Judgment :- 1. Petitioners are the wife and son of one C.Thanigachalam, now deceased, who was employed as Armed Guard/Assistant (A/c) with the second respondent. In respect of certain alleged wrong doing of the said employee a charge memo dated 03.09.1999 was issued informing as follows: "i) On 25.06.98, when you were working as Assistant (Accts./Cash) at the Branch, you unauthorisedly withdrew a sum of Rs.2,000/- (Rupees Two thousand only) from the Savings Bank Account No.11/2844 of Shri G.George William by forging his signature on the withdrawal slip and misappropriated the amount. You have thus fraudulently withdrawn a sum of Rs.2,000/- from the aforesaid Savings Bank Account by forging the signature of the Account holder on the withdrawal slip and misappropriated the amount. Your above act of fraudulent withdrawal of a sum of Rs.2,000/- from the SB Account No.11/2844 of Shri G.George William maintained at the Branch by forging the Account holder's signature on the relative withdrawal slip and misappropriation of the said amount, if proved, would amount to an act prejudicial to the interest of the Bank and hence a "gross misconduct" in terms of para 521 (4) (j) of Sastry Award read with para 18.28 of Desai Award. ii) Out of the amount of Rs.2,000/-so withdrawn by you in a fraudulent manner and misappropriated by you as stated supra you remitted back into the SB Account No.11/2844 of Shri G.Geroge William a sum of Rs.1,000/-(Rupees One thousand only) on 04.01.99 by preparing the relative credit voucher and signing the same as the remitter of the amount. You have thus misappropriated the said sum of Rs.1,000/-out of the toal sum of Rs.2,000/- (which legitimately belonged to Shri G.George William, and was lying in his SB Account No.11/2844 with the Branch) which was fraudulently withdrawn by you on 25.06.98 by forging the Account holder's signature on the withdrawal slip dt 25.06.98, for a total period of 193 days (i.e frin 25.06.98 to 03.01.99). Your above act of misappropriating the amount of Rs.1,000/-out of the total sum of Rs.2,000/- fraudulently withdrawn by you through forged withdrawal slip dt. Your above act of misappropriating the amount of Rs.1,000/-out of the total sum of Rs.2,000/- fraudulently withdrawn by you through forged withdrawal slip dt. 25.06.98 from the SB Account No.11/2844 of Sgru G.George William, customer of the Branch, for a period of 193 days, if proved, would amount to an act prejudicial to the interest of the Bank and hence a "gross misconduct" in terms of para 521 (4) (j) of Sastry Award read with para 18.28 of Desai Award. iii) You remitted back, on 17.02.99, a sum of Rs.1,000/-(Rupees One thousand only) into the SB A/c. No.11/2844 of Shri G.George Willaim maintained at the Branch, out of the total sum of Rs.2,000/- fraudulently withdrawn by you through forged withdrawal slip dt 25.06.98 from the SB Account No.11/2844 of Shri G.George William as stated above, by preparing the relative credit voucher for Rs.1,000/-and signing the same as the remitter of the amount. You have thus misappropriated the said sum of Rs.1,000/-out of the total sum of Rs.2,000/- (which legitimately belonged to Shri G.George William, and was lying in his SB Account No.11/2844 with the Branch) which was fraudulently withdrawn by you on 25.06.98 by forging the Account holder's signature on the withdrawal slip dt.25.06.98, for a total period of 237 days (i.e from 25.06.98 to 16.02.99). Your above act of misappropriating the amount of Rs.1,000/-out of the total sum of Rs.2,000/- fraudulently withdrawn by you through forged withdrawal slip dt. 25.06.98 from the SB Account No.11/2844 of Shri G.George William, customer of the Branch, for a period of 237 days, if proved, would amount to an act prejudicial to the interest of the Bank and hence a "gross misconduct" in terms of para 521 (4) (j) of Sastry Award read with para 18.28 of Desau Award. iv) When you were working as Assistant (Accts./Cash) at the Branch, during January 1998, before the pPongal festival, you failed to account for in the Branch books the amount of Rs.1,900/- (Rupees One thousand nine hundred only) received by you at your cash counter from one Shri A.Pachaiyappan, a customer having Agricultural Gold Loan Account No.14/379 at the Branch, for credit of his above loan account and misappropriated the amount. You have thus failed to account for n the Branch books the amount of Rs.1,900/-remitted at your cash counter by Shri A.Pachaiyappan, a customer of the Branch, for credit of his Agricultural Gold Loan Account No.14/379 and misappropriated the amount. Your above act of not accounting for in the Branch books the amount remitted by a customer of the Branch as stated above and misappropriating the amount without crediting the same into the AGL A/c No.14/379 of Shri Pachaiyappan, if proved, would amount to act prejudicial to the interest of the Bank and hence a "gross misconduct" in terms of para 521 (4) (j) of Sastry Award read wutg oara 18.28 of Desai Award. v) Eventhough you did not credit the amount of Rs.1,900/-(Rupees One thousand nine hundred only) remitted at your cash counter during January 1998, before the Pongal festival, by Shri A.Pachaiyappan, having Agricultural Gold Loan a/c No.14/379 at the Branch, for credit of his above loan account, you made unauthorised entries in the relative Gold Loan Memo Card as though the amount has been received by the Bank and has been accounted for in its books, but without mentioning therein the date of remittance of the above mentioned amount. You have thus made the above unauthorised, extraneous entries in the Gold Loan Memo Card pertaining to the Agricultural Gold Loan Account No.14/379 of Shri A. Pachaiyappan, without mentioning therein the actual date of remittance of the said Rs.1,900/- and thereby caused the customer to believe that the remittance has been duly accounted for in the Bank's books with an intention to misappropriate the amount without crediting the same into the loan account of the above borrower. Your above act of making unauthorised, extraneous entries in the Gold Loan Memo Card as stated above with an intention to defraud the Bank as well as the customer and to misappropriate the remittance made by Shri Pachaiyappan, if proved, would amount to act prejudicial to the interest of the Bank and hence a "gross misconduct" in terms of para 521(4) (j) of Sastry Award read with para 18.28 of Desai Award. vi) You handed over, on 22.01.98, the sum of Rs.1,900/-(which was received by you at your cash counter at the branch during January 1998, before the Pongal festival, from Shri A. Pachaiyappan, customer of the Branch having Agricultural gold Loan A/c No.14/379, as stated supra) to Shri Pachaiyappan when called at the Branch to close his gold loan account No.14/379 You have thus returned to the customer, Shri A.Pachaiyappan, the sum of Rs.1,900/-misappropriated by you during January 1998, before the Pongal festival, as stated above, only on 22.01.98 when he called at the Branch to close his gold loan account. You have thus misappropriated the amount of Rs.1,900/-given to you by the above customer for being credited to his AGL A/c. No.14/379 for a period up to 21.01.98. Your above act of misappropriating the amount of Rs.1,900/-given to you by the above customer for credit of his loan account,before the Pongal festival of 1998 without crediting the same to the said loan account on the same day and returning it to the customer only on 22.01.98 when he called at the Branch to close his agricultural gold loan account thus misappropriating the amount for a period up to 21.01.98, if proved, would amount to an act prejudicial to the interest of the Bank and hence a "gross misconduct" in terms of para 521 (4) (j) of Sastry Award read with para 18.28 of Desai Award. Vii) you made unauthorised, extraneous entries in the Gold Loan Memo Card pertaining to the Agricultural Gold Loan A/c No.14/415 of Shri M.Puitharaj at the Branch, without mentioning therein the date of remittance, as though an amount of Rs.1,000/- has been remitted to the credit of the above loan account eventhough no such remittance has been accounted for in the Branch books. You have thus acted in a negligent manner and have made the above unauthoriesd, extraneous entries in the Memo Card pertaining to the AGL A/c. No.14/415 without mentioning therein the date of remittance and without verifying whether the amount has been accounted for in the Branch books and thereby failed to protect the interest of the Bank. You have thus acted in a negligent manner and have made the above unauthoriesd, extraneous entries in the Memo Card pertaining to the AGL A/c. No.14/415 without mentioning therein the date of remittance and without verifying whether the amount has been accounted for in the Branch books and thereby failed to protect the interest of the Bank. Your above act of making the unauthorised, extraneous entries as stated supra and your negligence in not verifying (before making the above entries) whether there was actual remittance of the said amount into the Bank or not and thereby failing to protect the Bank's interest, if proved, would amount to an act of "gross misconduct" in terms of para 521 (4) (j) of Sastry Award read with para 18.28 of Desai Award. Viii) you made unauthorised, extraneous entries in the Gold Loan Memo Card pertaining to the Agricultural Gold Loan A/c No.14/416 of Smt P. Malliga at the Branch, without mentioning therein the date of remittance, as though an amount of Rs.1,000/-has ben remitted to the credit of the above loan account eventhough no such remittance has been accounted for in the Branch books. You have thus acted in a negligent manner and have made the above unauthorised, extraneous entries in the Memo Card pertaining to the AGL A/c No.14/416 without mentioning therein the date of remittance and without verifying whether the amount has been accounted for in the Branch books and thereby failed to protect the interest of the Bank. Your above act of making the unauthorised, extraneous entries as stated supra and your negligence in not verifying (before making the above entries) whether there was actual remittance of the said amount into the Bank or not and thereby failing to protect the Bank's interest, if proved, would amount to an act of gross negligence involving the Bank in serious loss and hence a "gross misconduct" in terms of para 521 (4) (j) of Sastry Award read with para 18.28 of Desai Award. 2.) You are advised to submit your explanation in writing for the above charges within 15 (fifteen) days from the date of receipt of this letter failing which it will be construed that you have no explanation to offer and the matter will be proceeded with accordingly. 2.) You are advised to submit your explanation in writing for the above charges within 15 (fifteen) days from the date of receipt of this letter failing which it will be construed that you have no explanation to offer and the matter will be proceeded with accordingly. 3.) Please acknowledge with date the receipt of this letter on the duplicate thereof." Thanigachalam did not offer any explanation in answer to the show cause notice. An enquiry officer was appointed to probe into the charges framed against him and enquiry proceedings were duly conducted. The enquiry officer held that the charges i to iii and v were proved and the other charges were not. Concurring with the finding of the Enquiry officer the disciplinary authority imposed a punishment of penalty of discharge from service by an order dated 05.07.2001. The said Thanigachalam preferred an appeal on 13.08.2001, before the Appellate Authority and the same was dismissed by an order dated 12.08.2002. There against Thanigachalam moved the Industrial Tribunal in I.D. No.298/2004 which confirmed the finding of the Appellate Authority. During the pendency of the dispute before the Industrial Tribunal, Thanigachalam died and the petitioners before us were impleaded as parties. On dismissal of the I.D.No.298 of 2004, under orders dated 07.06.2005 the petitioners are before us by way the present writ petition. 2. Heard the learned counsel for the petitioner and the learned counsel for the respondents. 3. The contention of learned counsel for the petitioner is that there absolutely is no material in support of the charges. The complainant by name G.George William relating to whose account the alleged irregularities are said to have been committed had not been examined in the course of the domestic enquiry. No opinion of a forensic expert had been obtained regarding the forging the signature of the said G.George William. Though PEX-15 was a alleged confessional statement tendered by Thanigachalam, it had been denied by Thanigachalam as having been obtained under coercion and duress. In the circumstances of the case, the Enquiry Officer had accepted such contention and it is so seen from his finding regards charge No.vi wherein he had observed as follows: "Findings - Charge No vi. The presenting officer has not properly substantiated the date of incident. The delinquent employee has advised in PEX-15 that the bas misappropriated Rs.1,900/-before pongal festival. In the circumstances of the case, the Enquiry Officer had accepted such contention and it is so seen from his finding regards charge No.vi wherein he had observed as follows: "Findings - Charge No vi. The presenting officer has not properly substantiated the date of incident. The delinquent employee has advised in PEX-15 that the bas misappropriated Rs.1,900/-before pongal festival. However, he has countered the same at the time of enquiry. Therefore, I come to the conclusion that there is not proof of misappropriation and consider that the charge is not proved." Perusal of the enquiry report would show that the Enquiry Officer had not relied on exhibit PEX-15 in support of any of the charges. The Disciplinary Authority had confirmed the finding of the Enquiry Officer. While so, the Appellate Authority fell into grave error in placing his conclusions and dismissing the appeal of the petitioner primarily on acceptance of PEX-15. The same error had been carried over by the Tribunal. 4. As regards charge no V it is contended by learned counsel that the same cannot stand when charges iv and vi which deal with the Gold Loan Memo Card have not been held proved. Charge V merely was consequential to charges iv and vi and when such charges have been held not to have been proved, charge V would fall. It is contended that the order of the Tribunal cannot be sustained. It is informed that since Thanigachalam is no more the petitioners, in the event of this court holding in their favour, would be entitled to back wages and pensionary benefits. 5. Decision of the Apex court in Commissioner of Police, Delhi and Others v. Jai Bhagwan, 2011 6 SCC 376 was relied upon to submit that non examination of the complainant during the departmental proceeding has denied the employee his right of cross examination and that in the absence of definite/clear proof as could be afforded by the complainant, it would be erroneous to arrive at a finding of guilt. Placing reliance on Roop Singh Negi vs. Punjab National Bank and Ors, (2009) 2 SCC 570 , submission was made that mere production of documents in the departmental enquiry is not sufficient and that it is necessary to prove contents of the documentary evidence by examining witnesses. Placing reliance on Roop Singh Negi vs. Punjab National Bank and Ors, (2009) 2 SCC 570 , submission was made that mere production of documents in the departmental enquiry is not sufficient and that it is necessary to prove contents of the documentary evidence by examining witnesses. The said decision also was relied upon to inform that the confession contained in PEX-15 had not been proved and infact it had not been relied upon by the Enquiry Officer and therefore some evidence must have been brought on record which would establish that the employee had indulged in wrong doing. Submitting that Charge V was incidental to charges iv and vi and that when such charges fell so would charge V, learned counsel relied on the decision of this Court in W.P.No.5484 of 1999 dated 13.02.2002 wherein it had been observed as follows: 9.) As rightly contended by the learned counsel for the petitioner, when charge No.2, relating to connivance with the plumbers in effecting connections in dwelling units was held not proved, on the same set of facts and findings, more particularly, on the fact that there were only three dwelling units when the petitioner inspected the premises, the said finding is equally applicable to charge No.1 also and in view of the said finding, Charge No.1 shall be also held as not proved." One other submission of learned counsel is that it was not the case of the petitioner that the domestic enquiry was not validly and properly conducted. He would submit that PEX-15 the alleged confession which had formed the basis of the Tribunal's finding of misconduct on the part of the petitioner was not in the nature of further evidence placed before the Tribunal for the first time in support of the action taken by the employer. The same was before the Enquiry Officer in the domestic enquiry and therein it was not considered appropriate to rely there upon. 6. The same was before the Enquiry Officer in the domestic enquiry and therein it was not considered appropriate to rely there upon. 6. In this regard learned counsel relied on the decision of the Apex court Neeta Kaplish v Labour Court, 1999 (1) L.L.N.7, wherein it had been informed that some propositions had been laid down in Delhi Cloth and General Mills Company, Ltd v. Ludh Budh Singh, AIR 1972 SC 1031 , one of them being (3) When the management relies on the enquiry conductedby it, and also simultaneously adduces evidence before the Tribunal, without prejudice it is plea that the enquiry proceedings are proper, it is the duty of the Tribunal, in the first instance, to consider whether the enquiry proceedings conducted by the management are valid and proper. If the Tribunal is satisfied that the enquiry proceedings have been held properly and are valid, the question of considering the evidence adduced before it on merits no longer survives. It is only when the Tribunal holds that the enquiry proceedings have not been properly held, that it derives jurisdiction to deal with the merits of the dispute and in such a case it has to consider the evidence adduced before it by the management and decide the matter on the basis of such evidence. ' 7. Learned counsel for the respondent submitted that due and proper enquiry stands conducted in the matter and the petitioner has not disputed such fact. The disciplinary authority has arrived at a reasoned finding which stands confirmed both by the Appellate Authority as also the Tribunal. Therefore, it is not open to this court to interfere. The charges against the employee were grave in nature and the fact that he was employed in a bank made the same only more so. He would seek dismissal of the petition. 8. On perusal of papers, consideration of the rival submissions and the decision cited before us, we would state that the present is a case wherein neither the delinquent nor the management had disputed the validity of the disciplinary proceedings. Therefore, the Tribunal in the absence of any finding that the enquiry proceedings had not been properly held, could not have considered the merits of the evidence adduced before it. The Tribunal's finding flow from PEX-15, which when read alone, would inform of admission of delinquency by the employee. Therefore, the Tribunal in the absence of any finding that the enquiry proceedings had not been properly held, could not have considered the merits of the evidence adduced before it. The Tribunal's finding flow from PEX-15, which when read alone, would inform of admission of delinquency by the employee. As rightly contended, PEX-15 was not in the nature of further evidence but had been before the Enquiry officer. A perusal of the Enquiry officer's report informs that the same has not been relied upon by him in support of any of his findings. In fact from the finding on charge no vi, it is apparent that he had decided not to place reliance there upon. The Disciplinary Authority had concurred with such finding. It is only the Appellate Authority who has based is finding on PEX-15 as has been done by the Tribunal. In considering the appeal, the Appellate Authority could not have fallen back on PEX-15 to support is conclusion, particularly where the enquiry officer has not considered it appropriate to rely thereupon. De hors PEX-15, the charge against the employee would have to be held to have no support. The complainant in the case has not been examined in support of the charges nor have the relevant documents been subjected to forensic examination. In such circumstances, this writ petition shall stand allowed as prayed for. No costs.