JUDGMENT : P.V. Asha, J. 1. The petitioner, who was working as Area Manager in the Marketing Division of the 1st respondent, is aggrieved by the punishment of removal awarded to him and the rejection of appeal filed against it. 2. The Deputy General Manager (Marketing) of the 1st respondent issued Ext.P1(a) order, placing the petitioner under suspension, in contemplation of disciplinary proceedings against him. It was followed by Ext.P1(b) memo of charges, issued on 02.02.2012, proposing to hold an enquiry under rule 26 of FACT Employees (Conduct, Discipline and Appeal) Rules 1997 for managerial personnel. Petitioner was directed to submit written statement of defence within a period of 10 days. In the articles of charges annexed to it, it was alleged that petitioner, while functioning as Area Manager (Karnataka) conspired with Sri. V. Murali Nair, the then Dy. GM, for the purpose of transferring Sri. Thotaphani, the then Sr. Regional Manager (Bangalore) out of Karnataka State; he instructed M/s. G. Venkata Reddy, the then Sr. Sales Officer (Bangalore), K.R. Rao, Asst. Manager (Sales) Tumkur, P.C. Ramalingappa, the then Asst. Manager (Sales) Mysore and B.B. Gangadharaiah, the then Sales Officer Davanagere, who were his subordinate officers to take part in the conspiracy meeting with Sri. V. Murali Nair, held on 15.12.2008 at Bangalore; petitioner and Sri. V. Murali Nair instructed the aforesaid sales functionaries to instigate FACT dealers and generate vexatious complaints against Sri. Thottaphani for facilitating his transfer. 3. Article no. 2 was that petitioner offered Rs. 1 lakh to Sri. V. Murali Nair as bribe towards arranging the transfer of Sri. Thotaphani and towards that payment petitioner instructed the aforesaid sales officers to contribute Rs. 25,000/- each and paid Rs. 1 lakh to Sri.Murali Nair. The aforesaid acts and omissions on the part of the petitioner were alleged to constitute violation of rule 4(a) and 4(b) and misconducts under rules 7(a), 7(b), 7(e), 7(t) and 7(x) of FACT Employees (Conduct, Discipline and Appeal) Rules, 1977 for managerial personnel. 4. Petitioner submitted his written statement of defence. Thereafter an enquiry officer was appointed. Petitioner requested for permission to engage a retired employee as defence assistant. Permission was denied. The Enquiry Officer was appointed on 31.03.2012. Ext.P1 enquiry report was submitted thereafter on 12.11.2012. 4. Petitioner submitted his written statement of defence. Thereafter an enquiry officer was appointed. Petitioner requested for permission to engage a retired employee as defence assistant. Permission was denied. The Enquiry Officer was appointed on 31.03.2012. Ext.P1 enquiry report was submitted thereafter on 12.11.2012. It was found that the charges regarding violation of rule 7(a) and (b) were not proved whereas the charges under rule 7(e), (t) and (x) were found proved. Ext.P2 notice was thereupon issued on 04.03.2013 by the Disciplinary Authority & DGM forwarding a copy of the enquiry report to the petitioner. Petitioner was directed to make representation if any against the enquiry report. Petitioner submitted his representation on 30.03.2013. Managing Director who is the appointing authority issued Ext.P3 proceedings on 19.08.2014 stating that the disciplinary authority deferred from the enquiry officer on charges under rule 7(a) and (b) as per his note dated 04.03.2013 and held that the petitioner was guilty of the misconduct under those provisions also. It was stated that copy of the enquiry report along with the note of the disciplinary authority was given to the petitioner on 04.03.2013 for his representation and petitioner submitted his representation on 30.03.2013. It was further stated that the disciplinary authority had after considering the representation recommended penalty of removal from service in accordance with rule 24(1) of the rules. The appointing authority thereupon considered the case, stating that the competent authority to impose major penalty is the appointing authority. It was found that the misconduct proved against the petitioner warranted the major penalty of removal from service and accordingly he awarded the punishment of removal. It was further ordered that petitioner would be eligible only for subsistence allowance for the period of his suspension. It was also stated that the management preserved the right to proceed with the disciplinary proceedings against the petitioner for charges issued in memorandum of charges dated 16.4.2013. Petitioner submitted an appeal before the board of directors on 23.9.2014. The board of directors rejected the appeal on 30.4.2016 after the petitioner filed WP (C) No. 5713 of 2016. In the meanwhile Ext.P3(a) memo of charges was issued on 16.8.2014 on allegations regarding failure to supervise his subordinates. 5. The writ petition is filed challenging the order of removal and rejection of appeal. The board of directors rejected the appeal on 30.4.2016 after the petitioner filed WP (C) No. 5713 of 2016. In the meanwhile Ext.P3(a) memo of charges was issued on 16.8.2014 on allegations regarding failure to supervise his subordinates. 5. The writ petition is filed challenging the order of removal and rejection of appeal. It is pointed out that the enquiry as well as the entire proceedings which culminated in removal are vitiated by mala-fides apart from being violative of the principles of natural justice. 6. Producing Ext.P1(c) representation submitted by Thotaphani on 3.4.2009 petitioner submits Thotaphani had already requested for a transfer to his native place and as per Ext.P1(d) order dated 8.5.2009 he was transferred to Hyderabad. The basis for the disciplinary proceedings is stated to be the complaint of Sri. Ramalingappa who was one of the subordinates of the petitioner. Ext.P1(e) dated 16.11.2009, the complaint of Sri. Ramalingappa and Ext.P1(g) complaint dated 23.10.2008 of the fertiliser dealers coupled with the complaint of Ramalingappa were the basis for initiating disciplinary proceedings. Petitioner points out that Sri. Ramalingappa had withdrawn his complaint as early as on 12.2.2012 as per Ext.P6 letter and he had reiterated his stand in withdrawing the complaint by submitting Ext.P1(j) letter dated 28.3.2012. Therefore petitioner submits that even after the withdrawal of the complaint initiation of disciplinary proceedings was only on account of legal and factual malice. 7. The contention of the petitioner is that the very allegations in the charge sheet are artificial in view of the fact that Sri. Thotaphani had already requested for a transfer as per his application dated 3.4.2009 and he was granted such transfer as per order dated 8.5.2009 and there cannot be any reason for the petitioner to collect money to bribe Sri. Murali Nair and to get him transferred. It is also points out that the allegation against him are that he instigated and instructed 4 other persons to contribute money in order to bribe Sri. Murali Nair. It is the further contention that the entire proceedings commenced on the basis of the complaint from Sri. Ramalingappa, which complaint was already withdrawn. Moreover, Sri. Ramalingappa had in his letter Ext.P6 had stated that the complaint was given on a mistaken understanding and in Ext.P1(j) letter he had stated that the management was pressurising him through one Mahabaleswar Bhat to reiterate and revive the complaint. Ramalingappa, which complaint was already withdrawn. Moreover, Sri. Ramalingappa had in his letter Ext.P6 had stated that the complaint was given on a mistaken understanding and in Ext.P1(j) letter he had stated that the management was pressurising him through one Mahabaleswar Bhat to reiterate and revive the complaint. In such circumstances, it is stated that the entire proceedings were on the basis of a non-existent complaint. 8. The further contention is that there was no reason for the petitioner to instigate any dealer to file any complaint against Sri. Thottaphani because there were complaints against him in the year 2008 also as evident from Ext.P1(g). According to the petitioner, Sri. Thottaphani was a Senior Regional Manager, whereas the petitioner was an Area Manager immediately above him in the hierarchy of posts and there need not be any conspiracy or bribing if at all a transfer of a subordinate officer was necessary and for that purpose to approach Sri. Murali Nair. Relying on Ext.P1(l) trip sheet the petitioner points out that on 15.12.2008 the petitioner had gone to Karnataka State Federation along with Sri. Thotaphani. The next contention of the petitioner is that the entire allegations are motivated and vitiated by mala-fides. The proceedings are initiated after one month of the withdrawal of the complaint by Sri. Ramalingappa. It is his further contention that the retired Dy. Gen. Manager Vigilance Sri. T.B. Sivaprasad, who was appointed as an enquiry officer, was a legal practitioner. The presenting officer Sri. P. Sreekumar was the Chief Manager (Vigilance) and they are closely related. 9. The petitioner also points out that the second memo of charge issued to him is also vitiated by mala-fides and the allegation against him is that he failed to report the misdeeds of a depot assistant at Hazal. It is pointed out that a battalion of officers are available for immediate supervision of the depot assistant below the petitioner and above the depot assistant. It is stated in answer to Ext.P1 memo of charge the petitioner had submitted Ext.P1(n) reply stating that he was totally unaware of the incident and immediately after coming to know about the same he has detected the exact misappropriation and directed the persons concerned to make good the loss. However, an enquiry officer and presenting officer were appointed on that charges also. All of them are having close personal relations. However, an enquiry officer and presenting officer were appointed on that charges also. All of them are having close personal relations. It is therefore alleged that the entire proceedings are vitiated by bias. 10. According to the petitioner, in view of the criticism made by the petitioner against the vigilance department, in the Karnataka Convention of Officer of FACT held in September, 2011, the presenting officer is having animosity against the petitioner and there is therefore every likelihood of bias, explaining which the petitioner had filed WP (C) No. 12670 of 2012. 11. It is his further contention that the respondents did not allow him the assistance of a retired employee of FACT despite Ext.P1 request made by the petitioner on 24.4.2012 pointing out that he was unable to get any officer to help him as defence assistant. Rule 26(f) of the D.A Rules provides that employee may take the assistance of a co-employee, but shall not engage a legal practitioner. Pointing out that Rule 26 does not prohibit availing of assistance of a retired employee, it is pointed out that the rejection was in violation of natural justice. Relying on the judgments in Professor Ramesh Chandra vs. University of Delhi and Others, (2015) 5 SCC 549 , McKenzie vs. McKenzie, (1970) 3 All ER 1034, J.K. Aggarwal vs. Haryana Seed Development Corporation Ltd. and Others, (1991) 2 SCC 238 and Board of Trustees of the Port of Bombay vs. Dilipkumar Raghavendranath, (1983) 1 SCC 124 , it is argued that denial of defence assistant has vitiated the enquiry by denying effective opportunity to the petitioner to defend. 12. The next contention of the petitioner is that he was not paid subsistence allowance in accordance with law. It is pointed out that the subsistence allowance was reduced as per Ext.P1(r) order stating that enquiry proceedings were delayed at the instance of the petitioner. However that order was declared illegal in the interim order passed by this Court on 8.9.2016. It is pointed out that the hostile attitude adopted towards the petitioner is evident. 13. It is his further case that he was denied the opportunity to cross examine the complainant and to produce relevant witnesses. It is pointed out that the enquiry officer and presenting officer adopted a noval procedure in this case by visiting Sri. It is pointed out that the hostile attitude adopted towards the petitioner is evident. 13. It is his further case that he was denied the opportunity to cross examine the complainant and to produce relevant witnesses. It is pointed out that the enquiry officer and presenting officer adopted a noval procedure in this case by visiting Sri. Ramalingappa at his residence and by recording his statement in an audio visual C.D. They went to that place without the knowledge of the petitioner and the petitioner was effectively denied the opportunity to cross examine. It is stated that the C.D. containing his statement was played in the enquiry, effectively denying opportunity to the petitioner to cross examine. It is stated that the list of witnesses submitted by the petitioner including the fertilizer dealers was rejected as per Ext.P8 stating that those witnesses were irrelevant. Similarly none of the other officers mentioned in the statement of allegation was examined and examination of the only officer was of Ramalingappa, that too in the audio visual C.D. 14. It was argued that the enquiry report does not take into account the procedural irregularities and a reading of paragraphs 9 to 12, 18, 20 and 23 of the report would show that it was prepared with a view to punish the petitioner. Especially in paragraph 20, the enquiry officer refers to the non examination of Venkata Reddy. At the same time, reliance is made on his statement though he was not examined before the enquiry officer; and thus denied the opportunity to the petitioner to cross examine him. Similar is the case with the production of the video C.D. taking the statement of the complainant Sri. Ramalingappa. It is his contention that even those statements of Sri. Ramalingappa are contradictory. But the enquiry officer relied on that part of the statement which is against the petitioner. The enquiry report also does not consider the fact that the petitioner was a senior officer and Sri. Murali Nair was working as DGM Finance and he was not in a position to transfer Sri. Thotaphani. Thus the relevant factors are not considered while arriving at the findings. The enquiry report also does not consider the fact that the petitioner was a senior officer and Sri. Murali Nair was working as DGM Finance and he was not in a position to transfer Sri. Thotaphani. Thus the relevant factors are not considered while arriving at the findings. Relying on the judgment in Mohini Shankar vs. Union of India, (2008) 3 SCC 484 (Para 16 and 17) it was argued that the evaluation of evidence was improper and by not considering the relevant factors the test of Wednesbury's principle was not satisfied. 15. The next contention is regarding the findings of the disciplinary authority. It is stated that the disciplinary authority did not give effective opportunity to the petitioner before differing with the findings in the enquiry report. Relying on the judgments reported in Punjab National Bank and Others vs. K.K. Verma, 2010 (13) SCC 494 (Para 21, 31, 32 and 35)) and the requirement of the hearing it is pointed out that the disciplinary authority did not issue any notice along with his descenting findings and call for any objections. The enquiry report did not find the petitioner guilty of the misconduct under Rule 7(a) & (b). In case those findings were to be differed the disciplinary authority ought to have furnished an opportunity of hearing to the petitioner. It is stated that the observations of the disciplinary authority was served on the petitioner along with the copy of enquiry report. But it would not amount to a hearing. Therefore, the findings of the disciplinary authority are not liable to be accepted. The appointing authority issued Ext.P3 order repeating the statements of the enquiry officer and the disciplinary authority, without any application of mind. The appellate authority which chose to reject the appeal after a period of 2 years did not consider even the violation of Rule 25 of the Rules. It is stated that the action of the appellate authority is bad for non-application of mind and in violation of the law laid down in M.V. Bijalani vs. Union of India, (2006) 5 SCC 88 . 16. It is further stated that it took 5 years to finalise the enquiry and to pass orders on the appeal. The petitioner who was suspended on 2.12.2011 was issued with a memo of charge on 2.2.2012. 16. It is further stated that it took 5 years to finalise the enquiry and to pass orders on the appeal. The petitioner who was suspended on 2.12.2011 was issued with a memo of charge on 2.2.2012. After the enquiry report was submitted on 12.11.2012 the disciplinary authority arrived at the findings on 4.3.2013. Orders were passed in the disciplinary action on 19.8.2014. The appeal submitted by the petitioner on 23.09.2014 was rejected on 30.4.2016. Relying on State of Andhra Pradesh vs. N. Radhakrishnan, (1998) 4 SCC 154 it is argued that the delay itself has vitiated the decision of the disciplinary authority. Relying on the judgment of this Court in Sobha S.N. vs. State of Kerala and Others, (2015) 4 KLJ 196 and Prakasan K.S. vs. State of Kerala and Others, 2012 (2) KLJ 753 , it was argued that it is a fit case where this Court has to interfere as the findings are arrived at, on extraneous and irrelevant materials. Placing reliance on Rajendra Panicker A. vs. Kerala State Warehousing Corporation, 2005 KHC 1246, M.V. Bijlani vs. Union of India, (2006) 5 SCC 88 , Sri. Kaleeswaram Raj, the learned Counsel for the petitioner asserts that it is a fit case where the interference of this court under Article 226 is warranted and the impugned orders are liable to be set aside and the petitioner is to be directed to be reinstated with back-wages. 17. Respondents filed counter affidavit stating that the enquiry was conducted perfectly in accordance with law and in accordance with the procedure prescribed in the rules. Enquiry report as well as the proceedings are made available to the court. In the counter affidavit it was stated that the petitioner was not permitted to engage a retired employee as defence assistant because the rules do not permit for the same. As per the rules only a co-worker can be engaged. It is also stated that disciplinary authority had differed with the findings of the enquiry officer and that findings were furnished along with the enquiry report. The rules do not provide for any further proceedings or hearing when the findings are differed. Punishment was awarded by the appointing authority on the basis of the recommendations of the disciplinary authority, the enquiry proceedings and all related documents. The rules do not provide for any further proceedings or hearing when the findings are differed. Punishment was awarded by the appointing authority on the basis of the recommendations of the disciplinary authority, the enquiry proceedings and all related documents. Ext.P3 order awarding the punishment of removal from service was passed in accordance with the findings and after considering the evidence on record. With respect to the appeal it is stated that the appeal was placed before the Board of Directors in its 477th meeting held on 02.03.2016 along with all connected documents and they came to the conclusion that circumstances did not warrant a revision of punishment. It is stated that in another set of memo of charge issued to the petitioner on 08.02.2012 punishment of reduction in his basic pay to a lower stage by one increment was awarded and yet another disciplinary proceedings based on memo of charge dated 16.04.2013 was pending. According to the respondents awards given to the petitioner was for the achievements in the sales target in Karnataka which was resulted to team work and the same cannot be seen as the achievement of the petitioner alone. Respondents also stated that Sri. P.C. Ramalingappa has filed a statement in his own handwriting on 16.09.2011 to the Vigilance Department of the Company and thereafter the matter was investigated by the Vigilance Department and disciplinary proceedings were initiated against the petitioner based on that vigilance report. It is stated that memo of charges were issued to the petitioner not only on the basis of complaint of Sri. P.C. Ramalingappa but based on the facts and circumstances that came out during the vigilance investigation. Regarding the examination of Ramalingappa and recording the same in CD it is stated that the disciplinary authority had concluded that Sri. P.C. Ramalingappa being a retired hand, cannot be coerced to appear in the enquiry. The prosecution had video recorded statement and it was admitted by the Enquiry Officer. It is stated that the petitioner had not disputed the contents of the CD or the person who made the statement and therefore the Enquiry Officer accepted it as evidence. Regarding petitioner's contention that he was not given an opportunity to cross examine Sri. Venkata Reddy, it is stated that the petitioner did not examine that person even though he was cited as defense witness. Regarding petitioner's contention that he was not given an opportunity to cross examine Sri. Venkata Reddy, it is stated that the petitioner did not examine that person even though he was cited as defense witness. It is further stated that the FACT (CDA) Rules do not provide for any hearing to be given to the charge sheeted employee in case there is any disagreement with the findings of the Enquiry Officer. But while forwarding copy of the Enquiry Report he was given in detail the reasons for disagreeing with the findings of the Enquiry Officer. It is stated that disciplinary proceedings were initiated against the petitioner, M/s V. Murali Nair, K.R. Rao and Venkata Redy. Sri. K.K. Ravu was not found guilty. Sri. Venkata Redy was given punishment of reduction to lower grade and disciplinary proceedings against Sri. V. Murali Nair was not concluded at the time of filing the counter affidavit. 18. I heard the learned counsel for the petitioner and learned Senior Counsel for the respondents. The charges against the petitioner were the following: Shri P. Suryanarayana was working as Area Manager (Karnataka) Co-ord (“AM (Karanataka) C”) Area Office, Bangalore since July 2008 till 02-Dec-2011. While functioning as AM (Karnataka) C, Shri. P. Suryanarayana conspired with Sri. V. Murali Nair, the then Dy. General Manager, for the purpose of transferring Sri. Thotaphani, the then Sr. Regional Manager (Bangalore) out of Karnataka State. Shri P. Suryanarayana instructed S/Shri G. Venkata Reddy, the then Sr. Sales Officer (Bangalore), (ii) K.R. Rao, Asst. Manager (Sales)/Tumkur, (iii) P.C. Ramalingappa the then Asst. Manager (Sales)/ Mysore and (iv) B.B. Gangadharaiah, the then Sales Officer/Davanagere, who were his subordinate officers to take part in the conspiracy meeting with Sri. V. Murali Nair, held on 15 Dec. 2008 at Bangalore. Shri P. Suryanarayana and Sri. V. Murali Nair instructed the above sales functionaries to instigate FACT dealers and generate vexatious complaints against Sri. Thotaphani for facilitating Shri Thotaphani's transfer. Shri P. Suryanarayana offered Rs. 1 lakh to Sri. V. Murali Nair as bribe towards arranging the transfer of Sri. Thotaphani. Towards the above payment to Shri V. Murali Nair, Shri P. Suryanarayana instructed the above Sales Officers/functionaries viz. S/Shri G. Venkata Reddy, K.R. Rao, P.C. Ramalingappa and B.B. Gangadharaiah, to contribute Rs. 25,000/- each. The said amount of Rs. 1 lakh was paid to Sri. Murali Nair. V. Murali Nair as bribe towards arranging the transfer of Sri. Thotaphani. Towards the above payment to Shri V. Murali Nair, Shri P. Suryanarayana instructed the above Sales Officers/functionaries viz. S/Shri G. Venkata Reddy, K.R. Rao, P.C. Ramalingappa and B.B. Gangadharaiah, to contribute Rs. 25,000/- each. The said amount of Rs. 1 lakh was paid to Sri. Murali Nair. The above acts and omissions on the part of Shri. P. Suryanarayana constitute violation of Rule 4(a) and 4(b) and misconducts under Rules 7(a), 7(b), 7(e), 7(t) and 7(x) of FACT Employees (Conduct, Discipline and Appeal) Rules, 1977 for managerial personnel which reads as follows: xxx xxx xxx 19. From the enquiry report it is seen that the respondents examined three witness and marked 25 documents. Petitioner examined one witness and marked 5 documents. Shri Thotaphani was examined as PW-1, Shri Janardhana Bhat who was an Assistant Manager (Sales), Pathanamthitta was examined as PW-2 and Sri. Balakrishanan Dy CM (V), who conducted the investigation of the case, was examined as PW-3. In the enquiry report, in paragraph 9, the Enquiry Officer has stated that PW-3 Dy CM (V) had deposed that during the course of investigation he had recorded the statement (Exts.P2 and P3) of P.C. Ramalingappa, the author of Ext.P1 complaint; Sri.Ramalingappa had retired from service by that time. Since he was reluctant to appear before the enquiry, PW-3 visited Ramalingappa on 18.07.2012 and had recorded his statement in a CD with his approval and CD was played in the enquiry in the presence of charge sheeted employee and Ext.P25 the manuscript of conversation between PW-3 and Ramalingappa in the CD, and the CD was also given to the charge sheeted employee. As against the objection raised against the acceptance of CD, the Enquiry Officer found that this Court has in Pootholi Damodaran Nair vs. Babu, 2005 (2) KLT 707 held that tape recorded conversation is admissible in evidence and the apex court has in Pratap Singh vs. State of Punjab, AIR 1964 SC 72 and in Ramsing vs. Col. As against the objection raised against the acceptance of CD, the Enquiry Officer found that this Court has in Pootholi Damodaran Nair vs. Babu, 2005 (2) KLT 707 held that tape recorded conversation is admissible in evidence and the apex court has in Pratap Singh vs. State of Punjab, AIR 1964 SC 72 and in Ramsing vs. Col. Ram Singh, AIR 1986 SC 3 and as per the guidelines regarding admissibility of tape recorded statement, laid down in those judgments, the requirements are (1) to identify the voice of the speaker; (2) the accuracy of the tape recorded statement shall be proved by the maker of the by satisfactory evidence, direct or circumstantial; He further concluded stating: “But in this enquiry Instead of tape recorded statement PW-3 has produced a compact disc where the author of Exts.P2 and P3 is seen speaking to PW-3. In the enquiry the charge sheeted employee has neither disputed the person who made the statement nor disputed the voice. So I find the CD produced in the enquiry is admissible.” 20. Stating that CD was played in the inquiry and that the petitioner did not dispute the contents of the CD or genuineness of the person who made the statement, the Enquiry Officer accepted the CD and found that there was no infirmity in accepting the statement of Ramalingappa. 21. Further the Enquiry Officer relied on the statement of Venkata Redy in Ext.P11, taken by PW3 at the time of investigation to conclude that there was a conspiracy meeting on 15.12.2008 in which the petitioner had met Murali Nair with his subordinate officers and therefore relying on Exts.P2 and P3 and Ext.P11, statement of Ramalingappa and Venkata Redy, who were not examined before the Enquiry Officer, the Enquiry Officer concluded that fictitious complaints were generated by the dealers and those complaints were instrumental in transferring Thotaphani-PW1, for which a meeting took place on 15.12.2008 in which it was decided to create a situation for transferring PW1 out of the State of Karnataka. The objection raised by the petitioner against the acceptance of the statements of Sri.Ramalingappa and Venkata Redy were brushed aside saying that sufficient evidence was available in the CD and that the petitioner did not have a case that the investigating officer was inimical towards the petitioner. The objection raised by the petitioner against the acceptance of the statements of Sri.Ramalingappa and Venkata Redy were brushed aside saying that sufficient evidence was available in the CD and that the petitioner did not have a case that the investigating officer was inimical towards the petitioner. It was found that the evidence of PW3-the investigating officer and the statements taken by him could be relied on. 22. Evidence, in the inquiry, consists the testimonies of PW-1 Thotaphani, PW-2 Janardhana Bhat and PW-3 investigating officer. The evidence of Thotaphani only relates to his service as SR in Banglore from April 2006 to May 2009. He has stated that the petitioner was the Area Manager from 2008 onwards in Bangalore to whom he was reporting. Though Thotaphani was examined as PW1 there is nothing in evidence to connect the petitioner with any of the charges. The only finding of the Enquiry Officer relating to PW1's testimonies is in paragraph 19 of the enquiry report wherein he says that his evidence is accepted not on the ground that he is an eye witness to the meeting but is only a corroborative piece of evidence that the petitioner left early on 15.12.2008 from KSCMF office to meet Murali Nair. PW-1 during his examination stated that on the relevant day he had gone to airport along with the petitioner and petitioner left early. He has not even stated that petitioner met Murali Nair or he went to meet him. At any rate, there is nothing in the evidence of PW1 that there was any conspiracy to get him transferred or that petitioner had left him early in order to meet Murali Nair and there is absolutely nothing connecting the charges alleged against the petitioner. 23. In the cross examination of Sri. Janardhana Bha PW-2, he deposed that he does not have any personal knowledge and he came to know about the incident from Ramalingappa, who is covered by the VCD. PW-2 was examined on 24.08.2012. 23. In the cross examination of Sri. Janardhana Bha PW-2, he deposed that he does not have any personal knowledge and he came to know about the incident from Ramalingappa, who is covered by the VCD. PW-2 was examined on 24.08.2012. Even in the chief examination he only deposed about some telephonic conversation with Ramalingappa, that he received call on 24.11.2011 and on 5.12.2011 when he was in a very happy mood about the suspension ordered against Murali Nair, petitioner etc.; Ramalingappa did not thereafter call him and he appeared to be very tensed and was not opening up and there was lot of difference in the attitude of Ramalingappa, etc. He deposed that he did not personally see Ramalingappa meeting Venkata Reddy. When he was asked whether he was not subjected to disciplinary proceedings at the instance of the petitioner several times, when he was working at Shimoga, relating to acceptance, dishonour, etc of cheques and financial irregularities contrary to the instruction of the company, company suffered loss due to the acceptance of local cheques, etc, his answer was that company has taken appropriate action on that. However PW-2 said that he was not suspended or that suspension was not revoked and the Manager had taken appropriate decision whenever there were complaints. Thus the testimony of PW-2 is only hearsay. 24. Remaining evidence was that of PW-3, who is the investigating officer. Thus the only evidence before the enquiry officer is the testimony of PW-2 who admitted that he does not have any personal knowledge about the incident. Even assuming that what PW-2 said is correct, he only deposed as to the jubilant and tense mood of Ramalingappa, which he could gather over telephonic conversation. Even according to him, he came to know about the incident from Ramalingappa, who was not at all examined in the inquiry. The very basis of the charges is the complaint of Ramalingappa, who was not examined in the enquiry. 25. The findings of the Enquiry Officer that voice in the CD was not disputed by the petitioner and the contents of the conversion was also not disputed by the petitioner and hence it should be taken as legal evidence is unsustainable. The very basis of the charges is the complaint of Ramalingappa, who was not examined in the enquiry. 25. The findings of the Enquiry Officer that voice in the CD was not disputed by the petitioner and the contents of the conversion was also not disputed by the petitioner and hence it should be taken as legal evidence is unsustainable. Assuming that the voice was not disputed, that cannot in any way validate the procedure adopted and make the contents of conversation acceptable as evidence, as long as the delinquent employee is not in a position to cross examine the witness personally during the course of enquiry. When such a procedure was not adopted, the audio CD cannot be treated as legal evidence at all. In the absence of such an evidence, there cannot be any corroboration even assuming that what PW-1 and PW-2 deposed before the enquiry can be accepted. In effect there was nothing on record to corroborate. Therefore depositions of PW-1 and PW-2 who admitted that they do not have any direct knowledge will not in any way improve the case of the respondents and it can be safely concluded that it is a case of no evidence and not a case of some evidence. 26. It is settled law that the statement taken behind the back of delinquent employee during the time of investigation cannot be accepted except after it is put to the witness during the course of enquiry in which the delinquent employee is given opportunity to cross examine. 27. It is well settled that extent of judicial review of departmental proceedings, under Article 226 is very limited, as held by the Apex Court and this court in a series of judgments. In Union of India vs. P. Gunasekharan, (2015) 2 SCC 610 , the apex court held as follows: “13. Under Articles 226/227 of the Constitution of India, the High Court shall not: (i) re-appreciate the evidence. (ii) interfere with the conclusions in the enquiry, in case the same has been conducted in accordance with law. (iii) go into the adequacy of the evidence. (iv) go into the reliability of the evidence. (v) interfere, if there be some legal evidence on which findings can be based. (vi) correct the error of fact however grave it may appear to be. (vii) go into the proportionality of punishment unless it shocks its conscience. 28. (iii) go into the adequacy of the evidence. (iv) go into the reliability of the evidence. (v) interfere, if there be some legal evidence on which findings can be based. (vi) correct the error of fact however grave it may appear to be. (vii) go into the proportionality of punishment unless it shocks its conscience. 28. In the judgment in Allahabad Bank vs. Krishna Narayan Tewari, (2017) 2 SCC 308 , the apex court, while considering the case of removal ordered against a bank employee, reiterating that a writ court should be very slow in interfering with the findings of facts recorded by a departmental authority on the basis of evidence available on record, held that it is equally true that in a case where the disciplinary authority records a finding that is unsupported by any evidence, the writ court would be justified if not duty-bound to examine the matter and grant relief in appropriate cases. 29. In Sher Bahadur vs. Union of India, (2002) 7 SCC 142 , the apex court, while considering the validity of the punishment of dismissal of a khalasi from Northern Railways held that evidence, however voluminous it may be, which is neither relevant in a broad sense nor establishes any nexus between the alleged misconduct and the charged officer, is no evidence in law. In Narinder Mohan Arya vs. United India Insurance Co. Ltd. (2006) 4 SCC 713 , the apex court, while considering a case of removal of an Inspector, in paragraph 26, held as follows: In a suit filed by a delinquent employee in a civil court as also a writ court, in the event the findings arrived at in the departmental proceedings are questioned before it, it should keep in mind the following: (1) The enquiry officer is not permitted to collect any material from outside sources during the conduct of the enquiry. State of Assam vs. Mahendra Kumar Das, AIR 1970 SC 1255 . (2) In a domestic enquiry fairness in the procedure is a part of the principles of natural justice. Khem Chand vs. Union of India, AIR 1958 SC 300 and State of U.P. vs. Om Prakash Gupta, (1969) 3 SCC 775 . (3) Exercise of discretionary power involves two elements—(i) objective and (ii) subjective and existence of the exercise of an objective element is a condition precedent for exercise of the subjective element. Khem Chand vs. Union of India, AIR 1958 SC 300 and State of U.P. vs. Om Prakash Gupta, (1969) 3 SCC 775 . (3) Exercise of discretionary power involves two elements—(i) objective and (ii) subjective and existence of the exercise of an objective element is a condition precedent for exercise of the subjective element. K.L. Tripathi vs. State Bank of India, (1984) 1 SCC 43 . (4) It is not possible to lay down any rigid rules of the principles of natural justice which depend on the facts and circumstances of each case but the concept of fair play in action is the basis. Sawai Singh vs. State of Rajasthan, (1986) 3 SCC 454 . (5) The enquiry officer is not permitted to travel beyond the charges and any punishment imposed on the basis of a finding which was not the subject-matter of the charges is wholly illegal. Director (Inspection & Quality Control) Export Inspection Council of India vs. Kalyan Kumar Mitra, (1987) 2 Cal. L.J. 344. (6) Suspicion or presumption cannot take the place of proof even in a domestic enquiry. The writ court is entitled to interfere with the findings of the fact of any tribunal or authority in certain circumstances. Central Bank of India Ltd. vs. Prakash Chand Jain, AIR 1969 SC 983 and Kuldeep Singh vs. Commr. of Police, (1999) 2 SCC 10 . 30. The apex court in State of Mysore vs. S.S. Makapur, (1963) 2 SCR 943 , U.P. Warehousing Corporation vs. Chandra Kiran Tyagi, (1969) 2 SCC 838 , held that the quasijudicial tribunals/authorities shall not use any information received by them unless it is put to the party against whom it is to be used, and he is given a fair opportunity to explain it. In State of Assam vs. Mahendra Kumar Das, (1970) 1 SCC 709 , the apex court while considering the issue regarding dismissal of a Police Constable, reiterated the observations in Collector of Central Excise and Land Customs vs. Sanawarmal Purohit, 1968 KLT SN 15 (C. No. 28) (SC) in the judgment dated on 16.2.1968 in Civil Appeals Nos. In State of Assam vs. Mahendra Kumar Das, (1970) 1 SCC 709 , the apex court while considering the issue regarding dismissal of a Police Constable, reiterated the observations in Collector of Central Excise and Land Customs vs. Sanawarmal Purohit, 1968 KLT SN 15 (C. No. 28) (SC) in the judgment dated on 16.2.1968 in Civil Appeals Nos. 1362-1363/1967 where it was held that a quasi-judicial authority would be acting contrary to the Rules of natural justice, if it acts upon information collected by it which has not been disclosed to the party concerned and in respect of which full opportunity is not given to him to meet the same. 31. Going by the aforesaid settled position, this Court is not expected to interfere in a case where there is some evidence to connect the petitioner to the charges. In this case the charges are that there was a conspiracy to transfer out PW-1 Thotaphani, a subordinate officer of petitioner; for that purpose the petitioner instigated other officers, collected money and he gave it to Murali Nair, for which there was a meeting. There is no material on record brought out in the enquiry either for the conspiracy, or for instigation or for collection of money or for payment of money to Murali Nair or as to any meeting of petitioner with Murali Nair or even with any officer or for the purpose for which petitioner should get the officer transferred or the authority of Murali Nair to transfer him or get him transferred. The whole case proceeds on Ext.P1 complaint of Ramalingappa, who was not examined in the inquiry. His complaint Ext.P1 or his statements Exts.P2 and P3 cannot be accepted as evidence when it is not proved in the enquiry. As I have already found that the contents of video CD cannot be accepted as legal evidence, the only witness who said anything about Ramalingappa is PW-2. But he admits that he has not witnessed any such incident and that he does not have any personal knowledge about any incident covered by the charge. Thus there is no piece of evidence with which the testimony of either PW1 or PW-2 can be relied on or could be corroborated. Therefore, this court can safely conclude that this is a case of no evidence, one of the very few grounds on which this court is expected to interfere with. 32. Thus there is no piece of evidence with which the testimony of either PW1 or PW-2 can be relied on or could be corroborated. Therefore, this court can safely conclude that this is a case of no evidence, one of the very few grounds on which this court is expected to interfere with. 32. Even though the learned counsel for the petitioner raised about a dozen grounds like the violation of principles of natural justice by denying the defense assistant, which the respondents have stated that it is governed by rules and that the petitioner was denied opportunities of cross examining the witnesses, there was delay in completing the enquiry, disciplinary authority did not grant opportunity to the petitioner when he deferred with the findings of the enquiry officer, the act of the enquiry officer in arriving at the findings, in awarding the punishment, in considering his appeal etc. I am of the view that those questions need not be considered, once it is found that the findings of the Enquiry Officer as well as that of disciplinary authority are based on no legal evidence at all. 33. The entire proceedings which culminated in awarding a punishment of removal from service as well as rejection of his appeal have become illegal. In the absence of evidence, the petitioner could not have been found guilty of any of the charges and hence the findings of guilt alleged and found proved against him in the enquiry as well as by the disciplinary authority and the punishment awarded to him based on the same are vitiated and liable to be set aside. 34. The petitioner was placed under suspension with effect from 2.12.2011 onwards. On the basis of the direction from this court he was granted subsistence allowance. When the respondents came to a finding of misconduct, in the absence of evidence, it has to be concluded that the action of the respondents in placing the petitioner under suspension itself was arbitrary. Therefore Ext.P1(a) order of suspension, findings in Ext.P1 enquiry report, Ext.P3 order of removal as well as Ext.P7 order in the appeal are set aside. As a consequence of the same, the petitioner shall be deemed to have been continued in service without any break and he shall be given all consequential benefits. Therefore Ext.P1(a) order of suspension, findings in Ext.P1 enquiry report, Ext.P3 order of removal as well as Ext.P7 order in the appeal are set aside. As a consequence of the same, the petitioner shall be deemed to have been continued in service without any break and he shall be given all consequential benefits. He will also be entitled to arrears of pay due to him and the pay and allowances for the period from 12.11.2011 onwards after deducting subsistence allowance already paid. 35. The writ petition is allowed as above.