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2015 DIGILAW 407 (JK)

Ali Mohammad Wani v. Union of India

2015-08-13

MOHAMMAD YAQOOB MIR

body2015
JUDGMENT : 1. Aggrieved by the order dated 26.07.2007, passed by Chief Manager (Disciplinary Authority)-respondent No. 3, where-under petitioner has been dismissed from service, the instant petition has been filed. 2. Petitioner was appointed as Watchman in the respondent Bank in the year 1985 vide order dated 21.03.1985. In the year 1993, due to shortage of staff, the petitioner had been asked to officiate as a Clerk and was paid officiating allowances. In the said capacity he allegedly had falsified an account by altering the amount on the vouchers, as a result whereof an amount of Rs.22,64,271/was excessively and wrongly withdrawn in piece-meals by tampering the bank records relating to SB Account A/C No. 19274 of Mr. Mir Khalil. When same surfaced, he was placed under suspension on 08.05.1993. Report was also lodged in Police Station, Maisuma for commission of offences punishable under Sections 420, 468, 471, 477-A, 409, 120 B RPC. The investigation of the said case culminated in presenting charge sheet (challan) before the Court of Chief Judicial Magistrate, Srinagar against the petitioner and one Mohammad Khalil. After facing trial both have earned acquittal as is clear from the judgment passed by learned Chief Judicial Magistrate, Srinagar, on 20.04.2009, copy of which is placed on records. 3. Petitioner challenged the order of suspension and the recovery proceedings through the medium of writ petition (SWP) No. 629/2003. Then again another writ petition (SWP) No. 534/2004 where-under FIR No. 33 of 1993 was challenged. SWP No. 629/2003 stands disposed of vide judgment dated 3rd June, 2005 with direction to Chief Judicial Magistrate, Srinagar to conclude the trial of the case within a period of nine months but same could not fructify as the trial continued. 4. After a gap of almost 14 years from the date of occurrence, departmental enquiry had been instituted against the petitioner on 13.6.2007 which has been completed by the enquiry officer and the report of enquiry is shown to have been prepared and sent to the Disciplinary Authority on 17.07.2007. Based on the recommendations of the enquiry officer, the Disciplinary Authority has passed the final order dated 26.07.2007 terminating services of the petitioner. Subsequent thereto, the criminal trial as was pending was also concluded where-under petitioner was acquitted vide judgment dated 20.04.2009. 5. First contention of the learned counsel for the petitioner is that the petitioner has been condemned unheard, rules have not been followed. Subsequent thereto, the criminal trial as was pending was also concluded where-under petitioner was acquitted vide judgment dated 20.04.2009. 5. First contention of the learned counsel for the petitioner is that the petitioner has been condemned unheard, rules have not been followed. Buttressing this submission, submitted that the respondents noticing the position of the petitioner having reached the age of superannuation in the year 2007, before such date of superannuation hurriedly instituted the enquiry which was concluded within a period of one month. During the course of enquiry, letter dated 12.5.2007, according to the petitioner, was sent to him by Chief Manager, same was received on 07.06.2007 which was replied. He was never called to participate in the enquiry proceedings. 6. The enquiry report as prepared by the enquiry officer is suggestive of the fact that the enquiry has been conducted on various dates from 21.06.2007, at Branch office, Srinagar petitioner attended the enquiry but refused to participate in the process. On 26.06.2007 petitioner again attended the proceedings and denied the charge claiming that he had no access to the records being a Watchmen of the Bank. He has also refused to produce any defence. In the enquiry report, enquiry officer has observed as under: “The CSE was given full opportunity to cross examine and prove the statements of the management witnesses presented by Pr. Officer is untrue or rebut, the allegation/charges since he has not attended the regular proceedings of the hearing. On each date of hearing a letter was being sent to CSE giving the details of enquiry taken on date, with the next of hearing. He was repeatedly advised to present himself and cross examination of witnesses. It was also made him clear that in case he wished to cross examine the witnesses already examined by the pr. Officer same shall be allowed. The letters were being sent to his residence through an employee of B/O Zainakadal besides copies of such letters were sent through registered post and UPC. The CSE was not receiving the letters personally and was asking family members to receive the letters as has been reported by the employee of the B/o Zainakadal Mr. M. A. Khan. The letters were being sent to his residence through an employee of B/O Zainakadal besides copies of such letters were sent through registered post and UPC. The CSE was not receiving the letters personally and was asking family members to receive the letters as has been reported by the employee of the B/o Zainakadal Mr. M. A. Khan. Although the enquiry was concluded on 07/07/07 yet another chance to defend his case on 10/07/07 was given to him which was not availed by him and has also not given any reason for remaining away from the proceedings. Accordingly after giving enough opportunity to CSE did not cross examine the managements witnesses and presenting officer was asked to submit his presenting officers brief which was submitted by him on 10/07/07 copy of which was sent to CSE on 11/07/07 and was delivered to him at his residence, he was asked to submit his defence brief by or before 16th of July, 2007 but no defence brief has been received by me till date.” 7. For substantiating the aforesaid position of the enquiry report, learned counsel for respondents was asked to produce the enquiry report which he has. Then he was asked to show from the records as to whether letters or intimation was given to the petitioner about enquiry proceedings. In the orders recorded by the enquiry officer same is reflected but there is no record available to show that any such letter or any such intimation was actually served upon the petitioner. The position of enquiry officer having ignored his position of being an impartial enquiry officer has acted as a representative of the Bank. When petitioner has been suspended on 08.05.1993 and no enquiry was instituted against him till 2007, means for a period of 14 years, even though there was a requirement of conducting enquiry then why same has been conducted hurriedly and concluded within one month, obviously with a pre-determined mind to get the petitioner dismissed before he would attain the age of superannuation. Report of the enquiry officer on the face of it is suggestive of the fact that the process of enquiry has been hoodwinked in contravention of applicable rules, more particularly in contravention to the principles of natural justice. 8. Another worst position is that the Disciplinary Authority while passing final order has shown total haste. Report of the enquiry officer on the face of it is suggestive of the fact that the process of enquiry has been hoodwinked in contravention of applicable rules, more particularly in contravention to the principles of natural justice. 8. Another worst position is that the Disciplinary Authority while passing final order has shown total haste. Clause 11 of the Bipartite Agreement provides that when a disciplinary action against an employee is decided to be taken, decision shall be conveyed to him. The procedure to be adopted is envisaged in Clause 12 of the said Agreement. Sub clause (a) of Clause 12 provides that sufficient time be given to the employee to prepare and give his explanation and to produce any evidence that he may wish to tender in his defence. He shall be permitted to appear before the officer conducting the enquiry to cross examine any witness on whose evidence the charge rests. He shall also be permitted to be defended by a representative. Record of enquiry proceedings do not indicate that such procedure has been adhered to. 9. Clause 12 also provides that the employee shall be given hearing as regards nature of proposed punishment in case any charge is established against him. Whether the disciplinary authority has done so, answer is available in the records as produced. The disciplinary authority, as per records, is shown to have sent a notice to the petitioner under registered cover on 23.07.2007 as is clear from the postal receipt available on the records, on 26.07.2007, final order has been passed. The notice under postal cover was to be delivered at Anantnag, how could it be presumed that it had reached Anantnag within four days which in turn would suggest that there is non-compliance of Clause 12 of the Bipartite Agreement and such type of communicatory system when delinquent is required to submit his reply, is not acceptable. Actual service is a requirement and same is required to be proved. In this view, I am fortified by the judgment captioned Union of India and others v. Dinanath Shantaram Karekar and others ( AIR 1998 SC 2722 ). 10. Actual service is a requirement and same is required to be proved. In this view, I am fortified by the judgment captioned Union of India and others v. Dinanath Shantaram Karekar and others ( AIR 1998 SC 2722 ). 10. It is settled position of law that when an enquiry is instituted, the delinquent official has a right of being heard and then on conclusion of enquiry, when a enquiry report is submitted to the disciplinary authority, then disciplinary authority is required to send copy of the enquiry report as well as notice regarding proposed punishment so as to enable the delinquent official to defend and explain his position. Denial of such right vitiates the entire proceedings. Non-adherence to the rule of law and non-adherence to the principles of natural justice vitiates the enquiry proceedings, disciplinary proceedings as well as order passed thereon. It shall be quite advantageous to quote para 29 of the judgment rendered by the Hon’ble Apex Court in the case of State of Uttar Pradesh and others v. Saroj Kumar Sinha reported in (2010) 2 SCC 772 . “Apart from the above, by virtue of Article 311(2) of the Constitution of India the departmental inquiry had to be conducted in accordance with rules of natural justice. It is a basic requirement of rules of natural justice that an employee be given a reasonable opportunity of being heard in any proceeding which may culminate in a punishment being imposed on the employee.” 11. Admittedly, petitioner has been placed under suspension on 08.05.1993 whereas departmental enquiry has been initiated in the year 2007 which means after a gap of 14 years. Such enquiry by itself gets vitiated, more so when the petitioner has already on reaching superannuation retired from service. Therefore, it was too late for the respondent-authorities to initiate departmental enquiry proceedings. In this view I am supported by the judgment rendered by the Hon’ble Apex Court in P.V. Mahadevan v. M. D. Tamil Nadu Housing Board ( AIR 2006 SC 207 ). 12. Now position has undergone change i.e. the petitioner in the criminal proceedings has earned acquittal vide detailed judgment passed by the Court of Chief Judicial Magistrate, Srinagar dated 20th April, 2009. Furthermore, petitioner has already reached the age of superannuation. Now it shall be unjust and unfair to allow any fresh enquiry to be conducted against the petitioner. 12. Now position has undergone change i.e. the petitioner in the criminal proceedings has earned acquittal vide detailed judgment passed by the Court of Chief Judicial Magistrate, Srinagar dated 20th April, 2009. Furthermore, petitioner has already reached the age of superannuation. Now it shall be unjust and unfair to allow any fresh enquiry to be conducted against the petitioner. In my view, I am fortified by the judgment rendered by the Hon’ble Apex Court in the case of G.M. Tank v. State of Gujarat and others, (2006) 5 SCC 446 . 13. In the totality of the facts and circumstances, the order of termination is held to be bad in the eye of law, as such, quashed. There could be scope for ordering fresh enquiry as well as disciplinary proceedings but since the petitioner has reached the age of superannuation in the year 2007 itself, therefore, there is no scope for holding any disciplinary proceedings. Petitioner shall be deemed to have been reinstated into service but shall not be entitled to pay for the period he has remained out of service, however, pensionary benefits, as shall be permissible under banking rules, shall be settled within a period of six weeks from the date copy of this order is served upon respondents. 14. Petition succeeds, shall stand disposed of as above.