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CASE NO.: Appeal (civil)  8267 of 2004

PETITIONER: M.V. Bijlani

RESPONDENT: Union of India & Ors

DATE OF JUDGMENT: 05/04/2006

BENCH: S.B. Sinha & P.P. Naolekar

JUDGMENT: J U D G M E N T

S.B. Sinha,  J.

       The Appellant was working as a Junior Engineer at Jagadalpur in the  year 1969-1970.  He allegedly failed and/ or neglected to maintain a register  known as ACE-8 Register.  After he had handed over charge to his successor  Shri K.C. Sariya, on or about 11.04.1975, a disciplinary proceeding was  initiated against him on the following charges:

"(i) he had failed to maintain ACE-8 Register  showing acquisition and utilisation of 4000 Kgs. of  telegraph copper wire received from SDOT,  Raipur, through Sub-Inspector, Kashiram and  Badul Quadir on 22.10.1969, 30.10.1969 and  2.12.1969 for utilisation on Geedam-Bairagarh  truck line against estimate No. 2162 duly  approved;

(ii) that he had failed to supervise the working of  the line and utilisation of copper wire while the  rules require the personnel supervision and  accountability of the said wire; and

(iii) that he also showed misleading entries on the  bills of transportation for transportation of the  material."

        The disciplinary proceedings remained pending for a period of seven  years.  A report was submitted by the Enquiry Officer only in the year 1982.   In the disciplinary proceeding, the first two charges were held to have been  proved against the Appellant but the third charge was not proved.  He was  directed to be removed from service by the Disciplinary Authority by an  order dated 21.12.1983.  An appeal preferred thereagainst came to be  dismissed by the appellate authority by an order dated 21.2.1991 i.e.  after a  period of seven years holding:

"The ACE-8 sheets were still not available in  estimate files of 2160 D(a) and 2161 D(a) 69-70.   If the statement of Shri Bijlani is taken to be  correct that ACE-8 were prepared and kept in  respective estimate files and were made over to

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Shri Sariya, then it should not have been necessary  for Shri Bijlani to prepare ACE-8 again on  25.12.73.  He could have mentioned that numerical  account of 150 lbs copper wire can be made from  ACE-8 slips kept in the respective estimate files.   The statement of Shri Bijlani that he prepared  ACE-8 of 150 lbs copper wire on 25.12.73 on the  basis of limited records shown to him is also not  acceptable.  He could have demanded access to all  the records for preparing numerical account of 150  lbs/ mile copper wire.  The E.O. has therefore  rightly recorded wire 150 lbs/ mile in ACE-8  (DOC.I).  150 mile copper wire was issued to east  Jagdalpur on 22.10.69 (2204 lbs) 30.10.69 (2218  lbs) and 02.12.1989 (4398 lbs) by 20.10.1969  (2218 lbs/mile) copper wire received 8820 lbs.  Of  150 lbs/ mile copper wire but he did not keep its  numerical account in ACE-8 and could not prove  its utilization property."

       The appellate authority went into question of maintenance of muster  roll and the diaries maintained on day to day basis although that was not the  subject matter of charge.  On the said basis, it was held:

"Thus the charge of failure to maintain ACE-8 and  his failure to supervise the work of SIT and  utilisation of copper wire is proved."

       Attention of the appellate authority was also drawn towards a number  of lapses committed by the Enquiry Officer, but it was opined:

"Opportunity was available to Shri Bijlani to point  out all these in the defence brief, but he failed to  submit the defence brief even upto 15.05.1983  although he himself requested the E.O. to permit  him to file defence brief by 15.02.1983.  Shri  Bijlani also failed to point out the lapses being  made in the Inquiry to the Disciplinary Authority."

       The Appellant filed an original application before the Central  Administrative Tribunal which was marked as O.A. No.200 of 1992  questioning the correctness of the orders passed by the disciplinary authority  as well as the appellate authority.  The said original application was  dismissed by the Tribunal by an order dated 24.06.1999.  

       The Tribunal as regard the delay in conclusion of the proceedings held  that charges were framed on the basis of the findings of the CBI (Anti  Corruption Bureau) and, thus, the delay stands explained.

       The Tribunal furthermore considered only the question as regard  quantum of sentence.  It did not go into other contentions raised on behalf of  the Appellant.

                A writ petition was filed thereagainst by the Appellant herein. A  contention was raised before the High Court that the findings of the

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disciplinary authority are perverse.

Before the High Court, a contention was raised on behalf of the  Respondents that it was a case where there had been misutilisation of  substantial quantity of copper wire and not a case of lack of minor  supervision.  The High Court reproduced the following findings of the  Enquiry Officer:

"The prosecution has verified through documents  and witness that the above quantity of wire was  certified as having been received by Shri M.V.  Bijlani.  In this context Bill No. A26, A27 dt.  11.11.1969 of Sriqarage Raipur (DOC-11) issue  letter of store lineman Raipur dt. 30.10.1969 for  1000 Kgs. Of 150 lbs/ mile copper wire (sent  through SIT Garage along with issue letter of store  lineman dt. 02.12.1969 for 4398 lbs of Copper  wire 150 lbs/ miles (Sent through SIT Kashiram in  truck No. MPR 2700) and bill No. A-22 and 23 dt.  22.10.1969 of Shri Garage along with issue list of  100 kgs. of copper wire 150 lbs/ mile (Sent  through, SIT, Kashiram in Truck No. MPR 2607),  were produced in evidence on which Shri M.V.  Bijlani has certified to have received the goods in  good conditions.  None of the vouchers show that  goods were received for estimate No. 2161 D(a).   It is thus only established that about 4000 kgs. of  copper wire 150 lbs/ mile was received by EST  Jagdalpur during the period October-December,  1969.  These are not accounted for in ACE-8 of  EST, Jagdalpur (Documents \026 I).

Muster roll and work diaries of M/s. Kashiram SIT  M/R No. 463/11539 (Sept. 69) No. 463/11532  (Sept. 69) MR 463/11547 (Oct. 69) MR 464/11556  (Nov. 69) M/s. Abdul Sattar SIT. MR 463/11537  (Sept. 69) MR 463/11459 (Oct. 69) MR 464/11557  (Nov. 69) and M/s. Daya Shankar Singh MR  463/11533 (Sept. 69) MR 463/11546 (Oct. 69) MR  464/11558 (Nov. 69) Dec. 69 and January,  February, March, 1970, SIT.  Abdul Sattar Diaries  of September, October, November, December, 69  and January, February, March 1970 (vide  document No. 216/D(A) viz. erection of 150 lbs/  mile work has been done on these muster rolls and  diaries."

       On the basis of the aforementioned findings of the Enquiry Officer,  the High Court opined that there had been dereliction of duty which  penetrates into the arena of misutilisation.  The High Court rejected the  contention of the Appellant that there had been a theft of copper wire, again  relying upon the report of the Enquiry Officer.

       The High Court, however, noticed that the Tribunal had not delved  deep into the matter.

       Mr. Kailash Vasudev, learned senior counsel appearing on behalf of  the Appellant, has taken us through the report of the Enquiry Officer and  submitted that on reading thereof in its entirety, it would appear that the  Enquiry Officer misdirected himself in arriving at the finding of guilt against

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the Appellant without considering the nature of the charges levelled against  the Appellant.  

       Mr. N.K. Verma, learned counsel appearing on behalf of the  Respondents, however, supported the impugned judgment.  It was pointed  out that the witnesses examined on behalf of the department stated that  ACE-8 register was not being maintained in a register and kept in loose  sheet and kept in the estimate files separately.  It was furthermore submitted  that the Appellant had not been able to prove theft of copper wire and as the  allegation against the Appellant was that the copper wire ’amounting to 24  miles single wire’ were missing and the entire onus was on him to prove the  utilisation thereof.

       From a perusal of the Enquiry Report, it appears to us that the  disciplinary authorities proceeded on a wrong premise.  The Appellant was  principally charged for non-maintenance of ACE-8 Register.  He was not  charged for theft or misappropriation of 4000 kgs. of telegraph copper wire  or misutilization thereof.  If he was to be proceeded against for misutilisation  or misappropriation of the said amount of copper wire, it was necessary for  the disciplinary authority to frame appropriate charges in that behalf.   Charges were said to have been framed after receipt of a report from CBI  (Anti Corruption Bureau).  It was, therefore, expected that definite charges  of misutilization/misappropriation of copper wire by the Appellant would  have been framed.   The Appellant, therefore, should have been charged for  defalcation or misutilisation of the stores he had handled if he was to be  departmentally proceeded against on that basis. The second charge shows  that he had merely failed to supervise the working of the line.  There was no  charge that he failed to account for the copper wire over which he had  physical control.

                It will bear repetition to state that the charges which were framed  related to only non-maintenance of ACE-8 Register and non-supervision of  working of the line. In absence of any charge that he had in fact  misappropriated copper wire for his own benefit out of the disposal thereof,  the question as regard purported misconduct by way of misutilisation of  4000 kg. of copper wire could not have been gone into.  Furthermore, it has  not been shown that ACE-8 register was required to be maintained in an  appropriate form or in a particular manner i.e. in bound form or in loose  sheets.    

So far as the second charge is concerned, it has not been shown as to  what were the duties of the Appellant in terms of the prescribed rules or  otherwise.  Furthermore, it has not been shown either by the disciplinary  authority or the appellate authority as to how and in what manner the  maintenance of ACE-8 Register by way of sheets which were found attached  to the estimate file were not appropriate so as to arrive at the culpability or  otherwise of the Appellant.   The appellate authority in its order stated that  the Appellant was not required to prepare the ACE-8 Register twice.  The  Appellant might have prepared another set of register presumably keeping in  view the fact that he was asked to account for the same on the basis of the  materials placed on records.  The Tribunal as also the High Court failed to  take into consideration that the disciplinary proceedings were initiated after  six years and it continued for a period of seven years and, thus, initiation of  the disciplinary proceedings as also continuance thereof after such a long  time evidently prejudiced to the delinquent officer.  

       In State of Madhya Pradesh v. Bani Singh & Anr. [(1990) Supp.  SCC 738], this Court has clearly held:

 "\005 The irregularities which were the subject matter  of the enquiry is said to have taken place between the

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years 1975-77. It is not the case of the department that  they were not aware of the said irregularities, if any, and  came to know it only in 1987. According to them even in  April 1977 there was doubt about the involvement of the  officer in the said irregularities and the investigations  were going on since then. If that is so, it is unreasonable  to think that they would have taken more than 12 years to  initiate the disciplinary proceedings as stated by the  Tribunal. There is no satisfactory explanation for the  inordinate delay in issuing the charge memo and we are  also of the view that it will be unfair to permit the  departmental enquiry to be proceeded with at this stage."

       The appellate authority totally ignored the evidences adduced before  the disciplinary authority and in particular the evidence of Shri K.C. Sariya  in favour of the Appellant in this behalf.  The appellate authority was  required to apply its mind on the materials placed on records.  It failed to  take into consideration that the disciplinary authority purported to have  relied upon the police report which was not proved.  

       It is really a matter of great surprise that a disciplinary proceeding was  initiated five years after the Appellant handed over charge.   At that time he  was admittedly not having possession of any documents.  The Enquiry  Officer furthermore took a period of seven years to complete the enquiry.   The appellate authority also took seven years in disposing the appeal.  Even  then, the appellate authority did not go into the question as to whether the  procedures laid down for holding the disciplinary proceedings had been  followed or not.  He did not go into the contentions of the Appellant herein  minutely.  The memo of appeal filed before the Appellant was very  elaborate.  He raised a number of contentions therein.  The Enquiry Officer  was charged with bias.  He was also charged with unfair conduct.  He was  said to have committed a large number of irregularities in the departmental  proceeding.  The memo of appeal of the Appellant was in about 65 typed  pages.  It was sub-divided into five parts.  He made all endeavours to deal  with each and every findings of the Enquiry Officer and dealt with almost all  the documents relied upon by the department.  He also dealt with the  deposition of the witness examined on behalf of the parties.

The Enquiry Officer proceeded as if in the departmental proceedings  the Appellant was charged with misappropriation of property.  The witnesses  not only spoke of theft of copper wire, but also stated about the existence of  muster roll diaries.  According to one Daya Shankar, the work shown in the  diaries were correct.  According to him, apart from erection of 300 lbs iron  wire in section Geedam - Bijapur, 150 lbs was erected in entire section.  He  stated that broken pieces of wire found were sent to Jagdalpur through SIT  diary.  According to him, the work of erecting copper wire started from  5.11.1969 and continued upto March, 1970.  One Shri R.C. Sariya who was  the successor of the Appellant stated about the maintenance of the muster  rolls and the ACE-8 register.  According to him, stores pertaining to estimate  were accounted for and the ACE-8 sheets attached to estimate file.  He  further stated that ACE-8 sheets were in the estimate file.  One Shri K.D.  Shrivastava had stated that there was report of copper wire theft by one Shri  Kashiram.   

       While making the enquiry as against the Appellant, the Enquiry  Officer made adverse comments about the correctness or otherwise of the  statements made by the witnesses examined on behalf of the department  without assigning any reasons therefor.  They were examined by the  department.  If they deposed falsely, they should have been cross-examined.   Only because their evidence was totally against the department, the same per  se would not mean that they deposed falsely.  The Enquiry Officer opined:

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"He did not maintain ACE-8 as if the ACE-8 were  maintained there was no necessity of preparing  document No. 1 viz. numerical account of EST  Jagdalpur prepared by Shri M.V. Bijlani, JET  Jagdalpur, on 25.12.1973.  If there was any ACE-8  prepared earlier by Shri Bijlani, he would have  definitely objected to submit another ACE-8  (DOC-1) which is alleged to have been prepared  on the basis of document shown to him by JE  (Vigilance).  According to SDOT Raipur, ACE-8  (document \026 20) issue of copper wire 150 lbs/mile  to EST Jagdalpur had been mentioned on  22.10.1969, 30.10.1969 and 02.12.1969 as 2204  lbs., 2218 lbs and 4398 lbs respectively.  There are  no entries of the above quantity of wire in ACE-8  (DOC-1) of EST Jagdalpur."

       The said finding of the Enquiry Officer itself demonstrates that ACE- 8 sheets were being maintained and the quantity of copper wire mentioned  therein existed 4000 lbs.  He had furthermore noticed the muster rolls, work  diaries and work orders of M/s. Kashiram.  The ultimate finding of the  Enquiry Officer was:

"\005As such there is nothing to establish that  copper wires 4000 kg taken for copper wire theft  replacement was utilised for erection on theft  spots.  Even if 175 spans are taken as erected out  of 4000 kg of copper wire is not accounted for.  In  the requisition slip (DOC)-6 1000 kg of copper  wire was issued by store linemen on 20.10.69 to  SIT, Kashiram (purpose no mentioned) 4398 lbs/  2000 kg) of copper wire was issued for shifting  work Tumar river to Mari river) vide DOC-8)  through SIT, Kashiram.  1000 kg of copper wire  150 lbs/mile was issued vide DOC 10 to SIT  Abdul Quadir for transportation to Bijapur on  30.10.69.  As such based on police report work  orders and diaries produced in evidence there  appears to be no case of copper wire theft and if  any wire was received for the work has not been  accounted for.  Thus, if there was a copper wire  theft and supervision effected properly.  All the  facts that remain unexplained would have been  taken care of.  Defence has also not come out with  details of receipt utilisation and theft report in their  defence statement and has also avoided to submit  written brief to prove his innocence."

       Evidently, the evidences recorded by the Enquiry Officer and  inferences drawn by him were not commensurate with the charges.  If it was  a case of misutilisation or misappropriation, the Appellant should have been  told thereabout specifically.  Such a serious charge could not have been  enquired without framing appropriate charges.  The charges are otherwise  vague.  We have noticed hereinbefore that the High Court also proceeded on  the basis that the non-maintenance of diary amounted to misutilisation of  copper wire.    

       Mr. Verma, when questioned, submitted that the Appellant might have  utilised the same on unsanctioned works.  If that be so, a specific charge to  that effect should have been framed.  

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       It is true that the jurisdiction of the court in judicial review is limited.   Disciplinary proceedings, however, being quasi-criminal in nature, there  should be some evidences to prove the charge.  Although the charges in a  departmental proceedings are not required to be proved like a criminal trial,  i.e., beyond all reasonable doubts, we cannot lose sight of the fact that the  Enquiry Officer performs a quasi-judicial function, who upon analysing the  documents must arrive at a conclusion that there had been a preponderance  of probability to prove the charges on the basis of materials on record.   While doing so, he cannot take into consideration any irrelevant fact.  He  cannot refuse to consider the relevant facts.  He cannot shift the burden of  proof.  He cannot reject the relevant testimony of the witnesses only on the  basis of surmises and conjectures.  He cannot enquire into the allegations  with which the delinquent officer had not been charged with.   

       The report of the Enquiry Officer suffers from the aforementioned  vices.  The orders of the disciplinary authority as also the appellate authority  which are based on the said Enquiry Report, thus, cannot be sustained.  We  have also noticed the way in which the Tribunal has dealt with the matter.   Upon its findings, the High Court also commented that it had not delved  deep into the contentions raised by the Appellant.  The Tribunal also, thus,  failed to discharge its functions properly.

       For the views we have taken, the impugned judgments are wholly  unsustainable.   

The appeal is, therefore, allowed.  The consequence of the said order  would have been to remit the matter back to the disciplinary authority.  We,  however, do not intend to do so as the charges relate to the year 1969-1970.   The Appellant, due to pendency of these proceedings, has suffered a lot.  He  is, therefore, directed to be reinstated in service, if he has not reached the age  of superannuation.  However, keeping in view the fact that, he has not  worked for a long time, we direct that he may only be paid 50% of the back  wages.  He is also entitled to costs of this appeal.  Counsel’s fee assessed at  Rs.5000/-. 27618