9911796707
TMI Blog2006 (4) TMI 455X X X X Extracts X X X X X X X X Extracts X X X X ..... ge-A serious charge could not have been enquired into without framing appropriate charges-Initiation of the disciplinary proceedings as also continuance thereof after a long time evidently prejudiced the delinquent officer-Hence, the orders of the disciplinary authority as also the appellate authority cannot be sustained-Dismissal set aside-Judicial Review. - Appeal (civil) 8267 of 2004 - - - Dated:- 5-4-2006 - S.B. Sinha P.P. Naolekar JJ. Kailash Vasudev, Milanka Chaudhary and M.A. Chinnasamy for the Appellant. N.K. Verma and Sarla Chandra for the Respondents. JUDGMENT: 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 fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere 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 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 E ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 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 w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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: "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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
