ORDER 1. Late Sachidanand Mishra was appointed as Typist –cum- Clerk in the State Bank of India at Kolkata in the year 1974. During his life time, he was served with a memo of charges on 28.12.1991 which culminated in the departmental proceeding. The findings of the Enquiry Officer was challenged by Late Sachidanand Mishra and the matter was referred to under Section 10 (1) (d) of the Industrial Dispute Act, 1947 to the Central Government Industrial Tribunal –cum- Labour Court II, Dhanbad. Once the case was registered, Sachidanand Mishra died. He was duly substituted by his son, who filed a written statement before the Central Government Industrial Tribunal, Dhanbad challenging the orders passed by the Enquiry Officer and the Disciplinary Authorities. 2. The Industrial Tribunal, in essence, held that it would not interfere and appraise the findings of the Enquiry Officer and the subsequent appeals filed against the said findings of the Enquiry Officer by Late Sachidanand Mishra, it will only consider whether the quantum of punishment is justified. 3. Counsel appearing on behalf of the petitioner seeks to challenge the procedure, in which the departmental enquiry was conducted, the findings of the Enquiry Officer, Disciplinary Authority, Appellate Authority as well as the award of the Industrial Tribunal. The facts reveal that a charge sheet was served on Late Sachidanand Mishra asking him to show cause on the following charges:- “(i) That despite repeated instructions of the Manager (Accounts) of Service Branch to you, you did not care to maintain the Bank’s discipline and neglected the work allotted to you. (ii) That you left office on 3rd, 4th, 7th, 8th and 9th of Oct., 1991 at 1.00 PM, 11.30 PM, 12.30 PM, 11.30 PM and 12.30 PM respectively without taking permission from the competent authority of the Branch and also did not attend to the works allotted to you. A suitable noting to the effect of your leaving the office before time was made in the Attendance Register, but after tempering it, you changed your departure times to read as 5.30 PM and 2.30 PM respectively although you left office much earlier, as stated above.” 4. It has been said in the charge sheet that the aforesaid charges amount to gross misconduct under para 521(4)(e) and 521(4)(j) of the Sastri Award as retained by Desai Award. It has been said in the charge sheet that the aforesaid charges amount to gross misconduct under para 521(4)(e) and 521(4)(j) of the Sastri Award as retained by Desai Award. It may be noted that while serving the charges, the documents on which the Enquiry Officer intended to rely upon were not annexed with the charge sheet. The enquiry was initiated and the order passed by the Enquiry Officer is contained in Annexure-14. Late Sachidanand Mishra raised several objections during the proceeding including a prayer to produce the original documents and prove the said documents. 5. Before commenting on the findings of the Enquiry Officer, it would be proper for this Court to refer to the provisions of the Sastri Award on the basis of which Late Sachidanand Mishra was dismissed from service. The provisions of the Sastri Award define two types of misconduct: gross misconduct and minor misconduct. Gross misconduct has been defined from para 521(4).19.5 onwards. The relevant provisions are as follows:- “521(4).19.5 By the expression “gross misconduct” shall be meant any of the following acts and omissions on the part of an employee:- ………………… ………………… 521(4)(e).19.5.(e) Wilful insubordination or disobedience of any lawful and reasonable order of the management or of a superior. ………………………. ………………………. 521(4)(j).19.5.(j). Doing any act prejudicial to the interests of the Bank, or gross negligence involving or likely to involve the Bank in serious loss.” 6. The manner in which punishment may be awarded for gross misconduct has been provided in para 521.(5).19.6 onwards. 7. The contention on behalf of the petitioner is that there is no material to show that the petitioner was guilty of gross misconduct or for that matter was guilty of even minor misconduct. It is submitted that he has been victimized, the allegations are vague and the attendance register does not indicate as to whether the entry made by the Superior Authority was made on the time and date the petitioner had left the office or was inserted much later, for the purposes of prosecuting Late Sachidanand Mishra. It is further submitted that even if this Court would accept that the attendance register, the original of which has been produced before this Court, is correct, there is no sign that there was overwriting in the said register and as such, the allegations as they stand would not attract even minor punishment. 8. It is further submitted that even if this Court would accept that the attendance register, the original of which has been produced before this Court, is correct, there is no sign that there was overwriting in the said register and as such, the allegations as they stand would not attract even minor punishment. 8. Para 521(6).19.7 of the Sastri Award describes the acts which can be clubbed as minor misconduct. Counsels submit that even if the allegations are found to be prima facie true, they would come within the purview of Para 521(6)(b).19.7.(b) and 521(6)(c).19.7.(c) of the said Award and the punishments which can be awarded for minor misconduct has been prescribed in 521(7)(a).19.8.(a) to521(7)(c).19.8.(c). The relevant provisions as contained in 521(6)(b).19.7.(b) and 521(6)(c).19.7.(c) of the Sastri Award is quoted below:- “521(6)(b).19.7.(b) – Unpunctual or irregular attendance; 521(6)(c).19.7.(c) – Neglect of work, negligence in performing duties.” 9. It is submitted that the charges as framed by the Enquiry Officer would be covered by the aforesaid provisions. 10. Reverting to the facts, the Enquiry Officer for the first time while conducting the proceeding as stated as follows:- “While presenting the case, the prosecution has made analysis, the main point of the charges as incorporated in charge no. 1 and charge no. 2 are as under: 1. That Shri S.N. Mishra, head Clerk, charged employee did not care to maintain Bank’s discipline by not performing the allotted duties despite several verbal as well as written instructions of the Manager (Accounts) and Branch Manager designated Assistant General Manager which is an act of willful disobedience of lawful and reasonable orders of the management. 2. That he left office much earlier than the actual departure time on regular basis the dates are as mentioned in charge no. 2 without giving information to any competent authority of the Branch and leaving behind his allotted duties as a result of which the Branch work dislocated and hampered. 3. That he tampered the Branch Attendance Register putting his departure time as 5.30 PM and 2.30 PM respectively over the remarks made by the Manager (Accounts) in Red Ink against his (charged employee) name on the dates 03.10.1991, 04.10.1991. 07.10.1991 to 10.10.1991. 11. 3. That he tampered the Branch Attendance Register putting his departure time as 5.30 PM and 2.30 PM respectively over the remarks made by the Manager (Accounts) in Red Ink against his (charged employee) name on the dates 03.10.1991, 04.10.1991. 07.10.1991 to 10.10.1991. 11. The prosecution submitted that the aforesaid lapses/misconduct on the part of the charged employee are established from the documents, papers placed before the enquiry as PEX-1 to PEX-13 as well as corroborated from the statement/deposition made by the Prosecution Witnesses PW-1 to PW-5. 12. Prosecution further explains and put forth his discussion regarding the charge that Shri Mishra, charged employee did not care to maintain Branch discipline by not performing his allotted duties despite several verbal as well as written instructions of the Manager (Accounts) is established from the exhibits marked as PEX-3, PEX-4 to PEX-8. Further PEX-12/1 to PEX-12/4 and PEX-13. PEX-3 is the Office Order Register of Service Branch dated 01.11.1990 to 28.05.1992 placed in original to justify the fact that duties allotted to Shri Mishra vide various Office Order dated 16.11.1990, 18.12.1990, 20.02.1991, 10.05.1991, 27.06.1991, 04.07.1991, 26.07.1991, 12.08.1991, 19.09.1991, 24.09.1991, 28.09.1991, 02.03.1992 and 01.04.1992. The above office orders have not been performed by the charged employee which is evident on perusal of some of the Branch Books, Files, Register pertaining to his allotted duties marked PEX-12/1 to PEX-12/4 and PEX-13. 13. Besides the documentary evidences, the fact has also been corroborated on the basis of the deposition made by Shri P.K. Roy Choudhary PW-5 recorded in the proceedings. Shri Choudhary PW-5 has very clearly stated that checkings of schedule 3 and 7 and Branch Clearing Daily Statement marked PEX-12/1 to 12/4, 13 from 28.09.1991 to 10.10.1991 and so on has not been checked by Shri Mishra. The above duties were allotted to Shri Mishra vide Office Order No. 34 dated 28.09.1991 till further instructions which continued till the material period upto 10.10.1991. The opportunity was given to Shri Mishra to show his sincerity towards Bank’s work. But Shri Mishra preferred to remain indifferent knowingly and negligent towards Bank’s work. Shri Mishra started leaving office much earlier than the departure time and for which he (charged employee) has been asked explanation by the authority concerned in terms of several Memos issued to him which are placed as Prosecution Exhibits marked PEX-4 to PEX-8. But Shri Mishra preferred to remain indifferent knowingly and negligent towards Bank’s work. Shri Mishra started leaving office much earlier than the departure time and for which he (charged employee) has been asked explanation by the authority concerned in terms of several Memos issued to him which are placed as Prosecution Exhibits marked PEX-4 to PEX-8. The exhibits mentioned above bear testimony to the aforesaid facts and as such the charge no. 1 is proved beyond doubt. CHARGE NO. 2 14. The fact that the charged employee left the office much earlier than the actual departure time on various dates as mentioned in the charge sheet and also leaving behind his allotted duty which has been established in the charge no. 1 having reference of exhibits thereto, and also without taking permission for the same from the competent authority of the Branch and also tampered the Branch Attendance Register of the captioned dates by putting his departure time as 5.30 PM and 2.30 PM respectively over the remarks made against his name by the Manager (Accounts) are established from the documents marked PEX-1, PEX-2 and PEX-4 to PEX-10 as well as corroborated from the deposition made by prosecution witnesses Shri B. Ganguly, Manager (Clg.) PW-4 and Shri A. K. Chakhaiyar, Manager (Accounts) PW-1, Shri Md. Jumratee, Head Clerk, PW-3 and Shri P. K. Roy Choudhary, Officer PW-5. PEX-1 is the original Attendance Register of Service Branch wherein remarks have been made by the Accounts Manager, PW-1 against the name of Shri S.N. Mishra in Red Ink on the dates 03.10.1991, 04.10.1991, 07.10.1991 to 10.10.1991 and so on reading as left office at 1.00 PM and 11.20 AM respectively. The remarks made against the dates 03.10.1991, 09.10.1991, 11.10.1991 and 12.10.1991 have been witnesses by Shri B. Ganguly, PW-4 which is evidence from his deposition recorded in the Proceedings.” 15. It is obvious that it is for the first time during the proceeding that the Enquiry Officer has given details regarding the charges which were not at any stage served to Late Sachidanand Mishra. In other words, it is for the first time that the authorities have referred to certain documents which they claim were written orders issued to Late Sachidanand Mishra, asking him to perform certain duties which he purportedly failed to do. The contents of the so-called verbal orders have not been explained at this stage. In other words, it is for the first time that the authorities have referred to certain documents which they claim were written orders issued to Late Sachidanand Mishra, asking him to perform certain duties which he purportedly failed to do. The contents of the so-called verbal orders have not been explained at this stage. The duties that were to be performed by Late Sachidanand Mishra have not been categorized while analyzing the contents of charge 1 and charge 2. The Enquiry Officer had no business to allow this type of presentation. The authority in question ought to have framed these charges at the very initial stage and served a copy of the charges along with the documents that they intended to rely upon, so that Late Sachidanand Mishra could have filed his show cause either denying or accepting that such letters/orders were issued to him. These additional charges, in plain words, have been framed after Late Sachidanand Mishra had filed his show cause and thus, it is apparent that he did not get an opportunity to respond to the so-called additional charges. 16. The procedure and the manner in which the Enquiry Officer has conducted the enquiry, is unknown to law. There are several judgments of the Supreme Court which support the aforesaid observations of this Court. The case of Pepsu Road Transport Corporation vs. Lachhman Dass Gupta and Another [ (2001) 9 SCC 523 ] is one such judgment. In this case, it was held by the Supreme Court that once the Court had concluded that the document relied upon by the department in establishing the charge have not been given to the delinquent, the conclusion is irresistible that the delinquent had been denied a reasonable opportunity to defend himself in the proceeding. The present case stands on a better footing inasmuch as the Enquiry Officer has permitted new charges to be introduced during the proceeding which were not ever served to Late Sachidanand Mishra. On the basis of the aforesaid documents, the Enquiry Officer came to the conclusion that Late Sachidanand Mishra had not followed the orders of his Seniors and was thus guilty of gross misconduct. 17. On the basis of the aforesaid documents, the Enquiry Officer came to the conclusion that Late Sachidanand Mishra had not followed the orders of his Seniors and was thus guilty of gross misconduct. 17. Regarding Charge No. 2, which is that Late Sachidanand Mishra had on several occasions left the Office early although he had shown his departure time at 5.30 PM, it has been held by the Enquiry Officer that there is overwriting in the Attendance Register inasmuch as it is stated that the Superior Authority has written the departure time of Late Sachidanand Mishra in red ink. Surprisingly, the Attendance Register which is of the year 1991 apart from the month of October, does not indicate that Late Sachidanand Mishra was in the habit of departing from the office earlier to the closing time of the Bank. It has been pointed out that malafide would be apparent from the register. Noting in the register indicates that the word “shri” has been pre-fixed before the name of all the employees mentioned in the Register, whereas the delinquent has been described as S.N. Mishra. It is apparent that even if the Attendance Register is to be accepted at its face value, it would appear that Late Sachidanand Mishra can be held guilty of departing from the Office earlier to the time mentioned by him in the attendance register. It is very difficult for the Enquiry Officer or this Court to conclude that the entry made by the Superior Authorities was made prior to the entry made by Late Sachidanand Mishra. 18. After the Enquiry Report was submitted, Late Sachidanand Mishra was issued a show cause vide Annexure-15 by the Disciplinary Authority. In the show cause, it is mentioned that the Enquiry Officer has held “the charges levelled against him for not maintaining the Bank’s discipline and for neglecting the works allotted to him and …….”. It is apparent that the show cause also does not specifically disclose the so called neglect of work and the loss caused to the Bank because of such neglect. The delinquent filed his show cause against the proposed punishment of dismissal. Annexure-17 is the order of dismissal passed by the Assistant General Manager-II and the Disciplinary Authority on 08.07.1994. The said order is a non-speaking order, does not consider the show cause or findings regarding any aspect of the issues raised by the delinquent. The delinquent filed his show cause against the proposed punishment of dismissal. Annexure-17 is the order of dismissal passed by the Assistant General Manager-II and the Disciplinary Authority on 08.07.1994. The said order is a non-speaking order, does not consider the show cause or findings regarding any aspect of the issues raised by the delinquent. The delinquent being aggrieved by the said punishment of dismissal “without notice” filed an appeal and the appellant order is contained in Annexure-20, which again is a non-speaking order and the appeal has been disposed of in two short paragraphs without stating any reason or giving any facts. 19. Lastly, this Court will discuss the award of the Industrial Tribunal. While discussing the findings, the Industrial Tribunal has come to the conclusion that the domestic enquiry conducted by the Enquiry Officer was fair, proper and in accordance with the principles of natural justice. The Industrial Tribunal had also held that the workman was responsible for manufacturing document and that he had tempered with the attendance register by interpolation in the documents. Having come to the conclusion, the Industrial Tribunal having concluded that the enquiry was fair has held that there is no option to him to consider or reappraise the evidence, rather the only question for him to consider is the quantum of punishment. The Industrial Tribunal has reproduced the charges and on the basis of the aforesaid charges, has held that they would be covered by Para 521(4)(e) and 521(4)(j) of the Sastri Award. 20. As mentioned earlier by me, the charges framed do not include the charges which were considered by the Enquiry Officer, rather the charge no. 1 is vague, does not describe the manner in which the delinquent had neglected to perform his duties or the effect of such non-performance of duties. Thus, it would appear that the entire findings as far as charge no. 1 is concerned, has to be rejected. On the basis of the said charges framed, the Enquiry Officer could not have concluded that Late Sachidanand Mishra was guilty of neglect of duties. The additional material sought to be relied upon by the Enquiry Officer was not part of the charges nor was it even served to the delinquent. 1 is concerned, has to be rejected. On the basis of the said charges framed, the Enquiry Officer could not have concluded that Late Sachidanand Mishra was guilty of neglect of duties. The additional material sought to be relied upon by the Enquiry Officer was not part of the charges nor was it even served to the delinquent. However, it cannot be said that there was no neglect of duty as the very fact that the delinquent had left the office without permission or left earlier to the closing time, would lead to the conclusion that he was neglecting his work. In the circumstances, this Court would hold that the Disciplinary Authority imposing the punishment ought to have considered this aspect of the matter and held Late Sachidanand Mishra guilty of charges of minor misconduct and impose punishment as provided under Sastri Award. 21. Before parting with the order, I must refer to the submissions raised on behalf of the Bank that the Enquiry Officer was completely justified in relying on the documents and that Late Sachidanand Mishra had an opportunity to examine the documents and make his submission accordingly. It is also stated that the Industrial Tribunal does not have the power to reappraise the evidence and for this purpose, relies on certain judgments. It is submitted that the case of victimization pleaded by the delinquent has to be proper and adequately pleaded giving the document upon which the charges are based, to enable the employer to fully meet them. 22. In the case of M/s Bharat Iron Works vs. Bhagubhai Balubhai Patel and Others [ AIR 1976 SC 98 ], the Court has considered this aspect of the matter. The application was filed under Section 33 of the Industrial Dispute Act. The Supreme Court has held that the Tribunal has initially a limited jurisdiction only to see whether a prima facie case is made out in respect of misconduct. However, it has been held that where there is a case of violation of principle of natural justice or where the procedure for conducting the domestic enquiry is not followed, the Tribunal may reappraise the evidence, in certain circumstances as laid down by the Apex Court in the judgment aforesaid. The Apex Court also took into account that the plea of victimization has to properly and adequately pleaded giving particulars on which the charge is based. The Apex Court also took into account that the plea of victimization has to properly and adequately pleaded giving particulars on which the charge is based. This case would support the contentions of the petitioner , rather than the Bank inasmuch as in the present facts, the proceedings itself is not free from defects and as such, the question of the jurisdiction of the Industrial Tribunal, reappraising the evidence will only be considered if the proceedings itself was defect free. 23. In a later judgment i.e. in the case of Mavji C. Lakum vs. Central Bank of India [ 2008 (12) SCC 726 ], the Supreme Court has held that in an application under Section 11A of the Industrial Dispute Act, where the Tribunal had altered the punishment awarded to the delinquent holding that the misbehaviour was not fully proved and did not deserve the extreme punishment of discharge, upheld the order of the Tribunal. 24. It has been observed that even if the enquiry was fair, it was not necessarily mean that the findings were correct. Thus, both aspects of the matter can be seen and looked into by the Tribunal. This Court, therefore, concludes that the punishment of dismissal was not warranted in this case in view of the discussions made above. The matter is remanded to the Disciplinary Authority for the purpose of examining the punishment that can be awarded to the delinquent who is now dead, considering that one of the punishment that can be awarded is withholding of increment for six months. 25. Accordingly the orders contained in Annexures- 14, 17, 20 and the award of the Industrial Tribunal are set aside. The delinquent would have to be reinstated as a result of the setting aside of the order of dismissal, but since he is dead, the quantum of punishment would need to be determined, and thereafter, the consequential orders passed, taking into consideration the effect of punishment awarded for the purpose of calculating his dues which would now be payable to his heirs. 26. This writ application is allowed to the extent indicated aforesaid.