. M/s. Bharat Cooking Coal Ltd.), the apex Court held that the enquiry may be kept in abeyance so that petitioner’s defence in the enquiry is not prejudiced. In the present case, the petitioner has not chosen to file any petition to stop the department from proceeding with the departmental enquiry.The petitioner although had chosen tofile Writ Petition No.3924/2005 before this Court on the ground that the documents demanded by him were not supplied, this Court declined interference at that interlocutory stage.At that stage or lateron the petitioner did not file any petition for restraining the employer to proceed in the departmental enquiry on the alleged ground that it is founded upon the same factual foundation on which criminal case is pending. Apart from this, the Supreme Court in the case of Capt. Apart from this, the Supreme Court in the case of Capt. M. Paul Anthony v. Bharat Gold Mines Ltd. [ (1999)3 SCC 679 ], held as under : “Conclusions which are deducible from various decisions of the Supreme Court (referred to in para 14 to 22 of the judgment) on this point, are as follows : (i) Departmental proceedings and proceedings in a criminal case can proceed simultaneously as there is no bar in their being conducted simultaneously, though separately; (ii) If the departmental proceedings and the criminal case are based on identical and similar set of facts and the charge in the criminal case against the delinquent employee is of a grave nature which involves complicated questions of law and fact, it would be desirable to stay the departmental proceedings till the conclusion of the criminal case; (iii) Whether the nature of a charge in a criminal case is grave and whether complicated questions of fact and law are involved in that case, will depend upon the nature of offence, the nature of the case launched against the employee on the basis of evidence and material collected against him during investigation or as reflected in the charge-sheet; (iv) The factors mentioned at (ii) and (iii) above cannot be considered in isolation to stay the departmental proceedings but due regard has to be given to the fact that the departmental proceedings cannot be unduly delayed; (v) If the criminal case does not proceed or its disposal is being unduly delayed, the departmental proceedings, even if they were stayed on account of the pendency of the criminal case, can be resumed and proceeded with so as to conclude them at an early date.” Applying the litmus test laid down by Supreme Court, it is crystal clear that it is not a fit case where the petitioner fulfills the aforesaid requirement. Merely because the petitioner is subjected to a criminal case as well, the department has not committed any error in conducting the departmental enquiry against the petitioner. In the opinion of this Court, there are no complicated questions of fact and law involved and therefore the department was under no obligation to stay their hands in conducting the domestic enquiry. Accordingly, this issue is also decided against the petitioner. 13. Petitioner preferred Annexures P-17 and P-19, which were rejected by the Bank by document Annexure P-20. In the opinion of this Court, there are no complicated questions of fact and law involved and therefore the department was under no obligation to stay their hands in conducting the domestic enquiry. Accordingly, this issue is also decided against the petitioner. 13. Petitioner preferred Annexures P-17 and P-19, which were rejected by the Bank by document Annexure P-20. The request of petitioner to examine the documents by a Government expert situated at Calcutta was declined by the employer on the ground that there exists an authorised licensed handwriting expert at Gwalior itself, who can examine the said documents. The said witness Rajiv Verma subsequently entered the witness box and produced the licence and other requisite documents, which enables him to do the same. No rule or provision has been shown by the petitioner which shows that such an action of the Bank either violates the principles of natural justice or any legal, valuable or statutory right of the petitioner is infringed.The petitioner has not assailed the genuineness of the handwriting expert, i.e., his qualification and licence etc. and, therefore, merely because the petitioner’s request for examining the documents by Government authorities is declined, I am unable to hold that the enquiry stands vitiated on this score. Accordingly, this point is also decided against the petitioner. 14. The petitioner has raised his eyebrow in the manner departmental enquiry was conducted. Shri Singh has raised serious objections in the manner the departmental enquiry was conducted. He submits that it is an unique enquiry, which is totally unknown to service jurisprudence where all the prosecution witnesses were put to examination-in-chief and without there being cross-examination of one witness, statement of another witness is recorded. In the opinion of this Court, the purpose of completing examination-in-chief of one witness followed by his cross-examination is based on the age old practice and principle that one witness completes his statement in examination-in-chief and then subjected to cross-examination. After cross-examination first witness is discharged and then second witness enters the witness box. This age old practice and principle is prevailing so that a witness after examination-in-chief and cross-examination cannot improve upon or fill the lacunae after hearing the examination-in-chief of the other witnesses. It is clear that in the present enquiry, all the examination-in-chief were made and then it was directed that the delinquent employee may cross-examine those witnesses.Thus, enquiry vitiates on this count. 15. It is clear that in the present enquiry, all the examination-in-chief were made and then it was directed that the delinquent employee may cross-examine those witnesses.Thus, enquiry vitiates on this count. 15. Shri Singh further submits that in the departmental enquiry the defence representative was a Branch Manager of the Central Bank. The said defence representative on three consecutive dates cross-examined the prosecution witnesses and because of his preoccupation being a responsible officer of a public sector bank the defence representative showed his inability to appear on the next date of hearing. On this ground the petitioner made a request to the Enquiry Officer that since on last three days his defence representative was present and cooperating, he be given sometime to enable him to get the facility of defence representative because he is not acquainted with the technical rules of domestic enquiry and on account of the complex nature of charges. The said request of the petitioner was declined by the Enquiry Officer. 16. On the contrary, Shri Rao submits that in the enquiry full reasonable and adequate opportunity of hearing was provided to the petitioner. He submits that the petitioner took several adjournments and in view of unnecessarily delay being caused to the enquiry, the Enquiry Officer had no other option but to proceed ex parte. 17. I have heard learned counsel for the parties on this issue and perused the record. 18. A bare perusal of the enquiry proceedings shows that the prosecution witnesses’ statements were recorded by way of their examination-in-chief and without putting them to cross-examination another prosecution witness is permitted to depose his statement. I agree that the procedure followed by the prosecution is totally unknown to law. Apart from this, the star witness of prosecution was Rajiv Verma, the handwriting expert.The said person was produced before the Enquiry Officer on 13.12.2006. A bare perusal of the proceeding of that date shows that the petitioner at the threshold informed that he is not in a position to participate in the domestic enquiry because on the same day his criminal case is listed before the Court. By giving this information, the petitioner left the proceedings.Thereafter the Enquiry Officer without adverting to the request of the petitioner conducted the enquiry ex parte on the said date and recorded the statement of the handwriting expert Mr. Rajiv Verma. By giving this information, the petitioner left the proceedings.Thereafter the Enquiry Officer without adverting to the request of the petitioner conducted the enquiry ex parte on the said date and recorded the statement of the handwriting expert Mr. Rajiv Verma. Thereafter the presenting officer at the end of these proceedings dated 13.12.2006 made a request to the Enquiry Officer that a fixed date may be given to the defence to enable them to cross-examine Rajiv Verma, the handwriting expert. Interestingly, the Enquiry Officer fixed the matter on the same day at 3:00 p.m. At 3:30 p.m. the enquiry started and he recorded the statement of MW8 Prahlad Das.Thereafter Enquiry Officer started proceedings on the next day on 14.12.2006. On 14.12.2006 it was intimated to the Enquiry Officer that the date of enquiry could not be communicated to the petitioner on telephone/cellphone. The Enquiry Officer, accordingly directed to inform the petitioner by telegram. This direction was given by the Enquiry Officer in a proceeding which initiated at 11:45 a.m. and he issued this direction for informing the petitioner by telegram and fixed the matter on very same day at 12:10 hour. Despite specific question by the Bench, learned counsel for the Bank are not able to inform whether such telegram was ever issued and served. In the result, petitioner had no intimation of the date and did not appear before the Enquiry Officer, yet the Enquiry Officer continued to record the statements of prosecution witnesses behind his back. At a later date, petitioner was informed and then he and his defence representative started appearing and even cross-examined few witnesses of the prosecution. 19. As narrated above, after consecutively cross-examining the prosecution witnesses for three continuous days, the defence representative showed his inability because of his own work and preoccupation. At this stage petitioner prayed for adjournment so that he can be assisted by his defence representative.This request was specifically made by the defence representative in the proceedings dated 21.2.2007. On the next date, the presenting officer vehemently opposed the adjournment and on 22.2.2007 the Enquiry Officer gave last opportunity to the petitioner and ultimately on 22.2.2007 closed the enquiry. It is pertinent to mention here that the prosecution witnesses deposed their statements. The defence representative cross-examined few of them. On the next date, the presenting officer vehemently opposed the adjournment and on 22.2.2007 the Enquiry Officer gave last opportunity to the petitioner and ultimately on 22.2.2007 closed the enquiry. It is pertinent to mention here that the prosecution witnesses deposed their statements. The defence representative cross-examined few of them. Thereafter it was the turn of the petitioner to complete the remaining cross-examination and then lead evidence on his part.The Enquiry Officer by last proceedings not only closed the right of the petitioner to cross-examine the aforesaid remaining prosecution witnesses but closed the entire enquiry without giving any opportunity to the petitioner to lead his defence evidence in rebuttal. 20. The basic question is whether action of the Enquiry Officer was in consonance with the principles of natural justice while denying the adjournment to the petitioner. In the opinion of this Court, the action of the Enquiry Officer cannot be upheld as per principles of natural justice.The proceedings show that the petitioner’s defence representative was cooperating and continuously cross-examined the prosecution witnesses for three continuous days. Since he was a responsible officer/Branch Manager, he made a genuine request for grant of time. The Enquiry Officer ought to have granted him time and should have adjourned the matter to enable the petitioner to effectively defend himself in presence of the defence representative.The enquiry stands vitiated on yet another ground that after closing the right to corss-examine the prosecution witnesses, abruptly, the Enquiry Officer closed the right of petitioner to lead any defence evidence. 21. 21. This is settled in law in view of catena of judgments of Supreme Court that this Court is not obliged to act as an appellate authority to recall or reassess the evidence led in the departmental enquiry.The subject-matter of challenge in which this Court can examine the validity of a domestic enquiry is not the decision taken by the employer but the decision making process.The apex Court in Apparel Export Promotion Council v. A.K. Chopra [ (1999)1 SCC 759 ], held as under : “Judicial review, not being an appeal from a decision, but a review of the manner in which the decision was arrived at, the Court, while exercising the power of judicial review, must remain conscious of the fact that if the decision has been arrived at by the administrative authority after following the principles established by law and the rules of natural justice and the individual has received a fair treatment to meet the case against him, the Court cannot substitute its judgment for that of the administrative authority on a matter which fell squarely within the sphere of jurisdiction of that authority.” In State of Uttar Pradesh v. Man Mohan Nath Sinha [ (2009)8 SCC 310 ], the apex Court held as under : “The legal position is well settled that the power of judicial review is not directed against the decision but is confined to the decision-making process.The Court does not sit in judgment on merits of the decision.” Thus, examining the departmental enquiry on the anvil of this would show that the decision making process was polluted/vitiated for the reasons stated above. 22. Shri Rao has taken pains to show that this Court should not interfere in the quantum of punishment. Shri Rao vehemently argued that the petitioner’s track record is also bad and in banking business such employee cannot be kept in employment. He further submits that the punishment imposed on the petitioner is neither excessive nor disproportionate, which warrants interference of this Court under Article 226 of the Constitution of India. 23. Before adverting to this issue, the basic issue is again “due process” or “decision making process”.The petitioner preferred a detailed representation against the IO’s report, which is running in so many pages. 23. Before adverting to this issue, the basic issue is again “due process” or “decision making process”.The petitioner preferred a detailed representation against the IO’s report, which is running in so many pages. The disciplinary authority rejected the same by a single stroke of pen without dealing with the contention and without assigning any reason as to why the defence taken by the petitioner is not trustworthy. The apex Court in its constitutional judgment reported in (1993)4 SCC 727 (Managing Director, ECIL, Hyderabad v. B. Karunakar), held that the opportunity to represent against IO’s report is not an empty formality. This right is flowing from Article 140 of the Constitution. The apex Court in the aforesaid judgment held as under : “The supply of the copy of the report is neither an empty formality, nor a ritual, but aims to digress the direction of the disciplinary authority from his derivative conclusions from the report to the palliative path of fair consideration. The Enquiry Officer is a delegate of the disciplinary authority, he conducts the inquiry into the misconduct and submits his report, but his findings or conclusions on the proof of charges and his recommendations on the penalty would create formidable impressions almost to be believed and accepted unless they are controverted vehemently by the delinquent officer.” This judgment is consistently followed by High Court to Highest Court. Accordingly, the disciplinary authority’s order is also an example of non-application of mind. The appellate order suffers from same illegality and infirmity. The petitioner’s appeal is pregnant with various facts and grounds raised by him. The appellate authority has assigned no reasons and rejected the appeal without application of mind. The apex Court in catena of judgments has held that the appellate authority is under a legal and statutory obligation to deal with the points raised by the delinquent employee. In (1986)3 SCC 103 (Ram Chander v. Union of India), the apex Court took this view which is consistently followed in (2006)11 SCC 147 (Director (Marketing), Indian Oil Corporation Ltd. v. Santosh Kumar), (2008)8 SCC 236 (State of Uttaranchal v. Kharak Singh). In (1986)3 SCC 103 (Ram Chander v. Union of India), the apex Court took this view which is consistently followed in (2006)11 SCC 147 (Director (Marketing), Indian Oil Corporation Ltd. v. Santosh Kumar), (2008)8 SCC 236 (State of Uttaranchal v. Kharak Singh). In (2009)4 SCC 240 (Chairman, Disciplinary Authority, Rani Lakshmi Bai Kshetriya Gramin Bank v. Jagdish Sharan Varshney), also the apex Court has held as under : “The purpose of disclosure of reasons, as held by a Constitution Bench of this Court in S.N. Mukherjee v. Union of India, is that people must have confidence in the judicial or quasi-judicial authorities. Unless reasons are disclosed, how can a person know whether the authority has applied its mind or not? Also, giving of reasons minimises the chances of arbitrariness. Hence, it is an essential requirement of the rule of law that some reasons, at least in brief, must be disclosed in a judicial or quasi-judicial order, even if it is an order of affirmation.” Thus, the punishment order and appellate order are liable to be quashed and struck down because of non-application of mind by the said authorities. In (2009)2 SCC 570 (Roop Singh Negi v. Punjab National Bank), (2009)2 SCC 570 , also the apex Court took the same view, which reads as under : “Furthermore, the order of the disciplinary authority as also the appellate authority are not supported by any reason. As the orders passed by them have severe civil consequences, appropriate reasons should have been assigned.” 24. The petitioner submits that he is an scape goat and he should not have been inflicted with any kind of punishment. In the opinion of this Court, this is premature in presenti. This Court agrees with the judgments cited by learned senior counsel Shri S.K. Rao, i.e., (2004)7 SCC 581 (NTC WBAB & O) Ltd. v. Anjan K. Saha), (1996)9 SCC 322 (State of Punjab v. Dr. Harbhajan Singh Greasy), and AIR 1991 SC 1221 (J.K. Aggarwal v. Haryana Seeds Development Corportion Ltd.), wherein the apex Court held that where the departmental enquiry is vitiated because of not following the principles of natural justice/technical ground, the proper course is to remit the matter back from the stage the defect had occurred by permitting the disciplinary authority to proceed from that stage. 25. 25. On the basis of aforesaid analysis, I have no hesitation to hold that the departmental enquiry is vitiated because of recording of statements of prosecution witnesses continuously without putting them to cross-examination. The enquiry is also vitiated because there is no material on record to show that the said telegram was ever issued or served on the petitioner. There is no material on record which shows that there is any valid service of dates of enquiry on the petitioner after the date when telegram was directed to be issued. Proceeding ex parte abruptly, depriving from adjournment despite genuine ground and closing enquiry without cross-examination and evidence in rebuttal also vitiates the enquiry. In this view of the matter, the petitioner’s valuable right to defend himself in a reasonable and effective manner flowing from Article 14 of the Constitution is infringed and taken away. Accordingly, I hold that the enquiry from the stage indicated above, punishment order and appellate order stand vitiated. However, liberty is reserved to the respondents to conduct the enquiry from the stage of recording of statement of prosecution witnesses as per law. Needless to mention that the petitioner shall be given adequate opportunity to defend himself. In the facts and circumstances, the respoondents may complete the enquiry in eight months.The petitioner shall cooperate with the enquiry. 26. So far the question of back wages is concerned, since the matter is remitted back to the Enquiry Officer to conduct further enquiry, the question of back wages for the remaining period will be decided by the authorities after enquiry is completed and it will depend on the outcome of the enquiry. The petitioner shall be treated to be under suspension from the date of removal and he be paid subsistence allowance in accordance with law minus any amount which is already paid to the petitioner. 27. Consequently, the petition stands allowed to the extent indicated above. No costs. .............