Full Judgment Text
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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/-.
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