Jammu & Kashmir High Court
Sheikh Mushtaq Ahmed vs State Of J&K & Ors on 9 May, 2008
HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR SWP No.148 of 2006 Sheikh Mushtaq Ahmed petitioner State of J&K & Ors. respondent !Mr.A. Haqani, Advocate ^Mr. I. Nehvi , Advocate Hon'ble Mr. Justice H. Imtiyaz Hussain Date: 09/05/2008 : J U D G M E N T :
Through the medium of this petition, petitioner Sheikh Mushtaq Ahmed, who is a bank employee holding the post of cashier-cum-clerk in the UCO Bank, Srinagar has challenged the penalty of discharge from service imposed on him on the charge of grave misconduct.
The brief facts relevant for the purpose of present petition are as under:
A Saving Bank Account No.19693 was opened with the UCO Bank Srinagar by one Sheikh Shabnam Qayoom with a deposit of Rs. 600/- on 15.12.1994. From 22.12.1994 to 6.3.1995 some more deposits were made in the said account by the account holder. On 29.11.2000 a cheque book was shown to have been issued to the said account holder and on 19.12.2000 a cheque for Rs. 2.20 lacs out of the said cheque book was shown to have been drawn on the said Saving Bank Account. On 27.6.2001 Sheikh Shabnam Qayoom, the account holder filed a complaint denying obtaining of cheque book or withdrawal of the amount. Accordingly a FIR was lodged with Police Station, Maisuma by the Bank under FIR No. 65/2001 on 30.6.2001. On investigation by the police the petitioner has not been found involved in the matter and no challan has been filed against him but during preliminary enquiry, the petitioner in the departmental proceedings conducted by the respondent bank, who was working in the said bank on the relevant date as cashier-
cum-clerk was placed under suspension on 27.11.2001and on 21.1.2002 a charge sheet was issued against him alleging taking of the delivery of the cheque book and defrauding the bank by withdrawal of the amount of Rs. 2.20 lacs. The petitioner replied the charge sheet on 8.2.2002. Thereafter a regular enquiry was conducted and the petitioner was found involved in the affair, as such, penalty of discharge from service was imposed on him. He filed an appeal against the said order. The appellate authority ( Dy. General Manager) reversed the order so far it related to charge of receiving of cheque book as the same was found as not proved but maintained the charge of alleged withdrawal of money by the petitioner after returning a finding that the said charge was proved against the petitioner. The authorities imposed on the petitioner penalty of discharge from service with all superannuation benefits.
The petitioner has challenged the order of imposition of penalty on him on various grounds inter-alia that the respondents have while directing the enquiry against the petitioner not complied with various provisions of Bipartite Settlement particularly its para 19.4 . The petitioner further alleges that while conducting the enquiry the enquiry officer has not provided sufficient opportunity to the petitioner to contest the enquiry and has relied on evidence which was otherwise not admissible under law at all. He has further stated that during the period of suspension he was not paid the full pay and allowances, as were admissible to him under the rules as such he could not properly defend the enquiry. Various other grounds have also been raised to contest the enquiry report and the findings therein.
Respondents have denied the allegations of the petitioner. They state that one Sheikh Shabnum Qayoom opened a Saving Bank Account, the account had remained dormant for some years as it was not in operative ledger, the petitioner had managed to obtain a cheque book stating that he was the authorised representative of the account holder and that he will deliver the cheque book to the concerned account holder who was, as reported by him residing at a far of place. Respondents further state that the petitioner had persuaded concerned Manager to pass the cheque book after 3 or 31/2 hours of its presentation on the plea and assurance that he, the petitioner, had already made advance payment to the customer.
The respondents have stated that the enquiry into the matter has been conducted in accordance with the rules and the petitioner was given full opportunity to contest it and produce his defence.
Heard. I have considered the matter.
The annexures placed on file would show that the petitioner was charge sheeted for the alleged misconduct as under:-
1. On 29.11.2000 you with an intention to defraud the Bank have managed to take delivery of cheque book bearing NO.
310511 to 310520 pertaining to Savings Bank A/c No. 19693 in the name of Sheikh Shabnam Qayoom.
2. After having obtained the possession of Cheque Book as mentioned in serial No. 1 above, on 19.12.2000, in order to defraud the Bank, you filed cheque No. 310513 ( Cheque used from the Cheque Book mentioned in para 1 above) in your own handwriting for Rs. 2,20,000/- and also forged the signatures of Ms. Sheikh Shabnam Qayoom on the said leaf. Later on, being a Paying Cashier on that date, you obtained the payment of above said Cheque by signing as 'Reyaz Ahmad' as the recipient of the amount.
The petitioner submitted his reply to the said charge sheet denying the charges levelled against him. Thereafter a regular enquiry was initiated which was conducted on various dates extending from 26.4.2002 to 26.9.2003 in which on 11 hearings the petitioner did not attend the proceedings. The respondents in order to establish the allegations/charges against the petitioner relied upon oral and documentary evidence and also placed before the enquiry officer opinion of the handwriting expert about the alleged signatures of the petitioner. They examined three witnesses namely Mr. S. Manivanan, Pt. Ashok Kashyap and Mr. N. Bahaduri and produced 18 documents to substantiate the allegations/charges.
Both the charges have been found as proved by the enquiry officer vide his report dated 4.2.2004 but on an appeal filed by the petitioner charge No. 1 has been found as not proved against the petitioner. As such we are concerned with charge No. 2 only as this charge has been found as proved by the enquiry officer and this finding has been up held by the appellate authority on the appeal filed by the petitioner.
The law relating to enquiry is well settled now. In proceedings under Article 226 of the Constitution, the High Court cannot go to the correctness or otherwise of the findings arrived at by the enquiry officer. The Court has only to consider whether the provisions of the rule and the principles of natural justice have been complied with and the protection available under the constitution and/or the rules has been provided to the delinquent.
The rules require that due opportunity of hearing should be provided to the delinquent official during the enquiry and the enquiry officer, while examining the matter must rely upon evidence which is otherwise admissible under the provisions of law. High Court cannot act as a Court of Appeal over the decision of the authorities holding a departmental enquiry against an employee; it is concerned to determine whether the enquiry is held by the authority competent in that behalf and whether the rules of natural justice are not violated.
Various pleas have been raised by the learned counsel for the petitioner to assail the findings of the enquiry officer. From these pleas and the record on file I find that on two grounds the present enquiry and the findings arrived at cannot stand.
While examining the matter and coming to the conclusion about the guilt of the petitioner the enquiry officer has also considered the statement of one Trilok Singh ( PFM NO. 42842), made before I.O. dated 19.12.2000, copy of which is Ananexure-J to this petition. Trilok Singh was a material witness in as much as, being the counter clerk, it was he who had admittedly dealt with the cheque in question in the first instance. It was he who had received the cheque from the holder thereof and obtained signatures of such holder on the reverse of the cheque. The witness has also made entry in the token register and had pasted the cheque in the relevant account and passed the ledger to N. Bahaduri for appropriate disposal but surprisingly said Trilok Singh has not been examined as witness during enquiry rather his statement given by him during the preliminary enquiry has been used as evidence against the petitioner without affording the petitioner opportunity to cross examine him.
Ordinarily rules of natural justice would require that evidence against the delinquent must be taken in his presence or, if statements have already been taken, they must be disclosed and the delinquent official must be given opportunity to cross-examine the witness who has deposed against him.
Another ground which I find is very relevant and has caused prejudice to the petitioner is that the handwriting expert's report has been accepted without giving prior notice to the petitioner and making him aware that the said report was to be used against him, thus almost denying the opportunity to him to get ready to cross examine the witness. The petitioner has in this behalf in para 20(d) of his petition stated as under:-
"The impugned enquiry proceedings and the orders of punishment are also violative of rules of natural justice in as much as the petitioner has not been given effective opportunity to defend himself. As stated above in terms of the list of witnesses/documents submitted by the respondents before the Enquiry Officer on 26.4.2002 vide annexure-E ( supra), the respondents did not either disclose the particulars of the hand-writing expert nor produced the records of his expert opinion. This was done by the respondents even when the said expert opinion was well within their control and custody having allegedly been made available to them by the expert on 8.11.2001, on their own showing, The details of the said handwriting expert and his opinion was held back by the respondents secretly and clandestinely till 19.8.2003, when taking the petitioner by surprise they for the first time disclosed the name of the hand-writing expert and produced him as a witness alongwith his opinion, furnishing a copy thereof to the petitioner simultaneously. It is submitted that the said course was adopted by the respondents in an arbitrary and unfair manner, so as to deny the petitioner of the benefits of adequate and effective opportunity to defend himself and prevent him to cross-examine the witness properly. The course adopted by the respondents was in fact to reduce the enquiry into a sham and farcical formality, aimed to prove the petitioner guilty by hook or by crook and thereby to safeguard the interests of the real culprits, namely Shri N. Bhaduri and Shri Trilol Singh, who have already been indicated by the police investigating agency and are undergoing trial."
Respondents have not denied it rather they have admitted that the report was not furnished to the petitioner as it has been stated by them that had he been interested in cross examining him he could have asked for it and sought adjournment to a future date.
Learned Counsel has vehemently projected this glaring irregularity in the proceedings and has relying on MM.V. Ranga Rao v. Director of Forests Orissa AIR 1957 Orisa 21 stated that the conduct of the respondents in examining the handwriting expert was in clear contravention of the rules of natural justice.
Orissa High Court in the said authority observed that the rules of natural justice require that a person who has the right to cross examine the witness who may depose against him, must be made aware, prior to the date of enquiry, of the names of such witness together with some indication about the nature of evidence that they would give. The Court observed as under:-
"It is true that this right of cross-examining the witness who might depose against him, is a very valuable right, and where evidence has been taken ex parte this Court should carefully scrutinise the circumstances and find out whether such ex-parte evidence was taken because of the conduct of the public servant concerned or else whether the authority who held the enquiry was also partly to blame. I am also inclined to agree with Mr. Ramdas that rules of natural justice require that a person who has the right to cross-examine the witnesses who may depose against him, must be made aware, prior to the date of enquiry, of the names of such witnesses together with some indications to the nature of the evidence that they would give.
Unless he is made aware of these two facts it is obviously impossible for him to get ready to cross examine them. It is true that departmental proceedings are not regular criminal trials and the intimation of the names of witnesses and the nature of the evidence likely to be given by them need not necessarily be of the type recorded by a criminal Court before framing a charge in a warrant case. But in the copies of the charges and other particulars forwarded to the public servant concerned there should be clear indication about the names of persons who would appear before the enquiring officer against him and the nature of the evidence that they would given.
When there is such indication, it is clearly the duty of the public servant to appear at the enquiry and be ready to cross- examine those witnesses. He could, if necessary, after the examination in chief of those witnesses, ask for an adjournment for the purpose of cross-examination. But if he fails to appear at the enquiry even though he was clearly informed of the date of such enquiry and was warned that the enquiry would proceed ex-parte if he did not appear on that date, he must thank himself for any unfortunate results that might follow. "
The authority squarely applies to the facts of the present case. Here also the enquiry officer has, without making the petitioner aware examined the handwriting expert.
The Calcutta High Court in K.S. Joneja v. P.M. Das Gupta AIR 1953 Cal.361 held that the principles of natural justice do cast a duty upon the enquiry officer to specify and produce for inspection the documents in order to enable the delinquent to defend himself properly against the charges levelled against him.
On the facts of the present case I find that by examining the handwriting expert and relying on his evidence without giving an advance notice to the petitioner or providing him with a copy of the report, has caused prejudice to the petitioner and violated the rules of natural justice.
In view of these two irregularities I find the petitioner has not been given a proper chance to contest the enquiry. The non- examination of Trilok Singh who was a material witness in the case and relying upon his statement without affording the petitioner a chance to cross examine him has caused prejudice to the petitioner. Similarly examining the hand writing expert without due information to the petitioner was not proper due to which the enquiry conducted against him stands vitiated.
In the circumstances this petition is allowed. I leave it to the respondents that if they choose they may conduct a fresh enquiry against the petitioner in accordance with the provisions of the rules.
Order accordingly.
Srinagar 9.5.2008 ( H. Imtiyaz Hussain) Judge Mujtaba *PS*