JUDGMENT SANJU PANDA, J. 1. In this writ petition, the petitioners challenge the judgment dated 3.7.2010 passed by the Member, Co-operative Tribunal, Orissa, Bhubaneswar in Service Dispute NO.9 of 2007 setting aside the order No.422 dated 1.5.2007 passed by the Secretary, District Central Co-operative Bank Ltd., Bolangir terminating the services of opposite party and directing the defendants-petitioners to pursue the surcharge proceeding or dispute, if any, against plaintiff-opposite party. 2. The facts leading to filing of the present writ petition are that the opposite party was working as Cadre Secretary under Bolangir District Central Co-operative Bank Ltd. While he was working as such at Sibtala Service Co-operative Society, he was placed under suspension on 10.6.1994 as he was found to have been indulged in a 19t of irregular activities of the society. Thereafter, he was reinstated into service on 7.3.1996 pending framing of charges in the disciplinary proceeding initiated against him. Thereafter: he was posted at the Head Office of the Bank in August, 2000. On the self-same allegations, in November 2000, the opposite party was again posted at Kamasara Service Co-operative Society Ltd. While the opposite party was continuing at Kamasara Branch as such, it was detected that he was involved in misappropriation of the Society's fund to the tune of Rs.1,38,117/- during his tenure at Sibtala Service Co-operative Ltd. Thereafter, another disciplinary proceeding was initiated vide Office Order NO.3666 dated 17.10,2001 on the charges of Criminal breach of trust, misappropriation of Society funds, disobedience of orders, negligence in duty and gross misconduct. Accordingly, opposite party-delinquent was withdrawn from Kamasara Service Co-operative Society and posted at Head Office of the Bank. While working at Head Office, the opposite party was again placed under suspension on 11.1.2002 and since further irregularities committed by him was noticed, additional-charges were framed on the allegation of misappropriation of the Society's fund, stocks, criminal breach of trust and also on misconduct. The Assistant Secretary of the petitioner's Bank was directed to conduct inquiry into the charges framed against the opposite party-delinquent on receipt of show cause from the delinquent. The Inquiring Officer in its report dates 25.9.2002 held that the delinquent is in habit of indulging himself in misappropriation of Society's fund and therefore he deserved to be punished. The inquiry report was communicated to the delinquent to submit explanation and the disciplinary proceeding was conducted after affording opportunity of hearing to the delinquent. The Inquiring Officer in its report dates 25.9.2002 held that the delinquent is in habit of indulging himself in misappropriation of Society's fund and therefore he deserved to be punished. The inquiry report was communicated to the delinquent to submit explanation and the disciplinary proceeding was conducted after affording opportunity of hearing to the delinquent. The Disciplinary Authority on consideration of the explanation submitted by the delinquent arrived at the finding that the charges framed against the delinquent was established and therefore decided to terminate him from service. Accordingly, on 17.11.2006 second show cause notice was served on the opposite party-delinquent to file his show cause reply for misappropriation of Society's fund amounting to Rs.4,96,908/- and he was •directed to deposit the misappropriated amount. The opposite party submitted his explanation to the second show cause notice. As the same was not found satisfactory, the service of the opposite party was terminated vide order dated 1.5.2007. Thereafter, the opposite party-delinquent challenged the said order of termination before the Co-operative Tribunal alleging, inter-alia, that the inquiry conducted by the Disciplinary authority was without taking any evidence and without supplying the documents, on the basis of which the charges were framed and therefore the conclusion arrived at by the Disciplinary authority with regard to misappropriation of S0ciety's fund and that of the order of termination was illegal and accordingly he prayed to set aside the said order of termination passed against him. 3. The petitioners-Bank filed its written submission reiterating the procedure followed in the disciplinary proceeding stating that as the charges leveled against the delinquent were proved and it was found that opposite party-delinquent was found guilty of misappropriation of Society's fund and misconduct, rightly the order of termination has been passed. 4. Considering the pleadings of the parties, the tribunal framed as many as six issues which are as follows: (1) Whether documents relevant to the charges were not supplied to the plaintiff? (2) If so, whether he was prejudiced there by? (3) Whether without taking any evidence, solely on the basis of audit report, the inquiry report was prepared? (4) Whether pendency or finding of any surcharge proceeding or dispute case is a relevant factor in a disciplinary proceeding? (5) To what relief? (6) Whether the charge and additional charge framed as such are sustainable? 5. (3) Whether without taking any evidence, solely on the basis of audit report, the inquiry report was prepared? (4) Whether pendency or finding of any surcharge proceeding or dispute case is a relevant factor in a disciplinary proceeding? (5) To what relief? (6) Whether the charge and additional charge framed as such are sustainable? 5. Pursuant to the respective pleadings, the parties have adduced their evidence and on analyzing the material available on record, the Tribunal recorded the following findings. 6. The plaintiff was not prejudiced being able to file show cause without any document as he has not stated specifically as to which document was not supplied to him. In the enquiry report, the inquiring officer has not referred to any oral evidence of any of the management witnesses, though assertion was made by him that in the record of enquiry regarding taking of evidence of witnesses, which was not produced before the Tribunal and the finding in the enquiry report was solely made on the concurrent findings of the auditor and report was submitted and that there is no material available on record that plaintiff was made aware of which part of audit report produced before the enquiring officer utilized against him. The auditor was neither examined nor opportunity was given to the plaintiff to cross-examine him. Therefore, issue NO.3 was answered affirmatively. In the earlier disciplinary proceeding dated 27.3.1996, the plaintiff was not found guilty and as such he was reinstated into service which has not been denied by the defendants in their written statement and for the self-same charges another enquiry should not have been initiated in the year 2001. Additional charges framed are illegal as it was not specifically mentioned as to on which date and what amount was disbursed. Accordingly, the Tribunal set aside the termination order and passed the impugned judgment 7. Learned counsel for the petitioners submitted that the finding of the Tribunal is not sustainable as the petitioner-Bank has specifically framed charges and the second proceeding was not on the self-same charges, rather the petitioners-bank have given sufficient opportunity to the delinquent during disciplinary proceeding and the Inquiring Officer in its report also dealt with regard to the specific charge and materials found against the opposite party-delinquent. Therefore, the impugned order is liable to be set aside and a person against whom allegation of misappropriation was found to be proved should not have been reinstated in service with an observation that the petitioners-Bank may recover the amount as surcharge as per Section 67 of the Orissa Co-operative Societies Act. Hence, interference of the Court to the impugned judgment is warranted under Articles 226 of the Constitution of India. In support of his contention, learned counsel for the petitioners cited the decisions rendered in cases of Union of India vs. V.S. Sadhu, Ex-Inspector, (2008) 12 Supreme Court Cases 30 and Union of India and others v. Upendra Singh, 1994 (1) Scale 121. 8. Learned counsel for the opposite party submitted that in the disciplinary proceeding initiated in the year 1996, for misappropriation of the Society's fund, negligence in duty, unauthorized absence and in not handing over charges, it was found that prosecution has failed to establish the charges. There was no mention of about financial irregularity on the part of the delinquent in any of the charges. Allegations were made only on omission and commission of certain irregularities. Therefore, same was viewed leniently while disposing of the disciplinary proceeding against the delinquent and as such the proceeding was dropped and the second disciplinary proceeding on the self same charges were included as charge Nos.4 and 5 and the Inquiry Officer accepted the same holding that allegations on those charges being matter of record need no further inquiry and as such left for consideration of the Disciplinary Authority. The Tribunal, has rightly on scrutiny of all the materials available on record, held that the Inquiring Officer only on the basis of audit report concluded his inquiry without any evidence. Therefore, the impugned order need not be interfered with and the Tribunal rightly directed for recovery of amount by way of surcharge as provided under Section 27 of the Orissa Co-operative Societies Act. In support of his contention, learned counsel for the opposite party draws the attention of the Court to the decisions rendered in the case of Ajit Kumar Dutta vs. Registrar (Judicial), High Court of Orissa, Cuttack and another, 108 (2009) CLT 136 and Sawai Singh vs. State of Rajasthan, 1986 STPL (LE) 12816 SC. 9. In support of his contention, learned counsel for the opposite party draws the attention of the Court to the decisions rendered in the case of Ajit Kumar Dutta vs. Registrar (Judicial), High Court of Orissa, Cuttack and another, 108 (2009) CLT 136 and Sawai Singh vs. State of Rajasthan, 1986 STPL (LE) 12816 SC. 9. From the rival submissions of the parties and after going through L.C.R., it appears that the audit report was accepted by the Inquiry Officer and on the basis of the said audit report, disciplinary proceeding was initiated, necessary charges were framed against the opposite party, in Surcharge Case NO.147 of 2002 for recovery of Rs.1,38.117/- Departmental proceeding and Surcharge case are two different proceedings. The inquiring Officer held that misappropriation of the said amount was established against the delinquent. Law is well settled that audit report is admissible in evidence during inquiry and taking into consideration the materials available on record, the Disciplinary Authority has taken the decision. The opposite party has admitted that as per the said audit report, recovery of Rs.300/- per month amounting to Rs.18,000/- was deducted from his stay. 10. In the case of Ajit Kumar Dutta (supra) this Court held that an inquiry is to be conducted against any person given strict adherence to the statutory provisions and principles of natural justice. The charges should be specific, definite and giving details of the incident which formed the basis of charges. No enquiry can be sustained on the vague charges. Enquiry has to be conducted fairly, objectively and not subjectively. Even if the delinquent does not take the defence or make a protest that the charges are vague, that does not save the enquiry being vitiated for the reason that the State action does not remain a fair play, particularly where the consequences are penal in nature. The authority must record reasons for arriving at the finding of fact in the context of the statute defining the misconduct. Similar view was also reiterated in the case of Sawai Singh (supra) by the apex Court, where the delinquent officer was charged and having regard to the nature of charge and the evidence of hand-writing expert and the absence of opportunity for cross-examination and the conflicting nature of evidence of the apex Court is of the opinion that the report of the inquiry officer finding the appellant guilty should not have been. However those decisions are distinguishable as in the present case charges are based on audit report, which is admissible in evidence as the Auditor while discharging his official duty prepared .the report and same was not challenged before any Court of law. As the opposite party filed application during disciplinary proceeding to cross-examine the Auditor it appears that' in respect of some charges he has admitted that amounts were recovered from his salary on the basis of Audit report. 11. The apex Court in the case of Union of India (supra) held that departmental enquiry conducted against respondent found defective inasmuch as witnesses examined earlier were not produced for cross-examination, Disciplinary authority, finding the charges against respondent as proved on the basis of enquiry report, dismissed him from service: On such a situation, reinstatement could not be ordered on account of these infirmities in disciplinary proceedings. High Court ought to have directed fresh proceedings from the stage of alleged illegality, without ordering reinstatement. Similar view was also taken in the decision rendered in the case of Union of India and others (supra). 12. In view of the above settled position of law, the Tribunal should not have set aside the termination order observing that it is open to the petitioners-Bank to recover the amount by way of surcharge. Accordingly, this Court sets aside the impugned judgment dated 3.7.2010 passed by the Co-operative Tribunal, Orissa, Bhubaneswar in Service Dispute No.9 of 2007 and directs the petitioners to re-open the disciplinary proceeding from the stage of alleged illegality stated to have been committed and if necessary granting liberty to the parties to adduce their respective evidence. In the result, the writ petition is allowed. No cost. Petition allowed.