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2013 DIGILAW 20 (PAT)

Ganpati Singh v. Board of Directors

2013-01-08

S.N.HUSSAIN

body2013
JUDGMENT This writ petition has been filed by the petitioner challenging order dated 26.09.1995 by which the Disciplinary Authority-cum-Chairman, Madhubani Kshetriya Gramin Bank, Madhubani (hereinafter referred to as the Bank for the sake of brevity) inflicted punishment of reduction of three annual increments in the time scale of pay in respect of Charge No.1 series and warning in respect of Charge No.2 and 3 and also challenging appellate order dated 07.11.1996 by which the Board of Directors of the Bank disposed of petitioner’s appeal merely reducing punishment to reduction of one annual increment of the petitioner without rescinding the entire order of the disciplinary authority. 2. Learned counsel for the petitioner stated that petitioner was working as a Field Supervisor in the respondent-Bank which is a Regional Rural Bank for the last 10 years with satisfactory record of service, but while working at Chatra Branch of the Bank in the year 1994 he was subjected to domestic enquiry on the alleged irregularities committed by him in Maheshwara Branch of the Bank in the year 1984, 1985, 1987, 1988 and 1989 and charge sheet dated 14.01.1994 was issued framing three charges which are as follows:- 1(A) Sri Ganpati Singh, Field Supervisor (Officer), when posted at Maheshwara Branch done lot of irregularities there in advancement of loans. That is why he recommended for sanction of loans twice/thrice to one borrower without keeping in view the purpose of loans & its feasibility. In this way Sri Singh has done works detrimental to the Bank interest avoiding section 19 of Madhubani Kshetriya Gramin bank (Staff) Service Regulation, 1980. 1(B) Sri Singh was habitual of obtaining over-drafts from Branch for the purpose of purchasing assets to the borrowers, but after getting signature/thumb impressions from borrowers ever required papers for loans, he used to disburse cash amount in phases to them (borrowers). During disbursement of cash amount, borrowers were paid less amount by Sri Ganpati Singh and that is why a considerable amount remained outstanding for payment, though the concerned loan ledger a/c was debited with sanctioned amount. Hence, a statement of account was prepared by Sri Attaullah Shah, the then Messenger cum Sweeper of the branch under guidance of Sri Ganpati singh, F. S. in which it has clearly been mentioned that some amount is due to Sri Ganpati Singh for payment to the borrowers. The Investigating Officer has also agreed with the facts. Hence, a statement of account was prepared by Sri Attaullah Shah, the then Messenger cum Sweeper of the branch under guidance of Sri Ganpati singh, F. S. in which it has clearly been mentioned that some amount is due to Sri Ganpati Singh for payment to the borrowers. The Investigating Officer has also agreed with the facts. In this way Sri Singh has done his duty against section 19 (Ninteen) of Madhubani Kshetriya Gramin Bank (Staff) Service Regulation, 1980. 1(C) During field visit of Sri Awadhesh Kumar Sinha, present Branch Officer, Maheshwara Branch some borrowers lodged written complain that Sri Ganpati Singh had not made full payment of sanctioned loan amount to them (borrowers). This work has been done by Sri Singh detrimental to the interest of the Bank avoiding Section 19 (Nineteen) of Madhubani Kshetriya Gramin Bank (Staff) Service Regulation, 1980. 2. Sri Ganpati Singh has concealed the facts regarding preparation of statement of a/c by Sri Attaullah Shah, Messenger cum Sweeper regarding dues of the borrowers meaning thereby that though Sri Singh dictated the messenger cum Sweeper for preparation of a/c, yet he (Sri Singh) has denied with the facts. In this way Sri Singh avoided Section 16, 17, 18, 19 of the Madhubani Kshetriya Gramin Bank (Staff) Service Regulation, 1980. 3. Sri Ganpati Singh did not pay attention towards recovery of old dues to the borrowers and recommended for second/third loan in many cases so that recovery position of branch deteriorated since 1985 to 1992. In this way he (Sri Singh) has not done works in the interest of the Bank and avoided section 19 of Madhubani Kshetriya Gramin Bank (Staff) Service Regulation 1980. 3. Learned counsel for the petitioner submitted that all the aforesaid charges were stale and vague and were not enumerated as misconduct in the service Regulation of the Bank and hence charge sheet was issued with pre-conceived mind merely to make the petitioner escape goat leaving other Branch Officer of the Bank namely Dhrub Narain Jha (respondent no.3) who was actually responsible in the irregularities/lapses in grant of disbursement of loans to the borrowers twice or thrice. 4. 4. Learned counsel for the petitioner stated that when the enquiry proceeding started he demanded relevant papers/documents from the respondent-Bank to defend his case effectively, whereafter the enquiry officer directed the Bank to make available such papers to the petitioner, but all the relevant documents were not made available to the petitioner in spite of repeated demand for supply of the same. However, the enquiry proceeding was concluded on 28.04.1995 when the enquiry officer submitted his report to the disciplinary authority finding the charges levelled against the petitioner as proved. 5. Learned counsel for the petitioner averred that after the receipt of the enquiry report, the disciplinary authority forwarded the same to the petitioner on 19.07.1995 asking the petitioner to reply. The petitioner submitted his reply on 12.08.1995 stating his defence in detail and also making it clear that domestic enquiry was vitiated due to violation of principle of natural justice and was improperly conducted. However, the petitioners reply was rejected by the disciplinary authority vide impugned order dated 26.09.1995 awarding the following penalty to the petitioner. (i) Charge 1(A), (B) and (C):- Reduction of three annual increments in time scale as per Madhubani Kshetriya Gramin Bank Employees Conduct Regulation Section 30(1)C. (ii) Charge No.2:- Warning as per Madhubani Kshetriya Gramin Bank Employees Conduct Regulation Section 30 (1) (A). (iii) Charge No.3:- Warning as per Madhubani Kshetriya Gramin Bank Employees Conduct Regulation Section 30 (1) (A). 6. Learned counsel for the petitioner asserted that against the said order petitioner filed an appeal before the appellate authority, namely Board of Directors of the Bank, but by a cursory order dated 07.11.1996 the appellate authority disposed of the appeal by modifying the order of punishment passed by the disciplinary authority and reduced it to punishment for reduction of one annual increment from petitioners salary. Since the aforesaid appellate order was a non-speaking order without properly considering the points raised by the petitioner, a further representation was filed by the petitioner on 24.02.1997 for reconsidering the appellate order, but the said representation was rejected by the Chairman of the Bank in limine on 05.03.1997 on the ground that there was no provision as per the existing rule to reconsider the decision of the appellate authority by the Board of Directors. 7. 7. Learned counsel for the petitioner referring to Clause 19 of Chapter IV of the Regulation claimed that petitioner was not sanctioning authority, rather he was merely a recommending authority but he was singled out for punishment, whereas other officers including respondent no.3 who had sanctioned the payment in question were left scot-free. Hence charges levelled against the petitioner were on the basis of pre-conceived notion and it is nowhere mentioned as to whether such charge as made against the petitioner was punishable. In this connection, learned counsel for the petitioner relied upon a decision of the Supreme Court in case of E.S. Reddi Vs. Chief Secretary Government of A. P. and another reported in 1987 (3) SCC 258 . 8. Learned counsel for the petitioner also claimed that punishment was in fact only for charge no. 1(A), (B) (C) and not for other charges for which warning was given. So far recommending for loan {Charge No.1(A)} twice and thrice is concerned it is no where held to be misconduct, whereas taking overdraft for payment but paying less amount {Charge No.1(B)} is an allegation regarding which no detail was provided either in the enquiry or before the disciplinary authority. So far the other allegation {Charge 1(C)} regarding non-payment of full amount is concerned, neither any amount had been disclosed nor the names of the borrowers and the dates of borrowing were disclosed nor anyone came to depose in favour of the charges. 9. Learned counsel for the petitioner further claimed that admittedly charges were of 1984 to 1989 but charge memo was issued in the year 1994 and hence there is a long delay of 10 years in the initiation of proceeding regarding which no explanation was given by the respondents. 10. Learned counsel for the petitioner argued that the recommendations made by the enquiry authority in his report was not covered by Rule 19 of the Banking Regulation and during the course of enquiry no spot enquiry was made by the enquiry officer as is apparent from the enquiry report itself. Furthermore, the papers required by the petitioner were not supplied to him which made the entire enquiry non-est. In this connection, he relied upon two decisions, one of the Apex Court and the other of this High Court in case of State of U.P. Vs. Furthermore, the papers required by the petitioner were not supplied to him which made the entire enquiry non-est. In this connection, he relied upon two decisions, one of the Apex Court and the other of this High Court in case of State of U.P. Vs. Shatrughan Lal and another reported in (1998) 6 SCC 651 and in case of Brij Nandan Sinha Vs. State of Bihar & Ors reported in 1998(3) PLJR 413. 11. Learned counsel for the petitioner also argued that when no material was found in the enquiry the report of the enquiry officer was clearly vitiated. Furthermore, unless either in the Standing Order or in the Service Regulation an act or omission is prescribed as misconduct, it is not open to the employer to fish out any conduct as misconduct and punish the workman. In this connection, learned counsel for the petitioner relied upon two decisions of the Apex Court in case of Hardwari Lal Vs. State of U. P. and others reported in (1999) 8 SCC 582 and in case of Rasiklal Vaghajibhai Patel Vs. Ahmedabad Municipal Corporation and another reported in (1985) 2 SCC 35 . 12. Learned counsel for the petitioner further argued that the appellate authority was bound to consider the grounds taken by him in the memorandum of appeal, but without considering the said grounds and the materials as well as lacuna in the enquiry proceeding passed the impugned order cursorily. Thus, it was an absolute non-speaking order which cannot be entertained in the eye of law. In this connection, he relied upon a decision of this Court in case of Sheo Nandan Prasad Singh Vs. The Indian Oil Corporation & Ors. reported in 2004(3) PLJR 300 . 13. On the other hand, learned counsel for the respondents vehemently opposed the contentions of learned counsel for the petitioners and stated that the petitioner being Field Supervisor had the responsibility of assessing the purpose and feasibility of granting loans to the applicants to safeguard the interest of the Bank, but without seeing the previous conduct of the loanee he recommended the loan to some persons again and again on their mere asking. 14. Learned counsel for the respondents submitted that petitioner had a habit of taking advance/overdraft for purchasing articles for the borrowers and disbursing cash to the borrowers partwise, but he kept huge amount with him without payment to the borrowers. 14. Learned counsel for the respondents submitted that petitioner had a habit of taking advance/overdraft for purchasing articles for the borrowers and disbursing cash to the borrowers partwise, but he kept huge amount with him without payment to the borrowers. He also concealed the fact regarding preparation of account by Messenger-cum- Sweeper to hide his advances and non-payment to borrowers due to which written complaints were filed by the borrowers. 15. Learned counsel for the respondents averred that disciplinary authority relied upon the findings of the enquiry officer with respect to Charge No.1(A), 1(B), 1(C), 2 and 3 which were based on the points raised by the management representative relying upon specific evidence and also after considering the points raised by the defence which was not substantiated by any material whatsoever. However, the petitioner himself admitted preparation of account by the messenger. 16. Learned counsel for the respondents asserted that petitioners show cause reply to the disciplinary authority after receiving enquiry report did not show that petitioner had not inspected the relevant materials, whereas documents including Annexure-8 clearly showed that petitioner was given copy of evidence, hence findings of disciplinary authority were recorded on only those materials, copies of which were given to the petitioner. 17. Learned counsel for the respondents claimed that statements of the messenger as well as complaints of the borrowers clearly showed that petitioner misused his post which fully proved charge no.1(A), 1(B) which were inter-connected and also proved charge no.1(C) which were all serious charges and hence punishment awarded to the petitioner by the disciplinary authority was legal, just and proper. 18. Learned counsel for the respondents further claimed that the petitioner had not challenged the findings regarding charge no.2 and 3 although they were connected with Charge No.1(A), 1(B) and 1(C) and hence all the charges had been substantially accepted by the petitioner. In the said circumstances, the disciplinary authority was justified in agreeing with the findings of the enquiry officer, and had also given specific reasons for its own finding as no extra material was produced by the petitioner before the disciplinary authority. 19. In the said circumstances, the disciplinary authority was justified in agreeing with the findings of the enquiry officer, and had also given specific reasons for its own finding as no extra material was produced by the petitioner before the disciplinary authority. 19. Learned counsel for the respondents also argued that when the petitioner filed an appeal challenging the order of the disciplinary authority, the appellate authority took a lenient view and reduced the punishment of the petitioner, but even then petitioner filed a memorial which was subsequently rejected and the appellate order was affirmed. In the said circumstances, a lower penalty was given to the petitioner although there were enough evidences to bring home all the charges against the petitioner. 20. In support of his claim learned counsel for the respondents had relied upon a decision of the Apex Court in case of State Bank of Patiala and others Vs. S. K. Sharma reported in (1996) 3 SCC 364 , paragraphs 33 and 34 of which reads as follows:- “33. We may summarise the principles emerging from the above discussion. (These are by no means intended to be exhaustive and are evolved keeping in view the context of disciplinary enquiries and orders of punishment imposed by an employer upon the employee) :- (1) An order passed imposing a punishment on an employee consequent upon a disciplinary/departmental enquiry in violation of the rules/regulations/statutory provisions governing such enquiries should not be set aside automatically. The Court or the Tribunal should enquire whether (a) the provision violated is of a substantive nature or (b) whether it is procedural in character. (2) A substantive provision has normally to be complied with as explained hereinbefore and the theory of substantial compliance or the test of prejudice would not be applicable in such a case. (3) In the case of violation of a procedural provision, the position is this: procedural provisions are generally meant for affording a reasonable and adequate opportunity to the delinquent officer/employee. They are, generally speaking, conceived in his interest. Violation of any and every procedural provision cannot be said to automatically vitiate the enquiry held or order passed. Except cases falling under- “no notice”, “no opportunity” and “no hearing” categories, the complaint of violation of procedural provision should be examined from the point of view of prejudice, viz., whether such violation has prejudiced the delinquent officer/employee in defending himself properly and effectively. Except cases falling under- “no notice”, “no opportunity” and “no hearing” categories, the complaint of violation of procedural provision should be examined from the point of view of prejudice, viz., whether such violation has prejudiced the delinquent officer/employee in defending himself properly and effectively. If it is found that he has been so prejudiced, appropriate orders have to be made to repair and remedy the prejudice including setting aside the enquiry and/or the order of punishment. If no prejudice is established to have resulted therefrom, it is obvious, no interference is called for. In this connection, it may be remembered that there may be certain procedural provisions which are of a fundamental character, whose violation is by itself proof of prejudice. The Court may not insist on proof of prejudice in such cases. As explained in the body of the judgment, take a case where there is a provision expressly providing that after the evidence of the employer/government is over, the employee shall be given an opportunity to lead defence in his evidence, and in a given case, the enquiry officer does not give that opportunity in spite of the delinquent officer/employee asking for it. The prejudice is self-evident. No proof of prejudice as such need be called for in such a case. To repeat, the test is one of prejudice, i.e., whether the person has received a fair hearing considering all things. Now, this very aspect can also be looked at from the point of view of directory and mandatory provisions, if one is so inclined. The principle stated under (4) herein below is only another way of looking at the same aspect as is dealt with herein and not a different or distinct principle. (4) (a) In the case of a procedural provision which is not of a mandatory character, the complaint of violation has to be examined from the standpoint of substantial compliance. Be that as it may, the order passed in violation of such a provision can be set aside only where such violation has occasioned prejudice to the delinquent employee. (b) In the case of violation of a procedural provision, which is of a mandatory character, it has to be ascertained whether the provision is conceived in the interest of the person proceeded against or in public interest. (b) In the case of violation of a procedural provision, which is of a mandatory character, it has to be ascertained whether the provision is conceived in the interest of the person proceeded against or in public interest. If it is found to be the former, then it must be seen whether the delinquent officer has waived the said requirement, either expressly or by his conduct. If he is found to have waived if, then the order of punishment cannot be set aside on the ground of said violation. If, on the other hand, it is found that the delinquent officer/employee has not waived it or that the provision could not be waived by him, then the Court or Tribunal should make appropriate directions (include the setting aside of the order of punishment), keeping in mind the approach adopted by the Constitution Bench in B. Karunakar, (1994 AIR SCW 1050). The ultimate test is always the same, viz., test of prejudice or the test of fair hearing, as it may be called. (5) Where the enquiry is not governed by any rules/regulations/statutory provisions and the only obligation is to observe the principles of natural justice - or, for that matter, wherever such principles are held to be implied by the very nature and impact of the order/action - the Court or the Tribunal should make a distinction between a total violation of natural justice (rule of audi alteram partem) and violation of a facet of the said rule, as explained in the body of the judgment. In other words, a distinction must be made between "no opportunity" and not adequate opportunity, i.e., between "no notice"/"no hearing" and "no fair hearing." (a) In the case of former, the order passed would undoubtedly be invalid (one may call it "void" or a nullity if one chooses to). In such cases, normally, liberty will be reserved for the Authority to take proceedings afresh according to law, i.e., in accordance with the said rule (audi alteram partem). In such cases, normally, liberty will be reserved for the Authority to take proceedings afresh according to law, i.e., in accordance with the said rule (audi alteram partem). (b) But in the latter case, the effect of violation (of a facet of the rule of audi alteram partem) has to be examined from the stand-point of prejudice; in other words, what the Court or Tribunal has to see is whether in the totality of the circumstances, the delinquent officer/employee did or did not have a fair hearing and the orders to be made shall depend upon the answer to the said query. [It is made clear that this principle (No. 5) does not apply in the case of rule against bias, the test in which behalf are laid down elsewhere.] (6) While applying the rule of audi alteram partem(the primary principle of natural justice) the Court/Tribunal/Authority must always bear in mind the ultimate and overriding objective underlying the said rule, viz., to ensure a fair hearing and to ensure that there is no failure of justice. It is this objective which should guide them in applying the rule to varying situations that arise before them. (7) There may be situations where the interests of state or public interest may call for a curtailing or the rule of audi alteram partem. In such situations, the Court may have to balance public/State interest with the requirement of natural justice and arrive at an appropriate decision. 34. Now, in which of the above principles does the violation of sub-clause (iii) concerned herein fall? In our opinion, it falls under Principles Nos. 3 and 4(a) mentioned above. Though the copies of the statements of two witnesses (Kaur Singh, Patwari and Balwant Singh) were not furnished, the respondent was permitted to peruse them and take notes therefrom more than three days prior to their examination. Of the two witnesses, Balwant Singh was not examined and only Kaur Singh was examined. The respondent did not raise any objection during the enquiry that the non-furnishing of the copies of the statements is disabling him or has disabled him, as the case may be, from effectively cross-examining the witnesses or to defend himself. The Trial Court has not found that any prejudice has resulted from the said violation. The respondent did not raise any objection during the enquiry that the non-furnishing of the copies of the statements is disabling him or has disabled him, as the case may be, from effectively cross-examining the witnesses or to defend himself. The Trial Court has not found that any prejudice has resulted from the said violation. The Appellate Court has no doubt said that it has prejudiced the respondent's case but except merely mentioning the same, it has not specified in what manner and in what sense was the respondent prejudiced in his defence. The High Court, of course, has not referred to the aspect of prejudice at all.” 21. After considering the pleadings of the parties and the materials on record it is not in dispute that charges against the petitioner were of the years 1984-89 when he was posted in Maheshwara Branch of the Bank, whereas charges were framed much later in the year 1994, hence there was huge delay in the initiation of proceeding against the petitioner regarding which no reason or explanation has been given by the respondents at any stage of the case. The disciplinary authority as well as the appellate authority failed to take into consideration that the disciplinary proceeding was initiated after such a long delay and hence initiation of such disciplinary proceeding and also its continuance after such a long time evidently prejudiced the delinquent officer. Reference in this regard may be made to a decision of the Apex Court in case of M. V. Bijlani Vs. Union of India and others reported in (2006) 5 SCC 88 . 22. However, charge sheet was issued on 04.01.1994 framing charge No. 1(A), 1(B), 1(C), 2 and 3 fully detailed in paragraph 2 above and enquiry report was submitted by the enquiry officer on 28.04.1995 before the disciplinary authority holding all the charges to be proved. However, from the materials on record it is quite apparent that the petitioner from the very beginning had been requesting the enquiry officer for granting him permission to inspect the records and to provide him copies of the relevant documents. However, from the materials on record it is quite apparent that the petitioner from the very beginning had been requesting the enquiry officer for granting him permission to inspect the records and to provide him copies of the relevant documents. Although statements have been made on behalf of the respondents that copies of some documents on the basis of which the report was submitted, had been given to the petitioner, but from those statements themselves it is apparent that all the documents required by the petitioner for preparing his reply in defence were not supplied. It was not for the authority to visualize which documents were necessary for the delinquent to submit his reply rather it was the delinquent officer himself who could visualize and select the documents which is necessary for his defence and if he applies for the same it is the duty of the enquiry officer to provide them to the petitioner, which has clearly not been done in this case. Although statements have been made on behalf of the respondents that due opportunities were granted to the petitioner for inspection but they were bald statements not supported by any material whatsoever. 23. The principle of law is well-settled in this regard and is also confirmed by the circular of the Bank that the proceedee is entitled to inspect the relevant records and also to obtain copies of the relevant papers from the authorities, but in the instant case the facts clearly show that those principles and directions had been utterly violated by the authorities and the petitioner was deprived of the opportunity to inspect the records or to obtain copies of the relevant documents. This was done not only by the enquiry officer, but also by the disciplinary authority, which is a clear illegality. Reference in this regard may be made to a decision of this Court in case of Brij Nandan Sinha vrs State of Bihar & Ors., reported in 1998(3) P.L.J.R. 413. 24. The law is well-settled that if the authorities did not intend to give copies of the documents to the proceedee, then it should have been indicated to the proceedee in writing that he might inspect those documents. Merely saying that the proceedee could have inspected the documents at any time is not enough. 24. The law is well-settled that if the authorities did not intend to give copies of the documents to the proceedee, then it should have been indicated to the proceedee in writing that he might inspect those documents. Merely saying that the proceedee could have inspected the documents at any time is not enough. The proceedee has to be informed that the copies of the documents, which were asked by him, may be inspected and access to the records must have been assured to him. This is what has been held by the Apex Court in case of State of Uttar Pradesh vrs. Shatrughna Lal and another, reported in 1998(6) S.C.C. 651 . 25. The other point raised by learned counsel for the petitioner was that although some documents were produced by the authorities before the enquiry officer, but no witness came forward either to prove the said documents or to support the charges or even to depose against the petitioner. This fact has not been denied by the respondents. The charges have to be proved by the department and if the department fails to support the charges against the proceeded by not producing a single witness then it has to be held that the department has not proved its case and in such circumstances, the recording of findings by the enquiry officer holding the petitioner guilty of those charges cannot be held to be legal and proper. In this regard reference may be made to a decision of a Bench of this Court in case of Kumar Upendra Singh Pariman vs. B.S. Co-op. Land Development Bank Ltd. and others, reported in 2000 (3) P.L.J.R. 10 . 26. In the said circumstances, it is quite apparent that the report of the enquiry officer and the order of the disciplinary authority were passed without giving any opportunity to the petitioner to properly contest the allegations and no witness was produced by the Bank whom the petitioner could have cross-examined. In the said circumstances, the report of the enquiry officer and the impugned order of the disciplinary authority cannot be held to be legal and proper due to clear irregularities committed by them in the proceeding and also due to violation of all norms of justice and fair play and also due to ignorance of the specific provisions in that regard. 27. 27. Apart from the above mentioned legal position, the impugned order passed by the disciplinary authority dated 26.09.1995 clearly showed that the specific grounds taken by the petitioner in detail in his show cause reply against the enquiry report had not been at all considered in the light of the materials on record and the specific pleadings of the parties and the conclusion had been arrived only by one sentence that is on careful perusal of the proceedings of enquiry, the findings of enquiry officer and your submission the undersigned has arrived at the following conclusion. Hence without considering the show cause reply of the petitioner dated 12.08.1995 stating his defence in detail and also making it clear that domestic enquiry was vitiated due to violation of principle of natural justice and was improperly conducted, punishment was awarded to the petitioner with respect to Charge no.1 (A), 1(B) and 1(C) whereas for Charge No.2 and 3 mere warning was given. 28. In the aforesaid circumstances, charge No.1(A) was with respect to recommendations made by the petitioner twice and thrice, whereas charge no.1(B) was with respect to taking over-draft for payment but less amount paid and charge no.1(C) was with respect to allegation that full amount was not paid. So far recommendation made more than once by the recommending authority is concerned it cannot be legally termed as misconduct as it is for the sanctioning authority to see whether on the basis of earlier recommendation any sanction had been made. So far taking over-draft for payment but not making full payment is concerned, no details were given by the authorities concerned, neither amount of less payment was disclosed nor the date of payment or the names of borrowers were disclosed and furthermore none came to depose in support of the prosecution case. In the said circumstances, when there was no proper material to support the charges, the enquiry report submitted was clearly vitiated. Furthermore, unless either in any Standing Order or in the Service Regulation an act or omission is prescribed as misconduct, it is not open to the employer to fish out any conduct as misconduct and punish the workman. In this connection, learned counsel for the petitioner has rightly relied upon two decisions of the Apex Court in case of Haardwari Lal (supra) and in case of Raskiklal Vaghajibhai Patel (supra). 29. In this connection, learned counsel for the petitioner has rightly relied upon two decisions of the Apex Court in case of Haardwari Lal (supra) and in case of Raskiklal Vaghajibhai Patel (supra). 29. So far the order of the appellate authority dated 07.11.1996 is concerned it is quite apparent that it has not at all considered the aforesaid points as well as other points raised by the petitioner in his memorandum of appeal and vague and cryptic order has been passed by the appellate authority which cannot be sustained in the eye of law, especially when the disciplinary authority had also failed to consider the points raised by the petitioner in its impugned order dated 26.09.1995. 30. The law is well-settled that when an appeal is disposed of on merit, the impugned order merges in the order passed by the appellate authority and hence if one is found to be illegal, the other also has to be set aside, specially when the points, involved at both the stages, were exactly similar. In this connection, reference may be made to a decision of the Apex Court in case of Sharda Singh Vs. State of Uttar Pradesh and others, reported in (2009) 2 SCC (L & S) 665. 31. Apart from the aforesaid facts it is quite apparent that the appellate authority itself had found the order of the disciplinary authority and the punishment awarded by it to be unjustified and hence he reduced the punishment awarded to the petitioner by the disciplinary authority to reduction of one annual increment of the petitioner. However, on the basis of objection raised by the petitioner the entire order of the disciplinary authority was fit to be rescinded as it was quite apparent that the allegations which were levelled against the petitioner fitted more appropriately against the sanctioning authority and not against the petitioner who was merely a recommending authority, hence merely to save the skin of the higher authority, the petitioner appears to have been made a scapegoat. 32. Due to the aforesaid irregularities in the procedure adopted and the illegalities committed by respondent-authorities in their impugned orders, the impugned orders of the authorities cannot be legally sustained. 32. Due to the aforesaid irregularities in the procedure adopted and the illegalities committed by respondent-authorities in their impugned orders, the impugned orders of the authorities cannot be legally sustained. Accordingly, this writ petition is allowed and the impugned appellate order of the Board of Directors of the Bank dated 07.11.1996, the impugned order of the disciplinary authority dated 26.09.1995 as well as the enquiry report of the enquiry officer dated 28.04.1995 are hereby quashed and the respondent-authorities are directed to give all the consequential benefits to the petitioner.