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ASHOK KUMAR versus ASSTT. GENERAL MANAGER, SYNDICATE BANK INDUSTRIAL R.C. & ORS

High Court of Judicature at Allahabad

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Ashok Kumar v. Asstt. General Manager, Syndicate Bank Industrial R.C. & Ors - WRIT - A No. 46210 of 1999 [2007] RD-AH 7595 (25 April 2007)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

Reserved

Civil Misc. Writ Petition No. 46210 of 1999

Ashok Kumar..Vs..Assistant General Manager, Syndicate Bank,

                             Industrial Relation Cell,Zonal office, Lucknow &

  others.

-------------------

Hon'ble Sabhajeet Yadav,J.

By this petition, the petitioner has challenged the order dated 26.7.1999 and order dated 31.3.1999, contained in Annexures-12 and 9 to the writ petition passed by respondents no. 2 and 1 respectively seeking writ of certiorari for quashing them and further a writ in the nature of mandamus commanding the respondents to reinstate the petitioner in service with arrears of full salary and continuity of service along with other consequential benefits thereof has been sought for.

2. The relief sought in the writ petition rest on the facts that while working as Clerk at Varanasi Main Branch of Syndicate Bank, the petitioner was served with a charge sheet dated6.4.1995 by Dy. General Manager of the said Bank. The charge against the petitioner was that he had unauthorisedly over written/altered the entries pertaining to the name of account holder Sri Shiv Kumar Kothari and thereby fraudulently diverted the proceeds of Rs. 4978/- in his account and derived undue pecuniary benefits therefrom temporarily at the cost of customer of the bank. It had also been alleged that the petitioner manipulated the bank's record, thereafter re-written the original particulars apparently to cover-up the said act and thus grossly abused his position in the bank. A true copy of the charge sheet is on record as Annexure-1 of the writ petition. On receipt of the said charge sheet, the petitioner submitted his reply dated 2.5.1995 denying the charges levelled against him. The petitioner has also requested to supply the copies of relevant documents forming the basis of said charges against him but the copies of said documents were not supplied to him, hence the petitioner was not given proper opportunity to file an effective reply to the said charge sheet. The defence representative of the petitioner vide application dated 11.4.1996 requested the Inquiry Officer to direct the bank to furnish the copies of the documents to the petitioner as mentioned in the said application. A true copy of the application dated 11.4.1996 is on record as Annexure-2 of the writ petition. It is stated that in spite of the request of petitioner as well as his defence representative before Inquiry Officer for supplying the copies of the documents, the said documents were not supplied to him and the photostat copies of some of the documents were given to the petitioner and his representative without verifying the same from original and neither the petitioner nor his defence representative were permitted to inspect the aforesaid original documents by the bank.

3. It is also stated in the writ petition that one Sri B. Taranth Pai who was also chargesheeted along with the petitioner in respect of same incident was produced by the bank as management witness before the Inquiry Officer. A true copy of the extract of inquiry proceeding pertaining to statement of Sri B. Taranth Pai in the form of question answer and his cross examination before the Inquiry Officer is on record as Annexure-3 of the writ petition. The Inquiry Officer concluded the inquiry and submitted his report dated 6.1.1999. In pursuance thereof the respondent no.1 vide his letter dated 29.1.1999 directed the petitioner to submit his reply/objection, if any, to the said Inquiry Report within 15 days. In response to it, the petitioner submitted his reply/objection on 4.3.1999. The copy of Inquiry Report dated 6.1.1999, letter dated 29.1.1999 and reply/objection dated 4.3.1999 are on record as Annexures-4,5 and 6 of the writ petition. Thereupon the respondent no. 1 vide his letter dated 8.3.1999 issued a show cause notice to the petitioner indicating therein as to why he should not be dismissed from service with immediate effect, a copy of which is on record as Annexure-7 to the writ petition. Thereafter the respondent no. 1 has passed the final order on 31.3.1999 whereby the petitioner has been dismissed from service of the bank with immediate effect. The said order was communicated to the petitioner vide covering letter dated 31.3.1999. A true copy of the covering letter dated 31.3.1999 and order of punishment dated 31.3.1999 are on record as Annexures- 8 and 9 of the writ petition. Against the aforesaid order the petitioner has filed an appeal on 14.5.1999 before respondent no.2, who vide his order dated 26.7.1999 has dismissed the appeal of petitioner and the said order was communicated to the petitioner vide his covering letter dated 29.7.1999. The copies of the aforesaid letters are on record as Annexures-11 and 12 of the writ petition respectively, hence this petition.

4. On the basis of aforesaid assertions in the writ petition Sri R.D. Khare, learned Counsel assisted by Sri T.R. Shukla appearing for the petitioner has submitted that in support of the charges levelled against the petitioner one Sri B. Taranth Pai, Assistant Manager of Varanasi Main Branch of the Bank in question has been examined as only Management witness who himself was chargesheeted in respect of the same incident while working as Supervisor, hence he was highly interested witness and his testimony cannot be relied upon more so when it was not corroborated and supported by any other independent witness and evidence in support of the said charge. He is also biased and impartial witness who has deposed under pressure. Besides this, the documents relied upon by the bank were photostat copies and same have not been proved as is evident by deposition of M.W.-1 in respect of question no.2 asked from him in cross examination, therefore, could not be relied upon by the Inquiry Officer. The original papers were neither produced before the Inquiry Officer nor the Inquiry Officer has examined the same during the disciplinary inquiry nor the petitioner has been permitted to inspect the original record, only the photostat copies were produced and  were relied upon by the Inquiry Officer.

5. Learned counsel for the petitioner has further submitted that the Inquiry Officer has failed to take into consideration the vital fact that MW-1 has himself deposed in the inquiry that the function of clerk in the bank is to prepare credit slip for respective party's account and duty of Supervisor is to check-up the correctness of the said slip and MW-1 who was Supervisor at that time has failed in his duties to check-up the OCC Ledger Book and credit slip which bore his signature. The Inquiry Officer has also failed to take into consideration the admission of MW-1 Supervisor that the documents referred above bore his signature and he has authenticated the credit which is evident from the reply to question nos. 6 and 7 asked in cross examination from him. Thus even if the charges against the petitioner have been found proved and established even then the petitioner as well as MW-1 Supervisor i.e. Sri B. Taranth Pai are equally responsible for the said act of omission and the bank cannot discriminate in the matter of awarding the punishment between them as the petitioner has been dismissed from service while Sri B. Taranth Pai has been awarded minor punishment of censure only. It is also submitted that the disciplinary authority while awarding the punishment to the petitioner has failed to take into consideration the unblemished service record of the petitioner as well as length of his service and the dedication with which the petitioner has served the bank, thus the punishment awarded to him is too harsh and severe and does not commensurate with the gravity of the charges levelled against him. However assuming without admitting that the charges against the petitioner even if found proved and established even then these are the mere irregularity and do not  constitute any misconduct and further by said act no financial loss has been incurred to the bank. The Inquiry Report submitted by the Inquiry Officer is also cryptic and there is no discussion about any evidence nor any reason has been recorded by the Inquiry Officer while recording the findings against the petitioner. The order passed by disciplinary authority on the basis of aforesaid Inquiry report is also mechanical in nature and without assigning any reason therefor, therefore, the entire disciplinary proceeding inasmuch as pursuant punishment awarded against the petitioner is liable to be quashed. For the same reason the order dismissing the appeal of petitioner is also not sustainable.

6. A detailed counter affidavit has been filed on behalf of respondent Bank, wherein various assertions made in the writ petition have been denied and disputed and action of respondent Bank taken against the petitioner has been sought to be justified, the reference of which shall be made at relevant place wherever it would be found necessary. While justifying the action taken against the petitioner learned counsel appearing for the respondent Bank Sri P.K. Singhal has submitted that the disciplinary inquiry has been held against the petitioner in accordance with the provisions of Rules of Disciplinary Inquiry, inasmuch as principles of natural justice and the charge levelled against the petitioner was found proved against him. Being an employee of bank the petitioner has to observe a high degree of honesty and integrity, as he holds a position of trust and confidence where honesty and integrity are inbuilt requirement of his functioning  but the petitioner has failed to maintain such high degree of honesty and integrity in his functioning and has lost the confidence of bank. The charges are very serious in nature and the petitioner has committed gross misconduct, thus penalty of dismissal from service is commensurate to the gravity of charge found proved against him. In support of his submission the learned counsel for the respondent bank  has placed reliance upon various decisions of Hon'ble Apex Court rendered in Tara Chand Vyas Vs. Chairman & Disciplinary Authority and others 1997 (4) S.C.C. 565, Regional Manager, U.P.SRTC, Etawah and others Vs. Hoti Lal and another 2003 (3) S.C.C. 605, Ganesh Santa Ram Sirur Vs. State Bank of India and another 2005 (1)S.C.C. 13, Canara Bank Vs. V.K. Awasthy 2005 (6) S.C.C. 321 and State Bank of India and another Vs. Bela Bagchi and others 2005 (7) S.C.C. 435.

7. Heard Sri R.D. Khare assisted by Sri T.R. Shukla for the petitioner and Sri P.K. Singhal for the respondent bank and also perused the records.

8. On the basis of rival submission of learned counsels appearing for the parties, the first question arises for consideration is as to whether the disciplinary inquiry held against the petitioner is in consonance of rules of disciplinary inquiry or principles of natural justice and fair play or not? In this connection learned counsel for the petitioner has vehemently submitted at the strength of assertions made in para 17 of the writ petition that the documents relied upon by the inquiry officer were photostat copies  and the same have not been proved as evident  by the deposition of MW-1. In reply to the para 17 of the writ petition in para 28 of the counter affidavit, filed on behalf of bank sworn by Sri R.C. Tiwari, Deputy Chief Officer in law in Syndicate Bank, Regional Officer Lucknow dated 26th August 2000, although the aforesaid allegations have been denied and it is stated that all the documents relied upon and connected to the case in original as well as certified photostat copy were produced before the inquiry forum but in the wake of deposition made by the Management witness Sri B. Taranth Pai in respect of question No.2 in cross examination which is on record as Annexure-3 of the writ petition, it is clear that he himself has admitted that the aforesaid documents were photostat copies and not the certified copies of photostat copy. Thus it cannot be held at all that either MW-1 has deposed on the basis of original document or on the basis of certified copies of photostat copy of original documents, therefore, the assertions of petitioner that relevant documents which were relied against him by the inquiry officer were photostat copies of the documents and were neither original documents nor certified copy of the original documents nor those photostat copies were proved by any witness of the bank stating that these documents are photostat copies of the original documents appears to be correct. Now further question arises for consideration is that what would be standard of proof in disciplinary inquiry? In this connection reference can be made to some decisions of Hon'ble Apex Court where Hon'ble Apex Court has occasion to consider such question.  

9. In State of Mysore and others v. Shivabasappa Shivappa Makpur, AIR 1963 SC 375 while dealing with the scope of standard of proof in domestic inquiry in para 3 of the decision Hon'ble Apex Court has observed as Under:

"3. ....... For a correct appreciation of the position, it is necessary to repeat what has often been said that tribunals exercising quasi-judicial functions are not Courts and that therefore they are not bound by strict rules of evidence. They can, unlike Courts, obtain all information material for the points under enquiry from all sources, and through all channels, without being fettered by rules and procedure which govern proceedings in Court. The only obligation which the law castes on them is that they should act on any information which they may receive unless they put it to the party against whom it is to be used and given him a fair opportunity to explain it. What is a fair opportunity must depend on the facts and circumstances of each case but where such an opportunity had been given the proceedings are not open to attack on the ground that the enquiry was not conducted in accordance with the procedure followed in Courts."

10. In M/s. Bareilly Electricity Supply Co. Ltd. v. The Workmen and others, (1971)2 SCC 617, while dealing with the similar issue in para 14 of the decision the Hon'ble Apex Court has held that the application of principles of natural justice in domestic enquiry does not imply that what is not evidence can be acted upon. For ready reference the relevant portion of para 14 of the judgment is reproduced as under:

"But the application of principles of natural justice does not imply that what is not evidenced can be acted upon. On the other hand what it means is that no materials can be relied upon to establish a contested fact, which are not spoken to by persons who are competent to speak about them and are subjected to cross-examination by the party against whom they are sought to be used. When a document is produced in a Court or a Tribunal the questions that naturally arise is, is it a genuine document, what are its contents and are the statements contained  therein true. When the appellant produced the balance sheet and profit and loss account of the company, it does not by its mere production amount to a proof of it or of the truth of the entries therein. If these entries are challenged the appellant must prove each of such entries by producing the books and speaking from the entries made therein. If a letter or other document is produced to establish some fact which is relevant to the enquiry the writer must be produced or his affidavit in respect thereof be filed and opportunity afforded to the opposite party who challenges this fact. This is both in accord with principles of natural justice as also according to the procedure under Order XIX, Civil Procedure Code and the Evidence Act both of which incorporate these general principles. Even if all technicalities of the Evidence Act are not strictly acceptable except in so far as Section 11 of the Industrial Disputes Act, 1947 and the rules prescribed therein permit it, it is inconceivable that the Tribunal can act on what is not evidence, such as hearsay, nor can it justify the Tribunal in basing its award on copies of documents when the originals which are in existence are not produced and proved by one of the methods either by affidavit or by witness who have executed them, if they are alive and can be produced. Again if a party wants an inspection, it is incumbent on the tribunal to give inspection in so far as that is relevant to the enquiry. The applicability of these principles are well recognised and admit of no doubt."

11. In State of Haryana and another v. Rattan Singh 1977 (2) SCC 491: AIR 1977 SC 1512, the Hon'ble Apex Court has held that in a domestic enquiry the strict and sophisticated rule of evidence under the Indian Evidence Act may not apply. All materials which are logically probative for a prudent mind are permissible. There is no allergy to hearsay evidence provided it has reasonable nexus and credibility. For ready reference relevant portion of para 4 of the decision is quoted below:

"4. It is well settled that in a domestic enquiry the strict and sophisticated rules of evidence under the Indian Evidence Act may not apply. All materials which are logically probative for a prudent mind are permissible. There is no allergy to hearsay evidence provided it has reasonable nexus and credibility. It is true that departmental authorities and administrative tribunals must be careful in evaluating such material and should not glibly swallow what is strictly speaking not relevant under the Indian Evidence Act. For this proposition it is not necessary to cite decisions nor text books, although we have been taken through case law and other authorities by Counsel on both sides. The essence of a judicial approach is objectivity, exclusion of extraneous materials or considerations and observance of rules of natural justice. Of course, fair play is the basis and if perversity or arbitrariness, bias for surrender of independence of judgment vitiate the conclusions reached, such finding, even though of a domestic tribunal, cannot be held good."

12. In State of Karnataka and another v. T. Venkataramnappa, JT 1996 (9) SC 734, where the charge of bigamy against the Government employee for the purpose of misconduct under relevant service Rule was under consideration. The respondent, a police constable was prosecuted for having contracted second marriage. He was discharged for want of evidence. A departmental enquiry was instituted against him for having contracted second marriage for which he was suspended. He approached the Karnataka Administrative Tribunal against the order of suspension and for stopping that criminal Court had discharged him of the offence of bigamy. Tribunal accepted the stand of respondent quashed the departmental proceeding and lifted the suspension. In appeal filed by State before the Hon'ble apex Court their Lordship of Supreme Court has held as under:

"There is a string of judgments of this Court whereunder strict proof of solemnization of the second marriage, with due observance of rituals and ceremonies, has been insisted upon. The prosecution evidence in the criminal complaint may have fallen short of those standards but that does not mean that the State was in any way debarred from invoking Rule 28 of the Karnataka Civil Service Rules, which forbids a Government servant to marry a second time without the permission of the Government. But here the respondent being Hindu, could never have been granted permission by the Government to marry a second time because of his personal law forbidding such marriage. It was thus beyond the ken of the Tribunal to have scuttled the departmental proceedings against the respondent on the footing that such question of bigamy should normally not be taken up for decision in departmental enquiries, as the decisions of competent Courts tending to be decisions in rem would stand at the highest pedestal. There was a clear fallacy in such view because for purposes of Rule 28, such strict standards, as would warrant a conviction for bigamy under Section 494, IPC may not, to begin with, be necessary."

13. In Lalit popil v. Canara Bank and others, AIR 2003 SC 1796 while relying upon earlier decision rendered in B.K. Meena's case in para 16 of the decision Hon'ble Apex Court has held as under:

"16. It is fairly well settled that the approach and objective in criminal proceedings and the disciplinary proceedings are altoghether distinct and different. In the disciplinary proceeding the preliminary question is whether the employee is guilty of such conduct as would merit action against him whereas in criminal proceedings the question is whether the offences registered against him are established and if established what sentence should be imposed upon him. The standard of proof, the mode of enquiry and the rules governing the enquiry and trial are conceptually different."

[See State of Rajasthan V. B.K. Meena and others, (1996) 6 SCC 417]. In case of disciplinary enquiry the technical rules of evidence have no application. The doctrine of proof beyond doubt has no application. Preponderance of probabilities and some material on record are necessary to arrive at the conclusion whether or not the delinquent has committed misconduct."

14. In Sher Bahadur Vs. Union of India and others (2002) 7 S.C.C. 142= J.T.2002 (6) S.C. 152,  while explaining the meaning of expression "sufficiency of evidence" Hon'ble Apex Court in para 7 of the decision has held that sufficiency of evidence postulates existence of some evidence which links the charged officer with the misconduct alleged against him. Evidence 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. The mere fact that the Inquiry Officer has noted in his report "in view of oral, documentary and circumstantial evidence as adduced in the enquiry", would not in principle satisfy the rule of sufficiency of evidence." Para 7 is quoted as under :-

"7. It may be observed that the expression "sufficiency of evidence" postulates existence of some evidence which links the charged officer  with the misconduct alleged against him. 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. The mere fact that the Inquiry Officer has noted in his report, "in view of oral, documentary and circumstantial evidence as adduced in the enquiry", would not in principle satisfy the rule of sufficiency of evidence. Though, the disciplinary authority cited one witness Shri R.A.Vashist, Ex.CVI/Northern Railway, New Delhi, in support of the charges, he was not examined. Regarding documentary evidence, Ext. P-1, referred to in the enquiry report and adverted to by the High court, is the order of appointment of the appellant which is a neutral fact. The enquiry officer examined the charged officer but nothing is elicited to connect him with the charge. The statement of the appellant recorded by the enquiry officer shows no more than his working earlier to his re-engagement during the period between May 1978 and November 1979 in different phases. Indeed, his statement was not relied upon by the enquiry officer. The finding of the enquiry officer that in view of the oral, documentary and circumstantial evidence, the charge against the appellant for securing the fraudulent appointment letter duly signed by the said APO (Const.) was proved is, in the light of the above discussion, erroneous. In our view, this is clearly a case of  finding the appellant guilty of charge without having any evidence to link the appellant with the alleged misconduct. The High Court did not consider this aspect in its proper perspective as such the judgment and order of the High court and the order of the disciplinary authority, under challenge, cannot be sustained, they are accordingly set aside."

15. Thus from a close analysis of the observation of Hon'ble Apex Court in cases referred herein before it is clear that unlike courts, the Disciplinary Authorities and tribunals can obtain all information material for the points under enquiry from all sources and through all channels, without being fettered by rules and procedure which governed proceedings in Court. The only obligation which the law castes on them is that they should not act on any information which they may receive unless they put it to the party against whom it is to be used and given him a fair opportunity to explain it. What is a fair opportunity must depend on the facts and circumstances of each case but the application of principles of natural justice does not imply that what is not evidence can be acted upon. In other words what it means is that no materials can be relied upon to establish a contested fact, which are not spoken by persons who are competent to speak about them and are subjected to cross-examination by the party against whom they are sought to be used. When a document is produced in a Court or a Tribunal the questions that naturally arise is, is it a genuine document, what are its contents and are the statements contained  therein true. If a letter or other document is produced to establish some fact which is relevant to the enquiry the writer must be produced or his affidavit in respect thereof be filed and opportunity afforded to the opposite party who challenges this fact. This is both in accord with principles of natural justice as also according to the procedure under Order XIX, Civil Procedure Code and the Evidence Act both of which incorporate these general principles. Even if all technicalities of the Evidence Act are not strictly acceptable except in so far as Section 11 of the Industrial Disputes Act, 1947 and the rules prescribed therein permit it, it is inconceivable that the Tribunal can act on what is not evidence, such as hearsay, nor can it justify the Tribunal in basing its award on copies of documents when the originals which are in existence are not produced and proved by one of the methods either by affidavit or by witness who have executed them, if they are alive and can be produced. Again if a party wants an inspection, it is incumbent on the tribunal to give inspection in so far as that is relevant to the enquiry as held by Hon'ble Apex Court in Shivabasappa Shivappa Makpur's case (supra) and M/s. Bareilly Electricity Supply Company's case (supra). Although in Rattan Singh's case (supra) Hon'ble Apex Court has held that in a domestic enquiry the strict and sophisticated rule of evidence under the Indian Evidence Act may not apply. All materials which are logically probative for a prudent mind are permissible. There is no allergy to hearsay evidence provided it has reasonable nexus and credibility and in B.K. Meena's case (supra) and Lalti Popil's case (supra) it has been held that in case of disciplinary inquiry, the technical rules of evidence and doctrine of proof beyond doubt as criminal case have no application. Preponderance of probabilities and some material on record are necessary to arrive at conclusion, whether or not the delinquent has committed misconduct, but in Sher Bahadur's case (supra) the Hon'ble Apex Court went on saying that sufficiency of evidence postulates existence of some evidence which links the charged officer with misconduct alleged against him. Evidence, however voluminous it may be, which is neither relevant in broad sense nor establishes any nexus between the alleged misconduct and the charged officer, is no evidence in the eye of law.

16. Thus in view of aforesaid settled legal position, now further question arise for consideration is as to whether the photostat copy of the documents relied upon by the inquiry officer would be admissible in evidence and could be taken into consideration by inquiry officer and Disciplinary Authority? In this connection it is necessary to point out that besides aforesaid principle's enunciated by Hon'ble Apex Court Section 62 of the Evidence Act provides for primary evidence which means the document itself produced for the inspection of the Court and Section 63 of the Evidence Act deals with the secondary evidence which means and includes-

(1)Certified copies given under the provisions hereinafter contained;

(2)Copies made from the original by mechanical processes which in themselves insure the accuracy of the copy, and copies compared with such copies;

(3)Copies made from or compared with the original;

(4)Counterparts of documents as against the parties who did not execute them;

(5)Oral accounts of the contents of a document given by some person who has himself seen it.

17. Illustration (a) of Section 63 of Evidence Act provides that a photograph of an original is secondary evidence of its contents, though the two have not been compared, if it is proved that the thing photographed was the original. Illustration (b) provides that copy compared with a copy of a letter made by a copying machine is secondary evidence of the contents of the letter, if it is shown that the copy made by the copying machine was made from the original. Thus from a bare reading of the aforesaid illustrations appended to section 63 of Evidence Act it is clear that mere filing of photostat copy of document unless it is proved by other evidence showing that same is copied or prepared from original documents, the same cannot be treated to be secondary evidence and accordingly is not admissible as such in evidence. Therefore, the photostat copies produced by the Management before inquiry officer cannot be said to be copies of original records in absence of such proof of the same, particularly when the petitioner has disputed and emphatically denied it. And cannot be treated to be secondary evidence and as such cannot be admissible in evidence, accordingly same cannot be made basis for recording any finding to establish the guilt of petitioner in such disciplinary inquiry. Thus, the finding recorded by inquiry officer on that basis is wholly without any valid and legal evidence and not sustainable in the eye of law.

18. In this connection it is also necessary to point out that under Section 64 of Evidence Act the provisions have been made to the effect that the documents must be proved by primary evidence except in the cases hereinafter mentioned. Section 65 provides the cases in which secondary evidence relating to documents may be given and clearly stipulates that the secondary evidence may be given in respect of the existence, condition or contents of a document in the following cases:-

(a) when the original is shown or appears to be in the possession or power-

of the person against whom the document is sought to be proved, or of any person out of reach of, or not subject to, the process of the Court, or

of any person legally bound to produce it,

and when, after the notice mentioned in Section 66, such person does not produce it;

(b) when the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representative in interest;

(c) when the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time;

(d) when the original is of such a nature as not to be easily movable;

(e) when the original is a public document within the meaning of Section 74;

(f) when the original is a document of which a certified copy is permitted by this Act, or by any other law in force in (India) to be given in evidence;

(g) when the original consist of numerous accounts or other documents which cannot conveniently be examined in Court, and the fact to be proved is the general result of the whole collection.

In cases (a), (c) and (d), any secondary evidence of the contents of the document is admissible.

In case (b), the written admission is admissible.

In case (e) or (f), a certified copy of the document, but no other kind of secondary evidence is admissible.

In case (g), evidence may be given as to the general result of the documents by any person who has examined them, and who is skilled in the examination of such documents.

19. Thus from a bare reading of the aforesaid provisions contained in Section 65 of Evidence Act it is clear that no secondary evidence of a document is permissible, unless any of the condition mentioned in aforesaid section is satisfied.  

20. It is also well settled that before reception of secondary evidence it is necessary that a foundation must be laid for reception of such secondary evidence. In this connection a reference can be made for  a decision of Hon'ble Apex Court rendered in Sital Das v. Sant Ram, AIR 1954 SC 606 wherein in para 16 of the decision Hon'ble Apex Court has held as under:

"16 .................................... If the document produced is a copy, admissible as secondary evidence under Section 65 of the Evidence Act and is produced from proper custody and is over 30 years old, then only the signature authenticating the copy may be presumed to be genuine; but production of a copy is not sufficient to raise the presumption of the due execution of the original (Vide - Basant Singh v. Brij Raj Saran Singh, AIR 1935 PC 132). In this case no foundation was laid for reception of secondary evidence under Section 65 of the Evidence Act, nor can the copy produced be regarded as secondary evidence within the meaning of Section 63. In these circumstances, we must hold that the will alleged to have been executed by Kishore Das in the year 1911 has not been proved and the translation of an alleged copy of it which has been produced in this case should be excluded from consideration."

21. Similarly in The Roman Catholic Mission v. State of Madras, AIR 1966 SC 1457 in para 8 of the decision Hon'ble Apex Court has held as under:

"8.  ...................................... The original were not produced at any time nor was any foundation laid for the establishment of the right to given secondary evidence. The High Court rejected them and it was plainly right in so deciding. If we leave these documents out of consideration, the other documents do not show that inam comprised the kudi-waram also ..............................."

22. Thus from the aforesaid discussion, it is clear that before adducing the photostat copies as secondary evidence, neither any of the conditions existing under Section 65 of Evidence Act were satisfied nor necessary foundation was laid by the party seeking to adduce them as secondary evidence nor can the copy produced be regarded as secondary evidence within the meaning of Section 63 of the Evidence Act. Although as indicated herein before, strict and sophisticated rules of evidence does not apply in disciplinary inquiry like proceedings before the courts, but at the same time, if any material is not evidence in the eye of law and also not admissible in evidence, it is very difficult to conceive that despite that the same can be accepted as evidence in disciplinary inquiry. Therefore, in my opinion the aforesaid photostat copies of the relevant documents could not be relied and acted upon by the inquiry officer   as the photostat copy of aforesaid documents in absence of proof could not be taken in evidence in the eye of law and could not be acted upon by the inquiry officer and if photostat copies produced before inquiry officer is excluded, from consideration there is no other evidence before him in support of the charge to establish the guilt of the petitioner, thus in my considered opinion, the findings recorded by inquiry officer in this regard is based on no legal and admissible evidence, thus can be said to be without any valid or legal evidence as such can not be sustained.

23. Now next question arises for consideration is that what is scope of judicial review of disciplinary inquiry? In this connection, it is pointed out that there are catena of decisions of Hon'ble Apex Court on the question in issue but it would be useful to refer only few of them.

24. In State of Andhra Pradesh Vs. S. Sree Rama Rao, (1964) 3 SCR 25: (AIR 1963 SC 1723) Hon'ble Apex Court has observed thus:

"The High Court is not constituted in a proceeding under Article 226 of the Constitution as a Court of appeal over the decision of the authorities holding departmental enquiry against a public servant: It is concerned to determine whether the enquiry is held by an authority competent in that behalf and according to the procedure prescribed in that behalf and whether the rules of natural justice are not violated. Whether there is some evidence, which the authority entrusted with the duty to hold the enquiry has accepted and which evidence may reasonably support the conclusion that the delinquent officer is guilty of the charge. It is not the function of the High Court in a petition for a writ under Article 226 to review the evidence and to arrive at an independent finding on the evidence."

25. The above position has been reiterated by Hon'ble Apex Court in subsequent decisions. One of them is B.C. Chaturvedi V. Union of India, (1995) 6 SCC 749 : (1995 AIR SCW 4374: AIR 1996 SC 484: 1996 Lab IC 462).

26. In The High Court of Judicature at Bombay Vs. Shashikant S. Patil and another, A.I.R. 2000 S.C. 22 in para 16 of the decision Hon'ble Apex Court has again reiterated the same principle as under:

"16. ..............Interference with the decision of departmental authorities can be permitted, while exercising jurisdiction under Article 226 of the Constitution if such authority had held proceedings in violation of the principles of natural justice or in violation of statutory regulations prescribing the mode of such inquiry or if the decision of the authority is vitiated by considerations extraneous to the evidence and merits of the case, or if the conclusion made by the authority, on the very face of it, is wholly arbitrary or capricious that no reasonable person could have arrived at such a conclusion, or grounds very similar to the above. But we cannot overlook that the departmental authority (in this case the Disciplinary Committee of the High Court) is the sole judge of the facts, if the inquiry has been properly conducted. The settled legal position is that if there is some legal evidence on which the findings can be based, then adequacy or even reliability of that evidence is not a matter for canvassing before the High Court in a writ petition filed under Article 226 of the Constitution."

27. In Syed Rahimuddin V. Director General, C.S.I.R. And others, AIR 2001 S.C. 2418, the principles enunciated in para 5 of the decision is as under:

"5.  ...............It is well settled that a conclusion or a finding of fact arrived at in a disciplinary inquiry can be interfered with by the Court only when there is no materials for the said conclusion; or that on the materials, the conclusion cannot be that of a reasonable man. Having examined the report of the Enquiring Officer, we are unable to accept the contention of the learned counsel for the appellant that the findings of the Enquiring Officer cannot be held to be findings based on no evidence."

28. In M.V. Bijlani v. Union of India and others, J.T. 2006(4) S.C. 469 while dealing with the scope of judicial review of disciplinary inquiry in para 25 of the decision Hon'ble Apex Court has held as under:

"25. It is true that the jurisdiction of the court in judicial review is limited. Disciplinary proceedings, however, being quasi- criminal in nature, there should be some evidences to prove the charge. Although the charges in a departmental proceedings are not required to be proved like a criminal trial, i.e., beyond all reasonable doubts, we cannot lose sight of the fact that the Enquiry Officer performs a quasi-judicial function, who upon analysing the documents must arrive at a conclusion that there had been a preponderance of probability to prove the charges on the basis of materials on record. While doing so, he cannot take into consideration any irrelevant fact. He cannot refuse to consider the relevant facts. He cannot shift the burden of proof. He cannot reject the relevant testimony of the witnesses only on the basis of surmises and conjectures. He cannot enquire into the allegations with which the delinquent officer had not been charged with."

29. Now the next question arises for consideration is as to whether the testimony of B. Taranth Pai Supervisor of the Bank in question who was also charge sheeted in respect of the same incident could be relied upon by the inquiry officer and charges levelled against the petitioner were found proved against him? In this connection it is noteworthy to mention that it is not in dispute that B. Taranth Pai was Supervisor of the Bank and was also charge sheeted in connection of the same incident. Thus he could not be expected to depose against his own interest when he was also charged with the same charge of misconduct in respect of same incident. In my opinion, therefore, his sole testimony in support of the charge could not be relied upon by inquiry officer in the said disciplinary proceedings.

30. From a bare perusal of inquiry report dated 6.1.1999 contained in Annexure-4 of the writ petition, there is nothing to indicate that except the statement of Sri B.Taranth Pai, the Management has examined any other witness in support of the charge levelled against the petitioner and to prove the records adduced before the inquiry officer. Sri B. Taranth Pai too did not state that records produced before inquiry officer were either original documents or certified photostat copies of original documents and except to him, Management did not examine any other witness to prove the documents produced before inquiry officer, therefore, in absence of any  witness on behalf of Management, it is very difficult to accept that in the said disciplinary inquiry, the charges were found proved in accordance with the principles of natural justice or rules of any inquiry. In my opinion unless the documents relied upon against the petitioner are proved before the inquiry officer by any oral testimony on behalf of Management the documents could not be relied upon by the inquiry officer.  Therefore, the findings of inquiry officer are wholly erroneous, perverse and based on conjectures and surmises, as such could not be acted upon by the disciplinary authority.

31. I have also perused the findings of disciplinary authority, there is nothing to indicate that the reply submitted by the petitioner against the findings of inquiry officer has been considered and discussed by disciplinary authority. It is no doubt true that Disciplinary Authority while agreeing with the findings of inquiry officer need not to record his independent findings on each and every charge but at the same time he cannot escape to deal with the objection of petitioner against those findings, which is minimal requirement of fairness in decision making. Thus the findings recorded by disciplinary authority, in my opinion, appears to be mechanical and without discussing the points raised by the petitioner in reply submitted against the findings of the inquiry officer, therefore, the findings of disciplinary authority are also vitiated under law and for the same reasons the findings of appellate authority also. Thus the findings of inquiry officer contained in inquiry report dated 6.1.1999 and order of dismissal passed by disciplinary authority dated 31st March 1999 and order passed by appellate authority dated 26.7.1999 contained in Annexure-12 of the writ petition are hereby quashed.

32. Now the next question arises for consider is that what relief can be given to the petitioner in given facts and circumstances of the case? In this connection it is necessary to point out that in Managing Director E.C.I.L. Vs. B. Karunakar and others (supra) AIR 1994 SC 1074 the Hon'ble Apex Court while dealing with some what similar issue in respect of non-furnishing of inquiry report along with show cause notice when the inquiry officer is other than Disciplinary Authority has held that if the inquiry is found faulty on account of non-observance of principles of natural justice and rules of disciplinary inquiry, whereby the proceedings are vitiated under law, the matter should be remitted back to the Disciplinary Authority with liberty to hold fresh inquiry de novo, from the stage it was found faulty by reinstating the employee for limited purpose of holding fresh inquiry from the aforesaid stage. The pertinent observation made at page 1092-93 of the report is as under:

"Where after following the above procedure, the Courts/Tribunals set aside the order of punishment, the proper relief that should be granted is to direct reinstatement of the employee with liberty to the authority/management to proceed with the inquiry by placing the employee under suspension and continuing the inquiry from the stage of furnishing him with the report. The question whether the employee would be entitled to the back wages and other benefits from the date of his dismissal to the date of his reinstatement if ultimately ordered should invariably be left to be decided by the authority concerned according to law after the culmination of the proceedings and depending on the final outcome. If the employee succeeds in the fresh enquiry and is directed to be reinstated, the authority should be at liberty to decide according to law how it will treat the period from the date of dismissal till the reinstatement and to what benefits, if any and the extent of the benefits, he will be entitled. The reinstatement made as a result of the setting aside of the inquiry for failure to furnish the report should be treated as a reinstatement for the purpose of holding the fresh inquiry from the stage of furnishing the report and no more. Where such fresh inquiry is held that will also be the correct position in law".

33. However, in this connection learned counsel for the petitioner has submitted that the petitioner should be reinstated in service along with consequential benefits of service with back wages without remitting the matter back to disciplinary authority for holding fresh disciplinary inquiry, as a period of about 12 years have already passed and at the most a minor penalty of censure could be awarded to him like Sri B. Taranth Pai, who was also charge sheeted in respect of the same charge and has admitted that the function of clerk in the bank is to prepare credit slip for respective party's account and the duty of supervisor is to check up the correctness of the said slip and he had also failed in his duty to check up the O.C.C. Lazor Book and credit slip which bore his signature and the inquiry officer has also failed to take into consideration the admission of supervisor that the documents referred above bore his signature and he has authenticated the credit which is evident from reply to the question nos.6 and 7 asked from him in cross-examination during the inquiry. Thus even if the charges against the petitioner have been proved and established even then the petitioner as well as Sri B. Taranth Pai are equally responsible for the said act of omission and the bank cannot discriminate in the matter of awarding the punishment between them as the petitioner has been dismissed from service while Sri B. Taranth Pai has been awarded minor punishment of censure only. It is also submitted that the disciplinary authority while awarding the punishment to the petitioner has failed to take into consideration the unblemished service record of the petitioner as well as length of his service and the dedication with which the petitioner has served the bank but the punishment awarded to him is too harsh and severe and does not commensurate to the gravity of the charges levelled against him.

34. In this connection only this much is to be observed that since I have held that the disciplinary inquiry has been found faulty from the stage of reply of charge sheet submitted by the petitioner, therefore, it is not necessary to decide the question of quantum of punishment while dealing with the aforesaid submission of learned counsel for the petitioner at this stage. However, I am of the considered opinion that the objections raised by the petitioner in connection of quantum of punishment have not been considered by disciplinary authority as well as appellate authority, therefore, while concluding the disciplinary inquiry afresh, it shall be open for the disciplinary authority to deal with the question of quantum of punishment also having regard to the facts and circumstances of the case.

35. Thus, in view of the aforesaid discussion the writ petition is allowed and the petitioner is reinstated in service only for limited purpose of holding disciplinary inquiry afresh within a period of three months from the date of production of certified copy of the order passed by this Court. During this period the petitioner shall be treated to be under suspension and he shall also be paid subsistence allowance for the period during which a fresh disciplinary  inquiry shall remain pending against him. In case the petitioner succeeds in disciplinary inquiry, the disciplinary authority shall also pass an order in respect of continuity of his service inasmuch as other consequential benefits of service including arrears of salary admissible and payable to him during the period he was out of employment on account of aforesaid impugned order of dismissal passed against him.

36. With the aforesaid observations and direction the writ petition succeeds and stands allowed to the extent indicated hereinbefore.

Date:25.4.2007

LJ/-

Reserved

Civil Misc. Writ Petition No. 46210 of 1999

Ashok Kumar..Vs..Assistant General Manager, Syndicate Bank,

                             Industrial Relation Cell,Zonal office, Lucknow &

  others.

-------------------

Hon'ble Sabhajeet Yadav,J.

By this petition, the petitioner has challenged the order dated 26.7.1999 and order dated 31.3.1999, contained in Annexures-12 and 9 to the writ petition passed by respondents no. 2 and 1 respectively seeking writ of certiorari for quashing them and further a writ in the nature of mandamus commanding the respondents to reinstate the petitioner in service with arrears of full salary and continuity of service along with other consequential benefits thereof has been sought for.

2. The relief sought in the writ petition rest on the facts that while working as Clerk at Varanasi Main Branch of Syndicate Bank, the petitioner was served with a charge sheet dated6.4.1995 by Dy. General Manager of the said Bank. The charge against the petitioner was that he had unauthorisedly over written/altered the entries pertaining to the name of account holder Sri Shiv Kumar Kothari and thereby fraudulently diverted the proceeds of Rs. 4978/- in his account and derived undue pecuniary benefits therefrom temporarily at the cost of customer of the bank. It had also been alleged that the petitioner manipulated the bank's record, thereafter re-written the original particulars apparently to cover-up the said act and thus grossly abused his position in the bank. A true copy of the charge sheet is on record as Annexure-1 of the writ petition. On receipt of the said charge sheet, the petitioner submitted his reply dated 2.5.1995 denying the charges levelled against him. The petitioner has also requested to supply the copies of relevant documents forming the basis of said charges against him but the copies of said documents were not supplied to him, hence the petitioner was not given proper opportunity to file an effective reply to the said charge sheet. The defence representative of the petitioner vide application dated 11.4.1996 requested the Inquiry Officer to direct the bank to furnish the copies of the documents to the petitioner as mentioned in the said application. A true copy of the application dated 11.4.1996 is on record as Annexure-2 of the writ petition. It is stated that in spite of the request of petitioner as well as his defence representative before Inquiry Officer for supplying the copies of the documents, the said documents were not supplied to him and the photostat copies of some of the documents were given to the petitioner and his representative without verifying the same from original and neither the petitioner nor his defence representative were permitted to inspect the aforesaid original documents by the bank.

3. It is also stated in the writ petition that one Sri B. Taranth Pai who was also chargesheeted along with the petitioner in respect of same incident was produced by the bank as management witness before the Inquiry Officer. A true copy of the extract of inquiry proceeding pertaining to statement of Sri B. Taranth Pai in the form of question answer and his cross examination before the Inquiry Officer is on record as Annexure-3 of the writ petition. The Inquiry Officer concluded the inquiry and submitted his report dated 6.1.1999. In pursuance thereof the respondent no.1 vide his letter dated 29.1.1999 directed the petitioner to submit his reply/objection, if any, to the said Inquiry Report within 15 days. In response to it, the petitioner submitted his reply/objection on 4.3.1999. The copy of Inquiry Report dated 6.1.1999, letter dated 29.1.1999 and reply/objection dated 4.3.1999 are on record as Annexures-4,5 and 6 of the writ petition. Thereupon the respondent no. 1 vide his letter dated 8.3.1999 issued a show cause notice to the petitioner indicating therein as to why he should not be dismissed from service with immediate effect, a copy of which is on record as Annexure-7 to the writ petition. Thereafter the respondent no. 1 has passed the final order on 31.3.1999 whereby the petitioner has been dismissed from service of the bank with immediate effect. The said order was communicated to the petitioner vide covering letter dated 31.3.1999. A true copy of the covering letter dated 31.3.1999 and order of punishment dated 31.3.1999 are on record as Annexures- 8 and 9 of the writ petition. Against the aforesaid order the petitioner has filed an appeal on 14.5.1999 before respondent no.2, who vide his order dated 26.7.1999 has dismissed the appeal of petitioner and the said order was communicated to the petitioner vide his covering letter dated 29.7.1999. The copies of the aforesaid letters are on record as Annexures-11 and 12 of the writ petition respectively, hence this petition.

4. On the basis of aforesaid assertions in the writ petition Sri R.D. Khare, learned Counsel assisted by Sri T.R. Shukla appearing for the petitioner has submitted that in support of the charges levelled against the petitioner one Sri B. Taranth Pai, Assistant Manager of Varanasi Main Branch of the Bank in question has been examined as only Management witness who himself was chargesheeted in respect of the same incident while working as Supervisor, hence he was highly interested witness and his testimony cannot be relied upon more so when it was not corroborated and supported by any other independent witness and evidence in support of the said charge. He is also biased and impartial witness who has deposed under pressure. Besides this, the documents relied upon by the bank were photostat copies and same have not been proved as is evident by deposition of M.W.-1 in respect of question no.2 asked from him in cross examination, therefore, could not be relied upon by the Inquiry Officer. The original papers were neither produced before the Inquiry Officer nor the Inquiry Officer has examined the same during the disciplinary inquiry nor the petitioner has been permitted to inspect the original record, only the photostat copies were produced and  were relied upon by the Inquiry Officer.

5. Learned counsel for the petitioner has further submitted that the Inquiry Officer has failed to take into consideration the vital fact that MW-1 has himself deposed in the inquiry that the function of clerk in the bank is to prepare credit slip for respective party's account and duty of Supervisor is to check-up the correctness of the said slip and MW-1 who was Supervisor at that time has failed in his duties to check-up the OCC Ledger Book and credit slip which bore his signature. The Inquiry Officer has also failed to take into consideration the admission of MW-1 Supervisor that the documents referred above bore his signature and he has authenticated the credit which is evident from the reply to question nos. 6 and 7 asked in cross examination from him. Thus even if the charges against the petitioner have been found proved and established even then the petitioner as well as MW-1 Supervisor i.e. Sri B. Taranth Pai are equally responsible for the said act of omission and the bank cannot discriminate in the matter of awarding the punishment between them as the petitioner has been dismissed from service while Sri B. Taranth Pai has been awarded minor punishment of censure only. It is also submitted that the disciplinary authority while awarding the punishment to the petitioner has failed to take into consideration the unblemished service record of the petitioner as well as length of his service and the dedication with which the petitioner has served the bank, thus the punishment awarded to him is too harsh and severe and does not commensurate with the gravity of the charges levelled against him. However assuming without admitting that the charges against the petitioner even if found proved and established even then these are the mere irregularity and do not  constitute any misconduct and further by said act no financial loss has been incurred to the bank. The Inquiry Report submitted by the Inquiry Officer is also cryptic and there is no discussion about any evidence nor any reason has been recorded by the Inquiry Officer while recording the findings against the petitioner. The order passed by disciplinary authority on the basis of aforesaid Inquiry report is also mechanical in nature and without assigning any reason therefor, therefore, the entire disciplinary proceeding inasmuch as pursuant punishment awarded against the petitioner is liable to be quashed. For the same reason the order dismissing the appeal of petitioner is also not sustainable.

6. A detailed counter affidavit has been filed on behalf of respondent Bank, wherein various assertions made in the writ petition have been denied and disputed and action of respondent Bank taken against the petitioner has been sought to be justified, the reference of which shall be made at relevant place wherever it would be found necessary. While justifying the action taken against the petitioner learned counsel appearing for the respondent Bank Sri P.K. Singhal has submitted that the disciplinary inquiry has been held against the petitioner in accordance with the provisions of Rules of Disciplinary Inquiry, inasmuch as principles of natural justice and the charge levelled against the petitioner was found proved against him. Being an employee of bank the petitioner has to observe a high degree of honesty and integrity, as he holds a position of trust and confidence where honesty and integrity are inbuilt requirement of his functioning  but the petitioner has failed to maintain such high degree of honesty and integrity in his functioning and has lost the confidence of bank. The charges are very serious in nature and the petitioner has committed gross misconduct, thus penalty of dismissal from service is commensurate to the gravity of charge found proved against him. In support of his submission the learned counsel for the respondent bank  has placed reliance upon various decisions of Hon'ble Apex Court rendered in Tara Chand Vyas Vs. Chairman & Disciplinary Authority and others 1997 (4) S.C.C. 565, Regional Manager, U.P.SRTC, Etawah and others Vs. Hoti Lal and another 2003 (3) S.C.C. 605, Ganesh Santa Ram Sirur Vs. State Bank of India and another 2005 (1)S.C.C. 13, Canara Bank Vs. V.K. Awasthy 2005 (6) S.C.C. 321 and State Bank of India and another Vs. Bela Bagchi and others 2005 (7) S.C.C. 435.

7. Heard Sri R.D. Khare assisted by Sri T.R. Shukla for the petitioner and Sri P.K. Singhal for the respondent bank and also perused the records.

8. On the basis of rival submission of learned counsels appearing for the parties, the first question arises for consideration is as to whether the disciplinary inquiry held against the petitioner is in consonance of rules of disciplinary inquiry or principles of natural justice and fair play or not? In this connection learned counsel for the petitioner has vehemently submitted at the strength of assertions made in para 17 of the writ petition that the documents relied upon by the inquiry officer were photostat copies  and the same have not been proved as evident  by the deposition of MW-1. In reply to the para 17 of the writ petition in para 28 of the counter affidavit, filed on behalf of bank sworn by Sri R.C. Tiwari, Deputy Chief Officer in law in Syndicate Bank, Regional Officer Lucknow dated 26th August 2000, although the aforesaid allegations have been denied and it is stated that all the documents relied upon and connected to the case in original as well as certified photostat copy were produced before the inquiry forum but in the wake of deposition made by the Management witness Sri B. Taranth Pai in respect of question No.2 in cross examination which is on record as Annexure-3 of the writ petition, it is clear that he himself has admitted that the aforesaid documents were photostat copies and not the certified copies of photostat copy. Thus it cannot be held at all that either MW-1 has deposed on the basis of original document or on the basis of certified copies of photostat copy of original documents, therefore, the assertions of petitioner that relevant documents which were relied against him by the inquiry officer were photostat copies of the documents and were neither original documents nor certified copy of the original documents nor those photostat copies were proved by any witness of the bank stating that these documents are photostat copies of the original documents appears to be correct. Now further question arises for consideration is that what would be standard of proof in disciplinary inquiry? In this connection reference can be made to some decisions of Hon'ble Apex Court where Hon'ble Apex Court has occasion to consider such question.  

9. In State of Mysore and others v. Shivabasappa Shivappa Makpur, AIR 1963 SC 375 while dealing with the scope of standard of proof in domestic inquiry in para 3 of the decision Hon'ble Apex Court has observed as Under:

"3. ....... For a correct appreciation of the position, it is necessary to repeat what has often been said that tribunals exercising quasi-judicial functions are not Courts and that therefore they are not bound by strict rules of evidence. They can, unlike Courts, obtain all information material for the points under enquiry from all sources, and through all channels, without being fettered by rules and procedure which govern proceedings in Court. The only obligation which the law castes on them is that they should act on any information which they may receive unless they put it to the party against whom it is to be used and given him a fair opportunity to explain it. What is a fair opportunity must depend on the facts and circumstances of each case but where such an opportunity had been given the proceedings are not open to attack on the ground that the enquiry was not conducted in accordance with the procedure followed in Courts."

10. In M/s. Bareilly Electricity Supply Co. Ltd. v. The Workmen and others, (1971)2 SCC 617, while dealing with the similar issue in para 14 of the decision the Hon'ble Apex Court has held that the application of principles of natural justice in domestic enquiry does not imply that what is not evidence can be acted upon. For ready reference the relevant portion of para 14 of the judgment is reproduced as under:

"But the application of principles of natural justice does not imply that what is not evidenced can be acted upon. On the other hand what it means is that no materials can be relied upon to establish a contested fact, which are not spoken to by persons who are competent to speak about them and are subjected to cross-examination by the party against whom they are sought to be used. When a document is produced in a Court or a Tribunal the questions that naturally arise is, is it a genuine document, what are its contents and are the statements contained  therein true. When the appellant produced the balance sheet and profit and loss account of the company, it does not by its mere production amount to a proof of it or of the truth of the entries therein. If these entries are challenged the appellant must prove each of such entries by producing the books and speaking from the entries made therein. If a letter or other document is produced to establish some fact which is relevant to the enquiry the writer must be produced or his affidavit in respect thereof be filed and opportunity afforded to the opposite party who challenges this fact. This is both in accord with principles of natural justice as also according to the procedure under Order XIX, Civil Procedure Code and the Evidence Act both of which incorporate these general principles. Even if all technicalities of the Evidence Act are not strictly acceptable except in so far as Section 11 of the Industrial Disputes Act, 1947 and the rules prescribed therein permit it, it is inconceivable that the Tribunal can act on what is not evidence, such as hearsay, nor can it justify the Tribunal in basing its award on copies of documents when the originals which are in existence are not produced and proved by one of the methods either by affidavit or by witness who have executed them, if they are alive and can be produced. Again if a party wants an inspection, it is incumbent on the tribunal to give inspection in so far as that is relevant to the enquiry. The applicability of these principles are well recognised and admit of no doubt."

11. In State of Haryana and another v. Rattan Singh 1977 (2) SCC 491: AIR 1977 SC 1512, the Hon'ble Apex Court has held that in a domestic enquiry the strict and sophisticated rule of evidence under the Indian Evidence Act may not apply. All materials which are logically probative for a prudent mind are permissible. There is no allergy to hearsay evidence provided it has reasonable nexus and credibility. For ready reference relevant portion of para 4 of the decision is quoted below:

"4. It is well settled that in a domestic enquiry the strict and sophisticated rules of evidence under the Indian Evidence Act may not apply. All materials which are logically probative for a prudent mind are permissible. There is no allergy to hearsay evidence provided it has reasonable nexus and credibility. It is true that departmental authorities and administrative tribunals must be careful in evaluating such material and should not glibly swallow what is strictly speaking not relevant under the Indian Evidence Act. For this proposition it is not necessary to cite decisions nor text books, although we have been taken through case law and other authorities by Counsel on both sides. The essence of a judicial approach is objectivity, exclusion of extraneous materials or considerations and observance of rules of natural justice. Of course, fair play is the basis and if perversity or arbitrariness, bias for surrender of independence of judgment vitiate the conclusions reached, such finding, even though of a domestic tribunal, cannot be held good."

12. In State of Karnataka and another v. T. Venkataramnappa, JT 1996 (9) SC 734, where the charge of bigamy against the Government employee for the purpose of misconduct under relevant service Rule was under consideration. The respondent, a police constable was prosecuted for having contracted second marriage. He was discharged for want of evidence. A departmental enquiry was instituted against him for having contracted second marriage for which he was suspended. He approached the Karnataka Administrative Tribunal against the order of suspension and for stopping that criminal Court had discharged him of the offence of bigamy. Tribunal accepted the stand of respondent quashed the departmental proceeding and lifted the suspension. In appeal filed by State before the Hon'ble apex Court their Lordship of Supreme Court has held as under:

"There is a string of judgments of this Court whereunder strict proof of solemnization of the second marriage, with due observance of rituals and ceremonies, has been insisted upon. The prosecution evidence in the criminal complaint may have fallen short of those standards but that does not mean that the State was in any way debarred from invoking Rule 28 of the Karnataka Civil Service Rules, which forbids a Government servant to marry a second time without the permission of the Government. But here the respondent being Hindu, could never have been granted permission by the Government to marry a second time because of his personal law forbidding such marriage. It was thus beyond the ken of the Tribunal to have scuttled the departmental proceedings against the respondent on the footing that such question of bigamy should normally not be taken up for decision in departmental enquiries, as the decisions of competent Courts tending to be decisions in rem would stand at the highest pedestal. There was a clear fallacy in such view because for purposes of Rule 28, such strict standards, as would warrant a conviction for bigamy under Section 494, IPC may not, to begin with, be necessary."

13. In Lalit popil v. Canara Bank and others, AIR 2003 SC 1796 while relying upon earlier decision rendered in B.K. Meena's case in para 16 of the decision Hon'ble Apex Court has held as under:

"16. It is fairly well settled that the approach and objective in criminal proceedings and the disciplinary proceedings are altoghether distinct and different. In the disciplinary proceeding the preliminary question is whether the employee is guilty of such conduct as would merit action against him whereas in criminal proceedings the question is whether the offences registered against him are established and if established what sentence should be imposed upon him. The standard of proof, the mode of enquiry and the rules governing the enquiry and trial are conceptually different."

[See State of Rajasthan V. B.K. Meena and others, (1996) 6 SCC 417]. In case of disciplinary enquiry the technical rules of evidence have no application. The doctrine of proof beyond doubt has no application. Preponderance of probabilities and some material on record are necessary to arrive at the conclusion whether or not the delinquent has committed misconduct."

14. In Sher Bahadur Vs. Union of India and others (2002) 7 S.C.C. 142= J.T.2002 (6) S.C. 152,  while explaining the meaning of expression "sufficiency of evidence" Hon'ble Apex Court in para 7 of the decision has held that sufficiency of evidence postulates existence of some evidence which links the charged officer with the misconduct alleged against him. Evidence 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. The mere fact that the Inquiry Officer has noted in his report "in view of oral, documentary and circumstantial evidence as adduced in the enquiry", would not in principle satisfy the rule of sufficiency of evidence." Para 7 is quoted as under :-

"7. It may be observed that the expression "sufficiency of evidence" postulates existence of some evidence which links the charged officer  with the misconduct alleged against him. 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. The mere fact that the Inquiry Officer has noted in his report, "in view of oral, documentary and circumstantial evidence as adduced in the enquiry", would not in principle satisfy the rule of sufficiency of evidence. Though, the disciplinary authority cited one witness Shri R.A.Vashist, Ex.CVI/Northern Railway, New Delhi, in support of the charges, he was not examined. Regarding documentary evidence, Ext. P-1, referred to in the enquiry report and adverted to by the High court, is the order of appointment of the appellant which is a neutral fact. The enquiry officer examined the charged officer but nothing is elicited to connect him with the charge. The statement of the appellant recorded by the enquiry officer shows no more than his working earlier to his re-engagement during the period between May 1978 and November 1979 in different phases. Indeed, his statement was not relied upon by the enquiry officer. The finding of the enquiry officer that in view of the oral, documentary and circumstantial evidence, the charge against the appellant for securing the fraudulent appointment letter duly signed by the said APO (Const.) was proved is, in the light of the above discussion, erroneous. In our view, this is clearly a case of  finding the appellant guilty of charge without having any evidence to link the appellant with the alleged misconduct. The High Court did not consider this aspect in its proper perspective as such the judgment and order of the High court and the order of the disciplinary authority, under challenge, cannot be sustained, they are accordingly set aside."

15. Thus from a close analysis of the observation of Hon'ble Apex Court in cases referred herein before it is clear that unlike courts, the Disciplinary Authorities and tribunals can obtain all information material for the points under enquiry from all sources and through all channels, without being fettered by rules and procedure which governed proceedings in Court. The only obligation which the law castes on them is that they should not act on any information which they may receive unless they put it to the party against whom it is to be used and given him a fair opportunity to explain it. What is a fair opportunity must depend on the facts and circumstances of each case but the application of principles of natural justice does not imply that what is not evidence can be acted upon. In other words what it means is that no materials can be relied upon to establish a contested fact, which are not spoken by persons who are competent to speak about them and are subjected to cross-examination by the party against whom they are sought to be used. When a document is produced in a Court or a Tribunal the questions that naturally arise is, is it a genuine document, what are its contents and are the statements contained  therein true. If a letter or other document is produced to establish some fact which is relevant to the enquiry the writer must be produced or his affidavit in respect thereof be filed and opportunity afforded to the opposite party who challenges this fact. This is both in accord with principles of natural justice as also according to the procedure under Order XIX, Civil Procedure Code and the Evidence Act both of which incorporate these general principles. Even if all technicalities of the Evidence Act are not strictly acceptable except in so far as Section 11 of the Industrial Disputes Act, 1947 and the rules prescribed therein permit it, it is inconceivable that the Tribunal can act on what is not evidence, such as hearsay, nor can it justify the Tribunal in basing its award on copies of documents when the originals which are in existence are not produced and proved by one of the methods either by affidavit or by witness who have executed them, if they are alive and can be produced. Again if a party wants an inspection, it is incumbent on the tribunal to give inspection in so far as that is relevant to the enquiry as held by Hon'ble Apex Court in Shivabasappa Shivappa Makpur's case (supra) and M/s. Bareilly Electricity Supply Company's case (supra). Although in Rattan Singh's case (supra) Hon'ble Apex Court has held that in a domestic enquiry the strict and sophisticated rule of evidence under the Indian Evidence Act may not apply. All materials which are logically probative for a prudent mind are permissible. There is no allergy to hearsay evidence provided it has reasonable nexus and credibility and in B.K. Meena's case (supra) and Lalti Popil's case (supra) it has been held that in case of disciplinary inquiry, the technical rules of evidence and doctrine of proof beyond doubt as criminal case have no application. Preponderance of probabilities and some material on record are necessary to arrive at conclusion, whether or not the delinquent has committed misconduct, but in Sher Bahadur's case (supra) the Hon'ble Apex Court went on saying that sufficiency of evidence postulates existence of some evidence which links the charged officer with misconduct alleged against him. Evidence, however voluminous it may be, which is neither relevant in broad sense nor establishes any nexus between the alleged misconduct and the charged officer, is no evidence in the eye of law.

16. Thus in view of aforesaid settled legal position, now further question arise for consideration is as to whether the photostat copy of the documents relied upon by the inquiry officer would be admissible in evidence and could be taken into consideration by inquiry officer and Disciplinary Authority? In this connection it is necessary to point out that besides aforesaid principle's enunciated by Hon'ble Apex Court Section 62 of the Evidence Act provides for primary evidence which means the document itself produced for the inspection of the Court and Section 63 of the Evidence Act deals with the secondary evidence which means and includes-

(1)Certified copies given under the provisions hereinafter contained;

(2)Copies made from the original by mechanical processes which in themselves insure the accuracy of the copy, and copies compared with such copies;

(3)Copies made from or compared with the original;

(4)Counterparts of documents as against the parties who did not execute them;

(5)Oral accounts of the contents of a document given by some person who has himself seen it.

17. Illustration (a) of Section 63 of Evidence Act provides that a photograph of an original is secondary evidence of its contents, though the two have not been compared, if it is proved that the thing photographed was the original. Illustration (b) provides that copy compared with a copy of a letter made by a copying machine is secondary evidence of the contents of the letter, if it is shown that the copy made by the copying machine was made from the original. Thus from a bare reading of the aforesaid illustrations appended to section 63 of Evidence Act it is clear that mere filing of photostat copy of document unless it is proved by other evidence showing that same is copied or prepared from original documents, the same cannot be treated to be secondary evidence and accordingly is not admissible as such in evidence. Therefore, the photostat copies produced by the Management before inquiry officer cannot be said to be copies of original records in absence of such proof of the same, particularly when the petitioner has disputed and emphatically denied it. And cannot be treated to be secondary evidence and as such cannot be admissible in evidence, accordingly same cannot be made basis for recording any finding to establish the guilt of petitioner in such disciplinary inquiry. Thus, the finding recorded by inquiry officer on that basis is wholly without any valid and legal evidence and not sustainable in the eye of law.

18. In this connection it is also necessary to point out that under Section 64 of Evidence Act the provisions have been made to the effect that the documents must be proved by primary evidence except in the cases hereinafter mentioned. Section 65 provides the cases in which secondary evidence relating to documents may be given and clearly stipulates that the secondary evidence may be given in respect of the existence, condition or contents of a document in the following cases:-

(a) when the original is shown or appears to be in the possession or power-

of the person against whom the document is sought to be proved, or of any person out of reach of, or not subject to, the process of the Court, or

of any person legally bound to produce it,

and when, after the notice mentioned in Section 66, such person does not produce it;

(b) when the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representative in interest;

(c) when the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time;

(d) when the original is of such a nature as not to be easily movable;

(e) when the original is a public document within the meaning of Section 74;

(f) when the original is a document of which a certified copy is permitted by this Act, or by any other law in force in (India) to be given in evidence;

(g) when the original consist of numerous accounts or other documents which cannot conveniently be examined in Court, and the fact to be proved is the general result of the whole collection.

In cases (a), (c) and (d), any secondary evidence of the contents of the document is admissible.

In case (b), the written admission is admissible.

In case (e) or (f), a certified copy of the document, but no other kind of secondary evidence is admissible.

In case (g), evidence may be given as to the general result of the documents by any person who has examined them, and who is skilled in the examination of such documents.

19. Thus from a bare reading of the aforesaid provisions contained in Section 65 of Evidence Act it is clear that no secondary evidence of a document is permissible, unless any of the condition mentioned in aforesaid section is satisfied.  

20. It is also well settled that before reception of secondary evidence it is necessary that a foundation must be laid for reception of such secondary evidence. In this connection a reference can be made for  a decision of Hon'ble Apex Court rendered in Sital Das v. Sant Ram, AIR 1954 SC 606 wherein in para 16 of the decision Hon'ble Apex Court has held as under:

"16 .................................... If the document produced is a copy, admissible as secondary evidence under Section 65 of the Evidence Act and is produced from proper custody and is over 30 years old, then only the signature authenticating the copy may be presumed to be genuine; but production of a copy is not sufficient to raise the presumption of the due execution of the original (Vide - Basant Singh v. Brij Raj Saran Singh, AIR 1935 PC 132). In this case no foundation was laid for reception of secondary evidence under Section 65 of the Evidence Act, nor can the copy produced be regarded as secondary evidence within the meaning of Section 63. In these circumstances, we must hold that the will alleged to have been executed by Kishore Das in the year 1911 has not been proved and the translation of an alleged copy of it which has been produced in this case should be excluded from consideration."

21. Similarly in The Roman Catholic Mission v. State of Madras, AIR 1966 SC 1457 in para 8 of the decision Hon'ble Apex Court has held as under:

"8.  ...................................... The original were not produced at any time nor was any foundation laid for the establishment of the right to given secondary evidence. The High Court rejected them and it was plainly right in so deciding. If we leave these documents out of consideration, the other documents do not show that inam comprised the kudi-waram also ..............................."

22. Thus from the aforesaid discussion, it is clear that before adducing the photostat copies as secondary evidence, neither any of the conditions existing under Section 65 of Evidence Act were satisfied nor necessary foundation was laid by the party seeking to adduce them as secondary evidence nor can the copy produced be regarded as secondary evidence within the meaning of Section 63 of the Evidence Act. Although as indicated herein before, strict and sophisticated rules of evidence does not apply in disciplinary inquiry like proceedings before the courts, but at the same time, if any material is not evidence in the eye of law and also not admissible in evidence, it is very difficult to conceive that despite that the same can be accepted as evidence in disciplinary inquiry. Therefore, in my opinion the aforesaid photostat copies of the relevant documents could not be relied and acted upon by the inquiry officer   as the photostat copy of aforesaid documents in absence of proof could not be taken in evidence in the eye of law and could not be acted upon by the inquiry officer and if photostat copies produced before inquiry officer is excluded, from consideration there is no other evidence before him in support of the charge to establish the guilt of the petitioner, thus in my considered opinion, the findings recorded by inquiry officer in this regard is based on no legal and admissible evidence, thus can be said to be without any valid or legal evidence as such can not be sustained.

23. Now next question arises for consideration is that what is scope of judicial review of disciplinary inquiry? In this connection, it is pointed out that there are catena of decisions of Hon'ble Apex Court on the question in issue but it would be useful to refer only few of them.

24. In State of Andhra Pradesh Vs. S. Sree Rama Rao, (1964) 3 SCR 25: (AIR 1963 SC 1723) Hon'ble Apex Court has observed thus:

"The High Court is not constituted in a proceeding under Article 226 of the Constitution as a Court of appeal over the decision of the authorities holding departmental enquiry against a public servant: It is concerned to determine whether the enquiry is held by an authority competent in that behalf and according to the procedure prescribed in that behalf and whether the rules of natural justice are not violated. Whether there is some evidence, which the authority entrusted with the duty to hold the enquiry has accepted and which evidence may reasonably support the conclusion that the delinquent officer is guilty of the charge. It is not the function of the High Court in a petition for a writ under Article 226 to review the evidence and to arrive at an independent finding on the evidence."

25. The above position has been reiterated by Hon'ble Apex Court in subsequent decisions. One of them is B.C. Chaturvedi V. Union of India, (1995) 6 SCC 749 : (1995 AIR SCW 4374: AIR 1996 SC 484: 1996 Lab IC 462).

26. In The High Court of Judicature at Bombay Vs. Shashikant S. Patil and another, A.I.R. 2000 S.C. 22 in para 16 of the decision Hon'ble Apex Court has again reiterated the same principle as under:

"16. ..............Interference with the decision of departmental authorities can be permitted, while exercising jurisdiction under Article 226 of the Constitution if such authority had held proceedings in violation of the principles of natural justice or in violation of statutory regulations prescribing the mode of such inquiry or if the decision of the authority is vitiated by considerations extraneous to the evidence and merits of the case, or if the conclusion made by the authority, on the very face of it, is wholly arbitrary or capricious that no reasonable person could have arrived at such a conclusion, or grounds very similar to the above. But we cannot overlook that the departmental authority (in this case the Disciplinary Committee of the High Court) is the sole judge of the facts, if the inquiry has been properly conducted. The settled legal position is that if there is some legal evidence on which the findings can be based, then adequacy or even reliability of that evidence is not a matter for canvassing before the High Court in a writ petition filed under Article 226 of the Constitution."

27. In Syed Rahimuddin V. Director General, C.S.I.R. And others, AIR 2001 S.C. 2418, the principles enunciated in para 5 of the decision is as under:

"5.  ...............It is well settled that a conclusion or a finding of fact arrived at in a disciplinary inquiry can be interfered with by the Court only when there is no materials for the said conclusion; or that on the materials, the conclusion cannot be that of a reasonable man. Having examined the report of the Enquiring Officer, we are unable to accept the contention of the learned counsel for the appellant that the findings of the Enquiring Officer cannot be held to be findings based on no evidence."

28. In M.V. Bijlani v. Union of India and others, J.T. 2006(4) S.C. 469 while dealing with the scope of judicial review of disciplinary inquiry in para 25 of the decision Hon'ble Apex Court has held as under:

"25. It is true that the jurisdiction of the court in judicial review is limited. Disciplinary proceedings, however, being quasi- criminal in nature, there should be some evidences to prove the charge. Although the charges in a departmental proceedings are not required to be proved like a criminal trial, i.e., beyond all reasonable doubts, we cannot lose sight of the fact that the Enquiry Officer performs a quasi-judicial function, who upon analysing the documents must arrive at a conclusion that there had been a preponderance of probability to prove the charges on the basis of materials on record. While doing so, he cannot take into consideration any irrelevant fact. He cannot refuse to consider the relevant facts. He cannot shift the burden of proof. He cannot reject the relevant testimony of the witnesses only on the basis of surmises and conjectures. He cannot enquire into the allegations with which the delinquent officer had not been charged with."

29. Now the next question arises for consideration is as to whether the testimony of B. Taranth Pai Supervisor of the Bank in question who was also charge sheeted in respect of the same incident could be relied upon by the inquiry officer and charges levelled against the petitioner were found proved against him? In this connection it is noteworthy to mention that it is not in dispute that B. Taranth Pai was Supervisor of the Bank and was also charge sheeted in connection of the same incident. Thus he could not be expected to depose against his own interest when he was also charged with the same charge of misconduct in respect of same incident. In my opinion, therefore, his sole testimony in support of the charge could not be relied upon by inquiry officer in the said disciplinary proceedings.

30. From a bare perusal of inquiry report dated 6.1.1999 contained in Annexure-4 of the writ petition, there is nothing to indicate that except the statement of Sri B.Taranth Pai, the Management has examined any other witness in support of the charge levelled against the petitioner and to prove the records adduced before the inquiry officer. Sri B. Taranth Pai too did not state that records produced before inquiry officer were either original documents or certified photostat copies of original documents and except to him, Management did not examine any other witness to prove the documents produced before inquiry officer, therefore, in absence of any  witness on behalf of Management, it is very difficult to accept that in the said disciplinary inquiry, the charges were found proved in accordance with the principles of natural justice or rules of any inquiry. In my opinion unless the documents relied upon against the petitioner are proved before the inquiry officer by any oral testimony on behalf of Management the documents could not be relied upon by the inquiry officer.  Therefore, the findings of inquiry officer are wholly erroneous, perverse and based on conjectures and surmises, as such could not be acted upon by the disciplinary authority.

31. I have also perused the findings of disciplinary authority, there is nothing to indicate that the reply submitted by the petitioner against the findings of inquiry officer has been considered and discussed by disciplinary authority. It is no doubt true that Disciplinary Authority while agreeing with the findings of inquiry officer need not to record his independent findings on each and every charge but at the same time he cannot escape to deal with the objection of petitioner against those findings, which is minimal requirement of fairness in decision making. Thus the findings recorded by disciplinary authority, in my opinion, appears to be mechanical and without discussing the points raised by the petitioner in reply submitted against the findings of the inquiry officer, therefore, the findings of disciplinary authority are also vitiated under law and for the same reasons the findings of appellate authority also. Thus the findings of inquiry officer contained in inquiry report dated 6.1.1999 and order of dismissal passed by disciplinary authority dated 31st March 1999 and order passed by appellate authority dated 26.7.1999 contained in Annexure-12 of the writ petition are hereby quashed.

32. Now the next question arises for consider is that what relief can be given to the petitioner in given facts and circumstances of the case? In this connection it is necessary to point out that in Managing Director E.C.I.L. Vs. B. Karunakar and others (supra) AIR 1994 SC 1074 the Hon'ble Apex Court while dealing with some what similar issue in respect of non-furnishing of inquiry report along with show cause notice when the inquiry officer is other than Disciplinary Authority has held that if the inquiry is found faulty on account of non-observance of principles of natural justice and rules of disciplinary inquiry, whereby the proceedings are vitiated under law, the matter should be remitted back to the Disciplinary Authority with liberty to hold fresh inquiry de novo, from the stage it was found faulty by reinstating the employee for limited purpose of holding fresh inquiry from the aforesaid stage. The pertinent observation made at page 1092-93 of the report is as under:

"Where after following the above procedure, the Courts/Tribunals set aside the order of punishment, the proper relief that should be granted is to direct reinstatement of the employee with liberty to the authority/management to proceed with the inquiry by placing the employee under suspension and continuing the inquiry from the stage of furnishing him with the report. The question whether the employee would be entitled to the back wages and other benefits from the date of his dismissal to the date of his reinstatement if ultimately ordered should invariably be left to be decided by the authority concerned according to law after the culmination of the proceedings and depending on the final outcome. If the employee succeeds in the fresh enquiry and is directed to be reinstated, the authority should be at liberty to decide according to law how it will treat the period from the date of dismissal till the reinstatement and to what benefits, if any and the extent of the benefits, he will be entitled. The reinstatement made as a result of the setting aside of the inquiry for failure to furnish the report should be treated as a reinstatement for the purpose of holding the fresh inquiry from the stage of furnishing the report and no more. Where such fresh inquiry is held that will also be the correct position in law".

33. However, in this connection learned counsel for the petitioner has submitted that the petitioner should be reinstated in service along with consequential benefits of service with back wages without remitting the matter back to disciplinary authority for holding fresh disciplinary inquiry, as a period of about 12 years have already passed and at the most a minor penalty of censure could be awarded to him like Sri B. Taranth Pai, who was also charge sheeted in respect of the same charge and has admitted that the function of clerk in the bank is to prepare credit slip for respective party's account and the duty of supervisor is to check up the correctness of the said slip and he had also failed in his duty to check up the O.C.C. Lazor Book and credit slip which bore his signature and the inquiry officer has also failed to take into consideration the admission of supervisor that the documents referred above bore his signature and he has authenticated the credit which is evident from reply to the question nos.6 and 7 asked from him in cross-examination during the inquiry. Thus even if the charges against the petitioner have been proved and established even then the petitioner as well as Sri B. Taranth Pai are equally responsible for the said act of omission and the bank cannot discriminate in the matter of awarding the punishment between them as the petitioner has been dismissed from service while Sri B. Taranth Pai has been awarded minor punishment of censure only. It is also submitted that the disciplinary authority while awarding the punishment to the petitioner has failed to take into consideration the unblemished service record of the petitioner as well as length of his service and the dedication with which the petitioner has served the bank but the punishment awarded to him is too harsh and severe and does not commensurate to the gravity of the charges levelled against him.

34. In this connection only this much is to be observed that since I have held that the disciplinary inquiry has been found faulty from the stage of reply of charge sheet submitted by the petitioner, therefore, it is not necessary to decide the question of quantum of punishment while dealing with the aforesaid submission of learned counsel for the petitioner at this stage. However, I am of the considered opinion that the objections raised by the petitioner in connection of quantum of punishment have not been considered by disciplinary authority as well as appellate authority, therefore, while concluding the disciplinary inquiry afresh, it shall be open for the disciplinary authority to deal with the question of quantum of punishment also having regard to the facts and circumstances of the case.

35. Thus, in view of the aforesaid discussion the writ petition is allowed and the petitioner is reinstated in service only for limited purpose of holding disciplinary inquiry afresh within a period of three months from the date of production of certified copy of the order passed by this Court. During this period the petitioner shall be treated to be under suspension and he shall also be paid subsistence allowance for the period during which a fresh disciplinary  inquiry shall remain pending against him. In case the petitioner succeeds in disciplinary inquiry, the disciplinary authority shall also pass an order in respect of continuity of his service inasmuch as other consequential benefits of service including arrears of salary admissible and payable to him during the period he was out of employment on account of aforesaid impugned order of dismissal passed against him.

36. With the aforesaid observations and direction the writ petition succeeds and stands allowed to the extent indicated hereinbefore.

Date:25.4.2007

LJ/-


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