SHOWKAT HUSSAIN RATHER vs JAMMU AND KASHMIR BANK LIMITED AND ORS.

IN THE HIGH COURT OF JAMMU & KASHMIR AND
LADAKH AT SRINAGAR
Reserved on: 08.10.2026
Pronounced on: 30.10.2026
Uploaded on: 30.10.2026
Whether the operative part or full
judgment is pronounced: Full
WP(C) No.1763/2025
SHOWKAT HUSSAIN RATHER
...PETITIONER(S)/APPELLANT(S)
Through: - Mr. Mohammad Hussain, Advocate.
Vs.
J&K BANK LIMITED & ORS.
…RESPONDENT(S)
Through: - Mr. Shafqat Nazir, Advocate, with
Ms. Sabreena Bashir, Advocate.
CORAM: HON’BLE MR. JUSTICE RAJNESH OSWAL, JUDGE
JUDGMENT
1)
The services of the petitioner, who was working as
Officer Scale-1, were terminated in terms of the dismissal
order dated 15.03.2008. He was also prosecuted before the
th
Court of learned 4 Additional Sessions Judge, Srinagar, for
commission of offences under Section 420, 467, 409 RPC
arising out of FIR No.74/2005 but was acquitted in terms of
judgment dated 26.11.2024.

2) Following his acquittal, the petitioner has filed the
present petition for quashing the dismissal order dated
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15.03.2008 and directing the respondents to release his full
salary, along with all consequential service benefits, from the
date of dismissal till the date of his retirement, as well as all
admissible post-retiral benefits.
3) It is stated by the petitioner that he was charge-
sheeted, subjected to a disciplinary enquiry, and dismissed
from service vide order dated 15.03.2008. It is contended
that the petitioner was subjected to the rigor of a criminal
trial based on the exact same set of allegations and, after 17
long years, was acquitted of all charges vide the judgment
supra, with the Criminal Court explicitly finding no evidence
of forgery, fraud, or misappropriation. The petitioner further
submits that the departmental inquiry was vitiated by
procedural irregularities and bias. Consequently, once the
Criminal Court acquitted him of any wrongdoing, he became
entitled to all consequential benefits up to his age of
superannuation.
4) The respondent-Bank has filed response to the writ
petition, stating therein that the petitioner is seeking
reappreciation of evidence and substitution of finding, which
is beyond the jurisdiction of this Court and the dismissal
order dated 15.03.2008 has already attained finality. The
petitioner after 17 long years, when he has crossed the age
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of superannuation, cannot file the writ petition on the basis
of subsequent judgment dated 26.11.2024. It is also stated
that the acquittal in criminal proceedings does not invalidate
the departmental proceedings and it is settled law that
disciplinary action is independent of criminal trial, the
standard of proof being entirely different. It is also stated
that the petitioner misused his official position to prepare
and sanction fictitious loans against stolen fixed deposit
receipts, which were detected during internal investigation.
The petitioner's contention that the departmental
proceedings were not in tune with law and, therefore,
vitiated, is false. He was served with a regular chargesheet
dated 28.05.2005, supplementary chargesheet dated
06.06.2005 and a second supplementary chargesheet dated
07.12.2005. Despite repeated reminders, he initially failed to
submit reply, leading the Disciplinary Authority to order a
full-dress enquiry under Rule 375(b) and 376 of the Officers
Service Manual, 2000. Upon receipt of his belated reply, the
same was duly placed before the Enquiry Officer. The
petitioner was provided with complete opportunity to
participate, cross-examine witnesses and adduce evidence.
The proceedings were transparent, in conformity with service
rules and guided by the principles of natural justice. The
Enquiry Officer conducted proceedings independently and
WP(C) No.1763/2025 Page 3 of 14

impartially. The petitioner was given repeated opportunities,
but he adopted dilatory tactics, seeking adjournments on
flimsy grounds to delay conclusion. Despite his evasive
approach, the Enquiry Officer meticulously considered all
material evidence and submissions of both sides. The
findings proved each article of the charge. The Disciplinary
Authority thereafter issued a show cause notice, supplied
the petitioner with enquiry report and also afforded him
personal hearing. Thus, the petitioner cannot allege denial
of fair opportunity. It is further stated that scope, object, and
standard of proof in departmental proceedings is distinct
from criminal trial. While the criminal prosecution required
proof beyond reasonable doubt, a departmental proceeding
is summary and based on preponderance of probabilities.
5) Learned counsel for the petitioner has submitted that
the petitioner filed representation in the year 2005, but the
same has not been decided by the respondents. He submits
that the respondents be directed to decide the
representation.
6) Per contra , Mr. Shafqat Nazir, learned counsel for the
respondents, has submitted that the petitioner was
dismissed after a full-fledged departmental enquiry and the
petitioner participated in the proceedings and now after 17
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long years, he cannot assail the order of dismissal merely on
the ground that he has earned acquittal in the chargesheet
on the same set of allegations.
7) Heard and perused the record.
8) The petitioner has assailed the impugned dismissal
order on twin grounds: firstly, that the departmental inquiry
was vitiated by procedural irregularities and bias; and
secondly, that the disciplinary findings cannot stand in light
of the judicial acquittal on the same charges.
9) As regards the petitioner's first contention that the
departmental enquiry was vitiated by procedural
irregularities and bias, it would be apt to observe that after
fully participating in the enquiry, the petitioner slept over his
rights for 17 long years and chose to raise this plea only after
his acquittal. Having acquiesced to the proceedings for
nearly two decades, it is now far too late in the day to
challenge the enquiry on ground of procedural infirmity or
bias. This contention, being barred by gross delay and
laches, is accordingly rejected. In this context, it would be
apposite to take note of the judgment of the Hon’ble Apex
,
Court rendered in Union of India v. N. Murugesan (2022)
2 SCC 25 , and the relevant paras are extracted as under:
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Laches
21. The word “laches” is derived from the French
language meaning “ remissness and slackness ”. It thus
involves unreasonable delay or negligence in pursuing
a claim involving an equitable relief while causing
prejudice to the other party. It is neglect on the part of
a party to do an act which law requires while asserting
a right, and therefore, must stand in the way of the
party getting relief or remedy.
22. Two essential factors to be seen are the length of
the delay and the nature of acts done during the
interval. As stated, it would also involve acquiescence
on the part of the party approaching the court apart
from the change in position in the interregnum.
Therefore, it would be unjustifiable for a Court of Equity
to confer a remedy on a party who knocks its doors
when his acts would indicate a waiver of such a right.
By his conduct, he has put the other party in a particular
position, and therefore, it would be unreasonable to
facilitate a challenge before the court. Thus, a man
responsible for his conduct on equity is not expected to
be allowed to avail a remedy.
23. A defence of laches can only be allowed when there
is no statutory bar. The question as to whether there
exists a clear case of laches on the part of a person
seeking a remedy is one of fact and so also that of
prejudice. The said principle may not have any
application when the existence of fraud is pleaded and
proved by the other side. To determine the difference
between the concept of laches and acquiescence is
that, in a case involving mere laches, the principle of
estoppel would apply to all the defences that are
available to a party. Therefore, a defendant can
succeed on the various grounds raised by the plaintiff,
while an issue concerned alone would be amenable to
acquiescence.
Acquiescence
24. We have already discussed the relationship
between acquiescence on the one hand and delay and
laches on the other.
25. Acquiescence would mean a tacit or passive
acceptance. It is implied and reluctant consent to an
act. In other words, such an action would qualify a
passive assent. Thus, when acquiescence takes place,
it presupposes knowledge against a particular act.
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From the knowledge comes passive acceptance,
therefore instead of taking any action against any
alleged refusal to perform the original contract,
despite adequate knowledge of its terms, and instead
being allowed to continue by consciously ignoring it
and thereafter proceeding further, acquiescence does
take place. As a consequence, it reintroduces a new
implied agreement between the parties. Once such a
situation arises, it is not open to the party that
acquiesced itself to insist upon the compliance of the
original terms. Hence, what is essential, is the conduct
of the parties. We only dealt with the distinction
involving a mere acquiescence. When acquiescence is
followed by delay, it may become laches. Here again,
we are inclined to hold that the concept of
acquiescence is to be seen on a case-to-case basis.
10) It would be apt to take note of another judgment of the
Hon’ble Apex Court rendered in SBI v. M.J. James, (2022)
2 SCC 301, and the relevant paras are extracted as under:
35. Further, the dismissal order passed on 18-4-
1985 remained unchallenged for more than four
years , as the appeal to the Chief General Manager of
State Bank of India was filed on 20-9-1989. The
respondent, however, relies on Clause 22( x ) of the
Service Code relating to appeals, which reads thus:
“ 22. ( x ) An aggrieved employee in all such cases
may appeal to the Board of Directors whose
decision shall be final.”
Undoubtedly, the Service Code does not stipulate any
time period within which the appeal may be preferred
to the Board of Directors whose decision is to be final,
but it is well settled that no time does not mean any
time. The assumption is that the appeal would be filed
at the earliest possible opportunity. However, we would
hold that the appeal should be filed within a reasonable
time.
36. What is a reasonable time is not to be put in a
straitjacket formula or judicially codified in the form of
days, etc. as it depends upon the facts and
circumstances of each case. A right not exercised for a
long time is non-existent. Doctrine of delay and laches
as well as acquiescence are applied to non-suit the
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litigants who approach the court/appellate authorities
belatedly without any justifiable explanation for
bringing action after unreasonable delay. In the present
case, challenge to the order of dismissal from service
by way of appeal was after four years and five months,
which is certainly highly belated and beyond justifiable
time. Without satisfactory explanation justifying the
delay, it is difficult to hold that the appeal was preferred
within a reasonable time. Pertinently, the challenge was
primarily on the ground that the respondent was not
allowed to be represented by a representative of his
choice. The respondent knew that even if he were to
succeed on this ground, as has happened in the writ
proceedings, fresh inquiry would not be prohibited as
finality is not attached unless there is a legal or
statutory bar, an aspect which has been also noticed in
the impugned judgment. This is highlighted to show the
prejudice caused to the appellants by the delayed
challenge. We would, subsequently, examine the
question of acquiescence and its judicial effect in the
context of the present case.
______________________________________
38. In Ram Chand v. Union of India [ Ram Chand v. Union
of India , (1994) 1 SCC 44] and State of U.P. v. Manohar
[ State of U.P. v. Manohar , (2005) 2 SCC 126] this Court
observed that if the statutory authority has not
performed its duty within a reasonable time, it cannot
justify the same by taking the plea that the person who
has been deprived of his rights has not approached the
appropriate forum for relief. If a statutory authority
does not pass any orders and thereby fails to comply
with the statutory mandate within reasonable time,
they normally should not be permitted to take the
defence of laches and delay. If at all, in such cases, the
delay furnishes a cause of action, which in some cases
as elucidated in Union of India v. Tarsem Singh [ Union of
India v. Tarsem Singh , (2008) 8 SCC 648] may be
continuing cause of action. The State being a virtuous
litigant should meet the genuine claims and not deny
them for want of action on their part. However, this
general principle would not apply when, on
consideration of the facts, the court concludes that the
respondent had abandoned his rights, which may be
either express or implied from his conduct.
Abandonment implies intentional act to acknowledge,
as has been held in para 6 of Motilal Padampat Sugar
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Mills Co. Ltd. v. State of U.P. [ Motilal Padampat Sugar Mills
Co. Ltd. v. State of U.P. , (1979) 2 SCC 409] Applying this
principle of acquiescence to the precept of delay and
laches, this Court in U.P. Jal Nigam v. Jaswant Singh [ U.P.
Jal Nigam v. Jaswant Singh , (2006) 11 SCC 464] after
referring to several judgments, has accepted the
following elucidation in Halsbury's Laws of England :
( Jaswant Singh case [ U.P. Jal Nigam v. Jaswant Singh ,
“ 12 . The statement of law has also been
summarised in Halsbury's Laws of England , Para
911, p. 395 as follows:
‘In determining whether there has been such delay
as to amount to laches, the chief points to be
considered are:
( i ) acquiescence on the claimant's part; and
( ii ) any change of position that has occurred
on the defendant's part.
Acquiescence in this sense does not mean standing
by while the violation of a right is in progress, but
assent after the violation has been completed and
the claimant has become aware of it. It is unjust to
give the claimant a remedy where, by his conduct,
he has done that which might fairly be regarded as
equivalent to a waiver of it; or where by his conduct
and neglect, though not waiving the remedy, he
has put the other party in a position in which it
would not be reasonable to place him if the
remedy were afterwards to be asserted. In such
cases lapse of time and delay are most material.
Upon these considerations rests the doctrine of
laches.’
13 . In view of the statement of law as summarised
above, the respondents are guilty since the
respondents have acquiesced in accepting the
retirement and did not challenge the same in time.
If they would have been vigilant enough, they could
have filed writ petitions as others did in the matter.
Therefore, whenever it appears that the claimants
lost time or whiled it away and did not rise to the
occasion in time for filing the writ petitions, then in
such cases, the court should be very slow in
granting the relief to the incumbent. Secondly, it
has also to be taken into consideration the
question of acquiescence or waiver on the part of
the incumbent whether other parties are going to
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be prejudiced if the relief is granted. In the present
case, if the respondents would have challenged
their retirement being violative of the provisions of
the Act, perhaps the Nigam could have taken
appropriate steps to raise funds so as to meet the
liability but by not asserting their rights the
respondents have allowed time to pass and after a
lapse of couple of years, they have filed writ
petitions claiming the benefit for two years. That
will definitely require the Nigam to raise funds
which is going to have serious financial
repercussions on the financial management of the
Nigam. Why should the court come to the rescue
of such persons when they themselves are guilty of
waiver and acquiescence?”
39. Before proceeding further, it is important to clarify
distinction between “acquiescence” and “delay and
laches”. Doctrine of acquiescence is an equitable
doctrine which applies when a party having a right
stands by and sees another dealing in a manner
inconsistent with that right, while the act is in progress
and after violation is completed, which conduct reflects
his assent or accord. He cannot afterwards complain. [
See Prabhakar v. Sericulture Deptt. , (2015) 15 SCC 1]. In
literal sense, the term acquiescence means silent
assent, tacit consent, concurrence, or acceptance, [ See
Vidyavathi Kapoor Trust v. CIT , 1991 SCC OnLine Kar 331 :
(1992) 194 ITR 584] which denotes conduct that is
evidence of an intention of a party to abandon an
equitable right and also to denote conduct from which
another party will be justified in inferring such an
intention. [ See Krishan Dev v. Ram Piari , 1964 SCC
OnLine HP 5] Acquiescence can be either direct with full
knowledge and express approbation, or indirect where
a person having the right to set aside the action stands
by and sees another dealing in a manner inconsistent
with that right and in spite of the infringement takes no
action mirroring acceptance. [See “Introduction”, U.N.
Mitra, Tagore Law Lectures — Law of Limitation and
Prescription , Vol. I, 14th Edn., 2016.] However,
acquiescence will not apply if lapse of time is of no
importance or consequence.
40. Laches unlike limitation is flexible. However, both
limitation and laches destroy the remedy but not the
right. Laches like acquiescence is based upon equitable
considerations, but laches unlike acquiescence imports
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even simple passivity. On the other hand, acquiescence
implies active assent and is based upon the rule of
estoppel in pais . As a form of estoppel, it bars a party
afterwards from complaining of the violation of the
right. Even indirect acquiescence implies almost active
consent, which is not to be inferred by mere silence or
inaction which is involved in laches. Acquiescence in this
manner is quite distinct from delay. Acquiescence
virtually destroys the right of the person. [ See Vidyavathi
Kapoor Trust v. CIT , 1991 SCC OnLine Kar 331 : (1992) 194
ITR 584] Given the aforesaid legal position, inactive
acquiescence on the part of the respondent can be
inferred till the filing of the appeal, and not for the
period post filing of the appeal. Nevertheless, this
acquiescence being in the nature of estoppel bars the
respondent from claiming violation of the right of fair
representation.
11) The next contention raised by the petitioner is that the
disciplinary findings are contrary to the judicial findings,
despite being based on the same underlying facts. While it is
undisputed that the petitioner was acquitted by the Criminal
Court, it is well-settled law that mere acquittal in a criminal
case does not automatically vitiate or invalidate
departmental proceedings, owing to the distinct standards of
proof applicable in each. Reliance is placed upon the
decision of Apex Court rendered Southern Railway Officers
Association vs. Union of India, (2009) 9 SCC 24 , wherein
it has been held as under:
“37.Acquittal in a criminal case by itself cannot be a
ground for interfering with an order of punishment
imposed by the disciplinary authority. The High
Court did not say that the said fact had not been
taken into consideration. The revisional authority
did so. It is now a well settled principle of law that
the order of dismissal can be passed even if the
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delinquent official had been acquitted of the
criminal charge.”
12) It would also be appropriate to take note of the
judgment of the Hon’ble Supreme Court of India in
Karnataka Power Transmission Corpn. Ltd. v. C.
Nagaraju , (2019) 10 SCC 367 , and the relevant para is
extracted as under:
13. Having considered the submissions made on
behalf of the appellant and Respondent 1, we are of
the view that interference with the order of dismissal
by the High Court was unwarranted. It is settled law
that the acquittal by a criminal court does not
preclude a departmental inquiry against the
delinquent officer. The disciplinary authority is not
bound by the judgment of the criminal court if the
evidence that is produced in the departmental
inquiry is different from that produced during the
criminal trial. The object of a departmental inquiry
is to find out whether the delinquent is guilty of
misconduct under the conduct rules for the
purpose of determining whether he should be
continued in service. The standard of proof in a
departmental inquiry is not strictly based on the
rules of evidence. The order of dismissal which is
based on the evidence before the inquiry officer in
the disciplinary proceedings, which is different
from the evidence available to the criminal court,
is justified and needed no interference by the High
Court.
13) Besides, perusal of the judgment of acquittal recorded
by the Criminal Court reveals that there is no honourable
acquittal of the petitioner. It would be appropriate to take
note of paras 56, 60, and 61 of the judgment:
56. The evidence on record is not found to
be cogent, substantial and convincing, the
statements given by the prosecution
witnesses does not support the prosecution
story within the legal frame work. The
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evidence adduced by the prosecution
suffers from the grave infirmity and the
prosecution has also failed to produce
important witnesses as discussed
hereinabove before this court and
withholding of statements of the witnesses
is fatal to the prosecution story/case and
even some of the witnesses examined by
the prosecution have deposed against
accused and tried to connect the accused
with the offences shown to have been
committed by the accused persons by the
prosecution, but their testimony is not
corroborated by the other witnesses and
are without legal support.
60. There is itself doubt in prosecution
case, the version of the PW’s are not
convincing and cogent. There is not full
corroboration of witnesses with the
prosecution case. There are different
persons from different departments shown
as witness to case, but all not produced.
The witnesses have not proved genesis of
occurrence, as required in criminal trial. The
case has not been proved against accused
person within the legal parameters. In view of
totality of facts and circumstances, most
particularly the factor of contradictions,
improvements and omissions in above stated
discussion, missing factors of vital
importance in the case, which are having
great importance and influence on the
present case, has direct influence and impact
on the prosecution case.
61. In view of above stated facts and
circumstances into consideration,
especially the material contradictions as
discussed, doubted facts as pointed
above, the cumulative effect of defects in
prosecution and most particularly the
major defects in investigation, it can fairly
be said that the case does not fall within
the category of case "proved beyond
reasonable doubt" against accused. The
involvement of accused in the commission
of offence is not certain, sure and
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connected. There appears doubt in his
involvement.
14) In the present case, the petitioner's acquittal resulted
primarily from the non-production and non-examination of
key prosecution witnesses. Such an acquittal, arising out of
prosecutorial lapse or default rather than an honorable
exoneration on merits, does not entitle the petitioner to
assert that the disciplinary findings are contrary to the
judicial findings.
15) In view of the above, the present writ petition is found
to be without merit and the same is dismissed accordingly.
Interim direction, if any, shall cease to be in operation.
(Rajnesh Oswal)
Judge

Srinagar,
30.10.2026
“Bhat Altaf-Secretary”
Whether the judgment is reportable: YES
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