Mr. M.Ramakrishna, CJ

1. Mr. Ghulam Muhamad Shah, the appellant herein, was writ petitioner in SWP No. 783 of 93, which was heard and disposed of by the learned Single Judge by an order made on 12.2.1996. The findings and the conclusions of the learned Single Judge in the writ petition, being against the writ petitioner, he presented this LPA challenging the correctness and the legality, and the conclusions reached thereon, in the writ petition.

2. A few facts.that are necessary for the disposal of the appeal, are as follows:

3. Mr. Ghulam Muhammad Shah was working as StoreKeeper in the Department of Food and Supplied in the State of Jammu and Kashmir. There was an allegation of embezzlement in the course of transaction of consumer goods involved in the transaction of the Department of Food and Civil Supplies. The Director, Food and Civil Supplies passed an order suspending the appellant from office pending an enquiry against him. Thereafter, the Deputy Director, Food and Civil Supplies, Pulwama had been appointed as Enquiry Officer by the Director by an order made on 9th November, 1987. The Enquiry Officer, after completion of the enquiry, submitted a report on 25th April, 1988 to the disciplinary authority. Meanwhile, there were some proceedings before this Court. The writ petitioner had moved SWP No. 1299 of 1988 challenging the order of suspension on 21st January, 1987. The Division Bench, after hearing learned counsel on both sides, by an order made on 15.11.1988, directed that if there was no enquiry having been completed as on that day, the third respondent shall complete the same within one month and he shall submit his report to respondent No. 2 within the same period. The Division Bench further directed that if the enquiry was delayed beyond four weeks, the petitioner would be entitled to be reinstated and the enquiry to be conducted thereafter.

4. Perhaps the above observation with the direction to respondent No.3 was made on the premise that as on the date when this order was passed, the enquiry Officer did not complete the enquiry. But today Mr. Mustaffa, learned Government Advocate, brought to our notice that enquiry was completed on 25th April, 1988 and the learned Government Advocate, who appeared before the Division Bench in the above writ petition, had no knowledge about the same. Be that as it may, that is not the clinching point in this appeal.

5. Thereafter, SWP No. 783 of 1993 was heard by the learned Single Judge and in the course of the order, the learned Single Judge made an observation as follows:

"The regular enquiry seems to have been conducted by the Deputy Director, Food and Supplies Department, who was appointed as inquiry officer vide Order No. DFSK/Adm/SH 372 dated 9.11.1987, into the said misappropriation of food grains and sale proceeds by the petitioner in his capacity as Store Keeper Shopian (A) Centre.:

Again the learned Judge proceeded to hold that, in view of the show cause notice having been issued which was replied by the appellant, the enquiry should be completed as an opportunity to the petitioner has been given to participate in the enquiry. This is the presumption with which the learned Single Judge proceeded to dispose of the writ petition. At page 4 of the order, the learned Single Judge proceeded to record a finding as follows:

"....that the petitioner has been involved in a fabricated shortage case is not well founded. The petitioner, in fact, has admitted his shortages and has requested for reinstatement with the condition that he will liquidate the outstanding amount in installments."

with this back ground, the learned Single Judge disposed of the writ petition without recording appropriate finding on the real question of law/ arising in the writ petition.

6. With a view to ascertain ourselves the facts, Mr. Mustafa, learned Government Advocate, had been good enough to produce the original records. According to him, there had been an enquiry which had been completed on 25th April, 1988 in accordance with law and that a show cause notice had been issued before imposing penalty on the writpetitioner. He submitted that the writpetitioner also replied show cause notice.

7. We have verified the original records. At the out set, it is seen that, after the writ petitioner, appellant, had been placed under suspension in January, 1987, the Enquiry Officer (Deputy Director, Food and Supplies), it is seen from the records, framed the charge sheet in regard to the embezzlement of money or material. The charge sheet had not been framed by the disciplinary authority. It is at page 77 of the records. On 16th July, 1987, the enquiring authority framed the charges sheet and a copy thereof had been supplied to the petitioner. Thereafter, on submission of the reply by the writpetitioner, certain witnesses have been examined, including the writpetitioner (appellant). They are found in the original records from page 97 to 100. The so called report is found at page 137 of the original records. We have perused the same. At the out set it is seen that the action taken by the enquiring authority, in as much as he framed the charge sheet himself, is contrary to the provision of Article 311 (2) of the Constitution of India, as it is the disciplinary authority who had to frame the charges based upon which the enquiring authority could proceed to hold enquiry in accordance with law. By a perusal of the records, it is seen that though certain witnesses have been examined by the enquiring authority, no opportunity has been given to the appellant to participate and to cross examine these witnesses. The enquiring authority has not proceeded to assess the evidence on record and all other materials to arrive at a conclusion in his report. On the other hand, the report of the enquiring authority, which is found at page 137 of the original records, is nothing, but repetition and reference to deposition of certain witnesses recorded, without considering the actual charge. Indeed there is no action taken by the enquiring authority to assess the material evidence on record and to answer the charge either in favour of the petitioner or against him. The report of the enquiring officer is only a narrative of certain depositions of the witnesses recorded by him. Therefore, in the face of the fact that the enquiring officer failed to apply the law in regard to departmental enquiries, the contusions arrived by him is of no assistance to the department.

8. Lastly, it is seen from the reply to the show cause notice filed by the writ petitioner, that a specific stand has been taken by him that he had not been supplied with the copies of the depositions and other documents produced in support of the prosecution. It is a mandatory requirement of law under Article 311 (3) of the Constitution of India that a Government servant, who is facing an enquiry, is entitled to copies of the documents, including, the depositions recorded in departmental enquiries before issuing show cause notice. In the instant case, despite the fact that he has made allegation in the reply that there was no compliance of the requirement of law, the enquiring officer did not supply these copies to the appellant so as to enable him to answer the show cause notice effectively.

9. It is also seen that after the enquiring authority submitted the report, the disciplinary authority has not approved the findings so far. Therefore, there is no effective order dealing with the departmental proceedings.

10. The learned Single Judge, without looking into the original records and without considering the actual questions of law, has reached a conclusion solely on the ground that there was an admission on the part of the writpetitioner. We will now deal with that question.

11. We have seen the letter dated 29th March, 1993 sent by Assistant Director,

which is at page 18 / of the records. It is true that this letter has been addressed by Assistant Director, Food and Civil Supplies Department, Pulwama, to the Assistant Director, Administration, headquartered at Srinagar. In the said letter all that can be gathered in the operative portion is that:

"The Storekeeper concerned requested that his suspension period may be treated as on duty and arrears at the rate of 25% may be adjusted towards the shortages". Based upon this letter of the Assistant Director (not by the petitioner), the writ court proceeded to record a finding that there had been an admission on the part of the petitioner. Firstly, it is not shown from the records that the writ petitioner, in fact, has come forward to admit the guilt. If that is so, the authorities ought to have recorded his statement admitting the guilt. Secondly, the Assistant Director, Food and Civil Supplies, Pulwama, has made a reference departmentally to another counter part in his letter, if such a reference is to be made the basis that there was an admission of the guilt, we have not been able to understand based upon what substance. It is nobodys case that the petitioner had come forward to make the statement admitting the guilt before the competent authority, muchless before the enquiring authority. Therefore, the department could not act upon this letter to hold him guilty. It is a very serious matter where the right of the government servant is involved and Article 311 of the Constitution provides enough protection to such person. In the absence of specific finding recorded by the enquiring authority holding him guilty in regard to the embezzlement of the material, it is difficult to accept the submission of Mr. Mustaffa, learned Government Advocate, that there was an (SIC) admission.

12. In view of the foregoing, we do not see any substance in the argument of the learned Government Advocate. Mr. Bashir, learned counsel for the Appellant, who argued the appeal, has been able to make out a clear case that the view taken by the learned Single Judge is not sustainable.

Therefore, we have no alternative, but to allow the writ petition.

13. The writ petition is allowed. The order made by the learned Single Judge in SWP No. 783 of 1993 is setaside. The appeal is allowed.

14. Before parting with this case, we will have to make an observation. Although we have allowed this appeal on the question of law accepting the argument of the appellant and setaside the order of the learned Single Judge, it is open to the department to hold a fresh enquiry, if they so desire, in accordance with the law and to record appropriate findings as to the charges framed against him. It is needless to say that by virtue of this order, the order of suspension no longer survives. The appellant shall also be entitled to consequential benefits by virtue of this order.

15. Parties are left to bear their own costs.