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PETITIONER: ORISSA MINING CORPORATION APPELLANTS AND ANOTHER

       Vs.

RESPONDENT: ANANDA CHANDRA PRUSTY

DATE OF JUDGMENT:       05/11/1996

BENCH: B.P. JEEVAN REDDY, K. VENKATASWAMI

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      B.P.JEEVAN REDDY, J.      Leave granted.      Heard the counsel for the parties.      The respondent was an Assistant Accounts Officer in the service  of the  appellant-corporation. Two charges were framed against  him and  a disciplinary  inquiry  held.  The first charge  was that  the respondent  made  certain  false notings while  recommending sanction  of  loans  to  certain persons to  the effect  that no loan was outstanding against them. On  tile basis  of  such  false  notings,  loans  were sanctioned to them, contrary to the rules. The second charge was  that   he  failed   to  exercise   proper  control  and supervision on  the staff  on account  of which the relevant registers and  record were  not kept  upto date. The inquiry officer reported  that while  charge  No.1  is  established, charge No.2  is proved  only partially.  On the basis of the said report the respondent was dismissed from service, which he challenged  by way  of writ  petition in  the Orissa High Court. The High Court has allowed the writ petition holding: (a) the  burden of  proving the first charge rested with the department. The  inquiry officer,  however, has wrongly cast the burden of disproving the charge upon the respondent. The department must  succeed on the strength of its own evidence and not  on the  basis of  weakness or  the failure  of  the delinquent officer to prove his innocence. Since the inquiry officer has  proceeded on a wrong hypothesis not permissible in, law,  the finding  recorded by  him on  charge  No.1  is liable to  be quashed.  (b) No  rules have  been cited which show which  officer is  required to  maintain which register nor is there any oral evidence to establish the guilt of the respondent. In  the case  of this charge too, the burden has been  wrongly   cast  upon   the  respondent  to  prove  his innocence. Accordingly  the High  Court quashed the order of punishment impugned in the writ petition.      Learned counsel for the appellant-corporation submitted that the question of burden of proof becomes irrelevant when both parties  have adduced  their evidence.  Learned counsel also complained  that the  High Court  seems to suggest that the standard  of proof  required in  disciplinary matters is

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similar to  the one  obtaining in  criminal  cases.  Counsel submitted that  while saying  that it  is not reappreciating the evidence, the High Court has precisely done that. On the other hand  the learned counsel for the respondent supported the reasoning and conclusion of the High Court.      In  a  disciplinary  or  a  departmental  inquiry,  the question of  burden of  proof depends  upon  the  nature  of charges and  the nature  of explanation  put forward  by the delinquent officer.  In this  sense, the learned counsel for the Appellant  may be  justified  in  complaining  that  the standard of  proof stipulated by the High Court in this case sounds inappropriate  to a disciplinary inquiry. At the same time we  must say  that certain  observations  made  by  the inquiry officer  in his  report do  lend themselves  to  the criticism offered by the High Court.      On a  consideration of  the totality  of the  facts and circumstances of the case including the nature of charges we are not  inclined to  interfere in  the matter. The position with respect  to burden  of proof  is  as  clarified  by  us hereinabove viz., that there is no such thing as an absolute burden of  proof, always  lying upon  the  department  in  a disciplinary inquiry.  The burden  of proof depends upon the nature of  explanation and the nature of charges. In a given case the  burden may  be shifted  to the delinquent officer, depending upon  his explanatian.  For example take the first charge in  this case.  The charge  was that  he made certain false notings  on account  of which  loans were disbursed to certain ineligible  persons. The  respondent’s case was that those notings were based upon certain documents produced and certain records maintained by other employees in the office. In such  a situation  it is  for the respondent to establish his case.  The department  is not  expected to examine those other employees  in the  office to  show that  their acts or records could  not have  formed the  basis of  wrong notings made by the respondent.      In the facts and circumstances of this case, we decline to  interfere  in  the  matter  under  Article  136  of  the Constitution except  to clarify  the position  of  law.  The appeal is accordingly dismissed with no costs.