Delhi High Court
Lalit Popli vs Union Of India on 7 August, 1998
Equivalent citations: 1998VAD(DELHI)47, 75(1998)DLT269, 1998(47)DRJ531
Author: K. Ramamoorthy
Bench: K. Ramamoorthy
ORDER K. Ramamoorthy, J.
1. The petitioner had joined the service of the Lakshmi Commercial Bank as clerk. In October, 1985, the Lakshmi Commercial Bank was taken over by the Canara Bank. The charge-sheet was issued to the petitioner on the 11th of May, 1992 and an inquiry was conducted. The petitioner was dismissed from service by the disciplinary authority. There was an appeal to the appellate authority and that was dismissed on the 3rd of April, 1996.
2. The petitioner has filed the writ petition challenging the order of removal as confirmed by the appellate authority. The second respondent, Canara Bank, opposed the writ petition on the grounds that the petitioner was given sufficient opportunity to defend himself and the inquiry officer held an inquiry examining the witnesses and submitted his findings to the disciplinary authority. On the basis of the inquiry report, the disciplinary authority imposed the punishment after considering the materials on record. It is further submitted by the second respondent that the appellate authority had also given cogent reasons for confirming the order of the disciplinary authority. The petitioner cannot challenge the findings by the domestic tribunal and this is not a case of no evidence, and therefore, the writ petition is liable to be dismissed.
3. Mr.Inderjeet Sharma, the learned counsel for the petitioner, submitted that the inquiry officer had rested his decision on the basis of the opinion of a handwriting expert, and that too, he has suspicion and the charge against the petitioner had not been proved and leaving out of account the evidence of handwriting expert, there is no evidence against the petitioner and the orders of the disciplinary authority and the appellate authority are liable to be set aside. The learned counsel for the petitioner, Mr.Inderjeet Sharma, took me through the charge, the explanation and also the report of the inquiry officer. The learned counsel for the petitioner, Mr.Inderjeet Sharma, submitted that the person examined as handwriting by the second respondent Bank is not a qualified handwriting expert and courts had passed strictures against him and in the examination before the inquiry officer, he had posed himself possessing some degrees, while he does not possess any degree at all and he is just a matriculate. Therefore, according to Mr.Inderjeet Sharma, the person examined by the second respondent Bank to prove charge against the petitioner was not a competent handwriting expert and, therefore, his opinion cannot at all be accepted and inasmuch as the second respondent had relied upon the opinion of a person who is not an expert, the report of the inquiry officer is illegal and consequently, the decision of the disciplinary authority stand vitiated and by the same process of reasoning, the order of the appellate authority must go. The learned counsel for the petitioner, Mr.Inderjeet Sharma, had also placed on record the opinion given by the Senior Scientific Officer of the Central Forensic Laboratory, Lodhi Road, New Delhi. A copy of the same was submitted to the court by the learned Additional Solicitor General, Mr.C.S.Vaidyanathan.
4. The preliminary inquiry was conducted by G.B.Narulkar, Manager, New Delhi. The preliminary inquiry report reads as under.
"Brief History Shri S.V.Deshpande, Advocate - Supreme Court, has lodged a police complaint with the SHO, Tilak Marg, New Delhi, vide his letter dated 18.1.1992 that there has been a withdrawal by way of 5 cheques totalling to the extent of Rs.1.07 lakhs from his SB A/c No.4272 being maintained with AIWC Extn. counter. The relevant cheque book was never issued to him nor he issued any such cheque. He also has claimed that the cheque book requisition slip from the earlier cheque book is still in his possession. He has stated that due to connivance and negligence on the part of the said bank some one has withdrawn the amount of Rs.1.07 lakhs from his A/c.
FINDINGS:
1) Shri S.V.Deshpande, Advocate - Supreme Court vide his letter dated 18.1.1992 addressed to the station House Office, Tilak Marg, Police Station, has lodged a complaint stating that some one has withdrawn amount of Rs.1.07 lakhs from his SB A/c No.4272 being maintained with AIWC Extn. Counter by way of 5 cheques viz. 15,000/- , 15,000/-, 5000/-, 14,000/- & 13,000/- on 26.12.91, 28.12.91 and on 31.12.1991. Copy enclosed for ref.S.No.1.
2) Shri Deshpande has opened his SB A/c with AIWC Exten. Counter on 5.5.1989. The a/c was duly introduced by the other a/c holder Shri A.S.Bhasme SB A/c No.2997. After observing the usual formalities such as abstention of a/c opening form & specimen signature card, a new a/c under No.4272 in the name of Shri S.V.Deshpande was opened. Encl. S.No.2 & 3.
3) SB A/c No.4272: Observation on ledger sheets: The a/c was opened on 5.5.89 by making initial deposit of Rs.10/-. A cheque book bearing serial No.446691 to 700 was issued to him. The depositor was operating the a/c in usual way. The balance in the a/c has been gradually increasing. At the end of 1989 the balance had crossed the level of 50,000/-. In the year 1990 the transac tions were observed in the similar way. The inflow into the a/c was on going basis. In the year 1991 the increasing trend in the balance continued. In the 2nd half of the year the balance was almost 1.5. lakhs.
The withdrawals have been from the cheque books issued to him from time to time. It is further observed that the cheque books have been used mostly in chronological order. After utilisation of these earlier cheque book, the requisition has been made for the new one.
It is observed from the various cheques issued that most of these were in favour of other advocates as per apparent tenor. Very few withdrawals were by way of self cheques. Third person/individual cheques were for a smaller amount say less than a thousand rupees.
One single withdrawal was observed for a maximum amount of Rs.21,700/- on 6.4.1991 in favour of Shri U.R.Lalit.
The maximum total sum withdrawn on one single day was 27,500/- by way of 3 cheques (18,000/-, 500/-, & 9,000/- on 6.12.90).
No other type of drawals were observed except occasional debits on account of commission, postage. Copy of the a/c ledger sheets enclosed S.No.4A to 4H.
All most all the cheque books given to the A/c holder have been utilised for which there is no doubt or complaint except the last one.
4) The earlier cheque book issued to him on 10.7.1991 bearing serial Nos.426001 to 426010 was used by him and got exhausted at the end of Sept. 1991.
5) On the basis of the requisition slip (4r26001-426010) a fresh cheque book was issued on 24th Oct.1991. The a/c holder Shri Deshpande had himself signed the slip and authorised one Shri Shyam Sunder to collect the cheque book. Shri Shyam Sunder's signature were duly attested on the slip itself by Shri Deshpande.
A fresh cheque book bearing serial No.435351 to 435360 was issued to the bearer on the same day.
This requisition slip has been properly kept in the record of the branch. Copy enclosed s.No.5.
Out of this Cheque book No.435341 to 360, 4 cheques have so far been utilised as seen from the records. Out of these 4 cheques, 3 cheques have been presented for payment and paid in the month of Nov.91 as under:
Nov.1 Ch.No.435352 Fvg.Sh.N.M.Ghatate Rs.5,000/-
Nov.15 Ch.No.435354 Fvg.Sh.S.S.Ch. Rs. 400/-
Nov.19 Ch.No.435353 Fvg.Sh.U.R.Lalit Rs.4,000/-
The first cheque in the series i.e.351 for Rs.5,500/- was not presented for payment till 25th Jan. 1992.
There was a credit balance in the a/c after passing the cheque for Rs.4,000/- on 19.11.91 Rs.143470.75.
Afterwards no transaction took place in the a/c. The account holder had 6 cheques blank/unused 435355 to 360 in his possession and also the requisition slip unused.
The Advocate Shri Deshpande has provided photocopy of all the 6 blank cheques and also of the requisition slip. The original verified.( ) Copy enclosed for ref. S.No.5A to 5I.
5) On 23.12.1991 a fresh cheque book bearing No.460821 to 460830 was issued against the said A/c No.4272 Shri S.V.Deshpande.
As seen from the cheque book register page No.133/134 that in all 15 entries have been made on 23.12.91 towards issued of cheque books. The cheque book No.460821-830 has been delivered to one Shri Mahinder Kumar against his signature.
On going through the Day's cash paid cheques it was observed that the relevant requisition slip/request letter from the a/c holder is no stitched and hence found on records.
Shri Rakesh Tyagi (20383) Spl. himself has entered the cheque books in the relevant delivery register (Cheque book issued register) which includes the cheque book issued against the a/c No.4272 of Shri DEshpande. Shri Rakesh Tyagi has initiated against the entry in the register. Copy of cheque book issued (page No.133/134) dt.23.12.91 enclosed for ref. S.No.6A & 6B.
The cash paid cheques bundle dt.23.12.1991 was found to be in tact till the investigation conducted and it was observed that the relevant requisition slip for this A/c 4272 was not there. The a/c holder is still in possession of the same.
Since the requisition slip is still with the depositor and that the issue of cheque book on 23.12.91 bears acknowledgement from the bearer and not from the depositor, it is concluded that the cheque book in question (460821-830) was issued to a bearer on the basis of a letter.
Issue of cheque book on the basis of a letter to a bearer is in violation of the normal rules and procedure of the bank. Shri Rakesh Tyagi, Spl.Asst. has authorised issue and has issued the said cheque book to the bearer and hence responsible for the act.Shri Rakesh Tyagi has confirmed his act in his written statement dt.23.1.92.
In the absence of contrary evidence, it is concluded that permission from the manager for issue of a cheque book on the basis of a letter to a bearer was not obtained by Shri Tyagi, though he has stated in his statement that he obtains permission from the manager in such a case.
Further while preserving the requisition slip/letter due care was not taken to staple all the requisition together and to hand over to the next person/peon to ensure proper bundling with other vouchers of the day. Missing of this particular requisition slip shows that same was kept loose/single in the tray. Shri Rakesh Tyagi has stated in his statement that he kept the said requisition/letter in the tray after releasing the same from the ledger. Hence for not ensuring the proper depositing of the requisition slip/letter Shri Tyagi is responsible.
At the time of issuing the cheque book on 23.12.91 against the A/c No.4272 on the basis of a letter, it was not ensured:
Whether earlier cheque book was properly utilised and whether the a/c holder himself had approached and what was the necessity for asking a fresh cheque book wen earlier one was not fully used. No discreet enquiries were made before issue of a fresh cheque book. Bonafides of the bearer were not looked into.
Shri Rakesh Tyagi, Spl.Asst. has written in his letter that he does not remember to have verified and ensure utilisation of the earlier cheque book.
As a concerned supervisor Shri Rakesh Tyagi should have observed and taken care of the above points applicable for issue of cheque book.
Stitching of the cheque-paid and the requisition slips is being done by Dafatary Shri Vinod Kumar. The paid cheques and the requisition slips for 23.12.91 were also stitched by him and handed over to the officer. Shri Vinod Kumar has confirmed in his statement that he stitched the paid cheques and the requisition slips for 23.12.91 and handed over to the officer. Copy enclosed S.No.7.
6) Payment of Cheques:
On going through the records of paid cheques issued by Shri Deshpande S.B.A/c No.4272 that most of the cheques were issued "Crossed" to be paid through Bank's account. Very few and that too for smaller amount were meant for cash drawals.
Cheques paid at random are enclosed in form of photocopy pertaining to Aug. & Sept.91. Out of these 9 cheques, 7 were crossed and paid through bank account and not in cash. Remaining 2 cheques viz. for Rs.300/- and 500/- were meant for cash payment. Copy enclosed for ref. S.No.8A to 8I.
All these cheques paid were from the cheque book duly issued to the a/c holder Shri Deshpande for which there is no dispute or doubt and hence it is in order.
The above paid cheques were from the cheque book duly issued to the a/c holder against his requisition and same was found to be in order. Copy enclose for ref. S.No.9.
7) Payment of cheques from the cheque book issued on 23.12.1991:
The following cheques have been paid from the cheque book issued on the account on 23.12.91 bearing serial Nos.460821-830:
Ch.No.& Dt. Fvg. Amt.(Rs.) Mode Dt.paid
460827-26.12.91 Mahender Kumar 15,000/- Cash 26.12.91
460823-28.12.91 Mahinder Kumar 15,000/- Cash 28.12.91
460821-31.12.91 Self 13,000/- Cash 31.12.91
460822-31.12.91 Virender Kumar 14,000/- Cash 31.12.91
460826-31.12.91 Pawan Kumar 50,000/- Cash 31.12.91
Photocopy enclosed for ref.S.No.10 A to 10 E.
It is observed that while accepting, posting, passing and releasing the above cheques for payment in cash, the following aspects were not taken into account.
The a/c was not scan through. This would have enabled to observe that there was no cash drawal in this way, and for heavier amount. There was no bulk drawal any way. Normal and discreet enquiries in case of such erratic cash withdrawals were not made.
Shri Deshpande - the a/c holder SB.4272 has stated that he did not receive the cheque book bearing NO.460821-830 on 23.12.91 nor he sent any requisition, hence issue of the above cheque for cash payment is not authorised by him.
a) Ch.No.460827 and 460823 each for Rs.15,000/- were posted in the ledger on 26.12.91 and on 28.12.91 by Smt.Madhu Garg, Clerk.
Ch.No.469827 for Rs.15,000/- was passed for payment by Shri S.S.Bhutani, Officer on 26.12.91.
Ch.No.460823 for Rs.15,000/- was passed for payment by Shri Rakesh Tyagi, Spl.Asst.
b) On 31.12.1991 Ch.No.460821 for Rs.13,000/- fvg. self and Ch.No.460822 for Rs.14,000/- in favour of Virender Kumar was debited to the a/c by Shri Satish Bhalla, as he was also a clerk in SB.
These cheques were released from the ledger by Shri Rakesh Tyagi, Spl. after debiting the same to the depositor's a/c. The payment on these 2 cheques was authorised by Shri M.Sundeream, Manager.
c) On the same day i.e.31.12.91 ch.No.460826 for $s.50,000/- in fvg. of Pawan Kumar was debited to by Shri Lalit Popli, Clerk. It is observed that Shri Popli was very much careless in the work while handling the cheque. Due care while debiting a cash cheque for such a big amount, when the a/c shows no withdrawal in this way, was not taken. Discreet enquiries were not made. There was a fictitious endorsement on the reverse of the cheque to give credibility to the transaction. The way of writing and the spellings in the endorsement are not correct. This irregularities, at least, should have put the clerk on alert. But he chosen to debit the cheque immediately.
On going through the records of the Extn.Counter, it was observed that generally there used to be no cheque for this much big amount.
While debiting the cheque Shri Popli was not careful and vigilant. Shri Popli has also stated in his written statement that he read the endorsement on the cheque but still he did not have any doubt about the bonafides of the presenter. He also did not make any enquiries with the bearer but issued the token. As such he was negligent and careless. He is responsible for the lapses.
Shri Rakesh Tyagi, Spl.Asst., as an immediate supervisor, has passed and released the cheque from the ledger. He did not make any discreet enquiries with the bearer as has not confirmed the same. As an immediate supervisor he should have scan through the ledger and ascertained the reasons/ or should have made discreet enquiries with the bearer. But this was not done by him. Hence he responsible for the lapses.
The payment was authorised on the cheque by Shri S.M.Sunderam, Manager. Shri Sunderam has stated in his statement that he verified the signature of the drawer, and passed for payment.
The supervisor, the clerk and the manager were not vigilant, though, the cheque for bigger amount was brought by a third person who was not the a/c holder nor known to the Bank. If some discreet enquiries at any level had been made the situation would have confirmed the genuineness of the cheque/s. Shri S.M.Sunderam is responsible for the lapse also.
Since issue of the cheque book itself is not in order, the subsequent withdrawals on the basis of cheques from this cheque book cannot be said to be regular.
Since the advocate the a/c holder has stated that the amount was allowed to be draw on the cheque book not issued against his requisition and that the funds to the tune of Rs.1.07 lakhs drawn from the a/c by some one. This confirms that the signature on the 5 cheques was not of Shri S.V.Deshpande - the a/c holder.
The cheques were purported to have been signed by Shri S.V.Deshpande as stated by the passing officials, who have authorised the payment. It will be better to obtain opinion of an handwriting expert.
8) Under the circumstances, the Bank may be put in difficulties and may not be entitled to the protection under Sec.10 of N.I.Act. Payment in due course means: In accordance with the apparent tenor, in good faith and without negligence, under the circumstances which do not afford a reasonable ground for believing that he is not entitled to receive the payment of the amount mentioned therein.
Out of the 4 major conditions only apparent tenor and good faith was observed as seen from the sequences of the transactions, and other 2 i.e. without negligence and the circumstances leading to doubt were left.
Hence:
a) For issue of the cheque book without proper requisition from the a/c holder Shri Rakesh Tyagi is responsible.
b) For passing/posting the cheques as detailed in the above points the clerks: Smt.Madhu Garg, Clerk, Shri Satish Bhalla, Clerk and Shri Lalit Popli, Clerk are responsible for the respective transactions.
c) For authorising the payment against the cheques not signed by the a/c holder Shri S.S.Bhutani, Shri Rakesh Tyagi, Spl.Asst. and Shri S.M.Sunderam, Manager are responsible for the respective transactions noted above.
9) Written statements obtained from the staff members are enclosed under S.No.:
11 from Smt.Madhu Garg, Clerk, 12 from Sh.Satish Bhalla, Clerk, 13 from Sh.Lalit Popli, Clerk, 14 from Sh.Rakesh Tyagi,Spl.Asst/Supervisor 15 from Sh.S.S.Bhutani, Officer, 16 from Sh.S.M.Sundaram, Manager
10) Branch has been requested to keep the entire records in a place of safety. The acknowledged copy of the letter in this regard is enclosed herewith. S.No.17.
11) The branch has sent a report on actual/suspected fraud. Copy enclosed for ref.S.No.18.
12) On 18.1.92, in reply to the customer's letter, branch furnished the information to him. Copy enclosed for ref.S.No.19.
13) It is observed that Shri Lalit Popli, clerk, immediately after lodgment of the complaint by the a/c holder Shri Deshpande on 18.1.92, has given a paper publication in form of a letter to the editor stating that he has been harassed. The letter was published in 'Jansatta' on 20.1.92. Since Shri Lalit Popli is one of the clerks who has attended the relating to the account of Shri DEshpande, indicates that he has gone for a position of an anticipatory bail. Copy enclosed S.No.20."
5. Regarding the petitioner in the writ petition, the inquiry report says:-
"c) On the same day i.e.31.12.91 ch.No.460826 for $s.50,000/- in fvg. of Pawan Kumar was debited to by Shri Lalit Popli, Clerk. It is observed that Shri Popli was very much careless in the work while handling the cheque. Due care while debiting a cash cheque for such a big amount, when the a/c shows no withdrawal in this way, was not taken. Discreet enquiries were not made. There was a fictitious endorsement on the reverse of the cheque to give credibility to the transaction. The way of writing and the spellings in the endorsement are not correct. This irregularities, at least, should have put the clerk on alert. But he chosen to debit the cheque immediately.
On going through the records of the Extn.Counter, it was observed that generally there used to be no cheque for this much big amount.
While debiting the cheque Shri Popli was not careful and vigilant. Shri Popli has also stated in his written statement that he read the endorsement on the cheque but still he did not have any doubt about the bonafides of the presenter. He also did not make any enquiries with the bearer but issued the token. As such he was negligent and careless. He is responsible for the lapses."
6. The preliminary inquiry report has indicted the petitioner only with reference to one cheque and the preliminary inquiry report says that the petitioner was negligent and careless.
7. On the 11th of May, 1992, a charge-sheet was issued to the petitioner in the following terms:-
"WHEREAS, there are prima facie grounds for believing that you have committed gross misconduct, the particulars whereof are given below, this charge-sheet has been drawn up against you and you are required to submit me within 15 days of receipt of this charge-sheet a statement in writing setting forth your defense, if any and showing cause as to why suitable action should not be taken against you.
CHARGE:
You have been working at Canara Bank, DDU Marg, New Delhi Branch, since 7.3.986.
One Shri S.V.Deshpande, Advocate, Supreme Court of India is maintaining his SB a/c No.4272 with AIWC Extn.Counter of DDU Marg, New Delhi Branch. On 23.12.91 a cheque book bearing No.460821 to 460830 was authorised to be issued in SB a/c No.4272 to one Sri Mohinder Kumar on the strength of a purported letter in violation of the laid down procedure of the bank. Thereafter, a total of Rs.1,07,000/- was withdrawn from his a/c by utilising 5 cheques out of the above said cheque book, details of which are given below::-
DATE CHEQUE NO. AMOUNT
26.12.91 460827 Rs.15,000/-
28.12.91 460823 Rs.15,000/-
31.12.91 460821 Rs.13,000/-
31.12.91 460822 Rs.14,000/-
31.12.91 460826 Rs.50,000/-
The a/c holder has complained/disputed the above said withdrawals as well as issuance of the cheque book No.460821 to 460830. The purported letter on the basis of which the above said cheque book had been issued has also not been found on records. The handwriting expert has confirmed that the signatures appearing on the above said cheque are not that of Shri S.V.Deshpande, the a/c holder and the are forged.
The cheque No.460826 for Rs.50,000/- was posted by you in the relative ledger on 31.12.91 though there was fictitious endorsement on the reverse of the cheque to give creditability to the transaction.
Handwriting expert has opined after examining your handwritingwith that of the disputed instruments in question that the signatures of the a/c holder appearing on the above said 5 cheques and the endorsement on the back of the cheque No.460826 for Rs.50,000/- is in your handwriting.
From the above, it is evident that you by misusing your official position, in collusion with someone else, got the above said cheque book issued in SB A/c No.4272, utilised the cheque leaves in question by forging the signature of the a/c holder and got the same presented to encash the cheques fraudulently.
By your above said fraudulent acts you have caused damage to the property of the bank thereby committed a gross misconduct within the meaning of Chapter-XI, Regulation 3, Clause (j) of Canara Bank Service Code.
Your above said acts are also prejudicial to the interests of the bank thereby you have committed a gross misconduct within the meaning of Chapter-XI, Regulation 3 Clause (m) of Canara Bank Service Code."
8. The petitioner had asked for certain documents and ultimately inquiry was held. The inquiry officer had observed:-
"In case of fraud like this, no direct evidence could be expected as it is very difficult to assume that one will forge signatures of the account holder in the presence of others. There will be the circumstances and the other evidence which is required to be evaluated while eliminating the other factors. In the instant case, Sri Popli had admittedly, debited the cheque for Rs.50,000/- in the SB A/c 4272, in spite of the various irregularities mentioned hereinabove. The handwriting expert produced by the management has opined with his detailed reasoning that the signatures on the disputed cheques and that the endorsement on the back of the cheque for Rs.50,000/- is in the handwriting of CSE. A layman can also point out the similarities in the individual alphabets found in the disputed handwriting on the reverse of the cheque with that of the CSE. Hence I hold that the signatures of the a/c holder appearing on the back of the cheque No.460826 for Rs.50,000/- is in the handwriting of CSE.
Before concluding my discussion, I would like to refer the points raised by the CSE and not covered in the aforegoing paras:-
CSE has stated that he has been victimised by the management due to his trade union activities. No such evidence has been brought on record to substantiate the above said averment advanced by the CSE while submitting his written arguments. Hence, I express my in ability to give any weightage to the above said argument of the CSE and the same is without any substance.
CSE has also referred in his written arguments that he had come to know from the reliable sources that the Police Department had obtained the expert opinion from their Forensic Lab. and they have not found anybody's specimen handwriting matching with that of handwritings/signatures/endorsement on disputed cheques. No such evidence is led/produced during the enquiry. In the absence of the above, I am not aware as to whether any such report has been submitted to the Police Department or not. Moreover, it depends as to what reasons, if any, have been given in support of its conclusion in the said report. In the absence to any evidence to substantiate the above submissions made by the CSE in this regard lacks merit.
Keeping in view the fact that the CSE had debited the cheque for Rs.50,000/- on 31.12.91 in the SB A/c.4272 in spite of apparent irregularities, his having forged the signature of the a/c holder on the disputed cheques and his writing the endorsement on the back of the cheque as has been proved during the enquiry through report of handwriting expert, it can be concluded by way of inference that Shri Lalit Popli is very much involved in the fraud committed in the above said SB A/c.
In view of the above said disucssion, I hold Shri Lalit Popli, CSE guilty for his having committed the gross misconduct within the meaning of Chapter XI, Regulation 3, Clause (j) & (m) of Canara Bank Service Code."
9. The charge itself was issued on the basis of the opinion of the handwriting expert who was examined later in the inquiry. The evidence of the handwriting expert is absolutely vague and the so called person examined, Mr.V.K.Sakhuja, is not at all a qualified person. In his evidence before the inquiry officer, he had given his name and qualifications as Veer K.Sakhuja, H.E., F.P.E., E.Q.D., Seattle (U.S.A.) Handwriting & Finger Prints Identification Expert (Since 1953). It looks as if he is holding a degree of H.E., F.P.A., E.Q.D. from the United States. He has not produced any documents to show his qualifications. The evidence of the handwriting expert is as follows:-
"Today's date has been fixed to record the evidence for the management. CSE was intimated for today's enquiry vide my proceedings dt.3.2.93 duly acknowledged by him. CSE has not come to attend the enquiry fixed for day in spite of the above said intimation. Hence the enquiry fixed for today is conducted in his absence.
P.O. is requested to call his next witness. Sh.P.K.Batra, P.O. has called Shri V.K.Sakhuja handwriting expert to depose in the enquiry as MW 2.
Examination in chief of MW 2:
PO:. Please identify yourself.
MW-2: Myself Shri V.K.Sakhuja, professionally occupied as a handwritings, fingerprints and fire arms identification expert, with my residence at 2215, Sector 28, Faridabad, my Delhi office as Chamber No.23, Western Wing, Dist, Courts, Tees Hazari, Delhi.
PO: Please state your experience regarding your profession.
MW-2: Sir, I am working in my professional capacity for the last 40 years and have examined thousands of documents besides having submitted comparison report before various Hon'ble High Courts, Subordinate Courts and on as interval enquiries in about 10,000 cases on behalf of large number of private parties, all the nationalized Indian Banks, many of the big Industrial Houses, all the foreign banks in India, Union of India and various states. I have made special study of this subject as is stipulated under Section 45 of Evidence Act. I am whole time occupied professionally.
PO: Please peruse the documents on 11.2.92 and 13.3.92 and tell the details in respects of the same.
MW-2: Sir, I have seen the said two documents (in original) and their photocopies as well. These two documents are my comparison reports prepared in respect of documents referred to in each of the same. The contents of the said two documents are correct and are in accordance with the evaluation of writing characteristics, discernible therein from the relevant documents pertaining to individual reports referred to above. The report dt.11.2.92 involves signatures reading S.V.Deshpande and also the handwritings deemed to be of one Sh.Lalit Popli and Sh.Rakesh Tyagi. The contents of this report are correct and I have affixed my signatures on each leaf of the same. The photocopy of the report dt.11.2.92 is marked M Ex B along with annexures i.e. photographs referred therein demonstrative part of my evidence.
MW-2: The contents of report dt.13.3.92 are correct and are in accordance with evaluation of writing referred to therein for comparison. The contents of the said report are confirmed. (It is marked as M Ex C along with Annex.). The report bears my signatures on each leaf.
PO: Please refer your above said reports and tell the crux of the same in brief.
MW-2: Report dt.11.2.92 contains my comparison opinion in respect of signature reading S.V.Deshpande on item listed at serial No. 1 to 7 and the comparative signatures deemed to be that of the a/c holder bearing a/c No.4272. As a result of this comparison I am of the considered opinion that the signatures S.V.Deshpande on documents listed at serial No.1 to 7 are forged signatures and same are definitely not in the writing of writer of comparative signatures of the a/c holder of SB A/c No.4272. This comparison report also has reference in respect of comparison of handwriting known to be Shri Rakesh Tyagi and Shri Lalit Popli.
As regards report dt.13.3.92 which is comparison report involving handwriting known to be of Shri Rakesh Tyagi and Lalit Kumar Popli with the question writing involved in the documents listed as item No.1 to 7 in report dt.11.2.92. As a result of this comparison I am of the considered opinion that the controversial signature and endorsement referred to in item No.1 to 7 are in the handwriting of Shri Lalit Kumar Popli (this Exhibit M Ex C to this report, which has been seen by me in original is given on the photocopy of the same alongwith the demonstrative photo enalrgement.
Examination in chief of MW 2 by P.O. is over. No cross-examination by CSE as he has not participated in the enquiry as recorded earlier. MW-2 is hence discharged. A copy of today's proceedings will be sent to CSE for his information. Though the CSE has not participated in the enquiry in spite of the intimation, it is hereby recorded that in case the CSE so desire he may cross-examine MW-2 on the next date of hearing i.e. 20.3.93. However, in case CSE desire to cross-examine MW-2 he will have to inform me within 3 days of receipt of these proceedings in writing through his section to enable P.O. to ensure the presence of Sh.V.K.Sakhuja handwriting expert on the next date of hearing. The enquiry stands adjourned to 20.3.93 to record the evidence of remaining management witnesses to be taken up at Canara Bank, C.O., Delhi at 10 A.M."
10. It is well settled that no decision can be arrived at on the strength of the opinion of the handwriting expert alone. The Supreme Court had laid down in "Nand Kishore Prasad Vs. The State of Bihar & Others" that the evidence of handwriting expert alone cannot be the basis of any conclusion by courts. The learned counsel for the petitioner also brought to my notice the opinion given by the Central Forensic Laboratory which runs as follows:-
"Material submitted for examination by the SHO, PS Tilak Marg, in case FIR No.24 dated 21.1.92 PS Tilak Marg, New Delhi vide memo No.668-SHO/TM dated 16.4.92.
The documents of this case have been examined carefully with scientific aids and the following opinion has been arrived at.
It has not been possible to express any opinion regarding the authorship of the questioned writings & signatures marked Q-1 to Q-17 in comparison to any of the specimen writings marked S-1 to S-7 purported to be written by Shri Nirmal Sharma; S-8 to S-14 purported to be written by Shri Gopal Saxena; S-15 to S-21 purported to be written by Shri Bahadur Singh; S-22 to S-28 purported to be written by Shri Lalit Popli; S-29 to S-35 purported to be written by Shri S.S.Bhutani; S-36 to S-42 purported to be written by S.Meenakshi Sundhram; S-43 to S-49 purported to be written by Shri Satish Bhalla; S-50 to S-56 purported to be written by Shri Rakesh Tyagi; S-57 to S-63 purported to be written by Shri Vinod Kumar; S-64 to S-70 purported to be written by Madhu Garg; S-71 to S-77 purported to be written by Shri Madan S. Rajput; S-78 to S-83 purported to be written by S.S.Gupta; S-84 to S-89 purported to be written by Shri P.V.C.Kutti; due to the following reasons.
Sufficient similarities in the writing characteristics have not been found common between the questioned and in any of the specimen writings to express a definite opinion."
11. The Senior Scientific Officer of the Central Forensic Laboratory came to the conclusion that no definite opinion can be formed. Mr.C.S.Vaidyanathan, the learned Additional Solicitor General, submitted that the petitioner that the petitioner had examined the handwriting expert in the departmental inquiry in support of his case and that expert stated that he was trained by Mr.V.K.Sakhuja. Therefore, the competency of Mr.V.K.Sakhuja cannot be disputed. That is not relevant at all. Mr.V.K.Sakhuja might have been masquerading on the corridors of the courts as an handwriting expert and that would not make him really an expert in the field. The handwriting expert and the person examined on behalf of the petitioner might have associated himself with Mr.V.K.Sakhuja. The position in law is clear that on the basis of an handwriting expert alone no finding can be arrived at about the guilt of any person. The Supreme Court in "Union of India Vs. H.C.Goel", , posited:
"It may be that the technical rules which govern criminal trials in courts may not necessarily apply to disciplinary proceedings, but nevertheless, the principle that in punishing the guilty scrupulous care must be taken to see that the innocent are not punished, applies as much to regular criminal trials as to disciplinary enquiries held under the statutory rules."
12. The learned Additional Solicitor General, Mr.C.S.Vaidhyanathan, relying upon the judgment of the Supreme Court in "State Bank of Patiala & Others Vs. S.K. Sharma", , submitted that having regard to the parameters laid down by the Supreme Court, the petitioner cannot invoke jurisdiction of this Court under Article 226 of the Constitution of India. The Supreme Court had laid down the principles in the following terms:-
"An order passed imposing a punishment on an employee consequent upon a disciplinary/departmental enquiry in violation of the rules/regulations/statutory provisions governing such enquiries should not be set aside automatically. The Court or the Tribunal should enquire whether (a) the provision violated is of a substantive nature, or (b) whether it is procedural in character.
(2) A substantive provision has normally to be complied with and the theory of substantial compliance or the test of prejudice would not be applicable in such a case.
(3) In the case of violation of a procedural provision, the position is this: procedural provisions are generally meant for affording a reasonable and adequate opportunity to the delinquent officer/employee. They are generally speaking, conceived in his interest. Violation of any and every procedural provision cannot be said to automatically vitiate the enquiry held or order passed. Except cases falling under 'no notice', 'no opportunity' and 'no hearing' categories, the complaint of violation of procedural provision should be examined from the point of view of prejudice, viz., whether such violation has prejudiced the delinquent officer/employee in defending himself properly and effectively. If it is found that he has been so prejudiced, appropriate orders have to be made to repair and remedy the prejudice including setting aside the enquiry and/or the order of punishment. If no prejudice is established to have resulted therefrom, it is obvious, no interference is called for. In this connection, it may be remembered that there may be certain procedural provisions which are of a fundamental character, whose violation is by itself proof of prejudice. The Court may not insist on proof of prejudice in such cases. Take a case where there is a provision expressly providing that after the evidence of the employer/Government is over, the employee shall be given an opportunity to lead defense in his evidence, and in a given case, the enquiry officer does not give that opportunity in spite of the delinquent officer/employee asking for it. The prejudice called for in such a case. To repeat, the test is one of prejudice, i.e., whether the person has received a fair hearing considering all things. Now, this very aspect can also be looked at from the point of view of directory and mandatory provisions, if one is so inclined. The principles stated under (4) hereinbelow is only another way of looking at the same aspect as is dealt with herein and not a different or distinct principle.
(4) (a) In the case of a procedural provision which is not of a mandatory character, the complaint of violation has to be examined from the standpoint of substantial compliance. Be that as it may, the order passed in violation of such a provision can be set aside only where such violation has occasioned prejudice to the delinquent employee.
(b) In the case of violation of a procedural provision, which is of a mandatory character, it has to be ascertained whether the provision is conceived in the interest of the person proceeded against or in public interest. If it is found to be the former, then it must be seen whether the delinquent officer has waived the said requirement, either expressly or by his conduct. If he is found to have waived it, then the order of punishment cannot be set aside on the ground of said violation. If, on the other hand, it is found that the delinquent officer/employee has not waived it or that the provision could not be waived by him, then the Court or Tribunal should make appropriate directions (include the setting aside of the order of punishment). The ultimate test is always the same, viz., test of prejudice or the test of fair hearing, as it may be called.
(5) Where the enquiry is not governed by any rules/regulations/statutory provisions and the only obligation is to observe the principle of natural Justice_ or, for that matter, wherever such principles are held to be implied by the very nature and impact of the order/action the Court or the Tribunal sould make a distinction between a total violation of natural justice (rule of audi alteram partem) and violation of a facet of the said rule. In other words, a distinction must be made between "no opportunity" and no adequate opportunity, i.e., between "no notice"/"no hearing" and "no fair hearing". (a) In the case of former, the order passed would undoubtedly be invalid (one may call it "void" or a nullity if one chooses to). In such cases, normally liberty will be reserved for the Authority to take proceedings afresh according to law, i.e., in accordance with the said rule (audi alteram partem). (b) But in the latter case, the effect of violation (of a facet of the rule of audi alteram partem) has to be examined from the standpoint of prejudice; in other words, what the Court or Tribunal has to see is whether in the totality of the circumstances, the delinquent officer/employee did or did not have a fair hearing and the orders to be made shall depend upon the answer to the said query. (It is made clear that this principle (No.5) does not apply in the case of rule against bias, the test in which behalf are laid down elsewhere).
(6) While applying the rule of audi alteram partem (the primary principle of natural justice) the Court/Tribunal/Authority must always bear in mind the ultimate and overriding objective underlying the said rules, viz, to ensure a fair hearing and to ensure that there is no failure of justice. It is this objective which should guide them in applying the rule to varying situations that arise before them.
(7) There may be situations where the interest of State or public interest may call for a curtailing of the rule of audi alteram partem. In such situations, the Court may have to balance public/State interest with the requirement of natural justice and arrive at an appropriate decision."
13. The learned Additional Solicitor General referred to the judgment of the Supreme Court in "Union of India & Another Vs. B.C.Chaturvedi", (1995) 6 SCC 750, for the proposition that review by the court is of decision-making process and where the findings of disciplinary authority are based on some evidence, the court or tribunal cannot re-appreciate the evidence and substitute its own findings. The position in this case is entirely different.
14. The learned Additional Solicitor General relied upon the judgment of the Supreme Court in "High Court of Judicature at Bombay Vs. Uday Singh & Others", , wherein the Supreme Court held that the standard of proof required in a departmental proceedings is different from the criminal trial and preponderance of probabilities and conclusions drawn as a reasonable man from evidence on record is sufficient for the purpose of coming to a conclusion in a departmental enquiry. The learned Additional Solicitor General also relied upon the judgment of the Supreme Court in "State of Rajasthan Vs. B.K.Meena & Others", , wherein the Supreme Court pointed out that in the disciplinary proceedings the question is, whether the delinquent official is guilty of such conduct as would merit his removal from service or a lesser punishment, whereas in the criminal proceedings the question is, whether what sentence should be imposed upon. The Supreme Court further laid down that the standard of proof, mode of enquiry and the rules governing the enquiry and trial in both the cases are entirely distinct and different.
15. The learned Additional Solicitor General also relied upon the judgment of the Supreme Court in Rai Bareli Kshetriya Gramin Bank Vs. Bhola Nath Singh & Others", 1997 1 CLR 838 for the same proposition. The question in this case is: Whether on the basis of the evidence of the handwriting expert the guilt of the petitioner could be arrived at?
16. The learned counsel for the petitioner referred to the extract of the judgment in S.875/65 titled "Shri Nathu Mal Vs. Kalu & Others". In the Court of K.K.Seth, The Court held:
"While discussions the merits of issue No.1 I had held that Shri Veer K.Sakhuja had intentionally camouflaged the impression by putting wrong strokes of display and had also given a wrong opinion intentionally and knowing fully that it was wrong in order to make the Court believe that the thumb impressions on the promote and receipt was not that of defendants No.2 and 3. He has prejudiced himself for corrupt motives and considering the above stated circumstances and for eradication of evils for fabrication of false evidence and in the interest of justice, I am of the considered opinion that it is expedient that Shri Veer K.Sakhuja should be prosecuted for the offence u/s 465, 471/193 IPC for fabricating false evidence of the purpose of being used in the judicial proceedings and for using it during the proceedings of the above suit and for giving false evidence.
A notice under above sections of IPC served upon Shri Veer K.Sakhuja, handwriting expert, Delhi, as is required by the provisions of Sec.479-A Criminal Procedure Code to show cause why he should not be prosecuted for the said offences."
Mr.Mohinder Singh Joshi, PCS, Sub-Judge, 1st class, Delhi in S.No.165/58 titled "Pt.Mansa Ram & Another Vs. Shriek Abdul Hamid & Another" had observed:-
"One Mrs.Vij. finger print and handwriting expert examined the signatures and thumb mark with the help of photo enlargement and opined that Mansa Ram was their author. The other expert Mr.Veer K.Sakhuja, out of support the plaintiffs by whom he was paid could find no point of dissimilarity in the disputed and the standard thumb impression and therefore, stated that the disputed impression was not clear enough to admit of comparison. All the requisite details are visible to the naked eye in the enlargement prepared by Mrs.Vij and I am in no doubt as to Mansa Ram and his expert Mr.Veer K.Sakhuja both have resorted to false-hood to me."
Mr.Ram Phal Singh, Sub-Judge Ist Class, Gurgaon in S.No.39/59 titled "Ram Kishore Vs. Chand, S/o Bhundu" had observed:-
"The report marked Ex.P.W.2/3 of Sh.Veer K.Sakhuja Handwriting Expert, examined by the plaintiff as PW-2, does not inspite any confidence and cannot be accepted. I doubt if Mr.Veer K.Sakhuja can at all be regarded as a Handwriting Expert. His academic qualifications are practically nil. He has admitted that he was only a Matriculate and had studied up to second year of Intermediate standard and did not appear in the University Examination. He obtained his diploma by correspondence in 1955. He admitted that he answered question papers for this diploma at his own home and there was no supervisors when he wrote down the answers. He has also admitted that while answering the questions for this diploma he was free to consult books and persons although he did not do so. As admitted by him in the cross-examination such diploma as the witness possessed are not recognised by the Government of India. The witness did not receive training at any Government Centre or Bureau. It appears that he has taken a partisan attitude in submitting the report as the plaintiff appears to be his permanent client. The witness admitted in his cross-examination that he did appear for the plaintiff in 4 or 5 cases so far and in every case the opinion of the witness was in favour of the plaintiff. As discussed above, I do not place any reliance on the report and statement of Sh.Veer K.Sakhuja."
The learned Judges before whom Mr.V.K.Sakhuja had given evidence had condemned him in strongest terms. These things, though mentioned by the petitioner in his appeal petition, had not been considered at all. Therefore, on the basis of the opinion given by this Handwriting Expert, the Bank cannot come to any conclusion.
17. The learned Additional Solicitor General, relying upon the judgment of this Court "Surinder Kumar & Others Vs. State", , has submitted that the opinion of Mr.V.K.Sakhuja as DW-4 has been accepted by this Court and, therefore, the accusation against the handwriting expert by the petitioner is not justified. The fact that the Courts had made very strong stricture against the handwriting expert is not disputed. In my view, Mr.Sakhuja is not a person who is competent to speak about the handwriting or finger prints. His evidence is no evidence at all. Consequently, the charge issued by the bank is not sustainable in law. The findings by the inquiry officer against the petitioner are not based on any evidence and, thus, the order passed by the disciplinary authority cannot be sustained. In law there is no evidence against the petitioner. Thus, the order of the disciplinary authority is wholly illegal and it cannot be sustained. Accordingly, the writ petition is allowed. The order of dismissal dated 30.6.1995 and the order of the appellate authority dated 7.3.1996 are set aside and the petitioner shall be reinstated in service with all consequential benefits.
18. There shall be no orders as to costs.