2006 Supreme(SC) 327

2006(3) Supreme 393
SUPREME COURT OF INDIA
(From Madhya Pradesh High Court)
S.B. Sinha and P.P. Naolekar, JJ.
M.V. Bijlani—Appellant
versus
Union of India & Ors.—Respondents
Civil Appeal No. 8267 of 2004
Decided on 5-4-2006
Counsel for the Parties :
For the Appellant : Kailash Vasudev, Sr. Advocate, Milanka Chaudhary, M.A. Chinnasamy, Advocates.
For the Respondents : N.K. Verma, Sarla Chandra, Advocates.

IMPORTANT POINT
Enquiry Officer performs a quasi-judicial function who upon analysis of documents must arrive at a conclusion that there had been a preponderance of probability to prove charges on basis of material on record.

Headnote:SERVICE LAW—Order of dismissal from service—Jurisdiction of Court in judicial review is limited—Disciplinary proceedings however being quasi-criminal in nature, there should be evidence to prove the charge —Enquiry Officer performs a quasi-judicial function and he cannot take into consideration any irrelevant fact and cannot shift the burden of proof—Appellant working as a junior Engineer allegedly neglected to maintain register known as ACE-8 and a disciplinary proceeding was started—Two charges were found proved and appellant was removed from service—Administrative Tribunal dismissed the application and High Court dismissed writ—Appeal—Appellant was principally charged for non-maintenance of ACE-8 Register—Disciplinary proceeded against appellant for misutilization or mis-appropriation of copper wire— There was no charge that he had failed to account for copper wire—2nd charge found proved was that he failed to supervise working of line and utilization of copper wire—It was not shown what were duties of appellant in terms of prescribed rules—Disciplinary proceedings were initiated after six years and continued for seven years and it prejudiced delinquent officer—Evidences recorded by Enquiry Officer and inferences drawn were not commensurate with charges— Impugned order could not be sustained—Matter would have been remitted to disciplinary authority but charges being of the year 1969-70, appellant had suffered a lot—Directed to be reinstated in service if he had not reached age of superannuation and to be paid 50% of back wages.

       Held : 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.(Paras 14 to 16)

       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.(Para 23)

       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.(Paras 25 to 28)