JUDGMENT : Heard Mr. N. Dhar, learned counsel for the petitioner. None appeared on call for the respondents. 2. The learned counsel for the petitioner had orally prayed for an adjournment. However, it was noted that this writ petition was filed on 12.10.2012. Thus, this writ petition was 12 years old. Hence, the prayer for adjournment was refused. However, liberty was granted to the learned counsel for the petitioner to file written submissions by 17.05.2024. Mr. T.U. Laskar, the learned counsel for the petitioner had submitted his written argument to the Court Master on 18.05.2024, which is made a part of record. 3. In brief, the case of the petitioner is that at the relevant time he was working as an Accountant at the Hailakandi Branch of Assam Cooperative Apex Bank Ltd. By an order dated 11.06.2007, pending drawal of departmental proceeding, he was suspended. Thereafter, a charge-sheet dated 08.09.2007 was served on the petitioner along with the 9 (nine) article of charges; statement of allegations in support of the said 9 (nine) charges, requiring the petitioner to show-cause as to why penalties under Rule 46(a) of the Assam Cooperative Apex Bank (Staff) Rules, 1980 shall not be imposed for alleged misconduct of the petitioner. The petitioner was allowed 10 days time to inspect the documents and accordingly, the petitioner had submitted a request letter dated 03.10.2007 for furnishing him the required documents. 4. In continuation to the said departmental proceeding drawn against the petitioner, he was served with another show-cause notice dated 12.05.2008, requiring him to respond as to why penalties under Rule 46(a) of the Assam Cooperative Apex Bank (Staff) Rules, 1980 shall not be imposed for his alleged misconduct. The said notice was accompanied with 6 (six) article of charge; statement of allegations in support of the said 6 (six) article of charges; and list of documents. The petitioner had submitted his written statement of defence on 14.05.2008, denying the charges conveyed vide show-cause notice dated 08.09.2007. The petitioner had submitted another written statement of defence dated 16.05.2008, against the show-cause notice dated 12.05.2008. 5. By the minutes of proceeding of departmental enquiry dated 26.09.2008, the Enquiry Officer (hereinafter referred to as ‘EO’ for short) had held that all the charges against the petitioner was proved and established. The petitioner had submitted another written statement of defence dated 16.05.2008, against the show-cause notice dated 12.05.2008. 5. By the minutes of proceeding of departmental enquiry dated 26.09.2008, the Enquiry Officer (hereinafter referred to as ‘EO’ for short) had held that all the charges against the petitioner was proved and established. Thereafter, second show-cause notice dated 07.08.2009 was served on the petitioner along with a copy of the enquiry report (24 pages). The petitioner had submitted his written reply dated 10.09.2009 in respect of the said second show-cause notice dated 07.08.2009. It appears that after the petitioner had made a request for a personal hearing, he was personally heard on 12.11.2009. Thereafter, by order dated 24.12.2009, the Managing Director of the Assam Cooperative Apex Bank Ltd. (respondent no. 2), in exercise of power under Rule 46(a)(vi) of the Assam Cooperative Bank Limited (Staff) Rules, 1980, held that the petitioner had failed to maintain trust and honesty while dealing with public money and ordered dismissal of the petitioner from service with immediate effect. It was further ordered that apart from subsistence allowance already drawn, the petitioner would not be entitled to any salaries and allowances. 6. The petitioner had thereafter, submitted an appeal dated 22.03.2010, which was served on the authorities on 23.03.2010. It appears that as the appeal was not disposed of early. Hence, the petitioner had filed a writ petition and this Court by order dated 21.02.2012, allowed W.P.(C) 809/2012, by directing the respondent authorities to dispose of the departmental appeal within a period of one month from the date of furnishing the certified copy of the order. As the appeal was not disposed of, the petitioner had approached this Court again by filing a contempt petition. In the said contempt proceeding, the learned counsel for the Chairman, The Board of Directors- cum- Appellate Authority had informed the Court that the appeal was disposed of by order dated 16.12.2011, which was communicated to the petitioner on 10.02.2012. Accordingly, the contempt petition was closed. 7. In the said contempt proceeding, the learned counsel for the Chairman, The Board of Directors- cum- Appellate Authority had informed the Court that the appeal was disposed of by order dated 16.12.2011, which was communicated to the petitioner on 10.02.2012. Accordingly, the contempt petition was closed. 7. It may be stated that the Managing Director of the Assam Cooperative Bank Ltd., by a letter dated 10.02.2012, informed the petitioner that the Board of Directors (hereinafter referred to as ‘BoD’ for short) of the respondent bank, in its meeting held on 16.12.2011, had thoroughly discussed the issues and found no reason to disagree with the decision of the Managing Director and thus, vide resolution no. 24, his appeal dated 22.03.2010 was rejected. 8. Accordingly, by filing this writ petition under Article 226 of the Constitution of India, the petitioner has challenged both the said orders. 9. Considered the written submissions submitted by the learned counsel for the petitioner. Also perused the writ petition, affidavit-in- opposition filed by respondent no.2 as well as the affidavit-in- reply filed by the petitioner. 10. In connection with the departmental proceedings drawn up against the petitioner, the General Manager, Assam Cooperative Apex Bank had appointed respondent no. 4 as EO to enquire into the article of charges against the petitioner and the respondent no. 5 was appointed as the Presenting Officer (hereinafter referred to as ‘PO’ for short). 11. The minutes of proceeding of departmental enquiry dated 26.09.2008 has been perused. It is seen that 5 (five) persons were present in the said proceeding. They were: (1) Sri J. Hazarika, EO; (2) Sri Samiran Paul, Management Witness (MW for short); (3) Sri Subir Chakraborty, PO; (4) Sri S.S. Deb, Charge- sheeted employee (CSE); (5) Sri R.K. Das, Defence Assistant (DA). 12. It may be mentioned that the petitioner has annexed the minutes of proceeding of departmental enquiry dated 26.09.2008 consisting of 17 pages. However, as per the second show-cause notice, the petitioner was served with a copy of minutes of proceeding of departmental enquiry dated 26.09.2008 consisting of 24 pages. The enquiry report consisting of 17 (seventeen) pages does not contain any date. But, it is in two parts. The first part relates to 9 (nine) charges framed against the petitioner vide first charge-sheet dated 08.09.2007. The second part relates to 6 (six) additional charges framed vide letter dated 12.05.2008. The enquiry report consisting of 17 (seventeen) pages does not contain any date. But, it is in two parts. The first part relates to 9 (nine) charges framed against the petitioner vide first charge-sheet dated 08.09.2007. The second part relates to 6 (six) additional charges framed vide letter dated 12.05.2008. All the 15 charges (i.e. 9 charges and 6 charges) were held to have been proved. It may also be stated that there is no note in the said undated Enquiry Report that the said report had 24 sheets or that there were any enclosures whatsoever to the said Enquiry Report. The respondent no.2 has also not annexed a 24 page Enquiry Report with his affidavit-in-opposition. 13. It may be also mentioned herein that the petitioner has alleged in the writ petition that the PO had exhibited a few documents although he was not the named MW in the proceeding. It has been alleged that the management did not examine any other witness to prove the handwriting or signatures of persons who allegedly had written or signed the documents exhibited in the case. It was further alleged that the EO did not record the statement of the MW, namely, Samiran Paul, nor did he allowed the petitioner to cross-examine the said MW in violation of Rule 9(3) of the Assam Services (Discipline and Appeal) Rules, 1964. There is neither any specific denial to the said allegations nor any document has been annexed to the affidavit-in-opposition filed by the respondent no.2 to dispel the said allegation. 14. It may be stated that the record of evidence and crossexamination of the MW is not made a part of the minutes dated 26.09.2008 of the proceeding of departmental enquiry. The respondent no.2 has also not annexed a copy of the record of evidence and cross-examination of the MW in his affidavit-in-opposition. Therefore, the Court is compelled to draw a presumption that the memorandum of evidence of MW was not recorded and that the petitioner or his defence assistant was not allowed to cross-examine the MW. 15. The respondent no.2 has also not annexed a copy of the record of evidence and cross-examination of the MW in his affidavit-in-opposition. Therefore, the Court is compelled to draw a presumption that the memorandum of evidence of MW was not recorded and that the petitioner or his defence assistant was not allowed to cross-examine the MW. 15. The case of the petitioner is that under Rule 120 of the Assam Cooperative Apex Bank Limited (Staff) Rules 1980, it is provided that: “Where no specific provision has been made in these rules in respect of any matter, the relevant rules of the State Government relating to such matter shall be followed as far as practicable .” 16. Under Rule 9(6) of the Assam Services (Discipline and Appeal) Rules, 1964, it is provided as follows:- “9. Procedure for imposing penalties.- (1) * * * (6) The enquiring Authority shall, in the course of the enquiry consider such documentary evidence and take such oral evidence as may be relevant or material in regards to the charges. The Government servant shall be entitled to cross-examine witnesses examined in support of the charges and to give evidence in person and to adduce documentary and oral evidence in his defence. The person presenting the case in support of the charges shall be entitled to cross-examine the Government servant and the witnesses examine any witness or to admit any document in evidence on the ground that his evidence or such document is not relevant or material it shall record its reasons in writing.” 17. In the absence of the record of evidence of MW, the allegation by the petitioner that the evidence against him was opened by the MW and that the petitioner or his Defence Assistant (DA for short) had not been given any opportunity to cross-examine the sole MW is deemed to have been admitted by the respondents by applying the doctrine of non-traverse. 18. In the case of Pabitra Ranjan Guha v. The Collector of Customs and Central Excise, Shillong, AIR 1971 A&N 281 , this Court had held as follows:- "A document being an inanimate thing necessarily comes to the cognizance of judicial or quasi-judicial authorities through the medium of human testimony. Mere production of a document without the testimony of the custodian of the same cannot convert it into documentary evidence forming part of the proceeding. Mere production of a document without the testimony of the custodian of the same cannot convert it into documentary evidence forming part of the proceeding. It cannot be relied on or accepted in evidence and marked as part of the case for being relied on in the enquiry. If such a procedure is allowed to be followed in the departmental enquiries, there would not be any safety for the delinquent employees" "Even the acceptance of a document as part of the record of the disciplinary proceedings will not establish the truth of what is stated in the document. It will not imply that the contents of the documents has been proved"-[P.S. Gopala Pillai vs. Union of India & Others, O.A. No.413 of 1991].” 19. The petitioner had alleged that all the documents exhibited in the departmental enquiry were not provided along with the show-cause notice/ charge-memo. The said allegation cannot be accepted because in the Enquiry Report, 62 (sixty-two) exhibits have been referred to. However, it is noted that along with the first show-cause notice, a list containing reference to 116 documents was furnished to the petitioner and thereafter, along with the second show-cause notice, a list of 18 documents was furnished to the petitioner. Therefore, the said stand of the petitioner that the list of documents was not provided to him is unacceptable. There is nothing on record to show that the petitioner had demanded inspection or copies of those documents, which was denied to him. Therefore, the petitioner is not found to have suffered any prejudice on this account. 20. In the departmental appeal, the petitioner had stated that the EO was biased against the petitioner; he did not allow the Defence Representative (hereinafter referred to as ‘DR’ for short) to present the case of the petitioner; and no opportunity was given to the petitioner to cross-examine MW, which was in violation of Rule 9(6) of the Assam Services (Discipline and Appeal) Rules, 1964. It was also urged that where the PO had failed to adduce any evidence, the EO had fixed the responsibility upon the petitioner to disprove the charges. It was also urged that finding is based on conjectures and surmises. It was also urged that the PO was allowed to submit the documents without the testimony of the custodian. It was thus, stated that the petitioner was denied reasonable opportunity to defend himself. It was also urged that finding is based on conjectures and surmises. It was also urged that the PO was allowed to submit the documents without the testimony of the custodian. It was thus, stated that the petitioner was denied reasonable opportunity to defend himself. Moreover, in respect of all the charges relating to the first and second charge-sheet against the petitioner, specific instances of lack of evidence, reliance of evidence outside the list of documents, acceptance of statement of the PO without documentary evidence was urged. 21. In this regard, it may be stated that the relevant BoD resolution no. 24 taken in its meeting held on 16.12.2011, had not been enclosed to the letter dated 10.02.2012, by which the decision of the appellate authority i.e. the BoD of the respondent bank was communicated to the petitioner. The said resolution no. 24 has also not been annexed to the affidavit-in-opposition filed by the respondent no.2. Thus, the respondents have failed to disclose if the points raised by the petitioner was discussed in the said BoD meeting held on 16.12.2011. 22. In the case of Hem Chandra Chutia v. Assam Cooperative Apex Bank Ltd. (2014) 3 GLR 472: (2014) 0 Supreme(Gau) 257, this Court had held as under:- “14. The writ court while considering the legality of a departmental proceeding, will verify whether the finding of the Enquiry Officer is based on some evidence. Interference will be justified only when conclusion is reached perversely without any evidence or the conclusion is such that, it can’t be reached reasonably by a common man in ordinary circumstances. 15. As was noted earlier, the Management didn’t produce any witness in the Enquiry. On this aspect the Bank’s lawyer submits that since the case is based on written communications, those can be a reasonable basis for the conclusion reached against the delinquent. But what is seen in the present case is that even these documents were not produced and admitted into evidence. Consequently, the delinquent was denied the opportunity to rebut the documents or to make his submission, Therefore this appears to be a case of no evidence rather than a case of irregular evidence, since none of the documents were admitted as evidence in the inquiry proceeding . * * * 18. Consequently, the delinquent was denied the opportunity to rebut the documents or to make his submission, Therefore this appears to be a case of no evidence rather than a case of irregular evidence, since none of the documents were admitted as evidence in the inquiry proceeding . * * * 18. Before inflicting any penalty against any employees, the Bank was obliged to afford a reasonable opportunity, which in my understanding will require proving the charges through cogent evidence. But here during the enquiry, the allegation were only recited by the Presenting Officer and thereafter the delinquent was asked to cross-examine the Presenting Officer. But such process doesn’t in any way prove the charges and more importantly, reasonable opportunity was denied to the delinquent to rebut the charges. Moreover as the concerned documents were never produced or admitted into evidence in the inquiry, the delinquent had no opportunity to object to those documents. Therefore, in the absence of evidence, the charges were never proved and the conclusion reached are mere inferences and conjunctures. Moreover permitting cross-examination of the Presenting Officer does not certainly a mount to affording reasonable opportunity to the charged employee. Therefore the conclusions are found to have been reached on surmises and conjuncture and it clearly is a case of perverse conclusion.” 23. In the present case in hand, although in the Enquiry Report it has been stated that MW was examined. But, his evidence-in-chief and crossexamination has not been discussed at all. On a perusal of the minutes of proceedings, the impression gathered is to the effect that the management case was opened by the PO. A one-liner statement of the MW is recorded in the minutes of proceeding of departmental enquiry dated 26.09.2008 in respect of charge nos. 1, 2, 4, 5, 6, 7 and 9 and additional charge nos. 4 and 5. Thus, there is no reference to the evidence of MW in respect of charge nos. 3, 8, additional charge nos. 1, 2, 3 and 6. Moreover, though one-liner statement of MW is referred to in respect of charge nos. 1, 2, 4, 5, 6, 7 and 9 and additional charge nos. 4 and 5, but from the said one-liner statement, it cannot be said that the petitioner had been given any opportunity of cross-examining the MW. 1, 2, 3 and 6. Moreover, though one-liner statement of MW is referred to in respect of charge nos. 1, 2, 4, 5, 6, 7 and 9 and additional charge nos. 4 and 5, but from the said one-liner statement, it cannot be said that the petitioner had been given any opportunity of cross-examining the MW. Accordingly, it is not in dispute that no witness other than the MW was examined by the bank. Thus, the decision of the herein before referred case of Hem Chandra Chutia (supra) , is found applicable under the facts and circumstances of the case. 24. It is well settled by the Supreme Court of India in the case of Orissa Mining Corporation & Anr. v. Ananda Chandra Prusty, (1996) 11 SCC 600 , the Supreme Court had held that there was nothing as an absolute burden of proof, always lying upon the department in a disciplinary proceeding and that the burden of proof was dependent upon the nature of the incident and the nature of charges and it was also held that in a given case the burden may be shifted to the delinquent officer depending upon his explanation. However, from the facts as discussed above, the said case would not be applicable in this case because the burden of proof was on the management and on admissible proof being tendered, onus would have shifted upon the petitioner. 25. In this case, the respondents have not been able to show that the documentary exhibits, proved against the petitioner, were proved through MW. The management had not examined any other witnesses, whose documents, writings and signatures were required to be proved. Thus, this does not appear to be a case where the onus of proving innocence would shift on the petitioner. 26. Therefore, in light of the discussions above, the Court is inclined to hold that the departmental enquiry against the petitioner has been vitiated by (i) non- examination of any witness apart from MW; and (ii) that the management case was not entirely proved by the MW; and (iii) that the petitioner was not given reasonable opportunity to cross-examine the MW. Therefore, in light of the discussions above, the Court is inclined to hold that the departmental enquiry against the petitioner has been vitiated by (i) non- examination of any witness apart from MW; and (ii) that the management case was not entirely proved by the MW; and (iii) that the petitioner was not given reasonable opportunity to cross-examine the MW. 27) Moreover, for reasons not disclosed, the respondents had not supplied the copy of proceedings where the examination-in- chief and crossexamination of MW was recorded, which has the effect of causing serious prejudice to the petitioner to make his defence submissions in course of the departmental enquiry. 28. In view of above, the impugned proceeding is held to be vitiated in law and consequently, the impugned dismissal order dated 24.12.2009, based on such vitiated finding is quashed. Resultantly, the BoD resolution no. 24 dated 16.12.2011, as communicated vide letter dated 10.02.2012, issued by the Managing Director of the respondent bank, is also quashed. 29. Consequential direction is issued to the effect that if the petitioner has not reached the age of superannuation as on 11.06.2024, the respondents shall reinstate him in service. However, if the petitioner has reached the age of superannuation, the respondents need not reinstate him. Nonetheless, considering that no service was received by the employer for the intervening period, back wages need not be paid to the petitioner. But, the respondents must give full superannuation benefits by notionally treating the petitioner to have continued in service until he reached the age of superannuation. It is ordered accordingly. 30. With the above direction, the case stands allowed without any order on cost.